Naming of a Special Counsel, how to Proceed and the Subsequent Consequences

by Colonel Jim Waurishuk, USAF (Ret.)

What we should know and be looking for in the forthcoming Special Counsel investigation...


This week’s surprise appointment of former FBI Director Robert Mueller as Special Counsel by the Trump administration — to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters,” is an effort to allow both the White House and both house of Congress, albeit, try to get traction and get back to work in doing the nation’s business. That is what President Trump sought to do as his goal and promise to the American people prior to and upon being elected and subsequently taking office.

Unfortunately, for the first time in 241-years, the Republic and the Presidency is under a serious assault, from within, the assault is being perpetrated by career bureaucrats in Washington, members on both sides of the aisle in both Houses of Congress, rogue members within the intelligence community who are violating Federal Laws by leaking classified information, and by numerous groups of seditious organizations, lobbyists and anti-American radicals who are determined to delegitimize and destroy a duly elected President of the United States. These individuals and groups along with anti-Trump forces are driving the narrative and are determined to bring down a President of the United States, by any and all means necessary as we have seen. To that end – to bring about a sense of calm and to try to cool things down, the administration determined it necessary to assign a special counsel to address the issues and investigate the felonious and false allegations.

However, in that vein, we need to first take a minute to understand the difference and role of the Special Counsel. Many media outlets are describing Counsel Mueller as a “Special Prosecutor.” In fact, the term “Special Counsel” has replaced the terms “Special Prosecutor” and “Independent Counsel” to describe an investigation undertaken by the Department of Justice where there is a potential conflict of interest with the executive branch or, where there are “extraordinary circumstances” that warrant an independent investigation.

Both the attorney general and the president have the power to name a special counsel. Congress can recommend the appointment of a special counsel, but the Justice Department is under no statutory obligation to accept that recommendation and implement a Special Counsel.

So what is a special counsel and what is the difference between a special counsel, a special prosecutor, and an independent counsel? The terms are largely interchangeable to refer to someone appointed to investigate allegations that could involve a conflict of interest within the Department of Justice. But the manner in which they are appointed and why has changed over time.

The president has always had the authority to name a special prosecutor. After the crisis brought on by the Watergate scandal, Congress passed a law creating an “independent counsel” who could be appointed by a three-judge panel. After the experiences of the Iran-Contra investigation, and the probe into the Clinton’s Whitewater land deal, there was bipartisan support to abandon that law. Now, the attorney general, in addition to the president, has the power to appoint a special counsel.

The statute regarding the grounds for appointing a special counsel says the attorney general, or acting attorney general in cases where the attorney general is recused, can appoint a special counsel when a case presents a “conflict of interest” for the Justice Department, or “other extraordinary circumstances.” In this case, Deputy Attorney General Rod Rosenstein was able to appoint Mueller because Attorney General Jeff Sessions has recused himself. The special counsel has broad authority, just a federal attorney to investigate and follow leads that result from the investigation that may not be directly tied to the specific investigation – which I will point out in this article.

As is the case, because President Trump’s selected Attorney General of the United States, Jeff Sessions, recused himself from all Russian matters, the Deputy Attorney General Rod J. Rosenstein, appointed Former Director of the FBI, Robert S. Mueller, III, a decorated former U.S. Marine who was awarded a Bronze Star Medal for combat in Vietnam, as Special Counsel. The move marks a concession by the Trump administration to Democratic demands for the investigation to be run independently of the Justice Department.

Director Mueller will investigate the allegation that there was collusion by the Trump’s campaign with Russia, will investigate if the Russian’s interfered in the 2016 election, will investigate if there was obstruction of Justice by President Trump with regard to the FBI investigation of LTG Mike Flynn by the FBI, will investigate “any matters that arose or may arise directly from the investigation’’ and any other matters that fall under the wide scope and breath of the Justice Department regulation covering special counsel appointments.

As I have previously noted in other venues; when a special prosecutor or special counsel is thrown in to the mix, people need be very cautious. A special counsel is like a live torpedo in the water, it can essentially hit anything — as everything is fair game even if it is not the intended target. Democrats should be aware, because in the case of foreign lobbying and consulting, Washington is awash with their own who are heavily involved with foreign countries across the board to which there tends to be many unsuspecting tentacles, links, and connections which may prove to be perhaps unfortunate in the end for them as a result of this special counsel investigation.

