The History and Law of Special Counsel

Robert Mueller

You may have heard about special counsel Robert Mueller, who is investigating any potential connection between President Donald Trump's election campaign and the Russian government. The public relationship between President Trump and Mueller has been strained, with President Trump allegedly considering terminating Mueller as counsel. Meanwhile, Mueller has expanded the scope of the investigation beyond its initial parameters. With all of this news, one could be forgiven for not actually knowing what the special counsel does or what its relationship is with the President. This post will try to provide a bit of background on the position.

John B. Henderson

Special counsel has had a place in American politics for over a century. President Ulysses S. Grant appointed the first special counsel, John B. Henderson, in 1875 to investigate liquor taxation corruption. You can learn more about this investigation in this piece from Prologue. The first special counsel appointed with congressional oversight came in 1924, when President Calvin Coolidge appointed two special attorneys to investigate the Teapot Dome Scandal. You can read more about the politics of this appointment in this piece from the Brookings Institution. 

The modern era of special counsel began during the Watergate scandal that ended with the resignation of President Richard Nixon. The facts of the Watergate scandal are beyond the scope of this post, but those wishing to learn more about it might want to look at this timeline from the Washington Post, the newspaper famous for its reports on the scandal. The investigation famously came to a head when Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus resigned rather than follow President Nixon's order that they fire Special Prosecutor Archibald Cox in the "Saturday Night Massacre."

Archibald Cox

Following the Watergate scandal, Congress enacted the Ethics in Government Act in 1978 in an effort to reduce corruption in Washington. Title VI of the Act created an administrative procedure by which the Attorney General would have special counsel appointed in certain instances. The Act also established that special counsel could only be removed by impeachment and conviction by Congress, or by the Attorney General for significant improprieties or issues that affected the counsel's performance. 

The Act was not without controversy. The Reagan administration challenged the constitutional validity of these provisions in Morrison v. Olson, 487 U.S. 654. The Supreme Court ultimately upheld the law, but Justice Antonin Scalia dissented and later called the case one of the most wrenching of his career in an interview with New York Magazine. Concerns about partisanship and overly expansive investigations took a toll on the legislation. The special counsel provisions were designed to be temporary, and Congress allowed them to lapse temporarily in 1992. Congress renewed those provisions in 1994, and then they allowed them to lapse again, this time permanently, in 1999.

When the provisions lapsed, the Attorney General's office promulgated regulations for the appointment of special counsel. Administrative law is a notoriously difficult subject, but you can learn a bit more about the difference between a law and a regulation in this blog post from FindLaw. You can find these regulations in Section 600 of the Code of Federal Regulations title 28, which you can find here. The regulations govern the appointment and powers of special counsel, including limitations on when counsel can be terminated in Section 600.7. Among other things, these regulations state that the decision to terminate special counsel must come from Deputy Attorney General Rod Rosenstein, since Attorney General Jeff Sessions has chosen to recuse himself from this case, and that the termination must be for cause.

In response to the recent discussion of firing Robert Mueller as special counsel, the United States Senate has produced two proposed legislative responses to protect the special counsel. S. 1741 would allow the Attorney General to terminate special counsel as described by the regulations, but would allow counsel to challenge that termination before a 3-judge panel if he or she so chose. The other, S. 1735, would have a three-judge panel review the firing decision before it could take effect.

While this post has only scratched the surface of the history and law behind special counsel, hopefully it provides enough information to learn more about this historically important but little-understood position.