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TheOffice of Special Counsel was an office of theUnited States Department of Justice established by provisions in theEthics in Government Act that expired in 1999. The provisions were replaced by Department of Justice regulation28 CFR Part 600,[1] which created the successor office ofspecial counsel. The current regulations were drafted by former acting solicitor generalNeal Katyal.[2]
Theindependent counsel was an independentprosecutor—distinct from theattorney general of theUnited States Department of Justice—who provided reports to theUnited States Congress under28 U.S.C. § 595.
In 1978, aDemocratic Party-majority Congress was determined to curb the powers of thepresident and other senior executive branch officials due in part to theWatergate scandal and related events such as theSaturday Night Massacre. They drafted and passed theEthics in Government Act of 1978, creating a special prosecutor (later changed to independent counsel) position, which could be used by Congress or the attorney general to investigate individuals holding or formerly holding certain high positions in the federal government and in national presidential election campaign organizations.
The prosecutor, who was appointed by a special panel of theUnited States Court of Appeals for the District of Columbia Circuit, could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could be dismissed only by theattorney general for "good cause" or by the special panel of the court when the independent counsel's task was completed. The president could not dismiss those investigating the executive branch. It was felt that the independence of the office would ensure impartiality of any reports presented to Congress. However, there have been critics of this law includingSupreme Court JusticeAntonin Scalia.[3] Many[who?] argued the new independent counsel's office was a sort of "fourth branch" of government that had virtually unlimited powers and was answerable to no one. However, the constitutionality of the new office was ultimately upheld in the 1988 Supreme Court caseMorrison v. Olson.
Previously under the Independent Counsel Reauthorization Act of 1994, United States Attorney GeneralJanet Reno hadDonald Smaltz appointed Independent Counsel by theUnited States Court of Appeals for the District of Columbia (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended, Division 94-2) on September 9, 1994, to "investigate to the maximum extent authorized bylaw" whether theUS Department of Agriculture SecretaryMike Espy "committed a violation of any federal criminal law . . . relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture." Smaltz was also given jurisdiction to investigate "other allegations or evidence of violations of any federal criminal law by organizations or individuals developed during the course of the investigation of Secretary Espy and connected with or arising out of that investigation."
The most famous independent counsel wasKenneth Starr, whose report led to theimpeachment of PresidentBill Clinton by theUnited States House of Representatives,[4] though he was later acquitted by theUnited States Senate.
Three independent counsel investigations had jurisdictions that were specified in regulations: theIran–Contra investigation in 1987 (28Code of Federal Regulations sec. 601.1);Edwin Meese III, theWedtech case in 1987 (sec. 602.1), and President Bill and First Lady Hillary Clinton in theMadison Guaranty/Whitewater case in 1994 (sec. 603.1).
After the expiration of theEthics in Government Act in 1999, the Office of Independent Counsel was replaced with the Office ofSpecial Counsel, defined by regulation 28 CFR 600, which in turn is based on congressional statute 28 USC 510.
Patrick Fitzgerald was appointed Special Counsel in 2003 regarding the investigation into the public naming of CIA spyValerie Plame.[5] His appointment was based on 28 USC 510.
Under 28 CFR 600,[6]Robert Mueller was appointed Special Counsel in 2017to investigate possible interference by the Russian government in the2016 presidential election, including a possiblecriminal conspiracy between Russia and thepresidential campaign of Donald Trump.[7] The investigation was officially concluded on March 22, 2019. The report concluded that the RussianInternet Research Agency'ssocial media campaign supported Trump's presidential candidacy while attacking Clinton's, and Russian intelligencehacked and released damaging material from theClinton campaign and various Democratic Party organizations.[8] The investigation "identified numerous links between the Russian government and the Trump campaign", and determined that the Trump campaign "expected it would benefit electorally" from Russian hacking efforts. However, ultimately "the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities".[9][10][11] Mueller later said that the investigation's conclusion on Russian interference "deserves the attention of every American".[12]
In 2019 Attorney GeneralWilliam Barr appointed a federal prosecutor,John Durham, to counter-investigate the origins of the FBI'sCrossfire Hurricane probe.[13] On December 1, 2020, the Associated Press reported that Barr had appointed Durham as a special counsel under the federal statute governing such appointments to conduct an investigation into "…the investigation of Special Counsel Robert S. Mueller III," by which was meant the FBI personnel who worked on Crossfire Hurricane before joining the Mueller team.[14]
| Name | Start | End | Topic | Appointer | ||
|---|---|---|---|---|---|---|
| John Henderson | June 1, 1875[15] | December 10, 1875 | Whiskey Ring | Ulysses Grant (President) | ||
| James Broadhead | January 1876[16] | March 1876 | ||||
