United States Department of Justice Office of Special Counsel
The Office of Special Counsel was a prosecutorial unit within the United States Department of Justice that operated from 1978 until the expiration of its statutory authority on December 31, 1999. Created by the Ethics in Government Act of 1978, the office enabled the appointment of an independent counsel—a lawyer outside the Department's ordinary chain of command—tasked with investigating and, when warranted, prosecuting allegations of misconduct by high‑level federal officials.
When the relevant provisions of the Act lapsed, the position was supplanted by the role of special counsel established under 28 CFR part 600. Those regulations—drafted in 1999 by then‑Acting Solicitor General Neal Katyal—authorize the attorney general (or acting attorney general) to appoint a special counsel whenever a matter presents a conflict of interest for the Department or when an outside prosecutor would better serve the public interest.
Under the now‑defunct statute, an independent counsel was required—pursuant to 28 U.S.C. § 595—to submit a comprehensive final report to the United States Congress explaining investigative findings and the rationale for any prosecutorial decisions.
History
[edit]Creation in response to Watergate (1978)
[edit]In the aftermath of the Watergate scandal—and the related Saturday Night Massacre—a Democratic‑led Congress sought stronger checks on executive power. The result was the Ethics in Government Act of 1978, which authorized a court‑appointed **special prosecutor** (renamed **independent counsel** in 1983) to investigate senior federal officials and national campaign figures outside the normal Department of Justice chain of command.
Appointed by a three‑judge panel of the United States Court of Appeals for the District of Columbia Circuit, an independent counsel received an unlimited budget, no statutory time limit, and could be removed only for "good cause" by the attorney general. Although designed to ensure impartiality, critics—most prominently Antonin Scalia in his lone dissent in Morrison v. Olson (1988)—argued that the post created a "fourth branch" unaccountable to the Constitution.
Notable independent‑counsel investigations (1983–1999)
[edit]- **Iran–Contra (1987).** Independent Counsel Lawrence Walsh investigated clandestine arms sales to Iran and diversion of proceeds to Nicaraguan rebels.
- **Wedtech / Edwin Meese III (1987).** Inquiry into allegations that the attorney general had aided a defense contractor for personal gain.
- **Madison Guaranty / Whitewater (1994).** Independent Counsel Kenneth Starr's probe into Arkansas real‑estate dealings expanded, culminating in a referral that led to the impeachment of President Bill Clinton by the United States House of Representatives (the Senate later acquitted him).
- **Mike Espy gifts probe (1994).** Under the 1994 reauthorization, Attorney General Janet Reno asked the court to appoint Donald Smaltz to investigate Agriculture Secretary Espy's acceptance of gifts from parties with business before the Department, with authority to pursue any related crimes uncovered.
The Act's authority lapsed on December 31, 1999, automatically terminating the office.
Transition to the special‑counsel model (1999–present)
[edit]Congress allowed the statute to expire, and the Department adopted 28 CFR part 600, drafted by then–Acting Solicitor General Neal Katyal, to govern **special counsel** appointments.
- **Valerie Plame leak (2003).** Patrick Fitzgerald was named special counsel to investigate the public exposure of the CIA officer's identity.
- **Russian–interference probe (2017–2019).** Robert Mueller examined Russian efforts to influence the 2016 election and links to the Trump campaign.
- **Crossfire Hurricane review (2020).** Attorney General William Barr converted federal prosecutor John Durham's inquiry into a special‑counsel investigation of the FBI's 2016 counterintelligence probe.
- **Trump‑related matters (2022).** Attorney General Merrick Garland appointed Jack Smith to oversee investigations into classified documents retained at Mar‑a‑Lago and efforts to overturn the 2020 election.
Today, the special‑counsel mechanism—rooted in 28 USC § 510 and implemented through part 600—remains the Department's primary tool for handling politically sensitive investigations that present a conflict of interest for its regular hierarchy.
Timeline
[edit]- October 26, 1978: The Ethics in Government Act is signed into law, establishing the Office of Independent Counsel.
- January 3, 1983: Congress passes amendments to refine the office's authority under the Ethics in Government Act Amendments of 1982 (96 Stat. 2039).
- December 15, 1987: The law is reauthorized for five more years under the Independent Counsel Reauthorization Act of 1987 (101 Stat. 1293).
- December 15, 1992: The statute lapses after Congress fails to pass a reauthorization bill.
- June 30, 1994: Congress reinstates the independent counsel provisions by passing the Independent Counsel Reauthorization Act of 1994 (103
).
- June 30, 1999: The reauthorization expires and Congress allows the statute to sunset.
- Late 1999: The Office of Independent Counsel is formally phased out. Its investigative function is replaced by the special counsel system defined under 28 CFR part 600.
