What is the Special Division?

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

This report was written in May 1998. The independent counsel statute creating the Special Division described here expired on June 30, 1999.

In 1978, Congress created a new judicial mechanism charged with appointing special prosecutors to investigate executive branch criminal activity. This three-judge panel, formally entitled the "Division for the Purpose of Appointing Independent Counsels," is better known today as simply the "Special Division."

Based at the federal court building in Washington, the Special Division's primary duty is to select an independent counsel when it receives the Attorney General's request to do so in a particular matter. The process of selecting an independent counsel is conducted in secret, and little is known of the policies and procedures the panel uses to make its decisions. Under the independent counsel statute, the Special Division is only required to select someone with "appropriate experience...who will conduct the investigation in a prompt, responsible and cost-effective manner."

The Chief Justice of the Supreme Court, Justice William Rehnquist, directly appoints the three federal appellate court judges who sit on the panel. The presiding judge is currently the District of Columbia Circuit's Judge David Sentelle. Two other federal appellate court justices, not based in Washington, also sit on the panel: Senior Judge John Butzner Jr. of the Fourth Circuit and Senior Judge Peter Fay of the Eleventh Circuit. All are currently serving two-year terms set to expire in October 1998, though they may be reappointed.

While the Special Division appoints independent counsels, and receives their final reports, it exercises little day-to-day authority over their investigations.

In recent years, however, the Special Division has exercised a previously untested power to widen the scope of an independent counsel's investigation. Two independent counsels have invoked statutory provisions and asked the Special Division -- and not the Attorney General -- to refer "related matters" to them. In September, 1994, the Special Division quietly approved Independent Counsel Kenneth Starr's request for jurisdiction over Rose Law Firm billing issues involving Webster Hubbell. In 1996, the Special Division rejected Justice Department objections and granted Independent Counsel Donald Smaltz authority to investigate associates of Agriculture Secretary Mike Espy.

Though it formerly worked out of sight, the Special Division recently has been pulled into the media and political spotlights focussed intensely on the independent counsel. As if reading from Justice Scalia's 1988 Supreme Court dissent in Morrison v. Olson, some critics have accused the Special Division of partisanship in charges that date back to 1994. In that year, the Special Division made the surprise announcement that Kenneth Starr would replace Robert Fiske Jr. as head of the Whitewater probe. Attorney General Janet Reno had appointed Fiske directly during a period when the independent counsel law had been allowed to lapse. In naming Starr, the panel claimed to be reaffirming the principle that the executive branch should have no hand in appointing independent counsels. However charges soon emerged that Judge Sentelle, formerly an active Republican, had acted in a partisan manner in naming Starr shortly after a lunch meeting with two of Fiske's critics, North Carolina Senators Lauch Faircloth and Jesse Helms. Formal complaints about the meeting were dismissed by the chief judge of the District of Columbia Circuit in late 1994, and his decision was later endorsed by the D.C. Circuit Judicial Council. Nevertheless, in January of 1998 First Lady Hillary Clinton again referred to the charges in her nationally-televised remarks about a "vast right-wing conspiracy" against the President.


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