The Law: The President and the Independent Counsel: Reflections on Prosecutors, Presidential Prerogatives, and Political Power

Abstract

The Clinton scandal led to new interest in the lone dissent of Justice Antonin Scalia in the Morrison v. Olson decision upholding the independent counsel statute. His claims that the arrangement was a grave threat to presidential power seemed prophetic in the midst of the scandal. But the outcome of the scandal points to the opposite conclusion. The independent counsel's powers are no match for the president's political powers to influence the media coverage of events, mobilize public opinion on his behalf, and marshal support within Congress. The independent counsel lacked an institutional base of power and was constrained from mobilizing a counterresponse in the political realm by the rules of prosecution and the need to appear independent. Presidential Studies Quarterly 31, no. 2 (June) © 2001 Center for the Study of the Presidency Katy J. Harriger is associate professor of political science at Wake Forest University. Her recent publications include The Special Prosecutor in American Politics (2d rev. ed.) and articles on the independent counsel and the U.S. Supreme Court's decisions in the areas of separation of powers and federalism.

The Law: “Witch Hunts” and the Rule of Law: Trump, the Special Counsel, and the Department of Justice

“…By the end of that experiment in 1999, both parties seemed to have come to the conclusion that the cure was worse than the disease and that special prosecutors were dangerous. What this critique ignored was the very real powers, both legal and political, that the president continued to wield and the very real disadvantages the prosecutor encountered in this face‐off (Harriger ). What we have seen in the Russia investigation is all of these advantages and disadvantages play out in spades.…”

“…As I will explain later in the article, some of this behavior is indeed different from that of his predecessors in new and troubling ways. But it is important to recognize that the groundwork for Trump's behavior has been laid over the multiple decades since Watergate by previous presidents and their surrogates, using the constitutional and political powers of the executive to constrain and thwart special prosecutor investigations (Harriger 2001).…”

“…Donald Trump is not the first president to try to undermine public confidence in a special prosecutor's investigation of executive branch wrongdoing or to use his powers to undo the prosecutor's work, or to view the attorney general as, first and foremost, his political ally (Harriger 2001). This article summarizes the ongoing tension over these issues and the previous behavior of presidents subjected to independent counsel investigations, and compares President Trump's behavior to theirs.…”

The Law: Executive Power and Prosecution: Lessons from the Libby Trial and the U.S. Attorney Firings

“…President Gerald Ford's pardon of Richard Nixon put an end to the ability of the special prosecutor to prosecute Nixon after his resignation from office. After his defeat in the 1992 presidential election, George H. W. Bush pardoned six of the Iran‐Contra defendants, undoing successful prosecutions and putting a stop to the ongoing investigation of others (Harriger 2001).…”

The Law: The Contours of Presidential Immunity

“…Jaworski's interest in proper procedures and having Congress, not him, judge Nixon's guilt points to what KatyHarriger (2001) has noted are the institutional limits of an independent counsel's power. Dependent upon the appearance of neutrality, independent counsels (and special prosecutors), unlike presidents or members of Congress, cannot go to the public to make a case Harriger (2001). persuasively argues that these institutional features lessen independent counsels' potential threat to presidents, and places presidents in a comparatively far stronger position.…”