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Expert Advice,

Jun. 21, 2017

A Quick Primer on Special Prosecutors

With everything happening in Washington these days, it’s appropriate to pause and briefly review how the law has evolved in this area.

Last month, President Donald J. Trump fired FBI Director James Comey. Suspecting that Trump did so to thwart an investigation into possible ties between Russia and the Trump campaign, many at the time called for the appointment of a special prosecutor to take over the investigation. In dramatic testimony before a Senate committee, Comey even admitted that he leaked details of his conversations with the President in part to encourage a special prosecutor's appointment.

Whatever role his leaks played in the process, Comey got his wish. A few weeks ago, Deputy Attorney General Rod Rosenstein appointed another former FBI Director, Robert S. Mueller III, as "special counsel" to take over the investigation.

All of which leads to an obvious question: What is a special counsel and why is the appointment significant?

Here's a quick cheat sheet.

Special counsels are used to conducting criminal investigations and prosecutions in cases where prosecutors within the normal chain of command could have a conflict of interest or appear biased. As the governing regulations put it, the Attorney General may appoint a special counsel if he or she determines "[t]hat investigation or prosecution of [a particular] 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 or other extraordinary circumstances" and the appoint is "in the public interest." See 28 C.F.R. § 600.1.

As happened here, special counsels are typically appointed in cases involving suspected wrongdoing by senior government officials. In this case, the Deputy Attorney General, rather than the Attorney General, made the appointment because he was acting as Attorney General for this purpose. The actual Attorney General, Jeff Sessions, had recused himself from matters pertaining to the Russia investigation because Sessions himself evidently had contacts with the Russians.

Until 1999, a statute called the Independent Counsel Act (see 28 U.S.C. §§ 591-598) provided a different way of handling this type of situation: the appointment of an "independent counsel." While special counsels are appointed by the Attorney General (or Acting Attorney General), a special panel of judges appointed independent counsels and defined the scope of their investigations. The Attorney General could then remove the independent counsel, but only in limited circumstances.

The Independent Counsel Act was controversial. Enacted after Watergate to enable independent investigation of suspected government wrongdoing, the law presented a number of difficult constitutional questions. For one thing, criminal investigation and prosecution is normally an executive function. Allowing judges to appoint prosecutors thus arguably violated the separation of powers. In addition, insulating prosecutors from at-will removal through the normal chain of command arguably infringed upon the President's constitutional responsibility to "take care that the Laws be faithfully executed" and supervise the functions of the executive branch.

Apart from the legal issues, moreover, there were practical concerns. Simply put, independent counsels risked taking their job too seriously. Normally, prosecutors have more work than they can handle. Faced with many potential crimes and limited resources for pursuing them, prosecutors must pick and choose their cases. Indeed, prioritizing some investigations over others, based on professional judgments about the relative importance and likelihood of conviction, is normally a central prosecutorial function.

Because of their independence from the usual chain of command and their assignment to only one particular case, independent counsels were potentially immune to these pressures for self-restraint. They could even feel pressure to justify their appointment by pursuing their case wherever it led, whatever the cost and whether or not a prosecutor with competing responsibilities would have considered the investigation worthwhile.

Despite these concerns, the Supreme Court upheld the Independent Counsel Act's constitutionality in a famous decision called Morrison v. Olson, 487 U.S. 654 (1988). The decision was 7-1. In a lone dissent, Justice Scalia thundered that the statute unambiguously violated the separation of powers. Separation-of-powers violations, Scalia argued, "[f]requently . . . will come before the Court clad, so to speak, in sheep's clothing. ... But this wolf comes as a wolf." Scalia also warned of the statute's practical dangers: "How frightening it must be," he wrote, "to have your own independent counsel and staff appointed, with nothing else to do but investigate you until investigation is no longer worthwhile--with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities."

A few years down the road, Independent Counsel Kenneth Starr's investigation of President Bill Clinton appeared to many to validate Scalia's concerns. Appointed initially to investigate suspected wrongdoing in connection with the Whitewater investment scandal, Starr's investigation eventually expanded to encompass suspected perjury in connection with a civil sexual harassment lawsuit. On that basis, the House of Representatives impeached President Clinton, but the Senate acquitted him. When the Independent Counsel Act next came up for renewal, Congress let it expire. See 28 U.S.C. §599.

So now instead of independent counsels, we have special counsels. Special counsels hold no statutory protection from removal, even by their political superiors. The regulations quoted earlier do provide that the Attorney General (or Acting Attorney General) may remove a special counsel only "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause." 28 C.F.R. §600.7(d). But the President could remove the Attorney General for failing to remove a special counsel. More radically, the Attorney General himself could alter or abolish the regulations. Without any independent counsel statute, the regulations merely implement the Attorney General's general statutory authority to conduct legal proceedings and oversee the Department of Justice.

In effect, then, while independent counsels were protected by law from political interference, special counsels are protected by politics. Their freedom to conduct an independent and impartial investigation ultimately depends on a broader political commitment in our society to ensure apolitical enforcement of the law, even with respect to the most senior and well-connected federal officials.

Over the course of his campaign and in the early days of his presidency, President Trump has called many longstanding political norms and understandings into question. By firing James Comey, President Trump arguably jeopardized the expectation that the President and his close associates remain subject to criminal investigation for serious wrongdoing. Whatever the results of the special counsel Mueller's investigation, his appointment powerfully reasserted the norm that even the President is not above the law in the United States. Let's hope this norm sticks.


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