Special Prosecutor

A lawyer from outside the government appointed by the attorney general or Congress to investigate a federal official for misconduct while in office. The reason for appointing an outsider is that the Department of Justice may have political connections to those it might be asked to investigate. This creates a conflict of interest.

In 1978, following the Watergate scandal and the firing of special prosecutor Archibald Cox by President Nixon, Congress drafted the Ethics in Government Act, creating a special prosecutor (later called independent counsel) position that would be appointed by a special panel of the U.S. Court of Appeals for the D.C. Circuit and could be dismissed only by the attorney general or a panel of three federal judges. The special prosecutor was to investigate allegations of misconduct with no budget or deadline. However, critics of this law argued that the independent counsel’s office was a sort of “fourth branch” of government that had virtually unlimited powers and was answerable to no one. The constitutionality of the new office was ultimately upheld in the 1988 Supreme Court case Morrison vs. Olson.

One of the most famous independent counsels was Kenneth Starr, whose Whitewater investigation led to the impeachment of President Bill Clinton following the Monica Lewinsky scandal. Many argued that Starr went too far in his investigation. Following the impeachment battle in the Senate where President Clinton was not convicted, the independent counsel law was allowed to expire in 1999. It was effectively replaced by a Department of Justice regulation that created a “special counsel” position that is more limited (must follow Department of Justice approval procedures for investigative actions) than the independent counsel position.