The scandal reached the innermost circles of the president — in this case, Ulysses Grant, who, to avoid a conflict of interest, appointed a special prosecutor, former U.S. senator John Henderson, to unearth any crimes. It wouldn’t end well for Henderson or for Grant, who eventually sat for a deposition in the White House — the first and only time a sitting president has ever done so on behalf of a defendant in a federal criminal prosecution.
Thus began America’s long experiment with special prosecutors and their investigations, with a new chapter being written by Robert S. Mueller III and his probe into allegations of Russian interference in the 2016 presidential election. On Tuesday, that chapter took an even more intriguing turn when it was revealed that, less than a year into President Trump’s first term, Mueller obtained warrants in July 2017 to search the emails of Trump’s then-attorney Michael Cohen.
In the almost 150 years since the Whiskey Ring scandal, when presidents found themselves or their cronies under the legal microscope, their administrations have tapped special prosecutors to lead the inquiries. Largely free of interference from the attorney general, the special prosecutors typically enjoy a sizable amount of autonomy. But their absolute independence is not a guarantee. (See President Trump’s tweets frequently castigating Mueller.) Still, from Whiskey Ring to Watergate and all the way to the Russia probe, the appointment of a special prosecutor remains the executive branch’s modus operandi to investigate corruption at the senior-most levels of government.
Some of those earliest special prosecutors are hardly household names anymore. But in their moment, they were well-known. And they often showed flashes of aggressiveness and autonomy that define the work of their more well-known successors, including Mueller and Kenneth Starr, who presided over the investigation into President Bill Clinton’s personal and business affairs, leading to his impeachment.
Lords of the Whiskey Ring
John Henderson, a former Republican senator from Missouri, seemed like the perfect person to serve as the nation’s first special prosecutor. As a senator, he’d broken ranks with Republicans in 1868 and cast the deciding vote in favor of acquitting Grant’s predecessor, Andrew Johnson, a Democrat, during his impeachment trial, according to Andrew Coan’s book, “Prosecuting the President,” published in January. “In this respect, Henderson fits the typical profile of modern special prosecutors, who tend to be prominent elder statesmen with conspicuous reputations for political independence,” Coan wrote.
Still, the president began siding with the partisan attacks against Henderson, a vigorous prosecutor who did not take his time collecting convictions. Henderson wasn’t a softie in court, either. During the trial of William Avery, the Treasury Department’s former chief clerk, Henderson flew into a tirade against the conspiracy’s various players, even lambasting Grant himself. According to “Secrets of the Great Whiskey Ring” by John McDonald, a former Union general who helped mastermind the conspiracy, Henderson implied Grant was criminally liable.
Grant was reportedly livid. Henderson was fired shortly afterward, right before the trial of one of the president’s closest friends, White House chief of staff Orville Babcock, “a schemer of unusually insidious brilliance,” Coan wrote.
Henderson was replaced with another special prosecutor, James O. Broadhead, and Grant agreed to testify in a deposition in defense of his friend, who was eventually acquitted. In his book, Coan wrote Grant “paid no price” for coming to the rescue of Babcock, the most high-profile of the Whiskey Ring defendants. Instead, according to Coan, Henderson was plagued by the same kinds of forces that would ring a bell for anyone familiar with Fox News, the Daily Caller or Breitbart: “A fractious but still robust Republican media apparatus amplified that indignation and broadcast it nationally. Party newspapers fed loyalists a sympathetic version of events while relentless attacking Henderson’s motives and actions.”
In the end, Grant was never caught up in the vise of the whiskey scandal. “In fact,” Ron Chernow noted in his 2017 biography of Grant, “his administration had brought more than 350 indictments against the whiskey culprits — an astounding feat for which Grant seldom gets credit.”
A Tempest in a Teapot Dome
The next biggest special prosecution took place in the early 1920s, during what is now known as the Teapot Dome scandal. Its genesis largely began on November 30, 1921, at the Wardman Park Hotel in Northwest Washington, according to Coan’s book.
That day, two men, Ned Doheny, scion to a major oil company, and his personal secretary/bodyguard, Hugh Plunkett, arrived to meet one of the hotel’s residents, Albert Fall, the interior secretary under President Warren G. Harding. The Dohenys and the Cabinet secretary were tight. Two days earlier, Fall agreed to give their family’s oil company, Pan American Petroleum and Transport, a federal oil lease worth hundreds of millions of dollars. No other firm was asked to make a bid, according to Laton McCartney’s 2008 book “The Teapot Dome Scandal.”
Now, Doheny was paying a visit to Fall inside the Wardman Park to express gratitude. Inside Doheny’s black parcel bag was a loan for Fall: five rubberband-bound stacks that totaled $100,000. Fall, a former senator from New Mexico, needed the cash to purchase water access for his ranch east of the Rio Grande. But Fall wasn’t done accepting illicit payments. Four months later, oil baron Harry F. Sinclair sent an emissary — Fall’s son-in-law — to pay Fall nearly $200,000 for having awarded his firm with a lease that included prized oil fields in Wyoming, including one called Teapot Dome.
