//  1/15/19  //  In-Depth Analysis

Take Care is pleased to present a symposium on Andrew Cohen's important new book, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford University Press).

Before he was the Watergate special prosecutor, Archibald Cox was a labor law professor and appellate litigator who, as Andrew Coan writes, “had no substantial experience as a prosecutor … or even as a trial lawyer.” Lawrence Walsh had been out of the Justice Department for more than a quarter century when he was appointed independent counsel for the Iran-Contra investigation in 1986. Kenneth Starr had compiled an impressive resume as a federal appellate judge and solicitor general before he became the Whitewater independent counsel in 1994, but one experience that was not on his resume was prosecuting a criminal case.

Andrew Coan’s new book, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law, pays tribute to the men and women who have been plucked out of academia and private practice—and in some cases, out of retirement—to spearhead politically sensitive and often colossally complex investigations. As Coan notes, outside special prosecutors start out “from scratch”—with no office, no staff, no computers, “not even a telephone.” They also generally “lack the established relationships and institutional memory that ordinary prosecutors enjoy.” Their appointment is usually page-one news, and so they lose the “crucial element of surprise” that often aids ordinary prosecutors in preparing a case. And unlike a U.S. attorney in a mine-run federal criminal case, outside special prosecutors throughout the decades have had to contend with frequent—if sometimes frivolous—constitutional challenges to their authority.

The outside special prosecutor approach is not the only available model for investigating and prosecuting senior administration officials. It was the U.S. Attorney’s Office in Maryland, not an outside special prosecutor, that exposed the criminal behavior of Nixon’s first vice president, Spiro Agnew (a tale told brilliantly by Rachel Maddow’s “Bag Man” podcast). It was the then-serving U.S. attorney for the Northern District of Illinois, not a lawyer from outside the Justice Department, who secured the conviction of Vice President Dick Cheney’s chief of staff Scooter Libby as part of the Valerie Plame affair. In other cases, such as the Jack Abramoff scandal, the Justice Department’s public integrity section has taken the lead in prosecuting high-ranking administration members.

For lawyers, lawmakers, and citizens thinking about how to guard against corruption and criminality in the executive branch, Coan’s comprehensive and eminently readable overview of the outside special prosecutor approach will be an invaluable resource. What Coan does not do (nor does he try to) is to answer the question of whether the outside special prosecutor approach is ultimately a wise one. I say this not so much as a criticism but as a challenge—to Coan and to others thinking deeply about the investigation and prosecution of presidents and their associates. How sure are we that we want outsiders—rather than insiders—undertaking these politically sensitive probes?

Inside prosecutions of presidents and other high-ranking administration officials can arise in two ways. The first is what we might call the “organic” route: FBI agents and/or Justice Department attorneys undertake an investigation within the scope of their normal duties that leads them to suspect wrongdoing by the president or other senior administration officials. This is what happened in the Agnew scandal. Three assistant U.S. attorneys in Maryland began looking into rumors that local Baltimore officials were taking bribes. The trail soon led them to the sitting vice president, and then-Attorney General Elliott Richardson allowed them to keep the case. The second type of inside prosecution is what we might call the “inside special prosecutor” model: the president or attorney general (or in the event of recusal, deputy attorney general) assigns an official already within the federal government to investigate a matter involving administration members. This is what happened in the Valerie Plame affair, when then-Deputy Attorney General James Comey named the U.S. attorney in Chicago at the time to probe the Bush administration’s apparent leak of a CIA officer’s identity.    

Let’s start with the advantages of the outside special prosecutor model. First, when the appointee is a widely respected individual with no particular attachment to the current administration, naming a special prosecutor from the outside can give the public greater assurance that an investigation will be impartial. Second, placing the special prosecutor outside the Justice Department’s chain of command can reduce the risk that the attorney general or other administration members will meddle in the investigation. Third, outside special prosecutors are unconstrained by rules that generally apply to government hiring and are freer to bring in their own specialized teams. Fourth, the publicity typically associated with the appointment of an outside special prosecutor makes it harder (though not impossible) for the president or attorney general to shut down the investigation later. In part because the outside special prosecutor takes on an identity distinct from the administration’s, firing an outside special prosecutor is a highly visible and politically costly step—as President Nixon discovered and as President Trump would have learned if White House counsel Don McGahn had not talked him down from firing Robert Mueller.

But the advantages of the outside special prosecutor model ought not be exaggerated. For one, the appointment of an outside special prosecutor who commands widespread respect but lacks the relevant experience or support staff to mount a serious probe may give the public unwarranted confidence in the investigation. For another, outside special prosecutors are not necessarily shielded from administration meddling. As I and others have emphasized, current Justice Department regulations allow the attorney general to exercise veto power over every significant prosecutorial step that Special Counsel Robert Mueller takes—and the public will not necessarily know when that veto has been wielded.

To be sure, the outside special prosecutors operating under the now-expired independent counsel statute did not face the same degree of attorney general oversight that Mueller now encounters. But that setup produced problems of its own. An outside special prosecutor maintains her position—and the power, prestige, and profile that comes with it—only as long as her investigation lasts. Thus the outside special prosecutor arguably has a motive to keep her probe going beyond its natural life. Moreover, the outside special prosecutor knows that her place in history depends in large part on whether she can catalyze resignations or secure convictions. Watergate special prosecutors Archibald Cox and Leon Jaworski will long be remembered and revered; the independent counsels who cleared Carter chief of staff Hamilton Jordan, Reagan attorney general Edwin Meese, and Clinton cabinet members Bruce Babbitt and Alexis Herman don’t even have their own Wikipedia pages. Incentives for overzealousness are arguably baked into the outside special prosecutor model, giving rise to the ostensible need for an attorney general veto.

