Monthly Archives: February 2019

What is the Special Prosecutor and why are they important?

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.

Mueller

Former FBI Director, Rober Mueller, is current leading an investigation into Russian interference in the 2016 Election.

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.

Archibald Cox was the first Special Prosecutor in the Watergate Scandal

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.

Monica Lewinsky confided in a friend about her affair with President Clinton – unaware that her ‘friend’ was recording everything that she said.

“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.

The firing of FBI Director, James Comey, was a key catalyst for the appointment of a Special Counsel.

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.

Michael Flynn resigned as National Security Advisor having lied to the FBI about his contact with Russian officials during the 2016 Election.

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.

On 27th February 2019 Michael Cohen gave explosive testimony to Congress in which he called Donald Trump a ‘racist’ and a ‘liar’

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.

What is the ‘Invisible Primary’ and why is it significant?

As of 25th February 2019 eight candidates have declared that they will be seeking the Democratic nomination for the presidency of the United States. Among them are Bernie Sanders (who finished second in the 2016 Democratic Primary) and Elizabeth Warren, someone who has long been tipped to make a run for the White House. Other prominent candidates may still declare, including former Vice-President Joe Biden.

Even aged 77 is it time to ‘Feel the Bern’ again?

On the Republican side no-one has openly declared that they will challenge the incumbent, President Trump. It is unusual, but not unprecedented, for a sitting President to face a primary challenge.

The first primary election of the 2020 campaign is the Iowa Caucus on the 3rd February 2020. So why so much activity now? The reason is that America is now well and truly into what is known as the ‘invisible primary’.

The date of the next Presidential Election in the USA is guaranteed in law. It takes place every four years on the first Tuesday that follows November 1st. This is different to the UK. Traditionally, the timing of a General Election was decided by the Prime Minister, as long as it was held within five years of the last one. In 2011 the Fixed-Term Parliaments Act was passed, setting the date of the next election as five years after the last. However, the act allows for early elections under two circumstances:

  1. If the Government loses a motion of no confidence in the House of Commons and cannot win back that confidence within fourteen days.
  2. If two-thirds of members of the House of Commons vote in favour of an early General Election.

As Theresa May showed in 2017 (with Parliament voting 522-13 for a fresh election), the Fixed-Term Parliament’s Act is not a significant hurdle to the calling of any early election.

The fact that the date of the next U.S Presidential Election is guaranteed means that the moment a President is sworn in attention turns to the next election cycle. The period before the official primary season starts is known as the ‘invisible primary’. It is also sometimes called the ‘Money Primary’. During this period candidates will do a number of things in order to set themselves up for a presidential run:

1 – Form and Exploratory Committee

One of the first things that a potential candidate will do is form an exploratory committee. This is a committee to explore whether a run for the presidency is viable. Candidates can test their ideas in focus groups and informally test what kind of support they are likely to receive from prominent backers. Forming an exploratory committee also allows a candidate to beginning raising money in line with Federal Election Committee guidelines.

2 – Build a Campaign Team

If a run for the presidency is possible a candidate will then begin to build their campaign team. Presidential Campaigns in the United States are huge machines. At their peak, there are thousands of staff, many who are volunteers. In the early invisible primary, however, a candidate will look to fill out the senior positions in the campaign:

Campaign Manager – This person is responsible for the running of the campaign. They will be ultimately responsible for fundraising, spending and strategy. They will also often become a visible media presence.

Chief Strategist – Most campaigns will have an individual whose goal is to focus on the overall message of the campaign and how to win the support of voters. Unlike the Campaign Manager, who also has to deal with the logistical aspects of the campaign, the role of the Chief Strategist is to focus fully on how their candidate can win the the most votes.

David Axelrod was Chief Strategist for Barack Obama in 2008 and went on to become a Senior Advisor to the President whilst he was in office.

Media Strategist – A campaign will have a media strategist whose main role is to try to best exploit the media in order to get the candidate’s message heard and understood.

Chief Pollster – There are a number of independent polling agencies in the United States, like Gallup or the Marist Institute. However, campaigns will also put their own polls out in order to test their message and look for voter feedback. They may need to refine their polls to look at the impact of their campaign on a certain group of people within a certain area.

Finance Director – The Finance Director is responsible for fundraising and managing the expenditure of the campaign. They also have to ensure that all financial aspects are compliant with Federal Election Commission regulations.

Press Secretary – Behind the candidate themselves the Press Secretary is the most visible person on the campaign. Their job is to deal directly with the press on a daily basis.

