Argument That Appointment of a Special Counsel Was Required in the Comey Indictment

I. Statutory and Regulatory Framework

Congress has mandated that the Attorney General prevent conflicts of interest in prosecutions handled by the Department of Justice. 28 U.S.C. § 528 requires the Attorney General to promulgate rules “which require the disqualification of any officer or employee of the Department of Justice… if such participation may result in a personal, financial, or political conflict of interest, or the appearance thereof.”

The Attorney General has implemented this directive through 28 C.F.R. Part 600, which governs Special Counsel appointments. Under § 600.1, the Attorney General will appoint a Special Counsel when:

1. A criminal investigation is warranted, and

2. DOJ’s handling of the matter would present a conflict of interest or extraordinary circumstances, and

3. It would be in the public interest to appoint an outside Special Counsel.

§ 600.2 further provides that, if the Attorney General is recused, the Acting Attorney General must exercise the appointment authority.

II. The Comey Matter Presents Conflicts of Interest and Extraordinary Circumstances

1. Personal and Institutional Conflicts:

   • The indictment targets a former FBI Director, who served at the highest levels of DOJ’s investigative hierarchy.

   • Many current DOJ officials either served under Director Comey or were directly involved in controversies surrounding his dismissal. This creates at minimum an appearance of conflict, implicating § 528.

2. Political Conflicts:

   • The prosecution arises in a politically charged environment, with widespread public perception that the charges are retaliatory.

   • DOJ’s own regulations recognize that the appearance of conflict is as disabling as actual conflict. See 28 U.S.C. § 528; cf. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 811 (1987) (prosecutorial neutrality is essential to due process).

3. Extraordinary Circumstances:

   • The defendant is a former senior law enforcement official whose actions have been the subject of national debate.

   • These circumstances, like those in United States v. Nixon, 418 U.S. 683 (1974), call for scrupulous independence in prosecutorial decision-making.

III. The Public Interest Requires Appointment of a Special Counsel

• DOJ’s own regulation—§ 600.1(b)—explicitly conditions appointment on whether it would serve the “public interest.”

• Public confidence in the justice system depends on the perception of fairness. In politically charged prosecutions, independence is critical. See Morrison v. Olson, 487 U.S. 654, 660 (1988) (upholding special prosecutor statute precisely because of need for independence where DOJ had conflicts).

IV. Mandatory Language: “Will Appoint”

Unlike discretionary language, § 600.1 uses the imperative “will appoint,” meaning that once the Attorney General finds a conflict or extraordinary circumstance, appointment of a Special Counsel is mandatory, not optional.

Given (1) the target’s status as a former FBI Director, (2) the Department’s deep institutional entanglements with him, and (3) the intense political context of the charges, DOJ was obligated to conclude that both a conflict and extraordinary circumstances exist. The regulation thus compelled the Attorney General (or Acting AG) to appoint a Special Counsel.

V. Conclusion

Because DOJ proceeded without appointing a Special Counsel despite the clear application of 28 U.S.C. § 528 and 28 C.F.R. §§ 600.1–600.2, the prosecution of James Comey is procedurally defective. The indictment should therefore be dismissed, or, at minimum, prosecution should be transferred to a duly appointed Special Counsel to cure the conflict.

⚖️ David — do you want me to also draft a shorter “motion to dismiss”-style version (about 2–3 pages equivalent) with case law and direct citations, as if it were ready to file, or keep it at this high-level argument outline for now?

Yes, exactly right, David. ⚖️

Jack Smith was appointed as a Special Counsel in the Trump investigations. Here’s the timeline and authority:

• Appointment: On November 18, 2022, Attorney General Merrick Garland appointed Jack Smith as Special Counsel under 28 C.F.R. Part 600.

• Authority: His appointment order authorized him to investigate:

  1. Whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election (Jan. 6-related matters), and

  2. The handling of classified documents at Mar-a-Lago.

• Reason for Special Counsel: Garland expressly cited the extraordinary circumstances and the public interest in independence, given that Trump had declared his 2024 candidacy, creating an inherent conflict if DOJ handled it in-house.

So, yes — Smith’s appointment is a recent example of DOJ using the same Special Counsel regs (28 C.F.R. §§ 600.1–600.10) we just walked through.

Would you like me to pull the actual DOJ appointment order for Smith (with the language Garland used), so you have a clean precedent to analogize for Comey?