DOCSLIB.ORG

The Presidential Pardon Power

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Presidential Pardon Power Jeffrey Crouch. The Presidential Pardon Power. Lawrence: University Press of Kansas, 2009. viii + 208 pp. $34.95, cloth, ISBN 978-0-7006-1646-6. Reviewed by Donald Rogers Published on H-Law (August, 2010) Commissioned by Christopher R. Waldrep (San Francisco State University) When President George W. Bush commuted I. An up-to-date scholarly synthesis, Crouch's Lewis "Scooter" Libby's prison sentence after his book provides the fullest historical account and conviction in the Valerie Plame spy exposure legal analysis of the presidential pardon power scandal in 2007, many Americans complained published in two decades. He begins by explain‐ that the president had abused his Article II, Sec‐ ing that the clemency power began in ancient tion 2.1 constitutional power "to grant Reprieves Babylonian, Greek, and Roman societies and be‐ and Pardons for Offenses against the United came a favorite instrument of English kings, but States, except in Cases of Impeachment." Earlier, stirred up controversy at the American constitu‐ Americans felt similar outrage when Bill Clinton tional convention of 1787 as to whether such a granted clemency to Puerto Rican nationalists and "kingly" power belonged in republican govern‐ fugitive fnancier Marc Rich, when George H. W. ment. Only after some debate did the Framers de‐ Bush pardoned Caspar Weinberger for his in‐ cide to vest unlimited authority to grant clemency volvement in the Iran-Contra affair, and when in the executive branch alone--without senatorial Gerald Ford pardoned Richard Nixon for possible consent, before or after criminal convictions, crimes in the Watergate scandal. In The Presiden‐ even for treason, though not for impeachment. tial Pardon Power, political scientist Jeffrey Crouch acknowledges Anti-Federalist Luther Mar‐ Crouch contends that Americans are rightfully tin's prescient warning in the ratification debate concerned about these recent presidential deci‐ that presidents might abuse clemency authority to sions, because they signal misuse and sharp diver‐ cover up treason in the executive branch, but he gence from the original constitutional intent and asserts that the pardoning power otherwise historical practice of granting presidential evoked little discussion. He consequently accepts clemency. Alexander Hamilton's Federalist Nos. 69 and 74 as the definitive statement of the clemency clause's H-Net Reviews original meaning: presidents need broad pardon‐ authority politically--as when Thomas Jefferson ing power to serve "humanity and good policy" proffered it to secure testimony against alleged (p. 18), and can be checked by impeachment if traitor Aaron Burr, or when Ulysses Grant refused they misuse that authority. to offer immunity for witnesses aligned against Crouch usefully delineates the legal compo‐ his personal secretary Orville Babcock in the nents of the clemency power. The phrase "re‐ Whiskey Ring scandal. Most of the time, Crouch prieves and pardons," he says, allows the presi‐ says, presidents refrained from using the pardon dent to select one of fve gradations of clemency-- power to disrupt executive branch investigations, full pardons, commutations of sentences, remis‐ whether Theodore Roosevelt in the Oregon Land sions of fnes and forfeitures, reprieves or post‐ Fraud case, Calvin Coolidge and Herbert Hoover ponements of punishment, and amnesty or gener‐ in the Teapot Dome scandal, or Harry Truman in al pardons. Congress institutionalized the pardon‐ a tax-fixing offense at the Bureau of Internal Rev‐ ing process in 1865 by creating the Office of Par‐ enue. don Clerk (Pardon Attorney as of 1891), and feder‐ Crouch only partially explores the political al courts clarified the character and scope of the ramifications of Civil War-era pardons. He recog‐ president's pardoning power over the years. Chief nizes the constitutional tug-of-war between "pro- Justice John Marshall in U.S. v. Wilson (1833) af‐ amnesty presidents" Abraham Lincoln and An‐ firmed that presidential pardons were "acts of drew Johnson and the "anti-amnesty" Radical Re‐ grace" valid only upon recipients' acceptance, but publican Congress, the latter of which registered Biddle v. Perovich (1927) determined (without the most significant legislative challenge to the overruling Wilson) that that they mainly served presidential pardon power in U.S. history (p. 