Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations

"Under the Constitution, Congress has no direct role in federal law enforcement and its ability to initiate appointments of any prosecutors to address alleged wrongdoings by executive officials is limited. While Congress retains broad oversight and investigatory powers under Article I of the Constitution, criminal investigations and prosecutions have generally been viewed as a core executive function and a responsibility of the executive branch. Historically, however, because of the potential conflicts of interest that may arise when the executive branch investigates itself (e.g., the Watergate investigation), there have been calls for an independently led inquiry to determine whether officials have violated criminal law. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These responses have attempted, in different ways, to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials.

Under the Ethics in Government Act of 1978, Congress authorized the appointment of “special prosecutors,” who later were known as “independent counsels.” Under this statutory scheme, the Attorney General could request that a specially appointed three-judge panel appoint an outside individual to investigate and prosecute alleged violations of criminal law. These individuals were vested with “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice” with respect to matters within their jurisdiction. The independent counsel provisions included sunset provisions, but were reauthorized regularly until 1992, when Congress allowed the law to expire. Although it was again reauthorized in 1994, debate over the scope, cost, and effect of the investigations (perhaps most notably the Iran-Contra investigation and the Whitewater investigation) resulted in the law’s expiration and nonrenewal in 1999..."
Special Counsels