3 investigations and 2 words no president wants to hear

Editor’s Note: This story originally published on January 14, 2023. It has been updated to reflect new developments.

Three separate investigations and two words that no president ever, ever wants to hear: special counsel.

These are the independent lawyers appointed, usually by attorneys general, to look, without conflict of interest, into actions involving the president or his administration. While you might have forgotten their names, you’re familiar with their work.

Watergate. Iran-Contra. Whitewater. The Russia investigation. Teapot Dome.

Other investigations include inquiries into the George W. Bush administration’s leak of the identity of an undercover CIA agent whose husband questioned intelligence about Iraq, the government’s ultimately deadly siege of the Branch Davidian compound and Jimmy Carter’s peanut business.

Note that I’m including special counsels, special prosecutors, independent counsels and independent prosecutors here. A law that authorized independent prosecutors or independent counsels, who had more autonomy from the Department of Justice, lapsed in 1999 after high-profile and expensive inquiries during the Reagan and George H.W. Bush administrations into the Iran-Contra affair and during the Clinton administration into Whitewater. In the years since, the Department of Justice has adopted regulations to enable to the attorney general to call up a special counsel when needed.

Since Carter, only Barack Obama has emerged from the White House without having a special counsel or special prosecutor look at his administration. See lists of these investigations compiled by the A-Mark Foundation and The Washington Post.

Three special counsels

Now, there are three special counsels active at the same time. One, Jack Smith, is looking into the multiple investigations involving former President Donald Trump, ranging from his effort to overturn the 2020 election to his alleged handling of classified data and stonewalling that led the FBI to search Mar-a-Lago last summer. Trump has since been indicted in both cases and pleaded not guilty.

Robert Hur, appointed in January, is assessing what should happen as a result of classified documents being found both in a Washington, DC, office used by President Joe Biden following his vice presidency, and locked up in the garage at his Wilmington, Delaware, home, where he also keeps his Corvette.

And now, David Weiss, the US attorney for Delaware, has been elevated to special counsel in the investigation into the business dealings of Hunter Biden, the president’s son.

Both Biden and Trump’s teams have denied wrongdoing.

Appointed to previous jobs by Republicans

Weiss was appointed by Trump in 2018, and has led the investigation into Hunter Biden for potential felony tax evasion, illegal foreign lobbying, money laundering and other possible crimes. This week, he requested to be elevated to a special counsel following the breakdown of plea talks between his team and Hunter Biden after a hearing last month in Delaware, where the judge said she wasn’t ready to accept the complex plea deal that was negotiated.

All of Hur’s previous appointments to official positions have come during Republican administrations, including his appointment to be US attorney in Maryland by Trump. He served as law clerk for federal judges appointed by former President Ronald Reagan, including the late Supreme Court Chief Justice William Rehnquist. He once held a top position as an assistant to current FBI Director Christopher Wray, also a Trump appointee, but one who has been criticized by Trump. As US attorney in Maryland, he oversaw a corruption case where Baltimore’s former Democratic mayor was sentenced to prison for three years following a children’s book scandal.

A history of prosecuting politicians

Smith, who is coordinating Trump investigations, worked at the Justice Department during the Obama administration. While at the public integrity unit of the Justice Department, Smith was involved in the decision to prosecute former Virginia Gov. Bob McDonnell, a Republican who was convicted of corruption, although the Supreme Court later vacated the conviction. He was also involved in the failed prosecution of former Sen. John Edwards, a Democrat.

Special counsels still report to the attorney general

There are some important distinctions in terms of what kind of power a special counsel has. Between 1978 and 1999, as part of an ethics in government law, the attorney general could ask a three-judge panel to appoint an independent prosecutor with near total authority to bring charges. Read more from the Congressional Research Service.

More recently, attorneys general have appointed special counsels, who have some autonomy, but still ultimately report to the attorney general. That chain of command was abundantly clear when Trump’s attorney general William Barr slow-walked the release of special counsel Robert Mueller’s report on the Russia investigation in a way that seemed beneficial to Trump.

Thus, it’s Merrick Garland, or his successors, who will ultimately decide what to do with the findings by Smith, Hur and Weiss.

CORRECTION: This story has been updated to clarify that Weiss was appointed by Trump and subsequently led the investigation into Hunter Biden. It also has been updated with additional developments.

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