Reply #9: Sorry for the delay I was busy....

[heartofthesiskiyou]

The Attorney General must appoint one. Usually either a President or members of Congress formally produce a signed letter requesting an investigation. Prestigious legal groups can request one such as ACLU or The Center for Constitutional rights. The Office of Civil rights, a branch of DOJ is the most likely group to make a recommendation that couldn't be ignored, as jurisdiction for election matters are their privy.
Another common strong proposer would be a majority or minority leader of either house, or majority or minority leader of the committee in competent jurisdiction to the issue, such as the justice committee, (see Conyers) in this case, with multiple signatories. There are no guidelines on who can request a special prosecutor even a private citizen could technically "ask", but it's usually left to those legal minds having substantial interest in the issue.

Under Department of Justice regulations, the Attorney General must appoint a special counsel when (1) a "criminal investigation of a person or matter is warranted," (2) "the investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department," and (3) "it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."

Significantly, The Attorney Generals obligation under this regulation is mandatory, not discretionary. It's possible to address the issue in the form of Mandamus (a motion to the court seeking the court to enforce a clearly defined duty of a government agent and impose that agent to do his duty under the law), another reason for the AG to act even if he wishes like hell he didn't have to (which you can rest assured he won't like it). If clear probable cause that a crime has been committed he would just do it such as he did to uncover the outing of Valery Plame even though high officers of his own party were involved (see Libby, Rove, VP etc.).

If a case is presented to the Attorney General where probable cause exists and he doesn't appoint one, it could be appointed by a court of competent jurisdiction such as a Federal District Court. It rarely reaches the point of forcing upon AG by the court as the court would chastise the AG significantly if probable cause exists and he fails his duty. He could even be sanctioned by the court if he fails his duty do to personal or political biased. It is important to note that the Special Prosecutor is independent of the Justice Department. That Prosecutors office is actually part of the Judicial branch of government and answers to the Officer of Solicitor General and technically works for the Supreme Ct. though the offices work is to be transparent to the SC. The best and the brightest legal minds and prosecutors work for that office and that office follows the law like religion and would even dump a President if it was clear that violation of law exists.

Typically the letter states how the three guidelines are met. The recommendation would be to gather the one or two (or more should they exist) strongest probable cause instances to demonstrate the validity of that probable cause exists to begin an investigation. This is a relatively low threshold.

1) Criminal Investigation of a Person or Matter is Warranted

Point one would be the proposers outline of the laws that have been violated which I will not address here as I'm addressing the how and not the why, in addition to that it would take election/civil rights attorney status to adequately address, which I am not.

2) A Conflict of Interest Exists in this Case

Because the allegations of misconduct involve the President, Vice President, and other high ranking members of the Bush Administration, there is little doubt that the Justice Department would have an unavoidable conflict of interest in fully investigating and prosecuting possible violations. This is in fact a textbook case of a conflict of interest. He (AG) was directly appointed by the President, previously served as White House Counsel and has close connections to Bush dating back decades. For a Justice Department inquiry to be credible, an outside special counsel with no ties to the Justice Department and no close ties to the President, Vice President or other high ranking Bush Administration officials is essential.

3) The Public Interest Demands the Appointment of an Outside Special Counsel

The public interest demands that this prima facie case of criminal activity be referred to a special counsel who has the independence to investigate the violation of these criminal laws. For example, there can be no doubt that the public interest is served by a full and unbiased investigation into the validity of a Presidential Office holder.

As a general matter, the violation of criminal laws is to be investigated by prosecutors and tried by independent federal courts. Regardless of whether Congress chooses to vigorously exercise its oversight powers and try to repair this breach of trust with the American people, the matters at issue are also serious criminal matters.