Thanks for responding to the poll earlier this week! I discuss some of the comments and questions in the video above, but thought I’d add a few things here to flesh it out:
First, as I mention in the video, the best way to arm yourself with the facts about the scope and limits of the special counsel is to read the regulations governing the appointment of one. They are pretty clear, as legalese goes (and short!), and can dispel a lot of misconceptions about the position.
Second, it’s helpful to know the history and context of the current special counsel regulations as they are sometime conflated with the previous independent counsel statute. They are similar, but have some important differences:
The Ethics in Government Act of 1978 was a post-Watergate framework to enable independent investigations in situations involving alleged criminal misconduct of certain executive branch officials. The purpose was to address an inherent tension that arises when the individuals being investigated might have incentives or authority to quash or undermine an investigation into themselves (or their bosses) and provide these investigations some insulation from interference. The act authorized the attorney general to request from a court, after a preliminary inquiry, the appointment of an independent counsel (which in early versions of the statute was referred to as a “special prosecutor”). The independent counsel was appointed by a three-judge panel based on recommendations provided by the attorney general. Although the independent counsel could be removed for cause by the attorney general, he was generally not subject to oversight or limitations by the attorney general and had expansive investigative and prosecutorial powers.
The independent counsel statute had a sunset clause which required it to be reauthorized every five years. That happened until 1992, when it was allowed to expire (this was the first expiration following the independent counsel investigation into Iran-Contra). The statute was renewed in 1994, allowing for the appointment of Kenneth Starr to investigate the Whitewater controversy. However, largely because of concerns that Starr’s investigation became a runaway stagecoach against President Bill Clinton (and presumably, concerns that this same scope of authority could be turned against a president of the opposing party), it was allowed to expire in 1999.
What emerged in its place was the special counsel regulations. Unlike the independent counsel statute, these regulations originate in the executive branch itself — they are promulgated by Justice Department under the authority of the attorney general. Although they have the force of law, as I note in the video these regulations could theoretically be rescinded by the attorney general as well, which in some ways reduces the “insulation” of the special counsel compared to its previous iteration (and also creates some interesting constitutional questions about the executive branch investigating itself but I won’t go down that legal rabbit hole here). On the other hand, the regulations seek to correct for some of the loopholes in the independent counsel statute, namely in providing for more oversight and accountability in the scope and prosecutorial decisions made by the special counsel (hence the ability for the attorney general to deny prosecutorial steps if he deems them “so inappropriate or unwarranted under established Department practices that it should not be pursued”). At the same time, like the independent counsel statute, the regulations used Watergate as its paradigmatic case, and sought to include transparency provisions — like reporting channels to House and Senate Judiciary committees — to ensure that there could be no “cover up” by a self-interested attorney general.
The special counsel regulations aren’t perfect. The Mueller investigation revealed that the framework, which contemplates a criminal investigation, may be a poor fit for a probe that has a counterintelligence focus and involves sensitive sources and methods that cannot become public. It also demonstrated the limits, under current Justice Department policy, of investigating a sitting president. But neither of those major distinctions are present in the appointment of Jack Smith. More importantly, the regs are the best we’ve got, and hopefully their purpose can be realized this time around.
Your Burning Questions, Answered