In earlier political scandals in America from the 1970s onward, independent prosecutors have been tasked with addressing potentially illegal behaviour by executive branch officials in scandals that have threatened the nation’s political life. 

While most people tend to connect the resolution of the “Watergate scandal” in 1972-4 with investigations and revelations in Congress and by the media, it is important to remember that reining in politicians and their henchmen also came about due to the work of an independent prosecutor in bringing malefactors to book. 

American prosecutor Jack Smith, who has been appointed as special counsel to lead investigations into Donald Trump’s role in the 6 January insurrection and how highly classified documents were found in Trump’s Florida home. (Photo: EPA-EFE / Jerry Lampen)

Richard Nixon

Back in 1973, under growing public pressure as a result of media revelations about President Richard Nixon’s re-election campaign committee, the Nixon administration reluctantly agreed to the appointment of an independent prosecutor in the person of Archibald Cox, a distinguished lawyer and law professor. Cox was tasked with following the evidence and moving forward to indictments, prosecutions and trials — should they be necessary — in dealing with law-breaking by presidential staffers and campaign committee figures. 

The infamous “Saturday Night Massacre” came about when both Nixon’s then attorney general and his deputy refused to fire Cox for his zealous pursuit of those possible crimes, and then both were fired by the president. The solicitor general, Robert Bork, the third-ranking Justice Department official, finally agreed to do the deed. 

Such was the pressure around the scandal that a second independent counsel was appointed in Cox’s place — Leon Jaworski, also a lawyer and professor. Ultimately, Jaworski’s investigations were instrumental in bringing down Nixon, in tandem with congressional movements to impeach and convict him. The increasingly troubled president resigned just ahead of a near-certain impeachment and conviction.

In the years following Watergate, a number of independent counsels to investigate political mischief were appointed, until the law that had provided for such appointments was changed.

Under the old independent counsel statute, two independent counsels, Lawrence Walsh and Kenneth Starr, had been appointed by the judiciary, rather than via Department of Justice processes — as is now the case for special counsels, the new office created in place of independent counsels.

That independent counsel law had been revoked following the fiasco of Ken Starr’s investigation of Bill Clinton. By then, both political parties had been embarrassingly burnt by out-of-control independent counsels chasing shadows.  

Special counsels are specially designated Justice Department officials who report to the attorney general, who operate outside a normal departmental chain of command. More recently, Robert Mueller — who investigated the possibility of links between Russia and Trump’s presidential campaign — and John Durham, who examined potential malpractice by the FBI in connection with such investigations, were special counsels.

Fishing expeditions

When I consulted with an American lawyer friend about the practical difference between the old independent counsels and the current special counsel law, he explained that Independent counsels, by virtue of their appointment processes, had had more freedom, but undertook what effectively seemed to be fishing expeditions and probes of matters only tenuously connected to the charges they’d been appointed to investigate.

For example, independent counsel Lawrence Walsh was supposed to probe the secret sale of weapons to Iran — subject to a US arms embargo — with the proceeds to be used to support the Nicaragua Contra rebels against the Sandinista regime. But Walsh ended up investigating the activities of two cabinet officers — Caspar Weinberger and George Shultz — rather than focusing tightly on the task at hand.

Meanwhile, a few years later, Kenneth Starr had started looking into Bill and Hillary Clinton’s reportedly crooked “Whitewater” real estate deal in Arkansas, a land sale that occurred prior to Clinton becoming president. But Starr went down a deep rabbit hole, focusing instead on charges of an oral sex encounter in the Oval Office.

In present circumstances, special counsels, in theory, are on a shorter leash than those old independent counsels had been, but that may be more theory than actual fact, assuming the responsibility and tasks of the appointee’s role are made clear from the outset of the appointment.

The statutory provisions for special counsels are: “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and (a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

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The law adds: “An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decision making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.” 

Setting out the powers of the special counsel, the law further explains, “Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States attorney. Except as provided in this part, the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.”

On 19 November, Biden administration Attorney General Merrick Garland determined a special counsel was necessary to address two issues regarding the former president’s behaviour. The primary tasks for the new special counsel, Jack Smith, will be: 1) potential violations of federal law by virtue of any complicity by the former president over the mob insurrection that attempted to seize the Capitol Building and obstruct the formal certification of the incoming president after his election; and 2) whether the former president had violated the law by removing top secret government documents from the White House and storing them inappropriately — and dangerously — in the basement of his Mar-a-Lago complex.

Other probes

It is important to note that these investigations are distinct from the ongoing deliberations of the House of Representatives’ Select Committee on the events of 6 January, the examinations by Congress of Trump’s tax returns, and other legal actions pending against Donald Trump in Georgia and New York, among other cases.

Until Smith took this assignment, in his most recent incarnation, he had been a prosecutor assigned to the International Criminal Court in The Hague. Upon accepting this new assignment, Smith said via a written statement (he was recovering from a sports injury in Europe), “I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice. The pace of the investigations will not pause or flag under my watch. I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”

US Attorney General Merrick Garland. (Photo: EPA-EFE / Jim Lo Scalzo)

When Merrick Garland had made the announcement on 19 November, he said he had concluded that appointing a special counsel who will independently manage the investigations would be in the public’s best interest. This was due to recent developments such as Trump’s announcement that he is running for president again in 2024 and President Biden’s statements that he also intends to run.

As CNN reported it, “The attorney general also explained that Smith is a veteran prosecutor who has served a variety of roles within the DOJ throughout his career. ‘Throughout his career, Jack Smith has built a reputation as an impartial and determined prosecutor who leads teams with energy and focus to follow the facts wherever they lead,’ Garland said.” 

Smith had begun his legal career as an assistant district attorney for the New York County District Attorney’s Office in 1994 and became an assistant US attorney for the Eastern District of New York in 1999.

There, Smith had prosecuted charges such as gang murders of police officers, as well as civil rights violations. In 2008, he left the Justice Department to be an investigation coordinator for the International Criminal Court, supervising war crimes investigations. He returned to the Department of Justice a few years later to become the chief of its public integrity section, where he led a team of prosecutors dealing with corruption and election crimes cases across the country. Eventually returning to The Hague, he was chief prosecutor for the special court dealing with war crimes in Kosovo.

Commenting on his appointment, CNN noted, “Smith’s experience ranges from prosecuting a sitting US senator to bringing cases against gang members who were ultimately convicted of murdering New York City police officers. In recent years, Smith has prosecuted war crimes at The Hague. His career in multiple parts of the Justice Department, as well as in international courts, has allowed him to keep a relatively low profile in the oftentimes brassy legal industry.

“His experience and resume will allow him, at least at first, to fly underneath the type of political blowback that quickly met former special counsel Robert Mueller’s team. It also shows he is adept at managing complex criminal cases related to both public corruption and national security — and that he has practice making challenging decisions with political implications.”

Given the highly politicised nature of any discussion around possible charges brought against a former president, and especially the inevitable angry howling from the members of the Maga cult, Smith is clearly going to need every bit of his experience, as a bureaucratically astute and seasoned prosecutor, to move forward without becoming enmeshed in partisan rancour. This will become especially true if and when he deems it necessary to recommend charges against the former chief executive. DM