On Wednesday, Rep. Adam Schiff of the House Intelligence Committee said that he believed a special commission was needed to look into possible ties between the Trump campaign and Russia. Republican Sen. John McCain and former Vice President Joe Biden have also called for a special committee, while the New York Times editorial board and others have called for a special prosecutor.
But as calls mount for such an investigation, it’s worth remembering that those two suggestions serve different purposes — and that history shows that, while they exist for very good reasons, it’s important to use them judiciously.
First off, a special prosecutor — a role that has gone by various names over the years — goes after a specific crime on behalf of the Department of Justice, whereas a special commission or select commitee investigates and holds hearings under the aegis of Congress. (Committees and commissions have existed pretty much as long as Congress has, and “select” just means that it’s created temporarily for a specific purpose, so a select committee can also exist with a non-investigatory purpose.) As the Congressional Research Service explains in its overview of the subject, Congress has the authority to establish committees and commission to investigate “misconduct, mismanagement, or any other malfeasance relating to the officers and agencies of the executive branch of government,” but actual law enforcement must come from the Department of Justice. The reason for the “independent” or “special” part is that the Department of Justice is itself part of the executive branch, so things get tricky if it has to investigate a crime possibly committed by someone who is also at that level of government.
And yet there are two shared functions to the appointment of either kind of investigator, says Katy Harriger, a professor at Wake Forest University and author of The Special Prosecutor in American Politics. One role, perhaps to state the obvious, is to figure out what happened and address it as appropriate. The other role is to reassure the public that the investigation was impartial. Without independent investigation, the conclusion reached in the figuring-it-out part might be questioned no matter which way it went.
“The idea of [these appointments] goes back to the Grant administration,” Harriger says. “It’s generally a situation where you have allegations against high-ranking people, usually when it’s in the executive branch, because they control the justice apparatus and there’s concern that it’s not unbiased against them.”
What happened under Ulysses Grant was that the very first Department of Justice — the agency had only been established in 1870 — was thought to be suspiciously uninterested in the question of whether people close to the president were involved in what’s known as the Whiskey Ring scandal, a conspiracy to keep liquor taxes in the hands of whiskey distillers. Congress and others in government, especially the Treasury Department, were so concerned that Justice might be implicated in what was going on that there was an outside investigation.
In the early decades of the 20th century, two notable uses of special prosecutors stand out: the Teapot Dome scandal in the 1920s — in which Albert Fall, President Harding’s Secretary of the Interior, secretly leased oil rights controlled by the government — and a Truman-era tax scandal in the early 1950s.
In the case of Teapot Dome, it was under President Calvin Coolidge (who came to office after Harding’s death) that two special prosecutors, a Republican and a Democrat, were appointed to investigate. As a result, in 1929, Fall became the first cabinet secretary whose actions in office led him to be convicted of a crime. Perhaps more importantly, it was in connection with the same investigation that the Supreme Court held in that same year that “the Senate had power to delegate authority to its committee to investigate and report what had been and was being done by executive departments.” In 1952, when a tax scandal embroiled Truman’s Justice Department, TIME noted that the President decided what was needed was “a Democratic version of the Republicans’ famed Teapot Dome inquiry.”
But it was, of course, a more recent moment that redefined the use of the special prosecutor and special commissions: Watergate.
When Elliot Richardson became the new Attorney General in 1973, the scandal was already in full gear. In fact, Richardson came to the position with a promise — backed by Nixon — to appoint a special prosecutor. That man was Archibald Cox, whom TIME called “the perfect prober.”
Harriger identifies the Saturday Night Massacre as the turning point in the history of special prosecutors. It was that moment in 1973, when President Richard Nixon ordered the firing of Cox, that demonstrated to the nation and to lawmakers that “allowing the President or Attorney General to appoint a special prosecutor wasn’t enough,” she says, “because they were still beholden. So Congress started working right away to try to insulate a special prosecutor from that threat.”
It was thus that Congress passed the Ethics in Government Act. The 1978 law formalized the process that had been going on for a century at that point, creating special prosecutors (renamed independent counsels in 1983, partly to avoid any implication of assumed guilt) and giving a panel of judges the right to pick them. After the law’s expiration in 1999, the Attorney General kept the right to appoint special counsels, with internal regulations determining the circumstances. (A representative case for the use of those regulations, Harriger says, was the investigation of Scooter Libby during the George W. Bush investigation.)
“A lot of people say that Watergate shows that the system works, and I would argue that that’s a plausible interpretation,” she adds. “It’s not that the checks and balances keep things from happening, it’s that when they happen, are they investigated?”
But, Harriger says, that’s not to say that everything a special prosecutor or select committee has done in American history has been great. For one thing, the Ethics in Government Act was allowed to expire in part because of a perception of overuse — she says the law had been triggered on average about once a year during its two decades in effect — had devalued the concept. And calling for a special prosecutor can backfire. They are bound by their roles as prosecutors — in other words, their job is to determine whether there’s an actual on-the-books crime and sufficient evidence for a trial. While a Congressional committee can do the more nuanced work of airing grievances, a prosecutor who decides there’s not enough evidence doesn’t generally explain the details to the public or the press. When a prosecutor announces there’s insufficient evidence but doesn’t get into why, there is an opening for critics to dismiss the investigation as a witch-hunt. And, though in theory the idea of a special prosecutor is that he or she is removed from politics, that’s not really possible in practice.
“Presidents learned that what you had to do was undermine the authority of the special prosecutor,” Harriger says.
In addition, the two sides to the investigatory coin can conflict. During the Watergate era, Congressional investigation and special prosecution worked in tandem, but that hasn’t always been the case; for example, Harriger points to what happened during the Iran-Contra scandal of the 1980s, when Congress offered immunity to Oliver North and John Poindexter so that they would testify, even as the special prosecutor on the case wanted to pursue them too. When they were convicted, they were able to appeal on the grounds that the case had been tainted by the immunized testimony they had offered.
In other words, in this case, there had been enough evidence of a crime to move ahead with a prosecution, but the actions of the Congressional investigators hampered the Justice side; both North and Poindexter ended up going free.
The special investigatory function has served an important role in American history, but cooperation is key, and carefulness — but also caution.
“If you have a suspicious mind, well, let’s just say that people should be on the alert,” Harriger says, “if Republicans in Congress start to immunize a bunch of people.”