What Are Special Counsels and What They Do?

Two Special Counsels discussing their recent investigation

Introduction

Special counsels are attorneys appointed from outside the government to investigate specific matters or cases of significant public interest or potential conflicts of interest within the government. Typically appointed by the Department of Justice (DOJ) in the United States, special counsels conduct independent and impartial investigations into matters that might present a conflict of interest for regular prosecutors or involve sensitive issues. 

The role of special Counsels is to conduct thorough investigations from scratch with a non-biased mind, collect documents and evidence, interview witnesses, and make necessary decisions during their investigation. Special counsels enjoy a certain degree of independence from the government and agencies they are investigating to avoid any impartiality and conflicts of interest.

Special Counsels in the USA

In the United States of America (USA), a special counsel is an attorney who must have “a reputation for integrity and impartial decision making”, and at the same time, he must have “an informed understanding of the criminal law and Department of Justice policies”.

According to Code of Federal Regulations Part 600 titled as “General Powers of Special Counsel”, the appointment of a Special Counsel in the United States is at the discretion of the Attorney General or the Acting Attorney General in cases of recusal. This occurs when there’s a determination that conducting a criminal investigation by a United States Attorney’s Office or Department of Justice division might create a conflict of interest or involve extraordinary circumstances. Additionally, the appointment occurs when it’s deemed in the public interest to bring in an external Special Counsel to handle the matter independently.

In Section 600.3, the Qualifications of the Special Counsel are prescribed as follows:

Must be a lawyer with a well-established reputation for integrity and impartial decision-making.

Should possess adequate experience ensuring proficient, prompt, and comprehensive investigations, backed by a deep understanding of criminal law and Department of Justice policies.

The individual appointed as a Special Counsel must be from outside the United States Government.

Commitment and Priority:

The Special Counsel must prioritise their role in this capacity above all other professional obligations.

Depending on the complexity and stage of the investigation, the Special Counsel may need to dedicate their full time to the investigation.

Appointment and Procedures:

The Attorney General will collaborate with the Assistant Attorney General for Administration to establish an appropriate appointment procedure. A thorough background investigation and in-depth examination of ethics and conflicts of interest issues will be conducted during the appointment process.

The Special Counsel will be designated as a “confidential employee” under the definition in 5 USC 7511(b)(2)(C).

USA Jurisdiction: Special Counsel Investigation

Special Counsels jurisdiction in the USA is enshrined under the Part 600 Section 4 Code of Federal Regulations, which is further divided into three types of jurisdiction that they usually possess and beyond which their powers and roles are not extended. 

Original Jurisdiction

The Attorney General defines the Special Counsel’s area of authority and clearly describes the matter to investigate.

The Special Counsel can investigate and prosecute federal crimes related to obstructing their investigation, like perjury or witness intimidation. They can also handle related appeals.

Expanded Jurisdiction

If the Special Counsel finds the need to expand beyond their initial scope during the investigation, they discuss it with the Attorney General. 

The Attorney General decides whether to broaden the investigation or assign those new matters elsewhere.

Civil and Administrative Actions:

If the Special Counsel believes that actions outside criminal law, like civil penalties or administrative measures, might be suitable, they consult the Attorney General to determine the appropriate authority to handle such actions.

The Special Counsel doesn’t have the power for civil or administrative matters unless specifically granted by the Attorney General.

Investigative Powers of Special Counsels

Special counsels play a pivotal role in conducting independent and impartial investigations into matters of significant public interest or potential conflicts of interest within the United States government. Central to their effectiveness is the scope of their investigative powers and jurisdiction, which determine how much they can delve into federal crimes and handle related matters. 

The appointment of a special counsel involves granting them substantial investigative authority vide Section 600.6 of the Code of Federal Regulations to exercise their functions and powers more effectively. They can investigate and prosecute federal crimes directly associated with their assigned matter. This authority covers a broad spectrum, encompassing offences like perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses. Such powers empower special counsels to pursue criminal elements hindering their investigations, ensuring a thorough and comprehensive inquiry.

In 2019, Robert Muller, who was appointed as the special counsel in relation to Russian interference in the 2016 US elections, issued a report titled as ‘Report on the investigation into Russian interference in the 2016 Presidential Election’ which shows key highlights and provided significant data where it was provided that Russia did interfere in the US election in a very systematic manner through the use of social media.

Roles and Responsibilities of Special Counsels

The appointed special counsels undertake a crucial and weighty responsibility, which is governed by specific roles and responsibilities that guide their actions and contributions to the legal system. 

Independence and Impartiality: One of the most prominent responsibilities among the roles of special counsels is to conduct investigations independently and impartially. To operate with a high degree of autonomy. They shall ensure that their inquiries remain free from any undue influence or conflicts of interest. This impartiality is crucial to upholding the integrity of their investigations and maintaining public trust in the legal process.

Thorough and Comprehensive Investigations: Special counsels are tasked with conducting thorough and comprehensive investigations into matters assigned to them. Their responsibilities encompass gathering evidence, interviewing witnesses, and analysing information pertinent to the investigation. Their aim is to provide a complete and detailed understanding of the issues at hand.

Impartial Decision-Making: In addition to investigation, special counsels are entrusted with making impartial decisions based on the evidence collected during their inquiries. These decisions may involve determining whether charges should be brought, recommending courses of action, or concluding the investigation based on their findings.

Impact and Significance of Special Counsel Investigations

Special counsel investigations in the United States have wielded significant influence on the legal, political, and public spheres, shaping the course of governance and accountability. Here are some impactful facts and statistics that shed light on the significance of these investigations:

Prominent Investigations: Over the years, several special counsel investigations have captivated national attention. Some of the notable examples include the Watergate investigation that led to President Nixon’s resignation and, more recently, the Mueller investigation into Russian interference in the 2016 US presidential election.

Public Awareness and Perception: Special counsel investigations often garner immense public interest. According to surveys, during the Mueller investigation, a substantial majority of Americans were aware of the probe, reflecting the investigations’ public resonance and significance.

Legal Ramifications: Special counsel investigations have resulted in legal actions against individuals involved in criminal activities. For instance, the Watergate investigation led to numerous convictions, and the Mueller investigation led to indictments and convictions of individuals for offenses ranging from lying to federal authorities to financial crimes.

Political Impact: These investigations have had profound political implications, influencing public opinion and affecting electoral outcomes. They’ve sparked debates, shaped political discourse, and sometimes prompted calls for reforms or changes in governance practices.

Accountability and Transparency: Despite debates and controversies surrounding their conduct, special counsel investigations have served as crucial mechanisms for ensuring accountability and transparency within the government. They’ve highlighted the importance of checks and balances, showcasing the independence of the legal system in investigating sensitive matters.

Legal Precedent and Reforms: The findings of the special counsel investigations have often set legal precedents and led to reforms and developments aimed at enhancing governance, legal procedures, and ethical standards within the government and also for the DOJ.

Conclusion

Special counsels are appointed to conduct impartial and unbiased investigations into matters of significant public interest or potential conflicts within the government. They serve a crucial role in the United States legal system. Special counsels are responsible for conducting thorough investigations, making unbiased decisions based on evidence, handling appeals, and prioritising their investigative duties. 

Special Counsels work independently to ensure that their inquiries remain free from undue influence or conflicts of interest, thereby maintaining public trust in the legal process. Despite the controversies and debates surrounding their conduct, special counsels continue to uphold justice, reinforce the importance of independent investigations, and contribute to a robust legal and governance framework in the United States.

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