Elie Honig on Special Counsels: From Grant to Jack Smith

The Evolution of Special Counsels

• 🏛️ The concept of a special counsel (or independent counsel/special prosecutor) has existed for a long time, originating from investigations into President Grant's administration in the 1870s.
• 📜 The formal Office of Independent Counsel was established after Watergate in 1978, providing a legal framework for investigations into high-ranking officials, particularly the president, to address conflicts of interest.
• 💥 The law governing special counsels eventually died out due to controversies, most notably the Ken Starr investigation into President Clinton.

Ken Starr and the Clinton Investigation

• 🔍 Ken Starr's investigation, initially focused on Whitewater, dramatically expanded with the Monica Lewinsky scandal.
• 🗣️ A key moment was Bill Clinton's testimony, famously including the phrase "it depends on what the meaning of is is."
• ⚖️ While Starr could not indict a sitting president due to DOJ policy, his successor, Bob Ray, indicated he would have pursued an indictment if Clinton hadn't agreed to a settlement involving admitting wrongdoing and forfeiting his bar license.

Robert Mueller and Donald Trump

• 🏅 Robert Mueller, a highly decorated former Marine and widely respected figure, led the investigation into Russian interference in the 2016 election.
• 🚫 Mueller's team faced frustration over their inability to indict President Trump due to DOJ policy, leading to controversy over whether Mueller should have been more definitive in his public report regarding obstruction of justice.
• 💾 Echoing historical precedents, Mueller's investigators took precautions by backing up their files to off-site servers, fearing potential interference.

Jack Smith and the Trump Cases

• ⏳ Elie Honig argues that Jack Smith never had a chance to complete his investigations and trials before the 2024 election due to the late appointment by Merrick Garland in November 2022.
• ⏳ The limited timeframe, coupled with the certainty of immunity issues heading to the Supreme Court, made it nearly impossible to bring cases to trial within the two-year window.
• 📉 Honig speculates that Garland's delay may have stemmed from a reluctance to confront Trump, a desire to avoid political fallout, or a hope that investigations would naturally conclude without directly implicating the president.

Broader Implications for DOJ Independence

• 🎯 The firing of prosecutors involved in January 6th cases by the Trump administration is seen as a crossing of a line, entering an era of retribution within the DOJ.
• 🏛️ Restoring the independence of the DOJ and the concept of nonpartisan special counsels is expected to be very hard for future administrations.
• 💡 Honig advocates for maintaining some form of independent investigative means within the DOJ, arguing that imperfect rules are better than no rules, citing the 2016 Jim Comey situation as an example of ad-hoc decision-making leading to disaster.

Historical Figures in Legal Roles

• 🧑‍⚖️ John Roberts, before becoming Chief Justice, was a brilliant and fair contributor to the drafting of special counsel regulations.
• 👨‍⚖️ Brett Kavanaugh, as a young lawyer on Ken Starr's team, was highly relied upon for legal analysis, though he also suggested toning down the explicit details in the final report.