Andrew Coan is a law professor at James E. Rogers College of Law, the University of Arizona. He teaches constitutional law, civil procedure, and related subjects. He recently published “Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law,” and our interview is largely about this book.
My questions are in bold; his answers are in plain text.
What were you like as a teenager, and what were your interests?
I was a pretty serious high school debater as a teenager. That took up a lot of my time and really dominated my interests. I also liked movies and music, and I played a little bit of guitar (not at all well).
What drew you to debating?
Partly it was a competitive outlet for me. I wasn’t any good at sports, but I was a very competitive kid, and debate gave me an outlet for that. I also loved learning about new subjects related to public policy and politics, which had interested me from a very young age. Debate gave me a chance to do that in a serious way, and I got deeper and deeper into it as my high school years went on. That’s probably part of the explanation for my ultimate career choice. Unsurprisingly, a lot of debaters go on to become lawyers.
When did you become interested in studying special prosecutors?
I started to think seriously about special prosecutors as a research project in February of 2018. I had already been interested in many of the constitutional questions that come up in special prosecutor investigations as part of my broader interest in the structural side of constitutional law: separation of powers, federalism, and the like. And as the Robert Mueller investigation picked up steam, more and more people in my daily life started to ask me questions about it. I got the sense that there was a hunger among lawyers but especially among ordinary people to understand special prosecutors. There was a lack of basic understanding about what special prosecutors are, how they work, and what types of legal issues arise in their investigations. In particular, the people I talked to were curious how an official who looks so weak on paper could hope to hold the most powerful man in the world accountable. They were also curious how we as a country came to entrust such a subordinate official with such an awesome responsibility. I did a little bit of digging, and it turned out that no one had written a book about special prosecutors for a general audience. So I decided to do it myself.
It makes sense that you said you were aiming “Prosecuting the President” towards a general audience. That was my impression reading the book, as I felt that similarly nerdy kids at my high school could have appreciated it as much as adults.
I’m glad to hear that you found the book clear and accessible, because I really hoped that high school students would be able to appreciate it, and I had myself as a high school student in mind when I pictured the target reader.
You wrote a Wall Street Journal article about a month ago on how the Whiskey Ring and Teapot Dome Scandals are more representative of the special counsel’s role than Watergate. For people who haven’t read the article, why is that your position?
When people think of special prosecutors, the most recent examples are the ones that spring most immediately to mind. The Watergate investigation is far and away the most famous special prosecutor investigation in United States history because it’s the only one that brought down a sitting president. A broader look at the history reveals that Watergate was, in important respects, the exception rather than the rule.
There have been special prosecutor investigations, as I explain in the book, dating all the way back to 1875, when Ulysses S. Grant appointed the first special prosecutor in U.S. history to investigate the St. Louis whiskey ring. Most of those investigations have stopped well short of raising serious allegations of criminal misconduct against the president himself, and in some cases that’s because the president clearly wasn’t involved in criminal wrongdoing. But it’s also a reflection of the fact that the President has very formidable tools for defending himself and his allies against special prosecutor investigations. Special prosecutors are, for better or worse, relatively weak from an institutional standpoint. They are appointed by the President or by the Attorney General, who serves at the pleasure of the President. They can also be fired by the Attorney General at the President’s direction. It’s a big task for an official in that position to try to hold the President and his inner circle accountable. Basically, special prosecutors are charged with investigating their ultimate boss.
If the history of special prosecutors teaches us anything, it’s that special prosecutors are incapable of saving the American people themselves. Their real power stems from their ability to raise the visibility of allegations of serious misconduct against the President or the President’s inner circle. In this way, special prosecutors give the American people an opportunity to insist on a thorough investigation and, if the evidence warrants it, to insist that Congress hold the President accountable by beginning impeachment proceedings. But all of that really depends on the American people stepping up and maintaining political pressure in response to the special prosecutor’s investigation. And there are all kinds of factors working against special prosecutors when they try to focus the public’s attention for a sustained period of time.
The public’s role in forcing accountability was a striking theme in your book. When in your research did you realize the importance of this theme?
