Special investigator
As a special prosecutor ( English special prosecutor , even special counsel or independent counsel or independant investigator ) is referred to an attorney in particular in the American legal system, which is used in a given situation in which a conflict of interest for the really competent law enforcement authority is to investigate on potential misconduct and to pursue this if necessary.
For example, the investigation into allegations against an incumbent president or an attorney general can be carried out by a special investigator instead of the competent prosecutor who would have to investigate their own superiors. Investigations against other government-related persons who were not in direct line of superiors with prosecutors have also been carried out by special investigators in the past.
The term is not limited to the United States or the federal level. According to Harriger, the concept comes from the law of the federal states:
"State courts have traditionally appointed special prosecutors when the regular government attorney was disqualified from a case, whether for incapacitation or interest."
"State courts have traditionally appointed special investigators when the regular prosecutor was disqualified for a case because of incapacity to act or a conflict of interest."
While the best-known special investigators have been appointed to investigate presidents or people related to them since the 1870s, the term can also be used to refer to any investigator appointed to avoid or avoid the appearance of a conflict of interest. For example, because the district attorneys' offices work closely with the police, some activists argue that police misconduct cases at the state and local levels should be investigated by special investigators.
terminology
In English, the terms special prosecutor , independent counsel and special counsel have the same basic meaning, their respective use (at least at the federal level in the USA) depends on the period of use. The term special prosecutor was used in the Watergate affair, but was replaced by the less confrontational independent counsel when reappointing the 1983 Ethics in Government Act . The investigators appointed under this law are commonly referred to as independent counsel . After the Independent Counsel Law expired in 1999, the term special counsel was used in general . This is the term commonly used in current government regulations regarding the appointment of special investigators.
While special prosecutor is sometimes used in historical discussions of matters up to 1983, special counsel is occasionally used , including, for example, a description of the first presidential special investigator in 1875 in contemporary newspaper articles.
Federal Appointments in the United States
History of Appointments
Before Watergate
The first special investigator, John B. Henderson , was appointed by Ulysses S. Grant in 1875 to investigate the whiskey ring scandal . After the President's personal secretary tried to suppress Henderson's investigation, Grant fired Henderson for making outrageous statements about the President in front of a grand jury . Due to subsequent criticism, Grant appointed James Broadhead, a new special investigator, who continued the investigation.
James A. Garfield appointed the next special counsel, William Cook, to investigate the Star Route scandal in 1881. Cook continued his investigation into Chester A. Arthur's tenure . During Theodore Roosevelt's presidency , special investigators were appointed to investigate two scandals. In 1903, Roosevelt appointed two special investigators (a Democrat and a Republican) to investigate allegations of bribery in the Postal Department. In 1905, Roosevelt's Attorney General, Philander C. Knox , appointed Francis J. Heney to investigate real estate fraud in Oregon ( Oregon land fraud scandal ).
Calvin Coolidge appointed two special investigators, Atlee Pomeree and Owen Roberts , to investigate the Teapot Dome scandal . This appointment was made on the basis of a special resolution by Congress and subject to the approval of the Senate, and was unique in that regard.
In 1952 , following pressure from Congress and calls for a special investigator, Harry S. Truman appointed Special Assistant to the Attorney General Newbold Morris to investigate corruption in the Bureau of Internal Revenue . After Morris asked all senior executives to complete an extensive personal finance questionnaire, he was fired by Attorney General J. Howard McGrath , who was subsequently fired by the President. Following the appointment of a new Attorney General, the investigation continued as normal.
Watergate
In May 1973, Richard Nixon's Attorney General, Elliot L. Richardson , appointed Archibald Cox as a special investigator to investigate the Watergate affair . Richardson had already approved the establishment in the Senate hearing on his appointment . As part of the investigation, in July of that year, Cox had requested and then sued for the tapes of the secret conversations that Nixon had had in the Oval Office of the White House and elsewhere. The Nixon administration refused, citing executive privileges, and the dispute continued in court until October. After an appeals court ordered the president to comply, Nixon ordered the special investigator's release. In the events known as the Saturday Night Massacre , both the Attorney General and his deputy (both had made commitments about the special investigator at their Senate hearings on their appointment) resigned so as not to carry out the order to dismiss Cox. The Solicitor General Robert Bork , the third in the hierarchy of the Justice Department of the United States dismissed then Cox.
Initially, the White House under Nixon announced that the office of special investigator had been lifted, but after a public outcry, Nixon had Bork appointed Leon Jaworski as the second Watergate special investigator less than two weeks after the Saturday Night Massacre . Jaworski continued Cox's efforts to obtain the tapes, which were then released following a decision by the United States Supreme Court ( United States v. Nixon ). Jaworski resigned as a special investigator after just under a year, about two and a half months after Nixon's own resignation. He was replaced by his (and Cox ') deputy, Henry Ruth Jr., who resigned in 1975, followed by Charles Ruff , the fourth and final Watergate special investigator. As part of his Watergate appeal, Ruff conducted an unrelated investigation into whether Gerald Ford had misused campaign funds as a Congressman, and Ford was acquitted of any wrongdoing.
