Potent But Unpredictable: How Special Counsels Have Posed A Special Threat

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All official Washington — and indeed a wide swath of citizens from coast to coast — waits with great anticipation for the report from Justice Department special counsel Robert Mueller.

Mueller, the former director of the FBI, is the war hero and Republican who was designated 22 months ago to investigate whether any Americans were involved with Russian interference in the 2016 presidential election.

Mueller's operation has had a hand in more than 30 indictments and obtained a remarkable number of guilty pleas. It also has spun out a number of other investigations that could wear on long after his report is filed.

But Mueller's probe, while far from the only investigative threat to the Trump presidency, has become the focal point. Mueller's name has become the shorthand for every legal issue that clouds the sky over the White House.

These stakes, and the potential effects for a sitting administration, have been seen before in Washington. A number of independent investigators — including special counsels, independent counsel and special prosecutors — have looked into deeds and events deemed too hot for the normal governmental processes to handle.

The special investigators

The idea behind these offices has always been that certain allegations were simply too hot for routine processing by the Justice Department, because any attorney in that department would be a subordinate of the president and the attorney general that attorney was called on to investigate.

In fact, perhaps the very first president to appoint a special counsel wound up firing him when the investigation got too close to the White House itself. That was in 1875, when President Ulysses S. Grant named a special prosecutor to investigate a ring of corrupt officials in the Midwest.

Over the next several decades, the special prosecutor tool was used rather sparingly. During James Garfield's presidency, a special prosecutor looked into corruption in the Post Office, a probe that lasted several years — and outlasted Garfield, who was assassinated in 1881.

A pair of special prosecutors was also the order of the day when President Calvin Coolidge wanted to limit the damage from the "Teapot Dome" scandal. Several associates of Coolidge's White House predecessor, Warren Harding, were found to have profited personally from sweetheart deals with oil companies. Coolidge found two men without ties to the administration and their work sent several former officials to jail.

Almost three decades later, President Harry Truman was pressured to name a special prosecutor to answer questions raised about corruption in the IRS (then called the Bureau of Internal Revenue). Instead, the sitting attorney general named a special assistant to report to him. That got complicated when the "assistant" named Newbold Morris sent an exhaustive questionnaire to administration officials.

For that aggressive move, Morris was fired by the attorney general – who was in turn fired by Truman. None of this helped the Democrats' case in the election year of 1952 that brought Dwight D. Eisenhower to the White House.

Watergate

The modern history of the special prosecutor really begins with the Watergate burglary in 1972.

The connection between the burglary of the Democratic National Committee and President Richard Nixon's campaign was first revealed in a legendary series of stories in The Washington Post.

Those stories, like the early allegations regarding Russian interference in 2016, had little discernible effect on the presidential election in progress at the time. But soon thereafter, the investigative forces of the government took over, and Nixon found himself unable to stop them.

It was not for lack of trying. During his 1973 confirmation hearing to be attorney general, Elliot Richardson promised to appoint a special prosecutor to see what Watergate was all about. That special prosecutor, law professor Archibald Cox, was soon learning a great deal about Watergate and issuing a subpoena for the tape recordings Nixon had made of his Oval Office conversations.

The confrontation over those tapes led Nixon to direct Richardson to fire Cox, which Richardson refused to do and instead resigned. Richardson's deputy also resigned. The series of weekend departures came to be known as the "Saturday night massacre."

Public outcry eventually forced Nixon to name a new special prosecutor to replace Cox, a conservative Texas Democrat who had been a Nixon supporter and a Watergate skeptic.

Nonetheless, Leon Jaworksi wound up charging a slew of high-level White House actors and naming Nixon himself an "unindicted co-conspirator." That phrase, along with the hearings held by the House Judiciary Committee in the spring of 1974, moved impeachment from a long shot to an inevitability.

Nixon resigned in August of that year.

Whatever feelings lingered about Nixon within Washington thereafter, the feeling around the special prosecutor statute was decidedly cool. It seemed too deadly a weapon, too easily wielded against a president, even one who had carried virtually every state in winning re-election, as Nixon had.

Iran-Contra

The law was still available in 1986, when news stories reported the administration of Ronald Reagan had sold American weapons to its regime to facilitate the release of U.S. hostages. The revelations included the stunning fact that money realized in the transaction had been used to fund a covert guerrilla operation in Central America aimed at overthrowing the government in Nicaragua.

The so-called Iran-Contra scheme prompted a protracted congressional investigation, which complicated and hindered the work of an independent counsel named Lawrence Walsh.

A former federal judge and deputy attorney general under President Eisenhower, Walsh would eventually indict the former Secretary of Defense Caspar Weinberger, former national security adviser John Poindexter and National Security Council staffer Oliver North. Weinberger eventually received a pardon before trial from President George H.W. Bush. Poindexter and North were initially convicted but had their convictions reversed.

The Clintons and Whitewater

The independent counsel law was still on the books a few years later as Democratic President Bill Clinton came under scrutiny. Clinton had defeated Republican George H.W. Bush in 1992 but had garnered only 43 percent of the popular vote in doing so. His first two years in office had left him below 50 percent approval with the voters and led to the GOP takeover in Congress in 1995.

More to the point, Clinton had never cleared up a controversy stemming from investments he and his wife, Hillary, had made in an Arkansas real estate venture known as Whitewater. A deal had gone bad, bankrupting a savings and loan association. The story was an issue in the 1992 campaign, but ultimately did not prevent Clinton's election.

After Clinton took office, the controversy continued. So he asked his attorney general, Janet Reno, to appoint an independent counsel. She named Robert Fiske, a respected Republican litigator, who built a case against several Arkansans involved in the deal but not the Clintons.

In 1994, under what became a hyper-partisan battle, a panel of three judges on the U.S. Appeals Court for the District of Columbia named a new independent counsel. The judges picked Kenneth Starr, a former judge and Bush administration solicitor general, to take over Fiske's investigation.

Independent counsels are allowed to pursue criminal matters they discover in the course of carrying out their original mandate. So while Starr never indicted the Clintons for their role in Whitewater, he became aware of allegations of sexual misconduct by the president from the time when he was governor of Arkansas. This led to information about a young woman who, while an intern in the White House in the mid-1990s, had a sexual affair with Clinton during the time he was president.

That woman, Monica Lewinsky, became a household name, and the president's efforts to deny the accusations became a case of perjury and obstruction of justice – leading to his impeachment by the House of Representatives in late 1998.

Clinton was tried by the Senate in early 1999. Supreme Court Justice William Rehnquist presided over the proceedings. But in the end there were not nearly enough votes to meet the two-thirds vote required for removal.

Moreover, during the worst days of the Starr-Clinton confrontation, the president's approval in the Gallup Poll generally went up – signaling a lack of popular support for the proceeding. Democrats did surprisingly well in the midterm elections of 1996, holding their own in the Senate and actually gaining seats in the House in defiance of the usual second-term midterm curse for the party holding the White House.

Once again, the application of the independent counsel law had proven potent — but unpredictable.