{ "id": "R44857", "type": "CRS Report", "typeId": "REPORTS", "number": "R44857", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 603265, "date": "2019-03-13", "retrieved": "2019-08-12T22:17:50.738933", "title": "Special Counsel Investigations: History, Authority, Appointment and Removal", "summary": "The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. 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 frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials. \nUnder the Ethics in Government Act of 1978, for example, Congress authorized the appointment of \u201cspecial prosecutors,\u201d who later were known as \u201cindependent counsels.\u201d Under this statutory scheme, the Attorney General could request that a specially appointed three-judge panel appoint an outside individual to investigate and prosecute alleged violations of criminal law. These individuals were vested with \u201cfull power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice\u201d with respect to matters within their jurisdiction. Ultimately, debate over the scope, cost, and effect of the investigations (perhaps most notably the Iran-Contra and the Whitewater investigations) resulted in the law\u2019s expiration and nonrenewal in 1999.\nFollowing the lapse of these statutory provisions, DOJ promulgated regulations authorizing the Attorney General (or, if the Attorney General is recused from a matter, the Acting Attorney General) to appoint a \u201cspecial counsel\u201d from outside the federal government to conduct specific investigations or prosecutions that may be deemed to present a conflict of interest if pursued under the normal procedures of the agency. Special counsels are not subject to \u201cday-to-day supervision\u201d by any official and are vested \u201cwithin the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.\u201d\nThe independent nature of these investigations has raised constitutional questions about the propriety of the appointment and removal mechanisms provided for the officials leading the inquiries. These concerns were addressed by the Supreme Court in the 1988 case of Morrison v. Olson, which upheld the constitutionality of the independent counsel statute. The reasoning of that opinion has been challenged, however, and the Court\u2019s subsequent analysis of related issues in the 1997 case of Edmond v. United States and the 2010 case Free Enterprise Fund v. Public Accounting Oversight Board did not apply the standard enunciated in Morrison. The constitutional status of a statutory framework similar to the independent counsel statute is thus subject to debate. Several bills introduced in the 116th Congress (including S. 71 and H.R. 197, which merge aspects of two preceding bills introduced in the 115th Congress, S. 1735 and S. 1741) would statutorily insulate a special counsel from removal, echoing aspects of the independent counsel statute\u2019s provisions. Whether such proposals would withstand constitutional challenge today might ultimately turn on the continued vitality of the analysis applied in Morrison.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "https://www.crs.gov/Reports/R44857", "sha1": "2d8719ef5c40a74235f8beb515b491b2ab43c2a5", "filename": "files/20190313_R44857_2d8719ef5c40a74235f8beb515b491b2ab43c2a5.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "https://www.crs.gov/Reports/pdf/R44857", "sha1": "763a3bf154f5a8de43bd210529cc7482887a4880", "filename": "files/20190313_R44857_763a3bf154f5a8de43bd210529cc7482887a4880.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4756, "name": "Separation of Powers" }, { "source": "IBCList", "id": 4876, "name": "Government Ethics & Lobbying" } ] }, { "source": "EveryCRSReport.com", "id": 584337, "date": "2018-04-13", "retrieved": "2018-10-06T00:14:32.386021", "title": "Special Counsels, Independent Counsels, and Special Prosecutors: Legal Authority and Limitations on Independent Executive Investigations", "summary": "The Constitution vests Congress with the legislative power, which includes authority to establish federal agencies and conduct oversight of those entities. Criminal investigations and prosecutions, however, are generally regarded as core executive functions assigned to the executive branch. Because of the potential conflicts of interest that may arise when the executive branch investigates itself, there have often been calls for criminal investigations by prosecutors with independence from the executive branch. 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 frameworks have aimed to balance the competing goals of independence and accountability with respect to inquiries of executive branch officials. \nUnder the Ethics in Government Act of 1978, for example, Congress authorized the appointment of \u201cspecial prosecutors,\u201d who later were known as \u201cindependent counsels.\u201d Under this statutory scheme, the Attorney General could request that a specially appointed three-judge panel appoint an outside individual to investigate and prosecute alleged violations of criminal law. These individuals were vested with \u201cfull power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice\u201d with respect to matters within their jurisdiction. Ultimately, debate over the scope, cost, and effect of the investigations (perhaps most notably the Iran-Contra and the Whitewater investigations) resulted in the law\u2019s expiration and nonrenewal in 1999.\nFollowing the lapse of these statutory provisions, DOJ promulgated regulations authorizing the Attorney General (or, if the Attorney General is recused from a matter, the Acting Attorney General) to appoint a \u201cspecial counsel\u201d from outside the federal government to conduct specific investigations or prosecutions that may be deemed to present a conflict of interest if pursued under the normal procedures of the agency. Special counsels are not subject to \u201cday-to-day supervision\u201d by any official and are vested \u201cwithin the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.