Document Type

Article

Publication Date

1998

Abstract

This essay draws on the examples of Watergate and Iran-Contra to offer a new perspective on Independent Counsel and their ability to investigate and prosecute high-level wrongdoing. The current consensus is that an Independent Counsel, appointed by judges of the special court pursuant to the Ethics in Government Act, will invariably investigate and prosecute crimes more vigorously than a Special Prosecutor appointed by the President or the Attorney General. Watergate and Iran-Contra suggest, however, that there are institutional and political factors that make analysis of the comparative tendencies of the two types of prosecutors more complex and dependent on circumstance. First, particularly when the other party controls Congress, the President has incentives to name as Special Prosecutor (or to have the Attorney General name as Special Prosecutor) someone whose background and reputation indicate that she will proceed aggressively; only a person with these attributes will be able to clear the President's name. In contrast, the special court potentially may select someone who fits into more of a "judge" model, whose background and reputation suggest that she will conduct a balanced inquiry. In addition, the fact that the Special Prosecutor is appointed by the President or the Attorney General operates against the President's ability to oppose forcefully the decisions of the Special Prosecutor that he disagrees with. Finally, as a litigator, the Special Prosecutor is better-positioned to argue that she represents the interests of the executive branch.

Publication Citation

61 Law & Contemp. Probs. 149-164 (1998)