Season 2, Episode 15 | Special Counsels vs. the Presidency: Who Holds the Power?

How should a democracy balance the need for independent investigations of government wrongdoing with the president’s constitutional authority over prosecutions? Where do we draw the line?

In this episode of This Constitution, hosts Savannah Eccles Johnston and Matthew Brogdon dig into the fascinating and often murky world of special counsels. From their origins in President Grant’s efforts to distance himself from scandals, to the dramatic moments of the Watergate era and the "Saturday Night Massacre," the history of special counsels is anything but straightforward.

They break down the creation of independent counsels under the Ethics in Government Act of 1978, a powerful legal framework that was later undone by high-profile investigations like Iran-Contra and the Clinton impeachment. Fast forward to today, and the special counsel role has become a battleground for constitutional debate, raising tough questions about who holds the power to fire them and when.

Matthew makes a compelling argument for why prosecutorial power must remain politically accountable, warning against a future where legal battles spiral beyond the courts’ control. They wrap up the episode with a powerful reminder to rethink our reliance on legally ambiguous mechanisms and consider the Constitution’s built-in safeguards, like impeachment, as a much-needed check on power.

Tune in for an eye-opening dive into the constitutional tension between justice and executive authority.

In This Episode

• (00:15) Topic Introduction and definition of special counsels
• (01:16) Historical origins: Grant and Roosevelt
• (01:57) Watergate and Nixon: The rise of controversy
• (03:37) The Saturday night massacre
• (06:03) Aftermath of Watergate: Impeachment and resignation
• (07:14) Constitutional issues: Executive power and accountability
• (09:53) The Ethics in Government Act of 1978
• (11:31) Independent counsel vs. special counsel: Key differences
• (12:44) Scope and jurisdiction of independent counsel
• (14:35) Controversies: Iran-Contra and Whitewater
• (15:05) Supreme Court and Morrison v. Olson
• (17:20) Problems with removal and accountability
• (20:48) Expiration of the independent counsel statute
• (25:38) Return to special counsels: DOJ regulations
• (26:52) The Mueller investigation and modern special counsels
• (29:12) Removal and oversight of special counsels
• (31:51) Unresolved constitutional questions
• (33:23) Political vs. legal controls: Impeachment and accountability
• (37:38) Checks and balances: Political structure vs. legal process

Notable Quotes

• (09:07) "The prosecutorial power is a very dangerous power. Even if you can't get a conviction, to bring an indictment and to pursue a prosecution against someone can ruin their life." — Matthew Brogdon

• (12:26) "The independent counsel has, quote, full power and independent authority to exercise all investigative and prosecutorial functions and powers of The Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." — Matthew Brogdon

• (34:09) "I think the founding generation expected the impeachment power to be a far more widely utilized power. That's been extremely rare. And I think we've actually underutilized it." — Matthew Brogdon

• (37:43) "Checks and balances work best when you lean into their political structure. They're inherently political structure, and they get really murky, and we get lots of problems or potential problems when we ignore that structure in favor of a more legal structure and rely more on the courts." — Savannah Eccles Johnston

Transcript

Intro:

[0:03 - 0:14]:

We the people, do ordain and establish this Constitution. 

Savannah Eccles Johnston

[0:11 - 0:13]: 

Welcome to This Constitution. My name is Savannah Eccles Johnston.

Matthew Brogdon 

[0:14 - 0:15]: 

And I'm Matthew Brogdon.

Savannah Eccles Johnston 

[0:15 - 0:29]: 

And today we're going to talk about special counsels and political prosecutions. So first, I think people are very confused about what special counsels are. So let's just define why even bother with special counsels. What are they?

Matthew Brogdon 

[0:29 - 1:16]: 

Yeah, the label gets applied to a bunch of different things, actually. It's not even all one thing, but the way that we usually use it is whenever the Department of Justice employs a lawyer, a prosecutor who's going to investigate and potentially prosecute wrongdoing inside the government. And normally that would be wrongdoing where there's some sort of conflict of interest, maybe like a principal executive officer or even someone answerable to or close to the President, or someone involved in a political campaign for the presidency especially. So you can see a theme here, some connection to the President. So there's some kind of reason to doubt that the ordinary prosecutorial process and folks who would be responsible for that in the Department of Justice could carry out whatever the investigation is.

Savannah Eccles Johnston 

[1:16 - 1:36]: 

Right. So this is kind of about public trust. So this starts actually with Grant. He's the first one to appoint that we know of, a special counsel, except they're called a special prosecutor. And it's just to prove that you can do this investigation without political interference, basically without Grant looking bad. So you get this special prosecutor.

 Matthew Brogdon 

[1:36 - 1:38]: 

Is it an investigation of Grant?

Savannah Eccles Johnston

[1:38 - 1:39]: 

No, it was of his administration.

Matthew Brogdon

[1:39 - 1:40]:

Okay.

Savannah Eccles Johnston 

[1:40 - 1:47]: 

Yeah. So it was some scandal involved in. Well, it's Grant. The Grant administration is just a litany of scandals. So then you.

Matthew Brogdon 

[1:47 - 1:49]: 

All my Southern friends like to remind me.

Savannah Eccles Johnston 

[1:49 - 1:52]: 

Right, right. You're a Southerner, though.

Matthew Brogdon 

[1:52 - 1:54]: 

I am. I'm also a Lincoln fanatic.

Savannah Eccles Johnston 

[1:54 - 1:56]: 

Okay. So you're a traitor to the South.

Matthew Brogdon 

[1:56 - 1:57]: 

Yes.

Savannah Eccles Johnston

[1:57 - 2:28]: 

Okay, good for you. So then we fast forward, and you get this with TR as well. So special prosecutors, that's what they're called here, are completely normal. And it's not until you get to Nixon that they start to get controversial. So we first get to Nixon and this is all about Watergate and in particular about appointing a new Attorney General. And the Senate makes it clear, basically, you're not going to get confirmed unless you agree to appoint a special prosecutor to investigate the Watergate scandal. And that's how we get Archibald Cox.

