Before 1988, independent counsel were referred to as special prosecutors. In 1988, Congress amended the ethics in government act of 1978 (Ethics Act) (92 Stat. 1824 [2 U.S.C.A. §§ 701 et seq.]) to change the title to independent counsel. This change was made because lawmakers considered the term special prosecutor to be too inflammatory.
Independent counsel are attorneys who investigate and prosecute criminal activity in government. They hold people who make and implement laws accountable for their own criminal activity.
The need for independent counsel arises from the conflict of interest posed by having the established criminal justice system investigate government misconduct. Prosecutors and law enforcement agencies work under the authority of government leders. When government leaders are accused of wrongdoing, these entities face conflicting duties: the duty to uphold the laws on the one hand, versus the duty of loyalty to superiors on the other. Independent counsels do not answer to the government officials they are assigned to investigate, and therefore they avoid much of this conflict of interest. One potential element for bias remains: the political affiliations of the accused government official and the independent counsel. The people rely on independent counsel's duty as a member of the bar to uphold the laws and the U.S. Constitution, to overcome any similarities or differences in political beliefs. Independent counsel who appear to be motivated by political or other bias may be dismissed.
President ulysses s. grant was the first to appoint independent counsel to investigate high-level federal government officials. In 1875 Grant's personal secretary, Orville E. Babcock, was indicted in federal district court on charges of accepting bribes. Babcock had allegedly arranged favorable tax treatment for a group of moonshiners who were known as the Whiskey Ring. Grant removed the federal district attorney and replaced him with an independent counsel, who finished the investigation and the trial.
In the early 1920s, another bribery scandal, known as teapot dome, led to the appointment of an independent counsel. President warren g. harding appointed independent counsel to investigate the sale of oil-rich federal lands. The independent counsel's investigation led to the prosecution of Harding's secretary of the interior, Albert B. Fall.
In its later days, President harry s. truman's administration labored under allegations of corruption. Specifically, officials in the internal revenue service and the Tax Division of the justice department were accused of giving favorable treatment to tax evaders. Attorney General j. howard mcgrath appointed a special assistant attorney to investigate. When the special prosecutor sought to investigate McGrath, McGrath fired him. Truman then fired McGrath and refused to pursue the matter.
The watergate scandals of the 1970s gave Congress the incentive to create the first statutory framework for investigating government officials. In 1973, newspaper reports concerning a burglary at the Democratic National Committee headquarters in the Watergate Hotel in Washington, D.C., implicated officials in the administration of President richard m. nixon. Attorney General elliot l. richardson appointed archibald cox, a Harvard law professor, as independent counsel to investigate the situation.
Cox endeavored to uncover the facts surrounding Watergate. As it became apparent that White House officials were involved in the episode, Cox was forced to investigate the president himself. When Cox asked Nixon for White House tape recordings, Nixon sought to have Cox fired. One weekend in October 1973, in a turn of events later known as the Saturday Night Massacre, Richardson and Deputy Attorney General William D. Ruckelshaus resigned rather than carry out Nixon's order to fire Cox. That same night, Solicitor General robert h. bork, who had just become acting head of the Department of Justice, carried out Nixon's request and fired Cox.
Nixon then appointed leon jaworski to be the second independent counsel to investigate Watergate. Like Cox, Jaworski sought Nixon's White House tapes. After a court battle that reached the U.S. Supreme Court in united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), Jaworski successfully subpoenaed the tapes. Nixon resigned the office of president shortly thereafter.
After the Saturday Night Massacre and the Watergate matter, it became obvious that independent counsel were necessary to check government misconduct. In 1978, Congress passed the Ethics Act to establish on the federal level a statutory scheme for policing the executive branch.
Ethics in Government Act
Under the Ethics Act, the process of appointing independent counsel began when the attorney general received information on criminal activity. The attorney general could investigate all violations of criminal law other than minor misdemeanors and minor violations. This permission included special ethics laws that applied to Executive Branch officials, such as laws that make it illegal for an Executive Branch official to receive money from a person if the official has arranged for that person to be employed by the federal government.
