Of Prosecutors and Special Prosecutors: An Organizational Perspective

Geoffrey Moulton, Delaware Law School
Daniel C. Richman, Columbia Law School


The Independent Counsel statute, designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Following the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr, Congress allowed the statute to sunset. This article assesses and seeks to refute both the standard objections to the now-expired statute and the arguments in favor of a new and improved version. It rejects as false the so-called “discretion dilemma” – the idea that we must choose between under zealous investigation by regular prosecutors and overzealous investigation by ICs – and argues that the structure of and the incentives attendant to the prosecutorial apparatus, the relatively apolitical check provided by federal law enforcement agents, and considerations of appearance and public trust all counsel in favor of leaving the IC concept right where it is – dead and buried. The Department of Justice, an institution dominated by professional prosecutors and investigators with a relatively thin overlay of political appointees, and with a lengthy track record of nonpartisan work, is far better equipped to handle not only investigation of high-ranking government officials but also the political attacks that inevitably attend such investigations.