In the post-Watergate period, Congress passed the Ethics in Government Act, which formalized the procedures for appointing special prosecutors and also rebranded them as "independent counsels." Independent counsels were appointed by a three-judge panel at the request of the attorney general. Congress could also petition the attorney general to seek such an appointment, although the attorney general was not required to do so. The most famous independent counsel was Kenneth Starr, whose investigation ultimately led to the impeachment of President Bill Clinton. The Ethics in Government Act expired in 1999 and was not renewed.

Since 1999, the attorney general has occasionally appointed "special counsels" to investigate suspected criminal activity when an investigation by the Justice Department itself might pose a conflict of interest. Because these counsels are appointed by — and answer to — the attorney general, they have less formal independence than independent counsels.

One famous special counsel was Patrick Fitzgerald, who investigated and prosecuted Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby, for his role in the public identification of Valerie Plame, a covert CIA officer. (Libby was convicted on perjury and obstruction of justice charges. His prison sentence was later commuted by President George W. Bush.) The attorney general at the time, John Ashcroft, had recused himself from the matter so Fitzgerald was appointed by Ashcroft's deputy ... James Comey.

Next steps

A special prosecutor or independent counsel could be appointed by Rosenstein (since Attorney General Jeff Sessions has recused himself from all matters involving Russian ties to the 2016 elections), although such an investigator would probably go by the title "special counsel." Schumer said last month that he received assurances from Rosenstein that the deputy attorney general would appoint a special counsel "if one is required."

Alternatively, Congress could reauthorize something like the Ethics in Government Act, creating a new role for independent counsels. Democratic Sen. Richard Blumenthal of Connecticut is drafting legislation in that mold as a backup, in case the deputy attorney general fails to act.

Congress could also establish its own select committee of lawmakers to investigate, as McCain proposed.

Finally, lawmakers could appoint a special commission of outsiders to investigate, along the lines of the 9/11 Commission. This approach is favored by Amash.

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