How a Special Counsel Works — And Why the Job Is Designed to Be Fragile

Here is how a special counsel works, in plain English: when the Justice Department has a conflict of interest — usually because the person under investigation is the president, a cabinet officer, or a close ally — the attorney general can appoint an outside prosecutor to take the case. That prosecutor gets a written scope, a grand jury, subpoena power, and day-to-day independence. What they do not get is protection. A special counsel serves at the pleasure of the attorney general, which means the most independent prosecutor in America can be fired by the person whose department they are investigating.

That gap — enormous power, almost no job security — is the whole story. It is also why this particular office shows up again and again in political fiction, including in the Bull Moose series. It is a machine built to produce a crisis.

Who actually appoints a special counsel?

Not Congress. Not a judge. Not the public. Since 1999, appointment has come from a single set of Justice Department regulations, and the decision belongs to the attorney general — or, if the attorney general is recused, to whoever is acting in that role.

The regulations say a special counsel may be named when a criminal investigation is warranted, when a normal DOJ investigation would present a conflict of interest, and when appointing someone from outside serves the public interest. All three conditions are judgment calls. There is no trigger, no threshold, no automatic mechanism. One official decides.

This is a deliberate change from what came before. The post-Watergate independent counsel statute let a panel of federal judges appoint a prosecutor who was genuinely insulated from the executive branch. That law expired in 1999 with almost no one defending it — critics across the political spectrum argued it created prosecutors with unlimited budgets, unlimited time, and no one to answer to. The current system traded independence for accountability. The bill for that trade comes due every time the investigation gets close to power.

How a special counsel works day to day: what powers do they have?

Inside their scope, a special counsel functions like a United States attorney. They can convene grand juries, issue subpoenas, execute search warrants, negotiate plea agreements, grant immunity, and bring indictments. They hire their own staff and run their own office.

The limits are quieter than the powers:

• The scope is written by someone else. The appointing official defines what the investigation covers. Expanding it requires going back and asking.
• Major steps can be reviewed. The attorney general may require notice of significant decisions and can overrule them as “inappropriate or unwarranted,” though doing so must be reported to Congress.
• The budget is not the prosecutor’s. Funding and staffing flow through the department.
• The report is not automatically public. A special counsel submits a confidential report to the attorney general. What the country sees, and when, is a separate decision made by someone else.

And then there is the one that matters most: removal. A special counsel can be dismissed for misconduct, dereliction, conflict of interest, or — the phrase that does the real work — “other good cause.” No court has to approve it. No supermajority is required.

Why is the job built to be fragile?

Because the alternative was judged worse. A prosecutor no one can remove is a prosecutor no one can check, and the 1990s taught a bipartisan lesson about what that looks like in practice. So the drafters put the special counsel back inside the executive branch and relied on something other than law to hold the line: institutional norms, professional reputation, and the political cost of firing a prosecutor mid-investigation.

That is not nothing. Norms are load-bearing far more often than we notice. But norms are enforced by consequences, and consequences require people willing to impose them — career prosecutors willing to resign, congressional committees willing to subpoena, voters willing to care about process when the outcome cuts against their side.

This is the part I keep circling in my own writing. The Constitution is not self-executing. Neither is a regulation. Every safeguard in American government eventually reduces to a person, in a room, deciding whether to do the harder right thing. In The Nine-Hour President, almost everything that goes wrong goes wrong because someone follows a rule to the letter while gutting its purpose — and almost everything that gets saved gets saved by someone who refuses to.

What would actually strengthen the office?

Serious proposals exist, and they are not complicated. Congress could write the special counsel into statute instead of leaving it to regulations the executive branch can rewrite at will. It could require that removal happen only for specified cause, with written findings delivered to the Judiciary Committees. It could guarantee that a final report reaches Congress even if the attorney general declines to release it publicly, and it could protect the investigative file from destruction if an investigation is shut down early.

None of that makes a prosecutor untouchable, and none of it should. The goal is not an unaccountable investigator. The goal is to make ending an investigation into the powerful something that has to be done in the open, on the record, with a name attached. Sunlight does not prevent abuse. It just makes abuse expensive.

Until then, the answer to “how a special counsel works” ends where it began: with an office that has nearly every tool a prosecutor could want, and one structural vulnerability that can undo all of them in an afternoon. That is not a flaw someone missed. It is a choice the country made — and one it can still revisit.

If you like your civics with a pulse, the free prequel to the Bull Moose series starts exactly where this kind of question gets dangerous.

Frequently asked questions

Who can fire a special counsel? The attorney general — or the acting attorney general if the AG is recused — may remove a special counsel for misconduct, dereliction of duty, conflict of interest, or “other good cause.” No judicial approval is required, though the removal must be explained in writing to the special counsel.

Is a special counsel the same as an independent counsel? No. The independent counsel of the post-Watergate era was appointed by a panel of federal judges and was largely insulated from the executive branch. That statute expired in 1999. Today’s special counsel is appointed by the attorney general, works within the Justice Department, and can be removed by the official who appointed them.

Does a special counsel’s report have to be made public? Not automatically. The special counsel submits a confidential report to the attorney general at the conclusion of the investigation. Whether, when, and how much of it becomes public is a separate decision made by the attorney general, subject to grand jury secrecy rules and classification review.

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About the author: Michael Fedor is the award-winning author of the Bull Moose political thriller series. Drawing on 20 years inside politics and campaigns, he writes pulse-pounding fiction about power, democracy, and the fragile machinery of the republic.