Is a Special Counsel Necessary to Investigate the Department of Justice?

Introduction

Lawmakers in both houses of Congress have increased their demands that the U.S. Department of Justice (DOJ) appoint a special counsel to investigate the actions of U.S. Attorney General Merrick Garland. The calls to appoint a special counsel come amid whistleblower allegations that the attorney general himself may have influenced the decision-making process related to the investigative inquiry into the business dealings of Hunter Biden, the son of President Joe Biden.

The controversy deepened recently with the revelations of Internal Revenue Service investigator Gary Shapley, who testified before the House Ways and Means Committee and challenged Garland’s congressional testimony that the Delaware U.S. Attorney, David Weiss, had full autonomy over charging decisions into the Hunter Biden tax evasion investigation (Stanage, 2023).

Sen. Ted Cruz (R-TX), advocating on his podcast for the appointment of a special counsel, was quoted in the Washington Times saying, “It is time. The Department of Justice needs to appoint a special counsel to investigate Merrick Garland for obstruction of justice and perjury.” He added, “At this point, the evidence that Merrick Garland personally committed multiple felonies is growing greater” (Picket, 2023).

Of course, appointing a special counsel to investigate the actions of Attorney General Garland and the DOJ would fall to none other than the attorney general himself, placing him in the awkward position of having to outsource an investigation into his own conduct and that of the DOJ that he oversees.

The appointment of a special counsel, while not particularly common, is also not unheard of, especially when controversial matters of public interest demand fair and impartial adjudication. The recent past has seen several notable instances of the appointment of a special counsel. This raises the question of whether one is now needed to investigate Attorney General Garland and the actions of the DOJ.   

Background

Special counsels—sometimes referred to as special prosecutors—are semi-autonomous federal prosecutors appointed by the attorney general and generally insulated from the normal political chain of command within the DOJ. Special counsels differ in the authority conferred upon them from the now-defunct position of independent counsel. The position of independent counsel was created in the aftermath of the Watergate scandal and sought to provide the appointee with even more insulation from political interference than the position of special counsel. Rather than being subject to limited oversight by the attorney general, as is the case with a special counsel, independent counsels operated with even greater autonomy and were appointed by, and reported to, a panel of judges outside the purview of a president’s political power (Savage, 2023).

Although Congress ultimately allowed the legislation creating the position of independent counsel to lapse in 1999, in many notable instances, special counsels or independent counsels have been appointed to pursue accountability at the highest levels of government.

Watergate: The 1973 appointment of Archibald Cox came in the wake of the Watergate scandal, which emerged from the break-in at the Democratic National Committee headquarters, and revealed illegal activities and subsequent attempts to cover up the involvement of President Richard Nixon and his administration.
Cox’s investigation into Watergate included many significant events, including the issuance of a subpoena that demanded the release of the Oval Office tapes, which contained recorded conversations within the White House and were crucial pieces of evidence. President Nixon, asserting executive privilege, refused to comply with the subpoena. This led to the “Saturday Night Massacre,” when Nixon ordered Cox’s firing, resulting in the resignation of the attorney general and the appointment of a new special prosecutor, Leon Jaworski (Mokhiber, 1998).
Cox’s investigation played a role in revealing the depth of the Watergate scandal and shed light on the wrongdoing within the Nixon Administration. This highlighted the need for special counsels to operate with enough autonomy to ensure accountability in cases involving high-ranking officials. The release of the Oval Office tapes, which Cox fought to obtain, ultimately contributed to President Nixon’s resignation in August 1974 (Kilpatrick, 1974).

Clinton-Lewinsky Scandal: Independent counsel Kenneth Starr was appointed in 1994 to investigate dubious real estate investments made by the Clintons, but his findings ultimately led to the discovery of the Clinton-Lewinsky affair, which involved allegations of perjury and obstruction of justice by President Bill Clinton regarding his relationship with Monica Lewinsky, a White House intern (Sullivan & Diaz, 2022).
Starr’s investigation addressed various issues concerning President Clinton’s conduct, including the Whitewater controversy and the firing of White House travel office employees. The objective of Starr’s investigation was to determine if any criminal charges should be brought against the president.
Ultimately, the investigation led to the disclosure of damaging evidence that corroborated the allegations against President Clinton and raised concerns about potential perjury and obstruction of justice.
The investigation was politically contentious and culminated in the impeachment of President Clinton by the House of Representatives on charges of perjury and obstruction of justice (Gerhardt, 1999). The Senate ultimately acquitted him, and he remained in office until the end of his second term.
Starr's investigation into the Clinton-Lewinsky affair caused intense public debate and highlighted the complexities and challenges associated with investigating high-profile political figures while navigating the intersection of law, politics, and public opinion.

