When Attorney General
Merrick Garland
announced on Nov. 18 that
Jack Smith
would take charge as special counsel in two high-profile criminal investigations of
Donald Trump,
he omitted an important detail: As head of the Justice Department, Mr. Garland will remain accountable for deciding whether to indict the former president. As Attorney General
Janet Reno
emphasized when she promulgated the special counsel regulations in 1999, “ultimate responsibility” for such investigations “will continue to rest with the Attorney General.” In other words, the special counsel isn’t fully independent.
Reno’s special-counsel regime replaced statutory independent counsels, who for 21 years had exercised unreviewable authority on such politically sensitive matters as President
Ronald Reagan’s
involvement in the Iran-Contra scandal and President
Bill Clinton’s
relationship with
Monica Lewinsky.
Their wide-ranging and long-lasting investigations led to bipartisan criticism of the independent-counsel model as having too much autonomy. Reno’s regulations sought to correct that imbalance by making special counsels analogous to U.S. attorneys, whose discretionary decisions about matters within their jurisdiction may be overturned by the attorney general. These regulations ensure oversight in six ways.
First, the special counsel is obligated to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” This mandate is meant to increase the likelihood that the special counsel will reach the same decisions as would ordinary prosecutors.
Second, the regulations compel the special counsel to “consult with appropriate offices” in the Justice Department for guidance about policies and practices unless extraordinary circumstances exist—in which case the special counsel may directly consult the attorney general. As Reno explained: “Requiring compliance with review and approval procedures ensures that the Department’s institutional judgment will be available to inform the Special Counsel’s decisionmaking.”
Reno emphasized that the purpose of such consultation is to “guard against a Special Counsel…
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