Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch

"Under constitutional principles and authorities, Congress has no direct role in federal law enforcement and is limited in its ability to initiate appointments of any prosecutor for any particular matter in which there may be allegations or concerns about wrongdoing by public officials. Instead, criminal investigations and prosecutions have generally been viewed as a core executive function and are a responsibility of the Executive Branch. However, because of the potential conflicts of interest that may arise when the Executive Branch investigates itself, as a historical matter there have often been calls for an independently led inquiry to determine whether executive officials have violated criminal law. In the past, Congress has authorized independent counsels, who were requested by the Attorney General and appointed by a judicial panel, but that authority lapsed in 1999. Currently, the Attorney General has regulatory authority to appoint a special counsel to investigate allegations that may present a conflict of interest for the Department of Justice (DOJ).

It may be noted that the terms independent counsel and special prosecutor differ from special counsel, although the three are commonly used interchangeably. The distinction between these terms, however, depends upon which legal authority is being utilized, as discussed below. (Additionally, the use of the term special counsel in this context is entirely distinct from the Office of Special Counsel, an independent federal agency tasked with investigating certain federal personnel practices.)..."
Specials Counsels