As background of the Special Counsel, Robert Mueller is a former prosecutor who served as the FBI Director from 2001 to 2013; his investigation will be objective, free of political influence, and will present the truth, backed up by unimpeachable facts.  Director Mueller was a very low key Director for 13-years, and was press adverse. During Director Mueller’s leadership of the Bureau, the FBI was not involved in the type of multiple controversial political issues that have embroiled the Bureau for the last 3-years while FBI Director James Comey was in charge.

Former Assistant FBI Director James Kallstrom noted that Director Comey; threw the FBI and its reputation under the bus.  Further, Kallstrom added; “That’s what I am very mad about and have been very mad about this for a long time.”  Three former FBI Assistant Directors, again including James Kallstrom, as well as, Bill Gavin and Ron Hosko all thought Director Comey sealed his fate after his July 5, 2016 press conference and did so again and again in subsequent hearing in which he self-appointed himself and assumed the role of a prosecutor, judge and jury; recommended no charges against Hillary Clinton for her illegal and criminal use of a private email server and computer network in her private residence during her tenure as Secretary of State, his position on the Russian collusion by the Trump campaign and its associates and his recent memo accusing the President of interference and influence in the Russian investigation.

So, after 11-months of allegations by Democrats of collusion by the Trump campaign with Russia, there has been absolutely no evidence of a crime to date. The previous FBI investigation of LTG Mike Flynn’s which ended in January 2017 investigated his contacts with the Russian Ambassador to the U.S. and other alleged illegal involvement with Russian entities, ended with no evidence of any wrong-doing.

The only crime, with regard to Russia, has been the violation of the Espionage Act by a member(s) of the Obama administration, most likely by those hold-over political appointees and appointed senior officials within the Intelligence Community when they unmasked LTG Flynn’s identity. For 11 months that federal crime, was not brought to any conclusion, despite the fact that a select few individuals had access to the information to unmask LTG Flynn. Speaking from experience and having served on the White House National Security Council staff, the violator(s) of the Espionage Act could have been easily determined in a matter of several weeks or perhaps a month, by ordering FBI interviews and lie detector tests on those individuals who had the authority to approve the unmasking Americans to include LTG Flynn, unfortunately and for whatever reason Director Comey did not do so. Federal officials are brought in to undergo lie detector tests for lesser situations, so Director Comey’s failure to do so is now suspect and questionable. If he appears before Congress next week that question certainly needs to be asked of him.

In the meantime, the mainstream media establishment has been trying to find President Trump guilty of “something”, making one allegation after another, quoting anonymous, unnamed, and unverifiable sources as their only evidence — demonstrating that their style of journalism, no longer needs proof of allegations or of its true intentions. Regardless of what is reported daily in the out of control crisis hyping mainstream media establishment, the overlapping allegations and investigations are getting confusing.

As it stands, there is no doubt that the out of control mainstream media establishment, will continue to make continuous, dreamed-up fraudulent, and unverifiable allegations against President Trump and members of his administration, employing unnamed sources, with the goal of delegitimizing and the goal of ultimately trying to bring down the President of the United States for the first time in our history. More damning are the number of Democrats who said Counsel Mueller’s appointment does not preclude the need for an independent commission to examine Russian interference in the election and the need for unconditional impeachment of the President of the United States. This is all both partisan banter to further confuse Americans. It is just one more element of the greater wide-ranging false-narrative about the Russian collusion hype. Unfortunately, it is also quickly becoming the joint theme of the now “combined coalition” of the ideological political-left, Establishment Republicans, and the anti-Trump and NeverTrumpers.

All should be reminded that the “Freedom of Press” was accorded the “Fourth Estate” in the U.S. Constitution by the Founding Fathers, in order for the press to publish the “truth”, not to knowingly publish propaganda, hate and disinformation, i.e.; “fake news” designed to accomplish the devious goal of delegitimizing and destroying a sitting President of the United States. The repeated publication, day after day, of known falsehoods and false facts by the mainstream press, creating unnamed, anonymous, and unverifiable sources to mislead the American people, in order to destroy the elected President, are treasonous and seditious — those acts should be prosecuted!

