Cokie Roberts Answers Your Questions About Special Prosecutors

In the #AskCokie segment, commentator Cokie Roberts answers listener questions about the history of special prosecutors, and how they are different from special counsels.

RACHEL MARTIN, HOST:

It was only one week ago that the deputy attorney general appointed Robert Mueller as special counsel to investigate Russian interference in the U.S. election. President Trump called it a witch hunt, but his administration is hardly the first to find itself the subject of an independent probe.

There was the Watergate special prosecutor Archibald Cox, who investigated President Nixon. And here's Kenneth Starr, whose investigation of Bill Clinton revealed the president's affair with Monica Lewinsky.

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KENNETH STARR: The evidence suggests that the president repeatedly misused his authority and his power as president. That is not a private matter.

MARTIN: Many of you wanted to know more about the history and the powers of special prosecutors, so our co-host David Greene turned to Cokie Roberts for our regular segment Ask Cokie.

DAVID GREENE, BYLINE: So let's ask Cokie. Hey, Cokie.

COKIE ROBERTS, BYLINE: Hi, David.

GREENE: Well, our first question for you today comes from John Griffiths in Perrysburg, Ohio. Here it is.

JOHN GRIFFITHS: Please review the difference between special counsel and special prosecutor. Also, to whom do they answer?

GREENE: Cokie?

ROBERTS: The terms are fairly interchangeable, actually. And we've also had independent counsel and independent prosecutor.

GREENE: Right.

ROBERTS: The difference is the law governing them. What we've had is special prosecutors for a very long time, starting with President Ulysses S. Grant appointing one to investigate the Whiskey Ring scandal, where officials were siphoning off money from the liquor tax to line their pockets or campaign contributions. But when the indictments got close to Grant's personal circle, the president fired the special prosecutor. Does this sound familiar?

GREENE: It does.

ROBERTS: And then there have been lots of other special prosecutors through the years, including in the Teapot Dome scandal. Then after Watergate, Congress passed the Ethics in Government Act, enshrining the office of an investigator completely independent of the president. But that law expired in 1999.

GREENE: Well, that actually leads perfectly to our next question here.

TRACIE MAHAFFEY: This is Tracie Mahaffey in Tallahassee, Fla. My question is, how is the role of the special prosecutor different now from what it was in the '90s? Are there more limitations on what he can do?

GREENE: OK, so what - does Mueller have limitations that were not there in the '90s?

ROBERTS: Yes. Under the Ethics in Government law, the independent prosecutor was appointed by a special three-judge panel of the court of appeals. And there were lots and lots of prosecutors named over the years under that law. So in the Reagan administration, seven separate investigations.

But the most famous, lengthy and expensive one, of course, was the Iran-Contra investigation which left the Republicans very grumpy. And they challenged the law. The Supreme Court upheld it, but then it was reauthorized with Bill Clinton's enthusiastic endorsement. Then, after seven separate investigations in of administration...

GREENE: Goodness.

ROBERTS: ...Including five Cabinet officers - and honestly, David, it was crazy. Every day there was something else coming out of some special counsel. And, of course, Kenneth Starr and the impeachment. So by the time it was done, everybody was just ready to let the law die.

GREENE: Who does Mueller report to? And could the president actually fire him?

ROBERTS: Well, now it's back to the special counsel being appointed by the attorney general, not a three-judge panel. In this case, since the attorney general had recused himself, it was Deputy Attorney General Rod Rosenstein. The Justice Department controls his budget.

And the person appointed, in this case Mueller, is supposed to operate under Justice Department rules, which includes the power of the attorney general to overrule the special counsel. But if he does that, he's supposed to tell Congress, so it would be public. Also, the rules say he can only be fired for cause, but this isn't written into law, David, so theoretically at least, the president could fire him.

GREENE: We have one more question here from Bruce Barmy on Twitter. Could, at least in theory, a president pardon himself?

ROBERTS: It's actually been asked. In theory, it is possible. It's not in the Constitution. It's never been tested. But apparently, Richard Nixon did consider pardoning himself before he left office. And Bill Clinton, on his last full day in office, agreed to what was essentially a plea bargain with Starr's successor as prosecutor, admitting to testifying falsely and had his Arkansas law license suspended for five years and paid a $25,000 fine. But look, David, never say never. Things are changing every day.

GREENE: All right, commentator Cokie Roberts. You can ask Cokie your questions about how politics and government work. Tweet us, just use the hashtag #askcokie. Cokie, thanks.

ROBERTS: Thank you, David.

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