Independent counsel is a specially appointed official who investigates or prosecutes another individual when the regular prosecutor may be biased or have a conflict of interest in the case. Independent counsels have also been called special counsels, special prosecutors, and independent prosecutors.
In the United States, federal independent counsels investigate and prosecute high-level officials of the government’s executive branch and their associates. Such cases normally would be handled by the U.S. attorney general. An independent counsel may be asked, for example, to investigate the president of the United States so that the attorney general does not have to do so. In such a case, the attorney general might be biased in favor of the president, who appointed him or her.
The attorney general appoints an independent counsel after determining that a case requires one. The independent counsel may prosecute the case in federal court. If the charges are against the president, the counsel investigates the charges and may refer them to the House of Representatives for possible impeachment hearings.
A special federal Office of Independent Counsel existed from 1978 to 1999. Congress created the office in the Ethics in Government Act of 1978. It passed the law after President Richard M. Nixon in 1973 ordered Attorney General Elliot L. Richardson to interfere in a federal investigation of Nixon’s role in the Watergate scandal. Congress hoped creation of the office would prevent future interference in such investigations.
The Ethics in Government Act required the attorney general to request the appointment of an independent counsel in certain cases. In those cases, the attorney general referred the charges against the accused official to a special panel of federal judges. The panel then appointed the independent counsel.
In the 1980’s and early 1990’s, Independent Counsel Lawrence E. Walsh investigated executive branch activities in the Iran-contra affair. Walsh determined that there had been violations of law in the Administration of President Ronald Reagan. But Walsh’s long, expensive investigation resulted in no major convictions. As a result, some people began to question the usefulness of the federal Office of Independent Counsel.
In 1998, Independent Counsel Kenneth Starr’s investigation of President Bill Clinton led the House of Representatives to impeach Clinton on charges of perjury and obstruction of justice. The Senate acquitted Clinton in February 1999. The high cost and broad scope of Starr’s investigation brought increasing calls for changes in—or the abolition of—the Office of Independent Counsel. Some people complained that political parties used the office to attack elected officials from other parties. In June 1999, Congress allowed the independent counsel provisions of the Ethics in Government Act to expire.
In 2017, Special Counsel Robert Mueller began an investigation into Russian meddling in the 2016 U.S. presidential election. Investigators looked into possible collusion (secret agreements) between Russian officials and campaign associates of Republican Donald J. Trump, who was elected president. The investigation ended in 2019 with no charges against Trump. In 2022, Special Counsel Jack Smith was appointed to oversee Justice Department investigations of Trump’s attempts to change the outcome of the 2020 election; his role in the Jan. 6, 2021, attack on the U.S. Capitol; and his handling of classified documents after he left the presidency.
Laws of many U.S. states provide for special prosecutors at the local level when a relative or close associate of a district attorney is accused of a crime. The governor or attorney general of some states may remove the district attorney from the case and appoint a special prosecutor. Similar procedures exist in many other countries. In England and Wales, for example, the director of public prosecutions may replace a prosecutor with one from another geographic area in some cases.
See also Clinton, Bill (Domestic events); Iran-contra affair; Richardson, Elliot Lee; Starr, Kenneth Winston; Watergate.
