When the independent counsel law expired after June 30, 1999, the Attorney General promulgated specific regulations concerning the appointment of outside, temporary counsels in certain circumstances. Such personnel appointed by the Attorney General from outside of the Department of Justice to conduct investigations and possible prosecutions of certain sensitive matters, or matters which may raise a conflict of interest for Justice Department personnel, are called “special counsels.” These special counsels are appointed by, are answerable to, and may have their prosecutorial or investigative decisions countermanded by, the Attorney General. The “special counsels” under these regulations have, therefore, by express design, less “independence” from the Attorney General and the Department of Justice than did the “independent counsels” under the Ethics in Government Act of 1978, or the “special prosecutors” appointed by the Attorney General for the Watergate matter. One special counsel that was appointed under the new regulations, former Senator John Danforth, was appointed by Attorney General Reno on September 9, 1999, to be special counsel to investigate the “Branch Davidian incident” near Waco, Texas, to determine if there had been any misconduct on the part of federal law enforcement personnel.
Under the Justice Department regulations, the appointment of a “special counsel” is completely discretionary with the Attorney General.