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A special prosecutor generally is a lawyer from outside the government appointed by an attorney general or, in the United States, by Congress to investigate a government official for misconduct while in office. A reasoning for such an appointment is that the governmental branch or agency may have political connections to those it might be asked to investigate. Inherently, this creates a conflict of interest and a solution is to have someone from outside the department lead the investigation. The term "special prosecutor" may have a variety of meanings from one country to the next, from one government branch to the next within the same country, and within different agencies within each government branch. Critics of the use of special prosecutors argue that these investigators act as a "fourth branch" to the government because they are not subject to limitations in spending, nor do they have deadlines to meet.
Attorneys carrying out special prosecutor functions in either federal or state courts of the United States are typically appointed ad hoc with representation limited to one case or a delineated series of cases that implicate compelling governmental interests, such as: Fraud (SEC, Complex, Cybercrime, Mortgages), Public Corruption, Money Laundering & Asset Forfeiture, Civil Rights, Racketeering Across State lines, Environmental Protection, National Security, Tax & Bankruptcy, Organized Crime, or International cases where the US is a party).see, USDOJ (SDNY) website.
Special prosecutors in courts of the United States may either be appointed formally by one of the three branches of government in a criminal proceeding, or when dictated by federal law or regulation, or informally in civil proceedings, and also by one of the three branches of government, or by a non-governmental entity to prosecute alleged unlawful conduct by government agents. When appointed by the judicial branch to investigate and, if justified, seek indictments in a particular judicial branch case, the attorney is called special prosecutor. When appointed/hired particularly by a governmental branch or agency to investigate alleged misconduct within that branch or agency, the attorney is called independent counsel. When appointed/hired by the state or political subdivision to assist in a particular judicial branch case when the public interest so requires, the attorney is called special counsel. When appointed/hired by an organization, corporation, person or other non-governmental entity to investigate and, if justified, seek indictments against one or more government officials for acts committed under color of law, the attorney may be called special counsel or special prosecutor, but not independent counsel.
On January 3, 1983, the United States federal government substituted the term independent counsel for special prosecutor. Archibald Cox was one of the most notable special prosecutors. However, special prosecutor Archibald Cox today would be called independent counsel Archibald Cox in the United States.
The term is sometimes used as a synonym for independent counsel, but under the former law authorizing the independent counsel, the appointment was made by a special panel of the United States Court of Appeals for the District of Columbia Circuit. The Ethics in Government Act expired in 1999, and was effectively replaced by Department of Justice regulation 28 CFR Part 600, under which Special Counsel Patrick Fitzgerald was appointed to look into the Plame affair.
Special prosecutors are required and utilized by local State governments in circumstances similar to those requiring their need in federal jurisdictions, but are appointed at the state level with greater frequency and often in cases where a conflict of interest arises, and at times to avoid even the mere appearance that one or more conflict of interests exists. Special prosecutors in local state governments may be appointed by a judge, government official, organization, company or citizens to prosecute governmental malfeasance and seek indictments for individual acts taken under color of state law. Unlike courts with federal jurisdiction where terms such as "special counsel" and "independent counsel" specifically appear and are uniformly defined by law & regulations, in state jurisdictions where legal terms & definitions inherently vary from state to state, the umbrella term special prosector is generally accepted and the term most often used by state courts and tribunals.
- Black's Law Dictionary (8th ed. 2004) Prosecutor.
- Black's Law Dictionary (8th ed. 2004) Counsel.
- United States Public Law 97-409 (January 3, 1983) as enacted from A bill to change the coverage of officials and the standards for the appointment of a special prosecutor in the special prosecutor provisions of the Ethics in Government Act of 1978, and for other purposes.
- Black's Law Dictionary (8th ed. 2004) Prosecutor.
- 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.