WASHINGTON – If it seems like there are more special counsel investigating the government these days, it’s because there are.
Special advices — or their predecessors, independent counsel — are prosecutors who are typically assigned a subject to investigate who operates independently of the Justice Department to investigate executive branch officials. The investigations are open, often in recent years, and cost millions of dollars.
The circumstances warranting special counsel were rare enough that they tended to operate one by one for relatively high-profile investigations. But now there are three special counselors working at the same time. That’s in addition to prosecutors being tapped for special investigations as part of their regular job. The special councils are:
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Here’s an overview of what each special counsel investigates:
But first, what is special advice?
The purpose of special prosecutors is to conduct criminal investigations independently of the Department of Justice. But the way prosecutors have been appointed over the past 45 years has changed due to complaints about the scope and cost of the open-ended vacancies.
Congress authorized the appointment of independent counsel under the Ethics in Government Act of 1978. The legislation came about in response to the Watergate scandal when then-President Richard Nixon ordered the Justice Department to appoint a special prosecutor, Archibald Cox, who was investigating him.
Under ethics law, the Attorney General can ask a panel of three judges to appoint an independent counsel. But the provision expired in 1999 after a debate over the power and independence of prosecutors investigating the Iran-Contra affair during the Reagan administration and Whitewater under the Clinton administration.
Subsequently, the Justice Department developed rules for the Attorney General to appoint a special counsel if the Department is faced with a potential conflict of interest.
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Investigations by special counsel are indefinite and cost millions of dollars
Requests for special counsel can be costly and lengthy.
Durham’s relatively modest investigation, which led to a guilty plea and two acquittals at trial, has cost nearly $7 million as of October 2020.
Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election has indicted 34 people and three companies, with eight people convicted of felonies. His research cost about $16 million.
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What is Hur’s command?
Attorney General Merrick Garland appointed Hur on Jan. 12 on the recommendation of John Lausch, the U.S. attorney in Chicago, who conducted the initial review of Biden’s classified documents.
Biden’s private attorneys discovered the documents from when he was vice president when he packed up a former office at the Penn Biden Center on Nov. 2. A wider search then revealed documents on Dec. 20 in the garage and an adjoining room at his house.
Garland said he based his appointment on Lausch’s recommendation, saying it underlined the department’s commitment to “independence and accountability in particularly sensitive matters.”
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What is Smith’s assignment?
Garland nominated Smith in November, days after Trump ran for president in 2024.
The department had spent nearly two years investigating the January 6, 2021, attack on the Capitol; Mar-a-Lago’s search for evidence of possible obstruction or espionage law violations 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 believed the department could handle all investigations with integrity, but the extraordinary circumstances required 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 investigation to a special counsel inquiry in October 2020.
Durham’s job was actually to investigate the investigators. Deputy Attorney General Rod Rosenstein had appointed Mueller, a former FBI director, as special counsel to investigate whether Trump’s campaign colluded with the Russians to win the 2016 election.
Mueller’s final report found that Russia supported Trump against his Democratic rival, Hillary Clinton, but not that his campaign colluded with Russia. Mueller documented several actions of possible obstruction of the investigation by Trump, but chose not to make a decision on whether to indict him because the Justice Department has a policy against indicting sitting presidents.
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Trump claimed exemption from Mueller’s final report. Barr assigned Durham to investigate FBI surveillance of Trump’s campaign and the Mueller investigation.
Justice Department Inspector General Michael Horowitz released a damning report in December 2019 criticizing the way 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 attorney Kevin Clinesmith pleaded guilty to falsifying an email used to aid Page’s surveillance.
But cybersecurity lawyer Michael Sussmann and think tank analyst Igor Danchenko were acquitted of lying to the FBI at trial.
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This article originally appeared on USA TODAY: Special Counsel Smith, Hur and Durham. What are they investigating?
