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.

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.