What makes a prosecutor "special"?

Answers to your questions about the news.
Sept. 30 2008 6:39 PM

What Makes a Lawyer "Special"?

The difference between special counsels, special attorneys, and special prosecutors.

Michael B. Mukasey. Click image to expand.
Attorney General Michael Mukasey

Connecticut federal prosecutor Nora Dannehy was tapped Monday to look into the 2006 firing of nine U.S. attorneys, allegedly without cause. Some news reports describe her as a "special prosecutor," others just call her a "prosecutor. So what's the difference?

Independence. A "special prosecutor" is an outside lawyer brought in to investigate a government official accused of wrongdoing. He or she isn't directly accountable to the people or agency under investigation, avoiding the potential conflict of interest that a regular prosecutor would have. But Dannehy comes from within the Department of Justice and will report directly to the attorney general and his deputy: Technically, she's a "special attorney," rather than a special prosecutor. That means she was appointed under a section of the U.S. code that allows the government to assign department lawyers to cases outside their home district. Dannehy lives in Connecticut but will be acting under the power of the U.S. attorney for the District of Columbia. (A DoJ spokesman told the Explainer that the department will neither correct nor encourage the description of her as a "special prosecutor" in news reports.)

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The term "special prosecutor" first came into use in the United States during the Teapot Dome scandals of 1920s, when Calvin Coolidge appointed outside lawyers to look into the corrupt land-leasing practices of federal officials. Special prosecutors were given more official status in the aftermath of Watergate, when Richard Nixon finagled the firing of the one assigned to investigate him. The Ethics in Government Act of 1978 called for the position of "special prosecutor" to be separate from the executive and legislative branches and to be appointed by a three-member panel of judges from the U.S. Court of Appeals. The act also gave special prosecutors the power to issue subpoenas, start grand jury proceedings, hire a staff, use the resources of the Department of Justice and FBI, and get a security clearance if needed. (Later, the name "special prosecutor" would be officially changed to "independent counsel.")

The Supreme Court upheld the law governing special prosecutors in 1988, but Congress let it expire in 1999 in the wake of Kenneth Starr and the Clinton investigation. * In its place, the Department of Justice created regulations (PDF) allowing for the selection of an outside "special counsel" on those occasions when there's a conflict of interest within the department. Unlike the independent counsels that came before, a special counsel is appointed by the attorney general, so he doesn't enjoy the same strict separation from the executive branch. He does have more freedom than a "special attorney" like Danahey, though: He has "independent authority" to exercise all investigative and prosecutorial functions and is not subject to day-to-day oversight by DOJ officials. Moreover, the AG has only very limited authority to reverse a Special Counsel's decisions, or to remove the Special Counsel. By contrast, Danahey was not only appointed by the attorney general, but she is also directly accountable to him: Mukasey can direct, superintend, and reverse her decisions. *

Got a question about today's news? Ask the Explainer.

Explainer thanks Peter Carr of the U.S. Department of Justice, Katy Harriger of Wake Forest University, Sean Malone of Jones Day, and Paul Rothstein of Georgetown University.

Correction s, Oct. 1, 2008: This article originally misstated the year the Supreme Court upheld the law governing special prosecutors. It was upheld in 1988, not 1998. (Return to the corrected sentence.)

The original version of this paragraph understated the independence of the Office of Special Counsel and included a reference to Patrick Fitzgerald that was unclear about the actual scope of his authority. ( Return to the corrected passage.)

Noreen Malone is a senior editor at New York magazine.

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