Matthew Brogdon

[2:28 - 3:05]: 

And there's no special statute at this point that, you know, lays out how this should work. This is just something that the Attorney General had been able to do under some broad authorization the law gave him to be able to hire lawyers to do special purpose things. Right. The Attorney General had, for a long time, had the ability to go out and find help when he didn't have the personnel internally. And so all the special prosecutors stuff up right up through. Well into the 70s and through Watergate is all just on the basis of the general authority. Congress had never taken any special notice of this or provided anything in the law about it.

Savannah Eccles Johnston 

[3:05 - 3:12]: 

But I do think it's interesting that they make this kind of a tacit requirement for the Attorney General to become Attorney General.

Matthew Brogdon 

[3:12 - 3:18]: 

Yeah. In the confirmation process. That is kind of fascinating. Sort of like made this a condition of confirmation.

Savannah Eccles Johnston

[3:19 - 3:37]: 

Right. And this is, in a way, stepping into the Executive Department's business, because the prosecution of crimes is an executive department job. So this is Congress showing a willingness to step in. And they're after the Watergate scandal, they'll step in in a big way. But first we gotta get through Watergate. So Archibald Cox is special prosecutor. .

Matthew Brogdon

 [3:37 - 3:39]:

The  Special counsel, like a law professor or something, right?

Savannah Eccles Johnston

[3:39 - 4:09]: 

Yeah. He's outside the department. Yeah, he's just a civilian. And he subpoenas the  White House tapes, the tapes from the Oval Office. And this is upheld by an appeals court. Of course. Nixon at first says he doesn't have the right to subpoena me. I'm his superior officer, so I don't have to obey this. The Court of Appeals upholds this. And then in anger, Nixon turns around and tells his Attorney General to fire Archibald Cox. And there's a name for this. What is it? The Saturday?

Matthew Brogdon 

[4:09 - 4:11]: 

The Saturday Night Massacre.

Savannah Eccles Johnston

[4:11 - 4:12]: 

Right.

Matthew Brogdon

[4:12 - 4:14]: 

The Attorney General didn't want to do it.

Savannah Eccles Johnston

[4:14 - 4:20]:

Right.And he doesn't. He resigns. And so does the His undersec. What is it called? The Assistant Attorney General.

Matthew Brogdon

[4:20 - 4:22]: 

Yeah, I can't remember.

Savannah Eccles Johnston 

[4:22 - 4:23]: 

The second in charge.

Matthew Brogdon 

[4:23 - 4:32]: 

There's so many uses of the terms under an assistant and deputy that I don't remember which one it is. Whoever's second in line. And that leaves number three.

Savannah Eccles Johnston

[4:32 - 4:33]: 

Who is.

Matthew Brogdon 

[4:33 - 4:34]: 

Who is Robert Bork?

Savannah Eccles Johnston

 [4:34 - 4:35]:

 Right.

Matthew Brogdon 

[4:35 - 4:47]: 

Who is the Solicitor General of the United States? The Solicitor General answers to the Attorney General and represents the United States in front of the Supreme Court, mainly. And Bork actually wanted to resign, too, funny enough.

Savannah Eccles Johnston 

[4:47 - 4:48]: 

Oh, I didn't know that he did.

Matthew Brogdon 

[4:48 - 5:26]: 

So Bork threatened to resign as well. And actually a number of folks in the Department of Justice and elsewhere in the Executive branch told him, you can't do that because if you resign too, there'll be no one left in the Department of justice to run the place. And, you know, as important as Watergate is, there were lots of other things going on in federal lit. Like, we didn't stop prosecuting crimes. You know, the Supreme Court didn't quit doing the rest of its business just because the Watergate scandal was going on. So Bork actually sort of stuck around out of duty, but the only way for him to stick around was to agree to fire Cox. So this was the bitter pill he had to swallow.

Savannah Eccles Johnston

[5:26 - 5:26]: 

So he does.

Matthew Brogdon 

[5:27 - 5:27]: 

He does.

Savannah Eccles Johnston 

[5:27 - 5:31]: 

And he appoints a new special counsel who just continues what Cox was doing before.

Matthew Brogdon

[5:31 - 5:33]: 

Yeah, a guy named Leon Jaworski.

Savannah Eccles Johnston 

[5:33 - 5:34]: 

Right.

Matthew Brogdon 

[5:34 - 5:35]:

 I know that because he's a Baylor grad.

Savannah Eccles Johnston 

[5:35 - 5:42]: 

Oh, yeah. Something good out of the South. There you go. Lots of good things out of the South, Matthew included.

Matthew Brogdon

 [5:42 - 5:42]:

 All right.

Savannah Eccles Johnston

[5:42 - 6:10]:

Okay. So he does the exact same thing that Archibald Cox does and then also leaves. We eventually get four of these special counsels, by the way. And of course, when they do actually have to hand over the White House tapes, this will lead to. Well, first, impeachment proceedings start because of the firing of Archibald Cox. So there's a huge public outcry. But then once they hand over the tapes, then Nixon will resign, and then there's no point in impeachment.

Matthew Brogdon

[6:10 - 7:04]: 

I also think it's kind of important that. And we talked about this. Listeners can go all the way back. Was it season one, episode one, and maybe episode two? Whenever we dealt with the executive privilege and we dealt with the Watergate case in United States versus Nixon, I think it is interesting, in that case, whenever the Supreme Court finally insisted that the President turn over the recordings of Oval Office conversations to the district court, it wasn't just a subpoena from the special prosecutor. It wound up being a subpoena from the district court. And when the Supreme Court held that the President had to turn these over, it was for the district judge to examine them in his chambers and decide which ones were relevant to the prosecution. So it is interesting to me that whenever the Supreme Court finally vindicated the kind of investigatory power here, they put most of their trust in the district judge that was overseeing the prosecutor, not the special prosecutor.

