The terms special counsel and independent counsel have been used as if they are synonymous. They are not.
Q: What is a special counsel?
A. A special counsel - sometimes referred to as a special prosecutor - is appointed by and serves at the pleasure of the attorney general to investigate a single incident.
Q: How is that different from an independent counsel?
A. Independent counsels were created under a 1978 law that Congress allowed to expire in 1992. Under that law an independent counsel could be appointed by a three-judge federal appeals court, but only after there was some showing or reason to believe a specific law had been violated.
Q: What's the key difference?
A. While they both have powers to subpoena records and conduct a grand jury investigation, a special counsel works for the Justice Department while an independent counsel as the title suggests, is independent from political tethers.
Q: What was the purpose of the independent counsel law?
A. The law was meant to insulate the counsel looking into allegations of wrongdoing by a sitting president or members of his administration.
It was enacted in the wake of the Watergate investigations, when President Nixon ordered special counsel Archibald Cox fired and, but for public outrage, might have blocked the probe.
Q: What's an independent counsel's authority?
A. An independent counsel, under the expired law, answered only to the three-judge panel in Washington that makes the appointment. The court could narrowly define the nature of the investigation and oversee the counsel's progress. Funds were provided by Congress.
Q: So, why did Congress let the law lapse?
A. There's a strong feeling - particularly among Republicans who felt the brunt of independent counsel investigations during 12 years of the Reagan and Bush administrations - that some counsels were too independent and carried on their investigations well beyond reason. In particular, Lawrence Walsh, the Iran-contra independent counsel who investigated the Reagan administration for six years at a cost of $ 37 million, has been ridiculed as conducting a fishing expedition.
Q: Might the independent counsel law be re-authorized?
A. Yes. Democrats are expected to seek re-authorization of the statute. As a result of the Whitewater controversy it's considered more likely that it will win approval in this Congress.
Q: Why was Attorney General Janet Reno reluctant to appoint a special counsel?
A. Reno claims that a special counsel has little actual independence from her. She has said she would seek appointment of an independent counsel if Congress, after it returns Jan. 25, re-authorizes the law.
Q: Who's been looking into the Whitewater case up to now?
A. Justice Department lawyer Donald MacKay is investigating the Clintons' relationship with Whitewater and Madison. MacKay, who served in the the Nixon and Bush Justice Departments as a political appointee, is now a career member of the department.
Reputation, ties key to appointment
Attorney General Janet Reno's pledge to appoint a "ruggedly independent" special counsel to investigate Whitewater will be tricky to fulfill.
The person picked will need enough stature to be recognized within the legal community, but not readily identified as a political partisan.
Some possible names that circulated in Washington Wednesday night:
Retired Supreme Court justice Byron White. Appointed by John F. Kennedy, White has Democratic ties, but has a straight-as-an-arrow reputation.
Former American Bar Association presidents Talbot D'Alemberte and John Curtin. Past special prosecutors Leon Jaworski and Lawrence Walsh were drawn from ABA ranks.
Former Republican attorney general Elliot Richardson and Democratic attorneys general Griffin Bell and Benjamin Civiletti. Despite partisan appointments, all three enjoy reputations of high ethical standards.
Former solicitors general Kenneth Starr - now in private practice - and Rex Lee, now president of Brigham Young University.
