Explained | What is special counsel in US and what role do they play?

Apart from the US presidential election candidates, there are three other important individuals who will figure prominently in the newspaper headlines and newsrooms for the next few months. They are David Weiss, Jack Smith, and Robert Hur.

All of them are special counsels appointed to oversee some of the most politically important cases that perhaps can change the course of the 2024 US presidential elections.

On Friday (Aug 11), David Weiss was appointed by Attorney General Merrick Garland to probe the financial and business dealings of Joe Biden’s son Hunter.

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Apparently, according to Garland, Weiss volunteered himself to be on the case and told him that “in his judgment, his investigation has reached a stage at which he should continue his work,” now as special counsel.

In January, Garland appointed Robert Hur, a former US attorney in Maryland, to oversee the Justice Department’s investigation into how several batches of documents marked as classified ended up at Joe Biden’s Delaware home and at the offices of the president’s Washington think tank.

And last year, Garland appointed former Justice Department public corruption prosecutor Jack Smith to lead investigations into the retention of classified documents at former president Donald Trump’s Florida estate, Mar-a-Lago, and also lead another probe into the Jan 6, 2021, insurrection and efforts to undo the 2020 election. Trump is now facing charges in both cases.

The appointment of these special counsels has again thrown a light on their duties, responsibilities and the kind of power they hold.

What is a special counsel?

A special counsel is an attorney who is appointed to investigate, and possibly prosecute, sensitive cases usually involving political figures or allegations of serious wrongdoing by the government.

A special counsel has or at least is perceived to enjoy more independence than is usually afforded to federal investigators.

According to the Justice Department rules, the special counsel is appointed when the department would have a conflict of interest or when he or she decides that it would be in the “public interest” to have an outside lawyer handle an investigation.

The Code of Federal Regulations stipulates that a special counsel must have “a reputation for integrity and impartial decision-making,” as well as “an informed understanding of the criminal law and Department of Justice policies.”

Though they’re not subject to the day-to-day supervision of the Justice Department, special counsels must still comply with department regulations, policies and procedures.

They also technically report to the attorney general — the one government official who can fire them.

The attorney general is entitled to seek explanations from a special counsel about any requested investigative or prosecutorial step, but under the regulations is also expected to give great weight to the special counsel’s views.

In the event the attorney general rejects a move the special counsel wants to make, the Justice Department is to notify Congress at the end of the investigation.

What powers do special counsels have?

A special counsel’s power is equivalent to a federal prosecutor. They supervise, investigate, decide whether to bring charges and, if so, take those cases to trial.

They are required to follow the Justice Department’s internal rules, including policies that spell out how to decide whether to bring charges.

Though they’re not subject to the day-to-day supervision of the Justice Department, special counsels must still comply with department regulations, policies and procedures. They also technically report to the attorney general — the one government official who can fire them.

They also operate with more public scrutiny. Unlike with other cases, the attorney general must notify Congress if he or she overrules one of the special counsel’s decisions. And the special counsel must submit a report laying out the reasons for charging people or declining to do so. Those reports can become public, something that rarely happens in other federal investigations.

How do they operate?

Special counsels are provided with a budget and can request a staff of attorneys, both inside and outside the department, if they need extra help.

In addition to the ability to bring indictments, special counsels are vested with bread-and-butter law enforcement tools such as the power to issue subpoenas and search warrants.

Robert Mueller, a former FBI director who as special counsel in the Trump administration, led the investigation into possible coordination between Russia and the 2016 Trump campaign, issued more than 2,800 subpoenas and executed nearly 500 search-and-seizure warrants.

Who can be a special counsel?

Normally, a special counsel is a lawyer brought in from outside the Justice Department. That was the case with Smith and with Robert Mueller, the former FBI director who investigated allegations that Trump’s campaign had conspired with Russia before the 2016 election.

But in some cases, attorneys general have appointed lawyers from within the agency to be special counsels to add heft to investigations they were already supervising.

(With inputs from agencies)

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