40). the public welfare. Other decisions ruled that par‐ He stops short, however, of discussing the clemen‐ dons could be given at any time after the commis‐ cy power's entanglement in Civil War and Recon‐ sion of a crime, could be partial or conditional in struction policy. He might have observed, for in‐ the benefits that they bestowed, but did not re‐ stance, that Johnson's thousands of pardons to ex- store pardoned parties to status as "new men" ex‐ Confederate officials were not just gestures of le‐ punged of criminal records. Several Civil War cas‐ niency to restore domestic tranquility, but politi‐ es raised the possibility of concurrent congres‐ cal acts that undermined a congressional land re‐ sional authority to grant or withhold clemency, distribution scheme, preserved white supremacy but Crouch fnds that courts consistently con‐ in the South, and courted a southern political fol‐ strued the power to pardon just as an executive lowing for Johnson's potential 1868 reelection bid. function. [1] The Presidential Pardon Power, however, re‐ The Presidential Pardon Power maintains mains more focused on the narrow legalities of that the pardoning process operated mainly out of presidential misuse of and congressional en‐ the public spotlight from the presidency of George croachment on clemency authority, than on its Washington to Watergate. Most pardons involved role in larger political battles. unknown people, but Crouch observes that some Crouch sees President Gerald Ford's pardon concerned notables, from Whiskey and Fries of former president Richard Nixon as the crucial rebels to Eugene Debs, Marcus Garvey, and Jimmy turning point in the presidential pardon power's Hoffa. In most cases, Crouch explains, presidents history. According to Crouch, twentieth-century followed George Washington's practice of granting immunity and parole statutes had likely dimin‐ clemency as an "act of grace" or to serve the pub‐ ished the need for presidential pardons in ordi‐ lic welfare. Rarely did they deploy the clemency nary criminal cases, but Ford's Nixon pardon set 2 H-Net Reviews the stage for a new era of self-interested political personal interests" (p. 95). The pardon of defense clemency decisions. As for Ford himself, Crouch secretary Caspar Weinberger, for example, re‐ strongly sympathizes with his "very difficult cir‐ lieved George H. W. Bush of the embarrassing pos‐ cumstances" (p. 91) and concludes that his pardon sibility of having to testify in Weinberger's trial of Nixon probably did not result from any deal, about his own conduct in the Iran-Contra affair. but rested properly on the public welfare theory Clinton's grant of conditional clemency to convict‐ of "heal[ing] the wounds throughout the United ed members of FALN, a Puerto Rican nationalist States" (p. 67). Nonetheless, Crouch argues that group, were likely intended to help his wife the timing of Ford's Nixon pardon before any in‐ Hillary's U.S. senatorial bid and Vice President Al dictments was understandably very controversial, Gore's presidential race, while his last-minute despite precedents like Ex Parte Garland (1862), pardon of Marc Rich likely aimed to reward the and that Ford himself badly bungled the public latter's ex-wife for a half-million-dollar contribu‐ explanation of his decision, a failure that contrib‐ tion to the Clinton presidential library. George W. uted to his 1976 presidential election defeat. Bush's commutation of Scooter Libby's jail time The Presidential Pardon Power's most origi‐ protected a member of the president's inner cir‐ nal contention is that the 1978 post-Watergate In‐ cle. dependent Counsel Act encouraged abuse of the Crouch convincingly maintains that these re‐ clemency power. Passed in reaction to Richard cent presidential pardons marked an ominous Nixon's infamous dismissal of a special prosecutor turn toward self-interested political use of the in the October 1973 "Saturday Night Massacre," presidential clemency power, but whether he can the counsel law attempted to create an indepen‐ attribute that shift mostly to the effects of the In‐ dent process for investigating executive branch dependent Counsel Act is debatable. Arguably, the wrongdoing. In a chapter devoted wholly to the counsel statute did provide "political cover" for measure's origins and impact, however, Crouch the two President Bushes to protect allies (and contends that the statute had the unexpected ef‐ themselves) by pardoning accessories to