The firing of FBI Director James Comey by President Trump Tuesday, with the agency in the midst of investigating the Trump campaign’s potential ties to Russian intelligence, has increased calls from Democrats and a handful of Republicans for the appointment of a special prosecutor to take over the investigation. Or an independent counsel. Or a special counsel.
Senate Minority Leader Chuck Schumer seemed confused about what he was asking the Justice Department to do on Wednesday morning, alternating between calls for a special prosecutor and a special counsel.
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Also Wednesday, Connecticut Sen. Richard Blumenthal said, “What’s needed now is in fact an independent counsel and special prosecutor.”
So, what is it Democrats are really asking for? The term “special counsel” is descended from earlier roles that were meant to serve roughly the same purpose -- creating distance between the administration and an investigation that might create the appearance of a conflict of interest if it were conducted or overseen by a presidential appointee.
In the Nixon era, it was “Special Prosecutor” Archibald Cox who led an investigation into the Watergate break-in. In the wake of the Watergate scandal, Congress passed the Ethics in Government Act, which established new rules for independent investigations. Perhaps most important, the special prosecutor was selected by a panel made up of three judges, insulating the prosecutor from interference by the executive branch.
By the 1980s, people with similar responsibilities were given the title “independent counsel.” It was Independent Counsel Kenneth Starr who led extensive investigations into the Clinton administration. After 1999, when the Ethics in Government Act expired, the preferred term has been “special counsel,” as in Special Counsel Patrick Fitzgerald, who oversaw the investigation of the Valerie Plame Affair during the George W. Bush administration.
(Coincidentally, Fitzpatrick was appointed by none other than then-Deputy Attorney General James Comey, after Attorney General John Ashcroft recused himself.)
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Democrats are calling for a special counsel because their other avenues to a non-partisan investigation into Trump’s Russia ties are closed off. Senate Majority Mitch McConnell said there will be no special commission in the Senate, and there was never much chance that the Republican-dominated House would rally behind an independent investigation of a Republican president.
With that in mind, it’s worth answering a few questions about what a special counsel is, and what kind of authority one would have in this case.
Who can appoint a special counsel?
According to the Code of Federal Regulations, a special prosecutor can be appointed by “the Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General.”
In the current case, because Attorney General Jeff Sessions has recused himself from any investigation looking at the presidential campaigns of Donald Trump or Hillary Clinton, the authority to appoint a special counsel to examine allegations of the Trump campaign’s connection to Russian intelligence officials falls to Deputy Attorney General Rod Rosenstein.
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The code says the appointment of a special prosecutor is warranted when an investigation led by DOJ officials “would present a conflict of interest for the Department or other extraordinary circumstances.”
However, the attorney general has considerable latitude and is not required to appoint someone from outside the Department of Justice to head an investigation if he or she believes that real or perceived conflicts can be ameliorated in other ways.
Who can serve as special counsel?
According to code, a special counsel “shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies.”
It cannot be a person currently serving in the U.S. government, and whoever accepts the post must agree to work in that capacity full time, if necessary.
A special counsel, once in place, is considered a “confidential employee” of the federal government.
What Is the special counsel’s jurisdiction?
The scope of the special counsel’s investigation is set by the attorney general, and comes with “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.” The special council’s jurisdiction is limited to criminal matters, meaning that civil and administrative violations of the law are beyond its scope.
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The special counsel’s jurisdiction can be expanded at the attorney general’s discretion.
How is the investigation staffed?
Once appointed, a special counsel can request that career Justice Department staff be temporarily detailed to work on the investigation. “The Department shall gather and provide the Special Counsel with the names and resumes of appropriate personnel available for detail. The Special Counsel may also request the detail of specific employees, and the office for which the designated employee works shall make reasonable efforts to accommodate the request.”
On specific request, a special counsel may also be allowed to hire people from outside the Justice Department.
Who does the special counsel answer to?
A special counsel operates very much like a U.S. attorney, with a key exception: Once in place he or she is under no obligation “to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.”
The office is still expected to operate within the rules of the Justice Department, and the special counsel can be held accountable for violating them, or fired for cause. However, the office also “shall not be subject to the day-to-day supervision of any official of the Department.”
Under extraordinary circumstances the rules allow for the attorney general to block “any investigative or prosecutorial step” if he or she determined that “the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
