Deputy Attorney General Rosenstein’s appointment of Special Counsel Robert Mueller last week was a blockbuster development in the investigation of the administration. A copy of the DAG’s Order is here.

Independent and Special Counsels

A Special Counsel is different from Independent Counsels who investigated high-profile matters in the past.

In the Watergate investigation, the Justice Department appointed Special Prosecutor Archibald Cox who was eventually dismissed by President Nixon in the Saturday Night Massacre. In the aftermath, President Nixon appointed Leon Jaworski to replace Cox with the protection that dismissal of Jaworski could only be fired with the consent of a majority of the Senate Judiciary Committee.

In 1978, as part of the Ethics in Government Act, the Attorney General was authorized to seek a special independent prosecutor to investigate executive branch officials, and assigned a three-judge panel from the US Court of Appeals in the District of Columbia the authority to appoint and monitor the independent counsel’s activities. Form 1978 to 1982, three special prosecutors were assigned under the Ethics in Government law.

The law was authorized for a period of five years and expired in 1983. Congress modified the law in 1983 to address concerns as to the broad coverage of the law. Despite opposition from the Reagan Administration, the law was reauthorized for five more years. Seven independent counsel investigations occurred during the Reagan Administration, including the massive Iran-Contra investigation conducted by Independent Counsel Lawrence Walsh.

In 1988, after the law was reauthorized again, the Supreme Court upheld the constitutionality of the independent counsel law. Justice Scalia was the sole negative vote arguing that the law was unconstitutional.

In 1992, the independent counsel law expired. President Clinton reauthorized the law in 1994. By mid-1998, seven separate investigations of the Clinton Administration were underway, including the infamous investigation of President Clinton by Kenneth Starr. The law expired again in 1999.

In its place, the Justice Department crafted Special Counsel procedures and regulations. The Justice Department appointed Special Counsel Fitzgerald during the Bush Administration to investigate the Valerie Plame affair that resulted in the conviction of Scooter Libby.

Special Counsel Mueller

Under the Deputy Attorney General’s Order, Special Counsel Mueller is:

authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. Section 600.4(a).

Special Counsel Mueller is authorized to prosecute federal crimes arising from the investigation of these matters.

The reference to 28 C.F.R. Section 600.4(a) authorizes Special Counsel Mueller 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.”

The Special Counsel’s conduct must comply with the rules, regulations, procedures, practices and policies of the Department of Justice, but he/she shall not be subject to the day-to-day supervision of any official of the Department. 28 C.F.R. Section 600.7(a) and (b). The Attorney General, or in this case Acting Attorney General Rosenstein since Attorney General Session is recused, “may conclude that [a Special Counsel] action is so inappropriate or unwarranted under established Department practices that it should not be pursued.”  If the Acting Attorney General conducts such a review, he shall give the Special Counsel’s view great weight, and shall notify Congress if he reaches such a determination. 28 C.F.R. Section 600.7(b).

The Acting Attorney General retains authority to remove the Special Counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” 28 C.F.R. Section 600.7 (d).

Under the Special Counsel regulations, the Attorney General has the theoretical authority to restrict the Special Counsel’s activities, and in the end, can even dismiss the Special Counsel.  Given the surrounding controversy and need for independence, it would be a rare situation for the president to order the Attorney General to terminate the Special Counsel, in the absence of extraordinary circumstances.  However, as history has shown, such unforeseen events can occur.  We will have to wait and see.