Special Counsels and “Who Knew What When”

Special counsel.

Independent counsel.

Special prosecutor.

They all essentially mean the same thing. And these are ominous words in Washington.

Such was the case this week when House Judiciary Committee Chairman Lamar Smith (R-TX) wrote to President Obama, demanding he appoint a special counsel to investigate Attorney General Eric Holder.

Smith asserts that Holder testified to Congress in May that he had only recently learned about Fast and Furious. Fast and Furious is the codename of a now-disparaged Justice Department program to trace how drug lords smuggled firearms into the U.S. from Mexico. Many of the weapons wound up in the hands of gangs and are believed to have killed more than 200 Mexicans, including a U.S. border agent.

“I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks,” Holder said at the hearing. But Smith contends documents prove Holder knew about it long before the hearing. This is why Smith is calling for a special counsel to probe Holder.

“There is a conflict in regard to what (Holder) knew and when he knew about Fast and Furious,” said Smith in an interview. “But we’re not going to get there with the Department of Justice investigating itself.”

“What” Holder “knew” and “when” Holder “knew” it.

Smith’s use of this particular pronoun-verb-adverb-verb sequence invokes one of the most renowned grammatical constructs in political rhetoric. It’s a nod to former Sen. Howard Baker (R-TN) and his classic interrogatory “What did the President know and when did he know it?” during Watergate. Of course, Watergate prompted the quintessential inquiry (with nods to graphic novelist Alan Moore) of “Who watches the watchmen?” And in that case, the question centered around a special prosecutor named Archibald Cox.

During the summer and fall of 1973, the Nixon Administration tangled with Federal Judge John Sirica over releasing secret audiotapes connected to Watergate. Sirica thought he had brokered a compromise with the Nixon White House over how to release the recordings. But Cox rejected that plan. On the night of October 20, 1973, President Richard Nixon ordered Attorney General Eliot Richardson to fire Cox as special prosecutor.

Richardson refused and resigned. Next in line was Deputy Attorney General Bill Ruckelshaus. He too declined and stepped aside. Nixon then asked Solicitor General (and later failed Supreme Court nominee) Robert Bork to remove Cox, which he did.

This historic series of events became known as the “Saturday Night Massacre.” In the coming years, it prompted Congress to better inoculate special prosecutors from political pressure and avert a repeat performance of a president baldly firing the primary auditor of his administration.

Following Watergate, Congress crafted a statute which created a “special prosecutor” or “independent counsel” to investigate certain government officials when events warranted. A panel of judges from the U.S. Court of Appeals for the District of Columbia would appoint the independent counsel. However, the attorney general could fire him or her.

In 1994, Attorney General Janet Reno appointed Robert Fiske as “special prosecutor” to probe President Clinton’s Whitewater land deal and the peculiar death of Deputy White House Counsel Vincent Foster.

Upon the completion of Fiske’s report about Whitewater, the law changed. Such investigators would now be called “independent counsels.” And in 1994, DC Circuit Judge David Sentelle removed Fiske and appointed Ken Starr as independent counsel to continue the probe of the Clinton White House.

Starr’s inquiry stretched for many years, culminating in his investigation of the president’s affair with Monica Lewinsky and impeachment.

After the tumultuous Starr inquiry, few had appetite to renew the law which created the Office of Independent Counsel at the Justice Department. Officials terminated the office in 1999 and created something slightly different: The Office of Special Counsel.

This office falls under the aegis of the Justice Department and such counsels essentially function as a US Attorney. Special counsels operate within the Department of Justice but do not report to the attorney general or any political appointee. This makes them truly independent and, conceivably, eliminates the problem Archibald Cox had with President Nixon.

Current law allows the attorney general to appoint a special counsel to conduct investigations. In this case, since Eric Holder is in the spotlight, Lamar Smith is calling on President Obama to authorize a special counsel.

The most prominent recent examples of an administration granting a special counsel include Patrick Fitzgerald’s inquiry into the Valerie Plame affair and the politicization of U.S. Attorneys.

So far, the Obama White House isn’t taking Smith’s request for a special counsel very seriously.

“I think it’s been a bi-annual call for a special counsel by this particular Congressman once every six months,” said White House spokesman Jay Carney. He added that Mr. Obama “has great confidence” in Holder.

Smith fired back at Carney.

“There seems to be an epidemic of administration officials getting the facts wrong. In the past four years, I have made three requests—including the one yesterday–for a special counsel. That’s not bi-annual,” Smith said in a statement. “If the Obama Administration would stop stonewalling and misleading Congress, I wouldn’t have to call for a special counsel.”

So the phrase “special counsel” has returned to the Washington vernacular. One wonders what the consequences are when people are bandying that title about as the nation creeps closer to an election year.

Few Democrats appear to view Smith’s request for a special counsel as a political threat. No Congressional Democrats have accused Smith of a “witch-hunt” or of a “smear campaign” to tarnish the attorney general. That could come. But so far, there is nothing but reticence.

For his part, Lamar Smith remains suspect of Holder.

“The Department of Justice has been non-responsive to our requests for information,” Smith said. “If they’re going to act like that, it makes you wonder if frankly, they might be hiding something.”

The Justice Department denies Smith’s assertion. So who is telling the truth?

“Who watches the watchmen?” is the question.

Can the Justice Department investigate itself? Is a “special counsel” sufficiently free of political pressure in the post-Watergate era? Can a Republican-led House adequately investigate a Democratic administration?

These are questions which reverberate through all discussions about hiring special counsels. Especially when the conversation turns to what someone knew and when they knew it.