Special prosecutor

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A special prosecutor (or special counsel or independent counsel) is a lawyer appointed to investigate and possibly prosecute a specific legal case of potential wrongdoing for which a conflict of interest exists for the usual prosecuting authority. For example, the investigation of an allegation against a sitting president or attorney general might be handled by a special prosecutor rather than an ordinary prosecutor, who would otherwise be in the position of investigating their own boss. Investigations into others connected to the government but not in a position of direct authority over the prosecutor, such as cabinet secretaries or election campaigns, have also been handled by special prosecutors.

The term is not specific to the United States,[1] or to the federal government. According to Harriger, the concept originates in state law: "state courts have traditionally appointed special prosecutors when the regular government attorney was disqualified from a case, whether for incapacitation or interest."[2] While the most prominent special prosecutors have been those appointed since the 1870s to investigate presidents and those connected to them, the term can also be used to refer to any prosecutor appointed to avoid a conflict of interest or appearance thereof. For example, because district attorneys' offices work closely with police, some activists argue that cases of police misconduct at the state and local level should be handled by "special prosecutors".[3]

The term special counsel as used here is distinct from the United States Office of Special Counsel, which is a permanent government agency (unlike special counsels, who are appointed for specific, temporary assignments), which protects government whistleblowers, among other things.

Terminology[edit]

The terms "special prosecutor", "independent counsel", and "special counsel" have the same fundamental meaning, and their use (at least at the federal level in the US) is generally differentiated by the time period to which they are being applied. The term "special prosecutor" was used throughout the Watergate era, but was replaced by the less confrontational "independent counsel" in the 1983 reauthorization of the Ethics in Government Act.[4] Those appointed under that act after 1983 are generally referred to as independent counsels. Since the independent counsel law expired in 1999, the term special counsel has generally been used. This is the term used in the current US government regulations concerning the appointment of special counsels.[5]

While the term special prosecutor is sometimes used in historical discussions of all such figures before 1983, the term special counsel appears to have been frequently used as well, including, for example, in contemporary newspaper accounts[6] describing the first presidentially appointed special counsel in 1875.

United States appointment at the federal level[edit]

History of appointments[edit]

Pre-Watergate[edit]

The first federal special prosecutor, John B. Henderson, was appointed by Ulysses Grant in 1875 to investigate the Whiskey Ring scandal. After attempting to stifle Henderson's investigation of the president's personal secretary, Grant fired Henderson on the basis that Henderson's statements to a grand jury regarding Grant were impertinent.[7] Following criticism, Grant appointed a new special prosecutor, James Broadhead, to continue the investigation.

James Garfield appointed the next special prosecutor, William Cook, in 1881 to investigate the Star route scandal. Cook continued his investigation into the Chester Arthur administration. Under the Theodore Roosevelt administration, special prosecutors were appointed to investigate two scandals. In 1903, Roosevelt appointed two special prosecutors (a democrat and a republican) to investigate allegations of bribery at the Post Office department. In 1905, Roosevelt's attorney general, Philander Knox,[8] appointed Francis Heney special prosecutor to investigate the Oregon land fraud scandal.

Calvin Coolidge appointed two special counsels, Atlee Pomerene and Owen Roberts to investigate the Teapot Dome scandal. This appointment was unique in that it was made under a special Congressional resolution, and was subject to approval in the Senate.[9]

In 1952, Harry Truman appointed Newbold Morris "special assistant to the Attorney General" to investigate the corruption at the Bureau of Internal Revenue following Congressional pressure and calls for a special prosecutor.[10] After Morris submitted a lengthy questionnaire on personal finances to be completed by all senior executive officers, he was fired by Attorney General Howard McGrath, who was in turn fired by the president. Following the appointment of a new attorney general, the investigation was continued through regular channels.

