Special Counsel — DOJ Regulations Governing Independent Investigations

When a criminal investigation involves the President, a presidential campaign, senior executive branch officials, or other matters where normal DOJ leadership has a conflict of interest, the Attorney General can appoint a Special Counsel — a senior lawyer with the independence to conduct the investigation without direct supervision from line DOJ officials who may have personal or political conflicts. The Special Counsel regulations at 28 CFR Part 600 were created in 1999 after Congress allowed the Independent Counsel Act to lapse, providing a permanent DOJ framework for independent investigations without requiring separate statutory authority. Every major modern independent investigation — Robert Mueller (Russian election interference, 2017–2019), John Durham (origins of the Russia investigation, 2020–2023), Jack Smith (Trump January 6 and classified documents, 2022–2025), and Robert Hur (Biden classified documents, 2023–2024) — was conducted under the authority of 28 CFR Part 600.

Current Rule (2026)

What This Rule Does

Part 600 creates a DOJ-internal mechanism for independent criminal investigations when normal DOJ leadership faces a conflict of interest. Unlike the former Independent Counsel statute (which created a truly independent prosecutor appointed by a three-judge panel and accountable to Congress), the Special Counsel under Part 600 remains within the executive branch under the Attorney General's authority — but with procedural protections that limit the AG's ability to interfere with the investigation without consequences.

The Special Counsel serves as a "prosecutor's prosecutor" — they have the full investigative and prosecutorial authority of a United States Attorney within their defined jurisdiction, including authority to use grand juries, issue subpoenas, conduct searches, and bring charges. The AG provides resources, and the Special Counsel operates with "independent authority" within the scope of their jurisdiction, meaning they don't need case-by-case approval from the AG before taking investigative steps.

The structural tension in Part 600 is deliberate: the Special Counsel is independent enough to investigate without political interference in day-to-day decisions, but the AG retains ultimate supervisory authority — including the power to terminate the Special Counsel for good cause. This tension came to the forefront in the Mueller investigation: the Attorney General (Jeff Sessions, then William Barr) maintained final authority over the investigation while Mueller conducted his work independently. The AG's final authority to release or summarize the Special Counsel's report — rather than the Special Counsel themselves — has been one of the most criticized aspects of the Part 600 framework.

Key Provisions

• § 600.1 — Grounds for appointment: the AG will appoint a Special Counsel when (a) investigation of a person or matter is warranted, and (b) investigation or prosecution by a normal DOJ official would present a conflict of interest for the Department or other extraordinary circumstances making it in the public interest to appoint outside leadership; common triggering circumstances include investigations of the President, former President, presidential campaigns, Cabinet members, or other matters where Main Justice officials were personally involved or may have political conflicts
• § 600.2 — AG discretion on alternatives: before appointing a Special Counsel, the AG may alternatively direct an initial investigation, conduct the matter through normal DOJ channels, or use other supervision mechanisms; Part 600 appointment is one of several options, not an automatic requirement; the AG has discretion to conclude that normal channels are adequate
• § 600.3 — Qualifications: the Special Counsel must be a lawyer with a reputation for integrity and impartial decision-making, with experience appropriate for the investigation; the Special Counsel must not be a current DOJ employee (ensuring genuine independence from DOJ leadership); traditionally, Special Counsels have been former U.S. Attorneys, senior prosecutors, or former senior DOJ officials with prior government experience
• § 600.4 — Jurisdiction: the AG establishes the scope of the Special Counsel's jurisdiction through a "specific factual statement of the matter to be investigated"; the jurisdiction also includes prosecution for perjury, obstruction, destruction of evidence, and other crimes arising from the core investigation; the AG may expand the jurisdiction when the Special Counsel discovers matters outside the original scope
• § 600.6 — Powers and authority: within their jurisdiction, the Special Counsel exercises the full power and independent authority of a United States Attorney — they may use grand juries, issue subpoenas, conduct searches and seizures, conduct physical or electronic surveillance, make charging decisions, and bring prosecutions; the Special Counsel may request that matters be referred from another DOJ component or U.S. Attorney's Office; the Special Counsel may request support from other agencies (FBI, IRS, Treasury)
• § 600.7 — Conduct and accountability: the Special Counsel must comply with all DOJ rules and regulations; the AG may remove the Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause including violation of DOJ policies; the AG documents any removal and the reasons; the removal triggers Congressional notification under § 600.9(a)(4); courts have upheld that § 600.7 removal requires "good cause" — not mere political disagreement
• § 600.8 — Notifications by the Special Counsel: the Special Counsel must maintain a budget and report expenditures; at the conclusion of the investigation, the Special Counsel provides a confidential report to the AG explaining prosecution decisions — a "closing documentation" requirement designed to create accountability for major decisions not to prosecute; the AG, not the Special Counsel, decides how much of that report to release publicly
• § 600.9 — Notifications by the AG to Congress: the AG must notify the Judiciary Committees of both chambers upon (1) appointing a Special Counsel; (2) removing any Special Counsel; (3) completing the investigation; and (4) when the AG concludes that the Special Counsel proposed action that was so inappropriate or unwarranted that it was countermanded; the notification requirement ensures Congress has awareness of key milestones without giving Congress supervisory authority
• § 600.10 — No creation of rights: the regulations are DOJ internal management rules — they do not create any enforceable rights for any person; subjects of an investigation, potential defendants, or Congress cannot force the AG to comply with Part 600's procedures through court action; this provision was upheld in In re: Grand Jury Investigation (Trump's first impeachment-era challenges)