the Iran- fect of giving presidents "political cover" to use Conrtra and Valerie Plame episodes, but the the pardoning power "to exercise aides or sup‐ statute seemingly had little to do with President porters caught up in an investigation as victims Clinton's stunning batch of last-minute pardons. worthy of presidential clemency" (p. 94). Presi‐ Here again, the book might look to additional his‐ dents strategically pardoned executive branch of‐ torical circumstances that may have contributed ficials to thwart independent counsel investiga‐ to the recent explosion of political pardons. One tions on grounds that such prosecutions were po‐ was the ratification of the Twenty-Second Amend‐ litically motivated. ment in 1951, giving modern two-term presidents
Load more

Recommended publications
  • The Political Career of Stephen W
    37? N &/J /V z 7 PORTRAIT OF AN AGE: THE POLITICAL CAREER OF STEPHEN W. DORSEY, 1868-1889 DISSERTATION Presented to the Graduate Council of the North Texas State University in Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY By Sharon K. Lowry, M.A. Denton, Texas May, 19 80 @ Copyright by Sharon K. Lowry 1980 Lowry, Sharon K., Portrait of an Age: The Political Career of Stephen W. Dorsey, 1868-1889. Doctor of Philosophy (History), May, 1980, 447 pp., 6 tables, 1 map, bibliography, 194 titles. The political career of Stephen Dorsey provides a focus for much of the Gilded Age. Dorsey was involved in many significant events of the period. He was a carpetbagger during Reconstruction and played a major role in the Compromise of 1877. He was a leader of the Stalwart wing of the Republican party, and he managed Garfield's 1880 presidential campaign. The Star Route Frauds was one of the greatest scandals of a scandal-ridden era, and Dorsey was a central figure in these frauds. Dorsey tried to revive his political career in New Mexico after his acquittal in the Star Route Frauds, but his reputation never recovered from the notoriety he received at the hands of the star route prosecutors. Like many of his contemporaries in Gilded Age politics, Dorsey left no personal papers which might have assisted a biographer. Sources for this study included manuscripts in the Library of Congress and the New Mexico State Records Center and Archives in Santa Fe; this study also made use of newspapers, records in the National Archives, congressional investigations of Dorsey printed in the reports and documents of the House and Senate, and the transcripts of the star route trials.
    [Show full text]
  • Special Counsels and the Presidency: a Conversation with Ken Starr on the Role of the Constitution and the Ongoing Mueller Investigation
    AMERICAN ENTERPRISE INSTITUTE SPECIAL COUNSELS AND THE PRESIDENCY: A CONVERSATION WITH KEN STARR ON THE ROLE OF THE CONSTITUTION AND THE ONGOING MUELLER INVESTIGATION WELCOME: JOHN YOO, AEI PRESENTATION: KEN STARR, AUTHOR, “CONTEMPT: A MEMOIR OF THE CLINTON INVESTIGATION” PANEL DISCUSSION PANELISTS: SAIKRISHNA PRAKASH, UNIVERSITY OF VIRGINIA SCHOOL OF LAW; KEN STARR, AUTHOR, “CONTEMPT: A MEMOIR OF THE CLINTON INVESTIGATION”; VICTORIA TOENSING, DIGENOVA & TOENSING MODERATOR: JOHN YOO, AEI 2:45–4:00 PM TUESDAY, SEPTEMBER 18, 2018 EVENT PAGE: http://www.aei.org/events/special-counsels-and-the-presidency-a- conversation-with-ken-starr-on-the-role-of-the-constitution-and-the-ongoing- mueller-investigation/ TRANSCRIPT PROVIDED BY WWW.DCTMR.COM JOHN YOO: So welcome, everybody, to this panel on independent counsel. And as I promised on Facebook, we will almost certainly also talk about the Kavanaugh nomination. It’s not a joke. (Laughs.) So, my name is John Yoo. I’m a visiting scholar here and professor at Berkeley and also a fellow at the Hoover Institution at Stanford. And Judge Starr originally was going to give a lecture, but he actually would like to actually sit and have a conversation with the panelists, so we’re going to dispense with any kind of formal remarks. He’s going to make a — I think a short statement summarizing his book and some of the points, and then we’re going to turn right to an open discussion with the other panelists. So let me just quickly introduce them. You have their full biographies. But, as you all know, Judge Starr has been many, many things: a judge on the DC circuit, solicitor general, law school dean — it’s all been downhill after being law school dean — university president, and an independent counsel in the Clinton Whitewater investigation.
