By Alex Bregman
The Justice Department has tapped former FBI Director Robert Mueller as special counsel to investigate Russia’s meddling in the 2016 election and any collusion with President Trump’s campaign.
It comes after mounting calls for one from congressional Democrats.
And it’s not the first time we’ve heard the term thrown around. President Trump even threatened Secretary Hillary Clinton with one during a presidential debate: “If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation.”
So what is a special counsel, and why are they so special and feared?
Broadly speaking, they’re lawyers appointed to conduct investigations on behalf of the federal government.
They’re often referred to as “special counsels” or “independent counsels” because they’re brought in from the outside so that you don’t end up having the government investigating itself.
The drumbeat for one starts when some sort of scandal is brewing, and it makes sense that the idea originated during maybe the biggest scandal in modern American history: Watergate.
In 1973, members of the Senate threatened to hold up the nomination of then-Defense Secretary Elliot Richardson to be attorney general. Senators wanted him to appoint a special prosecutor to look into the break-in at the Democratic National Committee’s Watergate offices in Washington, D.C.
His pick: Harvard law professor Archibald Cox.
Richard Nixon, however, was not a fan, and when Cox demanded the famous White House Nixon tapes, Nixon demanded Cox be fired. That clash ultimately led to what became known as the Saturday Night Massacre, when both Richardson and his deputy resigned after refusing to fire Cox.
Nixon ultimately got his way and got Solicitor General Robert Bork to fire Cox on October 20, 1973.
Of course, facing impeachment over the Watergate matter, Nixon would resign less than a year later.
This all led Congress to put the role of a special prosecutor into law in the Ethics in Government Act of 1978.
However, that law expired in 1999, leaving it up to the attorney general to appoint one when he or she wants to.
So when have special counsels been used in the past?
In 2003, U.S. Attorney Patrick Fitzgerald was appointed to investigate how the name of CIA operative Valerie Plame was leaked to the public. That appointment, by the way, was made by a man you may be familiar with, James Comey, who was then deputy attorney general. His boss, John Ashcroft, had recused himself from the investigation because of his close ties to the George W. Bush White House. It all ultimately led to the prosecution of Vice President Dick Cheney’s chief of staff, Scooter Libby, not for the leak itself but for lying about it under oath.
Before that, a special prosecutor was appointed in 1994 to look into what was known as the Whitewater controversy that focused on an Arkansas real estate deal partially made by Bill and Hillary Clinton.
Initially Attorney General Janet Reno appointed Robert Fiske to be special prosecutor to look into the matter, but Fiske would be replaced by Kenneth Starr. Starr’s investigation would eventually lead to revelations about President Clinton’s affair with White House intern Monica Lewinsky, which led to Clinton’s impeachment for lying about the affair under oath.
Years later, however, Starr would say that he regretted the whole matter. He told Fox News: “What American of goodwill wanted this episode to happen? No one did.”
Back to the appointment of Mueller by Deputy Attorney General Rod Rosenstein. The appointment normally would be made by Attorney General Jeff Sessions, but he’s recused himself from any investigation related to the Trump campaign.
In his letter announcing the decision, Rosenstein said that Mueller is “authorized to prosecute federal crimes arising from the investigation” of Russia’s efforts to influence the 2016 presidential election.
While President Trump released a statement after the decision saying the investigation will confirm “there was no collusion between my campaign and any foreign entity,” he later took to Twitter to say that the investigation “is the single greatest witch hunt of a politician in American history!”
Regardless of what Mueller’s investigation concludes, when it comes to the role of a special prosecutor, at least you can say, “Now I get it.”