There had to be sufficient credible information of criminal activity to constitute grounds for an investigation, and the information had to pertain to the president, the vice president, a member of the president's cabinet, a high-level executive officer, a high-level Justice Department official, the director or deputy director of the central intelligence agency, the commissioner of the Internal Revenue Service, any person with a personal or financial relationship with the attorney general or any other officer in the Department of Justice, or the president's campaign chair or treasurer.
Once the attorney general received credible inculpatory information, the attorney general had to decide within 30 days whether to investigate the matter. If the attorney general determined that the matter warranted an investigation, he had to begin an investigation. The attorney general could not conduct this initial investigation for more than 150 days. At the close of the investigation, the attorney general submitted a report to the Independent Counsel Division of the U.S. Court of Appeals for the District of Columbia Circuit. The members of this three-judge panel were appointed by the chief justice of the U.S. Supreme Court.
In the report, the attorney general requested or declined the appointment of independent counsel on the matter. A court could not review this decision. If the attorney general requested independent counsel, the panel appointed one and defined the scope of the investigation. Generally, the panel limited the counsel's investigation to certain persons or certain issues.
The appointment of independent counsel was unusual because the Department of Justice already is required to police the Executive Branch. In theory, the attorney general is an independent official. In practice, however, he usually is a political ally of the president. Like other Executive Branch officials, the attorney general is appointed by the president and reports to the president. Because the attorney general decided whether independent counsel should be appointed by the panel, an investigation could be influenced by the Executive Branch. An attorney general might have been reluctant to recommend the prosecution of a political ally. However, if enough sources exerted sufficient pressure, the attorney general could be forced to avoid the appearance of favoritism by requesting the appointment of independent counsel.
The appointment of independent counsel was often politically charged, in large part because independent counsel investigated Executive Branch officials and their political opera-tives. When politicians are investigated, an invariable response is that the investigation is politically motivated. Nevertheless, most politicians considered independent counsel to be crucial to conveying at least the appearance of propriety in the Executive Branch of government. The danger of independent counsel is that they may be called for on a regular basis by politicians who are opposed to the president, for the sole purpose of demoralizing the Executive Branch and gaining an electoral advantage.
Once appointed, independent counsel could proceed as any other prosecutor. Counsel filed criminal charges in the U.S. District Court for the District of Columbia and had the power to subpoena witnesses, and to grant immunity to witnesses.
Under the Ethics Act, only the attorney general could fire independent counsel. Independent counsel could be dismissed only for good cause or because a physical or mental condition prevents counsel from performing the position's duties. Dismissed independent counsel had the right to appeal to the U.S. District Court for the District of Columbia.
The first government officials investigated under the new Ethics Act were two officials in the administration of President jimmy carter. After investigating allegations of drug use and conflict of interest, the independent counsel declined to file criminal charges.
In May 1986 an official in the administration of President ronald reagan mounted a challenge to the Ethics Act. Theodore B. Olson, a former assistant attorney general in the administration (and now solicitor general), argued that the Executive Branch had the power to conduct all criminal investigations, and that it was unconstitutional for Congress to give the judiciary the power to appoint independent prosecutors. The U.S. Supreme Court disagreed, ruling that the Ethics Act was constitutional because the attorney general, an officer within the Executive Branch, had the power to remove independent counsel and therefore retained ultimate control (Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 ).
The list of federal government officials investigated or prosecuted by independent counsel under the Ethics Act is long and ever growing. In December 1987, Michael Deaver, former aide to President Reagan, was convicted of perjury after prosecution by independent counsel. In February 1988, Lyn Nofziger, another presidential aide, was convicted of ethical violations. Nofziger's conviction was later overturned on appeal. President Reagan's attorney general edwin meese iii resigned in July 1988 after an investigation by independent counsel James McKay. Although Meese was not prosecuted, McKay stated in his report to the panel that he believed that Meese had broken the law by helping a company in which Meese owned stock, Wedtech Corporation, to solicit contracts with the U.S. military.
In December 1986, before he resigned, Meese appointed Lawrence E. Walsh as independent counsel to investigate and prosecute wrongdoing in the burgeoning iran-contra scandal, which involved trading arms to Iranians and diverting the proceeds to fund a covert war in Nicaragua. Walsh was able to obtain several convictions of high-level Reagan administration officials, but some of those were overturned on appeal.