    [Show full text]
  • An Original Model of the Independent Counsel Statute
    Michigan Law Review Volume 97 Issue 3 1998 An Original Model of the Independent Counsel Statute Ken Gormley Duquesne University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Legal History Commons, Legislation Commons, President/ Executive Department Commons, and the Supreme Court of the United States Commons Recommended Citation Ken Gormley, An Original Model of the Independent Counsel Statute, 97 MICH. L. REV. 601 (1998). Available at: https://repository.law.umich.edu/mlr/vol97/iss3/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. AN ORIGINAL MODEL OF THE INDEPENDENT COUNSEL STATUTE Ken Gormley * TABLE OF CONTENTS INTRODUCTION • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 602 I. HISTORY OF THE INDEPENDENT COUNSEL STATUTE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • . • • • • • • 608 A. An Urgent Push fo r Legislation . .. .. .. .. 609 B. Th e Constitutional Quandaries . .. .. .. .. 613 1. Th e App ointments Clause . .. .. .. .. 613 2. Th e Removal Controversy .. ................ 614 3. Th e Separation of Powers Bugaboo . .. 615 C. A New Start: Permanent Sp ecial Prosecutors and Other Prop osals .. .. .. .. .. .. .. .. .. .. .. 617 D. Legislation Is Born: S. 555 .. .. .. .. .. .. .. .. .. 624 E. Th e Lessons of Legislative History . .. .. .. 626 II. THE FIRST TWENTY YEARS: ESTABLISHING THE LAW'S CONSTITUTIONALITY • . • • • • . • • • . • • • • . • • • • . • • • 633 III. REFORMING THE INDEPENDENT COUNSEL LAW • • . • 639 A. Refo rm the Method and Frequency of App ointing In dependent <;ounsels ..... :........ 641 1. Amend the Triggering Device .
    [Show full text]
  • United States History (APUSH) Summer Assignment – 2018 Mrs
    United States History (APUSH) Summer Assignment – 2018 Mrs. Butterfield Welcome to AP United States History! The US History course is designed to provide students with the analytic skills and factual knowledge necessary to deal critically with the problems and materials in US History. The program makes demands on students, equivalent to those made by full-year introductory college courses. Students should learn to assess historical materials – their relevance to a given interpretive problem, reliability, and importance. The class is fast paced so that we can cover everything in order to prepare you to take the EOC and AP Exams. As a result, a summer assignment is required as a “slow start” to help you get a handle on things and help prepare for the class. This preparation is to be done BEFORE you arrive to class. The goal of these assignments will be to introduce students to the pace of the class, the level of work that will be expected, and get you thinking about history. The expectation is that these assignments will be completed by the FIRST day of class. Assignments: Assignment 1: (10 points) Join Remind for IMPORTANT information: Assignment 2: (50 points) Become familiar with College Board and the AP US History Course a. Visit the College Board Website for AP United States History https://apstudent.collegeboard.org b. Create an account (if you do not already have one) c. Explore the AP United States History Course overview and course description d. Identify the following information: 1. How is the AP US History test laid out? MC? SAQ’s? Essays? 2.
    [Show full text]
  • Proposals to Reform Special Counsel Investigations
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2021 Balancing Independence and Accountability: Proposals to Reform Special Counsel Investigations Lawrence Keating Fordham University School of Law Steven Still Fordham University School of Law Brittany Thomas Fordham University School of Law Samuel Wechsler Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Law and Politics Commons Recommended Citation Lawrence Keating, Steven Still, Brittany Thomas, and Samuel Wechsler, Balancing Independence and Accountability: Proposals to Reform Special Counsel Investigations, January (2021) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1111 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Balancing Independence and Accountability: Proposals to Reform Special Counsel Investigations Democracy and the Constitution Clinic Fordham University School of Law Lawrence Keating, Steven Still, Brittany Thomas, & Samuel Wechsler January 2021 Balancing Independence and Accountability: Proposals to Reform Special Counsel Investigations Democracy and the Constitution Clinic Fordham University School of Law Lawrence Keating, Steven Still, Brittany Thomas, & Samuel Wechsler January 2021 This report was researched and written during the 2019-2020 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, where students developed non-partisan recommendations to strengthen the nation’s institutions and its democracy.
