Options for independent executive branch criminal investigations

Following on the heels of this May 2017 CRS report, Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations (R44857) was published in June. The report notes “because of the potential conflicts of interest that may arise when the executive branch investigates itself (e.g., the Watergate investigation), there have been calls for an independently led inquiry to determine whether officials have violated criminal law. In response, Congress and the U.S. Department of Justice (DOJ) have used both statutory and regulatory mechanisms to establish a process for such inquiries. These responses have attempted, in different ways, to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials.”

The report also provides a glossary of terms.

Independent Counsel: Now-expired provisions of the Ethics in Government Act of 1978 (P.L. 95-521, as amended) authorized the Attorney General to request that a three-judge panel within the federal judiciary appoint an independent counsel. Independent counsels had more independence than regular DOJ officials and employees, though the breadth of their investigations led to debate and ultimately to the expiration of the statutory authorization.

Special Counsel: The DOJ’s general administrative hiring authority (28 C.F.R. Part 600) authorizes the Attorney General to appoint special counsels. Special counsels exercise more independence than regular DOJ officials and employees, but because the Attorney General generally appoints, supervises, and may remove special counsels, they are considered to be less independent than independent counsels were. (The term “special counsel,” when used in the context of independent criminal investigations of executive officials, is entirely distinct from the Office of Special Counsel, an independent federal agency, which investigates certain federal personnel practices.)

Special Prosecutor: The Attorney General historically has appointed special prosecutors to investigate scandals involving public officials. The term “special prosecutor” was also initially used to describe independent investigations authorized by the Ethics in Government Act, though the term was later changed under that statute to “independent counsel.” Historically, these appointments were used to provide for the investigation of any related allegations without political interference.


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