3 – Make a formal announcement

When a candidate believes they are capable of mounting a viable campaign for the presidency they will formally announce their candidacy. Candidates will usually do this in a setting that has personal or political significance to them and will almost always make the announcement in their home state. For example, in 1968 Robert F. Kennedy made his announcement for the presidency on the same spot that his brother, President John F. Kennedy, had made his announcement in January 1960.

The announcement will usually be part of a formal speech, the first of many in a campaign. It is rare for candidates to make firm policy promises at this stage, but it is a chance for them to introduce themselves as a candidate and talk about their character and temperament.

Excerpt from Barack Obama’s announcement speech:

” All of us know what those challenges are today: a war with no end, a dependence on oil that threatens our future, schools where too many children aren’t learning, and families struggling paycheck to paycheck despite working as hard as they can. We know the challenges. We’ve heard them. We’ve talked about them for years.

What’s stopped us from meeting these challenges is not the absence of sound policies and sensible plans. What’s stopped us is the failure of leadership, the smallness — the smallness of our politics — the ease with which we’re distracted by the petty and trivial, our chronic avoidance of tough decisions, our preference for scoring cheap political points instead of rolling up our sleeves and building a working consensus to tackle the big problems of America.”

4 – Raise LOTs of money

When a candidate has formally declared for the presidency they need to immediately begin raising money.  One of the reasons for this is the sheer amount of money needed to run for the presidency. In 2016 Hillary Clinton spent $768 million on her failed presidential run. Candidates can raise money in a variety of ways:

Individual Contributions – Individuals will be encouraged to donate to political campaigns. There are limits on these contributions that are set by the Federal Election Committee (FEC). An individual can donate a maximum of $2,800 to a particular campaign in a particular year.

Bernie Sanders presidential campaign in 2016 was famous for relying heavily on small donations from a large number of supporters. In his primary bid in 2016 he raised $259 Million Dollars. Sanders became the first candidate to reach one million individual donors and, of these, the average donation to his campaign was $27 dollars. This had a political dividend for Sanders too. Sanders had been a long-time critic of the system of US Campaign Finance and had called the Supreme Court’s decision in Citizens United v. FEC “absurd”. The fact that Sanders raised so much money from small donations backed up the narrative that his campaign was a grassroots insurgency against the established Washington insiders.

Barack Obama joked to Bernie Sanders that he “looked like a million bucks, or to put it in terms you will understand, you look like 37,000 donations of $27 dollars each”

PACS – Political Action Committees (PACS) are a key way that presidential campaigns are funded. PACs are organisations that collate money from its members before transferring it to political campaigns. Individuals are limited on how much they can contribute to a PAC. PACs might represent Trade Unions, Industrial Sectors, Individual Companies. There are limits on how much money a PAC can give to a particular campaign. However, they can spend unlimited money independently of a candidate.

Super PACs – A Super Pac is a PAC without its key constraints. There are no limits on the donations that a Super PAC can receive from an individual, business or interest group. The main restraint, however, is that no money can be given directly to a political campaign. However, Super PACs will spend their money in a way that they know will benefit their chosen candidate. For example, in 2015 a Super PAC called ‘Right to Rise’ paid for a television advert featuring former President George W. Bush. At the time, Bush’s younger brother Jeb was running for the Republican nomination. George W. Bush made no mention of his brother, thereby not breaking any rules, however, it was clearly an advert in support of Jeb’s campaign. In total, Right to Rise spent $86 Million supported Jeb Bush’s run for the White House.

The Right to Rise Super Pac did not help Jeb Bush as much as they would have liked. Despite being the early favourite and spending $130 Million Dollars, he won only three delegates and dropped out of the race after the South Carolina Primary.

Dark Money – This refers to money that is untraceable. By its very nature, not much is known about it. However, it is estimated that over $100 Million Dollars of Dark Money was spent in the 2018 Election. Clearly, there is a significant threat to democracy if it is not known who is financing and influencing political candidates.

5 – Maintain or Abandon a Run

The fact that a candidate has completed all of these steps is no guarantee that they will even make it to the first primary or caucus in the election cycle. Before the first primary it is likely that many candidates will drop out. For example, Governor Rick Perry (Governor of Texas) withdrew from the Republican Primary five months before the first primary was held. Despite abandoning his campaign before the first vote, Rick Perry spent $17 Million Dollars!

Governor Rick Perry withdrew from the Republican contest before a single vote was cast.

The Invisible Primary is a result of three key things: the certainty of an upcoming Presidential Election, the importance of being able to finance a campaign and the open way in which party’ choose their candidates to become the President of the United States.