Legal basis
In 1978, encouraged not least by the Watergate affair, Congress passed the Ethics in Government Act, a law that contained, among other things, formal regulations for the appointment of a special investigator. The provisions were limited in time, but were extended by the Congress in 1983 and 1987 and did not expire until 1992; in 1994 they were renewed for a further five years and then expired again in 1999. The appointment of the special investigator under the Ethics in Government Act differed in important respects from the previous and subsequent ones. Although the decision to appoint a special investigator was still made by the Attorney General, the choice of the special investigator was reserved for a panel of three judges.
Approximately 20 special investigators were appointed under the Ethics in Government Act and its successor act during the terms of Jimmy Carter , Ronald Reagan , George HW Bush, and Bill Clinton in total. These also dealt with the investigations into the Iran-Contra and Whitewater affairs that had become known , the latter leading to the impeachment proceedings against Bill Clinton because of the Lewinsky scandal . Furthermore, numerous smaller investigations against ministers for relatively minor offenses, such as drug abuse, were conducted during this period.
Attorney General Janet Reno appointed Robert B. Fiske to Whitewater as Special Counsel in 1992–1994, when the law was inoperative. When the law came back into effect in 1994, Reno relied on these legal bases for the Whitewater investigation and suggested that Fiske continue in office. Instead, Kenneth Starr was installed by the three-person judges' committee provided for this purpose . Starr resigned in 1999 and was replaced by Robert William Ray immediately before the law ran out. Ray formally completed the Whitewater investigation in 2003.
Since 1999
After the provisions expired in 1999, as was the case up to 1978, there is no longer any federal law appointing a special investigator. With the expiry in 1999, the Ministry of Justice under Attorney General Reno issued procedural regulations. On the basis of this, Reno appointed John Danforth as the special investigator to investigate the role of the FBI in the siege of Waco .
In 2003, during the tenure of George W. Bush , Patrick Fitzgerald was appointed special investigator by Deputy Attorney General James B. Comey after Attorney General John Ashcroft declared himself biased to investigate the Plame affair .
On May 17, 2017, former FBI Director Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein after Attorney General Jeff Sessions declared himself biased to investigate Russian interference in the 2016 US presidential campaign ( Special Investigation to Influence the 2016 election campaign in the United States ).
Legal bases
The legal bases by which special investigators were appointed changed over time.
In the case of the Teapot Dome investigation, Congress passed a special joint resolution to appoint the special investigator, who, similar to cabinet members, required confirmation from the Senate. This procedure was unique for special investigators at the federal level.
Special investigators were also appointed on the basis of one-off provisions by the Attorney General. That was the case with the Watergate investigators, for example.
In response, in part to the Watergate Incidents, the Ethics in Government Act of 1978 became the legal basis for the appointment of special investigators. The law expressly restricted the power of the president or the attorney general to dismiss the once appointed independent investigator. These provisions were in force from 1978 to 1992 and 1994 to 1999.
When the regulations expired in 1999, the Department of Justice under Attorney General Janet Reno issued regulations for future appointments of special investigators. Until 2017 these regulations are in force as 28 CFR section 600. Although the rules put limits on the attorney general's power to, for example, dismiss the special investigator after he has been appointed, these are only internal rules of the Department of Justice with no underlying legal basis. It is therefore unclear whether the limits that these regulations place on the Attorney General actually have legal force in practice.
The existence of any statute or other regulation governing the process of appointing a special investigator does not prevent the attorney general (or acting attorney general) from using his powers to appoint a special investigator in any other way, which has already been done twice:
- Following the passage of the Ethics in Government Act the previous year, Paul J. Curran was appointed in 1979 to investigate Jimmy Carter's peanut deals , the appointment being made by the powers of the Attorney General (also chosen by him rather than the three-person judge panel), allegedly because the alleged offense occurred before the law was passed.
- Patrick Fitzgerald's appointment as special investigator in 2003 was expressly not made in application of regulation 28 CFR 600. The regulations require that only a lawyer who is not an employee of an authority may be appointed as a special investigator. Fitzgerald was already a federal prosecutor at the time of his appointment.
Appointment of a special investigator
The decision to appoint a special investigator is a matter for the Attorney General (or incumbent Attorney General) or, historically, the President. Under the law, which was expired in 1999, Congress could formally request the Attorney General to appoint a special investigator; however, the law only required written notification of the Attorney General's reasoned decision. The provision on the selection of the person of the special investigator by a three-member judge panel of the Court of Appeals is also no longer in force. The decision on who is to be appointed lies with the Attorney General alone.
