A Special Prosecutor is an individual who is appointed to investigate potential wrongdoing within the executive branch of the Government. They are appointed if an investigation is required into the President or another member of the Executive Branch. Federal criminal investigations are usually carried out by the Federal Bureau of Investigation (FBI). The FBI is ultimately overseen by the Attorney-General and the President. It would therefore be a clear conflict of interests for the FBI to investigate the Executive Branch.
The use of the Special Prosecutor is a clear example of oversight of the Executive.
The term has become an important one in current U.S Politics because in May 2017 former FBI Director, Robert Mueller, was appointed as Special Prosecutor to investigate potential Russian interference into the 2016 US Elections.
There have been a number of important investigations carried out by Special Prosecutors in the United States:
The Watergate Affair
In June 1972 five men were arrested after breaking into the Democratic National Committee Headquarters in the Watergate complex in Washington D.C. It soon became apparent that this was not a normal burglary attempt. Some of the burglars had links to the administration of President Nixon and questions were increasingly raised as to whether people in the administration had known of the break-in.
As a result of this, Archibald Cox was appointed as a Special Prosecutor to look into the Executive Branch’s potential involvement in the Watergate Scandal. Cox had previously been Solicitor-General of the United States and was a well respected figure in Washington.
In 1973 Alexander Butterfield, a White House Staffer, told a Senate Committee that the White House has a secret recording system which recorded all conversations held in the Oval Office. As Special Prosecutor, Cox subpoenaed these tapes. President Nixon tried to withhold the tapes, claiming executive privilege. The issue went all the way to the Supreme Court which ruled 9-0 in Nixon vs. United States (1974) that Nixon must give up the tapes.
As a result of this, Nixon ordered the Attorney-General to fire the Special Prosecutor. The Attorney-General refused and resigned. Nixon then ordered the Deputy Attorney-General to fire Cox. The deputy also refused and resigned. These events were known as the Saturday Night Massacre and weakened Nixon, as it appeared that he was trying to obstruct justice.
This clip from Oliver Stone’s 1995 Stone biopic shows Richard Nixon (played by Anthony Hopkins) ordering the firing of Cox, despite the advice of his staff:
Nixon later became the first US President to resign. He resigned on the 9th August 1974, knowing he would almost certainly have been impeached if he stayed in office.
The Whitewater & Lewinsky Scandals
In 1994 a Special Prosecutor named to investigate the Whitewater Scandal. It had been alleged that President Bill Clinton and the First Lady, Hillary Clinton, had been involved in illegal property developments in their home state of Arkansas. Although many questions were asked, there was seemingly little evidence of criminal conduct by the Clinton’s.
However, the Whitewater investigation would soon morph into something that would seriously damage Clinton. For many years Bill Clinton had been accused of sexual misconduct and a number of women had attempted to sue him. In 1998 Clinton was being sued by one of these women, Paula Jones. A White House intern called Monica Lewinsky said in an affidavit that she had not had a sexual relationship with Clinton. However, Lewinsky had previously told a colleague called Linda Tripp that she had been in a sexual relationship with him. Tripp had recorded conversations with Lewinsky in which she admitted this. Tripp forwarded these tapes on to Ken Starr, the Special Prosecutor.
“Clinton initially denied any relationship with Lewinsky. Famously saying “I did not have sexual relations with that women, Miss Lewinsky”:
However, he was subpoenaed to testify in front of a Grand Jury. Lying to the Grand Jury would have been perjury. In the most awkward set of questions ever faced by a US President, he gave legalistic responses when asked about the most intimate details of his sexual activities:
Later, Clinton was impeached. Importantly, he was not impeached for having an affair. He was impeached for obstruction of justice and perjury. He was acquitted in the Senate, but the scandal seriously damaged his second term as President.
Clinton did later admit to having an improper affair with Lewinksy:
Although it was not what he was meant to be investigating there is no doubt that without the existence of the Special Prosecutor the Lewinsky Scandal would not have taken place.
The Russia Investigation
After allegations that Russia had attempted to influence and manipulate the US Elections that resulted in Donald Trump becoming President, a Special Prosecutor (called ‘Special Counsel’) was appointed to investigate the issue.
One of the reasons that a Special Counsel was appointed was because of a series of events in 2017 that saw Donald Trump fire the FBI Director, James Comey. The FBI had been investigating potential Russian interference with the election and it appeared, to some, that Trump had been trying to obstruct an investigation that could find negatively against him. This was because it had been reported that Trump had suggested that Comey stop an investigation into the National Security Advisor, Michael Flynn. Comey had categorically refused.
Since then the Special Counsel, Robert Mueller, has been conducting an investigation into Russian interface and the Trump Administration. The full report has yet to be released, but there are rumours that it will appear soon. Yet, already, the investigation has had a huge impact. A number of individuals have already been prosecuted as a result of the Special Counsel investigation. Some of the most prominent are:
George Papadopoulos (Foreign Policy Advisor to the Trump Campaign) – Pled Guilty to one count of giving a false statement to the FBI over Russian involvement in the election. He was sentenced to 14 days in prison.
Rick Gates (Deputy Campaign Manger for the Trump Campaign) – Was charged with multiple financial offences. He was cleared of all charges.
Michael Flynn (Former National Security Advisor under President Trump) – Was charged with one count of giving a false statement to the FBI. He is yet to be sentenced.
Roger Stone (Political Advisor to Donald Trump) – Was charged with numerous counts of obstruction of justice and witness tampering. His trial is yet to take place.
Michael Cohen (Former personal lawyer to President Trump) – Was charged with giving a false statement to a Senate Committee. He was sentenced to three years in prison.
After two years Mueller is now due issue his full report on Russian interference in the 2016 election. Throughout he has been notoriously quiet about anything in public. No-one truly knows what the result of the investigation will be.
The Special Prosecutor has shown again and again that their scrutiny of the Executive Branch can have a major political impact. A Special Prosecutor was a catalyst for the resignation of Richard Nixon, a Special Prosecutor very nearly bought down President Clinton and a Special Prosecutor may yet have a significant impact on the presidency of Donald J. Trump.