The Role of Special Counsels in High-Profile Investigations
The appointment of special counsels has become a routine procedure for the Justice Department in recent months as several investigations into high-profile politicians and figures related to everything from classified documents to foreign business dealings continue to play out.
Since November 2022, three special counsels have been appointed to four cases, two of which pertain to former President Donald Trump and one each belonging to President Joe Biden and Hunter Biden.
Renewed Attention to the Role of Special Counsels
These appointments have renewed the public’s attention to the role that these prosecutors play in widely known investigations such as these. Here is what to know about the role of a special counsel, the most recent prosecutors selected for the role, and what different powers are given to special counsels.
What is a Special Counsel?
A special counsel is an attorney appointed to investigate and possibly prosecute a case. The cases are typically ones that the Justice Department believes it has a conflict with or with significant public interest, so it requires someone outside of the government to take responsibility.
The Code of Federal Regulations dictates that a special counsel must have ”a reputation for integrity and impartial decision-making” and “an informed understanding of the criminal law and Department of Justice policies.”
Special counsels still must adhere to DOJ regulations, procedures, and policies, but they have greater day-to-day autonomy compared to U.S. attorneys.
They report to the attorney general, Merrick Garland, who is the only one who can fire them.
Who Are the Appointed Special Counsels?
Right now, there are three special counsels who were appointed by Garland.
Most recently, Garland appointed U.S. Attorney David Weiss after the Delaware prosecutor requested the authority earlier this week. Weiss, who was appointed by Trump, is investigating Hunter Biden for tax evasion and possessing a gun while being an unlawful user of a controlled substance.
Jack Smith is the special counsel for Trump’s two cases: one for alleged mishandling of classified documents and another for his efforts to overturn the 2020 election that led to the Jan. 6, 2021, U.S. Capitol riot. Smith delivered a 40-count indictment for the former case in June and four counts for the latter case in August. Trump has pleaded not guilty.
Robert Hur is the third special counsel, who is in charge of the investigation into President Joe Biden’s alleged mishandling of classified documents. Hur and Biden’s attorneys are reportedly negotiating the parameters for a sit-down interview with the president.
Powers of Special Counsels
Special counsels are provided with a budget and can request outside attorneys to help with their cases. Special counsels are also empowered to bring down indictments, as well as issue subpoenas and search warrants.
Garland can override an indictment, but regulations impose a high standard: The attorney general may do so only if he or she concludes ”the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued.”
If that happens, the DOJ must inform Congress of that decision when the investigation concludes.
Weiss had a tentative plea deal agreement with Hunter Biden’s lawyers, which involved the younger Biden pleading guilty to two misdemeanor tax charges and entering into a pretrial diversion agreement to avoid a felony gun charge. However, that deal has since fallen apart after a federal judge scrutinized provisions of the deal, worried it could grant him immunity from future charges.
Garland said on Friday that “in his judgment, [Weiss’s] investigation has reached a stage at which he should continue his work as special counsel, and he asked to be so appointed.”
The special counsel authorization allows Weiss to “conduct the ongoing investigation described above, as well as any matters that arose from that investigation or may arise,” according to the order of appointment.
The order also gives Weiss the authority to “prosecute federal crimes in any federal judicial district arising from the investigation of these matters.”
Garland said Weiss will present a report at the conclusion of his investigation explaining any prosecutorial decisions, a report that the attorney general said will be made as public as possible.
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