How It Affects You

If you're the subject of a Special Counsel investigation: The Special Counsel has the same powers as a U.S. Attorney — they can subpoena you before a grand jury, seek search warrants for your phone and emails, and charge you with federal crimes. The Special Counsel's independence from normal DOJ supervision means that political pressure on Main Justice is less likely to affect day-to-day investigative decisions. However, the AG retains final supervisory authority — if the AG orders the Special Counsel not to take an action, that order (though controversial) is legally binding on the Special Counsel.

If you're in Congress: Part 600's § 600.9 notifications give you information about key milestones but no formal oversight authority. You cannot compel the AG to expand a Special Counsel's jurisdiction, restore a Special Counsel who was removed, or force the AG to release the Special Counsel's confidential report. The AG's control over the final report has been the most consequential institutional weakness of Part 600 — both the Mueller report (AG Barr's summary preceded the report's release by weeks) and the Jack Smith matter (Smith's report was released by incoming administration decision-making) illustrated how much AG discretion shapes the public record.

If you're tracking executive branch oversight: Part 600 is a DOJ regulation, not a statute. The AG can amend or rescind it without congressional action. Congress has repeatedly considered legislation to codify Special Counsel independence — giving the Special Counsel a cause-of-action to challenge improper removal in court, requiring the AG to release reports to Congress, or creating a statutory independent counsel framework — but none has passed as of April 2026. The current framework's accountability depends entirely on the AG's institutional independence and the political consequences of removing a Special Counsel without adequate justification.

Legal Authority

• 28 U.S.C. § 509 — DOJ organizational authority; the Attorney General may organize the DOJ and delegate authority to conduct its functions; provides legal basis for the AG to establish internal procedures for independent investigations
• 5 U.S.C. § 301 — "Housekeeping statute"; general statutory authority for executive agencies to issue internal management regulations; supplemental authority for the AG to promulgate procedural rules
• 28 CFR Part 600 — DOJ regulations governing Special Counsel appointment, jurisdiction, budget, independence, reporting requirements, and removal; issued July 9, 1999 (64 FR 37038) after the Independent Counsel Act lapsed; has remained unchanged since promulgation

Key Mechanics

28 CFR Part 600 provides the DOJ framework for independent criminal investigations when the Attorney General has a personal or political conflict. The AG may appoint a Special Counsel when: (1) criminal investigation or prosecution of a person is warranted; (2) the investigation would present a conflict of interest for the DOJ or it would be in the public interest to appoint an outside attorney; and (3) the position of Special Counsel is not established by statute (600.1). The Special Counsel must be a government attorney from outside the DOJ or a private attorney — not a current DOJ employee (600.3). Independence protections: the Special Counsel shall not be removed except by the AG "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause" (600.7(d)); the AG must provide written explanation to Congress within 30 days of any removal. Jurisdiction: the AG defines the Special Counsel's specific jurisdiction in the appointment order; the Special Counsel may investigate related matters that arise during the investigation and request additional jurisdiction from the AG (600.4). Budget: the Special Counsel operates within DOJ but with independent budget request authority; the AG must report to Congress annually on expenditures (600.8). Reporting: upon conclusion, the Special Counsel must submit a confidential report to the AG explaining prosecution or declination decisions; the AG determines how much of the report to release to Congress and the public (600.9) — a provision that generated controversy when AG Barr summarized the Mueller Report before releasing it. Removal via rulemaking: because Part 600 is a DOJ regulation (not statute), the AG may modify or revoke it at any time; the Special Counsel cannot invoke the regulation as a defense against presidential removal of the AG, who could then remove the Special Counsel.

Statutory Authority

This rule implements:

• 28 U.S.C. § 509 — DOJ organizational authority: the Attorney General may organize the DOJ and delegate authority to conduct its functions; provides the legal basis for the AG to establish internal procedures for independent investigations
• 5 U.S.C. § 301 — "Housekeeping statute": the general statutory authority for executive agencies to issue internal management regulations; provides supplemental authority for the AG to promulgate procedural rules for DOJ operations

Recent Rulemakings

No major amendments since the original 1999 regulation. The current rule was issued as 64 FR 37038 (July 9, 1999), replacing the earlier Independent Counsel regulations after the Independent Counsel statute lapsed. Despite multiple Special Counsel investigations generating significant controversy, the underlying regulation has remained unchanged — all reform efforts have been legislative rather than regulatory.

Pending Action

Legislation to strengthen Special Counsel independence has been introduced in multiple Congresses. The most debated proposals would: (1) give Special Counsels a cause of action to challenge removal in court; (2) require the AG to release final reports to Congress; and (3) bar removal of a Special Counsel for reasons related to matters under investigation. As of 2026, no such legislation has been enacted, leaving Part 600's framework — and its dependence on AG institutional integrity — unchanged.