In the United States, a special counsel (formerly called special prosecutor or independent counsel) is a lawyer appointed to investigate, and potentially prosecute, a particular case of suspected wrongdoing for which a conflict of interest exists for the usual prosecuting authority. Other jurisdictions have similar systems. For example, the investigation of an allegation against a sitting president or attorney general might be handled by a special prosecutor rather than by an ordinary prosecutor who would otherwise be in the position of investigating his or her own superior. Special prosecutors also have handled investigations into those connected to the government but not in a position of direct authority over the Justice Department's prosecutors, such as cabinet secretaries or election campaigns.
While the most prominent special prosecutors have been those appointed since the 1870s to investigate presidents and those connected to them, the term can also be used to refer to any prosecutor appointed to avoid a conflict of interest or appearance thereof. The concept originates in state law: "state courts have traditionally appointed special prosecutors when the regular government attorney was disqualified from a case, whether for incapacitation or interest."
Because district attorneys' offices work closely with police, some activists argue that cases of police misconduct at the state and local level should be handled by special prosecutors.
Terminology
The terms 'special prosecutor', 'independent counsel', and 'special counsel' have the same fundamental meaning, and their use (at least at the federal level in the U.S.) is generally differentiated by the time period to which they are being applied. The term 'special prosecutor' was used throughout the Watergate era, but was replaced by the less confrontational 'independent counsel' in the 1983 reauthorization of the Ethics in Government Act. Those appointed under that act after 1983 are generally referred to as 'independent counsels'. Since the independent counsel law expired in 1999, the term 'special counsel' has been used. This is the term used in the current U.S. government regulations concerning the appointment of special counsels, such as Title 28 CFR.
While the term 'special prosecutor' is sometimes used in historical discussions of such figures before 1983, the term 'special counsel' appears to have been frequently used as well, including, for example, in contemporary newspaper accounts describing the first presidentially-appointed special counsel in 1875.
United States appointment at the federal level
Pre-Watergate
The first federal special prosecutor, John B. Henderson, was appointed by Ulysses Grant in 1875 to investigate the Whiskey Ring scandal. After attempting to stifle Henderson's investigation of the president's personal secretary, Grant fired Henderson on the grounds that Henderson's statements to a grand jury regarding Grant were impertinent. Following criticism, Grant appointed a new special prosecutor, James Broadhead, to continue the investigation.
James Garfield appointed the next special prosecutor, William Cook, in 1881 to investigate the Star route scandal. Cook continued his investigation into the Chester Arthur administration. Under the Theodore Roosevelt administration, special prosecutors were appointed to investigate two scandals. In 1903, Roosevelt appointed two special prosecutors (a Democrat and a Republican) to investigate allegations of bribery at the Post Office Department. In 1905, Roosevelt's attorney general, Philander Knox, appointed Francis Heney special prosecutor to investigate the Oregon land fraud scandal.
Calvin Coolidge appointed two special counsels, Atlee Pomerene and Owen Roberts to investigate the Teapot Dome scandal. This appointment was unique in that it was mandated under a special Congressional joint resolution, and was subject to approval in the Senate, similarly to a cabinet appointment. This process was unique in the history of federal special prosecutors.
In 1952, Harry Truman appointed Newbold Morris "special assistant to the Attorney General" to investigate the corruption at the Bureau of Internal Revenue following Congressional pressure and calls for a special prosecutor. After Morris submitted a lengthy questionnaire on personal finances to be completed by all senior executive officers, he was fired by Attorney General Howard McGrath, who was in turn fired by the president. Following the appointment of a new attorney general, the investigation was continued through regular channels.