Special Counsel Q&A
(Factcheck.org | May 19, 2017) On May 17, the Justice Department announced the appointment of former FBI Director Robert S. Mueller III as special counsel to investigate any possible collusion between the Trump campaign and the Russian government’s efforts to influence the 2016 presidential election.
Trump responded by calling the investigation a “witch hunt.”
At a May 18 press conference, Trump said: “Well, I respect the move, but the entire thing has been a witch hunt. And there is no collusion between certainly myself and my campaign — but I can always speak for myself — and the Russians, zero.”
Deputy Attorney General Rod Rosenstein made the decision to appoint a special counsel just days after Trump fired FBI Director James Comey. Comey told Congress on March 20 that the FBI had opened an investigation last July into “the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”
Amid ongoing investigations by the FBI and House and Senate intelligence committees, what exactly does the appointment of a special counsel mean? Here we answer some questions that readers may have.
Who appoints a special counsel?
The appointment of a special counsel typically is the decision of the U.S. attorney general. But in this case, Attorney General Jeff Sessions recused himself from the Russia inquiry after it was revealed that he had met twice with Russian Ambassador Sergey Kislyak during the presidential campaign and did not disclose the meetings during his Senate confirmation hearing. In such cases of recusal, the power to appoint a special counsel falls to the “acting attorney general,” in this case, Deputy Attorney General Rod Rosenstein. According to the Code of Federal Regulations, a special counsel is appointed for an investigation into a matter that “would present a conflict of interest for the Department [of Justice] or other extraordinary circumstances” or in cases when it “would be in the public interest” to have an outside counsel …
… Can Mueller be fired?
Yes, but not by the president, at least not directly. Only the acting attorney general — in this case, Rosenstein — can discipline or fire a special counsel, and then only for cause. According to the federal code, “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” The president can, however, fire the deputy attorney general.
What authority does a special counsel have?
A special counsel has the same authority as any federal prosecutor, William Banks, a professor and the founding director of the Institute for National Security and Counterterrorism at Syracuse University, told us in a phone interview. That includes access to classified documents. It also includes the authority — if deemed appropriate — to subpoena, say, the president’s tax records …
… How common is the appointment of a special counsel?
According to the Lawfare blog, this is only the second time a “special counsel” has been appointed under this specific regulation. The first was in 1999 when Attorney General Janet Reno appointed former Sen. John Danforth to lead an investigation into the federal law enforcement raid of the Branch Davidian compound in Waco, Texas. But as Lawfare explained, past attorneys general have used “different authorities to appoint other special counsels — like Nora Dannehy, appointed in 2008 to investigate the firing of U.S. Attorneys, Patrick Fitzgerald, tasked with leading the investigation into the Valerie Plame affair, and John Durham, who investigated the alleged abuse of suspected terrorists by CIA interrogators.” Those are wholly different from “independent counsels” such as Kenneth Starr, who investigated the Whitewater scandal during Bill Clinton’s presidency. Starr’s investigations were carried out under the Ethics in Government Act, which was enacted in 1978 after the Watergate scandal. But that law expired in 1999.
Lawfare and a Congressional Research Service report go into some detail about the differences between the variations of special counsels, independent counsels and special prosecutors over the years. But Banks said they all have the same core function: to investigate and prosecute possible violations of criminal law by officials of the federal government. And they have been all too common in American history.
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