The Special Counsel Investigation After the Attorney General’s Resignation

The Special Counsel Investigation After the Attorney General’s Resignation

Legal Sidebari

The Special Counsel Investigation After the
Attorney General’s Resignation
January 2, 2019
Recent Department of Justice (DOJ) leadership changes have raised questions about their impact on the
special counsel investigation into Russian interference with the 2016 presidential election and related
matters. Who will oversee the investigation? How do personnel changes affect the investigation? What
are Congress’s possible roles in this matter? Before his resignation, former Attorney General Jeff Sessions
had recused himself from the inquiry with Deputy Attorney General Rod Rosenstein serving as Acting
Attorney General for the investigation. With President Trump’s designation of Matthew G. Whitaker as
Acting Attorney General pending Senate consideration of his nominee for Attorney General, supervision
of the special counsel investigation may change in the coming months, possibly impacting ongoing
litigation regarding the special counsel’s authority. This Sidebar examines how DOJ leadership changes
may interplay with the special counsel investigation.
Authority to Oversee the Special Counsel’s Investigation
In 1999, pursuant to its general authority to promulgate departmental regulations, DOJ issued the current
special counsel regulations, which expressly vest authority to initiate special counsel investigations in
“[t]he Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney
General.” Thus, as the U.S. District Court for the District of Columbia has affirmed, the Attorney General
has authority over special counsel investigations but, if he recuses, the Acting Attorney General has
authority. That authority includes review of particular aspects of the investigation; review and approval
of the special counsel’s annual budget requests; and sole authority to discipline or remove the special
counsel for “good cause.”
The exercise of such supervisory authority, however, is subject to congressional oversight. When DOJ
promulgated the rules, it acknowledged that they were an imperfect solution to actual or apparent
conflicts that may arise if the executive branch has to investigate its own officials. Accordingly, the
Attorney General must report certain information to the Chairmen and Ranking Members of the Judiciary
Committees of Congress, including explanations of appointments, removals, and decisions directing the
special counsel not to pursue particular actions. The regulations, however, give the Attorney General
discretion over whether to release the special counsel’s confidential report when the inquiry concludes.
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The U.S. Court of Appeals for the D.C. Circuit is currently considering a challenge to the special
counsel’s authority, and, specifically, the effect of Attorney General Sessions’ resignation on that
authority. An investigation witness is challenging, in part, the U.S. District Court of the District of
Columbia’s conclusion that the special counsel’s appointment is constitutional even though it was not
made by the President or the Attorney General. During oral arguments following Attorney General
Sessions’ resignation, the appellate court requested supplemental briefing on the resignation’s
implications for the special counsel’s appointment and investigation. In response, the special counsel
reportedly asserted that designation of an Acting Attorney General “cannot … retroactively affect” the
previous appointment and ongoing investigation.
Recusal, Resignation, and the Line of Succession
Like the current investigation, an Acting Attorney General (also the Deputy Attorney General) oversaw
the special counsel investigation concerning the Branch Davidians. In that case, Attorney General Janet
Reno recused herself from the investigation because she anticipated being called as a witness. In the
current inquiry, Attorney General Sessions recused himself “from any matters arising from the campaigns
for President of the United States,” in accordance with DOJ ethics guidance. Each recusal complied with
DOJ’s standard for recusal. The DOJ recusal standard is distinct from other generally applicable rules for
executive branch officials and rules of professional conduct governing officials who are licensed to
practice law. Because the DOJ recusal standard may be unclear, DOJ ethics officials provide guidance to
officials when investigations involve possible conflicts of interest.
Recusal Under DOJ Regulations
Under DOJ regulations, a DOJ official must recuse himself or herself from criminal investigations or
prosecutions if he has “a personal or political relationship with” individuals or entities who are involved
in the conduct being investigated or who he knows to have “a specific and substantial interest that would
be directly affected by the outcome of the investigation.” Under this standard, public officials should not
exercise official duties on matters in which they may be partial to a particular outcome.
By definition, officials’ personal relationships include those involving an immediate family member (i.e.,
parent, sibling, child, or spouse) or “a close and substantial connection of the type normally viewed as
likely to induce partiality.” While other familial or friendly relationships may qualify as personal, the
regulations state that determinations must give “due regard … to the subjective opinion of the employee.”
As one court explained, when examining this standard, a “personal relationship” requiring recusal must
involve a degree of closeness beyond a series of personal interactions between two people.
An official’s political relationships are relationships involving the official’s service as a principal adviser
or official to an elected official, candidate for election to public office, political party, or campaign
organization. For example, a federal district court held that a U.S. Attorney could prosecute a Member of
the House of Representatives for allegedly accepting illegal campaign contributions from a company that
had also contributed to a Senate campaign for which the U.S. Attorney was the treasurer. The court
rejected the defendant’s claim that the attorney’s involvement with the company, as treasurer for a
separate campaign, to which the company also contributed, was a political connection requiring recusal.
According to the court, there was no evidence that, by pursuing charges against the House Member, the
attorney’s attention was diverted from other possible illegal campaign contributions and the attorney had
not been involved in the initial decision to prosecute the House Member.

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Effect of the Resignation of a Recused Official
Attorneys General, who have recused themselves from special counsel investigations, have followed
DOJ’s statutory line of succession when designating replacements. Under the line of succession, the
Deputy Attorney General is first; followed by a hierarchy set by the Attorney General, which includes the
Solicitor General and Assistant Attorneys General; and, if necessary, by a hierarchy established by
executive order. (For discussion of the line of succession and authority to fill vacancies, see this posting.)
The special counsel regulations do not provide for an Acting Attorney General to retain oversight of an
investigation if a recused Attorney General is replaced. However, if a newly designated or appointed
Attorney General also recuses, the Deputy Attorney General would likely serve as Acting Attorney
General for purposes of supervising the investigation.
Status of Regulations and the Potential Role of Congress
DOJ indicated that the typical rulemaking procedures under the Administrative Procedure Act—including
a notice and comment period and a 30-day delay before taking effect—do not apply to the special counsel
regulations as “matters of agency management and personnel.” Likewise, it appears that DOJ similarly
could amend or repeal the regulations at any time.
While no statutes regarding special counsel investigations are in effect, House and Senate bills
would codify certain existing regulatory provisions or add new protections. Some of the
proposals would codify a chain of command for supervising investigations, which would include
only Senate-confirmed officials. Under S. 2644, the chain would begin with a Senate-confirmed
Attorney General. If the office was vacant or the Attorney General recused, authority would pass
to “the most senior Senate-confirmed officer of the Department listed in section 508 who is not
recused from the matter.” Codifying an executive function, however, could raise questions about
whether Congress might be inserting itself into a role intended for the executive branch. The
debate over Congress’s role is unresolved, as explored in this CRS Report.

Author Information

Cynthia Brown

Legislative Attorney

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Disclaimer
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