United States Office of The Independent Counsel - History

History

In 1978, a Democratic Congress was determined to curb the powers of the President and other senior executive branch officials due in part to the Watergate scandal and related events such as the Saturday Night Massacre. They drafted and passed the Ethics in Government Act of 1978, creating a special prosecutor (later changed to Independent Counsel) position, which could be used by Congress or the Attorney General to investigate individuals holding or formerly holding certain high positions in the federal government and in national Presidential election campaign organizations.

The prosecutor, who was appointed by a special panel of the United States Court of Appeals for the District of Columbia Circuit, could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could be dismissed only by the Attorney General for "good cause" or by the special panel of the court when the independent counsel's task was completed. As the president could not dismiss those investigating the executive branch it was felt that the independence of the office would ensure impartiality of any reports presented to Congress. However, there have been many critics of this law including Supreme Court Justice Antonin Scalia. Many argued the new Independent Counsel's office was a sort of "fourth branch" of government that had virtually unlimited powers and was answerable to no one. However, the constitutionality of the new office was ultimately upheld in the 1988 Supreme Court case Morrison v. Olson.

Previously under the Independent Counsel Reauthorization Act of 1994, United States Attorney General Janet Reno had Donald C. Smaltz appointed Independent Counsel by the United States Court of Appeals for the District of Columbia (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended, Division 94-2) on September 9, 1994, to "investigate to the maximum extent authorized by law" whether the US Department of Agriculture Secretary Mike Espy "committed a violation of any federal criminal law . . . relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture." Smaltz was also given jurisdiction to investigate "other allegations or evidence of violations of any federal criminal law by organizations or individuals developed during the course of the investigation of Secretary Espy and connected with or arising out of that investigation."

The most famous Independent Counsel was Kenneth Starr, whose report led to the impeachment of President Bill Clinton. The most recently appointed and now dormant Office of the Independent Counsel was created to investigate the death of Vincent Foster, Whitewater and Monica Lewinsky scandals, among other prosecutions.

The Office of the Independent Counsel is not to be confused with the U.S. Office of Special Counsel (OSC) which is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.

It should also not be confused with the "independent counsel" who is appointed by the Attorney General pursuant to United States Department of Justice regulations. 28 Code of Federal Regulations 600.1. There have been three independent counsels of this type regarding the following: the Iran/Contra investigation in 1987 (sec. 601.1); Edwin Meese III and the Wedtech case in 1987 (sec. 602.1); and President and Ms. Clinton in the Madison Guaranty/Whitewater case in 1994 (sec. 603.1). Finally, it should also not be confused with the appointment in 2003 of Patrick Fitzgerald ("United States Department of Justice Office of the Special Counsel") regarding the investigation into the public naming of CIA spy Valerie Plame. This was done pursuant to the general statutory authority of the Attorney General.