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7 things to know about the special counsel investigating Trump

The DOJ just named a special counsel to investigate Trump — now what?

Deputy Attorney General Rod Rosenstein announced Wednesday night that he was appointing former FBI Director Robert Mueller as special counsel to oversee the FBI-led investigation into Russia’s interference in last year’s presidential election — including whether the Trump campaign colluded with Russia. Here’s what you need to know:

What is a special counsel?
A special counsel is selected by the Attorney General to oversee a criminal investigation if he or she determines that there is 1) an existing conflict of interest or 2) circumstances that make appointing one in the public interest.


In this case, Attorney General Jeff Sessions had recused himself from the Trump-Russia probe so the determination fell to Deputy Attorney General Rosenstein, who justified his decision using rationale No. 2. “What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command,” Rosenstein said in a statement.

What’s the difference between an independent counsel, a special prosecutor, and a special counsel?
In the aftermath of Watergate, Congress passed the Ethics in Government Act of 1978 that gave Congress and an independent three-judge panel on the U.S. Court of Appeals the power to appoint special prosecutors (and after 1983 they technically changed the terminology to independent counsel).

These special prosecutors could not be fired by the President or the Justice Department in order to make them independent. But Congress allowed those provisions to expire in 1999 so the only thing left now is special counsel provision. A special counsel is appointed by the Justice Department and thus can be dismissed by the Justice Department. In order to bring back the “special prosecutor,” Congress would have to renew the laws that lapsed in 1999.

Who are some other special counsels?
In 2003, then-Deputy Attorney General James Comey appointed US Attorney Patrick Fitzgerald to be “special counsel” to investigate whether the Bush White House revealed the identity of a covert CIA employee, Valerie Plame. Fitzgerald indicted and convicted Dick Cheney’s Chief of Staff Lewis “Scooter” Libby in 2005.


Nixon’s Justice Department also appointed Archibald Cox as an independent investigator for Watergate but the department called him “special prosecutor.” Unlike later special prosecutors, however, the Justice Department had ultimate authority over Cox and fired him on Nixon’s orders as the investigation heated up. Nixon first fired his attorney general and deputy attorney general when they refused to obey Nixon and dismiss Cox. This incident became known as the “Saturday Night Massacre.”

What the special counsel will do?
According to Rosenstein’s order, Mueller is empowered to prosecute federal crimes if he believes it is “appropriate and necessary.” Mueller, other prosecutors under him, and the FBI will be investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” along with “any matters that arose or may arise directly from the investigation.”

That is a broad mandate and could include an investigation into the most recent controversies surrounding President Trump’s abrupt firing of FBI Director James Comey. Rosenstein had the power to significantly restrict Mueller but, for the moment, he is giving Mueller the full power allowed by the special counsel statute.

Who can fire a special counsel?
Deputy Attorney General Rod Rosenstein can fire the special counsel just as he hired him. Trump can also technically order Rosenstein to fire Mueller and, if Rosenstein refuses, Trump can fire Rosenstein. The acting deputy attorney general who replaces Rosenstein may be more willing to follow Trump’s order.

Are the special counsel’s powers actually special?
No, not really. The special counsel is still under the purview of the Justice Department and has the same powers of the department’s prosecutors. But the independent, separate team will ideally prevent political meddling and provide more money and people.

What happens next?
Mueller must propose a budget to Rosenstein in the next 60 days that will cover the current fiscal year. The budget will cover operations plus request for personnel and their qualifications. The special counsel must provide periodic updates to the deputy attorney general but he is not required to give updates or conclusion to the public and the progress of the investigation will be likely kept closely guarded. Unless Mueller takes people to court, the public will have to rely on the Senate and House investigations plus any media reports for their updates.

There is no timeline on an investigation like this and it easily could take years.