Special Prosecutors, also known as independent counsels, are typically appointed to investigate and prosecute high-profile cases where the ordinary criminal justice machinery cannot be trusted to produce fair results. State and local governments occasionally use special prosecutors. However, throughout American history the most noteworthy special prosecutors have been those appointed to stand in the shoes of the U.S. attorney general, investigating the president or some other high-level executive branch official. In most cases, such an appointment is triggered by a perceived conflict of interest within the Justice Department.
President Ulysses S. Grant appointed a special prosecutor in the 1870s to investigate the Whiskey Ring, a network of whiskey distillers who allegedly conspired to bribe revenue officers and funnel money to government officials, some of whom were close to President Grant. President Calvin Coolidge appointed two special prosecutors in the 1920s to investigate the Teapot Dome scandal, involving the alleged corrupt leasing of government owned naval oil reserves by Albert B. Fall, secretary of the interior during the preceding William G. Harding administration.
Subsequently, special prosecutors became a fixture in American government largely due to the Watergate scandal. After President Richard M. Nixon's successful 1972 reelection campaign, burglars linked to the Central Intelligence Agency (CIA) and the White House were charged with breaking into the Democratic National Committee headquarters in the Watergate Hotel. President Nixon was suspected of covering up the break-in. After his attorney general resigned under the cloud of the Watergate scandal, Nixon in the spring of 1973 appointed Elliot Richardson to head the Justice Department, seeking to restore credibility to his shaken administration. Richardson in turn appointed Archibald Cox, a Harvard law professor known for his impeccable integrity, to serve as Watergate special prosecutor. When congressional hearings revealed that President Nixon had installed a taping system in the White House, Cox subpoenaed nine critical tape recordings that would prove or disprove Nixon's complicity in the Watergate cover-up. When the subpoenas were contested, two federal courts ruled in Cox's favor. On the eve of the final deadline for a Supreme Court appeal, Nixon announced he would provide summaries of the tapes but nothing else. The president ordered Attorney General Richardson to fire Cox. Richardson refused and resigned, as did Deputy Attorney General William Ruckelshaus. Finally, Solicitor General Robert Bork carried out the president's order, terminating Cox. In the wake of Cox's firing, in what came to be known as the "Saturday night massacre," a firestorm of public protest erupted. This led to the appointment of a new special prosecutor, Leon Jaworski, followed by the release of dozens of damning tapes and the slow unraveling of the Nixon presidency.
In direct response to Cox's firing, Congress initiated hearings to consider legislation that would create a statutory special prosecutor divorced from the executive branch. Five years of hearings culminated in the Ethics in Government Act of 1978. Under this statute a special three-judge panel of the U.S. Court of Appeals was empowered to appoint neutral prosecutors to investigate alleged criminal wrongdoing in the executive branch in cases where the attorney general might have an actual or potential conflict of interest. Congress later changed the name of this official from special prosecutor to independent counsel, seeking to make clear that this appointee was meant to investigate impartially and to prosecute only where appropriate rather than to act as an aggressive prosecutor bent on convicting his or her target.
Over the controversial twenty-year life span of the independent counsel law, more than twenty separate independent counsel investigations were conducted, some branching out into multiple areas of criminal inquiry. No presidency was immune from its reach. Independent counsel investigations surfaced during the Jimmy Carter, Ronald Reagan, George H. W. Bush, and Bill Clinton administrations.
The Iran-Contra investigation stirred up particular controversy, spanning seven years during the Reagan and Bush administrations. Headed by former judge Lawrence Walsh, this criminal probe involved a scandal in which the government secretly sold arms to Iran and diverted the profits to aid Nicaraguan rebels after Congress prohibited such activity. Walsh obtained a number of indictments and convictions. However, key convictions of Admiral John Poindexter and Lieutenant Colonel Oliver North were overturned on appeal. President Bush, who was implicated in the scandal but never charged with wrongdoing, pardoned the remaining principals.
