Independent Counsel

An attorney appointed by the federal government to investigate and prosecute federal government officials.

Before 1988, independent counsel were referred to as special prosecutors. In 1988, Congress amended the ETHICS IN GOVERNMENT ACT OF 1978 (Ethics Act) (92 Stat. 1824 [2 U.S.C.A. §§ 701 et seq.]) to change the title to independent counsel. This change was made because lawmakers considered the term special prosecutor to be too inflammatory.

Independent counsel are attorneys who investigate and prosecute criminal activity in government. They hold people who make and implement laws accountable for their own criminal activity.

The need for independent counsel arises from the conflict of interest posed by having the established criminal justice system investigate government misconduct. Prosecutors and law enforcement agencies work under the authority of government leders. When government leaders are accused of wrongdoing, these entities face conflicting duties: the duty to uphold the laws on the one hand, versus the duty of loyalty to superiors on the other. Independent counsels do not answer to the government officials they are assigned to investigate, and therefore they avoid much of this conflict of interest. One potential element for bias remains: the political affiliations of the accused government official and the independent counsel. The people rely on independent counsel's duty as a member of the bar to uphold the laws and the U.S. Constitution, to overcome any similarities or differences in political beliefs. Independent counsel who appear to be motivated by political or other bias may be dismissed.

President ULYSSES S. GRANT was the first to appoint independent counsel to investigate high-level federal government officials. In 1875 Grant's personal secretary, Orville E. Babcock, was indicted in federal district court on charges of accepting bribes. Babcock had allegedly arranged favorable tax treatment for a group of moonshiners who were known as the Whiskey Ring. Grant removed the federal district attorney and replaced him with an independent counsel, who finished the investigation and the trial.

In the early 1920s, another BRIBERY scandal, known as TEAPOT DOME, led to the appointment of an independent counsel. President WARREN G. HARDING appointed independent counsel to investigate the sale of oil-rich federal lands. The independent counsel's investigation led to the prosecution of Harding's secretary of the interior, Albert B. Fall.

In its later days, President HARRY S. TRUMAN's administration labored under allegations of corruption. Specifically, officials in the INTERNAL REVENUE SERVICE and the Tax Division of the JUSTICE DEPARTMENT were accused of giving favorable treatment to tax evaders. Attorney General J. HOWARD MCGRATH appointed a special assistant attorney to investigate. When the special prosecutor sought to investigate McGrath, McGrath fired him. Truman then fired McGrath and refused to pursue the matter.

The WATERGATE scandals of the 1970s gave Congress the incentive to create the first statutory framework for investigating government officials. In 1973, newspaper reports concerning a BURGLARY at the Democratic National Committee headquarters in the Watergate Hotel in Washington, D.C., implicated officials in the administration of President RICHARD M. NIXON. Attorney General ELLIOT L. RICHARDSON appointed ARCHIBALD COX, a Harvard law professor, as independent counsel to investigate the situation.

Cox endeavored to uncover the facts surrounding Watergate. As it became apparent that White House officials were involved in the episode, Cox was forced to investigate the president himself. When Cox asked Nixon for White House tape recordings, Nixon sought to have Cox fired. One weekend in October 1973, in a turn of events later known as the Saturday Night Massacre, Richardson and Deputy Attorney General William D. Ruckelshaus resigned rather than carry out Nixon's order to fire Cox. That same night, Solicitor General ROBERT H. BORK, who had just become acting head of the Department of Justice, carried out Nixon's request and fired Cox.

Nixon then appointed LEON JAWORSKI to be the second independent counsel to investigate Watergate. Like Cox, Jaworski sought Nixon's White House tapes. After a court battle that reached the U.S. Supreme Court in UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), Jaworski successfully subpoenaed the tapes. Nixon resigned the office of president shortly thereafter.

After the Saturday Night Massacre and the Watergate matter, it became obvious that independent counsel were necessary to check government misconduct. In 1978, Congress passed the Ethics Act to establish on the federal level a statutory scheme for policing the EXECUTIVE BRANCH.