United States Department of Justice Office of Special Counsel

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The Office of Special Counsel was an office of the United States Department of Justice established by provisions in the Ethics in Government Act that expired in 1999. The provisions were replaced by Department of Justice regulation 28 CFR Part 600,[1] which created the successor office of special counsel. The current regulations were drafted by former acting Solicitor General Neal Katyal.[2]

The Independent Counsel was an independent prosecutor—distinct from the Attorney General of the United States Department of Justice—who 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 critics of this law including Supreme Court Justice Antonin Scalia.[3] Many[who?] 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.

Three Independent Counsel investigations had jurisdictions that were specified in regulations: the Iran-Contra investigation in 1987 (28 Code of Federal Regulations sec. 601.1); Edwin Meese III, the Wedtech case in 1987 (sec. 602.1), and President Bill and First Lady Hillary Clinton in the Madison Guaranty/Whitewater case in 1994 (sec. 603.1).

After the expiration of the Ethics in Government Act in 1999, the Office of Independent Counsel was replaced with the office of Special Counsel, defined by regulation 28 CFR 600, which in turn is based on Congressional statute 28 USC 510.

Patrick Fitzgerald was appointed Special Counsel in 2003 regarding the investigation into the public naming of CIA spy Valerie Plame.[5] His appointment was based on 28 USC 510.

Under 28 CFR 600,[6] Robert Mueller was appointed Special Counsel in 2017 to investigate possible interference by the Russian government in the 2016 presidential election, including a possible criminal conspiracy between Russia and the presidential campaign of Donald Trump.[7] The investigation was officially concluded on March 22, 2019. The report concluded that the Russian Internet Research Agency's social media campaign supported Trump's presidential candidacy while attacking Clinton's, and Russian intelligence hacked and released damaging material from the Clinton campaign and various Democratic Party organizations.[8] The investigation "identified numerous links between the Russian government and the Trump campaign", and determined that the Trump campaign "expected it would benefit electorally" from Russian hacking efforts. However, ultimately "the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities".[9][10][11] Mueller later said that the investigation's conclusion on Russian interference "deserves the attention of every American".[12]

In 2019 Attorney General William Barr appointed a federal prosecutor, John Durham, to counter-investigate the origins of the FBI's Crossfire Hurricane probe.[13] On December 1, 2020, the Associated Press reported that Barr had appointed Durham as a Special Counsel under the federal statute governing such appointments to conduct an investigation into "…the investigation of Special Counsel Robert S. Mueller III," by which was meant the FBI personnel who worked on Crossfire Hurricane before joining the Mueller team.[14]


  • Originally created by the Ethics in Government Act of 1978 and the Ethics in Government Act Amendments of 1982 (96 Stat. 2039), January 3, 1983
  • Reauthorized for five years by the Independent Counsel Reauthorization Act of 1987 (101 Stat. 1293), December 15, 1987
  • Lapsed, December 15, 1992, by failure of reauthorization
  • Reinstituted by the Independent Counsel Reauthorization Act of 1994 (PL 103-270), June 30, 1994
  • Converted into the Office of the Special Counsel end of 1999.

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. May 23, 2017. Retrieved January 3, 2018.
  3. ^ Greenhouse, Linda (September 1, 2016). "The President, the Prosecutor, and the Wheel of Fortune". The New York Times.
  4. ^ Mitchell, Alison (December 20, 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". February 13, 2007. Archived from the original on February 13, 2007.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  7. ^ Ruiz, Rebecca R.; Landler, Mark (May 17, 2017). "Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation". The New York Times.
  8. ^ Mackey, Robert; Risen, James; Aaronson, Trevor. "Annotating special counsel Robert Mueller's redacted report". The Intercept. Retrieved April 23, 2019.
  9. ^ Ostriker, Rebecca; Puzzanghera, Jim; Finucane, Martin; Datar, Saurabh; Uraizee, Irfan; Garvin, Patrick. "What the Mueller report says about Trump and more". The Boston Globe. Retrieved April 22, 2019.
  10. ^ Law, Tara. "Here Are the Biggest Takeaways From the Mueller Report". Time. Retrieved April 22, 2019.
  11. ^ Mueller Report, vol. II, p.2: Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
  12. ^ LaFraniere, Sharon; Sullivan, Eileen (May 29, 2019). "Mueller, in First Comments on Russia Inquiry, Declines to Clear Trump". The New York Times.
  13. ^ Johnson, Kevin (May 14, 2019). "Attorney General taps top Connecticut federal prosecutor for review of Trump-Russia inquiry". USA TODAY. Retrieved May 17, 2019.
  14. ^ Balsamo, Michael; Tucker, Eric (December 1, 2020). ""Barr Appoints Special Counsel in Russia Probe Investigation"".
  15. ^ "Justice in the Inslaw Case". The New York Times. December 7, 1991. Retrieved September 11, 2008.
  16. ^ Johnson, Kevin (May 14, 2019). "Attorney General taps top Connecticut federal prosecutor for review of Trump-Russia inquiry". USA TODAY. Retrieved May 17, 2019.

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