Document Type

Article

Publication Date

2002

Abstract

When the independent counsel law sank, the casualties included a special "division" of the United States Court of Appeals for the District of Columbia Circuit. This division was the special court that Congress had created "for the purpose of appointing independent counsels." The now-expired 1994 independent counsel statute had, like its three predecessors, directed the Chief Justice of the United States to appoint three judges from the Supreme Court and/or the federal Courts of Appeals to serve on the special court for two-year terms. This independent counsel court, which was located for administrative purposes in the United States Court of Appeals for the District of Columbia Circuit, came to be known colloquially as the "Special Division." This article traces some of the history of the Special Division. I argue that, with regard to this particular piece of the independent counsel law, twenty years of experience suggest that we should not mourn the passing of the Special Division as we knew it. For the future, in writing any statute that again vests in a court of law the power to appoint someone with the power and independence to investigate a president or any of his intimates, the challenge will be to structure a more limited, mechanical and thus realistic--and likely a less controversy-generating- role for any federal judge who is called to perform this collateral duty.

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