\u201d\nThe independent nature of these investigations has raised constitutional questions about the propriety of the appointment and removal mechanisms provided for the officials leading the inquiries. These concerns were addressed by the Supreme Court in the 1988 case of Morrison v. Olson, which upheld the constitutionality of the independent counsel statute. The reasoning of that opinion has been challenged, however, and the Court\u2019s subsequent analysis of related issues in the 1997 case of Edmond v. United States and the 2010 case Free Enterprise Fund v. Public Accounting Oversight Board did not apply the standard enunciated in Morrison. The constitutional status of a statutory framework similar to the independent counsel statute is thus subject to debate. Several bills proposed in the 115th Congress, including S. 1735, S. 1741, and S. 2644 (which merges aspects of the two preceding bills), would statutorily insulate a special counsel from removal, echoing aspects of the independent counsel statute\u2019s provisions. Whether such proposals would withstand constitutional challenge today might ultimately turn on the continued vitality of the analysis applied in Morrison.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R44857", "sha1": "de19f8b2191544151cc5e2df65f4ea32297c53c1", "filename": "files/20180413_R44857_de19f8b2191544151cc5e2df65f4ea32297c53c1.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R44857", "sha1": "17152568e256d9546739039f5635c6b877b00b19", "filename": "files/20180413_R44857_17152568e256d9546739039f5635c6b877b00b19.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4756, "name": "Separation of Powers" }, { "source": "IBCList", "id": 4876, "name": "Government Ethics & Lobbying" } ] }, { "source": "EveryCRSReport.com", "id": 461694, "date": "2017-06-01", "retrieved": "2017-08-22T14:31:43.404744", "title": "Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations", "summary": "Under the Constitution, Congress has no direct role in federal law enforcement and its ability to initiate appointments of any prosecutors to address alleged wrongdoings by executive officials is limited. While Congress retains broad oversight and investigatory powers under Article I of the Constitution, criminal investigations and prosecutions have generally been viewed as a core executive function and a responsibility of the executive branch. Historically, however, 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.\nUnder the Ethics in Government Act of 1978, Congress authorized the appointment of \u201cspecial prosecutors,\u201d who later were known as \u201cindependent counsels.\u201d Under this statutory scheme, the Attorney General could request that a specially appointed three-judge panel appoint an outside individual to investigate and prosecute alleged violations of criminal law. These individuals were vested with \u201cfull power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice\u201d with respect to matters within their jurisdiction. The independent counsel provisions included sunset provisions, but were reauthorized regularly until 1992, when Congress allowed the law to expire. Although it was again reauthorized in 1994, debate over the scope, cost, and effect of the investigations (perhaps most notably the Iran-Contra investigation and the Whitewater investigation) resulted in the law\u2019s expiration and nonrenewal in 1999.\nFollowing the lapse of the statutory independent counsel provisions, DOJ promulgated regulations authorizing the Attorney General (or, if the Attorney General is recused from a matter, the Acting Attorney General) to appoint a \u201cspecial counsel\u201d to conduct specific investigations or prosecutions that may be deemed to present a conflict of interest if pursued under the normal procedures of the agency. Under these regulations, the Attorney General may appoint an individual from outside the federal government to investigate and prosecute criminal matters within his or her assigned jurisdiction. Two instances in which the Attorney General has invoked this authority include the investigation of the Branch Davidian incident in Waco, Texas, and the current investigation of alleged Russian interference in the 2016 election. Special counsels appointed under this authority are vested \u201cwithin the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.\u201d Special counsels are not subject to \u201cday-to-day supervision\u201d by any official, but may be asked to report to the Attorney General during the course of their work. The Attorney General must \u201cgive great weight to the views of the Special Counsel\u201d but may conclude that particular actions should not be pursued and must notify Congress accordingly if the Attorney General rejects a particular course of action. Additionally, the Attorney General maintains the authority to discipline or remove the special counsel for cause.\nUltimately, under the previous statutory authorization for independent counsel appointments or under the existing regulatory authority to appoint special counsels, the Attorney General holds the sole authority to initiate the appointment for such investigations and prosecutions. However, other alternatives of investigation and oversight of actions by federal officials\u2014whose methods are beyond the scope of this report\u2014are available, such as inspector general investigations and congressional oversight investigations.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R44857", "sha1": "ebabc22ec6d2219a5a6d9fc25397cc2db922adbb", "filename": "files/20170601_R44857_ebabc22ec6d2219a5a6d9fc25397cc2db922adbb.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R44857", "sha1": "ca95e005ee8e879d7509b556abf9156bba143103", "filename": "files/20170601_R44857_ca95e005ee8e879d7509b556abf9156bba143103.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4756, "name": "Separation of Powers" }, { "source": "IBCList", "id": 4876, "name": "Government Ethics & Lobbying" } ] } ], "topics": [ "Constitutional Questions" ] }