United States Department of Justice Office of Special Counsel

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The Office of Special Counsel is an office of the United States Department of Justice. It assumed the functions of the former Office of the Independent Counsel in 1999 (under Department of Justice regulation 28 CFR Part 600).[1] The current regulations governing the office were drafted by former acting Solicitor General Neal Katyal.[2]

The Special Counsel is an independent prosecutor—distinct from the Attorney General of the United States Department of Justice—that provided reports to the United States Congress under 28 U.S.C. § 595.


In 1978, a Democratic Party-majority Congress was determined to curb the powers of the President and other senior executive branch officials due in part to the Watergate scandal and related events such as the Saturday Night Massacre. They drafted and passed the Ethics in Government Act of 1978, creating a special prosecutor (later changed to Independent Counsel) position, which could be used by Congress or the Attorney General to investigate individuals holding or formerly holding certain high positions in the federal government and in national Presidential election campaign organizations.


The prosecutor, who was appointed by a special panel of the United States Court of Appeals for the District of Columbia Circuit, could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could be dismissed only by the Attorney General for "good cause" or by the special panel of the court when the independent counsel's task was completed. As the president could not dismiss those investigating the executive branch it was felt that the independence of the office would ensure impartiality of any reports presented to Congress. However, there have been many critics of this law including Supreme Court Justice Antonin Scalia.[3] Many argued the new Independent Counsel's office was a sort of "fourth branch" of government that had virtually unlimited powers and was answerable to no one. However, the constitutionality of the new office was ultimately upheld in the 1988 Supreme Court case Morrison v. Olson.

Previously under the Independent Counsel Reauthorization Act of 1994, United States Attorney General Janet Reno had Donald Smaltz appointed Independent Counsel by the United States Court of Appeals for the District of Columbia (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended, Division 94-2) on September 9, 1994, to "investigate to the maximum extent authorized by law" whether the US Department of Agriculture Secretary Mike Espy "committed a violation of any federal criminal law . . . relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture." Smaltz was also given jurisdiction to investigate "other allegations or evidence of violations of any federal criminal law by organizations or individuals developed during the course of the investigation of Secretary Espy and connected with or arising out of that investigation."

The most famous Independent Counsel was Kenneth Starr, whose report led to the impeachment of President Bill Clinton by the United States House of Representatives,[4] though he was later acquitted by the United States Senate.

The Office of the Independent Counsel is not to be confused with the U.S. Office of Special Counsel (OSC) which is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.

Further, the Office of the Independent Counsel is not to be confused with the independent counsel who is appointed by the Attorney General pursuant to 28 Code of Federal Regulations 600.1. There have been three independent counsels of this type regarding the following: the Iran/Contra investigation in 1987 (sec. 601.1); Edwin Meese III, the Wedtech case in 1987 (sec. 602.1), and President and Ms. Clinton in the Madison Guaranty/Whitewater case in 1994 (sec. 603.1).

Again, the Office of the Independent Counsel is not to be confused with the appointment in 2003 of Patrick Fitzgerald ("United States Department of Justice Office of the Special Counsel") regarding the investigation into the public naming of CIA spy Valerie Plame.[5]

Last, the Office of the Independent Counsel is not to be confused with the appointment of Robert Mueller III to investigate possible interference by the Russian government in the 2016 presidential election, which includes investigating possible criminal conspiracy between the Russian government and the campaign of President Donald Trump.[6] These were done pursuant to the general statutory authority of the Attorney General.


Investigations carried out by Independent Counsel[edit]

See also[edit]


  1. ^ "28 CFR Part 600 – General Powers of Special Counsel". LII / Legal Information Institute. 
  2. ^ "Could Trump Remove Special Counsel Robert Mueller? Lessons from Watergate". Lawfare. 2017-05-23. Retrieved 2018-01-03. 
  3. ^ Greenhouse, Linda (1 September 2016). "The President, the Prosecutor, and the Wheel of Fortune". The New York Times. 
  4. ^ Mitchell, Alison (20 December 1998). "Impeachment: The Overview – Clinton Impeached; He Faces a Senate Trial, 2d in History; Vows to Do Job Till Term's 'last Hour'". The New York Times. 
  5. ^ "USDOJ: Office of Special Counsel". 13 February 2007. Archived from the original on 13 February 2007. 
  6. ^ Ruiz, Rebecca R.; Landler, Mark (17 May 2017). "Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation". The New York Times. 
  7. ^ "Justice in the Inslaw Case". The New York Times. 1991-12-07. Retrieved 2008-09-11. 

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