By Mark Z. Barabak / Los Angeles Times
A special prosecutor, or independent counsel, enjoys broad investigative power with wider-ranging authority than a typical federal prosecutor.
The law calls for appointment of a special counsel if it is determined a criminal probe is warranted, the investigation “would present a conflict of interest” for the Justice Department and it would be “in the public interest” to place the matter in the hands of someone outside the administration.
The “special” simply means that the person has been selected to pursue a specific matter, a kind of one-off.
Q: Who decides whether appointment of an outside counsel is merited?
A: Normally, the U.S. attorney general. In this case, it was Deputy Attorney General Rod Rosenstein. That’s because Attorney General Jeff Sessions has recused himself from matters involving the investigation into Russian interference in the 2016 election. Rosenstein appointed Robert Mueller, a former federal prosecutor who was FBI director from 2001 to 2013.
Q: What’s the back story on special prosecutors?
A: It goes back to the 1970s-era Watergate scandal, which involved a break-in at the Democratic Party headquarters by operatives connected to President Richard Nixon’s re-election campaign.
After the myriad abuses of the Nixon administration, which led to his resignation, Congress passed a law creating an “independent counsel” with broad powers to investigate alleged wrongdoing. The attorney general or Congress could seek appointment of a special counsel, but the ultimate selection was left up to a panel of federal judges who also determined the prosecutor’s mandate.
Q: So it’s up to the attorney general or Congress?
A: Not anymore. Members of both parties grew frustrated with the actions of special prosecutors, including, most notably, Kenneth Starr, whose investigation of President Bill Clinton morphed from a look into a failed Arkansas real estate deal to a tawdry probe of his extramarital affair with White House intern Monica Lewinksy.
Lawmakers were concerned that the cost and free-ranging nature of previous investigations had gotten out of hand, so they allowed the independent counsel law to lapse. In its place is a system in which only the attorney general can appoint a special prosecutor, with their investigative scope limited to criminal activities.
Congress could vote to create a high-profile House-Senate committee to investigate Russian meddling and the Trump administration. In the meantime, separate investigations are underway by the House and Senate intelligence committees.
Q: You use “special prosecutor,” “independent counsel” and “special counsel” interchangeably.
A: That’s because they’re all the same. Some frown on the term “special prosecutor” because it has a kind of guilty-until-proven-innocent connotation.
Q: Is there precedent for Sessions’ recusal?
A: There is. Attorney General John Ashcroft stepped aside in 2003 when the decision was made to appoint an outside counsel to probe the unmasking of CIA agent Valerie Plame during the debate over the Iraq war. Ashcroft had close ties to some of those who may have been involved in the disclosure to the syndicated columnist Robert Novak. Guess who made the call?
It was Ashcroft’s No. 2, Deputy Attorney General James Comey.
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