“Together, these transactions culminated the most audacious and far-reaching conspiracy in the history of American politics,” Coan wrote in his book. “The plot began with the nomination of Warren Harding to head the Republican ticket in 1920. Dozens of the most powerful politicians and businessmen of the age were directly or indirectly involved. Even today, the precise scope of the conspiracy remains uncertain. But this much is not in doubt: [They] conspired to make Harding president. And they did so for one reason — to get their hands on federal oil reserves.”
Everything unraveled when a conservation watchdog, who was well-sourced at the Interior Department, leaked the story of the Sinclair deal to the The Wall Street Journal in the spring of 1922. The newspaper published a front-page story quoting anonymous Interior Department officials saying, “The arrangement ... marks one of the greatest petroleum undertakings of the age ... and signalizes a notable departure on the part of the government in seeking partnership with private capital for the working of government-owned natural resources.”
The Senate launched an investigation. But Harding died in August 1923, so his vice president and successor, Calvin Coolidge, called for the appointment of two special prosecutors. But his nominees pulled out after a public outcry over their links to the oil industry.
Finally, Owen Roberts, a University of Pennsylvania law professor, and Atlee Pomerene, a Democrat and former Ohio senator, got the job. They moved fast, first filing civil lawsuits to cancel the Sinclair and Doheny deals. Their court victories, Coan writes, meant that “hundreds of millions in oil wealth was returned to the American people.” The duo were less successful earning criminal convictions. Although they brought eight cases, they only won two findings of guilt: one for Fall, the former Cabinet secretary, and another for Sinclair. Both men, according to Coan, spent less than a year incarcerated.
The -gate that launched a hundred -gates
Nearly 50 years later, the June 1972 break-in at the Democratic National Committee’s headquarters at the Watergate hotel kicked off the most sensational presidential scandal in U.S. history, one that nearly killed the special prosecutor’s role but ultimately catalyzed its redemption.
In the spring of 1973, after it became clear from press reports and court hearings that the burglars pulled off their caper at the behest of top White House officials, President Richard Nixon went on national television. “I want to talk to you tonight from my heart,” he said in his April 30 address. Over the next several minutes, he expressed shock about the break-in, declared he was “appalled at this senseless, illegal action,” and announced the resignations of his chief of staff, Bob Haldeman, and top aide, John Ehrlichman. Most important, though, he said he had named a new attorney general, Elliot Richardson. Nixon seemed committed to an aboveboard inquiry: “I have instructed [Richardson] that if he should consider it appropriate, he has the authority to name a special supervising prosecutor for matters arising out of the case.”
Richardson most definitely thought a special prosecutor was “appropriate.” The next month, he appointed his friend, Archibald Cox, a Harvard labor law professor, as the Watergate special prosecutor. The ground rules gave Cox wide latitude. Richardson agreed not to “countermand or interfere” with Cox’s prosecutorial decisions, according to Coan. Nothing seemed off-limits. Cox could dig into the burglary and other crimes originating from the 1972 presidential election.
But Cox’s tenure — and Nixon’s appearance of propriety — did not last long. After Senate investigators learned that Nixon’s conversations in the White House had been recorded, Cox immediately asked for the tapes. Nixon, who seemed so enthusiastic about the idea of a special prosecutor during his live television address, refused to supply them. So, naturally, Cox subpoenaed them. Only once before in American history had a president been subpoenaed — Thomas Jefferson — so Cox’s move was bold.
Eventually, a judge ordered Nixon to comply, and the White House still refused. The matter went to an appeals court, which directed Nixon and Cox to broker an agreement on their own. Neither side could. So now, the appeals court ordered the president to hand over the tapes. Nixon’s solution: Fire Cox. He ordered Richardson to do it, but he resigned. Then, he ordered Richardson’s deputy, and he, too, refused and resigned. Finally, the command was carried out by Solicitor General Robert Bork, who fired Cox in late October 1973, capping off a sequence of events known as the Saturday Night Massacre.
By Nov. 1, a new special prosecutor, Leon Jaworski, a conservative Texas lawyer, was put in place. He brought many of Nixon’s top aides to trial, but most important, he continued Cox’s quest for the tapes. On July 8, 1974, in what is perhaps one of the most dramatic hearings at the Supreme Court, Jaworski told the justices that Nixon’s claims of executive privilege were not grounded in the Constitution and that the tapes were essential for uncovering crimes by Nixon’s aides. In his obituary of Jaworski, longtime Post reporter Martin Weil — whose name appears as a contributor at the bottom of the Post’s first story on the Watergate burglary — described the scene at the court.