Watergate[edit]

In May 1973, Richard Nixon's attorney general, Elliott Richardson, appointed Archibald Cox special prosecutor to investigate the Watergate scandal after Richardson had agreed in his senate confirmation hearing to appoint a Watergate special prosecutor. As part of his investigation, in July of that year, Cox first requested and then subpoenaed the Nixon White House tapes, secret recordings Nixon had made of conversations in the Oval Office and elsewhere. The Nixon administration refused to produce the tapes citing executive privilege, and the dispute was fought in court until October. After a Court of Appeals instructed the president to comply with the special prosecutor's subpoena, Nixon ordered the special prosecutor fired. In what became known as the Saturday Night Massacre, both the attorney general and deputy attorney general (who had both made promises regarding the special prosecutor in their senate confirmations) resigned rather than carry out the order to fire Cox. Solicitor General Robert Bork, who was third in line at the Department of Justice, then fired Cox.

Initially, the Nixon Whitehouse announced that the office of the special prosecutor had been abolished, but after public outcry Nixon instead had Bork appoint Leon Jaworski as the second Watergate special prosecutor, less than two weeks after the Saturday Night Massacre. Jaworski continued Cox's pursuit of the White House tapes, which were ultimately released following the supreme court decision in United States v. Nixon. Jaworski resigned after just under a year as special prosecutor, about two and a half months after Nixon's own resignation, to be replaced by his (and Cox's) deputy, Henry Ruth Jr. Ruth in turn resigned in 1975, leaving Charles Ruff the fourth and final Watergate special prosecutor. Acting under his existing appointment as Watergate special prosecutor, Ruff conducted an unrelated investigation into whether Gerald Ford had misused campaign funds while a congressman, clearing the president of any wrongdoing.[11]

Independent counsel law[edit]

Inspired in part by Watergate, in 1978 Congress passed the Ethics in Government Act, which among other things established formal rules for the appointment of a special prosecutor. The special prosecutor provisions in the bill were temporary, but were reauthorized by Congress in 1983 and 1987, expiring five years later in 1992, then were reinstated for another five years in 1994 before expiring again in 1999. The appointment of special prosecutors under the Ethics in Government Act varied in important ways from appointments made before and since. Most notably, although the decision to appoint a special prosecutor was still made by the attorney general, the actual selection of the special prosecutor was made by a three-judge panel.[12]

Roughly twenty special prosecutors (called independent counsels after 1983) were appointed under the Ethics in Government Act and its reauthorizations[13] during each of the Jimmy Carter, Ronald Reagan, George HW Bush, and Bill Clinton administrations. These include significant investigations into the Iran–Contra affair and the Whitewater controversy, the latter of which ultimately led to the impeachment of Bill Clinton over the Lewinsky scandal. Numerous smaller investigations into cabinet secretaries for relatively minor offenses, such as drug use, were also carried out by special prosecutors during this period.

During the period 1992–1994 when the independent counsel provisions were not in force, Attorney General Janet Reno appointed Robert Fiske special counsel to investigate Whitewater. When the law was reauthorized in 1994, Reno invoked it to order an independent counsel be appointed to investigate Whitewater, and suggested Fiske continue in that role. Instead, Ken Starr was given the job by the three-judge panel. Starr resigned and was replaced by Robert Ray in 1999 just before the expiration of the independent counsel statute.[14] Ray formally concluded the Whitewater investigation in 2003.

Since 1999[edit]

Since the expiration of the independent counsel statute in 1999, there is no federal law governing the appointment of a special prosecutor, as was the case until 1978. With the law's expiration in 1999, the Justice Department, under Attorney General Reno, promulgated procedural regulations governing the appointment of special counsels. These regulations were used that year by Reno to appoint John Danforth special counsel to investigate the FBI's handling of the Waco siege.[15]

In 2003 during the George W Bush administration, Patrick Fitzgerald was appointed special counsel by Deputy Attorney General James Comey, acting after the recusal of Attorney General John Ashcroft, to investigate the Plame affair.

Legal authority[edit]

The legal authority under which special prosecutors are appointed has changed over the years.

In the case of the Teapot Dome investigation, Congress passed a special joint resolution requiring the appointment of a special counsel for the case, and requiring confirmation of the special counsels by the Senate, similarly to a cabinet appointment.[9] This process was unique in the history of federal special prosecutors.

