also called special counsel or special prosecutor, in the U.S., an official appointed on a temporary basis, with limited jurisdiction, to investigate and, if necessary, prosecute a case in which regular law-enforcement authorities might have a conflict of interest. Such a case normally, although not always, involves a high-ranking government official accused of a serious crime. Special prosecutors have been appointed to investigate major U.S. scandals, such as Teapot Dome and Watergate. The term independent counsel, however, most commonly refers to prosecutors appointed under the federal independent counsel statute. The statute, which specifically applied to allegations of wrongdoing by certain members of the executive branch, became law through the Ethics in Government Act of 1978. It was reenacted, as amended, in 1982, 1987, and 1994 but allowed to expire in 1999.

Background.

The catalyst for the independent counsel statute occurred in October 1973, when President Richard M. Nixon obtained the dismissal of Archibald Cox (1912–2004), the special prosecutor, who was investigating Nixon's complicity in the Watergate scandal. In the aftermath of Watergate, reformers sought a mechanism that would clearly specify when and how a special prosecutor should be appointed, and under what circumstances (and by whom) such a prosecutor might be dismissed. The intent of the independent counsel statute was to restore public confidence in the impartial administration of justice by ensuring that officials of the executive branch, up to and including the president, could not interfere with the investigation of a prominent officeholder.

Application of the Statute.

Under the Independent Counsel Reauthorization Act of 1994, the attorney general (or, if necessary, another senior member of the Justice Department) was required to launch a preliminary inquiry upon receipt of specific and credible information of criminal wrongdoing by the president, the vice-president, members of the cabinet, or certain other high officials of the executive branch. If the preliminary inquiry revealed that further investigation was warranted, the attorney general notified a special three-judge panel, which then appointed the independent counsel and defined the charter for the investigation. This charter could be expanded as the investigation developed and related allegations were pursued. Congress could remove the independent counsel through impeachment and conviction. Any effort by the executive branch to dismiss the independent counsel required the personal action of the attorney general, could only be for “good cause,” and was subject to review and possible reversal by the three-judge panel. The statute gave the independent counsel the right to submit reports to Congress, and imposed the obligation to do so when the investigation uncovered “substantial and credible information” that might constitute grounds for impeachment of the president or another prominent official.

Controversies.

Although the U.S. Supreme Court upheld the independent counsel statute in Morrison v. Olson (1988), the law has always been highly controversial. Many critics echoed Justice Antonin Scalia's dissent in Morrison, contending that the statute violated the constitutional separation of powers. Others insisted that the statute was overbroad; they argued for a law that targeted fewer officials and would be triggered by only the most serious breaches of public trust. Because the law conferred on the independent counsel very broad prosecutorial powers and a virtually unlimited budget, there was general agreement that the prosecutor would have to be a person of unquestioned integrity and sound judgment, and not driven by a partisan agenda.

From 1978 through 1999, 20 independent counsels were appointed; their investigations cost a combined total of more than $160 million. Most worked in relative obscurity, and only a minority brought indictments. Two independent counsels, however, became figures of controversy as a result of their conduct in office: Lawrence E. Walsh (1912–    ), who investigated the handling of the Iran-Contra Affair by members of the administration of President Ronald Reagan, and Kenneth Starr (1946–    ), who headed the Whitewater inquiry from 1994 to 1999. In each case, because the probe involved well-known White House officials and the political stakes were high, defenders of the president sought to portray the independent counsel as overzealous or politically motivated. A report submitted by Starr in September 1998 led eventually to the impeachment of President Bill Clinton by the House of Representatives in December. Evidence collected by the independent counsel also provided the basis for Clinton's trial in the Senate, which resulted in acquittal in February 1999.

Expiration of the Statute.

Clinton and Attorney General Janet Reno had supported renewal of the independent counsel statute in 1994. In the aftermath of impeachment, however, the Clinton administration had little reason to favor reauthorization of the law beyond its scheduled expiration date. Legislators and commentators agreed that the statute was seriously flawed, but there was no consensus on how to fix it. Consequently, on June 30, 1999, the independent counsel statute lapsed, and the power to appoint special counsels reverted to the attorney general. The expiration of the law did not affect the status of the Whitewater probe and inquiries by four other active independent counsels, who were authorized to complete their investigations.