Appointing a special prosecutor to probe Capitol rioters' congressional contacts is 'warranted': Ex-FBI agent

Former FBI agent and current Yale professor Asha Rangappa addressed online discussions about ways to investigate the members of Congress who have been accused of helping plan the "Stop the Steal" rally that preceded the attack on the United States Capitol.

One idea is for the DOJ to appoint a special prosecutor, so that if the House flips to Republicans after the 2022 midterm election, the investigations cannot be stopped by a new GOP speaker.

"It's warranted," Rangappa wrote on Twitter. "Contrary to what some have suggested, a conflict of interest is not a requisite for appointing a special counsel. Appropriate grounds include that an independent prosecutor would be in the 'public interest' or that there are 'extraordinary circumstances.'"

It would also show that the investigation was a priority for the Justice Department during a time when Attorney General Merrick Garland has been accused by some Democrats of not caring about the political corruption of the previous administration.

"Right now, it's possible that DOJ is investigating, but since by necessity this is under wraps it leaves the public speculating and increasingly cynical about the DOJ," she said. "It could [also] provide for a more efficient investigation. DOJ has a lot of things on its plate. A special counsel allows dedicated resources for a specified investigative scope. An SC would be able to have FBI agents and prosecutors detailed to focus on this one matter."

She doesn't think that the investigation would be a conflict of interest for Garland, but she noted that he would be right to be concerned about the "appearance" of being politically motivated.

"An SC provides an important buffer and even AG is required to give great deference to SC," she continued.

Rangappa went on to explain that there are rules outlining the way a special counsel reports prosecutorial decisions to Congress and to the public, which a regular investigation doesn't.

"This last point is incredibly important, especially in the event of *declinations to prosecute*, because it allows for the detailing of legal reasons for doing so in a report that can be made public at the AG's discretion. To do so in a 'regular' investigation can backfire," she explained.

The cons, she explained, are that anyone subject to investigation would essentially have a "heads up" on whether they'd be subject to the investigation. That could ultimately make an impact on whether or not the investigation is effective. Quiet investigations usually uncover more information, she said.

The other problem is that the right will relentlessly attack that special counsel the same as they did with Robert Mueller.

While those are the only two "cons" mentioned by Rangappa, she noted that they're pretty big ones. The excuse that the DOJ doesn't want to appear political is absurd, she explained, because if they find evidence and use it to prosecute, then it will be painted by the right as political.

"I think the downsides of internal DOJ investigation vs. SC are about the same, while upsides to SC are many," she concluded. "Of course, the downside to DOJ not investigating at all is a complete loss of faith in the idea that no one is above the law -- so I hope that is not an option."

In hindsight, she also said that Garland should have appointed a special prosecutor from his first day in office to simply remove the presumption of politics.

Read the full thread here.