Robert Mueller Was Just Named a Special Counsel. What’s That?

Deputy Attorney General Rod Rosenstein announced Wednesday evening that he was appointing former FBI director Robert Mueller as a special counsel to lead the investigation into Russia’s alleged interference in the 2016 election.

The decision comes one day after the New York Times reported that President Trump asked former FBI director James Comey, who he fired last week, to stop an investigation into former National Security Adviser Michael Flynn. The report intensified calls for a special prosecutor from Democrats. But there was resistance among the highest ranking Congressional Republicans. Here’s what you need to know about the function of a special counsel — also known as a special prosecutor — and how it differs from a select committee or commission, which some Republicans had been advocating for

A Prosecutor Vs. A Commission Vs. A Committee

An independent prosecutor is different from an independent commission or an independent committee. The former can only be appointed by the Department of Justice – in this case, by Deputy Attorney General Rod Rosenstein, since Attorney General Jeff Sessions recused himself amidst controversy during his confirmation hearings.

If, on the other hand, Congress wanted to appoint one, the only way it can do so is if they passed a statute mandating one that the President signs into law, which has happened in the past. But it is highly unlikely this will happen, since the White House has said several times appointing one would be unnecessary and Senate Republicans are opposed.

Congress, can, however, authorize an independent commission or committee. Either chamber can organize a committee of its own members with expertise pertinent to the investigation, or the Senate can pass a resolution and the House can authorize a commission.

What Would They Do

Mueller has been charged with investigating Russia’s meddling in the 2016 election, or specifically, possible collusion between Trump campaign associates and Russia. Only a special prosecutor has the power to actually take legal action; a committee or a commission would only gather the facts and present the findings to the Department of Justice.

“No one’s going to jail as a result of what the commission does but they could with a prosecutor,” explained William C. Banks, a law professor and Director of the Institute for National Security and Counterterrorism at Syracuse University. “Congress has the power to investigate but power to prosecute is in the Executive Branch.”

Historical Precedent

Although the idea of a special prosecutor extends back to Ulysses Grant’s administration in the 19th century, the most well known example in modern history of a Department of Justice appointing a special prosecutor is during Richard Nixon’s administration, when his Attorney General Elliot Richardson appointed Archibald Cox in 1973 to investigate the burglary at the Watergate hotel that would ultimately lead to Nixon’s downfall. Of course, Nixon fired Cox that same year in what is now known as the Saturday Night Massacre, which currently has many people drawing parallels with Trump’s decision to terminate Comey.

But after Nixon fired Cox, Congress did ultimately take action to ease the process of appointing an independent counsel. In 1978, then-President Jimmy Carter signed the Ethics of Government Act into law, which, among other provisions, enabled the appointment of an independent counsel, essentially another term for an independent prosecutor. This ultimately became known as United States Office of the Independent Counsel, and was used for major investigations like Iran-Contra during the Reagan years and Whitewater during the Clinton years, which ultimately led to Clinton’s impeachment.

Of course, this law passed under a different presidential administration from the one that fired the independent prosecutor. And the statute that enabled the creation of the independent counsels expired nearly two decades ago, in 1999.