    [Show full text]
  • 1820S: Birth & Childhood 1830S
    The following is a detailed chronology of Ulysses S. Grant's life, from birth to death. 1820s: Birth & Childhood 1822 ................................................................................................................................................................................. 3 1823 ................................................................................................................................................................................. 3 1830s: Schooling 1836 ................................................................................................................................................................................. 4 1837 ................................................................................................................................................................................. 4 1839 ................................................................................................................................................................................. 4 1840s: Marriage & Military Service 1843 ................................................................................................................................................................................. 5 1844 ................................................................................................................................................................................. 5 1845 ................................................................................................................................................................................
    [Show full text]
  • AP U. S. History Presidential Review
    1 AP U. S. History Presidential Review The Young Republic/The Critical Period, 1788-1815 1. George Washington, 1789-1797 VP - John Adams Secretary of State - Thomas Jefferson Secretary of Treasury - Alexander Hamilton Reference Points: • The first cabinet positions—treasury, war, state, attorney general • Judiciary Act, 1789 • Tariff of 1789 • Philadelphia as the nation’s capital, 1790 • First Bank of United States , 1791-1811 (Report on Public Credit, Report on Manufactures) • Vermont enters Union, 1791 • The Bill of Rights, 1791 • The New York Stock Exchange, 1792 • Kentucky enters Union, 1792 • Fugitive Slave law, 1793 • French Revolution - Citizen Genet, 1793 • Eli Whitney granted patent for the cotton gin, 1794 • Whiskey Rebellion, 1794 • Jay’s Treaty with England, 1795 • Pinckney’s Treaty with Spain, 1795 • Hamilton v Jefferson (loose v strict interpretations of the Constitution) • Tennessee enters Union, 1796 • Farewell Address, 1796 2. John Adams, 1797-1801 Federalist VP - Thomas Jefferson Reference Points: • XYZ Affair, 1797 • 11th Amendment, 1798 • Naturalization Act, 1798 • Alien Act, Sedition Act, 1798 • Kentucky (Jefferson) and Virginia (Madison) Resolutions, 1798 • Handsome Lake, 1799 • Prosser’s Rebellion, 1800 • "Midnight Appointments"/Judiciary Act of 1801 2 3. Thomas Jefferson, 1801-1809 Republican VP - Aaron Burr Secretary of State - James Madison Reference Points: • Repeal of the Judiciary Act of 1801 • Beginning of the Second Great Awakening, 1801-1840s • Henry Shrapnel receives the patent for shell ammunition, 1803 • Marbury v. Madison, 1803 • Ohio enters Union, 1803 • Louisiana Purchase, 1803 • Lewis and Clark Expedition, 1804-1806 • The attempt to impeach Supreme Court Justice Samuel Chase, 1804 • Aaron Burr and his treason trial, 1804-1807 • 12th Amendment, 1804 • Yazoo Land Scandal, 1805 • National Road (also known as Cumberland Road) authorized, 1806 • Impressment, 1806-1812 • Embargo Act, 1807 • Congressional prohibition on slave trade into the US, 1808 4.
