No Man Is above the Law

President Richard Nixon, hounded by Watergate-related pressures, reacted by trying to fire special prosecutor Archibald Cox, who was leading the Watergate investigation. That attempt resulted in not only Cox’s firing but also in the resignation of the attorney general and deputy attorney general. Chesterfield Smith, American Bar Association (ABA)president, quickly issued a statement condemning the action and declaring that no man, not even the president, was above the law. His was one of the first “establishment” voices to condemn the president’s acts; many in the ABA condemned Smith rather than Nixon. Smith found himself a national figure and, to some, a hero.

A New Balance

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

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.

Can Congress Protect Special Prosecutors from the President?

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.

The First One Hundred Years

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

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.

A Cancer on the Presidency

This chapter recounts the special prosecutor investigation that forced Richard Nixon to resign the presidency on August 8, 1974. On the surface, this outcome seems distinctly improbable. Nixon actually allowed himself to be forced from office by a special prosecutor he had the power to fire at any time. What can explain this result? The obvious answer is intense and sustained political pressure, which was made possible by the special prosecutor’s high public visibility. Never has the power of special prosecutors—or the dependence of that power on the vigilance of the American people—been clearer.

The World Watergate Made

In the aftermath of Richard Nixon’s resignation, public confidence in politicians and government institutions cratered. To address this crisis, Congress passed the Ethics in Government Act of 1978. The law’s most important provision created a new, more powerful type of special prosecutor, called the Independent Counsel. The direct result was President Bill Clinton’s impeachment for perjury and obstruction of justice concerning a consensual sexual relationship with White House intern Monica Lewinsky. At the end of this long and sordid saga, most legal experts—and most Americans—concluded that an unchecked special prosecutor was a cure worse than the disease. In the end, Congress allowed the Independent Counsel statute to die a quiet and unmourned death. Two decades later, this era is widely understood to illustrate an essential lesson: Politics is just as important a check on special prosecutors as it is on presidents.

Prosecuting the President

The first special prosecutor was appointed by President Ulysses S. Grant in 1875. Ever since, presidents of both parties have appointed special prosecutors and empowered them to operate with unusual independence. In short order, such appointments became a standard method for neutralizing political scandals and demonstrating the president’s commitment to the rule of law. This long, mostly forgotten history shows that special prosecutors can do much to protect the rule of law under the right circumstances. It also shows that they are fallible. Many have been thwarted by the formidable challenges of investigating a sitting president and his close associates. Some have abused the powers entrusted to them. Yet such cases are rare. At their best, special prosecutors function as avatars of the people channeling an unfocused popular will to safeguard the rule of law. But special prosecutors can function effectively only if the people care about holding the president accountable. If a president thinks he can fire a special prosecutor without incurring serious political damage, he has the power to do so. Ultimately, only the American people can decide whether the president is above the law. At any given moment, this question can seem like a purely partisan one. All Americans, however, have a profound stake in preserving the “government of laws and not of men” passed down to us by previous generations. Prosecuting the President provides the information every American needs to perform this civic duty intelligently and responsibly.