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The two federal criminal prosecutions most in the news right now — of Donald Trump and Hunter Biden — highlight the limits of the existing special counsel regulations. In one case, the executive branch is prosecuting the president’s leading opposition candidate. In the other, the executive branch is prosecuting the president’s son. The president, of course, is the head of the executive branch.
We need a better system.
To be sure, the prosecutors seem to be doing everything by the book. Yet the fact remains that, in a democracy, one candidate shouldn’t be able to prosecute another. And no one should ever be in the chain of command for the prosecution of their own child.
There is a cure, one adopted by Congress after Richard Nixon ordered the firing of special prosecutor Archibald Cox during Watergate: Congress can pass a law creating a genuinely independent counsel, one who cannot be fired by the president. This would create a legitimate distance between the president and the prosecutions and approximate the norm that exists in most countries.
Such a law existed from 1978-1999. The reason it’s not in place today is that the independent counsel law, which needed to be renewed, was allowed to sunset in 1999 in the wake of Bill Clinton’s impeachment when the independent counsel, Kenneth Starr, was seen by some to have overreached.
There’s no legal reason the law couldn’t be revived. In 1988, the Supreme Court upheld the old independent counsel statute as constitutional by a 7-1 vote, over a dissent by Justice Antonin Scalia. Although the current court might conceivably reverse that precedent and follow Scalia’s dissent, the case, Morrison v. Olson, is still good law.
Let me be extremely clear: Acknowledging the need for a renewed independent counsel law is not a criticism of how the Biden administration has been acting under the existing special counsel rules. To the contrary, the system as it presently exists is working as well as it possibly can.
Joe Biden appointed an attorney general of unquestioned probity and has left Merrick Garland alone to do his job as he sees fit. In turn, Garland appointed Special Counsel Jack Smith and has allowed him to operate independently in bringing charges against Trump. And Garland has also granted autonomy to David Weiss, the Delaware U.S. Attorney appointed by the Trump administration to investigate Hunter Biden, and recently appointed him as special counsel after Hunter’s plea deal collapsed in confusion.
Garland, Smith and Weiss are making the best of a bad situation. But it isn’t enough. The special counsel regulation is not a statute passed by Congress. And while it protects a special counsel from being fired by the attorney general (except for misconduct or other good cause) the special counsel isn’t formally independent. The president could order the attorney general to retract the statute and fire the special counsel — a latter-day Saturday Night Massacre of the type that was narrowly averted during Robert Mueller’s investigation of Trump, when Trump was talked out of firing Mueller.
One of the classic short-hand definitions of an electoral democracy is that, when the elections are over, the losing candidates don’t go to prison. Yet if Trump retakes the presidency, he could dismiss the federal charges against himself (provided they are still pending). If he loses the election, he will go to trial; if he’s convicted, he could go to prison. What’s more, if Trump wins, he could direct a more aggressive prosecution of Hunter Biden — including expanding the investigation to include Joe Biden.
The independent counsel law was allowed to lapse because many Democrats thought that Starr’s investigation of Clinton had strayed too far from its original remit of the Whitewater scandal, leading ultimately to Clinton’s impeachment for lying about his relationship with White House intern Monica Lewinsky. And some Republicans, influenced by Scalia’s point of view, thought the independent counsel statute was unconstitutional.
Some hoped that impeachment by Congress would remain an independent check on the president’s power. But we now know — after one impeachment of Clinton and two of Trump — that it is mostly a symbolic undertaking. As long as the president’s party holds at least a third of the Senate, the president is unlikely to be removed from office.
So it’s time for a rethink, on both sides of the aisle. The worry of overreach is real, but it must be weighed against the threat to democracy and the rule of law. We need a true independent prosecutor shielded from presidential authority.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”