Also known as: independent counsels · special counsel · independent prosecutor
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
An attorney appointed by a governmental branch or agency to conduct an impartial investigation into alleged misconduct within that branch or agency.
An attorney appointed by a governmental branch or agency to conduct an impartial investigation into alleged misconduct within that branch or agency.
Select any source to read its text and confirm it supports the definition.
An attorney retained to furnish legal advice or representation free from any conflict of interest arising from prior or adverse representation.
Select any source to read its text and confirm it supports the definition.
An attorney retained to furnish legal advice or representation free from any conflict of interest arising from prior or adverse representation.
Each sense below has its own examples, sources, and questions.
A three-judge panel appoints attorney Lisa Grant to probe only one White House advisor's meetings with lobbyists. Grant receives authority to subpoena records and interview witnesses but holds no broad policymaking role. The advisor challenges the appointment under the Appointments Clause. The panel's selection stands because Grant's narrow duties qualify her as an inferior officer.
Congress creates an accounting oversight board whose members can be removed only for cause by commissioners who themselves enjoy for-cause protection from the President. The board members challenge their removal restrictions. The structure violates separation of powers because the President lacks sufficient control over executive officers.
Congress establishes an agency led by a single director removable only for cause and vested with broad rulemaking and enforcement power. A regulated party challenges the director's insulation from presidential oversight. The removal restriction is unconstitutional because the director exercises significant executive authority without adequate presidential supervision.
An independent counsel obtains a subpoena for documents from a witness who invokes the Fifth Amendment. The court grants immunity and compels production. The independent counsel later seeks to use the documents to prepare charges. The Fifth Amendment bars that use because the act of production itself conveys incriminating information.
Congress creates a sentencing commission whose members are appointed by the President and confirmed by the Senate. A defendant challenges the commission's composition as an improper delegation. The appointments satisfy the Constitution because the commission members are principal officers selected through the standard process.
An independent counsel qualifies as an inferior officer when duties are limited to investigating a narrow range of persons and subjects. Congress may therefore vest appointment in the judiciary rather than requiring presidential nomination and Senate confirmation.
Supporting sources
Attorney Patel misses a filing deadline on client Ramirez's claim and pays Ramirez personally to conceal the error. Patel never discloses the potential malpractice claim or recommends that Ramirez consult separate counsel. The state bar pursues discipline. The concealment and failure to advise separate representation constitute serious misconduct beyond simple negligence.
Missing a deadline, paying the client personally to hide the error, and omitting any advice to seek separate counsel for a malpractice claim constitutes serious misconduct. The concealment and conflict of interest justify discipline beyond ordinary negligence.
Supporting sources
Independent counsel helps demonstrate that the waiving spouse understood the rights being altered and entered the agreement voluntarily. Its absence is a significant factor weighing against voluntariness but is not an absolute prerequisite to enforcement.
Supporting sources
…constitutional structure. The Framers vested the executive power in a single President to ensure accountability. By creating an independent prosecutor who is not fully accountable to the President, the Act dilutes that accountability. The majority's holding that the independent counsel is an inferior officer cannot be reconciled with the…