Special Counsel Investigations: History, Authority, Appointment and Removal

"The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials.

Under the Ethics in Government Act of 1978, for example, Congress authorized the appointment of “special prosecutors,” who later were known as “independent counsels.” Under this statutory scheme, the Attorney General could request that a specially appointed three-judge panel appoint an outside individual to investigate and prosecute alleged violations of criminal law. These individuals were vested with “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice” with respect to matters within their jurisdiction. Ultimately, debate over the scope, cost, and effect of the investigations (perhaps most notably the Iran-Contra and the Whitewater investigations) resulted in the law’s expiration and nonrenewal in 1999..."
Special Counsel

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