Savannah Eccles Johnston

[7:05 - 7:14]:

 That's an important distinction. Okay, so I know you have problems with special counsels as to what will follow, the kind that will follow. But for right now, what happens in the Nixon case.

Matthew Brogdon

[7:14 - 8:39]: 

Okay, well, there are challenges to it. There is a certain problem here. Okay, just to outline the general problem, the power to prosecute is definitely part of the executive power. So the prosecutorial power is the power to bring a charge against somebody and accuse them of having broken the law and then bringing that into a court. Then, of course, the court, not the prosecutor, decides whether the law has in fact been broken and whether this person's guilty. So you've got both an executive function that's prosecutorial and a judicial function, which is finding guilt. Right. Finding the facts and the law in the case. So if you alienate that prosecutorial power from the President, you are definitely taking away a core executive function from the control of the President. That's our fundamental problem here. So the question at hand is, are you taking away the prosecutorial function in a way that violates Article 2 of the Constitution, which, of course, says the executive powers vested in the President with the special prosecutors that had been used prior to 1978 and the passage of the Ethics in Government act, which we're going to talk about. And that includes the Watergate prosecutions, those largely comply with this rule because they are appointed by the Attorney General, who in turn is answerable to the President. And as the Saturday Night Massacre makes clear, if the President doesn't think the Attorney General is doing an adequate job of overseeing it, the President can fire the Attorney General.

Savannah Eccles Johnston 

[8:39 - 8:39]: 

Right.

Matthew Brogdon 

[8:39 - 9:46]:

Until he finds one that will remove it. Actually, this is very much like an old episode we've talked about before, when Jackson fired the Secretary of the treasury because the Treasury Secretary wouldn't remove the deposits from the bank. And he said, well, I'll just find myself another Treasury Secretary. So that is fine. And because of that chain of responsibility to the President, there's no prosecutorial power that's completely outside the President's supervision and control. And that's important, by the way, because the prosecutorial power is a very dangerous power. Even if you can't get a conviction, to bring an indictment and to pursue a prosecution against someone can ruin their life. So just by an executive, you know, or a local district attorney can, in fact, just ruin people's lives, bringing prosecutions. So you don't want an unaccountable pursuit of prosecutions because they can really do a lot of damage to people and destroy people's liberty. So the judgment that our Constitution makes is that, well, then that should be in the hands ultimately of a politically responsible individual.

Savannah Eccles Johnston 

[9:46 - 9:50]: 

Right. This is the argument that Scalia is going to make in a dissent in Morrison.

Matthew Brogdon 

[9:50 - 9:53]:

 But before we get there, we need to talk about the ethics in government.

Savannah Eccles Johnston

 [9:54 - 10:48]: 

So Congress is not viewing things the way you're viewing things here. So after the debacle of Watergate, especially The firing of Archibald Cox. They passed the Ethics in Government act, which is 1978. And this is very interesting because it blurs a lot of lines of who's in control of what. So when there is a special case that the Attorney General feels is a conflict of interest, someone in the President's orbit or the President himself, needs to be investigated. The Attorney General can then turn to the judiciary and request three judges be appointed to a panel to then pick a special counsel. Except here they're called an independent counsel. That person is then vested with the full authorities of the Justice Department. And they are only answerable and fireable by the Attorney General for cause. The judges cannot fire them, they can only hire them. Judges can't fire them, but the judges.

Matthew Brogdon 

[10:48 - 10:50]: 

Can put an end to the investigation.

Savannah Eccles Johnston

 [10:50 - 11:37]: 

At the request of the Attorney General. So the Attorney General could request that the investigation be ended. But the real role that these guys are playing is just finding the individual who has to be outside the government. It's the Attorney General who fires and who creates the scope of the investigation and who can end the investigation. So it's the Attorney General who's doing this, though. He has to continually report back to this three judge panel to tell them what's happening. So they set an expiration date on this law, though, and that's interesting. And it does expire in the 90s largely because of some controversies over around Contra and I think it's Whitewater is the other one. And then they re up it again and it finally expires in 1999. So this is the Independent Council. This is not a special counsel, it's the Independent Council. And it blurs a lot of lines.

Matthew Brogdon 

[11:37 - 11:53]: 

With all the terminology flowing around, maybe a helpful way to distinguish between the special prosecutors. We started out talking about that the Department of Justice just created and this new independent counsel under the Ethics and Government act. And later, what's just called the independent counsel statute.

Savannah Eccles Johnston 

[11:53 - 11:53]: 

Right.

Matthew Brogdon

 [11:53 - 11:55]: 

Is that word independent?

Savannah Eccles Johnston

 [11:55 - 11:55]: 

Yeah.

Matthew Brogdon

 [11:55 - 12:54]:

 Special means they're just there for a special purpose, but still largely accountable through the same chain of responsibility as usual, using all the powers that any special counsel inside the Department of Justice would have. The independent part is quite interesting, and I thought it'd be interesting to read a little bit of what the statute says is that with respect to all matters in the Independent Council's prosecutorial jurisdiction, which we'll talk about, you, you mentioned the judges set that jurisdiction. It says that the independent counsel has, quote, full power and independent authority to exercise all investigative and prosecutorial functions and powers of The Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice. So this is literally, if anyone in the Department of Justice, including the Attorney General, can do something, this independent counsel can also do it based on their own independent judgment.

Savannah Eccles Johnston

 [12:54 - 12:54]: 

Right.

Matthew Brogdon 

[12:54 - 13:08]: 

So they don't have to consult anybody. Now, the jurisdiction part is interesting. You mentioned this. So what's meant by the scope and jurisdiction of the independent counsel's investigation? You have a sense of, like, what kinds of things could that include?

