Special counsels, like the one leading the Justice Department's investigation of Hunter Biden, are intended to be independent − but they aren't entirely
- Written by Joshua Holzer, Assistant Professor of Political Science, Westminster College
On June 20[1], 2023, Hunter Biden[2], the second son of President Joe Biden, entered into a plea agreement[3] with prosecutors related to tax-related charges and the illegal possession of a firearm[4].
On July 26[5], the plea agreement[6] was challenged by the judge in the case[7]. She wanted to know more[8] about any immunity being offered, given that Hunter Biden is under several federal investigations[9].
After the prosecution and defense failed to renegotiate[10] the deal, Attorney General Merrick Garland announced on Aug. 11 that U.S. Attorney David Weiss[11], the Donald Trump-appointed lead federal prosecutor for Delaware who had already been investigating the case, had been appointed as special counsel[12] so that he would have “the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently, based only on the facts and the law.”
After the appointment, Sen. Dick Durbin, an Illinois Democrat, praised Garland[13] for being “committed to avoiding even the appearance of politicization at the Justice Department.”
Sen. Lindsey Graham, a South Carolina Republican, however, attacked Weiss’ appointment[14] as “a dumb political decision,[15]” despite having previously supported it[16].
From my perspective as a political scientist[17], I believe that while special counsels are intended to be independent, in practice they aren’t entirely. Here’s why.
Independent and special counsels
Ensuring impartiality in the Justice Department can be difficult, as the attorney general is appointed by[19] – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general to pursue a political agenda. President Richard Nixon[20] did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts.
On the evening of Oct. 20, 1973[21], Nixon ordered Attorney General Elliot Richardson[22] to fire Archibald Cox[23], whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus[24] to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General Robert Bork[25], the next most senior official at the Justice Department, to fire Cox. Bork complied.
This shocking series of events, often referred to as the Saturday Night Massacre[26], demonstrated how presidents could exercise political power over criminal investigations.
As a result of the Watergate scandal, Congress passed the Ethics in Government Act of 1978[27]. This allowed for investigations into misconduct that could operate outside of presidential control.
After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president[28] or other high-ranking executive branch officials[29] had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate.
President Richard Nixon, here pointing to transcripts of White House tapes he agreed to turn over to congressional investigators, was an inspiration for the 1978 law that created truly independent counsels. It expired in 1999.
AP Photo[30]
The Ethics in Government Act also disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could “result in a personal, financial, or political conflict of interest[31], or the appearance thereof.”
In the decades since the law’s passage, independent counsels investigated Republicans[32] and Democrats[33] alike. In 1999, Congress[34] let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno[35] authorized[36] the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.
Robert Mueller, who was appointed in 2017[37] by Deputy Attorney General Rod Rosenstein to investigate possible Russian interference[38] in the 2016 elections and possible links between the Trump campaign and the Russian government[39], was a special counsel. Some Republicans accused him of bias[40], despite his long career serving under both Democratic and Republican presidents[41].
In 2020[42], John Durham – another veteran[43] of the Justice Department – was appointed as special counsel to investigate[44] the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of political prosecution[45]. Sussmann was later acquitted[46].
Politicizing the process
Although special counsels were meant to resemble independent counsels, there are notable differences.
For instance[47], while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the chief justice[48] of the United States[49].
Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Justice Department regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or end[50] a special counsel investigation.
For example, on at least one occasion, Trump sought to have Mueller dismissed[51]. When his attorney general, Jeff Sessions[52], refused to comply[53], Trump fired[54] him.
Sessions was later replaced[55] by William Barr[56], who previously served as attorney general under President George H.W. Bush. Prior to his appointment, Barr sent an unsolicited memo to the Justice Department defending[57] Trump by arguing that presidents have “complete authority to start or stop a law enforcement proceeding[58].”
In my own research[59], I have found[60] that abuses of power are more common in situations in which the president and the attorney general are political allies.
For instance, after Mueller finished his report[61] in 2019, Barr released a summary[62] of its “principal conclusions.” Later, Barr’s summary was criticized for “not fully captur[ing] the context, nature, and substance[63]” of Mueller’s work.
In 2020, a Republican-appointed judge ruled[64] that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”
To be or not to be free of partisanship
The independence of the Justice Department rests, in part, on who occupies[65] the offices of president and attorney general.
Trump, for example, saw himself[66] as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.”
Meanwhile, Joe Biden has a long history[67] of supporting the independence of Justice Department investigations, dating back to his 1987-1995 tenure as chairman of the Senate Judiciary Committee[68].
Barr once argued[69] that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.”
In contrast, Garland – a former U.S. circuit judge – insists[70] that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”
Republican Congresswoman Marjorie Taylor Greene has claimed the Biden administration is using the Justice Department unfairly.Garland has served as attorney general for only 2½ years, yet at this point he has appointed more special counsels than any of[71] his predecessors[72].
