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History

The Special Prosecutor and Independence of Executive Investigations

Quick fact

Special prosecutors are not a permanent institution but are typically appointed only when the Department of Justice has a conflict of interest, such as when the president or a senior official is under investigation. The most famous holder of this role, Ken Starr, spent millions investigating President Bill Clinton, but the office was allowed to lapse after that.

Why this is interesting

Imagine the person accused of a crime is the one who controls the police force. How can justice be served? That's the puzzle the special prosecutor was designed to solve.

Read the full explanation

Understanding The Special Prosecutor and Independence of Executive Investigations

At the core, a special prosecutor is an attorney appointed to investigate a specific high-ranking official, usually within the executive branch, to avoid a conflict of interest. In the U.S., the Attorney General normally oversees federal investigations and prosecutions. When the subject is the President or a close ally, that creates an inherent conflict: the AG is appointed by the President and may feel loyalty. To solve this, the law allows the Attorney General (or an acting official) to appoint a 'special counsel' who operates independently, with a specific mandate and the power to prosecute. For example, in 2017, Deputy Attorney General Rod Rosenstein appointed Robert Mueller as special counsel to investigate Russian interference in the 2016 election and possible ties to the Trump campaign. This appointment was made under federal regulations (28 CFR Part 600), which give the special counsel a degree of autonomy while still being technically an employee of the Department of Justice.

A deeper explanation

The mechanism that gives special prosecutors their teeth is the combination of statutory or regulatory authority and the threat of removal. The special counsel reports to the Attorney General, but the AG can only fire them for specific reasons like‘misconduct’or‘conflict of interest.’ This is a compromise between full independence and accountability. The design creates a 'firewall' so that the investigation can proceed without day-to-day political interference. However, the independence is not absolute. The Attorney General must be notified of certain actions, and the final report is submitted to the AG, who decides what to release to Congress and the public. This means the special counsel's power ultimately depends on the good faith of the appointed official. Historically, the independent counsel statute (1978–1999) created a truly independent prosecutor appointed by a special court, but the Supreme Court in Morrison v. Olson (1988) upheld its constitutionality, yet it was not reauthorized after backlash from the Clinton impeachment. The lesson is that independence is not automatic; it is a careful design of checks and balances, subject to political and legal constraints.

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