Special prosecutors have also been appointed under special one-time regulations issued by the attorney general. This was the case, for example, for the Watergate special prosecutors.[16]

Passed partly in response to the events of Watergate, the Ethics in Government Act of 1978 created a statutory basis for the appointment of special prosecutors, and specifically restricted the authority of the president or attorney general, for example, to fire the independent counsel once appointed. The independent counsel provisions of the law were in effect during the periods 1978–1992 and 1994–1999.

With the expiration of the independent counsel authority in 1999, the Department of Justice under Attorney General Janet Reno promulgated regulations for the future appointment of special counsels. As of 2017, these regulations remain in effect as 28 CFR section 600.[5] While the regulations place limits on the authority of the attorney general, for example to fire the special counsel once appointed, they are internal Department of Justice regulations without an underlying statutory basis. It is thus unclear whether the limits these regulations place on the attorney general would prove binding in practice.

The existence of a law or regulations specifying one process to appoint a special prosecutor does not preclude the attorney general (or acting attorney general) from using their inherent authority to appoint a special prosecutor by other means, as has happened twice. Despite the passage of the Ethics in Government Act the previous year, Paul Curran was appointed to investigate Jimmy Carter's peanut business in 1979 under the attorney general's inherent authority (and was selected by him rather than by a three-judge panel as under the law), ostensibly because the alleged wrongdoing preceded the passage of the act.[7] Patrick Fitzgerald's appointment as special counsel in 2003 was specifically not made under the 28 CFR 600 regulation.[17] The special counsel regulations specify that a special counsel must be a lawyer from outside the US government, while Fitzgerald was already a federal prosecutor at the time of his appointment.

Initiating a special prosecutor investigation[edit]

The decision to appoint a special prosecutor rests with the attorney general (or acting attorney general), or, historically, with the president. Under the independent counsel statute that expired in 1999, Congress could formally request the attorney general to appointment a special prosecutor (see role of legislative and judicial branches); however the law only required the attorney general to respond in writing with a decision and reasons, and in any event it is no longer in force.[16] Similarly, under the statute, the choice of who to appoint as special prosecutor was made by a three-judge panel of the Court of Appeals. This is no longer the case, and the decision of who to appoint now rests entirely with the attorney general.

The current special counsel regulations specify that:[5]

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—

  • (a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
  • (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

The attorney general sets the subject jurisdiction of the special counsel:

The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

The choice of who to appoint is to be made by the attorney general with the following guidelines:

An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

Terminating a special prosecutor investigation[edit]

Generally, the special prosecutor him or herself decides when an investigation will terminate, with or without formal charges being pursued. The special prosecutor typically issues a final report on their investigation at this time. The current special prosecutor regulations specify that[5] "At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel."

Firing the special prosecutor[edit]

Three special prosecutors have been fired before they had completed their investigations. President Grant fired the special prosecutor investigating the Whiskey Ring scandal on charges of impudence against the president, but later replaced him following public pressure. President Truman's attorney general fired Newbold Morris when Morris submitted a lengthy questionnaire to be filled out by all senior executive officers. Truman later fired the attorney general, and concluded the investigation through ordinary means. President Nixon fired special prosecutor Archibald Cox after Cox subpoenaed the White House tapes. Controversy over the propriety and legality of this last firing sparked a constitutional crisis, dubbed the Saturday Night Massacre. The firing was ruled illegal in the case of Nader v. Bork, but, as a new special prosecutor had already been appointed, the case was already moot when decided, and the decision was never appealed past the district court.[18]

The independent counsel law originally enacted in the Ethics in Government Act did not allow independent counsels appointed under the law to be removed except under specific circumstances such as wrongdoing or incapacitation. This law is no longer in effect.

The current special counsel regulations specify that:[5]

The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Unlike the independent counsel law, however, the current special counsel regulations were promulgated by the Justice Department and have no underlying statutory basis. Thus their force to constrain the attorney general is uncertain.

