- The Justice Department now has three active special counsel inquiries.
- The inquiries are open-ended, can last years and cost millions of dollars.
Special counsels – or their predecessors, independent counsels – are prosecutors typically assigned a subject to scrutinize who operate independently of the Justice Department to investigate executive branch officials. The inquiries are open-ended, often last years and cost millions of dollars.
The circumstances that justify a special counsel have been rare enough they tended to operate one at a time for relatively high-profile inquiries. But now there are three special counsels operating at once. That’s in addition to prosecutors tapped for special inquiries as part of their regular jobs. The special counsels include:
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Here is a breakdown of what each special counsel is investigating:
But first, what are special counsels?
The aim of special prosecutors is to provide a criminal investigation independent of the Justice Department. But the way the prosecutors have been appointed over the last 45 years has changed because of complaints about the scope and cost of the open-ended posts.
Congress authorized the appointment of independent counsels under the Ethics in Government Act of 1978. The legislation came in response to the Watergate scandal, when then-President Richard Nixon ordered the Justice Department to fire a special prosecutor, Archibald Cox, who was investigating him.
Under the ethics legislation, the attorney general could ask a three-judge panel to appoint an independent counsel. But the provision expired in 1999 after debate over the power and independence of prosecutors investigating the Iran-Contra affair during the Reagan administration and Whitewater under the Clinton administration.
Then the Justice Department developed regulations for the attorney general to appoint a special counsel if the department is faced with a potential conflict of interest.
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Special counsel inquiries are open ended and cost millions of dollars
Special counsel inquiries can be costly and lengthy.
Durham’s relatively modest investigation, which has yielded a guilty plea and two acquittals at trial, cost nearly $7 million since October 2020.
Special counsel Robert Mueller’s investigation into Russian interference in the 2016 election charged 34 people and three corporations, with eight people convicted of felonies. His inquiry cost about $16 million.
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What is Hur’s assignment?
Attorney General Merrick Garland appointed Hur on Jan. 12 based on a recommendation from John Lausch, the U.S. attorney in Chicago, who conducted the initial review of Biden’s classified documents.
Biden’s private lawyers discovered the documents from when he was vice president while packing up a former office Nov. 2 at the Penn Biden Center. A broader search then revealed documents Dec. 20 in the garage and an adjoining room at his home.
Garland said he based his appointment on Lausch’s recommendation and said it underscored the department’s commitment to “independence and accountability in particularly sensitive matters.”
What is Smith’s assignment?
Garland appointed Smith in November, days after Trump declared his candidacy for president in 2024.
The department had been investigating the Jan. 6, 2021, attack for nearly two years; the search of Mar-a-Lago for evidence of possible obstruction or violations of the Espionage Act had been months earlier.
But Trump’s candidacy highlighted the political implications of a president’s Justice Department investigating his political rival.
Garland said he thought the department could handle all investigations with integrity, but that the extraordinary circumstances demanded a special counsel.
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What is Durham’s assignment?
Then-Attorney General Bill Barr asked Durham in May 2019 to review law enforcement and intelligence gathering during the 2016 presidential campaign. Barr asked Durham to expand the inquiry into a special counsel investigation in October 2020.
Durham’s job was basically to investigate the investigators. Deputy Attorney General Rod Rosenstein had appointed Mueller, a former FBI director, as a special counsel to investigate whether Trump’s campaign colluded with Russians to win the 2016 election.
Mueller’s final report found Russia supported Trump against his Democratic rival, Hillary Clinton, but not that his campaign colluded with Russia. Mueller documented several Trump actions of potential obstruction of the investigation, but chose not to make a decision on whether to charge him because the Justice Department has a policy against charging sitting presidents.
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Trump claimed exoneration from Mueller’s final report. Barr assigned Durham to investigate the FBI surveillance of Trump’s campaign and the Mueller investigation.
The Justice Department’s inspector general, Michael Horowitz, issued a scathing report in December 2019 that criticized how the FBI won court orders to wiretap Carter Page, a Trump campaign adviser.
So far, Durham has charged three people with lying to or for the FBI. Former FBI lawyer Kevin Clinesmith pleaded guilty to falsifying an email used to support the surveillance of Page.
But cybersecurity lawyer Michael Sussmann and think-tank analyst Igor Danchenko were acquitted at trial of allegedly lying to the FBI.