Savannah Eccles Johnston 

[13:09 - 13:20]: 

I mean, it's investigative power, but it's also the power to issue subpoenas and et cetera, et cetera, and to hire other lawyers underneath you. It actually becomes more clear what that scope means when you get to the 1999 regulations.

Matthew Brogdon 

[13:20 - 13:20]: 

Okay.

Savannah Eccles Johnston 

[13:20 - 13:26]: 

And that's part of the problem is what does the scope include here in this independent council?

Matthew Brogdon 

[13:26 - 14:13]: 

So judges could say, we've identified that this is the special division of the federal courts. This three judge panel, right. Can say, look, we think there's been some wrongdoing. It involves the Chief of Staff in the White House or President's important advisors or someone else close to the executive branch. They set the scope. And they could say, let's just take the example of Watergate. If this had existed when Watergate did, because there was a break in at the Watergate Hotel, the Democratic National Committee's headquarters, the special counsel is supposed to investigate that break in and anything related to it. So that's your scope, that's your jurisdiction. So within that jurisdiction with respect to that matter, the independent counsel could then exercise all the powers of the Department of Justice and the Attorney General to go pursue that investigation.

Savannah Eccles Johnston 

[14:13 - 14:17]: 

But this jurisdiction can change. It can be limited or it can be expanded.

Matthew Brogdon 

[14:17 - 14:21]:

 Right. And only by the special division, the courts that are overseeing this at the.

Savannah Eccles Johnston 

[14:21 - 14:23]: 

Request of the Attorney General, I thought.

Matthew Brogdon 

[14:23 - 14:25]: 

The independent counsel can go back to the special division.

Savannah Eccles Johnston 

[14:25 - 14:27]: 

No, everyone understand it's only through the Attorney General.

Matthew Brogdon 

[14:27 - 14:41]: 

Maybe I'm wrong because Ken Starr went back. So when he went back independent. Yeah. So let's talk about the discrete controversies where this was used. Right? So there are two. It's really important that there were two big episodes in the 80s and 90s, right, where this became an issue.

Savannah Eccles Johnston 

[14:41 - 14:41]:

 Right.

Matthew Brogdon 

[14:41 - 14:58]: 

One involving Reagan and one Clinton and one involving Clinton. And by the time we got to the end of those two episodes, both Republicans and Democrats had decided, wow, politically unaccountable prosecutions are quite unpleasant and dangerous. Let's not do this anymore. They let it go.

Savannah Eccles Johnston

 [14:58 - 15:01]: 

There's also a Supreme Court decision right in the middle of this.

Matthew Brogdon 

[15:01 - 15:01]: 

That upheld it.

Savannah Eccles Johnston 

[15:01 - 15:04]:

That uphelds it. So should we talk about Morrison real quick, or do you want to wait for that?

Matthew Brogdon 

[15:05 - 15:06]: 

Yeah, let's talk about Morrison.

Savannah Eccles Johnston

 [15:06 - 15:39]:

 Okay, so let's talk about Morrison. So we've got Morrison v. Olson, which is a 7:1 decision for the court. Scalia is the only dissent. It's written by Reinquist. Okay. And it's all about the appointment power. Does the independent counsel statute violate the appointment power? And their key answer is no, because the appointment power is about principal officers. And this independent counsel is clearly an inferior officer and not exercising any kind of principal officer authority.

Matthew Brogdon

 [15:39 - 15:56]: 

The Constitution makes this distinction between whenever it talks about the President's appointment power, it says that the appointment of judges, ambassadors, and all other officers whose appointments are not otherwise provided for in the Constitution are to be nominated by the President and confirmed by the Senate.

Savannah Eccles Johnston

[15:56 - 15:56]: 

Right.

Matthew Brogdon

 [15:56 - 15:59]: 

Okay. So we get presidential nomination, Senate confirmation.

Savannah Eccles Johnston

 [15:59 - 16:01]: 

Right. There's only one way to hire.

Matthew Brogdon

 [16:01 - 16:16]: 

And then there's this exception. Then the, you know, you sort of get a period, right? And then we get this other sentence that says, but Congress may vest the appointment of inferior officers in heads of departments, the President alone or the courts of law.

Savannah Eccles Johnston

[16:17 - 16:17]: 

Right?

Matthew Brogdon 

[16:17 - 16:44]: 

So if somebody can fall in the category of an inferior officer, then Congress can provide for their appointment without the involvement of the Senate. And that's what Congress claims to have done with the independent counsel. They've identified this office and they've said this special division of the federal courts can appoint this person to then use the prosecutorial power of the Department of Justice to pursue a prosecution in the executive branch.

Savannah Eccles Johnston

 [16:44 - 16:54]: 

And you've got big problems with this. And Scalia has big problems with this because as it turns out, this inferior officer, this independent counsel, exercises all the powers of the Attorney General as powerful.

Matthew Brogdon 

[16:54 - 17:00]: 

As the Attorney General and more, actually, because there are things the Attorney General cannot directly do personally.

Savannah Eccles Johnston 

[17:00 - 17:00]:

Right?

Matthew Brogdon 

[17:00 - 17:19]: 

So this is actually combining if anybody in the Department of Justice has the power to do a thing, from the Attorney General down to the lowliest mailroom clerk, right? This person can do that on their own judgment as long as the special division of the federal courts has put it within their jurisdiction to do it.

Savannah Eccles Johnston 

[17:19 - 17:28]:

 Right. And second problem is, how do you fire this person? The Attorney General can be fired at will by the President, but the independent counsel has to be fired for cause.

Matthew Brogdon 

[17:28 - 17:30]: 

For cause? What cause?

Savannah Eccles Johnston 

[17:30 - 17:34]:

 And that's a question they don't answer. What qualifies as cause? There's not a lot of for a.