Role of the legislative and judicial branches[edit]

The decision to appoint a special prosecutor is made by the executive branch, historically by the president or attorney general (or acting attorney general). The only exception to this was the Teapot Dome special prosecutors, whose appointment was mandated by a joint resolution of Congress.[9]

Under the independent counsel statute, majorities of either party within the House or Senate Judiciary Committee could formally request the attorney general to appoint an independent counsel on a particular matter, but the decision of whether or not to appoint the independent counsel remained with the attorney general and was not reviewable in court. If the attorney general decided not to appoint an independent counsel in response to such a request, they were only required to respond in writing with the reasons.[16] Although under the statute the attorney general made the decision of whether or not to appoint an independent counsel, the actual selection of the individual to serve in this role was made by a three-judge panel of the US Court of Appeals.[which?][12]

Since the expiration of the independent counsel laws, as was the case before 1978, neither Congress nor the courts have any official role in the appointment of a special counsel; however Congress can use other powers to pressure an administration into appointing a special counsel. This happened, for example, in the appointment of Watergate special prosecutor Archibald Cox; senators secured a promise from Attorney General nominee Richardson to appoint a Watergate special prosecutor as a condition of his confirmation. Congress also has independent authority to investigate the president and his or her close associates through Congressional hearings as part of its government oversight role.[16]

Constitutionality[edit]

The appointment of a special prosecutor raises inherent separation of powers questions under the US Constitution. Since the special prosecutor is a member of the executive branch, it has been argued that the special prosecutor is ultimately answerable to the president, and can therefore be fired by them. Richard Nixon, for example, argued that he could not be compelled by a subpoena issued by his own subordinate.

The constitutionality of the independent counsel law was affirmed by an 7–1 decision of the supreme court in the case of Morrison v. Olson.

Calls for a special counsel to investigate Russian interference in the 2016 US election[edit]

On December 21, 2016, Democratic Congresswoman Nydia Valázquez wrote a letter to Attorney General Loretta Lynch asking Lynch to appoint a special counsel to investigate Russian interference in the 2016 United States election. Such an appointment would have been unusual in that the conflict of interest to be addressed was anticipated, following the inauguration of Donald Trump as president, rather than immediate.[19]

On February 24, 2017, Republican Congressman Darrell Issa called for the appointment of a special counsel on the Real Time with Bill Maher show.

On March 2, 2017, Attorney General Jeff Sessions recused himself from the investigation regarding Russian interference in the 2016 election following revelations that he had had meetings with the Russian ambassador while a Trump campaign surrogate, and had falsely testified otherwise in his senate confirmation hearing. The decision over whether to appoint a special counsel thus devolved to his deputy, currently Acting Deputy Attorney General Dana Boente. In senate confirmation hearings for Rod Rosenstein to replace Boente as Deputy Attorney General, ongoing in March 2017, several Democratic senators have sought to make the confirmation conditional on Rosenstein's agreement to appoint a special counsel. Rosenstein has declined to make such a commitment, and because Democrats are in the minority, this is unlikely to prevent his confirmation.[20]

United States appointment at the state level[edit]

Special prosecutors are appointed in state court with greater frequency than federal, and most often in cases where a conflict of interest arises or to avoid even the appearance such a conflict exists. In local state governments, special prosecutors are appointed by a judge, government official, organization, company or group of citizens to prosecute violations of law committed by one or more governmental agents and procure indictments for actions taken under color of state law.[21] Unlike in courts having federal jurisdiction, where the terms "special counsel" and "independent counsel" have a uniform definition, in state court meanings of legal terms continually vary, but with "special prosector" referencing the appointment of an attorney (supra) in contemplation of representation and prosecution of one or more government agent(s) for unlawful conduct.