Investigations carried out by independent counsel
[edit]| Name | Start | End | Topic | Appointer | ||
|---|---|---|---|---|---|---|
| John Henderson | June 1, 1875 | December 10, 1875 | Whiskey Ring | Ulysses Grant (President) | ||
| James Broadhead | January 1876 | March 1876 | ||||
| William Cook | June 1881 | September 1882 | Star Route scandal | James Garfield (President) | ||
| Holmes Conrad | June 1903 | June 1904 | Bribery at the United States Post Office Department | Teddy Roosevelt (President) | ||
| Charles Bonaparte | ||||||
| Francis Heney | October 1903 | January 1, 1905 | Oregon land fraud scandal | Philander Knox (Attorney General) | ||
| Atlee Pomerene | February 16, 1924 | June 1931 | Teapot Dome scandal | Calvin Coolidge (President) | ||
| Owen Roberts | 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 | Edward Levi (Attorney General) | |||
| Arthur Christy | November 29, 1979 | May 28, 1980 | Allegations of illegal drug use of Jimmy Carter's aide Hamilton Jordan | DC Circuit Court | ||
| Paul Curran | March 23, 1979 | October 16, 1979 | Carter business loans | Griffin Bell (Attorney General) | ||
| Gerald Gallinghouse | September 9, 1980 | March 1981 | Allegations of illegal drug use of Jimmy Carter's aide Timothy Kraft | DC Circuit Court | ||
| Leon Silverman | December 29, 1981 | September 13, 1982 | Raymond Donovan's connections to organized crime | |||
| Jacob Stein | April 2, 1984 | September 21, 1984 | Ed Meese financial improprieties | |||
| Jim McKay | April 23, 1986 | May 29, 1986 | Ted Olson obstruction of Congress's Superfund investigation | |||
| Alexia Morrison | May 29, 1986 | March 14, 1989 | ||||
| Mike Seymour | May 29, 1986 | August 6, 1989 | Michael Deaver conflict of interest and lobbying | |||
| Lawrence Walsh | December 19, 1986 | August 4, 1993 | Iran-Contra affair | |||
| Carl Rauh | December 19, 1986 | March 30, 1987 | Lawrence Wallace's personal tax matters | |||
| James Harper | August 17, 1987 | December 18, 1987 | ||||
| Jim McKay | February 3, 1987 | September 1988 | Wedtech scandal | |||
| Unknown | May 31, 1989 | August 23, 1989 | Under seal | |||
| Arlin Adams | March 1, 1990 | May 1995 | Samuel Pierce's mismanagement and fraud of programs at the U.S. Department of Housing and Urban Development | |||
| Larry Thompson | July 3, 1995 | October 27, 1998 | ||||
| Unknown | April 19, 1991 | July 15, 1992 | Under seal | |||
| Nicholas Bua | November 14, 1991 | March 1993 | Inslaw scandal | Bill Barr (Attorney General) | ||
| Malcolm Wilkey | March 20, 1992 | December 17, 1992 | House banking scandal | |||
| Frederick Lacey | October 16, 1992 | December 8, 1992 | Iraqgate | |||
| Joe diGenova | December 14, 1992 | January 11, 1996 | Improper search of Bill Clinton's passport records by George H. W. Bush administration staff on behalf of his 1992 presidential reelection campaign | DC Circuit Court | ||
| Michael Zeldin | January 11, 1996 | August 12, 1998 | ||||
| Bob Fiske | January 24, 1994 | August 5, 1994 | Suicide of Vince Foster, the Whitewater scandal, Travelgate, Filegate, and later the Clinton-Lewinsky scandal | Janet Reno (Attorney General) | ||
| Ken Starr | August 5, 1994 | September 11, 1998 | DC Circuit Court | |||
| Robert Ray | September 11, 1998 | March 13, 2002 | ||||
| Julie Thomas | March 13, 2002 | September 30, 2004 | ||||
| Don Smaltz | September 9, 1994 | October 25, 2001 | Allegations of corrupt gratuity by Mike Espy | |||
| David Barrett | May 24, 1995 | January 19, 2006 | Henry Cisneros payments controversy | |||
| Daniel Pearson | July 6, 1995 | November 14, 1996 | Commerce Department trade mission controversy | |||
| Curtis von Kann | November 27, 1996 | December 19, 1997 | Eli Segal's conflicts of interest | |||
| Carol Elder Bruce | March 19, 1998 | August 22, 2000 | 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 | April 5, 2000 | Charges of influence-peddling and the solicitation of illegal campaign contributions against Alexis Herman | |||
| John Danforth | September 9, 1999 | November 8, 2000 | Waco siege | Janet Reno (Attorney General) | ||
| Patrick Fitzgerald | December 30, 2003 | March 6, 2008 | 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 | October 19, 2020 | May 15, 2023 | Counter-investigation of the origins of the FBI's Crossfire Hurricane probe | Bill Barr (Attorney General) | ||
| Jack Smith | November 18, 2022 | January 10, 2025 | Donald Trump's attempts to delay the certification of the 2020 United States presidential election and his mishandling of files recovered during the FBI search of Mar-a-Lago | Merrick Garland (Attorney General) | ||
| Robert K. Hur | January 12, 2023 | February 5, 2024 | Investigation of the Joe Biden classified documents incident | |||
| David Weiss | August 11, 2023 | present | Hunter Biden scandal | |||
See also
[edit]References
[edit]External links
[edit]- United States Office of the Independent Counsel Official
- Final Report of Independent Counsel Walsh (August 4, 1993)
- Final Report of the Independent Counsel (March 2002)
- Final Report of Independent Counsel Starr
- IC Starr's Referral Report to Congress (September 9, 1998)
- Report of Independent Counsel Smaltz (October 2001)
- NARA Archives of the Independent Counsels
- Report on the Death of Vincent W. Foster, Jr,/by the Office of Independent Counsel in Re Madison Guaranty Savings and Loan Association HATI Trust Digital Library, Universities of Michigan and Purdue, the complete 137 page, 2 vol. report with app., footnotes, and exhibits.