a primer on the independent counsel law

Jim Mokhiber provided reporting and research for "Secrets of an Independent Counsel."

This report was written in May 1998. The independent counsel statute expired on June 30, 1999. The new Justice Department rules eliminate the complex statutory requirements of the Ethics in Government Act described here, and grant the Attorney General far more discretion in deciding whether to appoint an outside prosecutor.

Originally drafted in 1978 as part of the post-Watergate reform package known as the Ethics in Government Act, the central purpose of the Independent Counsel Act has been to remove the conflict of interest inherent in any effort by the executive branch to investigate its own top officials.

The law applies primarily to fifty or so high-level executive branch officials, including the President. Two discretionary clauses extend the reach of the law: first, the Attorney General may initiate an independent counsel investigation of Members of Congress "when it is in the public interest" to do so; second, the Attorney General may invoke the law when an investigation of a person by the Department of Justice could result in "a personal, financial or political conflict of interest." In addition, other individuals not named in the statute are often pulled into the investigation as prosecutors make their case against a covered official.

Whenever the Attorney General "receives information sufficient to constitute grounds to investigate" a covered official, he or she initiates an initial, or "threshold," inquiry. If after thirty days the Attorney General determines that the charges are not specific, or that their source is not credible, no further action is taken. Otherwise, the Attorney General begins a "preliminary investigation" of up to ninety days, extendable once for up to sixty days. This investigation, however, is conducted without many of the standard investigator's tools, including subpoenas, grand juries, plea bargains and grants of immunity. After this period, the Attorney General must decide whether there are reasonable grounds for recommending the appointment of an independent counsel. If not, the Attorney General is obliged to take no further action. Her decision is unreviewable, though new information might trigger a new preliminary investigation.

If she decides there are reasonable grounds for further investigation, the Attorney General turns to the body commonly known as the Special Division, a panel of three federal appellate court judges charged with appointing all independent counsels. As part of this "application" to the Special Division, the Attorney General also makes a recommendation as to the prosecutorial and investigative jurisdiction of the proposed independent counsel.

The Special Division then appoints an independent counsel of its choosing, reportedly selecting from a "talent book" which it maintains. Under the statute, the independent counsel cannot be a government official, and must be "an individual who has appropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible and cost-effective manner." The Special Division then provides her or him with a charter setting forth the independent counsel's jurisdiction. The subject and scope of the investigation, and the identity of the independent counsel, are not routinely released to the public, though press attention has in most instances persuaded the Attorney General and the Special Division to provide such information. Several investigations, however, have never been made public.

After being sworn in by the Special Division, the new independent counsel sets up office and assembles a staff of prosecutors and investigators. Prosecutors are often recruited from the Justice Department or the United States Attorney offices located across the country. Federal Bureau of Investigation (FBI) agents and other investigative staff are often detailed to the IC's offices. The independent counsel then begins to investigate her or his case, using a wide variety of prosecutorial techniques. If during the course of the investigation the independent counsel discovers a need for looking into matters not originally mentioned in the charter, she or he may decide to seek the authority to do so in one of two ways. In the case of broad new areas of inquiry, the independent counsel may request an "expansion of jurisdiction" from the Attorney General, who is required to "give great weight" to the independent counsel's recommendation. The Attorney General's decision is not reviewable. For more narrow departures from an independent counsel's mandate, the Special Division recently affirmed that he or she may opt to seek a "referral of a related matter" from either the Attorney General or the Special Division. In addition, the Attorney General may herself elect to refer matters to the independent counsel. In this way, the scope of the investigation may grow beyond the limits put forth in the original statement of jurisdiction.

The independent counsel receives virtually all of the investigative and prosecutorial powers of the Attorney General and other prosecutors and officials of the Department of Justice. He or she is empowered to pursue criminal matters in virtually any venue. In matters involving possible impeachment proceedings, the independent counsel is required to pass along "any substantial and credible information" to the House of Representatives.

As the name implies, the independent counsel works outside of the Department of Justice system. Nevertheless, the IC is required to comply with Justice Department policies "except to the extent that doing so would be inconsistent with the purposes" of the law. Over the years, several forms of oversight have been included in the law. ICs are required to file annual reports with Congress and a final report with the Special Division. They are also required to submit expense reports, and to submit to General Accounting Office (GAO) audits every six months. An independent counsel can be removed from office by the Attorney General "only for good cause, physical or mental disability...or any other condition that substantially imparis the performance of such independent counsel's duties." The independent counsel may appeal such decisions, however, to the U.S. District Court for the District of Columbia.

More about the independent counsel procedures:
a diagram of the independent counsel process; the text of the independent counsel statute


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