Matthew Brogdon 

[17:34 - 17:52]:

 Reason cases that explain that this is an ongoing problem. Not just with the special counsel, but as a sort of separation of powers problem. Generally, when Congress says, you can't fire this person for any reason, it can only be for cause. Well, what are the legitimate causes? What if they're just making bad decisions?

Savannah Eccles Johnston

 [17:53 - 17:58]:

 Right. Well, they kind of spell this out just a tiny bit in Myers a little bit. Right. Dereliction of duty, negligence.

Matthew Brogdon

 [17:58 - 18:30]: 

Right. The court speculates about what cause removal would be, and typically it centers around something like inefficiency, neglect of duty. Those are just not doing something that they were told to do. They're not showing up for work, they're incompetent, they get sick or some kind of malfeasance. They've actually done something wrong. They're doing something dishonest or wrong. But all of that excludes the case where someone is in good faith and technically competently doing something that you think is bad judgment.

Savannah Eccles Johnston [18:30 - 18:30]: Right.

Matthew Brogdon 

[18:30 - 18:52]: 

Like they're making poor decisions, but doing so in good faith and not for corrupt reasons. And technically, they're doing the job efficiently. Like all the paperwork's getting done and they're not, you know, nothing's falling through the cracks. And that's actually contested. This is a huge debate in constitutional law. Why shouldn't incompetence include making bad decisions.

Savannah Eccles Johnston

 [18:52 - 18:56]:

 Especially when you are exercising the full authorities of a principal officer?

Matthew Brogdon 

[18:56 - 19:31]:

 If the Attorney General is just making boneheaded decisions and embarrassing the government or embroiling the country in unnecessary political controversy or violating people's rights out of poor judgment, you go, well, I don't care if it's in good faith and you think you're doing the right thing or that you're technically competent, you're making bad decisions and it's hurting the country and the government, so you're fired. And that feels like for cause. Like if you came along and I was doing my job in a really dumb, boneheaded way and embarrassing the university, presumably somebody would say, you know, I couldn't come back and say, yeah, but it was in good faith. I thought I was doing the right thing.

Savannah Eccles Johnston 

[19:31 - 19:31]: 

Right?

Matthew Brogdon

 [19:32 - 19:34]: 

No, you made dumb choices.

Savannah Eccles Johnston 

[19:34 - 19:39]: 

Right. So this is Scalia's big dissent that becomes actually quite powerful.

Matthew Brogdon 

[19:39 - 19:42]: 

And because he says, you can't call this an inferior officer.

Savannah Eccles Johnston 

[19:42 - 19:43]: 

Right.

Matthew Brogdon 

[19:43 - 20:03]: 

And if it's not an inferior officer, and in fact this person is a principal officer, their job is too important and they have too much political discretion to classify them as an inferior officer, then they would need to be nominated by the President and appoint and confirmed by the Senate. And in that case, principal officers can be removed by the President for any reason.

Savannah Eccles Johnston 

[20:03 - 20:24]:

 Right. Because there's political accountability here with the President. Okay, what's so interesting about this episode, though, is it the courts uphold it and say, yeah, Congress, you can do this. It's Congress who created this statute, who changes their mind and says, actually this hasn't worked out well, both for Democrats and Republicans, we're gonna let this law expire so they don't re up it.

Matthew Brogdon 

[20:24 - 20:44]: 

It's worth pointing out, by the way, that I think Justice Kagan, before she went on the bench, had made comments to the effect that the court should have listened to Scalia and Morrison versus Olson. I mean, by the time we get through the 90s and into the 2000s, there's just sort of a lot of prominent con law figures sort of looking back on Scalia's lone descent, the voice in the wilderness, and saying, you know, he may have had a point there.

Savannah Eccles Johnston

 [20:44 - 20:45]:

 Yeah.

Matthew Brogdon

[20:45 - 20:48]: 

So, right. So what happens?

Savannah Eccles Johnston 

[20:48 - 20:55]: 

Right, so they let it expire, and it's 1999, but you still need some method for handling independent.

Matthew Brogdon 

[20:55 - 21:00]: 

Oh, but we skipped over them. What was the deal with Reagan and Clinton? What was so bad about what happened with those?

Savannah Eccles Johnston 

[21:00 - 21:19]: 

Oh, right, right. Okay, so first we get Iran Contra. Right. So there is a law prohibiting any aid to the Contras in Nicaragua, but it looks like they are funneling money, potentially unbeknownst to the President, to the Contras in Nicaragua. And so they're going to investigate this.

Matthew Brogdon 

[21:19 - 21:21]: 

Because they have to find a source of funds.

Savannah Eccles Johnston

 [21:21 - 21:21]: 

Right.

Matthew Brogdon

 [21:21 - 21:41]: 

Because otherwise they couldn't just take money out of the treasury and give it to the Nicaraguans. Because that would be an appropriate. That would be taking money out of the treasury without an appropriation by Congress. Violate spending power, which we talked about a few episodes. Okay. We're selling guns to the Iranians, taking the proceeds, and supporting the Contras in Nicaragua.

Savannah Eccles Johnston 

[21:41 - 21:42]: 

Contradicted law.

Matthew Brogdon

 [21:42 - 21:53]: 

The most glorious thing about the Iran Contra episode is that it gives birth to a Nintendo game. Right. Isn't this where Contra. Yeah, Contra actually comes from, like, the South American setting. If anybody's ever wondered why I don't.

Savannah Eccles Johnston 

[21:53 - 21:54]: 

Know what Contra is.

Matthew Brogdon 

[21:54 - 21:57]: 

Oh, my goodness. There was this great Nintendo game in the 80s.

Savannah Eccles Johnston 

[21:57 - 21:58]: 

Oh, okay.

Matthew Brogdon 

[21:58 - 21:58]: 

Called Contra.

Savannah Eccles Johnston 

[21:58 - 21:59]: 

It was before my time.

