WASHINGTON — Attorney General Merrick B. Garland’s appointment on Thursday of Robert K. Hur as special counsel to investigate how classified documents from Joseph R. Biden’s vice presidency ended up at a private office he used before running for president and in his garage has brought renewed attention to 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.
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, which leads 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.
How are special counsels different from regular prosecutors?
Special counsels have 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.
While the attorney general has the power to overrule a special counsel’s decision to take a significant step — like indicting somebody — the regulations impose a high standard: the attorney general may do so only if he or she concludes “the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued.”
If the attorney general does overrule a special counsel, the Justice Department must inform Congress of that decision when the investigation ends. That rule is intended to serve as a check against abuse by ensuring that lawmakers will find out.
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 by high-level officials. That included investigations into the Iran-contra scandal during the Reagan administration and into President Bill Clinton’s actions in the Whitewater land deal and his affair with Monica Lewinsky.
Congress enacted the law enabling the appointment of independent counsels after the Watergate scandal, when President Richard M. 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, while the Supreme Court upheld this arrangement, critics across the ideological spectrum eventually agreed that the law could allow prosecutors to run amok.
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Congress did not renew the law when it expired in 1999. Instead, the Justice Department issued internal regulations during the Clinton administration enabling special counsels to remain subject to the supervision of the attorney general.
What are other notable special counsel investigations?
There is already an active special counsel investigating former President Donald J. Trump: Jack Smith, a longtime prosecutor who was appointed by Mr. Garland to oversee two criminal inquiries, examining Mr. Trump’s role in events leading up to the Jan. 6 attack on the Capitol and his decision to retain sensitive government documents at his home in Florida.
Mr. Garland appointed Mr. Smith in November to take over both investigations, which were already in progress, and he appears to have kept most of their staff in place while that work continues.
At this stage, the work is largely taking place behind closed doors, involving matters like subpoenas for testimony before a grand jury. Among other things, Judge Beryl Howell of the Federal District Court for the District of Columbia is weighing whether to hold representatives of Mr. Trump’s post-presidential office in contempt for defying a subpoena that they turn over all remaining documents with classification markings in his custody.
In 2017, the Justice Department appointed Robert S. Mueller III, a retired federal prosecutor and former F.B.I. director, to take over the investigation into Russian election interference and any ties to the Trump campaign.
The F.B.I. began that investigation in July 2016, and Mr. Mueller pursued it — along with a related inquiry into whether Mr. Trump had 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 Mr. Trump but did not charge any Trump associate with a criminal conspiracy with Russia.
After Mr. Mueller finished his work, the attorney general at the time, William P. Barr, assigned a U.S. attorney for Connecticut, John H. Durham, to investigate the origins of the Russian inquiry. In October 2020, Mr. Barr bestowed special counsel status on Mr. Durham, entrenching him to continue his work under the Biden administration.
Mr. Barr’s frequent public pronouncements about the investigation helped stoke expectations among Mr. Trump’s supporters that Mr. Durham would prosecute high-level F.B.I. or intelligence officials for a “deep state” conspiracy against Mr. Trump.
But Mr. Durham did not bring any such cases. Instead, he developed two narrow cases involving charges of false statements related to outside efforts to investigate Mr. Trump and Russia. He also used court filings to insinuate that he believed the Hillary Clinton campaign and other Democrats had conspired to frame Mr. Trump for collusion, even though he did not charge such a conspiracy.
Both defendants were acquitted. Mr. Durham is now apparently writing a report for Mr. Garland about his work.
