How Special Counsels and Independent Prosecutors Work
Investigating the Justice Department's own leadership creates an obvious conflict of interest. The special counsel regulation tries to solve it, but the fix stops well short of true independence, and that gap has shaped every high-profile investigation run under the rule.
Published July 6, 2026Today's special counsel framework operates under Justice Department regulations adopted in 1999, found in Title 28 of the Code of Federal Regulations, after Congress allowed a separate and more independent statutory mechanism — the independent counsel law created in the wake of Watergate — to expire in 1999 amid criticism from both parties that it had produced investigations too costly, too lengthy, and too insulated from any accountability. The regulatory replacement was a deliberate trade: less independence in exchange for more built-in accountability to the elected officials who ultimately answer to voters.
Who appoints a special counsel, and why that matters
Under the current regulations, the Attorney General appoints a special counsel when a criminal investigation of a matter is warranted and normal Justice Department handling would present a conflict of interest, or when the public interest otherwise requires it. If the Attorney General is personally conflicted out of the matter — a common scenario when the investigation touches the administration that appointed them — the Deputy Attorney General or another sufficiently senior, Senate-confirmed official makes the appointment instead. Because the appointing official is a political appointee who serves at the president's discretion, the special counsel's independence is real but structurally bounded: the same official who appointed a special counsel retains formal authority to remove that person for good cause, and to review and potentially block specific investigative or prosecutorial steps the special counsel wants to take.
Budget, staffing, and reporting obligations
A special counsel typically has authority to request the staff and resources needed for the investigation, but final budget decisions still run through the Justice Department's normal processes rather than an independent appropriation, which was one of the features Congress specifically eliminated when it let the older independent counsel statute expire. The regulations also require a special counsel to notify the Attorney General of any plan to take a significant investigative step, and to report confidentially to the Attorney General at the investigation's conclusion — a private report, not automatically a public one, with the decision on public release resting with the Attorney General rather than the special counsel who wrote it. This reporting structure has been a recurring source of controversy when investigations conclude, since the public typically sees only whatever portion of the final report the Justice Department chooses to release.
Removal power as the practical limit on independence
The regulation allows removal of a special counsel only for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, and requires that the Attorney General personally make that determination rather than delegating it. In practice, no sitting Attorney General has removed a special counsel under these regulations, but the theoretical possibility shapes the political dynamics around every investigation conducted under the rule, since critics of a given special counsel can and do publicly pressure the Attorney General to exercise that removal authority, while defenders argue that any removal absent genuine misconduct would itself constitute the kind of political interference the regulation was meant to prevent.
How this compares to other oversight tools
Special counsel investigations occupy a distinct role alongside grand jury proceedings, which special counsels typically use to gather evidence and seek indictments, and alongside the entirely separate process of congressional impeachment, which addresses removal from office rather than criminal liability and proceeds independently of whatever a special counsel concludes. The regulations governing the office are published in full in the Code of Federal Regulations, searchable through the government's official electronic Code of Federal Regulations at ecfr.gov, which lays out the appointment, jurisdiction, and removal provisions in the exact regulatory language that governs how the office actually functions.
Jurisdiction letters shape what a special counsel can actually pursue
When a special counsel is appointed, the order establishing the position includes a jurisdiction statement defining the specific matters the appointee is authorized to investigate, and this scope has repeatedly become a point of contention when an investigation uncovers conduct adjacent to, but not squarely within, the original mandate. The regulations allow a special counsel to request an expansion of jurisdiction from the appointing official when the investigation leads to related matters, but that request can be denied, effectively capping how far an investigation can follow evidence before needing to refer newly discovered conduct to a separate U.S. Attorney's office instead of pursuing it directly. This jurisdictional boundary has been a recurring flashpoint in past investigations, since critics on one side often argue a special counsel exceeded their mandate while critics on the other argue jurisdictional limits were used to prevent legitimate lines of inquiry from being pursued at all.