The current provisions on special investigators stipulate:
"The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; other
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. "
“The Attorney General, or, if the Attorney General is biased, the Acting Attorney General, will appoint a special investigator if he or she determines that a criminal investigation into any person or matter is warranted and
(a) that investigation or prosecution of that person or matter by a federal prosecution or litigation division of the Department of Justice creates a conflict of interest for the Department or other exceptional circumstances; and
(b) that in these circumstances it would be in the public interest to appoint an outside special investigator to put responsibility on him. "
The Attorney General defines the special investigator's responsibilities:
"The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and / or prosecuted. "
“The responsibilities of the special investigator should be determined by the Attorney General. The special investigator is provided with a specific statement of facts relating to the matter under investigation. The special investigator's responsibilities should also include the right to investigate and prosecute federal offenses committed in connection with the intent to disrupt the investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses and appeals arising from the matter being investigated and / or prosecuted. "
The selection of the person to be appointed is to be made by the Attorney General according to the following guidelines:
"An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation. "
"The individual to be appointed as a special investigator should be an attorney with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure that the investigation is well, timely and thorough and that investigative and prosecutorial decisions are based on an informed understanding of criminal law and the guidelines of the Department of Justice. The special investigator is said to be selected from outside the United States authorities. The special investigator should agree that his duties as a special investigator have first priority in his professional life and that it may be necessary that he devote his full time to the investigation, depending on the complexity and the stage of the investigation. "
Termination of the activity of a special investigator
In general, the special investigator himself decides when to end an investigation, with or without a formal indictment. The special investigator usually provides a final report on his investigation. The current regulations specify:
"At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel."
"At the end of the special investigator's work, he or she will prepare a confidential report to the Attorney General explaining the special investigator's indictment or withdrawal decisions."
Dismissal of the special investigator
Three special investigators were fired before they finished their investigations. President Grant dismissed the special investigator investigating the whiskey ring scandal on charges of cheek against the president, but replaced him with another special investigator due to public pressure that followed. President Truman's Attorney General dismissed Newbold Morris when he asked all officers to fill out an extensive questionnaire. Truman later dismissed the Attorney General and the investigation closed the normal way. President Nixon fired Special Counsel Archibald Cox after Cox sued the White House for the tapes. The controversy over the adequacy and legality of this layoff sparked a constitutional crisis known as the Saturday Night Massacre . The discharge was carried out in the Nader v. Bork declared illegal, but with a new special investigator appointed, the case was irrelevant to its decision and there was no appeal against the United States District Court's decision .
The Independent Counsel Law , originally enacted as the Ethics in Government Act , only allowed the special investigator to be dismissed under certain circumstances such as wrongdoing or incapacity for work. The law is no longer in force.
The current regulations on special investigators stipulate the following:
"The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal. "
“The special investigator can only be disciplined or removed from office by only personal action by the Attorney General. The Attorney General may dismiss a Special Investigator for misconduct, breach of duty, incapacity for work, conflict of interest, or for any other good reason, including violation of department policy. The Attorney General will inform the special investigator in writing of the specific reason for his or her dismissal. "
In contrast to the Independent Counsel Law , the current provisions on special investigators were issued by the Justice Department and have no underlying legal basis. Therefore their legal force vis-à-vis the Attorney General is unclear.
Role of the legislature and judiciary
The decision on the appointment of a special investigator is made by the executive branch , historically the president or the attorney general (or acting attorney general). The only exception were the special investigators in the Teapot Dome scandal , which were set up by a joint resolution of the Congress.
According to the Independent Counsel Law , a majority of the House or Senate Judiciary Committee could formally request the Attorney General to appoint a special investigator on a specific matter, but the decision on whether or not to appoint a special investigator remained with the Attorney General and was not verifiable in court. If the Attorney General refused the appointment, only a written answer could be requested, stating the reasons. However, if the decision was made to appoint a special investigator, the selection was made on the person of the investigator by a three-member judicial panel of the US Court of Appeals.
After the Independent Counsel Law expired , as was the case until 1978, neither Congress nor the courts have an official role in appointing a special investigator. However, Congress can use its powers and pressure to have a special investigator appointed. That was the case, for example, with the appointment of the Watergate special investigator Archibald Cox. Senators demanded a commitment to appoint a special investigator to Watergate as a condition for Richardson's appointment as Attorney General. In addition, Congress has the independent powers to investigate the President and his close confidante through Congressional hearings as part of its role in overseeing the government.
