Here Are The Differences Between A Special Counsel, Special Prosecutor and Independent Counsel

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The DOJ’s decision to appoint Robert Mueller as special counsel to take over the Trump/Russia investigation was met with approval by Democrats and some Republicans. As Sarah Jones reported, Donald Trump cried “witch hunt” – ironic given his role in keeping the birther myth alive.

Under the applicable law, special counsel is appointed by the Attorney-General. When the Attorney-General recuses himself, (as Sessions did in this case – notwithstanding possible violations of that recusal) the Deputy Attorney-General is authorized to make this appointment.

As Jason Easley pointed out Mueller is an excellent choice because “He was the former FBI Director under both President George W. Bush and President Barack Obama. Mueller has an outstanding reputation, and most importantly, is not connected to Donald Trump in any way.”
Mueller has the character and the credibility to conduct an investigation as independently as a special counsel can. He has the full authority to investigate and, if warranted, file criminal charges as a U.S. attorney would.

As legal experts point out, Trump could emulate Nixon and fire the special counsel and of course, the Attorney-General, or in this case, Deputy Attorney-General Rosenstein can fire Mueller.

Laurence Tribe tweeted
“Not even a special counsel whom Trump could sack will suffice. If Ryan has any integrity at all he MUST initiate an impeachment inquiry NOW!”

There are other restrictions to the special counsel’s independence as well.
NBC’s Phil Helsel writes:

Modern special counsels have less independence than the special prosecutors employed during the Watergate investigations of the 1970s, who were appointed under a law that has now expired.”

For example, Mueller must notify the Attorney-General (in this case, Deputy Attorney-General Rosenstein), of any specific actions the special counsel intends to take, Rosenstein has the ability to overrule those proposed actions.

A special counsel is different from a special prosecutor. While a special counsel is appointed by the Attorney-General or Deputy Attorney General, special prosecutors were appointed by a 3-judge panel upon request by the Attorney-General, based on criteria set out in the applicable law.
As explained by Charlie Savage, https://www.nytimes.com/2017/05/09/us/politics/trump-rosenstein-comey-special-counsel-russia.html that law was part of a series of post-Watergate reforms to allow investigation of wrong doing by the executive branch, free from political interference.

While the ideal solution for many of us is impeachment proceedings, an Independent Counsel is the next best option. When we had an Office of Independent Counsel, it answered to Congress – providing the necessary independence from potential intimidation by the president or anyone else in the executive branch. Under the law establishing the Independent Counsel, the Attorney-General’s powers were restricted on matters being considered by the Office.

Under the law the Attorney-General shall have “no authority to convene grand juries, plea bargain, grant immunity or issue subpoenas.”
As noted above, we no longer have a legal basis to appoint an independent counsel because the Congress allowed the law to expire in 1999. Charlie Savage summarized the reasons Congress that happened.

Republicans learned to hate the arrangement during the Iran-contra investigation into the Reagan administration, and Democrats did, as well, during the Whitewater and Monica Lewinsky investigations into President Bill Clinton.

The current state of the law regarding independent council is explained in a report by the Congressional Research Office published in 2013.

Those parts of the Ethics in Government Act relating to independent counsels regularly had five year “sunset” provisions, and were eventually allowed by Congress to expire after June 30, 1999.9 Since the law’s expiration no “independent counsel” or “special prosecutor,” as those terms have been used since 1978, may now be appointed by an independent judicial panel upon the request of the Attorney General to investigate or prosecute a matter on behalf of the United States.

Politically, re-establishing the office of Independent Counsel isn’t in the cards, with a Republican controlled Congress and a President determined to maintain as much control over this investigation as he can.