Separation of Powers and the Politics of Independent Counsels

Abstract

As a part of its post-Watergate reform efforts, Congress created an independent counsel arrangement in the Ethics in Government Act of 1978. After Richard Nixon fired Watergate Special Prosecutor Archibald Cox in the October 1973 Saturday Night Massacre, Congress sought to limit executive branch control of such investigations by providing for judicial appointment of an independent special prosecutor in cases involving allegations of criminal wrongdoing by high-level executive branch officials. Subject to a five year sunset provision, the statute was reauthorized in 1982 and 1987. Plagued by election year politics and the threat of a Republican filibuster in the Senate, Congress failed to reauthorize the provisions before they expired in December 1992. The provisions were revived as the obstacle of executive branch resistance was removed with the arrival of the Clinton administration. The Senate passed a new bill in November 1993, the House passed a slightly different version in February 1994, and a final version was adopted in June of 1994.1