The first, Jack Smith[73], is overseeing investigations into former President Donald Trump’s role in the Jan. 6 insurrection[74], as well as Trump’s handling of classified government documents[75] upon leaving office in 2021. The second, Robert Hur[76], is overseeing President Joe Biden’s handling of classified documents after leaving office as vice president[77] in 2017. Weiss’ investigation of Hunter Biden is Garland’s third special counsel appointment.
However, despite attempts by Garland to keep sensitive cases an arm’s length away, the reality is that special counsels – by design – are not as independent as the independent counsels of the past. As a result, the perception of political prosecution[78] can be hard to avoid.
This is an updated version of an article[79] published Jan. 13, 2023, which was an updated version of an article[80] originally published Dec. 14, 2022.
References
- ^ June 20 (www.npr.org)
- ^ Hunter Biden (theconversation.com)
- ^ a plea agreement (www.collinsdictionary.com)
- ^ related to tax-related charges and the illegal possession of a firearm (www.pbs.org)
- ^ July 26 (www.politico.com)
- ^ the plea agreement (www.politico.com)
- ^ the judge in the case (abcnews.go.com)
- ^ She wanted to know more (www.npr.org)
- ^ federal investigations (www.nytimes.com)
- ^ failed to renegotiate (theconversation.com)
- ^ U.S. Attorney David Weiss (www.justice.gov)
- ^ appointed as special counsel (www.justice.gov)
- ^ praised Garland (www.durbin.senate.gov)
- ^ attacked Weiss’ appointment (www.foxnews.com)
- ^ a dumb political decision, (youtu.be)
- ^ previously supported it (www.cassidy.senate.gov)
- ^ a political scientist (scholar.google.com)
- ^ AP Photo/Ron Soliman (newsroom.ap.org)
- ^ appointed by (theconversation.com)
- ^ Richard Nixon (www.whitehouse.gov)
- ^ Oct. 20, 1973 (www.npr.org)
- ^ Elliot Richardson (www.justice.gov)
- ^ Archibald Cox (www.justice.gov)
- ^ William Ruckelshaus (www.npr.org)
- ^ Robert Bork (www.justice.gov)
- ^ Saturday Night Massacre (www.youtube.com)
- ^ Ethics in Government Act of 1978 (www.congress.gov)
- ^ vice president (theconversation.com)
- ^ high-ranking executive branch officials (www.law.cornell.edu)
- ^ AP Photo (newsroom.ap.org)
- ^ result in a personal, financial, or political conflict of interest (www.congress.gov)
- ^ Republicans (www.hsdl.org)
- ^ Democrats (www.govinfo.gov)
- ^ Congress (www.cnn.com)
- ^ Janet Reno (www.justice.gov)
- ^ authorized (www.washingtonpost.com)
- ^ 2017 (www.justice.gov)
- ^ possible Russian interference (theconversation.com)
- ^ possible links between the Trump campaign and the Russian government (theconversation.com)
- ^ bias (www.bbc.com)
- ^ both Democratic and Republican presidents (www.npr.org)
- ^ 2020 (www.justice.gov)
- ^ veteran (www.nbcconnecticut.com)
- ^ investigate (www.justice.gov)
- ^ political prosecution (www.npr.org)
- ^ acquitted (www.nytimes.com)
- ^ For instance (sgp.fas.org)
- ^ chief justice (www.supremecourt.gov)
- ^ of the United States (theconversation.com)
- ^ end (www.politico.com)
- ^ sought to have Mueller dismissed (www.nytimes.com)
- ^ Jeff Sessions (theconversation.com)
- ^ refused to comply (twitter.com)
- ^ fired (www.washingtonpost.com)
- ^ replaced (theconversation.com)
- ^ William Barr (www.justice.gov)
- ^ defending (theconversation.com)
- ^ complete authority to start or stop a law enforcement proceeding (www.wsj.com)
- ^ In my own research (doi.org)
- ^ I have found (doi.org)
- ^ report (www.justice.gov)
- ^ summary (www.washingtonpost.com)
- ^ not fully captur[ing] the context, nature, and substance (www.washingtonpost.com)
- ^ ruled (context-cdn.washingtonpost.com)
- ^ on who occupies (theconversation.com)
- ^ saw himself (www.washingtonpost.com)
- ^ a long history (scholarship.law.unc.edu)
- ^ 1987-1995 tenure as chairman of the Senate Judiciary Committee (www.judiciary.senate.gov)
- ^ argued (www.washingtonpost.com)
- ^ insists (www.justice.gov)
- ^ any of (www.reuters.com)
- ^ his predecessors (www.axios.com)
- ^ Jack Smith (www.justice.gov)
- ^ Jan. 6 insurrection (theconversation.com)
- ^ handling of classified government documents (theconversation.com)
- ^ Robert Hur (www.justice.gov)
- ^ vice president (theconversation.com)
- ^ political prosecution (truthsocial.com)
- ^ article (theconversation.com)
- ^ article (theconversation.com)
Authors: Joshua Holzer, Assistant Professor of Political Science, Westminster College
