The appointment of a special counsel to oversee the Justice Department probes into the discovery of classified documents at the home and former office of President Joe Biden has focused renewed attention on the role such prosecutors have played in modern American history.
On Thursday, Attorney General Merrick Garland tapped Robert Hur, a former U.S. attorney in Maryland, to oversee the department's investigation into how several batches of documents marked as classified ended up at Biden's Delaware home and at the offices of the president's Washington think tank.
Two months ago, Garland appointed former Justice Department public corruption prosecutor Jack Smith to lead investigations into the retention of classified documents at former President Donald Trump’s Florida estate, Mar-a-Lago, as well as key aspects of a separate probe involving the Jan. 6, 2021, insurrection and efforts to undo the 2020 election.
A look at the origins of the special counsel, the position’s powers and what to expect as Hur pursues his work:
What exactly is a special counsel?
A special counsel is an attorney appointed to investigate, and possibly prosecute, a case in which the Justice Department perceives itself as having a conflict or where it’s deemed to be in the public interest to have someone outside the government come in and take responsibility for a matter.
According to the Code of Federal Regulations, a special counsel must have “a reputation for integrity and impartial decisionmaking,” as well as “an informed understanding of the criminal law and Department of Justice policies.”
Though they’re not subject to the day-to-day supervision of the Justice Department, special counsels must still comply with department regulations, policies and procedures. They also technically report to the attorney general — the one government official who can fire them.
The attorney general is entitled to seek explanations from a special counsel about any requested investigative or prosecutorial step, but under the regulations is also expected to give great weight to the special counsel’s views. In the event the attorney general rejects a move the special counsel wants to make, the Justice Department is to notify Congress at the end of the investigation.
What powers do they have?
Special counsels are provided with a budget and can request a staff of attorneys, both inside and outside the department, if they need extra help.
In addition to the ability to bring indictments, special counsels are vested with bread-and-butter law enforcement tools such as the power to issue subpoenas and search warrants. Robert Mueller, a former FBI director who as special counsel in the Trump administration led the investigation into possible coordination between Russia and the 2016 Trump campaign, issued more than 2,800 subpoenas and executed nearly 500 search-and-seizure warrants.
How do independent counsels differ from special counsels?
The position of special counsel differs in key ways from the work of independent counsels, who used to operate outside the supervision of the Justice Department and who led significant investigations in the post-Watergate era into administrations of both political parties.
One such independent counsel was Lawrence E. Walsh, who during the Iran-Contra Affair in President Ronald Reagan’s second term was appointed to probe secret arms sales to Iran and the diversion of funds to rebel forces fighting the Nicaraguan government.
A decade later, independent counsel Ken Starr investigated fraudulent real estate deals involving a longtime associate of President Bill Clinton and first lady Hillary Clinton, delved into the removal of documents from the office of deputy White House counsel Vincent Foster after his suicide and assembled evidence of Clinton’s sexual encounters with former White House intern Monica Lewinsky. As a result, Clinton was impeached by the U.S. House but survived a Senate trial.
But because of concerns over the cost and sprawling nature of such probes, Congress in 1999 permitted the provision governing independent counsels to expire.
The Justice Department then created new special counsel regulations, designing a position with intentionally less autonomy for circumstances in which the department feels it has a conflict of interest or wants to avoid becoming excessively entangled in politically sticky matters — like the current Trump-related probes.
Mueller was appointed in 2017 to investigate Russian election interference, a two-year probe that yielded criminal charges against 34 people, including several Trump associates, and three business entities. Mueller did not allege a criminal conspiracy between the Trump campaign and Russia. Though Mueller reached no conclusion on whether Trump obstructed justice, he also did not exonerate him.
Weeks before then-Attorney General William Barr left office, he gave John Durham, then the top federal prosecutor in Connecticut, the title of special counsel to ensure that he could continue investigating the origins of the Russia probe under new Democratic Justice Department leadership.
Who is special counsel Robert Hur?
Hur served as the U.S. attorney in Maryland in the Trump administration and was a close ally of former Deputy Attorney General Rod Rosenstein, a key figure in the Mueller investigation. He also worked as an adviser to FBI Director Christopher Wray in the Justice Department.
According to his biography at the University of Maryland, where he serves as a regent, Hur graduated from Harvard and then Stanford Law School, where he was executive editor of the law review.
Hur clerked for U.S. Supreme Court Chief Justice William Rehnquist, as well as for Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals.
After working at the Justice Department, according to his bio, Hur went into private practice with Washington firm Gibson, Dunn & Crutcher, where he co-chairs a crisis management practice group and works on white-collar defense, investigations and national security.
Hur becomes the third special counsel currently in use by the Justice Department. In addition to Smith, Durham also remains at work investigating the origins of the FBI’s Trump-Russia probe.