Matthew Brogdon 

[21:59 - 22:00]: 

No, it's good.

Savannah Eccles Johnston 

[22:00 - 22:03]: 

Okay, well, so I'm glad it did something positive.

Matthew Brogdon

 [22:03 - 22:06]:

 It did. It did something positive. Okay. So that got investigated.

Savannah Eccles Johnston 

[22:06 - 22:08]: 

Okay. And it leads to a bunch of prosecutions.

Matthew Brogdon 

[22:09 - 22:09]: 

Yeah.

Savannah Eccles Johnston 

[22:09 - 22:28]: 

Okay. And then you flip the table, other side of the aisle, and you get Whitewater. What's great about this is this is going to lead to an impeachment based on just things discovered tangential to the initial investigation. Basically perjury. Right. Saying you don't have an affair, you weren't having an affair.

Matthew Brogdon 

[22:28 - 22:58]: 

So this is where the jurisdictional part came in and went, wow, an independent counsel can start out investigating, you know, sketchy real estate deals. That was the Whitewater thing, where the Clintons involved in sketchy real estate stuff and some kind of fraud. And in the midst of that, in interviewing people, it turned out, wow, it sounds like Bill Clinton's kind of a creepy dude. He's been doing sketchy stuff with his, you know, subordinates at work, especially young women. They discovered a history. Well, they didn't really discover it. Everybody knew Clinton's history of harassing women who worked for him.

Savannah Eccles Johnston

 [22:58 - 22:58]: 

Right.

Matthew Brogdon 

[22:58 - 23:09]: 

And that became part of the scope. So suddenly, the jurisdiction sort of, you have this mission creepy. Of the jurisdiction expanding outward until it just involved almost any wrongdoing that Bill Clinton had ever been guilty of, including.

Savannah Eccles Johnston 

[23:09 - 23:22]: 

Just a White House intern who has nothing to do with the real estate situation and him committing perjury and saying he hadn't had an affair with her. And it's on that basis that he is subject to an impeachment trial in the House and the Senate.

Matthew Brogdon

 [23:22 - 23:23]:

 Yeah.

Savannah Eccles Johnston 

[23:23 - 23:25]: 

And so this gives a really bad taste in the mouth, the perjury and.

Matthew Brogdon 

[23:25 - 23:30]: 

Then the intimidation of people who would potentially bear witness against him. So, yeah.

Savannah Eccles Johnston

 [23:30 - 23:44]: 

Okay. So now both Democrats and Republicans say, actually, we don't like this. Turns out it could be weaponized against our guys. And how you control the scope of this investigation seems beyond any of our knowledge. It just spirals out of control. It goes on for years.

Matthew Brogdon 

[23:44 - 24:50]: 

Why, though? I mean, part of the question that comes out of that is like, why would it get out of hand? Why would it be less likely to get out of hand if it was a politically accountable prosecutor who was doing this? And I don't think it's just because it's. The president would sort of protect himself. If you give someone this mandate, say you're totally independent, you have to go pursue. You know, you sort of knight this person. You know, you anoint them as sort of like knight errant to go root out wrongdoing. In this case, the only sort of rationale operating is, you know, go find wrongdoing and do something about it. And the problem with that, when it involves the prosecutorial power, as you learn it, you know, like if you read the Federalist Papers, you'll see this is that you're just Operating on that one set of criteria. And you sort of forget prudence. Like, but is it good for the public that we root out all the wrongdoing? Would it be best to leave some of the stones unturned? And the answer to that is yes. You don't actually want your Attorney General in the state. You don't actually want your local DA to literally go out and try to turn over every stone and find all of the law breaking and wrongdoing in your community.

Savannah Eccles Johnston 

[24:50 - 24:50]: 

Right.

Matthew Brogdon 

[24:51 - 25:34]: 

In fact, the prosecutorial power requires making decisions about where to focus your resources. And part of that is just considering what's best for the public. That's a political consideration. What are the highest priorities for the public? And where does our investigation and attempt to root out wrongdoing need to stop so that we're not misallocating resources or embroiling the public in controversy unnecessarily or disrupting the government's appropriate operation and so forth. And those are all just political judgments that we depend on people to be prudential about, depend on our Attorney generals and our DAs to exercise good judgment about this. And the problem with the independent prosecutor is that they have no political mandate of any kind to consider those sorts of things.

Savannah Eccles Johnston 

[25:34 - 25:35]: 

Right.

Matthew Brogdon 

[25:35 - 25:38]: 

It's just you're the knight errant, go combat evil.

Savannah Eccles Johnston 

[25:38 - 25:49]: 

So what's interesting about this, though, is when the law expires, we move from independent counsel to Special counsels under 1999 Regulations promulgated by the Department of Justice.

Matthew Brogdon 

[25:49 - 25:53]: 

So now we're in regulatory, now we're in regulatory territory. So what's the difference?

Savannah Eccles Johnston

 [25:53 - 26:36]: 

So the independent counsel to the special. It doesn't change that much except that now the Attorney General is the only person authorized to go out and find a special counsel in cases of conflict of interest. They can be fired by, for cause by the Attorney General, they still possess the full powers of the Department of Justice, and the scope of the special counsel's investigation rests exclusively with the Attorney General. So really the only difference here is there's no panel of three judges involved, and instead of a statute, it's a regulation. So now we're in extramurgy, murky territory because we're talking about a regulation. And Morrison still holds, except maybe it doesn't anymore because it was specifically about the Ethics and Government act, which has expired.

Matthew Brogdon 

[26:36 - 26:42]: 

And importantly, Morrison's never been used as support for another important decision on the Appointments Clause.

Savannah Eccles Johnston 

[26:42 - 26:45]: 

Right. So we don't actually have really a holding case.

Matthew Brogdon 

[26:45 - 26:47]: 

We don't actually know if Morrison's any good.

