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What We Can Still Learn From American History’s First Special Prosecutor

9 minute read

For many Americans today, the term special prosecutor is likely to call to mind Watergate, Kenneth Starr’s investigation of Bill Clinton, perhaps the Iran-Contra Scandal and, of course, Robert Mueller’s investigation of Russian interference in the 2016 presidential election. But those investigations grew out of a rich, complicated and not always edifying history that even most legal scholars and historians have largely forgotten. Between 1875 and 1973, five different presidents appointed special prosecutors to investigate all manner of high-level official corruption.

These investigations span nearly a century, during which American society and governmental institutions underwent enormous, transformational changes. Even so, they share much in common. In each case, popular outcry over alleged misconduct by high executive officials forced the President to appoint a special prosecutor to restore public confidence. In each case, the high public salience of the resulting investigation gave the President’s supporters powerful incentives to attack the special prosecutor. But the special prosecutor’s visibility also provided the American people a potent tool for holding Presidents accountable. In each case, the willingness and ability of the American people to impose a political price on the President proved decisive.

This factor proved key right from the beginning.

On the morning of Saturday, February 12, 1876, an illustrious visitor arrived at the White House to perform an unusual duty. The visitor was chief justice of the United States Morrison Waite. The duty was to preside over the deposition of President Ulysses S. Grant. Never before or since has a sitting president testified on behalf of a defendant in a federal criminal prosecution. Grant’s cabinet had unanimously counseled him against doing so. But his beloved chief of staff, Orville Babcock, was facing federal bribery charges in St. Louis, and Grant could not be dissuaded.

Lieutenant General Ulysses Grant first won the presidency in 1868 as the conquering hero of Appomattox. Unfortunately, his military success little prepared him to deal with the wily operators of Washington. By the summer of 1875, the luster of his postwar reputation had dimmed considerably. A decent and honorable man himself, Grant proved a spectacularly bad judge of character in others, up to and past the point of gullibility. He was also legendarily stubborn in sticking by friends he appointed to high office, long after the evidence showed them to be corrupt or unfit for their duties. No episode more clearly exposed these faults than the notorious kickback conspiracy known as the St. Louis Whiskey Ring.

The crux of the conspiracy was straightforward and brazen. Federal revenue agents in St. Louis and several other cities would look the other way while local distilleries dramatically underreported their whiskey production. This saved the distillery owners several million dollars in federal taxes, which were assessed per gallon of whiskey produced. In return, the distillery owners split the tax savings with federal officials. The local boss of this operation—the literal “ring-leader”—was General John McDonald, a rough-hewn former army comrade of President Grant. The real brains, however, belonged to General Orville Babcock, Grant’s handsome, intelligent and smoothly duplicitous chief of staff. While McDonald managed the scheme on the ground, the Iago-like Babcock ran interference in Washington, alerting McDonald to upcoming federal inspections by pseudonymous telegrams that Babcock poetically signed “Sylph.”

In the late spring of 1875, Babcock met his match in Benjamin Bristow, the secretary of the treasury. The criminal network Bristow uncovered was massive, as was the attendant scandal. Besides St. Louis, the Whiskey Ring encompassed Milwaukee, Cincinnati, New Orleans and Peoria, Illinois. When Bristow presented Grant with the evidence he had gathered, including Babcock’s telegrams, Grant appointed the first special prosecutor in U.S. history to investigate. “Let no guilty man escape,” he directed.

The historical record is disappointingly sparse on the circumstances surrounding this appointment and the considerations motivating it. This much is clear, however. Amid the burgeoning Whiskey Ring scandal, Grant removed William Patrick, the U.S. attorney for St. Louis, who was rumored to be intimate with several of the chief suspects. On May 20, 1875, Grant named former congressman David Dyer in Patrick’s place. Dyer recommended that Grant appoint John B. Henderson, a former U.S. senator and Union general, as special prosecutor to head up the Whiskey Ring investigation.

An accomplished St. Louis lawyer, Henderson enjoyed a hard-won reputation for staunch independence. In 1868, he had cast the deciding vote against impeachment of President Grant’s widely loathed predecessor, Andrew Johnson. This act of political courage earned Henderson admiration as a man of principle but permanently extinguished his future in the Republican Party. In this respect, Henderson fits the typical profile of modern special prosecutors, who tend to be prominent elder statesmen with conspicuous reputations for political independence. Whether this profile played any significant role in Grant’s decision is unknown. But his replacement of the St. Louis U.S. attorney and appointment of Henderson were unquestionably aimed at restoring public confidence in the integrity of federal law enforcement.

