//  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).

Prosecuting the President is the perfect book for the present moment.  With his vivid descriptions of past efforts to investigate presidential misconduct, Andrew Coan places the Mueller Investigation in badly needed historical context.  His treatment of the law of presidential accountability, which has surely influenced the investigation’s course, is even more impressive.  The reader learns effortlessly from the stories and legal analysis Prof. Coan brilliantly weaves together.  Important questions abound when it comes to prosecuting the President.  Prof. Coan offers the most compelling answers to these constitutional conundrums that I have read anywhere.  Prosecuting the President is magnificent.    

Prof. Coan draws a “single overarching lesson” from the law and history of the special prosecutor.  It has little of its own reserve to draw upon, and its efficacy depends entirely on the will of the American people.  My point of departure for an elaboration on this claim is a comment Prof. Coan makes toward the end of his book.  He insists “that the special prosecutor as an institution is nonpartisan.” In one sense Prof. Coan is indisputably correct.  Special prosecutors have targeted Republican and Democratic administrations alike.  But Prof. Coan’s point begs two difficult questions.  Is the special prosecutor indeed an institution?  If not, does its lack of institutional status matter? 

The answers, I believe, are no and yes.

The Special Prosecutor’s Status as an Institution 

The special prosecutor is not an institution by my understanding of the term.  A government institution has several necessary features.  It must have some legal basis, and it must endure over time in a shape and form that are consistent even as they evolve.  In addition, an institution must develop and benefit from a set of norms that guide its role in American government. 

The President is obviously an institution.  Article II of the U.S. Constitution gives the President an indisputable legal basis.  The current office, while surely changed from George Washington’s day, shares important attributes with its eighteenth-century antecedent.  A wide array of norms has deeply influenced how the President wields power.  These range from the President’s reliance on a Cabinet to his deference to U.S. Supreme Court decisions and include much, much more.

In contrast, the special prosecutor fares poorly by each of the criteria. 

LawUntil the now-lapsed Ethics in Government Act of 1978, no law provided for special prosecutors or set terms for the office.  Archibald Cox could insist on protections for his independence not because some statute provided for them, but because Elliott Richardson had to agree to them before the Senate Judiciary Committee would allow him to serve as Attorney General.  The current special counsel regulations are “rules of agency organization, procedure, or practice” and were promulgated without any required legal process.  As such, the regulations cannot have the “force of law.” 

In 1997, William Barr insisted that he had “killed the independent counsel statute” during his previous tenure as Attorney General.  He recalled advising the Clinton Administration “‘not to breathe new life into it.’”  If Barr is confirmed again to this post, he could cite a principled opposition to the special counsel regulations and jettison them with the stroke of a pen.  No law would stop him.

EnduranceThe special prosecutor has not endured over time.  Prof. Coan recovers its lost history, showing that the roots of the Mueller Investigation extend to the 1870s.  But his story also emphasizes just how ad hoc the office has been.  It remains haphazard today, even with the current regulations in place.  In 2003, then-Acting Attorney General James Comey appointed Patrick Fitzgerald as a special prosecutor to investigate misconduct in the Vice President’s office.  When Comey did so, he explicitly disavowed the regulations as the source of the appointment and its terms.  The shape and form the special prosecutor take, it seems, are whatever the moment requires.

Norms.  The norms that guide the special prosecutor’s role in American government are very few.  Prof. Coan suggests one such norm, that a President cannot fire a special prosecutor “without a clear and compelling reason.”  Perhaps this norm exists, but I doubt whether any president since Richard Nixon has had real occasion to test it.  Surely in his perfect world Bill Clinton would have happily fired Ken Starr.  In the real world, Clinton would have been a fool to have done so, given how dramatically public opinion broke in his favor as the Starr Investigation culminated in articles of impeachment. 

