by Katy J. Harriger, author of The Special Prosecutor in American Politics
As calls increase for independent investigation of the Russian hacking allegations, it is worth taking the time to look back at our modern American experience with such investigations. That experience tells us that it is important to think about the trade-offs involved in moving outside of the normal governmental process to gain independent investigation. In this post I’ll explore those trade-offs, based on my study of the use of special prosecutors in the 20th century.
While the use of special prosecutors is not unusual in state and local politics, until the Watergate scandal of the 1970’s they were a little used mechanism in national politics. Special prosecutors are used when there is a need for reassuring the public that allegations of wrongdoing by public officials are being investigated, and if necessary, prosecuted, without political bias. When calls for special prosecutors increase, it suggests a decline in elite and/or public confidence that regularly elected and appointed public officials can be trusted to impartially investigate allegations against high level officials, who may be either their superiors or people with whom they have close political or professional ties.
Before Watergate, special prosecutors had been used in national politics only during the infamous Tea Pot Dome Scandal of the 1920’s and during a less famous Tax Scandal during the Truman administration. After Watergate, however, because Congress passed the Ethics in Government Act of 1978, there were at least 20 special prosecutor investigations between the time the act was passed and when it was allowed to expire in 1998. Arguably, only two of them were comparable to the Watergate scandal in that they implicated the president himself in the wrongdoing: the Iran-Contra scandal of Ronald Reagan’s second term and the Whitewater/Monica Lewinsky scandal during Bill Clinton’s second term. By the time Congress failed to renew the act both sides of the political aisle felt they had been unfairly harmed by the existence of the independent counsel provisions and decided the arrangement created more problems than it solved. Instead, the Department of Justice under Janet Reno promulgated a set of rules for determining when DOJ leadership should recuse itself from an investigation and under what circumstances they appoint an independent investigator (called special counsel). The one such appointment that we know about was for the investigation and prosecution of then V.P. Cheney’s chief of staff Scooter Libby, for his role in leaking the name of CIA agent Valerie Plame.
The election of 2016 brought the spotlight back to the special prosecutor. During the election Donald Trump promised that, if elected, he would appoint a special prosecutor to investigate all the criminal activity he had accused Clinton of having committed. Indeed, he, his surrogates, and his supporters pre-judged the outcome of that investigation with the campaign chant “Lock her up!” Since Trump’s election, a new special prosecutor demand has arisen, this time from his critics concerned about troubling information about Russia’s attempt to use hacked material to sway the election against Clinton and Trump’s advisors’ meetings with Russian officials during this time.
The arguments for pressing for the appointment of a special prosecutor removed from direct control by politically interested officials are several and not to be easily dismissed:
- The allegations involve multiple advisors and officials with direct connection to the President
- The Attorney General, Jeff Sessions, is a close associate and seen as a partisan for the President
- Public opinion polls show that a majority of those polled (made up of a very large majority of Democrats, a slight majority of Independents, and a quarter of Republicans) think some kind of investigation is needed either by Congress or a special prosecutor. This suggests a high level of skepticism about whether regular attorneys in the Department of Justice are sufficiently disinterested in the outcome of such an investigation.
But there are also arguments or questions that encourage caution before concluding that a special prosecutor is necessary in order to get to the bottom of the Russian hacking scandal:
- Is there sufficient evidence that a crime was committed that justifies a criminal investigation with a prosecutor, a grand jury, and the possibility of a criminal trial? The burden of proof for criminal charges is high – responsible prosecutors always ask whether a jury is likely to convict on evidence that shows that the crime occurred “beyond a reasonable doubt”. Refusal to prosecute doesn’t mean there is no reason to believe wrongdoing occurred. It just means we can’t meet the high standard to proof required of the prosecutor to gain conviction. The tradeoff involved in having a prosecutor in a situation like this is that inability to convict for violation of a criminal law can be interpreted as lack of evidence of wrongdoing, abuse of the public trust, or unethical conduct. These are not legal equivalents. Just because one is not a “criminal” does not mean one meets the ethical standards we desire for our public officials.
- What is most important: public understanding of what happened during the election of 2016 or prosecution of the associates of the president who may have been complicit in the foreign attempt to influence the election? This is a judgment call but merits careful consideration. The tradeoff is between the greater public exposure to the evidence of what happened that can be generated through a congressional committee hearing or a special commission and the ability to prosecute specific criminal wrongdoing. It may well be that there is insufficient evidence to successfully prosecute anyone for violation of criminal laws against foreign attempts to influence elections, but that does not mean that there is insufficient evidence that there were inappropriate and unethical collaborations between Trump advisors and the Russians. Congressional committees and independent commissions are more likely to produce this kind of information. Then the burden is on voters to decide in the next election whether or not the evidence merits rejection or return of the incumbent implicated by the evidence.
- Why not have both? In Watergate there was a special congressional investigation and a special prosecutor. While there was sometimes tensions between the two entities, one could argue that it was the combination of the two that led to both the president’s resignation and the prosecution of key actors in the break-in and cover-up. But there is a counter example that must also be remembered. In the Iran-Contra scandal the decision by Congress to grant immunity in exchange for testimony to key actors in the affair made it extremely difficult for the special prosecutor to pursue his case. In the end, the convictions he gained in the Oliver North and John Poindexter cases were overturned on appeal because he was unable to prove that the prosecution had been untainted by the immunized testimony. Other special prosecutors who have been brought into a case after congressional investigations have begun, even when testimony has not been immunized, have reported that their investigation was made more difficult by the public airing of witness testimony.
All of these considerations suggest that simultaneous congressional hearings/investigations and special prosecutor investigations are difficult to accomplish without undermining the actual ability to prosecute should crimes be revealed. Watergate suggests it may be the best way to go, but Iran-Contra suggests that it should not be done unless Congress is willing to forgo use of its authority to immunize witnesses who could be key to prosecutions. But choosing one path over the other should be done only with a full consideration of the tradeoffs. One route maximizes the democratic process, using the normal checks and balances of the system, with the payoff usually being maximum information for the citizen about what happened. It works best when members of Congress find the will to cooperate in a bipartisan way. If one party calls all the shots and it’s the party of the president, there is little likelihood that some significant swath of the public will accept the outcome. The other route tends to maximize independence (also interpreted as non-partisanship) and requires the norms of the criminal justice process be followed. Those being investigated have the protections of due process and the high standard of “beyond a reasonable doubt” to protect them. If a prosecution happens, the public will get a full airing of the issues that relate to the criminal charges brought, but many aspects of the affair will be irrelevant in a criminal trial. If a special prosecutor decides not to indict, the public will have very little information on what happened and why because it is not the practice of prosecutors to provide detailed explanations for decisions not to prosecute.
Congress has begun its investigation and it will no doubt be watched closely by those suspicious of whether the party in power will follow the evidence that is harmful to the president and his associates. The Attorney General has recused himself and it remains to be seen how the Associate Attorney General will assess the situation and exercise his power to request a special counsel for a criminal investigation. Whether the public can be fully informed of the Russian interference with the election and there can be successful prosecution of those (if any) who broke criminal laws remains to be seen.
Katy J. Harriger is a Professor and Department Chair in the Department of Politics and International Affairs at Wake Forest University