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Why the US Needs a Special Prosecutor

By:
Professor Andrew Coan

 

“I shall resign the presidency effective at noon tomorrow.” With these words, spoken just after 9 p.m. on August 8, 1974, Richard Nixon ended an American tragedy. In its place, he created a mystery. The most powerful man in the most powerful country on earth had been driven from office by a special prosecutor he could have fired at any time. How could this happen? Behind this mystery lay another, even deeper one. Why was such a subordinate official entrusted with investigating the president of the United States?

Two hundred years earlier, Americans fought a revolution to overthrow the maxim that “the King can do no wrong.” In its place, they enshrined the fundamental principle that no one, not even the president, is above the law. Few ideas have been more central to the nation’s democratic self-image. The words “Equal Justice Under Law” are engraved above the entrance to the United States Supreme Court.

Yet no law required Richard Nixon to appoint an outside prosecutor when credible evidence emerged that he had committed a crime. When Nixon chose to appoint such a prosecutor voluntarily, no law barred him from shutting down the investigation to save his own skin. How could the nation have left its sacred ideals so weakly protected?

Since Nixon’s resignation, these mysteries have only deepened. In 1978, Congress created a strong independent prosecutor who could not easily be fired by the president. But this solution quickly proved controversial, and Congress scrapped it after the impeachment of President Bill Clinton in 1999. Today, the United States is right back where it was when Nixon resigned. Special prosecutors still strike fear into the hearts of presidents, who can still fire them at any time.

Through my research, I have attempted to unravel the mystery; more specifically, to answer three questions. First, how did special prosecutors come to exercise significant power, despite serving purely at the pleasure of the president? Second, why has the United States rejected stronger institutional safeguards of the sort embraced by other advanced democracies? Third, what does this history means for special prosecutors today?

The short answer to all three is that special prosecutors function as catalysts for democracy. By raising the visibility of presidential misconduct, they enable the American people to hold the president accountable for his actions. But special prosecutors, just like presidents, can abuse their power. To guard against this risk, the president retains the power to fire a special prosecutor at any time. If he exercises that power corruptly or capriciously, special prosecutors have no legal remedy. But they are not unprotected. The president must ultimately answer to the American people. This has proved a surprisingly powerful deterrent, though also a fragile one. It is the best explanation for why special counsel Robert Mueller still has a job today—and the best remaining hope for holding President Trump accountable.


Andrew Coan is a professor of law at the University of Arizona. He is the author of Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law, a new release from Oxford University Press.