References[edit]

  1. ^ "South Korea prosecutor paves way for charges against Park if impeachment upheld". Reuters. 2017-03-06. Retrieved 2017-03-14. 
  2. ^ Harriger, Katy (1992). The Federal Special Prosecutor in American Politics. Lawrence, KS: University Press of Kansas. p. 3. ISBN 0-7006-0535-5. 
  3. ^ "Policy 11: Special or Independent Prosecutors | Justice in Policing Toolkit". www.justiceinpolicing.com. Retrieved 2017-03-14. 
  4. ^ "The Office - A Brief History Of The Independent Counsel Law | Secrets Of An Independent Counsel | FRONTLINE | PBS". www.pbs.org. Retrieved 2017-03-14. 
  5. ^ a b c d e e-CFR: TITLE 28—Judicial Administration, retrieved 2017-03-14 
  6. ^ "THE WHISKY RING FRAUDS.; THE PROSECUTIONS IN ST. LOUIS. INDICTMENT OF GEN. BABCOCK--LETTER OF THE GRAND JURY TO THE PRESIDENT THANKING HIM FOR THE SUPPORT GIVEN THEM BY HIM--THE SPECIAL COUNSEL--MR. HENDERSON'S CASE. MR. HENDERSON'S ATTACK ON THE PRESIDENT--HE SAYS HE WAS INCORRECTLY REPORTE--THE REPORTED DISPATCH OF SENATOR MORTON.". Retrieved 2017-03-14. 
  7. ^ a b "OIC Smaltz: Speeches and Articles: Georgetown Law Journal: A View From Inside". govinfo.library.unt.edu. Retrieved 2017-03-14. 
  8. ^ Greenberg, Gerald (2000). Historical Encyclopedia of U.S. Independent Counsel Investigations. Westport, CT: Greenwood Press. pp. 164–166. ISBN 0-313-30735-0. 
  9. ^ a b c "A summary of the Teapot Dome scandal from the Brookings Institution". academic.brooklyn.cuny.edu. Retrieved 2017-03-14. 
  10. ^ Greenberg, Gerald (2000). Historical Encyclopedia of U.S. Independent Counsel Investigations. Westport, CT: Greenwood Press. pp. 231–233. ISBN 0-313-30735-0. 
  11. ^ Greenberg, Gerald (2000). Historical Encyclopedia of U.S. Independent Counsel Investigations. Westport, CT: Greenwood Press. pp. 293–295. ISBN 0-313-30735-0. 
  12. ^ a b "The Office - What Is The Special Division? | Secrets Of An Independent Counsel | FRONTLINE | PBS". www.pbs.org. Retrieved 2017-03-14. 
  13. ^ "The Office - Independent Counsel Investigations, 1978 To The Present | Secrets Of An Independent Counsel | FRONTLINE | PBS". www.pbs.org. Retrieved 2017-03-14. 
  14. ^ Post, From the Washington (1999-10-17). "Starr's Chosen Successor Draws Praise, Criticism". Los Angeles Times. ISSN 0458-3035. Retrieved 2017-03-14. 
  15. ^ "09-09-99: PRESS CONFERENCE WITH ATTORNEY GENERAL JANET RENO RE: APPOINTMENT OF FORMER SENATOR JOHN DANFORTH TO HEAD WACO PROBE". www.justice.gov. Retrieved 2017-03-14. 
  16. ^ a b c d Maskell, Jack (June 20, 2013). "Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress" (PDF). 
  17. ^ "December 30, 2003 Letter from Deputy Attorney General James B. Comey to Patrick J. Fitzgerald" (PDF). 
  18. ^ "Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973)". Justia Law. Retrieved 2017-03-14. 
  19. ^ "House Democrat appeals for special counsel to probe Russian hacking". Washington Post. Retrieved 2017-03-14. 
  20. ^ "Grilled on Russia probe, deputy attorney general pick sidesteps Democrats' calls for special prosecutor". Washington Post. Retrieved 2017-03-14. 
  21. ^ Black's Law Dictionary (8th ed. 2004) Prosecutor.

Further reading[edit]

  • Doyle, James (1977). Not Above the Law: the battles of Watergate prosecutors Cox and Jaworski. New York: William Morrow and Company. ISBN 0-688-03192-7. 

External links[edit]