Can Congress Protect Special Prosecutors from the President?

2019 ◽  
pp. 179-197
Author(s):  
Andrew Coan
Keyword(s):  
Supreme Court ◽  
American People ◽  
Special Prosecutor

Can Congress constitutionally restrict the president’s power to remove a special prosecutor? In a 1988 case called Morrison v. Olson, a nearly unanimous Supreme Court held that the answer was yes. Only Justice Antonin Scalia dissented. This chapter recounts the dramatic story of that case and the subsequent developments that have caused many commentators to question the vitality of the Court’s ruling. Partly for this reason and partly for reasons of ordinary politics, Congress seems unlikely to pass legislation protecting special prosecutors any time soon. As a result, the responsibility for protecting special prosecutors now rests where it has for most of U.S. history—squarely on the shoulders of the American people.

Can the President Be Compelled to Testify under Oath?

2019 ◽  
pp. 131-154
Author(s):  
Andrew Coan
Keyword(s):  
United States ◽  
Supreme Court ◽  
Court Decision ◽  
American People ◽  
Single Question ◽  
The U.S

Executive privilege is a doctrine closely akin to attorney-client privilege that allows presidents to resist judicial demands for evidence or testimony under hazily defined circumstances. It is frequently the bane of a special prosecutor’s existence. This chapter recounts the story of United States v. Nixon, the only executive privilege case ever decided by the U.S. Supreme Court—and the only court decision ever to bring down a sitting president. Despite this dramatic outcome, the Court’s decision left much room for debate. As a result, most executive privilege disputes are resolved through negotiation and not by the courts. In the background of every such negotiation, a single question looms larger than all the rest: What will the American people stand for? Here, too, the choice is ours.

A New Balance

2019 ◽  
pp. 87-108
Author(s):  
Andrew Coan
Keyword(s):  
Task Force ◽  
Attorney General ◽  
Clinton Administration ◽  
American People ◽  
Middle Ground ◽  
Political Pressure ◽  
Donald Trump ◽  
Russian Government ◽  
Political Incentives ◽  
Special Prosecutor

After the ordeal of Bill Clinton’s impeachment, few wished to resurrect a strongly independent special prosecutor. But nor did anyone wish to return to the wholly unregulated approach of the previous era. Was there not some middle ground? In the waning days of the Clinton administration, Attorney General Janet Reno convened a task force to answer this question. For nearly twenty years, the intricate rules this group drafted went largely untested. Then Donald Trump was elected president. This chapter recounts the drafting of these rules and the appointment of special counsel Robert Mueller to investigate allegations of collusion between Trump’s 2016 campaign and the Russian government. Political pressure forced Trump to acquiesce in Mueller’s appointment. This gave Trump and his allies powerful political incentives to attack Mueller, which they did with ruthless ferocity. For special prosecutors, this is the norm. For the American people, it is cause for intense vigilance.

A Special Kind of Prosecutor

2019 ◽  
pp. 7-20
Author(s):  
Andrew Coan
Keyword(s):  
Special Kind ◽  
American People ◽  
Government Officials ◽  
Unique Role ◽  
The Public ◽  
Strong Incentive ◽  
Criminal Charges ◽  
Special Prosecutor ◽  
The Law ◽  
Constitutional System

This chapter explains the unique role that special prosecutors play in the American constitutional system. Their job is to ensure that even the highest government officials are not above the law. They do this by investigating and prosecuting alleged wrongdoing by the president and his close associates. To carry out this difficult charge, special prosecutors are granted the same formal powers as ordinary federal prosecutors, with one crucially important difference. For special prosecutors, the power to investigate and authorize criminal charges is confined to particular persons or suspected crimes. This difference has profound implications for the conduct of special prosecutor investigations. Most important, it places special prosecutors squarely in the public spotlight. That gives the president’s allies a strong incentive to discredit special prosecutors. It also enables the public to hold the president accountable. Only if the American people take this responsibility seriously can special prosecutors function effectively.

Constitutional Politics in the Gilded Age

2010 ◽  
Vol 9 (1) ◽  
pp. 7-35 ◽  
Author(s):  
Michael Les Benedict
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
Social Order ◽  
Gilded Age ◽  
American People ◽  
Ordinary People ◽  
Policy Makers ◽  
Constitutional Politics ◽  
Personal Liberty ◽  
The Supreme Court

During the Gilded Age, constitutional issues pervaded the discussion of nearly all matters of public policy, including regulation of railroads, suppressing unsafe and fraudulent products, labor issues, and combating trusts and monopolies. The Democratic and Republican parties differed in their conceptions of federal power and state rights as well as on matters related to social order and personal liberty. They articulated these differences in political platforms and manifested them in their approach to public policy. The obsession with constitutional issues was not confined to the halls of Congress or the chambers of the Supreme Court. Constitutional discourse ran up from ordinary people and interest groups to public policy makers and down from policy makers seeking support based on fidelity to constitutional principles. Ordinary people influenced constitutional policymaking not only through voting but through various means of making their views known. Advocates used all types of media to make constitutional issues clear to the American people. These ranged from formal treatises aimed at the intellectual elite to cartoons, caricatures, songs, and screeds. Politicians articulated constitutional positions in political platforms, congressional addresses, pamphlets, political and commemorative addresses, and stump speeches. Justices of the Supreme Court eschewed technical and abstract language in constitutional opinions, addressing them to a more general public than they did in other areas of law. In the end, constitutional policy was not determined through legal determinations of the Supreme Court but by the political decisions of the American people.

