For a special prosecutor to be appointed, an actual crime must be suspected. The only time "collusion" apperars in the legal code is anti-trust law.
What is the underlying "crime" being investigated?
Some even argue that there is no Constitutional basis for a "Special Prosecutor" under any circumstances.
http://www.breitbart.com/big-govern...pecial-prosecutor-driven-by-politics-not-law/
Independent counsels do not exist anymore because they were unconstitutional.
Another fake-news strawman echoed by various outlets this week is the talk about an independent counsel. They do not exist. They did for a couple of decades, until both parties decided that they were a bad idea, and on a bipartisan basis allowed the federal statute authorizing independent counsels—the Ethics in Government Act of 1978—to expire in 1999. Independent counsels have been illegal for 18 years now.
In fact, even when they were authorized by statute, independent counsels were always illegal. They are unconstitutional, for all the reasons the late Justice Antonin Scalia explained in his historic dissent in the 1988 Supreme Court case
Morrison v. Olson.
“The Founders conspicuously and very consciously declined to sap the Executive’s strength in the same way they had weakened the Legislature: by dividing the Executive power,” Scalia explained. “Proposals to have multiple executives, or a council of advisers with separate authority were rejected.”
Astounded by such an explicit violation of the Constitution’s separation of powers, Scalia continued:
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
Article II of the Constitution begins, “The executive Power shall be vested in a President of the United States of America.” The iconic Scalia emphasized that when Article II vests the executive power of the government in the president, “this does not mean
some of the executive power, but
all of the executive power.”
The majority of the Court in
Morrison unanimously agreed with several of Scalia’s points, with Chief Justice William Rehnquist acknowledging, “There is no real dispute that the functions performed by the independent counsel are ‘executive.’ ”
No reasonable person could deny that such operations must be part of the Executive Branch. “Governmental investigation and prosecution of crimes is a quintessentially executive function,” Scalia wrote.
That being so, every federal prosecutor must answer to the president. “We should say here that the President’s constitutionally assigned duties include
complete control over investigation and prosecution of violations of the law,” Scalia continued, “and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.”
So for a time there were prosecutors acting independently from the president and attorney general, but were in violation of the Supreme Law of the Land. After Scalia’s passing, Justice Elena Kagan remarked in a tribute that his
Morrison dissent gets better every time you read it. Liberals and conservatives alike hold a consensus view that there is no such thing as an independent counsel under the U.S. Constitution.