I have long felt that special prosecutors, while justified in exceptional cases, often lead to public policy error. All prosecutors are invested with enormous power, and so we demand and expect them to use caution and judiciousness. And in theory, all prosecutors face some kind of check on their power, either from voters electing a district attorney or state attorney general, or a president who appoints U.S. attorneys.

But special prosecutors face no such check. Because they have no other job, they are not compelled to consider the importance of their investigation compared to other factors—and they often think they have failed if they do not bring an indictment. At the federal level, the inherent problem with special prosecutors has been recognized, and the federal law which created an Office of Independent Counsel (special counsel appointed to investigate, among others, high level federal officers) has been allowed to lapse.

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