Attorney General Jeff Sessions’ decision Thursday to recuse himself from an investigation into alleged Russian interference with the 2016 presidential election falls short of the call for a special counsel still made by some congressional Democrats.
Armed with broad powers, deep pockets and a singular focus, a special counsel of the sort proposed by congressional Democrats could keep digging for years. While somewhat different from the independent counsels that hounded former President Bill Clinton, among others, special counsels can prove equally dogged.
“I’d want them to follow the evidence,” Rep. Eric Swalwell, D-Calif., said in an interview Thursday. “Right now, all of the dots continue to connect to the question of whether there were personal, political or financial ties between Trump, his team and the Russians.”
A former local prosecutor, and now a member of the House Permanent Select Committee on Intelligence, Swalwell joined a rising tide of lawmakers calling on Sessions to recuse himself from any ongoing investigation into the alleged Russian connections. Some, though not all, of these lawmakers also want a special counsel.
Sometimes referred to, informally, as an independent prosecutor or special prosecutor, the special counsel is a position authorized by the Justice Department’s regulations.
A special counsel is appointed by the attorney general; or, in the event of a recusal, by a deputy. Once appointed, they can range far afield.
During the George W. Bush administration, for instance, Illinois-based federal prosecutor Patrick Fitzgerald was appointed special counsel in late 2003 to investigate the leaking of a CIA officer’s name. The investigation lasted through mid-2007, during which a New York Times reporter was jailed for contempt and a former vice presidential chief of staff was convicted of lying under oath.
Nor is the position of special counsel limited to professional prosecutors. In 1999, former Missouri Republican Sen. John Danforth was appointed a special counsel to probe the 1993 deaths at the Branch Davidian compound in Waco, Texas. Danforth completed his work a year later, concluding the federal government had acted properly.
The Justice Department regulations permit the attorney general to fire the special counsel for “misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause.”
While recusing himself, Sessions did not otherwise change the trajectory or immediate leadership of any ongoing Justice Department investigation nor did he address the possibility of initiating an outside investigation. Certainly, some allies hope he doesn’t. They cite timing, among other issues, in an implicit recognition of how special investigations can drag on in their beginnings, their middles and their ends.
“In my opinion, it would take at least six months for any new investigation to get to where the Intelligence Committee is today,” Sen. Roy Blunt, R-Mo., a member of the committee, said Thursday.
The chairman of the House intelligence panel, Rep. Devin Nunes, R-Calif., added Thursday that “this is the appropriate place” for an investigation. FBI Director James Comey briefed Intelligence Committee members for more than three hours Thursday morning, though some Democratic members voiced frustration at Comey’s withholding of information.
“I am now convinced . . . that an independent prosecutor should be appointed,” Rep. Adam Schiff of California, the senior Democrat on the intelligence panel, said following the closed-door briefing. “Certainly, the attorney general is in no position to oversee any investigation or prosecution involving any of the counterintelligence issues concerning Russia.”
A modern special counsel would be different from the independent counsel position first authorized under a 1978 law, under which the attorney general could ask a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to appoint an investigator.
The highest-profile independent counsel appointed under this law, Kenneth Starr, was the chief overseer of a sprawling inquiry that spanned most of the Clinton administration’s two terms, cost upward of $80 million and led to President Bill Clinton’s impeachment.
Congress, where even some conservatives were dismayed over the unfettered range of the independent counsel, let the authorizing law expire in 1999.
“I think the law needs to be overhauled,” Sen. Susan Collins, R-Maine, said at a March 1999 Senate committee hearing, “but I really think we have a need for the underlying concept.”
On Thursday, Collins had urged Sessions to recuse himself, though she did not specify whether she also thinks he should appoint a special counsel.