Special Prosecutor or Independent Counsel?




Should Congress revive the Office of the Independent Counsel, that special cop who investigates executive branch wrongdoing? With allegations of collusion between Trump’s team and Kremlin election tampering, the debate has gotten a lot of ink (or pixels).


But the History Doctor won’t speculate on the current situation. Let’s leave it to others to establish the facts.

The Kremlin

The Kremlin



The question here is whether these laws are useful or whether they are too easily distorted for political purposes. As with another tricky issue, campaign finance reform, do these laws have unintended consequences that are worse than the problem they are trying to solve?


Is the cure worse than the disease?



Unchecked executive power?


Special prosecutors can be appointed by the attorney general, through the president, at any time. They have been used in the past, e.g.  the 1920s Teapot Dome corruption affair. But history shows that no executive branch can be trusted to investigate itself. Another entity, the independent counsel, was created after Watergate to be appointed by the legislative branch to investigate the executive and act as a check on executive power.


In late 1972, as Washington Post reporters uncovered the Watergate break-in, clues from a secret informant implicated the White House. Attorney General Elliot Richardson appointed Special Prosecutor Archibald Cox. But President Richard Nixon simply ordered Cox to stop investigating.


You can understand why. The trail would lead right to Nixon’s inner circle.  Cox refused, so Nixon demanded his removal but then Attorney General Richardson and his Deputy William Ruckleshaus both refused to sack Cox, so Nixon sacked them. Then Nixon asked Robert Bork, yes, that Bork,  third in line, to shut down Cox. Famous in our lexicon is “the Saturday Night Massacre” when Richardson and Ruckleshaus were kicked out by the people they were trying to hold accountable.

special prosecutor



After Watergate, President Carter signed the 1978 Ethics in Government Act to establish the Office of Independent Counsel.


The independent counsel answers only to Congress, unlike the special prosecutor whom the president indirectly controls through the attorney general.



Political targeting?


After allegations of  financial malfeasance Congress appointed Independent Counsel Ken Starr to probe the Whitewater real estate deals of Bill and Hillary Clinton.


As Starr followed the money trail, he ultimately bumped into sexual harassment claims against President Clinton by an Arkansas woman named Paula Jones. The Jones probe turned up Monica Lewinsky, leading to perjury charges and “obstruction of justice” by the president. Clinton was impeached by the House in December 1998. The Senate then held the removal trial, but the vote failed its two-thirds threshold to remove him.


Personal note: The very last independent counsel who wrapped up the Clinton investigation is a Rumson, N.J. gentleman named Robert Ray. I taught all three of his children.


Government overreach?


To nutshell it: An investigation for one purpose morphed into another, and kept going. Millions were spent, and ultimately Clinton’s presidency was weakened. Party loyalty aside, Supreme Court justices have disagreed about whether the legislative branch should have that kind of power.


The Constitution’s Article I says Congress (and states) may not pass a bill of attainder. That’s an act that singles out an individual or group for punishment without a trial. In other words, some legislature decides that you are guilty of a crime and votes to punish you. Under a bill of attainder, a simple majority vote convicts the accused. No jury. In European history, bills of attainder were used to pauperize the target.


So one current concern is that the Independent Counsel Law too closely mimics a bill of attainder. The legislature pre-decides criminal guilt, and then releases the Kraken of an independent counsel, with unlimited time and unlimited resources, and often great zeal, to build a case against the target. Hillary Clinton, having been under investigation for one thing or another for a quarter century, felt she was being unfairly targeted. A legislature can’t just vote to “lock her up,” no matter how popular the idea.


Checks and balances frustrated?


Such a thing defines government overreach. Justice Scalia in 1988 was the lone dissenter when the Supreme Court upheld the Independent Counsel Law, arguing that the legislative branch was taking over executive functions. The rest of the court disagreed.


Presently there is circumstantial evidence that the Trump campaign criminally colluded with Russian spies to interfere in the 2016 election. The question is whether it serves the nation’s best interests to revive the law for future situations. It’s unlikely President Trump would sign such a law while he is under a cloud of suspicion. In this case, the compromise may be either a special committee, or a new leader for the House Intelligence Committee, now that its Chair Devin Nunes has recused himself.


Perhaps the most important criterion is that any investigation be seen by the public as impartial. Investigations must be motivated by the need to uphold the laws and to preserve norms, not secure partisan power.


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