A Brief History of the Special Counsel Statute and Its Abuses

AdobeStock 142716164
AdobeStock 142716164

In yet another capitulation in a long line of capitulations, a Republican Attorney General has naively recused himself from an inquiry into an investigation of possible administration wrongdoing and enabled the appointment of a special counsel, independent counsel, special prosecutor — all slightly different names and roles, but, in the end, similar names for distinctly controversial positions that are historically rife with overreach and power grabs by well-connected members of the Justice Department alumni.

Oh for heaven’s sake, you say, another crazed conspiracy theorist on the loose! Well, that’s precisely what I said when asked to explore the fairly recent history of a few of the more well-known (or, it could be said, notorious) individuals graced with the special privilege and title of “independent” investigator of the executive branch. That is, until I came across this prophetic bit of wisdom written by the dear departed Supreme Court Justice Antonin Scalia — written all the way back in 1988 as the lone dissenter in a 7–1 ruling that upheld the constitutionality of the Ethics in Government Act:

“Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrong-headed, naive, ineffective, but, in all probability, ‘crooks.’” Scalia went on to posit that the majority’s decision would weaken the presidency and expose the head of the executive branch to “debilitating, constant criminal investigations,” worrying that an independent counsel who was unaccountable (i.e., unable to be removed) could, if so inclined, decide who “deserved” investigation and could then prosecute them for something, anything, in an attempt to prove a political point.

Let’s take a look at a few recent “independent” investigators to see if we can predict how this particular story of Robert Mueller, James Comey, Jeff Sessions and Donald Trump might end.

Lawrence Walsh was appointed independent counsel in charge of the Iran-Contra affair in December 1986. Walsh eventually — to the tune of six years and millions of dollars of taxpayer money spent — was able to indict former National Security Council staffer Oliver North and Vice Admiral John Poindexter, as well as former Secretary of State Caspar Weinberger. All of these indictments were eventually reversed on appeal or, in Weinberger’s case, pardoned by President George H.W. Bush in December 1992. Ironically, reminiscent of today’s current events, Walsh came under fire for potentially throwing the 1992 election to Bill Clinton when, on the eve of the election as Bush was widely believed to have been closing the gap with Clinton, Walsh announced that despite having been largely exonerated in multiple previous lines of questioning, he had cause to “re-indict” close Bush ally Weinberger in association with his investigation. The indictment was subsequently dismissed in the courts and Bush pardoned Weinberger to ensure no further prosecutorial nonsense against him could be perpetuated.

Ironically, after a Supreme Court ruling in 1988 that reaffirmed the constitutionality of the independent counsel role, Bill Clinton became the first sitting president to endorse his support of it. Clinton and members of his administration then promptly became the targets of no fewer than seven independent counsel investigations. Most renowned of all, Ken Starr was appointed by a three-judge panel to the role of independent counsel to investigate the suicide death of Deputy White House Counsel Vince Foster, and his connection with and knowledge of the Whitewater real estate investments of Bill and Hillary Clinton.

Later, the scope of this inquiry expanded to various areas, most well-known, of course, was the affair that Bill Clinton had and was not forthcoming about in sworn testimony with Monica Lewinsky. Because Clinton had not been honest about the affair in a deposition, he was eventually impeached and his law license was suspended for five years.

But what of the Whitewater misdeeds, or the death of the White House associate with arguably the most knowledge and closest understanding of those misdeeds, Vince Foster — the original purpose for the multiyear, multimillion-dollar boondoggle of an investigation? Neither Bill nor Hillary Clinton was ever prosecuted because there was never “sufficient evidence” found necessary to do so, despite multiple close connections who were charged with criminal conduct. Susan McDougal, who was held in contempt of court for refusing to answer questions about her former business partners and friends, the Clintons, and sentenced to years in prison, was pardoned by President Clinton shortly before he left office.

What of Vince Foster? His death was never actually officially investigated by the independent counsel. The only question was whether the Clinton administration, which had removed documents from Foster’s office and turned them over to their own personal attorneys despite Foster’s death being investigated by the National Park Service (that bastion of tough prosecutorial justice), acted improperly. Again, no charges were filed regarding the actual query that started the investigation.

Finally, the appointment of Patrick Fitzgerald as special counsel in December 2003 to investigate the illegal unmasking of CIA operative Valerie Plame seems to be eerily precedential to today’s current controversy surrounding the special counsel role. Attorney General John Ashcroft had recused himself from the investigation. The Deputy Attorney General at the time, one James Comey, as a matter of fact, appointed his dear friend, Patrick Fitzgerald — U.S. Attorney for the Northern District of Illinois at the time — to investigate anywhere and everywhere in order to bring any wrongdoers to justice. Oh, by the way, Fitzgerald is also the godfather to one of Comey’s children.

After nearly two years of investigations which seemed to render nothing at every turn except cries of “where there’s smoke, there’s fire,” Fitzgerald brought an indictment against Scooter Libby for five counts of false statements, perjury and the ever-popular “obstruction of justice.” It had long been rumored that bigger “skins,” high-ranking, close associates of George W. Bush like Karl Rove, were about to be nailed to the wall. Nothing ever happened to that effect, and eventually Bush commuted Libby’s prison sentence. The damage to Plame’s career and personal safety as a result of illegal unmasking was never really mitigated. But, the special counsel, after years and years of investigation and millions of dollars of taxpayer funds lost, had secured an indictment, any indictment at all. Investor’s Business Daily ran an editorial at the time stating that the abuse and prosecutorial overreach demonstrated by Fitzgerald proved that anyone in this role could bend the truth with the best of seasoned politicians.

Robert Mueller has a long and distinguished résumé in his field. And he’s also one of Comey’s closest confidants, a mentor and a former boss as well as an employee. We shouldn’t be surprised if Mueller gets a skin, any skin, on the wall at all, regardless of its relevance to Russian interference or collusion with the Trump administration in the 2016 election. It’s what this role is expected to do. Get something. Someone. Anything.


About the author: Kelly Warren Moore has sold clinical research and development software solutions to the pharmaceutical and biotech industry for the past several years. She previously spent 20 years in business development for the pharmaceutical research and development field, focusing on multi-study, global clinical programs. She has a bachelor of arts degree in economics from The University of Texas at Austin. Any opinions expressed in this article are strictly her own and are not meant to represent those of any employer, client or organization with whom she is affiliated.


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