Special Prosecutor

• Author: John G. West
• Pages: 2462-2464

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Special prosecutors, also known as INDEPENDENT COUNSEL, are private attorneys appointed to investigate and, if need be, to prosecute government officials accused of criminal wrongdoing. In 1978 Congress enacted a law providing for the appointment of special prosecutors investigating executive branch officials as part of the Ethics in Government Act. The law was revised and reenacted in 1983 and 1987. It has come under heavy attack by some as violative of the SEPARATION OF POWERS, but the Supreme Court sustained the law in Morrison v. Olson in 1988.

As currently codified in 28 U.S.C. ©© 591?599, the independent counsel statute provides that a majority of members of Congress of either party sitting on the judiciary committee of either house may request an independent counsel to investigate allegations against a wide array of executive branch officials. Once the members have requested a special prosecutor under the law, the ATTORNEY GENERAL must initiate a preliminary investigation into the allegations, and unless the attorney general can certify that "there are no reasonable grounds to believe that further investigation is warranted ?" he or she must subsequently apply to a special panel of federal judges for appointment of a special prosecutor. The panel, rather than the attorney general, chooses the special prosecutor and determines the scope of the counsel's investigation. Once appointed, the counsel may be fired by the attorney general only for "good cause, physical disability, mental incapacity, or any other condition that substantially impairs

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the performance of such independent counsel's duties"?determinations that are all subject to review by the federal courts.

Defenders of the law cite the WATERGATE scandal and argue that the law is necessary to curtail executive branch corruption in cases that the executive branch would rather not prosecute. Critics, however, claim that the statute violates the principle of equality because its provisions apply solely to the executive branch and not to Congress or the judiciary. They also charge that it places an unfair burden on those being investigated. The "no reasonable grounds" standard practically assures that the attorney general will appoint an independent counsel once requested by Congress; and unlike ordinary prosecutors, independent counsels command virtually unlimited financial resources and may extend their investigations for years.

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