Water Cooler 05/18/17 Open Thread; Everything You Never Wanted To Know About The Special Prosecutor


Everything You Never Wanted To Know About The Office Of Special Prosecutor/Independent Counsel:

Your guide to the special prosecutor’s office, its history and power. Know your facts and impress your friends.


Special Prosecutor, Special Counsel Independent Counsel: all refer to the same thing and are functionally the same. What differentiates them are the historical periods of their use and the law they were appointed under. Independent Counsel being used from 1983 to 1999 for prosecutors appointed under the ethics in government act.
Mechanics: Appointment, Termination, Authority ?
Appointment: Currently at the federal level a special prosecutor is appointed by either the president, the attorney general, or the deputy attorney general, in the past under the independent counsel law congress could request the AG to appoint an independent counsel, if the AG agreed the actual selection was done by a 3 judge panel. Congress also directly appointed the special counsel by resolution in the Teapot Dome case. So far that has happened only the one time.
Termination The special prosecutor’s investigation and position runs until either they conclude their investigation, or they are fired. Theoretically they could be fired by the deputy AG, the AG, or the president. If the counsel is investigating the president or people close to him the “optics” make this unlikely
Authority Can the special prosecutor compel the executive branch to produce documents and or testify over the objections of the president ? Good question. Wish I could find a good answer. In Morrison vs Olson the SCOTUS held 7-1 that under the independent counsel law that they could. Nice clear and definitive that, the problem is it’s law so naturally it was largely reversed and is a decision in regard to a law that is no longer in force.

This does play up the danger of the law. Because special prosecutors tend to morph into endless fishing trips till someone is on the hook, you tend to see demands for production of documents/testimony that aren’t strictly relevant to the investigation.The concept is to provoke a reaction that is prosecutable. Either by forcing someone to testify about embarrassing material or by provoking contradictory testimony that can be construed as lying under oath. On the one hand repeatedly asking the same question different ways is a valid interviewing tactic, on the other if you do it long enough people will contradict themselves.

Historically Notable Prosecutors
Name: Appointed by: Notable for:
John B Henderson Ulysses S. Grant First federal prosecutor, appointed to investigate The Whiskey Ring (a criminal conspiracy to steal whiskey taxes), fired for embarrassing the president by expanding the investigation to include his secretary.
Atlee Pomerene &Owen Roberts Congress and Calvin Coolidge Joint Democrat and Republican appointed by resolution of congress and the president to investigate the Teapot Dome Scandal (Missappropriation of federal lands scandal)
Archibald Cox Elliot Richardson (Nixon’s AG) The original Watergate Prosecutor, fired by Robert Bork, after Presdent Nixon fired the AG Richards and the Deputy AG
Approx 20 under independent counsel law 3 judge panels Politicizing the office of the special prosecutor to the point where even congress had enough. Highlights 2 independent counsels appointed to investigate the Reagan Administration, Iran Contra (Anyone want to argue ends and means on that one ?) Alexia Morrison, appointed to investigate if the Reagan Administration had the right to withhold documents from the house. (oh how we torture the constitution)
Ken Star 3 Judge Panel /Indpendent  Counsel Law At $40 million most expensive special prosecutor yet. Originally appointed to investigate Whitewater scandal, branched out into death of Vince Foster, White House Travel Office, and Bill Clinton’s sexual relations with Monica Lewinsky.
Patrick Fitzgerald James Comey( W Bush Deputy AG) Was appointed to investigate PlameGate. Wherein a prosecutor appointed to find who illegally leaked the name of a CIA operative, wound up prosecuting a man for being a close associate of the president and vice president.

Quote Of The Day:

On Morrison vs Olson (Constitutionality of the IC Law)

The joke, however, turned out to be on these justices (and sadly on the Constitution). As time passed, the country came to understand that the IC statute was a poor one that was not essential to good government, but instead was an engine of partisanship and bad results. Thus, the Congress let the IC statute die at the end of the Clinton presidency, with both parties saying good riddance.

Notice how this case illustrates the problem with living constitutionalism. Not only did it involve a clear mistake by the Supreme Court as to policymaking. It also involved a politically biased one.  The IC statute was popular in 1987 with legal elites—Democrats and many moderate Republicans. It was only when it was used against a Democratic President that the elites changed their mind.

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