While the president might be right in his claim of privilege, Mr. Jaworski said, he might be wrong. “And if he is wrong, who is there to tell him so? And if there is no one, then the president of course is free to pursue his course of erroneous interpretations. What then becomes of our constitutional form of government?”When the drawling, well-tailored Mr. Jaworski appeared on the Supreme Court steps after the hearing, in the emotionally charged atmosphere of those days, it was to wild applause and cries of “Right on, Leon! Way to go.”"Leon Jaworski, Key Watergate Prosecutor, Dies of Apparent Heart Attack at Age 77." Washington Post, Dec. 10, 1982
Jaworski won — and won big. The Supreme Court voted unanimously in his favor. Whereas Cox sought only for a handful of Nixon’s tapes, Jaworski secured dozens. Fifteen days later, Nixon resigned as the country’s 37th president.
Recently, Jaworski’s role in Watergate returned to the news cycle, after the National Archives released in October “one of the last great secrets” of the Watergate investigation, as it was billed. The document was known as the “Road Map,” a sealed report Jaworski, who died in 1982, sent to Congress detailing the Nixon campaign’s funding of the Watergate break-in and Nixon’s role in the coverup. Although many of the report’s juiciest nuggets have long been known, experts said the document’s structure and style — evidence of crimes without Jaworski’s opinions — could be a potential guide for Mueller and his own report.
Post-Watergate, mistrust in government skyrocketed. It wasn’t until 1978 that Congress finally enacted the Ethics in Government Act, which established the role of an “independent counsel,” a term that might sound less menacing than “special prosecutor” but was intended to stress the job’s autonomy from any presidential meddling in an investigation.
But the new law had its pros and cons. On the pro-accountability side, it left the selection of the independent counsel up to a panel of federal judges, removing responsibility from the attorney general and, by extension, the president. If the president wanted to fire the prosecutor, he would need “good cause,” but even that move would need review by federal judges. “The end result was a far more powerful and politically independent special prosecutor than had ever before existed in the United States,” Coan wrote.
The downside, though, was that the president’s handpicked attorney general still had absolute, unchecked authority to seek an independent counsel in the first place. If the attorney general got wind of a potential crime, he or she could on their own ignore it, without ever initiating the process of judges selecting the special prosecutor.
Weapons, Hostages, and Rebels
In December 1986, in the middle of President Ronald Reagan’s second term, the new law was tested in a serious way.
Lawrence Walsh, a lifelong Republican and Reagan supporter, was appointed as independent counsel to investigate the Iran-contra affair. The tangled scandal, which was exposed to the public by the press, involved a domino-like set of misdeeds and criminal acts: First, the Reagan administration illegally sold weapons to Iran, which needed the arms for its war against Iraq. In exchange, the U.S. expected Iran to pressure Lebanon to release American hostages. Second, the money earned off the weapons sales to Iran was then diverted, against the law, to fund right-wing rebel groups fighting the Marxist Sandinistas running Nicaragua. Walsh needed nearly seven years to investigate this mess.
In the end, Walsh found “no credible evidence” that Reagan committed a crime, only that he enabled others to break the law. But many of his top aides were either dismissed or convicted, including Oliver North, a Marine lieutenant, the scandal impresario who is now president of the NRA. North was among many people convicted, though appeals courts later overturned them. A handful of others got pardons in 1992 from Reagan’s successor and vice president, George H.W. Bush. Walsh, who died in 2014 at the age of 102, wrote a memoir in 1997 called “Firewall” of his time as independent counsel, blasting Reagan.
“What set Iran-Contra apart from previous political scandals,” Walsh wrote, “was that a coverup engineered in the White House of one president and completed by his successor prevented the rule of law being applied to perpetrators of criminal activity of constitutional dimension.”
The R-rated Whitewater investigation
Just as one mammoth scandal ended, another soon began. In August 1994, at the request of Attorney General Janet Reno, the federal judiciary appointed Kenneth Starr, a former federal judge and solicitor general, to investigate President Bill Clinton’s and Hillary Clinton’s real estate deals in Arkansas. Soon, the inquiry vastly expanded into the president’s sexual affair with White House intern Monica Lewinsky.
Clinton and his allies fought back against Starr in the media, but, thanks to the Ethics in Government Act, he could not fire him. On Sept. 11, 1998, the Starr Report was released, giving the public the sordid details one might find in a romance novel. Three months later, the House impeached Clinton for perjury and obstruction of justice, but the Senate acquitted him in February 1999.
As for the role of special counsel, the damage was done. Starr left the job as “one of the most negatively evaluated public figures in Gallup poll annals,” according to the survey firm.
But he’s the most famous living former special prosecutor, speaking every so often on national television about the Mueller investigation and touting his aptly named new memoir, “Contempt.”
In an appearance on CNN earlier this month, Starr squared off face-to-face for the first time with Clinton’s press secretary at the time of the scandal, Joe Lockhart. Both sides were as dug in as deep as ever. Lockhart said the Trump-Russia affair is far more dangerous and unprecedented than the Clinton scandals or others in history that prompted special prosecutors. “Even [people] look at the Teapot Dome scandal as paling in comparing to this,” Lockhart told the CNN hosts and Starr.
Starr defended his tenure, reminding viewers that President Clinton lied to a grand jury. Asked how much of Mueller’s report he hopes Attorney General William Barr releases, Starr did not hesitate with an answer: “Oh, I would love to know more rather than less.”
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