Finally, some thoughts and concerns as it pertains to the consequence that could result with the investigation by the special counsel. As I noted, a special counsel has broad authority and powers just a federal attorney to investigate and follow leads that result from the investigation that may not be directly tied to the specific investigation. When a special prosecutor or special counsel is thrown into the mix, people need be very cautious. Again, the special counsel has broad ranging powers and authorities — Counsel Mueller can essentially investigate anything and everything that appears on his radar scope. As a result, again, everything is fair game, even if it is not the intended target. In the case of the Democrats, Washington is awash with their own who are heavily involved in providing lobbying, counsel, advice, and other services with foreign countries across the board. Further, there  Further, there tends to be many unsuspecting tentacles, links, and other unidentified connections which could prove to be perhaps unfortunate for some, particularly those involved in Washington legislative, lobbying and PR circles that deal with foreign government, international relations and business contracts and consulting. And of course, this also would includes both Democrats, as well as other Trump administration critics in Congress and on K Street. They too may suddenly become subject to the special counsel’s investigative scope and reach, if the special counsel discovers a link or connection.

At the time this article went to press, House Democratic leaders seemed to have cooled their position on impeachment, taking great pains to now show they were not seeking to railroad President Trump out of the White House as vigorously as some seemed to think. “No one ought to, in my view, rush to embrace the most extraordinary remedy that involves the removal of the president from office,” said Representative Adam B. Schiff of California, minority senior Democrat on the House Intelligence Committee. He warned that Democrats should not let their actions “be perceived as an effort to nullify the election by other means.”

As a result, Democrats suddenly appear leery, and perhaps scared, now that the White House has established and named a Special Counsel. This caught the Democrats off guard as they never expected this to occur. Trump’s approach appears to have been, ‘you want a special counsel, you got one.’ The Democrats again also realize that the broad authority and powers he welds in investigating anything and everything that crosses or relates to his investigation could perhaps reach across the aisle if by chance there are unidentified circumstances that some members are equally involved in that parallel and or are similar and maybe connected to their own activities —  they of course know who they are.

Going forward, we shall see what comes out in the special counsel investigation … it will certainly be very interesting in any case. In the meantime, American citizens need to educate themselves on the processes and should band together to oppose this false attempt to overthrow the duly elected government of the United States, as well as tearing apart the nation. Ultimately, it is wasting valuable time, resources, and destroying our effort to re-inspire America and making America great again.

For more background you will find a series of Jim Waurishuk's previous articles leading up to this one at
Jim Waurishuk is a retired USAF Colonel, serving nearly 30-years as a career senior intelligence and political-military affairs officer and special mission intelligence officer with expertise in strategic intelligence, international strategic studies and policy, and asymmetric warfare. He served combat and combat-support tours in Grenada, Panama, Iraq, and Afghanistan, as well as on numerous special operations and special mission intelligence contingencies in Central America, Eastern Europe, the Middle East, Central Asia and Africa. He served as a special mission intelligence officer assigned to multiple Joint Special Operations units, and with the CIA’s Asymmetric Warfare Task Force, as well as in international and foreign advisory positions. He served as Deputy Director for Intelligence for U.S. Central Command (USCENTCOM) during the peak years of the wars in Afghanistan, Iraq, and the Global War on Terrorism. He is a former White House National Security Council staffer and a former Distinguished Senior Fellow with the Atlantic Council, Washington, D.C. He currently provides advisory and consulting services on national security, international strategic policy and strategy matters for the private sector, media groups and outlets, and to political entities, forums, and political candidates. He provides regular commentary and opinion to national and local TV, radio networks, and both print and online publications, as well as speaking engagements to business, political, civic and private community groups in the areas of national security -- focusing international strategic policy, strategic engagement, strategic intelligence, special mission intelligence and operations, counter-terrorism, and asymmetric conflict. He has served as a senior advisor to the Commander U.S. Special Operations Command (USSOCOM), and is Vice President of the Special Ops-OPSEC, which provides strategic and operational security analysis and assessments, and strategic planning to governmental and private entities, as well as media organizations on national security issues, policy, and processes.