Independent Counsel Act

I

Introduction

Independent Counsel Act, law that provided for the appointment of a prosecutor, called an independent counsel, to investigate alleged crimes by high-ranking officials in the executive and legislative branches of the United States government. The Congress of the United States passed the law in 1978 as part of reforms enacted in response to the Watergate scandal that occurred during the presidency of Richard Nixon. The law expired in 1999. Independent counsels were charged with investigating high-ranking officials while remaining free from conflicts of interest and political influences. As part of this mission, the law removed independent counsels from the direct oversight of Congress and the president of the United States.

A total of 20 independent counsels were appointed under the law. They conducted investigations involving many alleged crimes by senior government officials, including drug abuse, perjury, obstruction of justice, connections to organized crime, income tax evasion, and illegal lobbying. Seven independent counsel investigations resulted in indictments.

The office of the independent counsel was controversial. Critics charged that in spite of the law’s intent, independent counsel investigations were motivated by politics, and that the office of the independent counsel unconstitutionally intruded upon the authority of the executive branch of the United States government.

II

Description of the Act

The Independent Counsel Act regulated the appointment, powers, and conduct of independent counsels. It was originally called the Special Prosecutor Act when it was enacted as part of the Ethics in Government Act of 1978. Congress passed the independent-counsel law with a provision that it would expire after five years. However, lawmakers continued to support the act, and Congress reauthorized and revised the statute in 1983, 1988, and 1994 for additional five-year periods.

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About 75 senior officials in the executive branch of the United States government were subject to independent counsel investigations, including the president, the vice president, and cabinet officials (officials who lead federal agencies and assist the president). Members of Congress could be investigated under the act, as could private individuals whom the attorney general believed could not be impartially investigated by Department of Justice officials. The chairperson and treasurer of presidential campaigns were also subject to independent counsel investigations.

The attorney general of the United States initiated independent counsel investigations. Under the Independent Counsel Act, after receiving evidence of criminal wrongdoing by a senior government official, the attorney general had 30 days to decide whether the information was “specific and credible.” Unless the attorney general could determine with certainty that the allegations were not accurate or their source was unreliable, he or she was required to conduct a preliminary investigation. Under the act, the attorney general normally had 90 days to decide whether further investigation was warranted for each possible violation.

If the attorney general believed there were “reasonable grounds” for further investigation, he or she requested a three-member panel called the Special Division to appoint an independent counsel. The chief justice of the United States selected judges from the U.S. Courts of Appeals to staff the Special Division. The three-judge panel named an independent counsel and defined the scope of the investigation. For each criminal matter that was referred to the three-judge panel, a different independent counsel was appointed. According to the statute, the independent counsel could not be a government official, had to have 'appropriate experience,' and was required to 'conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner.'

The independent counsel exercised broad investigative and prosecutorial powers. Independent counsels could subpoena witnesses, initiate grand jury proceedings, grant immunity, and initiate civil and criminal proceedings. Independent counsels could hire a staff of prosecutors, investigators, and attorneys to assist in their investigation. They could use the personnel and resources of other federal law-enforcement agencies, such as the Department of Justice and the Federal Bureau of Investigation (FBI). If necessary, independent counsels could obtain security clearances so they could review sensitive or classified information.

The scope or jurisdiction of an independent counsel’s inquiry could be expanded to other possible criminal activity that was discovered in the course of the initial investigation. Both the attorney general and the three-judge Special Division could grant the independent counsel permission to expand the inquiry. A 1996 court ruling held that the three-judge panel could expand the jurisdiction of the independent counsel despite the objections of the attorney general.

Independent counsels were required to submit annual reports to Congress about the progress of their investigations, and upon completion of their work, prepare a final report for the Special Division. If an independent counsel discovered any credible information that might constitute grounds for the impeachment of a federal official, the information had to be forwarded to the House of Representatives. The independent counsel could pursue criminal cases against officials, and Congress could opt to sanction or impeach the accused.

The duration of an independent counsel’s investigation was open-ended. The Independent Counsel Act stipulated that the attorney general could only remove an independent counsel for “good cause” or because of physical or mental incapacity. The three-judge Special Division could also terminate an independent counsel investigation.

III

History

A

Special Prosecutors and Watergate

Prior to 1978 special prosecutors were infrequently assigned to investigate alleged crimes by senior government officials. Special prosecutors were appointed by the president or by the attorney general at the president’s request. From 1875 to 1973 six presidential administrations appointed ten special prosecutors.

There was an apparent conflict of interest in these inquiries, since officials in the executive branch initiated and supervised investigations involving members of their own administration. The Watergate scandal during the administration of President Richard Nixon convinced many people that employees of the Department of Justice could not impartially investigate officials in the executive branch of the federal government. In 1973 Attorney General Elliot Richardson appointed Harvard University professor Archibald Cox as special prosecutor to investigate the 1972 burglary of the Democratic National Committee offices at the Watergate apartment and office complex. After Cox requested that the White House release audiotapes that ultimately implicated Nixon and his aides in the scandal, Nixon ordered Richardson, his attorney general, to fire Cox. Richardson refused to follow the president’s order and resigned, as did Deputy Attorney General William D. Ruckelshaus. The next official in succession, Solicitor General Robert Bork, fired Cox. The firings and resignations were subsequently nicknamed the Saturday Night Massacre. When the tapes were finally released, they revealed that Nixon and his aides had attempted to thwart the special prosecutor’s investigation, and that Nixon ordered the Federal Bureau of Investigation to end its investigations of the Watergate burglary.

B

Special Prosecutor Act of 1978

Public disapproval over the Watergate scandal led Congress to enact many reforms that were intended to increase the accountability of federal officials. Among these reforms was the Special Prosecutor Act, part of the Ethics in Government Act of 1978. The Special Prosecutor Act required that alleged serious crimes by senior government officials be investigated by a prosecutor appointed by a three-judge panel. The act’s supporters believed that an independent investigator would be free from conflicts of interest and political pressures.

The act was first invoked in 1979, when a special prosecutor investigated charges that the chief of staff to President Jimmy Carter had used cocaine. The chief of staff was not indicted.

Congress reauthorized the law after it expired in 1983 and changed its name to the Independent Counsel Act to emphasize the independent and impartial bearing of the investigation. Congress also reduced the number of officials that could be investigated under the act.