How have past administrations used special‑attorney appointments and how did courts treat those instances?
Executive summary
The federal executive has long relied on ad hoc special‑attorney or special‑counsel appointments—ranging from Teddy Roosevelt’s early 20th century special prosecutors to modern special counsels like Mueller—to manage politically sensitive or conflict‑ridden investigations, and courts have alternately validated, constrained, and scrutinized those appointments through Appointments Clause and removal‑power jurisprudence and statutory interpretation [1] [2] [3]. Disputes cluster around two themes: whether such appointees are “inferior” or “principal” officers for constitutional appointment purposes and whether Congress or the Executive may insulate them from removal; courts have largely permitted departmental appointment and limited statutory protections so long as some executive control remains [2] [4] [5].
1. Historical practice: administrations use special appointments to insulate or delegate politically fraught probes
Presidents have repeatedly turned to special prosecutors or special counsels to investigate scandals or conflicts the regular Justice Department could not credibly handle—examples include Roosevelt’s appointments in 1903 and 1905, the Waco‑related Danforth appointment under Attorney General Janet Reno in 1999, and Patrick Fitzgerald’s appointment in 2003 after Attorney General Ashcroft’s recusal [1]. Modern DOJ regulations formalized the device after the Independent Counsel Act lapsed in 1999, authorizing the Attorney General to appoint a special counsel when ordinary DOJ components present conflicts or “extraordinary circumstances” and to set investigative parameters and removal grounds [6] [5] [1].
2. Statutory and regulatory contours: who appoints, how long, and for what cause
Congress and the DOJ have wrestled over whether interim U.S. attorneys and special prosecutors should be court‑appointed, Senate‑confirmed, or installed by the Attorney General, producing shifting statutes and rules: for nearly a century district courts routinely appointed interim U.S. attorneys, the law was changed in 1986 and again in 2006 to expand AG appointment power, and Congress moved to reinstate limits in 2007 to discourage indefinite interim selections and preserve Senate confirmation as a check [7] [8] [9]. DOJ’s special counsel regulations enumerate grounds for appointment, scope, budget oversight, and permissible removal for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause” [6] [5].
3. Judicial treatment: Appointments Clause and removal‑power tests have guided courts
Federal courts have treated special counsels through the lens of the Appointments Clause and removal‑power precedents: the D.C. Circuit held that special counsels are generally “inferior officers” who may be appointed by a department head because they remain subject to supervision by a Senate‑confirmed superior, and noted that the Attorney General’s ability to rescind the regulatory independence meant the special counsel “effectively serves at the pleasure” of a principal officer [2]. The Supreme Court has similarly entertained a functional test for removal protections, sustaining some statutory limits when the statute did not unduly interfere with the President’s Article II duties—an approach reflected in cases sustaining limited “for‑cause” protections where duties were constrained and non‑policymaking [4] [2].
4. Politics, litigation, and practical effects: recurring tensions and court interventions
In practice, administrations have used interim and special appointments to navigate political stalemates or to shield sensitive probes from perceived conflicts, but that strategy invites litigation; courts have sometimes voided prosecutions tied to improper appointments or tenure questions, and Congress has reacted by amending appointment rules to rein in executive flexibility—illustrated by debates and statutory fixes around the 120‑day interim U.S. Attorney rule and judicial appointment backstops [10] [8] [11]. High‑profile modern examples—Mueller’s appointment under DOJ regulations and later special counsels such as Durham—demonstrate both the utility of the tool and the political scrutiny that accompanies it [5] [3].
5. Competing views and implicit agendas
Supporters argue special appointments preserve DOJ impartiality and public confidence by removing direct White House control from sensitive matters, while critics warn that administrations can weaponize interim or special designations to install loyalists or evade Senate confirmation; academic and congressional commentary has therefore pushed for clearer statutory guardrails and transparent standards for when and how special counsels are used [5] [11]. Courts have tried to mediate these competing aims by applying functional tests that balance independence against the President’s constitutional control, but doctrinal ambiguity remains and litigation inevitably surfaces when political stakes are high [2] [4].