Lots of investigations, lots of questionable results. That, in a nutshell, sums up the more than 40-year history of the role of special prosecutors, the outside lawyers the U.S. government has on occasion tapped to investigate wrongdoing by one of its own.
The pressure is mounting on the Justice Department to appoint such a prosecutor to probe Russian interference in the presidential election and contacts between the Russian government and Donald Trump’s presidential campaign.
Senior Democrats and some Republicans stepped up their calls this week, after The Washington Post reported that Attorney General Jeff Sessions failed to disclose meetings he had with the Russian ambassador last year. Facing conflicts of interest, Sessions recused himself Thursday from any campaign-related probes.
While appointing a special prosecutor may be an obvious path forward in light of those revelations, it has proven over the years to be a deeply flawed mechanism, so much so that Congress allowed a law authorizing them to lapse in 1999, “abandoned by all but a few of its earlier supporters,” as The Post wrote at the time.
The investigations are costly and unusually time consuming, and sometimes expand far beyond their original missions.
The reason, critics have suggested, is the extraordinary public pressure placed on special prosecutors (also known as special counsels or independent counsels) to come up with something, or at the least to exhaust all possibilities that there might be something to come up with before calling it quits.
Perhaps most notoriously, Kenneth Starr’s probes of Bill and Hillary Clinton’s real estate dealings and the suicide of Deputy White House Counsel Vince Foster swelled to include a broad range of disparate allegations and eventually gave way to the totally unrelated Monica Lewinsky scandal.
Starr later conceded that his investigation was too long, “horribly chaotic” and beset by leaks, as “witnesses would come out of the third floor of the grand jury room” and “meet the press.” Leaks have abounded in other cases as well, in part because the secrecy imposed by the law on grand jury proceedings does not apply to witnesses who testify before grand juries.
Other special prosecutors went on to lament how the role transformed over the years.
“It’s become so politicized now,” former special counsel James C. McKay, who probed alleged influence peddling in the Reagan administration, said of the Clinton investigations in 1998. “The ‘ins’ hate it and the ‘outs’ love it just for the purpose of bringing the ‘ins’ down. That’s the part that will turn the public sour.”
The role has its roots in the Watergate scandal in the 1970s. At the time, the Nixon administration confronted a situation in which it would have been investigating itself had the attorney general pursued the matter.
Under pressure from Congress, the Justice Department appointed Harvard Law School professor Archibald Cox as “special prosecutor,” with the assurance that the White House wouldn’t interfere with his investigation. When Cox tried to subpoena secret tape recordings from the Oval Office, however, President Richard Nixon ordered him fired (the “Saturday Night Massacre”) and tried to abolish the position.
In the wake of Watergate, Congress passed an ethics law that created a new “independent counsel” role with broad power to investigate wrongdoing by government officials. Under the law, the attorney general or Congress could request an independent counsel. But to shield the position from political meddling, the law made a panel of federal judges the final arbiter over who was selected and how the investigation was carried out.
Both Democrats and Republicans grew to despise the arrangement, which morphed into something of a political weapon for both sides of the aisle. Critics said the law gave the independent counsel too much leeway, to the point that some argued it was unconstitutional. The law survived a Supreme Court challenge in the 1990s, but Congress let it lapse in 1999, following the investigations against Clinton and his subsequent impeachment.
As The Post wrote at the time, Congress’s failure to reauthorize the independent counsel law stemmed from “frustration with the conduct of many investigations,” including their cost, the lack of accountability of special prosecutors and the “unchecked prosecutorial power” some attempted to exercise.
Since then, the power to appoint a special counsel, as it’s known in the current federal regulations, has rested solely with the attorney general.
In the current situation, it’s up to Acting Deputy Attorney General Dana Boente to decide what to do, now that Sessions has recused himself.
If Boente or some other deputy does appoint someone, that official could still wield considerable power over the scope of the investigation should he choose to. Under the current regulations, he can define the special counsel’s “prosecutorial jurisdiction,” and has the ability to reverse almost any of the special counsel’s “significant actions.”
Boente, or whomever Trump nominates to become deputy attorney general permanently, could also remove the special counsel for a range of reasons, including “incapacity” or “other good cause.”
If a special counsel is appointed, it comes with the risk of obscuring information Democrats and others are seeking to bring to light. A special counsel’s job is to look for evidence of a possible crime, not expose wrongdoing to the public. If a special counsel decides there isn’t enough evidence to bring criminal charges, anything gleaned during the investigation is supposed to stay hidden, no matter how damning it may otherwise be.
The issue came up in the mid-2000s, when the Justice Department appointed Patrick Fitzgerald to investigate the leak of a CIA officer’s identity by officials in the Bush administration. His probe led to a limited prosecution of the vice president’s chief of staff, I. Lewis “Scooter” Libby, not a sweeping case against the high ranks of the White House that critics had hoped for, as David Corn previously noted in Mother Jones. Fitzgerald was barred by rules governing criminal investigations from releasing any evidence that didn’t relate directly to Libby’s indictment and prosecution.
“Everything else he had unearthed via subpoenas and grand jury interviews had to remain secret,” Corn wrote. “Repeatedly, Fitzgerald said that his hands were tied on this point. A special prosecutor, it turns out, is a rather imperfect vehicle for revealing the full truth.”
Peter Zeidenberg, who served as assistant special counsel in Libby’s prosecution, argues that in the Trump administration’s case, appointing a special counsel would “likely be a mistake.” Such a move could actually wind up burying information related to the Trump campaign’s alleged ties to the Russian government, he wrote Thursday in an essay for The Post.
“If, after a full criminal investigation, it was determined that a crime occurred but the critical evidence was not obtainable — say, for purposes of argument, that this evidence was in Russia, unobtainable by subpoena — then it would be improper to seek an indictment,” Zeidenberg wrote. “Critically, the entire investigation would then remain secret. It would be a violation of law for a prosecutor to make public the results of a grand jury investigation that did not result in an indictment.”
The problem, as others have suggested, is there’s no better alternative for situations when an administration is being called upon to investigate itself.
While many insist that career prosecutors, who are not political appointees, are perfectly capable of conducting full and fair investigations, the fact that they report to political appointees whose survival may depend on the outcome of a probe casts a shadow of public distrust over their work.
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