The administration of President bill clinton was heavily investigated by independent counsel. In 1994, Donald C. Smaltz was appointed as independent counsel to investigate Clinton's secretary of agriculture Mike Espy. The independent counsel was directed to investigate whether Espy had accepted gifts from organizations and individuals with business pending before the agriculture department and whether Espy had committed any crimes connected to, or arising out of, the investigation, such as obstruction of justice and false testimony or statements.
In October 1994, just a few months after Smaltz began work, Espy resigned his office. Nevertheless, the investigation of Espy and several associates continued. Over the next four years, Smaltz spent more than $17 million to bring 30 counts of corruption against Espy. At Espy's 1998 trial, Smaltz produced 70 prosecution witnesses, yet a jury took just nine hours to acquit Espy on all 30 counts.
In January 1994, Robert Fiske Jr. was appointed as independent counsel to investigate the death of White House counsel Vincent Foster and alleged financial misconduct by Clinton and the first lady, hillary rodham clinton. Because the Ethics Act had lapsed, Attorney General janet reno herself chose Fiske. When Congress reauthorized the Ethics Act, Reno submitted the matter to the panel, which appointed a new independent counsel, kenneth w. starr.
Starr, a former U.S. solicitor general and U.S. district court judge, worked on the Clinton investigation until 1999. He obtained convictions against a number of Clinton associates, but it was not until 1998 that he ensnared President Clinton. Allegations of a sexual affair with a White House intern shifted Starr's work. In January 1998, Clinton was deposed for the sexual harassment lawsuit filed by Paula Jones. At the deposition, Clinton denied that there had been a sexual relationship with intern Monica Lewinsky. In August 1998, he changed his story when
called before Starr's grand jury, but he still would not give details. In the fall, Starr sent his report to the House of Representatives and testified before a House panel. Starr accused the president of having had a sexual affair with the intern. The report, which contained graphic sexual descriptions from Lewinsky, claimed that Clinton had committed perjury and obstruction of justice, and that he had abused his presidential power in an effort to keep the affair from coming to light. This report led to the House passing articles of impeachment in December 1998. Clinton was acquitted of the charges by the Senate in February 1999.
By the end of Starr's investigation, very few people in Congress or the White House had positive feelings about the Ethics in Government Act. The 1980s and 1990s had seen independent counsel spend years and millions of dollars on seemingly open-ended investigations of official misconduct, usually with little to show for it. Even Starr agreed that the law should expire, testifying to that effect before Congress in April 1999. With no congressional support for its continuation, the act was allowed to expire on June 30, 1999. Although bills have been introduced seeking to curtail the powers of future independent counsel while requiring greater accountability, Congress has not acted.
Congress and Independent Counsel
When Congress is in session, independent counsel do not investigate or prosecute the criminal activities of members of Congress. Instead, Congress polices its members through ethics committees and can expel a member with a two-thirds vote of the member's house (U.S. Const. art. I, § 5, cl. 2). Members of Congress cannot be arrested while Congress is in session, except for treason, felony, or breach of the peace (§ 6, cl. 1). When Congress is not in session, members of Congress are not exempt, and they may be prosecuted in the jurisdiction where an alleged offense occurred.
Congress may also investigate official wrongdoing in the Executive Branch. When Congress and independent counsel are investigating the same persons or events, the matter can become a political tug-of-war, and one investigation can run afoul of the other. For example, if Congress grants immunity to a witness who is under investigation by independent counsel, it becomes difficult for independent counsel to prosecute the witness.
State or Local Independent Counsel
Independent counsel also may be appointed at the state or local level. In Alaska, for example, executive branch officials may be investigated by independent counsel who is appointed by a special personnel board (Alaska Stat. § 39.52.310 ).
In its broadest sense, the term independent counsel can describe any attorney who is appointed by one party to represent, prosecute, or bring suit against someone who is connected with that party. For example, in Alaska, a municipal school board is represented by a municipal attorney. If the municipal attorney has a conflict of interest in a particular matter, the school board may appoint independent counsel for that particular matter (§ 29.20.370). Thus, if the municipal attorney owns stock in a construction company that is hired by the school board, the school board might seek a different attorney to handle legal issues associated with that company, in order to avoid the appearance of collusion between government and private business. The new attorney would be called an independent counsel, to describe his or her independence in the matter.