Savannah Eccles Johnston

 [26:47 - 26:47]: 

Right.

Matthew Brogdon 

[26:47 - 26:52]: 

It Might be a zombie precedent. It's just sort of hanging out there, and the court may have just walked right past it.

Savannah Eccles Johnston

[26:52 - 27:11]: 

Right. So we can see problems coming. So let's talk about the Mueller investigations. So this is about Russian interference into the 2016 election. That is what he is appointed to do. Jeff Sessions removes himself. It's his acting Attorney General. Who, under the regulations, has the authority to do this. Rosenstein. Rod Rosenstein.

Matthew Brogdon 

[27:11 - 27:12]: 

Rod Rosenstein.

Savannah Eccles Johnston 

[27:13 - 27:57]: 

Right, Rosenstein. Sorry. Who appoints Mueller. And Mueller goes out and in the course of his investigations into Paul Manafort, actually discovers a bunch of tax evasion and other stuff which leads to prosecutions. And Manafort will say, this is totally outside your jurisdiction. The original scope of the investigation was just about the Russia trial, and now I'm on trial for tax evasion, among other things. And also, this violates the appointment clause, et cetera, et cetera, et cetera. But the investigation into Manafort is upheld, and so is his eventual conviction. And it's based on the idea that, once again, a special counsel is not a principal officer. And therefore, the Attorney General, who has full control over this person can.

Matthew Brogdon 

[27:57 - 28:22]:

 And the other big change is the kind of authority they exercise. So we have that broad, like, unlimited scope for the independent counsel under the Ethics and Government Act. That said, anything the Department of Justice can do, you can do. Now, the Special Council's rule, which is not based in statute, just based in a DOJ rule, gives them all the authority of a U.S. attorney.

Savannah Eccles Johnston

 [28:22 - 28:22]: 

Right.

Matthew Brogdon 

[28:23 - 29:09]: 

And so a U.S. attorney is basically a federal prosecutor that's appointed for a given geographical area in the United States. Now, US Attorneys are incredibly powerful. They have fairly independent power to bring prosecutions and so forth, but they do have a specific role inside the Department of Justice. They are also normally considered principal officers. So usually this is somebody who's appointed with the advice and consent of the Senate. Right, so that's the controversial bit is. Well, it's still pretty wide scope. On the other hand, you haven't actually given the person all the authority of the Attorney General or all the authority of the Department of Justice. You've identified a particular kind of job and said, with respect to this case, you're going to behave like you're a U.S. attorney subject to the Attorney General's overseas.

Savannah Eccles Johnston 

[29:09 - 29:48]: 

And what's interesting about this as well is the findings from this report and if the special Counsel is removed, have to be reported to the House and Senate Judiciary Committee Chairman and ranking member. So Congress is still involved in some way in this process, but there is no requirement that these findings be released to the public. Okay. Now, the big question is, who can fire this person under the regulations? It's the same. It's for cause. The Attorney General can fire for cause. And here's what they mean by that. Misconduct, dereliction of duty, incapacity, conflict of interest, or a violation of department policies. So in the same way, you might fire an attorney, U.S. attorney, for violating.

Matthew Brogdon 

[29:48 - 31:02]: 

But this is one of those weird situations where when we usually think of a limitation on the removal power, we think of Congress reaching over and saying, you can't get rid of this executive officer unless they've done one of these awful things, and otherwise you have to tolerate their shenanigans. In this case, it's an internal Department of Justice regulation. That is the attorney General has created this rule and included it in the rules and policies and regulations of the Department of Justice. Now, rules and regulations can restrain the person who made them. You've given advance notice. I mean, basically what a regulation is. So maybe this rolling back the curtain a little too far, but what a regulation is. When the Department of Justice says, we have these regulations, you're giving everybody notice that this is how we're going to operate in the future. It's not a law in the sense that, like, a statute passed by Congress is. So it's not irrevocable, but it's also not the kind of, like, limit on executive power that a congressional limit on the removal power would be. So there's nothing really stopping the Department of Justice from saying, well, part of Justice Department policy is you don't make dumb decisions, is, you know, at any.

Savannah Eccles Johnston

 [31:02 - 31:08]: 

Time, because this is a product, a regulation from the Department of Justice, they could rip up these regulations at any time.

Matthew Brogdon 

[31:08 - 31:15]: 

It's like a rule in Congress. I mean, the best way to think of it is like the filibuster in Congress. It's just a rule that the Senate made for itself. It can tear it up anytime it wants.

Savannah Eccles Johnston 

[31:15 - 32:11]: 

Right. So the attorney General, in order to fire a special counsel, wouldn't even need to find cause. They could just rip up the regulation. Yeah, but the real question is, what happens if a president wants to fire a special counsel for political reasons? You're looking too closely into something. Can they? Well, this is an accordance regulation. The answer is no. But it's not a law, and it's a regulation promulgated by a department that is inferior to you. So this is really murky water. Could a president just ignore these regulations or require that they be torn up and fire the person Anyways, so we don't actually know. The courts haven't given us a decision on this, and presidents haven't really tried yet. But this special counsel thing kind of looms over us as a potential. Not a constitutional crisis, but a constitutional question that needs to be answered and will probably be answered in a very politically toxic environment.

Matthew Brogdon 

[32:12 - 32:38]:

 I think the crisis language that usually comes out in this I'm less inclined to use because I think the biggest crisis we would face is if the prosecutorial power is being abused or over. I don't think it's ever really a constitutional crisis. If the prosecutorial power is being underutilized right now, it might be bad for the public interest. We might be letting wrongdoers get off the hook, but there's always a future opportunity to fix that, actually.

