What you need to know about appointing a special prosecutor to investigate Trump

Attorney General Jeff Sessions recused himself Thu., March 2, 2017, from investigations involving the Trump campaign.

CBS News

Who’s calling for a special prosecutor, and why?

Congressional Democrats, mostly. And they want one because they don’t think the Trump administration is capable of investigating itself when it comes to President Trump’s ties to Russia.

“We need a special prosecutor totally independent of [Attorney General Jeff Sessions],” Elizabeth Warren tweeted last week, after it was revealed that Sessions had an undisclosed meeting with the Russian ambassador before the election. “We need a real, bipartisan, transparent investigation into Russia.”

The formal name for a special prosecutor, in this sense, is a “special counsel,” and he or she would be given broad investigatory powers, and could look into the Russia matter with limited oversight. Special counsels tend to come from within the Justice Department itself -- many are U.S. Attorneys, or assistant U.S. Attorneys.

So, are we going to get a special counsel?

When most people think of the position, they probably think of Ken Starr and his long investigation into President Clinton, which eventually resulted in a Congressional impeachment trial.

Here’s the rub, though: Starr’s investigation was conducted through the Office of Independent Counsel, which no longer exists, since the law establishing it expired in 1999.

That law, passed in 1978, was a response to Watergate and created a separate prosecutor office to avoid conflicts-of-interest questions by having an independent counsel appointed by a panel of judges from the U.S. Court of Appeals for the District of Columbia. But again, it has expired.

Does that mean we won’t get a special counsel?

It means we won’t get an independent counsel, which is what Starr was. But the attorney general could still appoint a special counsel to investigate Mr. Trump’s ties to Russia. Except that Jeff Sessions has recused himself from the investigation, meaning he won’t be the guy to do that. But his deputy could.

Additionally, the deputy attorney general could also order an investigation to see whether the appointment of a special counsel would be appropriate, or hand off the investigation to a special section of the department.

Got it. So, who’s Sessions deputy?

Currently, it’s Dana Boente, the U.S. Attorney for the Eastern District of Virginia. You may remember Boente as the guy who replaced Sally Yates as acting attorney general when Yates refused to defend Trump’s original travel ban in court.

But Boente was a temporary pick, and the White House is looking to replace him with Rod Rosenstein, the U.S. Attorney for Maryland. Rosenstein’s confirmation hearings before the Judiciary Committee begin on Tuesday, and you should expect a lot of questions about his willingness to appoint a special counsel.

Over the weekend, Connecticut Sen. Richard Blumenthal, a Democrat who sits on the committee, tweeted that he would “use every possible tool” to block Rosenstein unless he commits to appointing “an independent special prosecutor.”

Will Rosenstein refuse to commit to that and get the job anyway?

Probably, given that Republicans likely have the votes to confirm him, although that shouldn’t be taken for granted given the dizzying pace of events lately.

So what if Rosenstein gets confirmed and just decides he never wants a special counsel? What happens then?

If the Justice Department doesn’t want to appoint a special counsel, then we don’t get one, period.

Is that a bad thing?

Not necessarily. Peter Zeidenberg, who served as the assistant special counsel in the investigation of former White House aide Scooter Libby, argued last week in the Washington Post that appointing one would be a mistake.

“Prosecutors are not journalists, and their job is not to inform the public of the results of their investigations,” Zeidenberg wrote. “Rather, their mission is to gather all of the relevant facts and determine whether a crime was committed and, if so, whether it can be proved in court beyond a reasonable doubt. Their work, when done properly, is done in secret.”

That means that if critical evidence was found in the case but it was in, say, Russia and therefore unobtainable, “then it would be improper to seek an indictment. Critically, the entire investigation would then remain secret. It would be a violation of law for a prosecutor to make public the results of a grand jury investigation that did not result in an indictment.”

So a special counsel could find incriminating information and keep it secret forever. Alternatively, a special counsel, in an effort to justify its efforts and expenditures, would have a tremendous incentive to get a prosecution even if it’s unnecessary or unwarranted.

Will we ever have an investigation that’s out in the public?

We could. Congress has significant powers when it comes to investigations, and could set up a special committee, or a task force within a committee, or just have a robust one conducted by an already existing committee.

What’s stopping them from doing that?

Politics, for one thing. The GOP controls both houses of Congress, and as Sen. Rand Paul recently put it, “I just don’t think it’s useful to be doing investigation after investigation, particularly of your own party. We’ll never even get started with doing the things we need to do, like repealing Obamacare, if we’re spending our whole time having Republicans investigate Republicans.”

CBS News’ Major Garrett, Emily Schultheis, Ellen Uchimiya and Will Rahn contributed to this story.