What Is a “Special Counsel,” Anyway?You may have been seeing in the news that there was recently a special counsel appointed to a case regarding President Joe Biden. We thought this was a good opportunity to talk about what a special counsel is, what they do, and why they are important to a case.

A special counsel is an attorney who is specifically selected and brought in to investigate, and sometimes prosecute, a federal case where there is a conflict of interest. The Attorney General is responsible for selecting the attorney and determining the extent to which the special counsel will need to investigate. Former prosecutor Robert Hur was appointed by Attorney General Merrick Garland on January 12, 2023 to oversee the investigation concerning classified documents found in President Biden’s personal home and former office. (This is not the first situation like this, as a special counsel was also appointed under a similar investigation for former President Donald Trump in November 2022.)

From what has been released to the public, a total of six pages of documents labeled with classification marks were found inside Biden’s garage of his Delaware home in addition to a “batch” of other classified documents found in his former office in Washington a week earlier.

Since this case involves the President of the United States, it is important for the Attorney General to select someone who can investigate without bias to help create a completely fair trial. If a traditional prosecutor were in this position, it would essentially be a biased examination, since they would be in charge of an investigation of their own superior. A criminal defense attorney can make all the difference if you’re facing an investigation.

There are formal rules for appointing a special counsel

For decades, there have been rules in place for appointing a special counsel. The Code of Federal Regulations, Title 28, part 600, makes it clear that the Attorney General alone cannot become the special counsel. It also states that the appointed special counsel cannot be fired without good and probable cause.

Special counsels need to meet all qualifications

It is simply not enough for the Attorney General to just select an attorney that they like best. The attorney needs to meet all qualifications laid out by the Code of Federal Regulations in order to ensure a fair investigation. Those qualifications include:

  • Having a reputation for integrity and impartial decision making – This is vital to selecting a special counsel as they are purposefully being chosen in order to remain unbiased and conduct thorough investigations.
  • Having adequate experience – The Attorney General wants to ensure that the special counsel has the proper education and years, if not decades, of criminal law experience.
  • Being outside the United States government – This is to ensure there will be no bias or conflict of interest, like mentioned before.
  • Agreeing that this investigation takes priority – If the investigation the special counsel is being appointed to is very complex or comes with high stakes, the attorney must agree to focus solely on this case. This may require the attorney leaving their full-time job in order to do so.
  • Undergoing background investigations – This is to check, once again, that the attorney has a fully clean history regarding ethical issues and conflicts of interest.

What if the special counsel accepts the position, but realizes it is beyond their means?

While it is not likely that the Attorney General appointed an attorney who was not best suited for the job, it can happen that much more information comes to light during the thorough investigation. If, at any point, the special counsel decides additional jurisdiction is needed in order conduct a thorough investigation beyond what was initially described, they must consult with the Attorney General. The Attorney General will decide if the special counsel will need to investigate those new matters or if they will need to appoint someone else to investigate those.

The special counsel also is not required to operate alone. They are allowed to request staff from appropriate departments to assist if needed and make selections based on names, resumes, and other fine details of qualified candidates.

What is the difference between a special counsel and independent counsel?

While both the special counsel and independent counsel share what seem like similar roles at a distance, they are actually not the same. Independent counsel is appointed by the Attorney General, in addition to the President, to investigate a crime. They are instructed to perform an investigation of government officials, often at the state level, and are appointed when there is already a conflict of interest.

Special counsel, on the other hand, is appointed by the Attorney General specifically to prevent potential conflicts of interest and to create distance between the investigation and the administrative body. They are also investigating allegations to determine if there actually has been a crime or not.

Will the public know the result of a special counsel investigation?

After the special counsel turns in a classified document with the findings on their investigation, it is ultimately up to the Attorney General to decide if the report should be made public. Many times, elements of the report will remain classified even though they may release others.

The attorneys at Carey Law Office in Bowie and Crofton are experienced in criminal cases of all kinds. If you’ve been charged with a criminal offense in Calvert County, you need an aggressive and skilled criminal defense lawyer on your side. Call our offices or fill out our contact form to schedule a consultation.