    [Show full text]
  • Historical Dictionary of the Gilded Age
    HISTORICAL DICTIONARIES OF U.S. HISTORICAL ERAS Jon Woronoff, Series Editor 1. From the Great War to the Great Depression, by Neil A. Wynn, 2003. 2. Civil War and Reconstruction, by William L. Richter, 2004. 3. Revolutionary America, by Terry M. Mays, 2005. 4. Old South, by William L. Richter, 2006. 5. Early American Republic, by Richard Buel Jr., 2006. 6. Jacksonian Era and Manifest Destiny, by Terry Corps, 2006. 7. Reagan–Bush Era, by Richard S. Conley, 2007. 8. Kennedy–Johnson Era, by Richard Dean Burns and Joseph M. Siracusa, 2008. 9. Nixon–Ford Era, by Mitchell K. Hall, 2008. 10. Roosevelt–Truman Era, by Neil A. Wynn, 2008. 11. Eisenhower Era, by Burton I. Kaufman and Diane Kaufman, 2009. 12. Progressive Era, by Catherine Cocks, Peter Holloran, and Alan Lessoff, 2009. 13. Gilded Age, by T. Adams Upchurch, 2009. Historical Dictionary of the Gilded Age T. Adams Upchurch Historical Dictionaries of U.S. Historical Eras, No. 13 The Scarecrow Press, Inc. Lanham, Maryland • Toronto • Plymouth, UK 2009 SCARECROW PRESS, INC. Published in the United States of America by Scarecrow Press, Inc. A wholly owned subsidiary of The Rowman & Littlefi eld Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.scarecrowpress.com Estover Road Plymouth PL6 7PY United Kingdom Copyright © 2009 by T. Adams Upchurch All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Upchurch, Thomas Adams.
    [Show full text]
  • Special Investigations Involving U.S. Presidents and Their Admins Since 1973
    Special Investigations Involving U.S. Presidents and Their Admins Since 1973 Second Update – August 13, 2019* Report Commissioned by the A-Mark Foundation www.amarkfoundation.org *Original Post – April 3, 2018 First update, April 16, 2019, and Second Update include updated Statement of Expenditures from Special Counsel Robert S. Mueller’s investigation. © 2019 A-Mark Foundation - This report is available for Fair Use. Special Investigations Involving U.S. Presidents Since 1973 Overview The A-Mark Foundation commissioned this report on special investigations involving presidents and those close to them following the appointment of Special Counsel Robert S. Mueller to investigate possible collusion among President Donald J. Trump, his presidential campaign and Russia in the 2016 U.S. presidential election. That investigation concluded on March 22, 2019. This report, with the exception of some commentary for historical context on the appointment of the first special prosecutor investigation,1 initiated by President Ulysses S. Grant in 1875, effectively begins with the Watergate investigation of President Richard M. Nixon in 1973. The report concludes with the end of the investigation into Trump’s 2016 presidential campaign. Our criteria for the special investigations of the eight presidents [Barack H. Obama and his administration were not investigated] versus the investigations in the Appendix are as follows: The eight special investigations beginning in 1973 are investigations by special prosecutors/independent counsels/special counsels that began with possible offence(s) tied directly or indirectly to the president in office, and the investigation of President Gerald R. Ford which began with the investigation of President Nixon; the 22 special investigations in the Appendix are either prior to 1973, or when the investigations seemingly involved personal behavior or actions not tied directly or indirectly to administration business or action.
    [Show full text]
  • Special Counsel Removal Authority and the Separation of Powers Adrianne C
    University of Baltimore Law Review Volume 48 | Issue 1 Article 5 2018 You’re Fired! Special Counsel Removal Authority and the Separation of Powers Adrianne C. Blake Follow this and additional works at: https://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Blake, Adrianne C. (2018) "You’re Fired! Special Counsel Removal Authority and the Separation of Powers," University of Baltimore Law Review: Vol. 48 : Iss. 1 , Article 5. Available at: https://scholarworks.law.ubalt.edu/ublr/vol48/iss1/5 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. YOU’RE FIRED! SPECIAL COUNSEL REMOVAL AUTHORITY AND THE SEPARATION OF POWERS Adrianne C. Blake∗ “Those who cannot remember the past are condemned to repeat it.” - George Santayana1 I. INTRODUCTION In June 1875, only five years after the Department of Justice (DOJ) was organized as a separate executive department, President Ulysses S. Grant appointed the nation’s first special prosecutor.2 John B. Henderson was appointed to investigate a robust network of whiskey distillers, Internal Revenue Service (IRS) agents, Department of Treasury (DOTR) clerks, and others who were accused of diverting federal liquor tax revenue into their personal pockets and political campaigns.3 Investigator Henderson’s inquiry upended the infamous “Whiskey Ring.”4 The investigation ultimately led to indictments of ∗ J.D. Candidate, December 2018, University of Baltimore School of Law; M.P.S., Paralegal Studies, May 2010, George Washington University; B.S., Administration of Justice, May 2005, George Mason University.