| William Cook | June 1881[15] | September 1882 | Star Route scandal | James Garfield (President) | ||
| Holmes Conrad | June 1903[15] | June 1904 | Bribery at theUnited States Post Office Department | Teddy Roosevelt (President) | ||
| Charles Bonaparte | ||||||
| Francis Heney | October 1903[17] | January 1, 1905 | Oregon land fraud scandal | Philander Knox (Attorney General) | ||
| Atlee Pomerene[18] | February 16, 1924 | June 1931 | Teapot Dome scandal | Calvin Coolidge (President) | ||
| Owen Roberts[18] | February 18, 1924 | June 2, 1930 | ||||
| Newbold Morris | February 1, 1952 | April 3, 1952 | DOJ corruption allegations | Howard McGrath (Attorney General) | ||
| Archibald Cox | May 18, 1973 | October 20, 1973 | Watergate scandal | Elliot Richardson (Attorney General) | ||
| Leon Jaworski | November 1, 1973 | October 25, 1974 | Bob Bork (Acting Attorney General) | |||
| Hank Ruth | October 25, 1974 | October 17, 1975 | William Saxbe (Attorney General) | |||
| Chuck Ruff | October 17, 1975 | June 20, 1977[16] | Edward Levi (Attorney General) | |||
| Arthur Christy | November 29, 1979[19] | May 28, 1980[20] | Allegations of illegal drug use ofJimmy Carter's aideHamilton Jordan | DC Circuit Court | ||
| Paul Curran | March 23, 1979[16] | October 16, 1979[16] | Carter business loans | Griffin Bell (Attorney General) | ||
| Gerald Gallinghouse | September 9, 1980[19] | March 1981[21] | Allegations of illegal drug use ofJimmy Carter's aideTimothy Kraft | DC Circuit Court | ||
| Leon Silverman | December 29, 1981[19] | September 13, 1982[22] | Raymond Donovan's connections to organized crime | |||
| Jacob Stein | April 2, 1984[19] | September 21, 1984[23] | Ed Meese financial improprieties | |||
| Jim McKay | April 23, 1986[19] | May 29, 1986[24] | Ted Olson obstruction of Congress'sSuperfund investigation | |||
| Alexia Morrison | May 29, 1986[19] | March 14, 1989 | ||||
| Mike Seymour | May 29, 1986[19] | August 6, 1989 | Michael Deaver conflict of interest and lobbying | |||
| Lawrence Walsh | December 19, 1986[19] | August 4, 1993 | Iran-Contra affair | |||
| Carl Rauh | December 19, 1986[19] | March 30, 1987[25] | Lawrence Wallace's personal tax matters[16] | |||
| James Harper | August 17, 1987[19] | December 18, 1987 | ||||
| Jim McKay | February 3, 1987[26] | September 1988[27] | Wedtech scandal | |||
| Unknown | May 31, 1989[19] | August 23, 1989 | Under seal | |||
| Arlin Adams | March 1, 1990[19] | May 1995 | Samuel Pierce's mismanagement and fraud of programs at theU.S. Department of Housing and Urban Development | |||
| Larry Thompson | July 3, 1995[19] | October 27, 1998[28] | ||||
| Unknown | April 19, 1991[19] | July 15, 1992 | Under seal | |||
| Nicholas Bua[29] | November 14, 1991[30] | March 1993[31] | Inslaw scandal | Bill Barr (Attorney General) | ||
| Malcolm Wilkey[32] | March 20, 1992[33] | December 17, 1992[34] | House banking scandal | |||
| Frederick Lacey[32] | October 16, 1992[16] | December 8, 1992[16] | Iraqgate | |||
| Joe diGenova | December 14, 1992[19] | January 11, 1996 | Improper search ofBill Clinton's passport records byGeorge H. W. Bush administration staff on behalf of his1992 presidential reelection campaign | DC Circuit Court | ||
| Michael Zeldin | January 11, 1996[19] | August 12, 1998[35] | ||||
| Bob Fiske | January 24, 1994[19] | August 5, 1994 | Suicide of Vince Foster, theWhitewater scandal,Travelgate,Filegate, and later theClinton-Lewinsky scandal | Janet Reno (Attorney General) | ||
| Ken Starr | August 5, 1994[19] | September 11, 1998 | DC Circuit Court | |||
| Robert Ray | September 11, 1998[19] | March 13, 2002 | ||||
| Julie Thomas | March 13, 2002[19] | September 30, 2004[36] | ||||
| Don Smaltz | September 9, 1994[19] | October 25, 2001[37] | Allegations of corrupt gratuity byMike Espy | |||
| David Barrett | May 24, 1995[19] | January 19, 2006[38] | Henry Cisneros payments controversy | |||
| Daniel Pearson | July 6, 1995[19] | November 14, 1996 | Commerce Department trade mission controversy | |||
| Curtis von Kann | November 27, 1996[19] | December 19, 1997 | Eli Segal's conflicts of interest | |||
| Carol Elder Bruce | March 19, 1998[19] | August 22, 2000[39] | Bruce Babbitt and allegations of public corruption surrounding the Department of Interior's denial of a casino contract to an Indian Nation and the truth or falsity of testimony to a Senate Committee concerning the official conduct | |||
| Ralph Lancaster | May 26, 1998[19] | April 5, 2000[40] | Charges of influence-peddling and the solicitation of illegal campaign contributions againstAlexis Herman | |||
| John Danforth | September 9, 1999[41] | November 8, 2000 | Waco siege | Janet Reno (Attorney General) | ||
| Patrick Fitzgerald | December 30, 2003 | March 6, 2008[16] | Plame affair | Jim Comey (Deputy Attorney General) | ||
| Bob Mueller | May 17, 2017 | May 29, 2019 | Investigation into possible interference by the Russian government in the 2016 presidential election, which include a possible criminal conspiracy between the Russian government and the presidential campaign of Donald Trump | Rod Rosenstein (Deputy Attorney General) | ||
| John Durham[42] | October 19, 2020 | May 15, 2023 | Counter-investigation of the origins of the FBI'sCrossfire Hurricane probe | Bill Barr (Attorney General) | ||
| Jack Smith | November 18, 2022 | January 10, 2025 | Donald Trump's attempts to delay the certification of the2020 United States presidential election and hismishandling of files recovered during theFBI search of Mar-a-Lago | Merrick Garland (Attorney General) | ||
| Robert K. Hur | January 12, 2023 | February 5, 2024[43] | Investigation of theJoe Biden classified documents incident | |||
| David Weiss | August 11, 2023 | January 17, 2025 | Hunter Biden scandal | |||