Kathleen Clark

Publication Date


Document Type



The independent counsel mechanism celebrates its twentieth anniversary in 1998. In recent years, Attorneys General have requested the appointment of independent counsel with greater frequency, and independent counsel are spending more time and money conducting their investigations. As a result, political and academic commentators have written extensively about the merits of, and problems with, the Independent Counsel Statute. Other participants in this Symposium have produced insightful additions to this literature, particularly with regard to the statute's historical background and the relationship between independent counsel and attorneys general.

This Article takes a slightly different approach, keeping in mind that the original Independent Counsel Statute was part of an omnibus government ethics reform bill, the Ethics in Government Act of 1978. The independent counsel mechanism is just one part of what is necessarily a multi-pronged effort to promote ethical government. From this perspective, the independent counsel mechanism is little more than a prosecution conflict-of-interest device. It is a way of dealing with the conflict of interest that arises when the Attorney General would otherwise have to supervise a criminal investigation of alleged wrongdoing by the President (who appoints the Attorney General) or other high-level executive branch officials closely aligned with the President. Under the Independent Counsel Statute, when the Attorney General receives information about alleged wrongdoing by a high-level executive branch official,' she has thirty days to determine whether the information is specific and the source of the information is credible. If both of these criteria are met, she then must initiate a "preliminary investigation" of the allegation. Unless the Attorney General determines during this ninety-day period that there are no reasonable grounds to believe that further investigation is warranted, she must petition a special court to appoint a temporary prosecutor to lead the investigation or prosecution.