Call today 212-563-3312 212-563-3312

The Office of the Independent Counsel

Creation of Independent Counsel

Following the Watergate scandal, which forced President Nixon to resign, Congress passed the Ethics in Government Act of 1978 (Ethics Act). The law created a Special Prosecutor (the name was later changed to Independent Counsel) to investigate possible crimes by high government officials. The Office of Independent Counsel was created due to a concern that investigators within the Department of Justice could not truly be independent. The Attorney General of the United States, who heads the Justice Department, is a presidential appointee. During Watergate, President Nixon had ordered the firing of the “special prosecutor” within the Justice Department who was investigating Watergate. The Attorney General and the Deputy Attorney General under Nixon resigned. The appointment of an Independent Counsel was seen as necessary to avoid conflicts of interest.

Appointment of Independent Counsel


The Chief Justice of the United States Supreme Court assigned three federal circuit court judges to a special division of the United States Court of Appeals for the District of Columbia, which had authority to appoint an Independent Counsel. The Independent Counsel provision of the Ethics Act expired in 1992, but new Independent Counsel legislation was passed in 1994. This law expired in 1999 and was not renewed. The Attorney General of the United States now has sole discretion to appoint an outside prosecutor.

U.S. Supreme Court Upholds Constitutionality of Independent Counsel Provision


In 1988, the Supreme Court upheld the constitutionality of the Independent Counsel provisions of the Ethics Act. The Supreme Court concluded that the Appointments Clause of the United States Constitution was not violated when Congress vested the appointment of an Independent Counsel in the special division of the United States Court of Appeals for the District of Columbia. The Supreme Court also held that the Independent Counsel provisions did not violate the separation-of-powers principle.

Independent Counsel’s Role


When the Independent Counsel provisions were in force, the Independent Counsel had an unlimited budget, and there was no deadline for completing an investigation. The Independent Counsel was subject to federal laws and Justice Department rules. Investigations were to be performed in a fair and impartial way.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.