Danner, Allison Marston. 2003. "Navigating Law and Politics: The Prosecutor of the International Criminal Court and the Independent Counsel." Stanford Law Review 55.
Kutler, Stanley I. 1994. "In the Shadow of Watergate: Legal, Political, and Cultural Implications." Nova Law Review 18.
O'Sullivan, Julie. 1996."The Independent Counsel Statute: Bad Law, Bad Policy." American Criminal Law Review 33.
Roof, Judith. 2002. "Investigating the Special: The Symbolic Function of the Independent Counsel." Indiana Law Journal 77.
Sels, John van Loben. 1995."From Watergate to Whitewater: Congressional Use Immunity and Its Impact on the Independent Counsel." Georgetown Law Journal 83.
Solloway, Robert G. 1988. "The Institutionalized Wolf: An Analysis of the Unconstitutionality of the Independent Counsel Provisions of the Ethics In Government Act of 1978." Indiana Law Review 21.
"Workshop: Preliminary Information on Ethics Investigations." 1995. Journal of Law and Politics 11.
In 1978, Congress established a permanent framework for dealing with allegations that a senior official of the federal government had committed federal crimes. The fundamental element of the new process is the selection of a special officer with the sole responsibility of investigating the allegations. The special selection of a person from outside the government frees the person from the institutional and personal restraints that might affect the judgment and objectivity of a regular Justice Department prosecutor called upon to investigate his governmental superiors or colleagues.
As originally enacted as part of the Ethics in Government Act of 1978, this officer was called a special prosecutor. Congress later changed the officer's title to "independent counsel" in order to diffuse criticism that appointment of an official called a "special prosecutor" prejudged the outcome of the investigation. The original title seemed to suggest that the offense being investigated was special and that prosecution was probable or necessary. The title "independent counsel" signifies that the official's responsibility is to be more neutral and dispassionate.
Before Congress acted in 1978 to provide a permanent mechanism for appointing an independent counsel, the decision whether to take any unusual steps to respond to reports of high-level corruption was left to an unpredictable combination of public notoriety and political integrity. For example, in order to deal with reports of massive corruption in the warren harding administration concerning the sale of the Teapot Dome petroleum reserves, Congress enacted a special statute authorizing the President, with Senate confirmation, to appoint "special counsel" to investigate and prosecute criminal violations relating to the leases on oil lands in former naval reserves. The incumbent attorney general, Harry Daugherty, lacked public trust, since he himself faced separate criminal allegations. President calvin coolidge appointed a former Ohio senator and a private lawyer from Pennsylvania (later a Supreme Court Justice) to serve as special counsel. Among those prosecuted was the former secretary of the interior, Albert B. Fall, who was convicted of bribery and sentenced to prison.
During the administration of harry s. truman, public pressure forced Attorney General J. Howard McGrath to appoint a highly respected former New York City official to serve as his "special assistant" to investigate widespread corruption in federal tax cases. The special assistant, however, had no statutory mandate. When he tried to press his investigation by seeking information from high-level Justice Department officials, including the attorney general himself, Attorney General McGrath fired him. President Truman immediately fired the attorney general, but did not see to the appointment of any replacement special prosecutor. Not until a new administration took over did the allegations yield prosecutions and convictions, including the convictions of the former assistant attorney general in charge of the Tax Division and of President Truman's own appointments secretary.
Then came watergate. Shortly after the beginning of President richard m. nixon's second term, allegations surfaced that his senior aides in his reelection committee, the White House, and the Justice Department had been personally involved in planning a burglary at the offices of the Democratic National Committee during the 1972 presidential campaign or had helped to cover up the guilt of the conspirators. Public skepticism about a Justice Department investigation led the new attorney general, Elliot Richardson, to appoint a Harvard Law School professor, Archibald Cox, as the "Watergate special prosecutor." When Cox insisted on subpoenaing tape recordings that President Nixon had made in his White House office and refused to yield voluntarily, the President fired him.