Savannah Eccles Johnston

 [32:38 - 33:22]: 

So you raised an interesting point before we started recording, which was, let's say you need special counsels, special investigators. They do a service, which is when there's a conflict of interest and you're looking to investigate something, you need some independ. We've seen the problems with the independent counsel. Now we have this regulatory special counsel which has murky jurisdiction, who can fire them and when, which seems to maybe be a little better. But we've got a lot of unanswered questions. So the question is, if this person is not removed from presidential authority to fire except for cause, what then stops a president? What keeps a president in check? And your answer earlier was you have to impeach him first?

Matthew Brogdon

 [33:23 - 33:31]: 

Well, I think the effective control of the president is always political control. I think there are very few legally enforceable limitations.

Savannah Eccles Johnston

 [33:31 - 33:33]: 

Right. So your preference for it's not that.

Matthew Brogdon 

[33:33 - 33:42]: 

There are no legal limitations. I think the effective enforcement of limitations on the presidency is pretty much political. That is removal from office.

Savannah Eccles Johnston 

[33:42 - 33:43]: 

Right.

Matthew Brogdon 

[33:43 - 34:42]: 

Congressional deprivation of funding. You just make life really hard for the President. The people can kick him out of office, Congress can kick him out of office. So I think we make a mistake whenever we think that we can use the ordinary legal process to control someone in a context where our Constitution establishes primarily political controls. So we're trying to do a lot of stuff. I mean, I frankly think this is a difference between us and the founding generation. I think the founding generation expected the impeachment power to be a far more widely utilized power. That's been extremely rare. And I think we've actually underutilized it. So I actually think our alarm has been, oh, no, no, no, no. Don't go around impeaching a bunch of people. That's the Nuclear option. Everybody thinks that's a constitutional crisis. I think. Well, no, actually, it's precisely something like the impeachment power. That was supposed to be the way to keep presidents responsible and rein them in whenever they got carried away or if it looked like they were doing bad things.

Savannah Eccles Johnston 

[34:42 - 34:42]:

 Right.

Matthew Brogdon 

[34:43 - 34:58]: 

High crimes and misdemeanors or what have you. And we've sort of flipped it around and we've said, no, what we should pursue first is prosecution, like a legal process going and finding a crime and prosecuting it. And I think we've just. We've flipped that on its head.

Savannah Eccles Johnston 

[34:58 - 35:11]:

 Right. And that comes with inherent problems because the President is the chief prosecutor of the United States. He is in charge of enforcing the law. So then you have to do things like special counsels and make them independent. And then you've got appointments Clause problems, you've got problems with Article 2.

Matthew Brogdon 

[35:11 - 35:21]: 

Can you embroil the courts in the political controversy? I think this is one of the other really important issues here. Impeachment does not directly involve the courts.

Savannah Eccles Johnston 

[35:21 - 35:21]: 

Right.

Matthew Brogdon 

[35:22 - 36:26]: 

Prosecution and investigation by subpoena and all the rest of that stuff through the ordinary criminal process puts the courts of law right at the center of the issue. And I do not think that the ordinary courts of law are well suited to deal with a sitting president or even principal executive officers. I think that's precisely why the framers, when they wrote the impeachment provision, said that impeachment could only extend to removal from office and exclusion further office holding, but that it did not exclude additional prosecution or lawsuit based on what had been done. So there's an order of operations. You remove from office. If prudent, you then pursue criminal prosecution or lawsuit by injured parties against that person to remedy the wrong. That's the order of operations the founding generation set up. It's the order of operations constitutional text suggests. And trying to do it in the other order. Start with the criminal prosecution. Then if that's successful, maybe we'll impeach. It's just got the whole thing backwards, right?

Savannah Eccles Johnston

 [36:26 - 36:33]:

 So the special counsel problem can be solved by reinvesting in the political structure of the Constitution.

Matthew Brogdon 

[36:33 - 36:54]: 

Actually, I think to the extent the special counsel mechanism is successful, it's where the President needs to use it to distance himself or the Attorney General or other people from a particular prosecution. So I think the place where it's actually worked and been useful are the situations where a President has voluntarily employed it.

Savannah Eccles Johnston 

[36:54 - 36:57]: 

Like Grant or like tr Like Grant.

Matthew Brogdon 

[36:57 - 37:33]: 

Like TR or even like under Biden's presidency, the Hur report Yeah. I think things like the HUR report, where you just need the legitimacy that comes from finding a sort of. Usually somebody who's not politically associated with the Department of Justice. You go find some experienced prosecutor somewhere that's not politically tainted, and everybody, you know, sort of is trusted by all sides, and you get them involved to try to earn credibility for whatever the findings are in the investigation. That's actually where it's turned out to be useful. And that means it's actually. It works well when it's useful to the president.

Savannah Eccles Johnston

 [37:33 - 37:34]: 

Right.

Matthew Brogdon 

[37:34 - 37:37]: 

When you're trying to go after the president. I think it's a terrible mechanism.

Savannah Eccles Johnston

 [37:37 - 38:07]: 

This puts it to a theme that we've had this entire season about checks and balances, which is checks and balances work best when you lean into their political structure. They're inherently political structure, and they get really murky, and we get lots of problems or potential problems when we ignore that structure in favor of a more legal structure and rely more on the courts. So checks and balances are inherently political. Weaponize those political weapons, allow them to be used in that context.

Matthew Brogdon 

[38:07 - 38:11]: 

So use the Framer's Constitution instead of fighting against it.

Savannah Eccles Johnston

 [38:11 - 38:13]: 

Yeah. And turns out it works just fine.

Matthew Brogdon 

[38:13 - 38:57]:

 It works pretty well. Yeah. I like it. 

Outro: 

[38:17 - 39:01]:

The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self government that shapes every part of our civic life, from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. This Constitution will equip you to engage the most pressing political questions of our time. Join us every Tuesday, two weeks, as we hash out constitutional questions together. This podcast is ordained and established by the center for Constitutional Studies at Utah Valley University, the home of Utah's Civic Thought and Leadership Initiative.