United States Department of Justice Office of Special Counsel

For other United States offices of special counsel, see U.S. Office of Special Counsel (disambiguation).

Not to be confused with United States Office of Special Counsel.

The Office of Special Counsel was an office of the United States Department of Justice established by provisions in the Ethics in Government Act that expired in 1999. The provisions were replaced by Department of Justice regulation 28 CFR Part 600,^[1] which created the successor office of special counsel. The current regulations were drafted by former acting solicitor general Neal Katyal.^[2]

The independent counsel was an independent prosecutor—distinct from the attorney general of the United States Department of Justice—who provided reports to the United States Congress under 28 U.S.C. § 595.

History

In 1978, a Democratic Party-majority Congress was determined to curb the powers of the president and other senior executive branch officials due in part to the Watergate scandal and related events such as the Saturday Night Massacre. They drafted and passed the Ethics 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 the United 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 the attorney 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 including Supreme Court Justice Antonin 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 case Morrison v. Olson.

Previously under the Independent Counsel Reauthorization Act of 1994, United States Attorney General Janet Reno had Donald Smaltz appointed Independent Counsel by the United 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 by law" whether the US Department of Agriculture Secretary Mike 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 was Kenneth Starr, whose report led to the impeachment of President Bill Clinton by the United States House of Representatives,^[4] though he was later acquitted by the United States Senate.

Three independent counsel investigations had jurisdictions that were specified in regulations: the Iran–Contra investigation in 1987 (28 Code of Federal Regulations sec. 601.1); Edwin Meese III, the Wedtech case in 1987 (sec. 602.1), and President Bill and First Lady Hillary Clinton in the Madison Guaranty/Whitewater case in 1994 (sec. 603.1).

After the expiration of the Ethics in Government Act in 1999, the Office of Independent Counsel was replaced with the Office of Special 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 spy Valerie Plame.^[5] His appointment was based on 28 USC 510.

Under 28 CFR 600,^[6] Robert Mueller was appointed Special Counsel in 2017 to investigate possible interference by the Russian government in the 2016 presidential election, including a possible criminal conspiracy between Russia and the presidential campaign of Donald Trump.^[7] The investigation was officially concluded on March 22, 2019. The report concluded that the Russian Internet Research Agency's social media campaign supported Trump's presidential candidacy while attacking Clinton's, and Russian intelligence hacked and released damaging material from the Clinton 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 General William Barr appointed a federal prosecutor, John Durham, to counter-investigate the origins of the FBI's Crossfire 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]

Timeline

• Originally created by the Ethics in Government Act of 1978 and the Ethics in Government Act Amendments of 1982 (96 Stat. 2039), January 3, 1983
• Reauthorized for five years by the Independent Counsel Reauthorization Act of 1987 (101 Stat. 1293), December 15, 1987
• Lapsed, December 15, 1992, by failure of reauthorization
• Reinstituted by the Independent Counsel Reauthorization Act of 1994 (PL 103-270), June 30, 1994
• Converted into the Office of the Special Counsel end of 1999.

Investigations carried out by independent counsel

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 the United 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 of Jimmy Carter's aide Hamilton 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 of Jimmy Carter's aide Timothy 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's Superfund 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 the U.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 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[19]	August 12, 1998[35]
	Bob Fiske	January 24, 1994[19]	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[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 by Mike 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 against Alexis 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's Crossfire Hurricane probe		Bill Barr (Attorney General)
	Jack Smith	November 18, 2022	present	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[43]	Investigation of the Joe Biden classified documents incident
	David Weiss	August 11, 2023	present	Hunter Biden scandal

