What to Know About the Special Counsels Investigating Trump and Biden

Attorney General Merrick Garland announced Jan. 12 that he has appointed Robert Hur, a former U.S. attorney, as special counsel for the investigation of how classified documents from President Joe Biden’s time as vice president ended up at Biden’s home in Delaware and his former private office in Washington, D.C. That was about two months after Garland appointed Jack Smith, another former federal prosecutor, as special counsel for two criminal investigations of Donald Trump, including Trump’s handling of classified documents found at his Mar-a-Lago club and residence after he was no longer president.

Here we provide readers with a refresher about special counsels, including their authority and responsibilities. We also provide some information about the men selected to head the investigations of the current and former presidents.

What is a special counsel?

According to Justice Department regulations, a special counsel is someone appointed by the attorney general or acting attorney general to probe a person or matter when “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances.”

A special counsel shall be appointed when the attorney general “determines that criminal investigation of a person or matter is warranted,” the regulations say.

Who qualifies to be a special counsel?

The regulations also state that the special counsel “shall be a lawyer” not in the government “with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies.”

What authority does a special counsel have?

A special counsel has the same authority as any federal prosecutor, William Banks, an emeritus professor and the founding director of the Institute for Security Policy and Law at Syracuse University, told us for a 2017 Q&A we published on the appointment of former FBI Director Robert S. Mueller III as special counsel to investigate Russia’s interference in the 2016 presidential election. 

Special counsels are not subject to the “day-to-day supervision” of any Justice Department official — although they must follow department rules and procedures, and ultimately report to the attorney general, who may overrule any “inappropriate or unwarranted” investigative or prosecutorial step that a special counsel plans to carry out. However, the attorney general is supposed to “give great weight to the views” of the special counsel, according to the regulations.

The Justice Department building on Dec. 9, 2019, in Washington, D.C. Photo by Samuel Corum/Getty Images.

How large is the special counsel’s staff?

There is no set number. The regulations only say that the special counsel “shall be provided all appropriate resources by the Department of Justice,” and that special counsels may request the assistance of staff from inside or outside the department.

Each fiscal year, the special counsel is responsible for submitting a budget, which is subject to approval by the attorney general. At that point, the attorney general “shall determine whether the investigation should continue and, if so, establish the budget for the next year.” The length of the investigation is not mandated.

Can a special counsel be fired?

Yes, special counsels can be disciplined or fired by the attorney general — but only for cause, such as “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

If a special counsel is removed, the attorney general must provide an explanation to the leaders of the House and Senate judiciary committees.

Who is Jack Smith?

Smith is a former federal prosecutor who was an assistant district attorney in New York County in 1994, before he became the assistant U.S. attorney for the Eastern District of New York in 1999. After that, Smith supervised war crimes investigations from 2008 to 2010 while working for the International Criminal Court. 

Later in 2010, he was back at the Justice Department as head of the section for public integrity. Then, in 2015, he was named the first assistant U.S. attorney for the Middle District of Tennessee, which led to him becoming the district’s acting U.S. attorney in 2017.

Most recently, Smith prosecuted war crimes for the special court in The Hague.

What will Smith investigate?

Garland’s order appointing Smith as special counsel authorizes him to oversee two criminal investigations involving Trump. 

The first, Garland said in November, “is the investigation … into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” The other probe, Garland announced, “is the ongoing investigation involving classified documents and other presidential records” found at Trump’s Florida estate, “as well as the possible obstruction of that investigation.”

Why did Garland appoint a special counsel to investigate Trump?

Garland said he “concluded that it is in the public interest to appoint a special counsel” because, among other developments, Trump has announced his 2024 presidential campaign and Biden has stated that he also intends to run for reelection.

“Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters,” Garland said. “It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”

In a statement, Smith said, “I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice.”

Who is Robert Hur?

Hur is a former federal prosecutor who started working for the Justice Department’s criminal division in 2003. He later became the assistant U.S. attorney for the District of Maryland, serving in that position from 2007 to 2014. 

Hur rejoined the DOJ as the principal associate deputy attorney general in 2017, and was later nominated by Trump to be the U.S. attorney for Maryland. He was confirmed to that post in 2018.

He returned to private practice in 2021, and most recently was a partner at Gibson, Dunn & Crutcher, a law firm in Washington, D.C.

What will Hur investigate?

Garland’s order says Hur will complete the investigation related to the “possible unauthorized removal and retention of classified documents or other records discovered at the Penn Biden Center for Diplomacy and Global Engagement and the Wilmington, Delaware, private residence” of Biden. 

Why did Garland appoint a special counsel in Biden’s case?

Garland said he appointed Hur after consulting with U.S. Attorney for the Northern District of Illinois John Lausch, another Trump appointee, who started the investigation into the Biden documents. 

“Based on Mr. Lausch’s initial investigation, I concluded that, under the special counsel regulations, it was in the public interest to appoint a special counsel,” Garland said in his Jan. 12 remarks.

Some legal analysts have argued that it was necessary to appoint a special counsel to avoid the appearance of a conflict of interest. Biden, as president, is Garland’s boss.

In his public address, Garland said he believed that the Justice Department could have conducted the investigation internally, but he opted for a special counsel because the “extraordinary circumstances” of the matter made it necessary. 

“I will conduct the assigned investigation with fair, impartial, and dispassionate judgment,” Hur said in a statement.

What happens when the special counsels are done investigating?

Garland’s orders appointing Smith and Hur authorize them to “prosecute federal crimes arising from the investigation of these matters,” or refer “discrete prosecutions” to “the appropriate United States Attorney.” 

Federal regulations also call for the special counsel to provide the attorney general with a “confidential report” justifying a decision to prosecute or not, and the attorney general is then required to issue a report explaining certain decisions to the heads of the two judiciary committees. It is up to the attorney general whether to make his reports public.