The political and human drama could hardly have been higher. Just ten years after the Civil War, every significant player on both sides was a former Union general. This included Henderson and his principal antagonists, John McDonald and Orville Babcock. It also emphatically included Ulysses Grant, the former Union general-in-chief, who was not formally a party to the case but might as well have been. With such a clash of titans looming, all eyes fixed on the booming midwestern metropolis of St. Louis. Local newspapers proudly declared the proceedings “the most important trial ever held in the United States.”

McDonald was undeniably guilty, and a jury readily convicted him. The evidence against Babcock was nearly as damning, but Grant’s chief of staff was a schemer of unusually insidious brilliance. He had managed to convince the president completely of his innocence. This saved him. Highly partisan attacks, which Babcock helped orchestrate, persuaded Grant that Henderson’s investigation was a direct attack on the presidency. One typical Missouri correspondent wrote Grant that Henderson did not “like a bone in your body.” The final straw was Henderson’s strident closing argument in the trial of Whiskey Ring conspirator William Avery. Caught up in his own eloquence, the special prosecutor imprudently hinted that Grant himself might have aided the conspirators. Outraged, the president fired Henderson just on the eve of Babcock’s trial, scuttling many months of careful preparation.

To his credit, Grant swiftly appointed another special prosecutor to succeed Henderson. But when the screws again tightened, the shameless Babcock appealed to Grant for help. Moved by his friend’s plight and galled by the perceived assault on his administration, Grant agreed to testify in Babcock’s defense. On the evening of February 9, 1876, Secretary of State Hamilton Fish recorded the event in his diary: “the President manifested a great deal of excitement and complained that they had taken from him his secretaries, and clerks, his messengers, and doorkeepers; that the prosecution was aimed at himself and that they were putting him on trial; that he was as confident as he lived of Babcock’s innocence, and that he knew he was not guilty.” Only Fish’s fervent pleading dissuaded Grant from appearing at Babcock’s trial in person.

The deposition took place around a crowded table at the White House. Besides Chief Justice Waite and President Grant, the participants included lawyers Lucien Eaton, for the prosecution, and William A. Cook, for the defense. Hamilton Fish, Attorney General Edwards Pierrepont, and Treasury Secretary Benjamin Bristow all attended as witnesses. The grim-visaged chief justice began by placing Grant under oath. Eaton and Cook then took turns questioning the president about his knowledge of the Whiskey Ring and the allegations against Babcock.

Reflecting his increasingly antagonistic view of the prosecution, Grant answered many of Eaton’s questions curtly or querulously. He professed little recollection of crucial details but vouched for Babcock’s innocence emphatically and unequivocally. “I have always had great confidence in his integrity and his efficiency,” Grant concluded. “And as yet my confidence in him is unshaken. I have never learned anything that would shake that confidence.”

Five days later, Babcock’s defense attorney read the president’s testimony aloud in a packed St. Louis courtroom. Judge, jury and spectators listened with rapt attention. In the words of one eyewitness, all present “strained to catch the lightest accent” of Grant’s words. The impact on the prosecution was nothing short of devastating. The jury acquitted Babcock after a mere two hours of deliberation.

Despite this denouement, the Whiskey Ring investigation was not a total failure. Political pressure forced Grant to appoint Henderson, who convicted McDonald and dozens of lower level conspirators. This was a real advance in an era when graft and corruption were par for the course. On the other hand the political pressure that prompted Henderson’s appointment was too weak to protect his investigation when it became irksome to the president. Grant paid no personal political price for scuttling the prosecution of Babcock, the most important and highly connected of the Whiskey Ring defendants. To the contrary, the partisan indignation of Grant’s Republican supporters encouraged him in this course of action. A fractious but still robust Republican media apparatus amplified that indignation and broadcast it nationally. Party newspapers fed loyalists a sympathetic version of events while relentlessly attacking Henderson’s motives and actions. In combination, these circumstances made it virtually inevitable that the double-edged sword of politics would fall on the special prosecutor, rather than the president.

The lesson is clear: when a President no longer feels political pressure to support an independent investigation, a special prosecutor can do little of importance. In such circumstances, special prosecutors may be rendered ineffectual even with the support of the American people. Without that support, their failure is virtually inevitable.

Excerpted from Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law, by Andrew Coan. Copyright © 2019 by Oxford University Press and published by Oxford University Press. All rights reserved.

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