Constitutionality
The appointment of a special investigator raises inherent questions about the separation of powers under the United States Constitution . Since the special investigator is part of the executive, it is argued that he is ultimately accountable to the president and therefore can be fired by him. For example, Richard Nixon argued that he could not be compelled to perform certain acts by the lawsuit of any of his subordinates.
The constitutionality of the Independent Counsel Law was confirmed in a 7: 1 Supreme Court ruling in the Morrison v. Olson confirmed.
State Appointments in the United States
Special investigators are appointed more often in the states than in the federal level, in most cases because of or to avoid the appearance of a conflict of interest. In the states, special investigators are appointed by judges, government officials, organizations, corporations, or associations of citizens to prosecute violations of law committed by one or more government officials and bring charges for acts that are based on state law. Unlike in federal courts, where the terms special counsel and independent counsel are uniformly defined, meanings vary in state courts, but special prosecutor refers to the appointment of a prosecutor to prosecute one or more Government Official for Unlawful Conduct.
literature
- James Doyle: Not Above the Law: the battles of Watergate prosecutors Cox and Jaworski. ( en-US ). William Morrow and Company, New York 1977, ISBN 0-688-03192-7 .
Web links
- Definition on Law.com (English)
Individual evidence
- ^ South Korea prosecutor paves way for charges against Park if impeachment upheld. (en) . In: Reuters , March 6, 2017. Retrieved March 14, 2017.
- ^ Policy 11: Special or Independent Prosecutors. Justice in Policing Toolkit. ( en-US ) Retrieved March 14, 2017.
- ^ The Office - A Brief History Of The Independent Counsel Law. Secrets Of An Independent Counsel. FRONTLINE. PBS. . Retrieved March 14, 2017.
- ↑ a b c d e e-CFR: TITLE 28 — Judicial Administration . (American English, ecfr.gov [accessed June 4, 2017]).
- ↑ THE WHISKEY RING Frauds .; THE PROSECUTIONS IN ST. LOUIS. INDICTMENT OF GEN. BABCOCK - LETTER OF THE GRAND JURY TO THE PRESIDENT THANKING HIM FOR THE SUPPORT GIVEN THEM BY HIM - THE SPECIAL COUNSEL - MR. HENDERSON'S CASE. MR. HENDERSON'S ATTACK ON THE PRESIDENT - HE SAYS HE WAS INCORRECTLY REPORTE - THE REPORTED DISPATCH OF SENATOR MORTON. (en-US) . Retrieved March 14, 2017.
- ↑ a b OIC Smaltz: Speeches and Articles: Georgetown Law Journal: A View From Inside . Retrieved March 14, 2017.
- ↑ Gerald Greenberg: Historical Encyclopedia of US Independent Counsel Investigations . Greenwood Press, Westport (Connecticut) 2000, ISBN 0-313-30735-0 , pp. 164-166 .
- ↑ a b c A summary of the Teapot Dome scandal from the Brookings Institution ( en-US ) Retrieved June 5, 2017.
- ↑ Gerald Greenberg: Historical Encyclopedia of US Independent Counsel Investigations . Greenwood Press, Westport (Connecticut) 2000, ISBN 0-313-30735-0 , pp. 231-233 .
- ↑ Gerald Greenberg: Historical Encyclopedia of US Independent Counsel Investigations . Greenwood Press, Westport (Connecticut) 2000, ISBN 0-313-30735-0 , pp. 293-295 .
- ↑ a b The Office - What Is The Special Division? Secrets Of An Independent Counsel. FRONTLINE. PBS . Retrieved June 5, 2017.
- ^ The Office - Independent Counsel Investigations, 1978 To The Present. Secrets Of An Independent Counsel. FRONTLINE. PBS . Retrieved June 15, 2017.
- ^ From the Washington Post: Starr's Chosen Successor Draws Praise, Criticism (en-US) . In: Los Angeles Times , October 17, 1999. Retrieved March 14, 2017.
- ↑ PRESS CONFERENCE WITH ATTORNEY GENERAL JANET RENO RE: APPOINTMENT OF FORMER SENATOR JOHN DANFORTH TO HEAD WACO PROBE . September 9, 1999. Retrieved June 5, 2017.
- ^ Appointment of Special Counsel . United States Department of Justice: Office of Public Affairs. March 17, 2017. Archived from the original on August 5, 2017. Retrieved August 5, 2017.
- ^ A b c d Jack Maskell: Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress. . June 20, 2013. Retrieved June 5, 2017.
- ^ Letter from Deputy Attorney General James B. Comey to Patrick J. Fitzgerald . December 30, 2003. Retrieved June 5, 2017.
- ↑ Nader v. Bork, 366 F. Supp. 104 (DDC 1973) (en) . In: Justia Law , November 14, 1973. Retrieved June 5, 2017.
- ^ Prosecutor. In: Black's Law Dictionary . 8th edition 2004.