Upon reassuming office General Barr could revise the special prosecutor regulations to write the Mueller Investigation out of existence.  He could cite his decades-long opposition to special prosecutors to insist that principle, not expediency, prompted his action.  Would the norm Prof. Coan describes constrain General Barr, as he acts to protect administration that solicits political support solely from a base currently opposed to the Mueller Investigation by an 80-20 margin?    

I am more certain that a norm coalesced out of the choices Prof. Coan describes Leon Jaworski and Ken Starr making for their investigations of Presidents Nixon and Clinton.  Whether or not the Constitution permits it, a special prosecutor will not seek an indictment of a sitting President.  This norm has forestalled constitutional crises and is thus important.  But it is also pretty basic.  Much more nuanced norms inform and lend legitimacy to the many decisions government officials make daily.  These norms help determine which cases a U.S. Attorney’s office will pursue, for instance, and which charges the office will file.  Starr benefited from no such guidance.  Lacking the sort of guardrails that work-a-day norms provide, Starr pursued a case against Clinton that “any respectable prosecutor would have been embarrassed actually to so charge,” as Sen. Ernest Hollings fulminated at the impeachment trial. 

General Barr commented on just this lack of norms two decades ago.  When it comes to criminal investigations, he insisted,

Ultimately what you really are talking about are judgments, judgment, prosecutive merit of the case, the exercise of discretion, and common sense. And what the statute does is it takes it away from executive branch officials and an institution that is making those judgments every day, and has a track record of making those judgments, and puts it outside and gives it to somebody else to make, someone who I don’t feel has enough accountability, someone who has too narrow a scope and loses perspective as to where they are going and to drive against an individual.  I think that’s bad and I think it’s unfair.

Does it Matter?

The special prosecutor’s lack of status as a government institution matters.  Its tenuous legal mooring does not trouble me.  A bipartisan group of senators has just introduced a bill that would beef up Robert Mueller’s legal standing.  The statute, if enacted, would set a “good case” requirement for Mueller’s termination and allow him to seek judicial review of his removal.  I doubt that these protections would matter much if Barr decided to end the investigation.  Mueller would provoke a constitutional showdown if he sued, and a federal judge would surely swallow hard before invoking a vacuous “good cause” requirement to overturn his firing. 

As Prof. Coan convincingly demonstrates, only politics, not law, can protect a special prosecutor against a hostile President.  This is where the special prosecutor’s inconstancy and lack of norms matter.  The expectation that a government institution will endure in some sort of consistent manner can protect it from the harmful overreach by another institution.  No law sets the Supreme Court’s membership, a fact that Franklin Roosevelt stressed when he proposed his court-packing plan in 1937 to rescue the New Deal from recalcitrant justices.  But settled expectations about the Court’s size surely helped to fuel the political blowback that Roosevelt, fresh off a huge reelection victory, suffered. 

Norms can also offer this sort of protection.  President Trump has tried repeatedly to cast the investigation into Michael Cohen, his former fixer, as a partisan “witch hunt.”  For instance, he denounced the case as “absolutely unthinkable” in a tweet because the FBI “BROKE INTO AN ATTORNEY’S OFFICE!”  This charge of thuggish government overreach has not stuck, in part due to the elaborate process the Department of Justice requires before a U.S. Attorney can seek a search warrant for a lawyer’s office.  Defenders of efforts to hold Trump accountable could quickly cite the norm guiding the U.S. Attorney’s efforts to dismiss the tweetstorm as silly.

The Mueller Investigation does not rest on a settled institutional foundation, and it can invoke very few norms to defend the choices it makes.  In all likelihood an Attorney General with a decades’ long record of principled opposition to the office – someone uniquely well positioned to short-circuit the investigation – will soon be confirmed.  The investigation, in short, is highly vulnerable.  If General Barr takes some action to derail the investigation in the coming weeks, I worry that presidential accountability will not come out on top. 

Whatever happens, Prof. Coan will soon have fodder for a second edition of Prosecuting the President.  His wonderful book arrives at exactly the right moment, making him an indispensable guide for the American people as they understand the turmoil they w

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