    [Show full text]
  • THE PRESIDENT and the INDEPENDENT COUNSEL, 86 Geo. L.J. 2133
    THE PRESIDENT AND THE INDEPENDENT COUNSEL, 86 Geo. L.J. 2133 86 Geo. L.J. 2133 Georgetown Law Journal July, 1998 Symposium: The Independent Counsel Act: From Watergate to Whitewater and Beyond Contribution Brett M. Kavanaugh a1 Copyright (c) 1998 by the Georgetown Law Journal Association; Brett M. Kavanaugh THE PRESIDENT AND THE INDEPENDENT COUNSEL TABLE OF CONTENTS INTRODUCTION 2134 I. BACKGROUND 2138 A. THE CURRENT LEGAL SCHEME 2138 1. The Policy Justification for a Special Counsel 2138 2. Two Statutory Mechanisms for Appointment of Special 2139 Counsels B. ARE OUTSIDE FEDERAL PROSECUTORS EVER 2140 NECESSARY? 1. An Illusory Debate 2140 2. The Deeply Rooted American Tradition of Appointing 2142 Outside Federal Prosecutors 3. Outside Federal Prosecutors are Necessary in Some Cases 2145 II. IMPROVING THE SYSTEM 2145 A. APPOINTMENT AND REMOVAL OF THE SPECIAL 2146 COUNSEL 1. Appointment of the Special Counsel 2146 2. Removal of the Special Counsel 2151 B. THE CIRCUMSTANCES UNDER WHICH A SPECIAL 2152 COUNSEL SHOULD BE APPOINTED C. JURISDICTION 2153 D. REPORTS 2155 E. INVESTIGATION AND PROSECUTION OF THE 2157 PRESIDENT F. THE PRESIDENT'S PRIVILEGES 2161 1. Non-Constitutional Executive Privileges 2163 2. Constitutionally Based Executive Privileges 2166 3. The Relevance of Nixon to a Claim of Governmental Attorney- 2172 Client or Work Product Privilege 4. The Policy of Executive Privileges 2173 CONCLUSION 2177 *2134 INTRODUCTION Officials in the executive branch, including the President and the Attorney General, have an incentive not to find criminal wrongdoing on the part of high-level executive branch officials. A finding that such officials committed criminal wrongdoing has a negative, sometimes debilitating, impact on the President's public approval and his credibility with Congress—and thus ultimately redounds to the detriment of his political party and the social, economic, military, and © 2018 Thomson Reuters.
    [Show full text]
  • Observations on the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel*
    WEARING A BULL'S EYE: OBSERVATIONS ON THE DIFFERENCES BETWEEN PROSECUTING FOR A UNITED STATES ATTORNEY'S OFFICE AND AN OFFICE OF INDEPENDENT COUNSEL* Roscoe C. Howard, Jr.** The servants of the nation are to render their services without any taking of presents. The disobedient shall, if convicted, die with- out ceremony. Plato1 I. INTRODUCTION Public servants respond to a higher calling. In deciding to enter public service, individuals agree to forsake personal rewards, to ignore the personal pleas of friends, acquaintances, and special in- terests, and to work for the common good of the community. Federal public servants work for the good of the entire nation, not for the individual interests of a person or a narrow constituency. When a public servant ignores an oath to uphold and abide by * © Roscoe C. Howard, Jr., 1999. All rights reserved. ** Professor of Law, The University of Kansas. A.B., Brown University, 1974; J.D., University of Virginia, 1977. Professor Howard is a former Assistant United States At- torney for the District of Columbia and the Eastern District of Virginia, as well as a former Associate Independent Counsel under the Honorable Arlin M. Adams, investigat- ing former Secretary of Housing and Urban Development Samuel R. Pierce, Jr., and under the Honorable Donald C. Smaltz, investigating former Secretary of Agriculture A. Michael Espy. Professor Howard would like to thank his law faculty colleague, Michael Kautsch, for his contributions to this Article, and his former prosecutorial colleague, Barry Coburn, for sharing some of his observations on prosecuting in the offices dis- cussed in this Article.
    [Show full text]