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The Justice Department on Wednesday appointed Robert Mueller, a former FBI director, as a special counsel to investigate ties between associates of President Donald Trump and Russia.
“I determined that it is in the public interest for me to exercise my authorities and appoint a special counsel to assume responsibility for this matter,” Deputy Attorney General Rod Rosenstein, who made the appointment, said in a statement. “My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination.”
But what exactly is a special counsel, how do they get appointed, and what happens next?
Who appoints a special counsel?
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Either the attorney general or Congress could appoint a special counsel, said William Banks, a professor and the founding director of the Institute for National Security and Counterterrorism at Syracuse University.
A special counsel is a modern term for a special prosecutor, according to Banks, and any investigation would likely use “special counsel.” “Special prosecutor” was used through the 1980s, after which the laws around special prosecutors expired and were not renewed, therefore retiring the term.
After revelations about his conversations with Russia’s ambassador to the US, Sergey Kislyak, Attorney General Jeff Sessions recused himself in March from investigations involving Russian interference in the 2016 presidential campaign.
If the attorney general recuses himself, it falls to the deputy attorney general to appoint a special counsel, according to the Code of Federal Regulations. The appointment of a special counsel by the attorney general or deputy attorney general is “unreviewable,” according to the Center for Legal and Economic Studies.
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Investigations of ties between Trump’s associates and Russia are also underway in the congressional intelligence committees, but Banks said he believed it was unlikely a special counsel would be appointed until those investigations conclude.
The other way to establish a special counsel is through Congress.
Congress could initiate the creation of an independent special counsel for investigations by passing a law, as it did in 1978 with the Ethics in Government Act. The law dictated that a three-judge panel of the US Court of Appeals in Washington, DC, appoint the counsel.
The law, which was reauthorized several times until 1999, was used more than a dozen times to initiate investigations, according to PBS Frontline. It was used perhaps most famously in the 1990s to appoint Kenneth Starr to oversee investigations into President Bill Clinton’s conduct.
Such a law would have to be either signed by Trump or, in the event of a presidential veto, overridden by a two-thirds majority of both houses of Congress. There is a precedent, however, for a president to sign an independent-counsel law amid scrutiny. Clinton signed a reauthorization of the 1978 law in 1994 amid several allegations of misconduct.
Congress could, however, launch an investigation into the executive branch without legislation because such authority is implicit in the appropriations power, Banks said. If Congress decided to act on its own, it is much more likely it would establish a commission or committee to investigate rather than pass ethics legislation, Banks said.
What kinds of people are appointed as special counsels?
Special counsels tend to be highly respected lawyers or judges. According to Banks, examples include experienced private-practice lawyers, retired judges, and former Justice Department prosecutors.
How long would a special counsel’s investigation take?
An investigation by a special counsel would likely take between six and nine months, according to Banks, who said that such investigations tended to be extremely complicated – with so much classified or hard-to-obtain information, as well as intelligence officials who need to be interviewed, it could take a while to sort out.
What does a special counsel have access to?
A special-counsel investigation would involve arranging access to classified documents by either declassifying them or clearing them for the investigation only, which would mean the public likely wouldn’t see the documents.
A special counsel would also be expected to interview a vast range of people with knowledge of or connections to the matter being investigated.
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In the case of the Trump-Russia investigation, a special counsel would look into classified and declassified documents that the FBI, CIA, and various departments and investigation groups might have about any ties.
This would include human or digital intelligence, as well as the dossier compiled by a former British intelligence official. There would be extensive interviews with anyone close to the situation, including people in Trump’s inner circle and anyone who had access to digital or technical information, Banks said. The special counsel ultimately would determine which evidence to use.
What happens after the special counsel’s investigation concludes?
That depends in part on who appoints the special counsel. The attorney general would decide whether the special counsel had enough evidence to prosecute any officials.
If Congress created an office for an independent or special counsel, the counsel would likely pass the results of the investigation to Congress, though that could change depending on the legislation passed. If Congress initiated an investigation through a commission or committee, it would fall to the attorney general to decide whether to prosecute based on the results.
Why are people asking for a special counsel?
Trump and his inner circle have been accused of having close ties to Russia. The White House has denied many of those accusations. Previous reports have said:
- Trump and several of his associates are drawing intense scrutiny because of alleged ties to and communications with the Russian government. A dossier of claims alleged serious misconduct by the Trump campaign in the final months of the 2016 campaign. The White House has dismissed the dossier, and most of the claims remain unverified. Trump’s campaign aides had frequent contact with Russia, according to current and former officials who spoke to The New York Times in February. A Washington Post article in March said Sessions met with the Russian ambassador twice during the 2016 election.
Michelle Mark contributed to this article.