Special Counsels, Like Those Examining Biden’s and Trump’s Handling of Classified Documents, are Intended to be Independent – but They aren’t Entirely

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Joshua Holzer, Westminster College

Attorney General Merrick Garland has now appointed two veteran prosecutors as special counsels to oversee investigations into how President Joe Biden and former President Donald Trump handled classified documents after leaving office – Biden after he ended his terms as vice president in 2017, and Trump after leaving the Oval Office in 2021.

Robert Hur, a former federal prosecutor in Maryland, will investigate whether Biden or any of his staff or associates mishandled classified information. Jack Smith, a longtime top investigator in the Department of Justice, is overseeing two criminal investigations into former President Donald Trump.

Garland’s goal, in both cases, is to shield the probes from the appearance of partisanship.

But in immediate and repeated attacks, Trump, and some of his allies, alleged political bias anyway. For instance, in one highly charged social media post, the former president argued that he won’t “get a fair shake” from Smith.

Biden, for his part, has said he is “cooperating fully and completely” with the Justice Department’s inquiries.

Fairness and justice, though, are what Garland appointed Smith and Hur to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the Jan. 6 insurrection and Trump’s handling of classified government documents, Garland described Smith as someone who “has built a reputation as an impartial and determined prosecutor.”

When appointing Hur, Garland emphasized his “department’s commitment to both independence and accountability in particularly sensitive matters and to making decisions indisputably guided only by the facts and the law.”

In his own statement, Smith, who most recently investigated and prosecuted war crimes at the International Criminal Court in The Hague, promised to “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”

From my perspective as a political scientist who studies presidential systems, I believe that while special counsels are intended to be independent, in practice they are aren’t entirely. Here’s why.

Independent and special counsels

Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is appointed by – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President Richard Nixon did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts.

On the evening of Oct. 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General Robert Bork, the next most senior official at the Department of Justice, to fire Cox. Bork complied.

This shocking series of events, often referred to as the Saturday Night Massacre, demonstrated how presidents could exercise political power over criminal investigations.

As a result of the Watergate scandal, Congress passed the Ethics in Government Act of 1978. This allowed for investigations into misconduct that could operate outside of presidential control.

After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other high-ranking executive branch officials had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate.

The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “result in a personal, financial, or political conflict of interest, or the appearance thereof.”

In the decades since the law’s passage, independent counsels investigated Republicans and Democrats alike. In 1999, Congress let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno authorized the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.

Robert Mueller, who was appointed in 2017 by Deputy Attorney General Rod Rosenstein to investigate possible Russian interference in the 2016 elections and possible links between the Trump campaign and the Russian government, was a special counsel. Some Republicans accused him of bias, despite his long career serving under both Democratic and Republican presidents.

In 2020, John Durham – another veteran of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of political prosecution. Sussmann was later acquitted.

Politicizing the process

Although special counsels were meant to resemble independent counsels, there are notable differences.

For instance, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the chief justice of the United States.

Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or end a special counsel investigation.

For example, at one point, Trump wanted to fire Mueller. After his attorney general, Jeff Sessions, who had recused himself from the Russia probe, did not “end the phony Russia Witch Hunt,” Trump fired him.

Seemingly supportive of this, William Barr, who had served as attorney general under President George W. Bush, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “complete authority to start or stop a law enforcement proceeding.”

Unsurprisingly, Trump then chose Barr to replace Sessions as attorney general.

In my own research, I have found that abuses of power are more common in situations in which the president and the attorney general are political allies.

For instance, after Mueller finished his report in 2019, Barr released a summary of its “principal conclusions.” Later, Barr’s summary was criticized for “not fully captur[ing] the context, nature, and substance” of Mueller’s work.

In 2020, a Republican-appointed judge ruled that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”

To be or not to be free of partisanship

The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.

Trump, for example, saw himself as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.”

Meanwhile, Biden has a long history of supporting the independence of Department of Justice investigations, dating as far back as his 1987-1995 tenure as chairman of the Senate Judiciary Committee.

Barr once argued that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.”

In contrast, Garland – a former U.S. circuit judge – insists that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”

Given that Trump and Biden may end up facing off in 2024, it makes sense that Garland would want to appoint special counsels in order to avoid directly overseeing investigations into his boss and into a political opponent of his boss.

Still, Smith and Hur will not be entirely independent of Garland, just as Garland is not entirely independent of Biden.

This is an updated version of an article originally published Dec. 14, 2022.

Joshua Holzer, Assistant Professor of Political Science, Westminster College

This article is republished from The Conversation under a Creative Commons license.

Joshua Holzer
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