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FILE - In this April 21, 2016 file photo, attorney and former FBI Director Robert Mueller, right, arrives for a court hearing at the Phillip Burton Federal Building in San Francisco. Mueller has been overseeing settlement talks with Volkswagen, the U.S. government and private lawyers. Mueller is being honored with an award from West Point. The U.S. Military Academy’s Association of Graduates will present the Thayer Award to Mueller on Thursday evening, Oct. 6, 2016. (AP Photo/Jeff Chiu, File)

Now that there's a special counsel for the Russia probe, what can he do?


Now that there's a special counsel for the Russia probe, what can he do?

WATCH | The smoke coming from the alleged ties between White House officials and Russia has grown so big, the Deputy Attorney General appointed a special counsel to take over the investigation. So what does a special counsel do and should Trump be worried? 

What's a special counsel? 

It's a lawyer appointed to oversee a case where there might be a conflict of interest for the normal prosecuting authority, in this case, the Justice Department. 

The special counsel conducts their investigation separate from the Justice Department and Congress and if they find any evidence of criminal activity they can bring charges. 

With unlimited money, time and resources, the likelihood that the special counsel, former FBI Director Robert Mueller will indict someone with ties to the Trump administration is fairly high. 

The last four special federal prosecutors have all brought charges against someone, but not always the President. 

Don't get them confused 

A special counsel is NOT the same thing as a special prosecutor.  A special counsel conducts an independent investigation, but they still answer directly to the attorney general. 

In this case, because Jeff Sessions has recused himself from the Russia investigation, Rod Rosenstein, the deputy attorney general who appointed Mueller, can later fire him. Rosenstein can also overrule any decisions Mueller makes in the process. 

The first special prosecutor

The first special federal prosecutor was appointed by Ulysses S. Grant to investigate the Whiskey Ring scandal in 1875. A group of whiskey distillers in several states had bribed IRS officials to evade federal taxes. 

Grant wasn't suspected of involvement in the scandal, which led to 238 indictments. Grant fired the special prosecutor, John B. Henderson and replaced him with James Broadhead. In the end, 110 people were convicted on tax fraud charges.

Several other presidents and their attorneys general have had to appoint special prosecutors for various scandals.

In 1903, President Theodore Roosevelt's attorney general appointed two special prosecutors to investigate a bribery scheme at the Post Office. 

President Calvin Coolidge famously appointed special prosecutors to investigate controversial oil field leases in what became known as the "Teapot Dome Scandal" that led to the conviction of Interior Secretary Albert Bacon Fall. 


By far the most famous example of a special prosecutor is the Watergate scandal in 1973. President Nixon's attorney general, Elliott Richardson, appointed Archibald Cox for the job. Cox subpoenaed audio tapes Nixon recorded in the Oval Office, but Nixon fought the subpoena and he later fired Cox after a court ordered him to turn over the tapes. 

Under pressure, Nixon appointed a new special prosecutor, Leon Jaworski, who ultimately secured the tapes. 

More recently special counsels have been used to investigate the Iran-Contra affair under Reagan, the Clinton Whitewater scandal and whether or not George W. Bush administration officials leaked the name of CIA operative Valerie Plame to a journalist. 

The Ethics in Government Act of 1978

In the aftermath of Watergate, Congress passed this act, which established a system for appointing a special prosecutor and set up the three-judge appellate court in Washington D.C. that would be in charge of appointing and overseeing a special prosecutor when requested by Congress. 

But that law expired in 1999 and the Justice Department instead set up the "special counsel."

Should Trump be worried? 

Experts say yes. Even though Mueller is still answerable to Rosenstein, who is answerable to Trump, he has a lot of power. 

Mueller can issue subpoenas, compel witnesses to testify and turn over documents, and Rosenstein's order designating Mueller as special counsel gives him a very broad authority to investigate any matters that arise from the investigation. 

Not to mention, Mueller is a very close friend of James Comey who Trump allegedly ousted for refusing to halt the Russia investigation. The White House claims the decision to fire Comey was a result of his poor handling of the investigation into Hillary Clinton's private email server. 

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