Jonah Patel
The appointment of a special counsel has been a contentious issue, with questions arising over its constitutionality. The Attorney General or the Acting Attorney General has the authority to appoint a special counsel when they determine that a criminal investigation is warranted and that an external investigation is in the public interest. However, there is debate over whether this appointment power should be restored to the Attorney General, with some arguing that only the President can appoint a Special Counsel. The selection process and legal basis for appointing special counsels have been scrutinized, with some appointments deemed unconstitutional by federal judges. The role and powers of special counsel, including their independence and authority, are also subject to interpretation and debate.
| Characteristics | Values |
|---|---|
| Who appoints a Special Counsel? | The Attorney General, or in cases where the Attorney General is recused, the Acting Attorney General. |
| When is a Special Counsel appointed? | When a criminal investigation of a person or matter is warranted, and there is a conflict of interest or other extraordinary circumstances. |
| Who can be a Special Counsel? | A lawyer with a reputation for integrity and impartial decision-making, from outside the US government. |
| Who can't be a Special Counsel? | A private citizen, or a current government employee. |
| Who decides when an investigation is terminated? | The Special Counsel. |
| Who does the Special Counsel report to? | The Attorney General. |
| Can a Special Counsel serve beyond their term? | Yes, until a successor is appointed, but not for more than one year after their term expires. |
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What You'll Learn
The Attorney General's authority
The Attorney General has the authority to appoint a Special Counsel when they determine that a criminal investigation of a person or matter is warranted. The Attorney General must also determine that the investigation or prosecution of that person or matter by a United States Attorney's Office or a Justice Department litigating division would present a conflict of interest or other extraordinary circumstances. Finally, the Attorney General must conclude that it would be in the public interest to appoint an outside Special Counsel to take responsibility for the matter.
The Special Counsel is generally selected from outside the United States Government and is a lawyer with a reputation for integrity and impartial decision-making. They are expected to devote their full time to the investigation, depending on its complexity and stage, and they decide when the investigation will terminate. The Attorney General's regulations specify a discretionary test for appointing a Special Counsel, eschewing a mandatory list of covered persons.
Despite these concerns, the Attorney General's statutory authority has been used to appoint Special Counsels on multiple occasions, including the appointments of Paul Curran in 1979 and Patrick Fitzgerald in 2003. The regulations set forth in 28 C.F.R. 600.1 provide a three-part analysis for determining when a Special Counsel should be appointed, and Senators Dole and Mitchell have supported entrusting the Attorney General with this responsibility.
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Separation of powers
The appointment of a special counsel in the United States has been a contentious issue, with questions arising over the separation of powers under the US Constitution. The selection of a special counsel is generally considered to be within the purview of the Attorney General or, in cases where the Attorney General is recused, the Acting Attorney General. This authority has been challenged on constitutional grounds, with some arguing that the appointment of a special counsel should be made by the President with the advice and consent of the Senate.
The role of special counsel is to investigate and prosecute persons or matters that warrant criminal investigation and where there may be a conflict of interest for the Department of Justice or other extraordinary circumstances. The special counsel is a lawyer with a reputation for integrity and impartial decision-making, selected from outside the US government. They are tasked with conducting thorough and expeditious investigations, ensuring that decisions are informed by an understanding of criminal law and Department of Justice policies.
The appointment process for special counsel has been the subject of debate, with some arguing that it violates the separation of powers. In the case of Nixon, he raised separation of powers concerns, arguing that as the special counsel is a member of the executive branch, they are ultimately answerable to the President. This argument highlights the complex interplay between the executive and judicial branches in the appointment and authority of special counsel.
While the Attorney General typically appoints special counsel, there have been instances where the statutory authority has been used to appoint individuals outside of this process. For example, Paul Curran was appointed by the Attorney General to investigate Jimmy Carter's peanut business in 1979, and Patrick Fitzgerald's appointment as special counsel in 2003 was not made under the 28 CFR 600 regulation. These appointments underscore the discretionary nature of the selection process and the potential for it to be influenced by political considerations.
The selection of a special counsel is intended to be independent and impartial, free from undue influence by the President or other executive officials. However, the interpretation and application of the regulations governing their appointment have been subject to debate and legal challenges. The balance between ensuring the independence of the special counsel and respecting the separation of powers remains a delicate issue in the US constitutional framework.
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Qualifications and selection process
The Attorney General, or in cases where the Attorney General is recused, the Acting Attorney General, appoints a Special Counsel. The Attorney General will appoint a Special Counsel when they determine that a criminal investigation of a person or matter is warranted and that investigation or prosecution of that person or matter by a US Attorney's Office would present a conflict of interest for the Department or other extraordinary circumstances. It should also be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
The Special Counsel shall be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure that the investigation will be conducted ably, expeditiously, and thoroughly. They should also have an informed understanding of criminal law and Department of Justice policies. The Special Counsel is selected from outside the US Government and must agree that their responsibilities as Special Counsel take first precedence in their professional lives. It may be necessary to devote their full time to the investigation, depending on its complexity and stage.
The Attorney General must consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment and that the Special Counsel undergoes a detailed background investigation.
Within the first 60 days of their appointment, the Special Counsel develops a proposed budget for the current fiscal year with the assistance of the Justice Management Division for the Attorney General's review and approval. The Attorney General establishes a budget for the operations of the Special Counsel, which includes a request for the assignment of personnel and a description of the qualifications needed.
The Attorney General determines whether the investigation should continue and establishes the budget for the next year.
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Term limits
The appointment of a Special Counsel has been a contentious issue, with questions arising over the constitutionality of the process and the extent of their powers. The Special Counsel is a member of the executive branch, and while they are selected by the Attorney General, they are ultimately answerable to the President. This has led to debates over the separation of powers and the independence of the Special Counsel.
The issue of term limits for the Special Counsel is not directly addressed in the sources. However, there are references to the duration of their service. The Special Counsel is appointed for a term of five years and can continue to serve beyond this term until a successor is appointed and qualified. This extension of service is limited to one year after the expiration of their original term.
The appointment process and term limits of the Special Counsel are distinct from the proposals for term limits for Supreme Court justices. The Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act proposes 18-year term limits for justices, with a new justice appointed every two years. This initiative aims to depoliticize the confirmation process, ensure regular turnover, and bolster public confidence in the Court.
While term limits for the Special Counsel are not explicitly mentioned, the sources indicate that their term of service is subject to certain constraints and can be influenced by various factors, such as the completion of investigations or changes in presidential administrations.
The debate surrounding the selection of a Special Counsel and the interpretation of constitutional provisions highlights the complex nature of constitutional law and the ongoing efforts to balance power and independence in government institutions.
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Scope of authority
The appointment of a special counsel is a highly controversial issue that has sparked intense debate among legal scholars and politicians. The scope of authority granted to a special counsel is a critical aspect of this discussion.
The special counsel is empowered to investigate and prosecute any matters that fall within the scope of their appointment. This includes the authority to
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Frequently asked questions
The Attorney General or, in cases where the Attorney General is recused, the Acting Attorney General can appoint a special counsel.
A special counsel must be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure that the investigation is conducted ably, expeditiously and thoroughly. The special counsel must be selected from outside the United States Government.
A special counsel has the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney. A special counsel generally decides when an investigation will terminate, with or without formal charges being pursued.
Yes, a special counsel can be appointed to investigate the president or the Attorney General if serious allegations are made.