See also

• Mueller special counsel investigation

References

1. "28 CFR Part 600 – General Powers of Special Counsel". LII / Legal Information Institute.
2. "Could Trump Remove Special Counsel Robert Mueller? Lessons from Watergate". Lawfare. May 23, 2017. Retrieved January 3, 2018.
3. Greenhouse, Linda (September 1, 2016). "The President, the Prosecutor, and the Wheel of Fortune". The New York Times.
4. Mitchell, Alison (December 20, 1998). "Impeachment: The Overview – Clinton Impeached; He Faces a Senate Trial, 2d in History; Vows to Do Job Till Term's 'last Hour'". The New York Times.
5. "USDOJ: Office of Special Counsel". February 13, 2007. Archived from the original on February 13, 2007.
6. "APPOINTMENT OF SPECIAL COUNSEL TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE 2016 PRESIDENTIAL ELECTION AND RELATED MATTERS". The United States Department of Justice. Archived from the original on May 20, 2019. Retrieved November 8, 2018.
7. Ruiz, Rebecca R.; Landler, Mark (May 17, 2017). "Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation". The New York Times.
8. Mackey, Robert; Risen, James; Aaronson, Trevor (April 18, 2019). "Annotating special counsel Robert Mueller's redacted report". The Intercept. Retrieved April 23, 2019.
9. Ostriker, Rebecca; Puzzanghera, Jim; Finucane, Martin; Datar, Saurabh; Uraizee, Irfan; Garvin, Patrick. "What the Mueller report says about Trump and more". The Boston Globe. Retrieved April 22, 2019.
10. Law, Tara. "Here Are the Biggest Takeaways From the Mueller Report". Time. Retrieved April 22, 2019.
11. Mueller Report, vol. II, p.2: Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
12. LaFraniere, Sharon; Sullivan, Eileen (May 29, 2019). "Mueller, in First Comments on Russia Inquiry, Declines to Clear Trump". The New York Times.
13. Johnson, Kevin (May 14, 2019). "Attorney General taps top Connecticut federal prosecutor for review of Trump-Russia inquiry". USA TODAY. Retrieved May 17, 2019.
14. Balsamo, Michael; Tucker, Eric (December 1, 2020). ""Barr Appoints Special Counsel in Russia Probe Investigation"".
15. "OIC Smaltz: Speeches and Articles: Georgetown Law Journal: A View From Inside". govinfo.library.unt.edu. Retrieved November 24, 2023.
16. "Special Investigations Involving US Presidents and Their Administrations Since 1973". May 18, 2023. Archived from the original on October 4, 2023.
17. O'Callaghan, Jerry A. (August 1952). "Senator Mitchell and the Oregon Land Frauds, 1905". Pacific Historical Review. 21 (3): 255–261. doi:10.2307/3634224. JSTOR 3634224. Retrieved September 7, 2023.
18. "A summary of the Teapot Dome scandal from the Brookings Institution".
19. "The Office - Independent Counsel Investigations, 1978 To The Present | Secrets Of An Independent Counsel | FRONTLINE | PBS". www.pbs.org. Retrieved November 24, 2023.
20. Jr, George Lardner (May 29, 1980). "Grand Jury Clears Jordan". Washington Post. ISSN 0190-8286. Retrieved November 24, 2023.
21. "A report prepared by the subcommittee on oversight of government management of the committee on governmental affairs United States Senate" (PDF). www.ojp.gov. October 1981.
22. Margolick, David (September 14, 1982). "Man in the News; Donnovan Inquiry Chief Leon Silverman". The New York Times.
23. "Excerpts from Report of Independent Counsel on Charges Against Meese". The New York Times. September 21, 1984.
24. Thornton, Mary (May 30, 1986). "Independent Counsel Quits to Avoid Conflict". Washington Post. ISSN 0190-8286. Retrieved November 24, 2023.
25. Marcus, Ruth (December 19, 1987). "JUSTICE OFFICIAL WON'T BE CHARGED IN TAX CASE". Washington Post. ISSN 0190-8286. Retrieved November 24, 2023.
26. Werner, Leslie Maitland (February 3, 1987). "Counsel Named in Nofziger Ethics Case". The New York Times.
27. "Counsel to the President, White House Office of: Investigations: Records, 1981-1989". Ronald Reagan. Retrieved November 24, 2023.
28. Adams, Arlin M.; Thompson, Larry Dean (1998). Final report of the independent counsel in re: Samuel R. Pierce. United States. Washington, D.C: U.S. Court of Appeals for the District of Columbia Circuit, Division for the Purpose of Appointing Independent Counsels, Division No. 89-5 : For sale by the U.S. G.P.O., Supt. of Docs. ISBN 978-0-16-049796-4.
29. "Justice in the Inslaw Case". The New York Times. December 7, 1991. Retrieved September 11, 2008.
30. "Another chance for justice in the Inslaw case". Tampa Bay Times. Retrieved November 24, 2023.
31. "Report of Special Counsel Nicholas J. Bua to the Attorney General of the United States Regarding the Allegations of INSLAW, Inc" (PDF). www.governmentattic.org. October 13, 2012.
32. Maskell, Jack (April 15, 2002). "Independent Counsel or Special Prosecutor For the Enron Investigation" (PDF).
33. Cooper, Kenneth J.; Priest, Dana (March 21, 1992). "EX-JUDGE TO HEAD HOUSE BANK PROBE". Washington Post. ISSN 0190-8286. Retrieved November 24, 2023.
34. Johnston, David (December 17, 1992). "Investigator Finds Evidence of Crimes in House Bank Use". The New York Times.
35. "Hearings before the committee on governmental affairs United States Senate" (PDF). www.govinfo.gov. 106th Congress. April 14, 1999.
36. Weisman, Jonathan (April 1, 2005). "Cost of Cisneros Probe Nears $21 Million Over 10 Years". Washington Post. ISSN 0190-8286. Retrieved November 24, 2023.
37. "OIC Smaltz: Final Report". govinfo.library.unt.edu. Retrieved November 24, 2023.
38. "Final report of the independent counsel - In Re: Henry G. Cisneros" (PDF). Archived from the original (PDF) on July 1, 2007.
39. "Final report of independent counsel in re: Bruce Edward Babbitt / Carol Elder Bruce". catalog.library.vanderbilt.edu.
40. Vise, David A. (April 6, 2000). "Labor Secretary Cleared". Washington Post. ISSN 0190-8286. Retrieved November 24, 2023.
41. "#400: 09-09-99 ATTORNEY GENERAL RENO SELECTS FORMER SENATOR JOHN DANFORTH AS SPECIAL COUNSEL TO HEAD WACO REVIEW". www.justice.gov. Retrieved November 24, 2023.
42. Johnson, Kevin (May 14, 2019). "Attorney General taps top Connecticut federal prosecutor for review of Trump-Russia inquiry". USA TODAY. Retrieved May 17, 2019.
43. Tucker, Eric (February 7, 2024). "Special counsel investigating Biden's handling of classified documents has completed probe, AG says". Associated Press News. Retrieved February 10, 2024.

External links

• 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.