Outside special prosecutors also often serve as attractive punching bags for sitting presidents. Donald Trump is not the first president who has sought to brand the special prosecutor’s probe of his administration as a “witch hunt” (though Trump has certainly reached new levels of vitriol). Granted, Agnew’s allies sought to slander the assistant U.S. attorneys who prosecuted the vice president, but that is a harder task when the targets are low-profile career public servants. Patrick Fitzgerald had his share of critics during the Plamegate probe, but it was somewhat more difficult for the Bush administration to portray Fitzgerald as a malevolent Inspector Javert given that Bush himself had appointed Fitzgerald to the U.S. attorney post. Indeed, even as Bush commuted Scooter Libby’s prison term, he praised Fitzgerald as “a highly qualified, professional prosecutor who carried out his responsibilities as charged.” Imagine George H.W. Bush saying that about Lawrence Walsh or Bill Clinton uttering those words with respect to Kenneth Starr, much less Donald Trump ever saying the same about Robert Mueller.

Inside prosecutors have several other advantages vis-à-vis their outside counterparts. They start with a team already in place and with the prosecutorial experience and institutional memory that outsiders generally lack. In some instances, they may already have relationships with witnesses and other sources who can assist their inquiries. When an inside prosecution arises organically, prosecutors may have the element of surprise working in their favor. When an attorney general publicly announces that an insider prosecutor (e.g., a U.S. attorney) will undertake a probe of administration officials, the element of surprise is lost but the attorney general’s opportunity to reverse course is potentially lost too.

The attorney general may have more opportunities to meddle in an investigation located squarely within his own Justice Department, but norms of prosecutorial independence within the Justice Department are strong. Moreover, an attorney general’s ability to browbeat a U.S. attorney or line prosecutor into dropping or diverting an investigation is—as a practical matter—limited. The U.S. attorney can likely leave for a lucrative private practice in her city and embarrass the administration on her way out. Rank-and-file Justice Department lawyers, for their part, enjoy the job protections of the civil service system. It’s hard to hire for career positions in the federal government, but even harder to fire individuals in those positions.

Finally, the constitutional status of inside prosecutors differs from their outside counterparts in potentially significant ways. The Supreme Court held in Morrison v. Olson that independent counsels are “inferior officers”—a designation that allows them to be appointed by a department head or court of law without the advice and consent of the Senate. But “inferior officer” status imposes constraints of its own. The work of an inferior officer must be “directed and supervised at some level” by a presidentially appointed, Senate-confirmed “principal officer”; otherwise the officer must be presidentially appointed and Senate-confirmed herself. To be sure, the Morrison court tolerated relatively minimal supervision of the independent counsel by the attorney general. It is far from clear whether today’s court would do the same.  

Inside prosecutors are, of course, bound by the Constitution just as outside special prosecutors are, but constitutional constraints play out differently in the context of inside jobs. Consider the Fitzgerald example. Since Fitzgerald was already presidentially appointed and Senate-confirmed as U.S. attorney for the Northern District of Illinois, there was no serious constitutional concern with him exercising “principal officer” authority. Deputy AG Comey therefore could—and did—delegate to Fitzgerald “the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me [Comey] or anybody else at the Justice Department for approvals.” Perhaps counterintuitively, having a sitting U.S. attorney rather than an outside special counsel lead a politically sensitive probe potentially allows prosecutors greater freedom from Main Justice’s watchful eye.

How might an “inside prosecution” of the Trump campaign’s Russia ties have proceeded? We now know that the FBI launched criminal and counterintelligence investigations into President Trump on its own volition; those probes could have been allowed to run their course. Deputy Attorney General Rod Rosenstein, instead of appointing Robert Mueller, might have delegated prosecutorial responsibility to the U.S. attorney for the Southern District of New York, where key events in the collusion storyline transpired. Indictments might have followed even faster, because that office already had a crack team of career prosecutors in place. President Trump might have tried to demonize those prosecutors, just as he has tried to tar the special counsel’s probe, but he would have to contend with the record of professionalism, integrity, and independence that the U.S. Attorney’s Office for the Southern District has accumulated over the decades. Would the outcome of the investigation be any different? Maybe, but note that the USAO for the Southern District has played a central role in the investigation and prosecution of President Trump’s longtime lawyer, Michael Cohen, and has shown no signs that the president can bully it about.

Just as none of this is meant as a criticism of Coan, none of it is meant as a critique of Robert Mueller either. Mueller is perhaps the best qualified outside special prosecutor in history, and he has moved with remarkable alacrity to build a team of expert lawyers around him. Publicity shy and already secure in his historical legacy, he has shown no signs of vulnerability to the pathologies that have afflicted other outside special prosecutors. If every outside special prosecutor were a Mueller clone, then perhaps the case for outside special prosecutors would be a simple one.

But Coan’s book challenges us to look beyond this particular probe and to consider the role of the outside special prosecutor in American history. That historical perspective calls the optimality of the outside special prosecutor model into question. At the very least, it calls for us to seriously consider the possibility that the people best suited to prosecute the president and his associates are inside the federal government already. The FBI and the Justice Department are arguably the most competent investigative and prosecutorial organizations on the planet. When it comes to investigating and prosecuting the president, perhaps we should ask for no less.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP