Calls grow for a special prosecutor in the Russia investigation. How are they appointed?

Calls grow for a special prosecutor in the Russia investigation. How are they appointed?
Source: Getty Images
Source: Getty Images

Following President Donald Trump's decision to fire FBI Director James Comey, calls for the government to appoint a special prosecutor to investigate the Trump campaign's Russian ties continue to intensify.

As explained by the Congressional Research Service, special prosecutors are personnel from outside the Department of Justice who are appointed "to conduct investigations and possible prosecutions of certain sensitive matters, or matters which may raise a conflict of interest for Justice Department personnel."

If the DOJ does appoint an independent prosecutor, it will be invoking a strategy that dates back to the administration of Ulysses S. Grant's in 1875. But things have changed a lot for special investigations over the years — and as the laws stand now, a special prosecutor might not be as independent as Trump critics hope.

Who appoints a special prosecutor?

Currently, a special prosecutor is "appointed by, are answerable to and may have their prosecutorial or investigative decisions countermanded by the Attorney General," according to the CSR. 

What this means is that any special counsel is under the jurisdiction of current Attorney General Jeff Sessions — or, since Sessions agreed to recuse himself from the Russia investigation, deputy attorney general Rod J. Rosenstein. This would be similar to a George W. Bush-era investigation into the Valerie Plame affair, in which Attorney General John Ashcroft recused himself and let then-deputy Comey take the lead.

Deputy Attorney General Rod J. Rosenstein during his confirmation hearing on March 7
Source: J. Scott Applewhite/AP

The special counsel's tie to the attorney general, however, hasn't always been the case. In response to the Watergate scandal, Congress passed a provision in the Ethics in Government Act of 1978 stipulating that although the attorney general could still recommend the appointment of a special prosecutor, a three-person panel of judges from the U.S. Court of Appeals for the District of Columbia would be responsible for appointing the prosecutor, according to the CRS.

The provision continued to evolve over the years, PBS reported, including a switch from "special prosecutor" to the "less prejudicial" term "independent counsel." The Supreme Court upheld the constitutionality of the law in 1988, but Congress failed to renew the legislation in 1999, allowing it to expire and returning power over special investigations to the attorney general. Though Republicans had long decried the three-person panel system, Democrats joined them in opposing the bill after it was repeatedly used to investigate President Bill Clinton, according to the Washington Post.

Past special counsel investigations

Ten special prosecutors were appointed during six presidential terms between Grant's first use and the Watergate scandal, including investigations into the 1920s Teapot Dome scandal and tax scandals in the 1950s, according to a report published in Georgetown Law Journal.

But it wasn't until Watergate and the Nixon administration that special prosecutors became a major source of attention. Though Elliot Richardson, Nixon's attorney general, hired special prosecutor Archibald Cox, Nixon later ordered Richardson to fire Cox during the Saturday Night Massacre of 1973. But the massive public outcry caused Nixon to appoint Leon Jaworski as Cox's successor — and the scandal sparked the passage of the Ethics in Government Act.

Over 20 special investigations took place during law's 21-year tenure. Among the most notable probes concerned the Iran-Contra scandal and the multiple inquiries into President Bill Clinton's administration, including the Whitewater investigation that led to his impeachment proceedings. 

Special prosecutor Archibald Cox speaks at a news conference in 1973.
Source: J. Walter Green/AP

The shortcomings of special prosecutors

When the Ethics in Government law lapsed in 1999, even former supporters of the law — like Whitewater investigator Kenneth Starr and Attorney General Janet Reno, who renewed the law in 1994 — decried it as an "unmitigated disaster," according to the Dictionary of American History. The law's critics cited the investigations' cost, length, "lack of accountability and unchecked prosecutorial power" as reasons for its unpopularity.

"It was a nightmare," Clinton told Fox News about reauthorizing the law in 2010, as quoted by Politico. "The only good thing to come out of it was it killed this whole system. I don't think there'll ever be another one like this again."

But the current system of relying on the attorney general may also be deeply flawed. The CRS noted that since 1999, special prosecutors have had less independence from the attorney general and the DOJ than before the Ethics in Government law expired — or even before the law was first enacted.

Under the current regulations, the CRS explained, the attorney general "establishes and defines the prosecutorial jurisdiction" of the special prosecutor, must be notified about any "significant actions" the special prosecutor takes — and has the power to revoke them — and can remove a special prosecutor for "misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause." Additionally, if the special prosecutor wants to appeal any cases, it has to be approved by the U.S. solicitor general — an appointee of the president.

Unless Congress were to reauthorize the Ethics in Government law, this means any special counsel appointed to investigate Trump's Russian ties will be at the mercy of the very administration — and attorney general — they're trying to investigate.

Whitewater special prosecutor Kenneth Starr in 1997
Source: Nick Ut/AP

Even if the investigation does go forward, there's a chance the findings may not be as revelatory as Trump's critics hope. In March, the Washington Post's Derek Hawkins wrote notes the special counsel's job is to find evidence, rather than publicly expose wrongdoing. In other words, should a special prosecutor fail to find sufficient evidence to bring criminal changes, any information he or she uncovered would remain classified.

"Prosecutors are not journalists, and their job is not to inform the public of the results of their investigations," former assistant special counsel Peter Zeidenberg wrote in an op-ed for the Washington Post. "Rather, their mission is to gather all of the relevant facts and determine whether a crime was committed and, if so, whether it can be proved in court beyond a reasonable doubt. Their work, when done properly, is done in secret."

If no criminal wrongdoing is found, the public would effectively "remain entirely in the dark" about the results of the prosecutor's investigation. "All they would know is that, after many months — or, more likely, years — of investigation, the special prosecutor had packed up his or her bags and gone home. 

No special reports. No Comey-style news conferences. Just radio silence."