The Special Counsel Investigation After the Attorney General’s Resignation

"Recent Department of Justice (DOJ) leadership changes have raised questions about their impact on the special counsel investigation into Russian interference with the 2016 presidential election and related matters. Who will oversee the investigation? How do personnel changes affect the investigation? What are Congress’s possible roles in this matter? Before his resignation, former Attorney General Jeff Sessions had recused himself from the inquiry with Deputy Attorney General Rod Rosenstein serving as Acting Attorney General for the investigation. With President Trump’s designation of Matthew G. Whitaker as Acting Attorney General pending Senate consideration of his nominee for Attorney General, supervision of the special counsel investigation may change in the coming months, possibly impacting ongoing litigation regarding the special counsel’s authority. This Sidebar examines how DOJ leadership changes may interplay with the special counsel investigation.

Authority to Oversee the Special Counsel’s Investigation.

In 1999, pursuant to its general authority to promulgate departmental regulations, DOJ issued the current special counsel regulations, which expressly vest authority to initiate special counsel investigations in “[t]he Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General.” Thus, as the U.S. District Court for the District of Columbia has affirmed, the Attorney General has authority over special counsel investigations but, if he recuses, the Acting Attorney General has authority. That authority includes review of particular aspects of the investigation; review and approval of the special counsel’s annual budget requests; and sole authority to discipline or remove the special counsel for “good cause.”
Special Counsel Investigation