The public firestorm that followed Cox's firing and Richardson's resignation forced the President to agree to the appointment of a new special prosecutor, Leon Jaworski, whose authority was derived from newly issued Justice Department regulations that the President pledged to respect. Those regulations guaranteed that the special prosecutor would not be removed except for "gross impropriety" or other special cause. In united states v. nixon (1974), the Supreme Court upheld the constitutional authority of the Special Prosecutor to press another subpoena directed to the President, despite the President's objection that it invaded his constitutional right to invoke executive privilege. The Court concluded that the Justice Department regulations to which the President had agreed and which remained in effect provided the special prosecutor with autonomy to pursue the investigation, regardless of the President's wishes.
During the jimmy carter administration, Attorney General Griffin Bell appointed an official outside the Justice Department to serve as his "special counsel" to investigate allegations concerning the financial interests of the President and his brother.
The 1978 legislation goes well beyond any of the prior approaches. It requires the attorney general to apply to a special court to appoint a special prosecutor (or independent counsel) whenever preliminary inquiry into allegations against the President or other senior government officials specified in the statute leads the attorney general to conclude that there are "reasonable grounds" for further investigation. The court then must appoint an independent counsel from outside the government. That counsel becomes vested with all of the investigative and prosecutorial authority that the attorney general and his subordinates would otherwise have. In exercising his judgment, the independent counsel is not subject to supervision or direction by the attorney general or even the President. The statute protects the independent counsel's autonomy by specifying that he may be removed only by the attorney general personally and only for "good cause." The statute also makes the removal decision subject to judicial review.
In the first ten years of experience under the statute, there were more than thirty instances in which the statute came into play and at least eight special prosecutors or independent counsels were formally appointed. In Morrison v. Olson (1988) the Supreme Court upheld the constitutionality of the independent-counsel provisions. Their constitutionality had been challenged by the target of an investigation, a former assistant attorney general. The Justice Department itself joined in urging the Court to strike down the statute as an invasion of the President's constitutional prerogatives. The constitutional attack rested on two basic arguments: first, that the provisions for court appointment and protected tenure violated the President's right to appoint and remove all senior "officers" of the government and, second, that the independent counsel's autonomy invaded the prerogatives assigned to the President under the separation of powers, particularly the responsiblity for enforcing federal law.
The Court ruled, however, that an independent counsel is only an "inferior officer" within the meaning of the appointments clause of Article II of the Constitution, so that Congress may vest the appointment power in a court. The Court reasoned that the narrowness of the investigative charter and other statutory constraints put an independent counsel into the "inferior officer" status.
The Court also rejected the more fundamental objection that the independent-counsel mechanism violates the Constitution's separation of powers. The Court agreed that investigation and prosecution of federal crimes is essentially an executive-branch function, but concluded that the attorney general's role in the initial decision to apply for appointment of an independent counsel and his power to remove the counsel "for good cause" provide adequate executive-branch control over the assertion of these powers. The Court also concluded that Congress' solution to a difficult problem of assuring public confidence in the integrity of the criminal process satisfies the constitutional separation of powers because neither the legislature nor the judiciary had "aggrandized" its powers at the expense of the executive branch.
Although the Court's decision settles the constitutional question, doubts about the wisdom of the statute remain. An independent counsel lacks either an electoral base or public accountability. The appointment to investigate a particular set of allegations, with virtually no limit on the resources that can be devoted to the investigation, may tend to distort, rather than protect, the fair and objective judgment that the statutory mechanism is supposed to promote. This special charter may also lead to relentlessly intensive and sweeping investigations that subject government officials to substantially more onerous treatment than an "ordinary" criminal suspect would receive at the hands of a full-time, professional prosecutor.
Philip A. Lacovara
Baker, Howard H. 1975 The Proposed Judicially Appointed Independent Office of Public Attorney: Some Constitutional Objections and an Alternative. Southwestern Law Journal 29: 671–683.
Cummings, Homer S. and Mcfarland, Carl 1937 Federal Justice: Chapters in the History of Justice and the Federal Executive. New York: Macmillan.
Huston, Luther A. 1967 The Department of Justice. New York: Praeger.
——1968 Roles of the Attorney General of the United States. Washington, D.C.: American Enterprise Institute.
Jacoby, Joan E. 1980 The American Prosecutor: A Search for Identity. Indianapolis: Lexington Books.
Tiefer, Charles 1983 The Constitutionality of Independent Officers as Checks on Abuses of Executive Power. Boston University Law Review 63:59–103.