Eleanor Finch
The appointment of a special counsel is a highly debated topic in the United States, with questions arising over its constitutionality. A special counsel is a lawyer appointed to investigate and prosecute cases where a conflict of interest exists for the usual prosecuting authority. While the Attorney General is responsible for appointing a special counsel, there are concerns about the legality of appointing private citizens to such a position. The role of the special counsel is to investigate and prosecute federal crimes, with the power to issue subpoenas and pursue sensitive investigations. The appointment process, jurisdiction, and powers of the special counsel are outlined in regulations, but the constitutionality of these appointments has been challenged in court, with varying rulings. The debate centres around the interpretation of statutes and the original meaning of the Constitution, with some arguing that only the President has the power to appoint superior officers.
| Characteristics | Values |
|---|---|
| Appointment | Attorney General, Acting Attorney General, or President |
| Appointment Circumstances | Conflict of interest, extraordinary circumstances, public interest |
| Appointment Requirements | Integrity, impartial decision-making, appropriate experience, outside the US Government |
| Appointment Process | Consult with Assistant Attorney General for Administration, background investigation, jurisdiction established by Attorney General |
| Appointment Duration | 5 years, may continue until a successor is appointed, maximum of 1 year beyond term expiration |
| Appointment Powers | All appropriate resources, budget proposal and approval, personnel appointment, investigative and prosecutorial powers |
| Appointment Removal | Only by the President for inefficiency, neglect of duty, or malfeasance in office |
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What You'll Learn
The Attorney General's role
The Attorney General plays a significant role in the appointment and oversight of special counsel. They are responsible for determining when a criminal investigation is warranted and whether there is a conflict of interest or extraordinary circumstances that necessitate the appointment of an outside Special Counsel.
The Attorney General's regulations provide for the appointment of special counsel, and they have the authority to appoint an individual to this role. In certain situations, such as when the Attorney General is personally recused, the Acting Attorney General will assume this responsibility. The Attorney General must follow a three-part analysis for determining whether to appoint a special counsel. This includes assessing the need for a criminal investigation, identifying conflicts of interest or extraordinary circumstances, and considering the public interest.
The Attorney General is also responsible for selecting the Special Counsel, ensuring they undergo a proper background investigation and ethics review. They establish the jurisdiction and provide the specific matter to be investigated. Additionally, the Attorney General can remove a Special Counsel for various reasons, including misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause. The Attorney General must inform the Special Counsel in writing of the specific reason for their removal.
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The legality of appointing private citizens
The appointment of a special counsel is generally considered constitutional, but there have been debates and controversies surrounding specific appointments. The legality of appointing private citizens as special counsel is a complex issue and has been the subject of legal and political discussions.
The Attorney General, or the Acting Attorney General in cases where the Attorney General is recused, has the authority to appoint a Special Counsel. The regulations set forth by the Attorney General's office provide a framework for determining when and how to appoint a special counsel. The decision to appoint a special counsel is based on several factors, including the presence of a conflict of interest, the public interest, and the qualifications of the appointee.
However, it is important to note that the regulations and statutes governing the appointment of special counsel have evolved over time. The Independent Counsel Act, for instance, included a list of mandatorily covered persons, while the current regulations prefer a discretionary test. The Attorney General's regulations provide flexibility in appointing special counsel and determining their jurisdiction.
While the appointment of private citizens as special counsel has been controversial, it is essential to consider the specific circumstances, applicable regulations, and legal interpretations in each case. The appointment process and the powers of special counsel continue to be a subject of debate and may be shaped by political and legal developments.
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The constitutionality of funding
The funding for a Special Counsel is a complex issue. Within the first 60 days of their appointment, the Special Counsel develops a budget proposal for the current fiscal year, which is then reviewed and approved by the Attorney General. This proposal includes a request for personnel assignment and their qualifications. This process is repeated annually, with the Special Counsel reporting to the Attorney General 90 days before the start of each fiscal year, providing a budget request for the upcoming year.
The Attorney General's role in this process is crucial. They determine whether the investigation should continue and establish the budget accordingly. This process is outlined in the eCFR (Electronic Code of Federal Regulations), which details the general powers of the Special Counsel.
However, the appointment of a Special Counsel itself has also been a subject of controversy. Some argue that the Attorney General does not have the authority to appoint a private citizen as a Special Counsel, and that only the President has the power to appoint a Special Counsel, with the advice and consent of the Senate. This view challenges the constitutionality of the Attorney General's appointment power.
The funding for a Special Counsel is intended to provide the necessary resources for their investigation. The budget proposal process aims to ensure that the Special Counsel has adequate resources to conduct their investigation effectively, including the appointment of necessary personnel. However, the constitutionality of the funding and the appointment process has been questioned and remains a subject of debate among legal scholars and officials.
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The appointment of a superior officer
The process of appointing a special counsel has been criticised as unconstitutional by some legal scholars, specifically in the case of Robert Mueller's appointment to investigate the Trump campaign in 2017. They argue that the appointment of a private citizen as a special counsel is unlawful and that only the President, with the advice and consent of the Senate, can appoint a superior officer. This view holds that the special counsel is a superior officer and, therefore, cannot be appointed by any other means than presidential appointment and senatorial confirmation.
However, others defend the constitutionality of the Attorney General's appointment power, citing the need for discretion and sensitivity in certain investigations. They argue that the Attorney General's regulations provide the necessary flexibility to appoint special counsel in cases of political conflicts of interest, especially when serious allegations are made concerning the President or those close to them.
The debate surrounding the appointment of a superior officer as special counsel centres on the interpretation of the law and the Constitution, with both sides presenting compelling arguments. While some argue for a strict interpretation that reserves the appointment power for the President and Senate, others advocate for a more flexible approach that empowers the Attorney General to act in the public interest when conflicts of interest arise.
Ultimately, the appointment of a superior officer as special counsel is a complex issue that requires a careful balancing of legal, ethical, and practical considerations to ensure the integrity of investigations and the rule of law.
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The jurisdiction of a Special Counsel
Once appointed, the Special Counsel is provided with a specific factual statement of the matter to be investigated and has the authority to investigate and prosecute federal crimes committed in the course of, and with the intent to interfere with, their investigation. This includes crimes such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses. The Special Counsel also has the authority to conduct appeals arising out of the matter being investigated and/or prosecuted.
The Special Counsel is typically a lawyer with a reputation for integrity and impartial decision-making, selected from outside the United States Government. They are considered confidential employees and are expected to devote their full time and attention to the investigation, depending on its complexity. The Special Counsel is also provided with the necessary resources and funding by the Department of Justice, including the ability to appoint legal, administrative, and support personnel.
In some cases, the appointment of a Special Counsel has been deemed unlawful or unconstitutional. For example, the appointment of Robert Mueller as Special Counsel in 2017 has been criticized as unlawful, as there was no statute authorizing the creation of such an office in the Department of Justice. Additionally, it has been argued that the Special Counsel is a superior officer and thus can only be appointed by presidential appointment and senatorial confirmation.
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Frequently asked questions
The Attorney General, or in cases where the Attorney General is recused, the Acting Attorney General. The Acting Attorney General is usually the Deputy Attorney General.
A Special Counsel must be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience. They must also agree that their responsibilities as a Special Counsel will take first precedence in their professional lives.
A Special Counsel is appointed to investigate and potentially prosecute a particular case of suspected wrongdoing for which a conflict of interest exists for the usual prosecuting authority. They are provided with a specific factual statement of the matter to be investigated and are given the authority to investigate and prosecute federal crimes committed in the course of their investigation.
