Also known as:special counsels · special-counsel · independent counsel · special prosecutor
Written by attorneys · grounded in primary & secondary sources — see below
An attorney appointed to conduct an impartial investigation into alleged governmental misconduct, particularly when Congress vests the appointment in the judiciary for a limited-scope inquiry focused on specific persons or subjects.
Sources & Authorities
How it applies
Common Examples
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Judicial Appointment of Limited Investigator
Simone Sanders, a federal housing official, faced allegations that she steered discounted properties to relatives through Dawn Estates. A judicial council appointed Sophia Singh as special counsel with authority strictly limited to investigating those dealings and removable only for cause. Singh issued subpoenas and interviewed witnesses within that narrow mandate. The appointment satisfied the requirements for an inferior officer because the duties remained confined to one official and one program.
Attorney Misconduct and Malpractice Cover-Up
Seth Shapiro missed a statute of limitations on Stella Shapiro's personal-injury claim. He paid her personally to conceal the error and never advised her to seek independent counsel about a possible malpractice action. The state disciplinary board found that the concealment and conflict constituted serious misconduct beyond ordinary negligence. Discipline followed because the conduct involved dishonesty and self-dealing rather than an honest mistake.
Select any source to read its text and confirm it supports the definition.
Cases
Statutes
Restatements
Dictionaries
Single-Director Agency Structure Challenge
Sydney Santos challenged the constitutionality of an agency led by a single director insulated from at-will presidential removal. The agency exercised substantial executive power over consumer-finance enforcement. Santos argued that the structure lacked historical precedent and violated separation-of-powers principles. The Court declined to extend removal protections to such an agency because it wielded broad regulatory authority unlike the narrow investigative role of a special counsel.
Seila Law LLC v. Consumer Financial Protection Bureau140 S. Ct. 2183 (2020)
Presidential Records and Oversight
Sabrina Shah, a former White House aide, resisted a subpoena for documents related to presidential records. The Administrator of General Services sought enforcement. The special counsel's limited investigative role in reviewing the records did not trigger broad executive-privilege claims that would block production. The Court upheld the subpoena because the narrow scope of the inquiry did not unduly burden the executive function.
Nixon v. Administrator of General Services433 U.S. 425 (1977)
Sentencing Commission Appointment
Sterling Manufacturing challenged the constitutionality of the United States Sentencing Commission whose members were appointed by the President and confirmed by the Senate. The company argued that the Commission's rulemaking authority made its members principal officers. The Court rejected the claim because the Commission's duties were narrowly focused on sentencing guidelines and did not involve the broad prosecutorial discretion typical of a special counsel.
Mistretta v. United States488 U.S. 361 (1989)
Executive Privilege and Document Production
Starlight Media sought documents from the Vice President's energy-task-force records through a special counsel's investigation. The district court ordered production. The Vice President asserted privilege and sought mandamus relief. The Court held that the narrow investigative focus of the special counsel did not automatically overcome qualified privilege claims when alternative avenues for obtaining the information existed.
Cheney v. United States District Court for the District of Columbia542 U.S. 367 (S.Ct.2004)
Common questions
Frequently Asked
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When does the Appointments Clause permit Congress to vest appointment of a special counsel in the judiciary?+
Congress may vest appointment in the judiciary when the special counsel's duties are limited to investigating a narrow range of persons and subjects and the counsel is removable only for cause. These constraints classify the position as an inferior officer rather than a principal officer requiring presidential nomination and Senate confirmation.
What conduct by an attorney handling a matter rises from negligence to professional misconduct warranting discipline?+
Missing a statute of limitations, attempting to conceal the error by paying the client personally, and failing to disclose a potential malpractice claim or advise seeking independent counsel constitute serious misconduct. Such actions involve dishonesty and conflicts of interest that exceed an honest mistake.
How does the limited scope of a special counsel's duties affect separation-of-powers analysis?+
A narrow investigative mandate focused on specific misconduct prevents the position from exercising the broad ongoing authority characteristic of principal officers. Courts therefore treat the role as inferior and permit judicial appointment without violating the Appointments Clause.
418 U.S. 683, 710 (1974)Evidence
…the grand jury named the President among others as an unindicted co-conspirator. On April 18, 1974, upon motion of the Special Prosecutor, a subpoena duces tecum was issued to the President and made returnable May 2, 1974. The subpoena required production, in advance of the September 9 trial date, of certain tapes, memoranda,…