That was in my head from pretty early on, in part because of my familiarity with some of the recent constitutional controversies surrounding special prosecutors. In 1978, immediately after the Watergate scandal, Congress passed a law called the Ethics in Government Act that created a super-strong statutory special prosecutor who could not be easily removed by the President. That statute remained in effect for twenty years before it was allowed to expire after the impeachment proceedings against Bill Clinton. The institution of the independent counsel, which is what special prosecutors were called under this statute, created a lot of constitutional controversy. Presidents argued that an independent counsel who could not be immediately removed by the President was a kind of headless fourth branch of government, unaccountable to anybody, and that this was impermissible under Article II of the Constitution. The Supreme Court disagreed in a case called Morrison v. Olson, which is taught in every first-year constitutional law school class. But after the Clinton impeachment proceedings and the Iran-Contra scandal, many people on both sides of the political spectrum thought independent counsels had too much power. So they allowed the Ethics in Government Act to expire and replaced it with a regulatory special counsel who could more easily be fired by the President. The hope was that this would create a better balance. Special prosecutors who abused their power could be fired by the President but any President who fired a special prosecutor without a good reason would have to answer to the American people. Robert Mueller’s investigation is the first significant test of these regulations.
How did teaching Morrison and other landmark Supreme Court cases make you better equipped to write “Prosecuting the President”?
The second half of my book is organized around a series of big constitutional questions that arise in special prosecutor investigations. And virtually every one of those questions is one that I teach my students about in their first-year survey course on constitutional law. I’ve been teaching this class for over ten years, and there’s nothing that forces you to learn a subject more deeply than teaching it to a group of smart and eager students. So it’s been a great privilege to spend my career batting around constitutional questions with some fantastic law students. I learn a tremendous amount when I teach constitutional law, and many of the ideas that appear in the second half of this book originated in discussions with my students.
What was the most surprising thing that you learned in the course of researching this book?
I think the single most shocking episode I discovered was when Ulysses S. Grant actually testified as a character witness on behalf of his chief of staff, Orville Babcock, during the St. Louis Whiskey Ring investigation. What makes this truly remarkable is that the President of the United States is the head of the executive branch, and when the President appoints a special prosecutor to investigate a scandal like the St. Louis Whiskey Ring, he is delegating the law enforcement authority of the United States and his own Department of Justice to an outside investigator. He is charging that investigator with getting to the bottom of a potential crime. And when the special prosecutor that Grant appointed to investigate the whiskey ring brought criminal charges against a member of Grant’s inner circle, on behalf of the United States government, Grant actually stepped in and offered testimony as a character witness for the defense. In other words, he testified against the prosecution which was taking place in his own name. In doing so, he effectively scuttled the prosecution of his chief of staff just as effectively as if he had shut down the investigation. So that was a very striking episode, all the more so because Ulysses S. Grant has a well-earned reputation for being a personally honest man, one who was thoroughly upright in his own dealings. But he was a truly awful judge of character in his picking his subordinates and in sticking by them, well past the point where they ought to have lost his trust.
Now that you’ve researched special counsels so deeply, what are some annoying or egregious misconceptions that you hear about the Mueller investigation?
One misconception about the Mueller investigation which, of course, the President himself and many of his close associates and allies in the media have very deliberately sought to propagate, is that Robert Mueller is running some kind of political witch hunt. Historically this has been an extremely common charge. Virtually every President who has been investigated by a special prosecutor has directly – or more commonly indirectly – sought to discredit the investigation. Trump has gone significantly further in that attempt than previous presidents. He’s been personally much more vocal and vituperative in his attacks. But this is a long-running theme in the struggle between presidents and the special prosecutors who investigate them, and it’s one that has almost always functioned as a tool of presidential propaganda, rather than being grounded in the facts. There are some isolated individual examples of special prosecutors who have abused their power, or who have carried out their functions so incompetently as to give rise to good cause for their removal. Harry Truman’s special prosecutor, Newbold Morris, is maybe the best example in that latter category. But by and large, over the course of American history, special prosecutors have behaved themselves ethically and responsibly. If there’s been any problem with special prosecutors, it’s that they’ve been too weak and too susceptible to attack by presidents and their allies. Based on publicly available evidence and the flimsiness of the charges the President and his political allies have leveled against the Mueller investigation, I think the most pervasive and the most pernicious misconception about the Mueller investigation is that it’s some kind of political hit job, as opposed to a serious and thorough investigation by highly experienced prosecutors of some very serious allegations.
