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Background

I recently read an article about the Special Counsel regulations from Neal Katyal, and how it could be maintained in a scenario where it is stifled. That said, I know that other branches of government (or states depending on jurisdiction) can conduct investigations as well. In addition this question talks about the various ways to conduct an investigation in U.S. government. All of this lead me to wonder...

Question

Why does a Special Counsel (or likewise) even need to exist if there are more defined, and (arguably) less controversial ways to conduct an investigation?

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The idea is to appoint an investigator without any appearance and perception of a conflict of interests. They are generally used when there is some potential official corruption suspected.

Government investigators are generally part of some organizational hierarchy which potentially can influence their career paths. Even if that investigator does nothing improper, their relationship with the system (whether positive or negative) can undermine public confidence that they will operate impartially and in the public's best interest. Best practice would be to select someone with an established track record of integrity who isn't a part of the government.

In some ways it's similar to having an external certified public accounting firm audit the books of a public company, even though the firm can do it's own accounting. It gives an increased confidence that the results aren't somehow improper.

  • On the conflict of interest issue, wouldn't an investigator from a different branch of government (or from a state judicial system) have no semblance of conflict of interest at all? Having an investigator within the executive branch opens the door to a conflict of interest, whereas one from another source eliminates that possibility entirely, as I understand it. I'm just wondering how having a branch of government investigating itself is dealt with. – isakbob Oct 17 '18 at 12:50
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    Constitutionally, the concept of separation of powers would probably be threatened by someone from a different branch of government. Investigation by another branch of government (e.g. congress) is still possible, but it wouldn't be a Special Counsel. Another approach is appointing a commission, such as the Warren Commission, which was headed up by the Chief Justice of the Supreme Court. For more detail on the Special Counsel approach, see 28 CFR 600 at law.cornell.edu/cfr/text/28/part-600 – Burt_Harris Oct 17 '18 at 18:24
  • @BenjaminSarkis - An investigator from a different branch probably has no legal authority to perform the kind of functions that an investigator routinely calls upon. That's specifically vested in the executive branch. – PoloHoleSet Oct 17 '18 at 21:43

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