Opponents of the independent counsel law, many of them Republicans critical of the lengthy and expensive (over $48 million) Iran-Contra probe, argued that the law was fundamentally flawed and had created a monstrous prosecutor unaccountable to any branch of government. In Morrison v. Olson (1989) the Supreme Court rejected a variety of constitutional attacks, upholding the independent counsel statute. Yet the drumbeat for the law's demise continued. In 1992, at the end of the Bush administration, Congress refused to reauthorize the independent counsel statute, allowing it to lapse.
In early 1994, Attorney General Janet Reno appointed her own ad hoc special prosecutor, the respected New York attorney Robert Fiske, to head the Whitewater investigation. This scandal involved a failed Arkansas land deal of the 1980s in which President Bill Clinton and his wife, Hillary Rodham Clinton, had invested. Ironically, President Clinton and Reno supported a renewal of the independent counsel law, prompting Congress to reenact it. The special three-judge panel overseeing the White-water investigation, believing that reappointment of the attorney general's ad hoc prosecutor would taint the process, unexpectedly replaced Fiske with the more controversial Kenneth W. Starr. Starr, a conservative Republican who had served with distinction on the U.S. Court of Appeals and later as solicitor general during the Bush administration, was viewed by some, particularly Democrats, as politically driven. During Starr's tenure, the Whitewater land-deal investigation expanded into a series of unrelated matters, growing in cost (over $40 million) and escalating in controversy. In 1998, Starr's office received authorization from Attorney General Reno to investigate whether or not President Clinton had committed perjury in denying a sexual affair with the White House intern Monica Lewinsky during his civil deposition in Clinton v. Jones, a sexual harassment suit filed by the one-time Arkansas employee Paula Jones.
The Monica Lewinsky affair bloomed into a raging scandal that bitterly divided the nation. After Clinton again denied the affair in front of a federal grand jury, Republicans rallied around Starr, who issued to Congress the lengthy Starr Report, setting forth eleven potential impeachable offenses committed by the president. Enraged Democrats accused Starr of conducting a puritanical witch-hunt fueled by partisan political motives. Relying almost exclusively on the Starr Report, the Republican-dominated House of Representatives voted to impeach President Clinton. After a draining Senate trial, during which the American public grew increasingly weary, the senators voted along party lines to acquit President Clinton in February 1999.
A month later, Congress commenced hearings to debate reauthorizing the independent counsel statute, which was scheduled to "sunset" in June 1999. In an unusual twist, both Reno and Starr publicly opposed reenactment of the special prosecutor law, concluding in hindsight that it had been an unmitigated disaster. Swamped by criticism from both sides of the political aisle, the independent counsel law expired on 30 June 1999.
Following the death of the independent counsel statute, Congress continued to debate possible replacement legislation to deal with scandals in the executive branch without reaching a consensus. Instead, the attorney general and the Justice Department continued to promulgate regulations by which they hire and fire their own special prosecutors as needed, following the ad hoc Watergate model. These special prosecutors, however, remained attached to the executive branch. Thus, they lacked the aura of neutrality envisioned by the ill-fated special prosecutor law of the 1970s that was designed to restore public trust in government after the devastating experience of Watergate.
Bibliography
Doyle, James. Not Above the Law: The Battles of Watergate Prosecutors Cox and Jaworski. New York: Morrow, 1977.
Eastland, Terry. Ethics, Politics, and the Independent Counsel: Executive Power, Executive Vice, 1789–1989. Washington, D.C.: National Legal Center for the Public Interest, 1989.
Gormley, Ken. Archibald Cox: Conscience of a Nation. Reading, Mass.: Addison-Wesley, 1997.
Harriger, Katy J. Independent Justice: The Federal Special Prosecutor in American Politics. Lawrence: University Press of Kansas, 1992.
Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard M. Nixon. New York: Knopf, 1990.
Schmidt, Susan, and Michael Weisskopf. Truth at Any Cost: Ken Starr and the Unmaking of Bill Clinton. New York: Harper-Collins, 2000.
Stewart, James B. Blood Sport: The President and His Adversaries. New York: Simon and Schuster, 1996.
Walsh, Lawrence E. Firewall: The Iran-Contra Conspiracy and Cover-Up. New York: Norton, 1997.
