Special Counsels and Independent Prosecutors
The United States has tried three different legal mechanisms for appointing a prosecutor the president cannot immediately fire — and each version has been weaker than the one before it.
The short version
- The original independent counsel statute (1978) created a court-appointed prosecutor who could only be removed for cause — genuine insulation from presidential control. It was used 20 times across six administrations and expired in 1999, largely because of the Starr investigation's perceived excess during the Clinton years.
- The current special counsel regulations, adopted in 1999 as DOJ rules rather than statute, allow the attorney general to appoint a special counsel from outside the government — but also allow the attorney general to remove that counsel for 'good cause,' a standard the attorney general defines. The president controls the attorney general.
- Special Counsel Robert Mueller's 2017–2019 investigation into Russian interference in the 2016 election and Special Counsel Jack Smith's 2023–2024 investigation of Donald Trump both operated under the 1999 regulations — and both were ultimately subject to the political decisions of a presidentially appointed attorney general.
- Jack Smith's investigation was terminated in November 2024 when Trump won the presidential election — the cases were dismissed not because they lacked evidentiary foundation but because DOJ policy prohibits prosecuting a sitting president, and Smith concluded there was no constitutional path to proceed.
What it is
Before the Saturday Night Massacre, there was no systematic mechanism for appointing a prosecutor independent of the executive branch to investigate senior executive branch officials. Prosecutors who investigated high-level corruption did so as employees of the DOJ, serving at the pleasure of an attorney general who served at the pleasure of the president. The inherent conflict of interest — the executive branch investigating itself — was well understood but tolerated. Watergate made it untenable. The Ethics in Government Act of 1978 created the independent counsel statute, establishing a process under which a special three-judge panel of the U.S. Court of Appeals for the D.C. Circuit could appoint an independent counsel to investigate and prosecute high-ranking executive branch officials, and under which the counsel could only be removed by the attorney general for cause — not at presidential whim.
The independent counsel statute was invoked 20 times between 1978 and 1999, investigating officials across Democratic and Republican administrations. Its most consequential appointments included: Lawrence Walsh, who investigated the Iran-Contra affair and secured convictions of senior Reagan administration officials (most of which were later pardoned by President George H.W. Bush); Robert Fiske and then Kenneth Starr, who investigated the Whitewater affair and, through a series of expansions, ultimately produced the Starr Report — a document that detailed President Clinton's sexual relationship with a White House intern in explicit terms and formed the basis for Clinton's impeachment. The Starr investigation became a cautionary tale about the unchecked authority of an independent counsel operating outside normal DOJ supervision. Both parties emerged from the Clinton years convinced, for different reasons, that the independent counsel statute was broken. Congress allowed it to lapse in 1999.
The regulations that replaced the statute — 28 C.F.R. Part 600 — represented a significant retreat from genuine independence. Under the current framework, the attorney general appoints a special counsel when investigation by normal DOJ channels would create a conflict of interest. The counsel must be a private citizen — someone not currently employed by the DOJ — and operates with a degree of independence from day-to-day DOJ supervision. But the attorney general retains authority to remove the counsel for 'misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.' The attorney general — an executive branch officer who can be removed by the president — defines what constitutes 'good cause.' In practice, this means the president retains indirect but real authority over the special counsel through the attorney general. The regulation's protection is political rather than legal: a president who fired a special counsel through an accommodating attorney general would pay a political cost, but there is no legal barrier to the action.
The Mueller and Jack Smith investigations tested the 1999 regulations in real time. Robert Mueller, appointed in May 2017 by Acting Attorney General Rod Rosenstein after Comey's firing, operated for 22 months under constant presidential pressure. Trump publicly demanded his firing, explored the legal basis for ending the investigation, and was reported to have ordered Mueller's termination at least once before being talked out of it by White House counsel Don McGahn, who reportedly threatened to resign rather than convey the order. Mueller ultimately submitted a report that laid out substantial evidence of obstruction of justice but, following the OLC memo prohibiting indictment of a sitting president, declined to recommend prosecution. Attorney General William Barr's summary of the report — which Mueller's team characterized as misleading — controlled public perception of the investigation's conclusions for weeks before the full document was released.
Why it matters
The trajectory from the independent counsel statute to the current special counsel regulations represents a measurable retreat from the post-Watergate reform impulse. The statute created a prosecutor appointed by the judiciary, removable only for cause by an official with statutory protection. The current regulations create a prosecutor appointed by the attorney general, removable for 'good cause' at the attorney general's discretion. In practice, the difference matters most in the cases where it matters most — when the investigation reaches the president directly. In those cases, the president's indirect control over the attorney general becomes the decisive variable. The regulatory framework survives political pressure only as long as the attorney general is willing to resist that pressure — and attorney generals, being presidential appointees who serve at presidential pleasure, have a structural interest in not resisting.
Jack Smith's appointment and the termination of his cases in 2024 illustrate the outer boundary of special counsel independence under the current framework. Smith was appointed by Attorney General Merrick Garland in November 2022 to investigate Trump's efforts to overturn the 2020 election and his retention of classified documents. Smith obtained indictments in both matters. When Trump won the 2024 presidential election, Smith moved to dismiss both cases before Trump took office, concluding that DOJ policy and Supreme Court precedent on presidential immunity — established in Trump v. United States (2024) — left no viable path to prosecution of a sitting president. The cases were dismissed with prejudice as to the federal charges. State charges in Georgia, brought by a locally elected district attorney, survived — though those proceedings moved slowly and faced significant procedural challenges. The federal cases ended not because the evidence was insufficient but because the target won an election.
The question of whether Congress should convert the special counsel regulations into statute — creating a rule that the attorney general cannot revise unilaterally and that provides more robust removal protections — has been raised after every major special counsel controversy and has not been resolved. The Special Counsel Independence and Integrity Act, introduced in various forms in the Senate, would have codified the regulations and added a 10-day judicial review period before a special counsel could be removed. It passed the Senate Judiciary Committee in 2018 but was never brought to a floor vote. Senate Majority Leader Mitch McConnell declined to schedule it, arguing the regulations were sufficient and the legislation was unnecessary. The regulations proved, in subsequent years, to be less than sufficient.
The structural problem with special counsels is a specific version of the general problem with DOJ independence: the mechanism for investigating executive branch wrongdoing is controlled by the executive branch. Every reform that stops short of creating a genuinely external investigative authority — appointed by the judiciary, removable only by court order, funded by Congress directly rather than through DOJ appropriations — replicates the underlying conflict of interest in a slightly different form. The independent counsel statute was the closest the United States came to a genuine solution, and it was abandoned because it produced a prosecutor — Kenneth Starr — whose investigation was perceived, with some justice, as politically motivated and procedurally aggressive. The lesson Congress drew was not that the statute needed to be reformed. It was that the statute needed to end.
Sources & Further Reading
- Independent Counsel Statute (28 U.S.C. §§ 591–599)
- Special Counsel Regulations (28 C.F.R. Part 600)
- Report on the Investigation into Russian Interference in the 2016 Presidential Election (Mueller Report)
- Trump v. United States (2024)
- Report of Special Counsel Jack Smith
- The Independent Counsel Law: After the Breach