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Special Counsel V. Independent Counsel

By November 18, 2019September 25th, 2023No Comments

The average person has heard the terms “special counsel” and “independent counsel” yet has no idea what these terms really mean.  Though plenty of people use the terms “special counsel” and “independent counsel” interchangeably, there are meaningful differences between the two.  Let’s take a closer look at what these terms actually mean and the roles of those who work as special/independent counsel. 

An Explanation of Special Counsel 

Special counsel is a term derived from prior roles that were intended to serve the purpose of generating distance between an investigation and an administrative body.  The appointment of special counsel helps prevent the potential for a conflict of interest. The oversight of special counsel or another unbiased party is meant to help prevent conflicts of interest.  

Rewind time back to the era of President Nixon and the reliance on a special prosecutor named Archibald Cox proved quite important.  Cox oversaw the infamous Watergate investigation. The Watergate scandal led to the passage of the Ethics in Government Act that set specific rules for independent investigations.  As an example, one of these rules stated that the special prosecutor must be selected by a panel comprised of three judges to prevent influence from the executive branch.

An Explanation of Independent Counsel 

Though the title of independent counsel carries responsibilities similar to those held by special counsel, the two positions are not one in the same.  Independent counsel lead investigations into presidents and other people in government and positions of power. However, special counsel is appointed by Attorney Generals or the Acting Attorney General in which the Attorney General has been recused. 

Independent counsel is appointed by the Court at the Attorney General’s request for an investigation of government officials.  Independent counsel is appointed when a party targeted in an investigation has a potential conflict of interest with the Attorney General.  Independent counsel often have a comparably expansive focus that empowers them to investigate multiple supposed crimes along with numerous potential suspects.  

Why Independent Counsel is Necessary 

Independent counsel is relied upon by a federal or state Attorney General when he or she has insufficient competence in the context of a specific case to prosecute it in the proper manner.  As noted above, independent counsel is also named if there is even the hint of a conflict of interest. In fact, just about any reason to bring on independent counsel will suffice. Even a trial that is likely to generate an abundance of media publicity can prompt reliance on independent counsel.  However, the services of independent counsel are necessary for a single case while an Attorney General is likely to make a career out of his or her position.

Special Counsel Jurisdiction, Staffing and Hierarchy

The expanse of special counsel’s investigation is determined by the attorney general.  This scope is provided with the authority to investigate and subsequently prosecute crimes committed on the federal level throughout the course of and with the intent to interfere with the ongoing investigation.  Examples of such crimes include obstruction of justice, intimidation of witnesses, perjury and the destruction of evidence. Special counsel can also conduct appeals that result from the issue under investigation or the issue being prosecuted.  However, the jurisdiction of special counsel is constrained to supposed criminal acts as opposed to mere administrative or civil violations of the law.

Once special counsel is appointed, he or she can request that Justice Department employees temporarily contribute to the investigation in question.  Special counsel is to be provided with the names and background information of appropriate personnel to participate in the investigation. Special counsel can also hire professionals who do not work for the Justice Department if absolutely necessary.  In general, special counsel works in a capacity similar to that of a U.S. Attorney except for the fact that there is no obligation to consult with or inform the Attorney General about the conduct of his/her responsibilities and duties.

These materials have been prepared by Cohen Seglias for informational purposes only and are not intended and should not be construed as legal advice.

Shan Wu

Author Shan Wu

Shan’s professional and personal background gives him a unique understanding of academic institutions and the criminal justice system. A former federal prosecutor in Washington, D.C., he is at home in D.C. Courts and very familiar with all of the Washington, D.C. law enforcement agencies, especially the Metropolitan Police Department. His parents were university professors so he grew up in a university environment. He understands the mindset of academic institutions. As a prosecutor, he supervised in the misdemeanor crime section. This is the section of the Washington, D.C. prosecutor’s office that handles most college student cases. His understanding of charging decisions and how judges view these cases is invaluable to his student clients and their families. Shan served as a federal prosecutor in the United States Attorney’s Office for the District of Columbia for over ten years. During his tenure there, now Attorney General Eric H. Holder, Jr. appointed him to supervisory positions in the Misdemeanor Trial Section and also in a police corruption task force. His outstanding legal work in the government was recognized through numerous Special Achievement Awards from the Justice Department as well as awards conveyed by law enforcement agencies and community groups. From 1999-2000, Shan served as Counsel to Attorney General Janet Reno, advising her on criminal and civil investigations, E-Gov, E-Commerce (electronic signatures, internet gambling, internet telephony, privacy & public access issues in electronic court filings), congressional oversight, and legislative review. His responsibilities included serving as liaison to the FBI, DEA, Criminal Division, Executive Office of United States Attorneys, National Institute of Justice, and White House Counsel’s Office. Shan serves on the D.C. Bar Association’s Hearing Committee of the Board on Professional Responsibility and is a past president of the Asian Pacific American Bar Association for the Greater Washington, D.C. area. He is a 1988 graduate of Georgetown University Law Center, where he graduated Order of the Barristers, edited two law reviews, and was Co-Director of the Moot Court Program. He holds a B.A. in English Literature from Vassar College as well as a Master’s Degree in Creative Writing from Sarah Lawrence College. Following law school, he clerked for the late Hon. Jerry Buchmeyer, U.S. District Court for the Northern District of Texas, and the late Eugene Wright, U.S. Court of Appeals for the Ninth Circuit. He is admitted to practice law in the District of Columbia and Connecticut.

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