Q&A: What Is a Special Counsel?
By Jacob Gershman and Joe Palazzolo May 17, 2017 Wall Street Journal
Former Federal Bureau of Investigation Director Robert Mueller will have broad powers, but will be overseen by deputy attorney general
The No. 2 official in the Justice Department appointed a special counsel to oversee an FBI investigation of the Russian government’s efforts to influence the 2016 presidential election.
Deputy Attorney General Rod Rosenstein tapped former Federal Bureau of Investigation Director Robert Mueller III for the job, saying the appointment was “in the public interest.” Mr. Mueller, a former federal prosecutor, will have broad powers to conduct his inquiry, but he still reports to the Justice Department.
Here is a brief look at the role of the special counsel, its level of independence and the restraints on its authority.
What is a special counsel?
Under federal regulations from 1999, the attorney general may appoint a temporary special counsel from outside the Justice Department to conduct a criminal probe into a particularly sensitive matter and to potentially prosecute related wrongdoing. The appointment should be reserved for extraordinary situations when normal protocol is compromised by political conflicts.
Within the first 60 days of the special counsel’s appointment, the appointee must develop a proposed budget for the investigation for the attorney general’s approval. While the special counsel isn’t subject to day-to-day supervision, Mr. Mueller can be asked to report to the attorney general—or in this case, the deputy attorney general, because the attorney general has recused himself—about “any investigative or prosecutorial step.”
Mr. Mueller will have ample time to conduct his investigation. “There appear to be…no time limits on the special counsel’s authority, aside from annual reporting requirements for budgetary purposes,” according to a recent Congressional Research Service report.
How is a special counsel different from a federal prosecutor?
The two roles are very similar. Special counsels are granted the “full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”
Perhaps the biggest difference is that the special counsel must be selected from outside the U.S. government and be a lawyer “with a reputation for integrity and impartial decision-making.” A special counsel can also recruit an investigative team from either within or outside the Justice Department.
The Justice Department has relied on the regulations just once, when Attorney General Janet Reno in 1999 appointed former Sen. John Danforth to investigate the “Branch Davidian” siege near Waco, Texas.
What is the difference between a special counsel and an independent counsel?
It is the degree of independence. The attorney general, or his acting deputy, retains far more control over the scope of a special investigation, its prosecutorial jurisdiction and its budget. The special counsel may only be removed by the attorney general—in cases of “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause”—although the president can dismiss the attorney general or the deputy attorney general at any time.
An independent counsel, which no longer exists under law, had far more latitude. The position was created after President Richard Nixon’s attempts to derail a criminal investigation of the Watergate scandal. The attorney general could request an independent counsel when allegations of wrongdoing by a high-ranking official arose.
The request would be submitted to a judicial panel, which would pick the counsel, define the scope of the inquiry and its duration. The independent counsel could convene grand juries, grant immunity and prosecute any crimes stemming from the probe. The attorney general couldn’t remove the independent counsel except for incapacity or extraordinary impropriety.
The independence was a double-edged sword. During the Clinton administration, the sprawling investigation of the White House by Independent Counsel Kenneth Starr led to a backlash from scholars and others who believed the probe veered away from its original mandate of looking into Whitewater allegations and raised separation-of-powers concerns. The law expired in 1999.
Can the special counsel file criminal charges?
Yes, but the special counsel can be required to keep the attorney general aware of any “investigative or prosecutorial step.” Justice Department rules state that the attorney general may conclude that charges are inappropriate or unwarranted. If the attorney general decides against pursuing charges, he must inform Congress.
Can a special counsel investigation coexist with congressional hearings and investigations into the same matter, and how would that work?
Congress on its own can conduct investigations and hold hearings on the conduct of executive branch officials, and the Senate and House intelligence committees are already conducting probes into Russia’s interference in the 2016 election.
But criminal prosecutions into possible violations of federal law are regarded as the job of the executive branch under Article II of the U.S. Constitution. There is nothing stopping the two branches from pursuing parallel inquiries.