Waco: The Waco investigation centered around the events that unfolded at the Mount Carmel Center near Waco, Texas, in 1993. The compound, occupied by the Branch Davidian religious group led by David Koresh, became the site of a violent confrontation between federal law enforcement officers from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Branch Davidians over the execution of a search warrant related to the illegal possession of weapons and explosives (Hancock, 2018).
After the incident, which resulted in a 51-day standoff and the deaths of four ATF agents and 76 Branch Davidians, Special Counsel John Danforth was appointed to conduct an independent investigation (McGovern, 2023).
Danforth’s investigation focused on several key aspects of the confrontation, including the initial ATF raid on the compound, the subsequent standoff, and a fire that engulfed the Mount Carmel Center.
The investigation sought to determine the actions and decisions of law enforcement agencies involved in the raid and standoff, as well as any potential misconduct or failures on their part. It also aimed to examine the events leading up to the fire and the response by authorities during the siege.
The investigation culminated with the release of the Danforth Report in 2000. In a news conference reported by the Washington Post, Danforth said that the “responsibility for the tragedy rests with certain of the Branch Davidians and their leader, David Koresh,” as Danforth publicly announced the release of the eponymous report (Schmidt, 2000).
While the report acknowledged that the actions of federal law enforcement may have contributed to the tragic outcome, it ultimately determined that the government did not intentionally start the fire or engage in a cover-up.

Durham Investigation: The John Durham special counsel investigation was launched to examine the origins of the Federal Bureau of Investigation’s (FBI) investigation into alleged Russian collusion with the Trump campaign in the 2016 presidential election, commonly called the Crossfire Hurricane investigation.
Durham, an experienced prosecutor with a background in investigating government misconduct, was appointed as special counsel by the DOJ in October 2020 (DOJ, n.d.).
The scope of the investigation included examining the actions of government officials and agencies involved in the Crossfire Hurricane investigation, such as the FBI and other intelligence agencies. The focus was determining whether any misconduct or improper handling of the investigation occurred, including potential political bias or abuse of power (U.S. Department of Justice, 2023).
The investigation sought to address concerns raised by those who questioned the validity and integrity of the Crossfire Hurricane investigation and who alleged that the investigation was politically motivated and improperly conducted.
Conclusions from the Durham Report found significant merit to those concerns, highlighting the dubious nature in which the Crossfire Hurricane investigation was initiated and pursued and questioning the political motivations behind many of the key investigative decisions (America First Policy Institute, 2023).

Conclusion

The highlighted examples demonstrate the critical role that special and independent counsels have played in ensuring accountability when there is an appearance of a potential conflict of interest or the questionable exercise of authority by high-ranking government officials. The appointment of special counsels has been instrumental in maintaining public trust, conducting impartial investigations, and uncovering the truth in cases of significant public concern.
From the Watergate scandal to the Clinton-Lewinsky affair and the investigations into politicization at the FBI and the Waco siege, historical precedent illustrates the need for independent investigations when the actions of those in power come under scrutiny.
Special counsels provide a level of independence and impartiality that is crucial in preserving the integrity of the investigative process. They operate outside the traditional chain of command and are empowered to conduct thorough inquiries, ideally free from undue influence or conflicts of interest. By examining evidence, questioning witnesses, and pursuing justice without political bias, special counsels serve as a vital safeguard against potential abuses of power. Their work holds high-ranking officials accountable and helps maintain public confidence in the rule of law.
In an era marked by heightened scrutiny of government actions and increasing demands for transparency, the use of special counsels remains essential. They can help restore faith in the integrity of our institutions and ensure that no one is above the law.
The whistleblower allegations suggesting inappropriate influence by Attorney General Garland into the investigative decisions about the business dealings of President Biden’s son, Hunter, appear significant enough that the appointment of a special counsel would not be without cause or precedent. It now remains to be seen whether the attorney general will exercise this option.