Special counsels, like the one leading the Justice Department's investigation of Hunter Biden, are intended to be independent - but they aren't entirely

By Joshua Holzer
Westminster College

(THE CONVERSATION) — On June 20, 2023, Hunter Biden, the second son of President Joe Biden, entered into a plea agreement with prosecutors related to tax-related charges and the illegal possession of a firearm.

On July 26, the plea agreement was challenged by the judge in the case. She wanted to know more about any immunity being offered, given that Hunter Biden is under several federal investigations.

After the prosecution and defense failed to renegotiate the deal, Attorney General Merrick Garland announced on Aug. 11 that U.S. Attorney David Weiss, the Donald Trump-appointed lead federal prosecutor for Delaware who had already been investigating the case, had been appointed as special counsel so that he would have “the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently, based only on the facts and the law.”

After the appointment, Sen. Dick Durbin, an Illinois Democrat, praised Garland for being “committed to avoiding even the appearance of politicization at the Justice Department.”

Sen. Lindsey Graham, a South Carolina Republican, however, attacked Weiss’ appointment as “a dumb political decision,” despite having previously supported it.

From my perspective as a political scientist, I believe that while special counsels are intended to be independent, in practice they aren’t entirely. Here’s why.

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Independent and special counsels

Ensuring impartiality in the Justice Department can be difficult, as the attorney general is appointed by – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general to pursue a political agenda. President Richard Nixon did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts.

On the evening of Oct. 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General Robert Bork, the next most senior official at the Justice Department, to fire Cox. Bork complied.

This shocking series of events, often referred to as the Saturday Night Massacre, demonstrated how presidents could exercise political power over criminal investigations.

As a result of the Watergate scandal, Congress passed the Ethics in Government Act of 1978. This allowed for investigations into misconduct that could operate outside of presidential control.

After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other high-ranking executive branch officials had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate.

The Ethics in Government Act also disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could “result in a personal, financial, or political conflict of interest, or the appearance thereof.”

In the decades since the law’s passage, independent counsels investigated Republicans and Democrats alike. In 1999, Congress let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno authorized the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.

Robert Mueller, who was appointed in 2017 by Deputy Attorney General Rod Rosenstein to investigate possible Russian interference in the 2016 elections and possible links between the Trump campaign and the Russian government, was a special counsel. Some Republicans accused him of bias, despite his long career serving under both Democratic and Republican presidents.

In 2020, John Durham – another veteran of the Justice Department – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of political prosecution. Sussmann was later acquitted.

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Politicizing the process

Although special counsels were meant to resemble independent counsels, there are notable differences.

For instance, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the chief justice of the United States.

Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Justice Department regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or end a special counsel investigation.

For example, on at least one occasion, Trump sought to have Mueller dismissed. When his attorney general, Jeff Sessions, refused to comply, Trump fired him.

Sessions was later replaced by William Barr, who previously served as attorney general under President George H.W. Bush. Prior to his appointment, Barr sent an unsolicited memo to the Justice Department defending Trump by arguing that presidents have “complete authority to start or stop a law enforcement proceeding.”

In my own research, I have found that abuses of power are more common in situations in which the president and the attorney general are political allies.

For instance, after Mueller finished his report in 2019, Barr released a summary of its “principal conclusions.” Later, Barr’s summary was criticized for “not fully captur[ing] the context, nature, and substance” of Mueller’s work.

In 2020, a Republican-appointed judge ruled that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”

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To be or not to be free of partisanship

The independence of the Justice Department rests, in part, on who occupies the offices of president and attorney general.

Trump, for example, saw himself as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.”

Meanwhile, Joe Biden has a long history of supporting the independence of Justice Department investigations, dating back to his 1987-1995 tenure as chairman of the Senate Judiciary Committee.

Barr once argued that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.”

In contrast, Garland – a former U.S. circuit judge – insists that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”

Republican Congresswoman Marjorie Taylor Greene has claimed the Biden administration is using the Justice Department unfairly. Garland has served as attorney general for only 2½ years, yet at this point he has appointed more special counsels than any of his predecessors.

The first, Jack Smith, is overseeing investigations into former President Donald Trump’s role in the Jan. 6 insurrection, as well as Trump’s handling of classified government documents upon leaving office in 2021. The second, Robert Hur, is overseeing President Joe Biden’s handling of classified documents after leaving office as vice president in 2017. Weiss’ investigation of Hunter Biden is Garland’s third special counsel appointment.

However, despite attempts by Garland to keep sensitive cases an arm’s length away, the reality is that special counsels – by design – are not as independent as the independent counsels of the past. As a result, the perception of political prosecution can be hard to avoid.