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What Makes a Special Counsel ‘Special’?

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Robert Mueller, the special counsel, at the Capitol in Washington on June 21, 2017. (Doug Mills/The New York Times)

Robert Mueller, the special counsel, at the Capitol in Washington on June 21, 2017. (Doug Mills/The New York Times)

WASHINGTON — Attorney General Merrick Garland’s appointment Friday of Jack Smith, a longtime prosecutor, as a special counsel to oversee two criminal inquiries involving former President Donald Trump renewed attention on a position that has played a significant role in politically charged investigations in recent years. Here’s a closer look.

What is a special counsel?

A special counsel is a semi-independent federal prosecutor.

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Normally, U.S. attorneys or the head of the Justice Department’s criminal division oversee criminal investigations, and they are subject to the department’s regular chain of command, leading through other politically appointed officials to the attorney general.

But in “extraordinary circumstances,” Justice Department regulations allow the attorney general to appoint a special counsel. Such situations include when an investigation would raise the appearance of a conflict of interest for the department or when there is some other reason it would be in the public interest to appoint an outside prosecutor.

In this case, Garland cited the 2024 election ambitions of Trump and President Joe Biden. Trump announced Tuesday that he would make a third bid for the presidency, and Biden has indicated that he intends to run as well.

“Appointing a special counsel here is the right thing to do,” Garland said. “The extraordinary circumstances presented here demand it.”

How are special counsels different from regular prosecutors?

Special counsels enjoy greater day-to-day autonomy than U.S. attorneys, even though they must obey Justice Department policies and remain subject to the oversight of the attorney general.

They also have protections against being arbitrarily fired: An attorney general may remove them only if they commit misconduct.

In addition, although an attorney general retains the power to overrule a special counsel’s decision to take a significant step — such as indicting somebody — the Justice Department must tell Congress if that happened when the investigation ends. That rule is intended to serve as a check against abuse by ensuring that lawmakers will find out what happened.

Is the appointment of a special counsel likely to delay the investigations?

No, the appointment is not expected to significantly draw out the inquiry. Smith could, in theory, hire all-new investigators and prosecutors to work on the cases, which would slow it down. But the simpler choice would be to keep most or all of the law enforcement officials already working on the investigations that he is now taking over.

Garland repeatedly emphasized that he wanted the investigations to be completed swiftly.

“I am confident this appointment will not slow the completion of these investigations,” he said. “The men and women who are pursuing these investigations are conducting themselves in accordance with the highest standards of professionalism.”

Is a special counsel the same as an independent counsel?

No. Independent counsels no longer exist.

In the late 20th century, independent counsels were periodically appointed to investigate allegations of wrongdoing among high-level officials. That includes investigations into the Iran-Contra scandal during the Reagan administration and former President Bill Clinton over the Whitewater land deal and his affair with Monica Lewinsky.

Congress had enacted the law enabling the appointment of independent counsels after the Watergate scandal, when President Richard Nixon ordered the dismissal of the Watergate prosecutor in what became known as the “Saturday Night Massacre.”

Under the law, independent counsels reported to a panel of judges and could not be fired by anyone subject to a president’s control. The Justice Department also had no say in the investigation’s budget, duration or expansion. But although the Supreme Court upheld this arrangement, critics across the ideological spectrum eventually agreed that the law could allow prosecutors to run amok.

Congress did not renew the law when it expired in 1999. Instead, the Justice Department during the Clinton administration issued internal regulations enabling special counsels to remain subject to the supervision of the attorney general.

What are some other notable special counsel investigations?

In 2017, the Justice Department appointed Robert Mueller, a retired former federal prosecutor and former FBI director, to take over the investigation into Russian election interference and any ties to the Trump campaign.

The FBI began that investigation in July 2016, and Mueller pursued it — along with a related inquiry into whether Trump illegally obstructed the investigation — for about two more years. In 2019, he delivered a final report that detailed many links between the Kremlin and associates of Trump but did not charge any Trump associate with a criminal conspiracy with Russia.

After Mueller finished his work, the attorney general at the time, William Barr, assigned a U.S. attorney for Connecticut, John Durham, to investigate the origins of the Russian inquiry. In October 2020, Barr bestowed special counsel status on Durham, entrenching him to continue his work under the Biden administration.

Barr’s frequent public pronouncements about the investigation helped stoke expectations among Trump’s supporters that Durham would prosecute high-level FBI or intelligence officials for a “deep state” conspiracy against Trump.

But Durham failed to bring any such cases. Instead, he developed two narrow cases involving charges of false statements related to outside efforts to investigate Trump and Russia. He also used court filings to insinuate that he believed the Hillary Rodham Clinton campaign and Democrats conspired to frame Trump for collusion even though he did not charge such a conspiracy.

Both defendants were acquitted. Durham is now apparently writing a report for Garland about his work.

© 2022 The New York Times Company

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