Published October 04, 2011
House Judiciary Committee Chairman Lamar Smith, R-Texas, is requesting President Obama to instruct the Department of Justice to appoint a special counsel into whether Attorney General Eric Holder committed perjury during a Judiciary Committee hearing on May 3.
At issue is whether Holder misled Congress when he indicated that he was not familiar with the Bureau of Alcohol, Tobacco, Firearms and Explosives program known as Fast and Furious until about April 2011, more than a year after concerns were raised about the release of U.S. guns to Mexican drug cartels.
A special counsel would be similar to an independent investigator, but is not the same as a "special prosecutor" or "independent counsel." Statutory authority no longer exists for either of those positions.
The authority was first created after Watergate and the 1973 "Saturday Night Massacre" in which President Richard Nixon fired multiple figures, including his attorney general, deputy attorney general and Special Prosecutor Archibald Cox.
As a result of the scandal, Congress crafted a statute which created a special prosecutor or independent counsel to investigate certain government officials. The person to fill the role would be appointed by a panel of judges from the U.S. Court of Appeals for the District of Columbia.The attorney general was left with the authority to fire the independent counsel.
A special prosecutor or independent counsel has been named a few times since. In 1994, Attorney General Janet Reno appointed Robert Fiske as special prosecutor to probe then-President Bill Clinton's Whitewater land deal and the peculiar death of Deputy White House Counsel Vincent Foster.
When Fiske wrapped his report, Congress changed the law, creating the position of independent counsel. At that point, D.C. Circuit Judge David Sentelle removed Fiske and appointed Ken Starr as independent counsel.
Starr's inquiry stretched for many years, culminating in his probe of the president's affair with intern Monica Lewinsky and his subsequent impeachment.
After Starr's investigation, the Office of Independent Counsel was terminated in 1999. It was replaced with the Office of Special Counsel.
This office comes under the aegis of the Justice Department and essentially functions as a U.S. attorney. He or she operates within the Department of Justice but does not report to the attorney general or any political appointee (hence, eliminating the problem Cox had with Nixon).
This is how the process occurred under Attorney General Alberto Gonzales during the scandal over the firing of several U.S. attorneys. Another example is the appointment of Patrick Fitzgerald to look into the release of the identity of CIA operative Valerie Plame.
The current law allows the attorney general to appoint a special counsel to conduct investigations. In this case, since Holder is the one in the spotlight, Smith is calling on President Obama to request the special counsel.
Fox News' Chad Pergram contributed to this report.