Independent Counsel

When Congress is in session, independent counsel do not investigate or prosecute the criminal activities of members of Congress. Instead, Congress polices its members through ethics committees and can expel a member with a two-thirds vote of the member's house (U.S. Const. art. I, § 5, cl. 2). Members of Congress cannot be arrested while Congress is in session, except for TREASON, felony, or breach of the peace (§ 6, cl. 1). When Congress is not in session, members of Congress are not exempt, and they may be prosecuted in the jurisdiction where an alleged offense occurred.

Congress may also investigate official wrongdoing in the Executive Branch. When Congress and independent counsel are investigating the same persons or events, the matter can become a political tug-of-war, and one investigation can run afoul of the other. For example, if Congress grants immunity to a witness who is under investigation by independent counsel, it becomes difficult for independent counsel to prosecute the witness.