The (not-so?) Special Counsel
This has been the year of the special counsel for the Justice Department. In today's polarized political environment, the special counsel draws more attention than regular prosecutors.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
*In the District of Arizona, two Russian men entered guilty pleas to charges resulting from their transfer of millions of dollars’ worth of airplane equipment made in the United States to Russia in violation of the Export Control Reform Act.
*In the Northern District of Ohio, a woman entered a guilty plea for failing to report income from her illegal gambling business on her tax returns. She also caused the business to underpay its employment taxes by failing to report the amount of money paid to the business’s employees.
*In the District of the District of Columbia, a man was sentenced for his part of a scheme to steal and launder money from the Kuwaiti Embassy. The money was meant to pay for medical care for Kuwaiti nationals in the United States but was diverted to the defendant and his co-conspirators. This occurred in 2014 but the man escaped to Egypt and was not apprehended until 7 years later.
The Special World of Special Counsels
The last several weeks have featured a plethora of reports relating to Justice Department special counsels. This past week, Special Counsel Jack Smith made headlines for his ongoing fued with Southern District of Florida District Court Judge Aileen Cannon, who is presiding over Donald Trump’s case relating to retention of national security information. Before that, Special Counsel David Weiss prevailed against Hunter Biden’s Motion to Dismiss the pending charges relating to Biden’s tax evasion case in California. Before that, Special Counsel Robert Hur testified before Congress about his decision not to prosecute President Joe Biden for his unlawful retention of national security information. Add these three to Special Counsel Robert Mueller who investigated Russia’s interference in the 2016 election and Special Counsel John Durham who investigated the investigation into Russia’s interference in the 2016 election and it is clear that special counsels might not be as “special” as they used to be. Instead, they have become a near-permanent component of the Justice Department. This week’s issue explores why they are necessary, some of their history, and the regulations that govern them.
Special counsels have prosecuted federal criminal cases when either (1) the government needs outside assistance or (2) the government has a conflict of interest. The first category does not arise anymore as the Justice Department is large enough and has enough legal talent to handle any type of case. The second category, however, has become an increasingly common phenomenon.
A conflict of interest arises when the prosecutor could be perceived as making a decision about a criminal case based on the nature of the prosecutor’s relationship to the potential defendant rather than the case’s merits. Most often, the situation arises when a high-ranking government official is suspected of criminal activity. Suppose the Treasury Secretary received a payment to ignore suspected tax evasion committed by a leading donor to the President’s campaign. The Attorney General, also appointed by the President, would be ultimately responsible for directing the investigation and prosecution. It is unlikely the Attorney General would be objective when making the decision and could be swayed by political considerations. As the Attorney General also has control over everyone in the Justice Department, the entire Department cannot be trusted to make an objective decision. Therefore, a special counsel is necessary to make an independent judgment about the case’s merits.
That is the key purpose to a special counsel when a conflict of interest exists. The person must make an independent judgment. The question is how to make the counsel’s judgment independent while also providing some measure of accountability so that the special counsel does not keep looking for a crime until finding one.
A look at the development of special counsel’s provides some insight. The national government faced this problem during its infancy. Thomas Jefferson’s former vice-president, Aaron Burr, plotted an expedition to the mouth of the Mississippi River. While his precise purpose remains murky, it involved undermining the United States’ interests in the area. Jefferson, his Attorney General and the United States Attorneys for Kentucky and Virginia all participated in the investigation and multiple prosecutions. Did Jefferson pursue this case because of his distaste for Burr? Did Jefferson do this as a political ploy to eliminate the Burrite faction of the Democratic-Republicans? Or, did Jefferson truly believe Burr guilty of treason? Those answers remain speculative, of course. However, those questions would not have arisen had Jefferson utilized a special counsel to prosecute the case.
More than fifty years later, the largest fraud in United States history to that point occurred in St. Louis and several other cities. Whiskey distillers and revenue collectors conspired to defraud the United States government of millions of dollars of whiskey tax dollars. In St. Louis, President Grant knew personally those holding the government positions. He counted them amongst his friends. Grant and the customs officials also counted the United States Attorney, William Patrick, as a friend. Treasury Secretary Benjamin Bristow, who had initiated the investigation, successfully pushed the Attorney General to replace Patrick with a former US Congressman not connected to St. Louis. The new United States Attorney could not handle the case on his own. It was too big and complex. The government brought in two “special” counsel. One was Lucien Eaton, someone connected to those charged, and John Henderson, who was a United States Senator from Missouri until he was removed as one of the eight Republican Senators to vote against Andrew Johnson’s removal from the presidency. As special counsel, Henderson lent significant legal ability but also brought Grant’s suspicions. When Henderson made reference to Grant in a closing argument, Grant ordered Henderson removed as special counsel.
Subsequent major frauds proceeded similarly if high-ranking government officials were involved. Then, in the 1920s, the Teapot Dome Scandal emerged. It involved the Secretary of the Interior and Wyoming oil reserve leases. The Interior Secretary was selling leases without competitive bidding and for prices well below market value. Unlike previous special counsel cases, this was led by the United States Congress as a Montana Senator conducted the inquiry. After investigating for several years, the Senator found incriminating evidence against the Interior Secretary and the Congress passed a resolution instructing the Justice Department to appoint two special prosecutors, one from each party.
Another method arose in the 1950s. Congress pressured the Attorney General to appoint a “special assistant to the Attorney General” to investigate abuses committed by the Internal Revenue Service. When the person selected submitted a detailed personal financial questionnaire for high-level government officials to complete, the Attorney General fired the special assistant. President Truman, in turn, fired the Attorney General. The new Attorney General continued the investigation through the normal process.
Twenty years later, Watergate occurred, changing how special counsel process and triggering a surge in special counsel appointments. The key event was the firing of special prosecutor Archibald Cox by President Nixon. Nixon fired Cox because Cox would not stop investigating Nixon. This brought into sharp focus the problem of special counsel independence. How can the President be investigated if the President has control over the person investigating?
In the late 1970s, Congress answered this question with an independent counsel statute. The law gave the Attorney General the discretion to determine whether an “independent prosecutor” was necessary. If the Attorney General decided it was, then a three-judge panel would appoint the person. The person could only be removed for limited cause.
The law faced criticism from the start. Nonetheless, the United States Supreme Court upheld the law’s constitutionality and, during its existence, approximately twenty were appointed. Yet in the late 1990s, the issue of accountability arose. Kenneth Starr, appointed to investigate matters relating to President Clinton’s financial dealings in the Whitewater real estate project. This snowballed into a wide-ranging investigation that revealed President Clinton’s sexual misconduct with an intern and triggered the President’s impeachment.
Ultimately, the independent counsel statute expired and was replaced with Justice Department regulations allowing for special counsel appointments. The regulations permit the Attorney General to appoint a special counsel and restrict the Attorney General’s ability to remove that person absent good cause. While this has struck some balance, more politically-oriented special counsels can find ways to abuse the system. This has become the current state of affairs for special counsels.
Over the next few weeks, Justice Briefs will look closer at the current state of affair and the proposals circulating to address the problems.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!