The First One Hundred Years

2019 ◽  
pp. 23-40
Author(s):  
Andrew Coan
Keyword(s):  
Rule Of Law ◽  
American People ◽  
Public Confidence ◽  
The Rule Of Law ◽  
Special Prosecutor ◽  
High Level ◽  
Official Corruption

Between 1875 and 1973, five different presidents appointed special prosecutors to investigate all manner of high-level official corruption. This chapter tells the stories of three such investigations, which provide crucial lessons for understanding modern-day special prosecutors. In each case, popular outcry over alleged misconduct by high executive officials forced the president to appoint a special prosecutor to restore public confidence. In each case, the high public salience of the resulting investigation gave the president’s supporters powerful incentives to attack the special prosecutor. But the special prosecutor’s visibility also provided the American people a potent tool for holding presidents accountable. Right from the beginning, politics was a double-edged sword for special prosecutors and their ability to safeguard the rule of law.

Introduction

2019 ◽  
pp. 1-6
Author(s):  
Andrew Coan
Keyword(s):  
United States ◽  
The United States ◽  
American People ◽  
Short Answer ◽  
Significant Power ◽  
Legal Remedy ◽  
Special Prosecutor ◽  
Advanced Democracies

How did special prosecutors come to exercise significant power, despite serving purely at the pleasure of the president? Why has the United States rejected stronger institutional safeguards of the sort embraced by other advanced democracies? What does this history means for special prosecutors today? The short answer to all of these questions is that special prosecutors function as catalysts for democracy. By raising the visibility of presidential misconduct, they enable the American people to hold the president accountable for his actions. But just like presidents, special prosecutors can abuse their power. To guard against this risk, the president retains the power to fire a special prosecutor at any time. If he exercises that power corruptly or capriciously, special prosecutors have no legal remedy. But they are not unprotected. The president must ultimately answer to the American people. This has proved a surprisingly powerful deterrent.

Trump is likely to cement Republican Party takeover

2017 ◽  
Keyword(s):  
Supreme Court ◽  
Republican Party ◽  
Tax Reform ◽  
Political Support ◽  
First Year ◽  
Content Type ◽  
White House ◽  
Approval Ratings ◽  
Elite Level ◽  
Special Prosecutor

Significance As Trump’s presidency enters its eighth month, his approval ratings have set a record low compared to other first-year presidents, his White House team faces an investigation by special prosecutor Robert Mueller and legislative priorities on healthcare and tax reform have languished in a Republican Congress during his optimal post-election window. This raises the question of whether Trump’s difficulties with governing after being elected as a populist ‘outsider’ candidate will damage his political support within elite-level Republican politics or his electoral prospects in 2020. Impacts Hard-line candidate Roy Moore winning the Alabama Senate primary would weaken Mitch McConnell’s leadership. The Democrats are unlikely to win majorities in Congress after the midterms, with 2020 a more probable opportunity. A new Supreme Court vacancy would bolster Trump’s support with conservatives and congressional Republicans.

The Supreme Court and Its Critics: Is the Court Moving Left?

1959 ◽  
Vol 21 (3) ◽  
pp. 495-510 ◽  
Author(s):  
Joseph O. Losos
Keyword(s):  
United States ◽  
Supreme Court ◽  
Federal Government ◽  
United States Supreme Court ◽  
The United States ◽  
American People ◽  
United States Supreme ◽  
The Supreme Court ◽  
The Will ◽  
The Right

InTheLight of recent decisions of the United States Supreme Court, it might appear that the judiciary is currently the most radical branch of the Federal Government. In certain respects circumstances today, present a scene similar to that of 1937. The Court, now as then, is denounced as an unelected, undemocratic group which, under the pretense of interpreting the laws and Constitution, makes a law contrary to the will of the majority of the American people. Only today it is the right that denounces the Court and the left that comes to its defense.

Public Opinion and Setting the Agenda on the U.S. Supreme Court

2019 ◽  
Vol 48 (3) ◽  
pp. 377-390 ◽  
Author(s):  
Amanda C. Bryan
Keyword(s):  
Public Opinion ◽  
Supreme Court ◽  
Public Support ◽  
American People ◽  
The Political ◽  
Political Environment ◽  
First Case ◽  
Setting Process ◽  
The U.S

Arguably the most influential power the U.S. Supreme Court has is the power to choose which cases to decide. This power allows the nation’s only unelected branch of government to choose either to weigh in on key political controversies or avoid them completely. Here, I take one of the first case-level looks at the role of public opinion in the Court’s agenda-setting process. I argue justices vote to hear cases when they are likely to agree with public opinion on the outcome and eschew cases when they are out of step with the American people. However, the effect of public opinion depends on the political environment, especially on the level of public support the Court enjoys, the salience of the issue, and the case’s legal importance.

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