On Wednesday night, the justice department announced the appointment of Robert Mueller, the former FBI director under presidents George W Bush and Barack Obama, as a special counsel to investigate alleged ties between the Trump campaign and Russia.

The position of special counsel exists under a statute that allows the attorney general to mount an independent investigation. This particular provision has been invoked only once before, in the Bill Clinton administration, when former senator John Danforth was to investigate the Branch Davidian siege outside Waco, Texas.



Special counsel is different from an independent counsel, the role in which Ken Starr investigated Bill Clinton throughout the 1990s. The law provided for that position expired in 1999.

Is a special counsel truly independent?

There’s a degree of independence – but it’s far from complete.

The special counsel is appointed by the attorney general – or, in this case, because attorney general Jeff Sessions has recused himself from any Russia inquiries after revelations that he held two undisclosed meetings with the Russian ambassadors last year, by the deputy attorney general Rod Rosenstein.

According to federal regulations, the special counsel has “day-to-day independence”, including to exercise discretion over how to organize an investigation and “to decide whether charges should be brought”.

But the deputy attorney general, in this case, still has “ultimate responsibility” for how the matter is handled. The special counsel can only be removed by the attorney general “for good cause”.

But the area the counsel can investigate is limited. If new issues come to light in the course of an investigation that the special prosecutor wants to dig into, he or she has to consult the attorney general, who then gets to decide whether to allow that expanded focus.

Does the appointment of a special counsel mean that congressional Democrats got what they wanted?

Mostly. Democrats have been calling for the appointment of a special counsel for months, and just a week ago, that still looked like a long shot. The Senate majority leader, Mitch McConnell, made clear he did not support Democrats’ demands for a special prosecutor. McConnell told the Senate that such an appointment would “only serve to impede the current work being done”.

That was before bombshell news reports that Donald Trump had asked his former FBI director in a private meeting to drop an investigation into Trump’s former national security adviser, reportedly saying, “I hope you can let this go.”

Rosenstein’s choice to appoint a special counsel is a victory for Democrats. But after Trump abruptly fired FBI director James Comey, and used a memo written by Rosenstein to justify the firing, some Democrats argued that Rosenstein was no longer independent enough to appoint a special prosecutor himself, and that a high-ranking career civil servant should be given that responsibility.

Other Democrats, including former acting attorney general Sally Yates, had previously said they trusted Rosenstein’s judgement. Former assistant attorney general Laurie Robinson also expressed confidence in Rosenstein’s judgement even after Comey’s firing last week.

Why isn’t the counsel fully independent?

There used to be a process for the appointment of a much more empowered “independent counsel” – but Congress allowed that legislation to lapse in 1999.

That weakened the independence of this kind of outside counsel considerably.

The previous system to appoint a fully independent counsel was created through federal legislation in the wake of the Watergate scandal. The law allowed the attorney general to request a panel of three judges to appoint a special counsel, and then allowed that special counsel the ability to continue any investigation until they deemed it complete. This was introduced in part to prevent a future president from sacking a special prosecutor, as Richard Nixon had done in 1973.



Why did Congress let the independent counsel law expire?

According to the Congressional Research Service, by 1999, truly independent counsels had aggravated presidential administrations both political parties: Republicans fumed at the investigation of Iran Contra, Democrats at the investigation of the Clintons and Whitewater.

With a special counsel, rather than an independent counsel, “there is a major shift of discretion and ultimate authority back to the Attorney General, even in investigations and prosecutions which could be directed at the President, Vice President, or high-ranking colleagues of the Attorney General in the President’s Administration,” according to the Congressional Research Service.