Special prosecutors are usually authorized to bring criminal charges. Back in 1924, though, Owen Roberts was able to bring both civil and criminal charges. Would this authorization be possible under the current regulations?
It would but only if the Attorney General specifically authorized it, which Acting Attorney General Rod Rosenstein did not do when he appointed Robert Mueller. That’s not surprising under the circumstances. It just wouldn’t make nearly as much sense for Mueller to be authorized to bring civil actions as it did in the case of the Teapot Dome investigation. There, the prosecutors were charged with investigating a bribery scandal, which culminated in a couple of extraordinarily valuable and fraudulent oil leases. Had those leases been allowed to remain in force, they would have transferred billions of dollars in oil wealth from the American people to private interests. So it was very important that the special prosecutors be empowered to challenge those leases, to prevent the central perpetrators of the conspiracy from escaping with their ill-gotten gains. There isn’t really a comparable need for special prosecutor Robert Mueller to bring civil actions in the present case.
What is the difference between a special prosecutor and a special counsel?
The terms “special prosecutor” and “special counsel” are essentially interchangeable. Both of them have been used at various points over the course of American history, and both mean the same thing. Robert Mueller’s formal title under the current regulations is “special counsel” rather than “special prosecutor.” But “special prosecutor” is the generic term for any outside prosecutor appointed to investigate the President and his inner circle. “Independent counsel” is another term you sometimes hear in this context, which refers specifically to the super-strong statutory special prosecutors who were appointed under the Ethics in Government Act that was in force from 1978 to 1998. “Independent counsel” is therefore not interchangeable with “special counsel” and “special prosecutor,” thought it is occasionally used in that way.
If you had written the special counsel regulations back in 1999, how would they look different from what we have now?
I’m not sure whether it would look different if I had written it in 1999, but there are some changes that I would make to it today. Probably the most important change would be to require a much more robust public report of the special prosecutor’s findings than is currently required under the regulations, at least in investigations involving the President, who cannot be charged with a crime. I would also require a more robust reporting of the special counsel’s findings to both the majority and the minority leadership in Congress. And I would explicitly make the evidence underlying the special counsel’s findings, including the grand jury materials, available to the minority and majority leadership in both houses of Congress. I would do this to avoid the real risk we’re facing today, which is that the special prosecutor’s findings about the President could be suppressed by the Attorney General quite effectively. Congress has some tools to pry those materials out of the Attorney General’s hands, but efficacy of those tools is very much an open question, and Congress’s entitlement to access the report and the public’s entitlement to access the report are largely left to the discretion of the Attorney General under the current set-up. I think that is a potentially very dangerous situation. The best defense of the current regulations is that political pressure will force the Attorney General to release the special counsel’s findings when they are of intense public interest. But I would be much more confidence of this if the regulations themselves explicitly required publication of the special counsel’s report.
If a lot of people rally around the changes you suggest, what would the amendment process look like for these regulations?
The Attorney General has the authority to amend those regulations at any time, and he can do so on his own authority. But the new Attorney General, William Barr, has displayed no inclination to modify those regulations or to expand the public’s or Congress’s entitlement to the special prosecutor’s report beyond what is provided in the current regulations. In fact, at his confirmation hearing, he repeatedly indicated that his willingness to make the special prosecutor’s findings public or to make them available to Congress would be constrained by the existing Justice Department regulations, including the special counsel regulations but also a variety of other regulations that govern the confidentiality of internal prosecutorial documents and memoranda. So I think that the prospect of the Justice Department amending the current regulations under the current president’s watch is pretty low.
Congress could also step in and require various disclosures of the kind that I have just advocated by statute. That statute could be challenged in the courts, but I think it’s pretty clear that Congress has the authority to institute a robust set of disclosure requirements if it chooses to do so. I’m not holding my breath on that front either, though, because the Republican leadership of the Senate is unlikely to allow that proposal to come to a floor vote, even if it had the support of a majority of senators. Even in the unlikely event that both houses of Congress pass that sort of proposal, which has actually been drafted in the Senate, it would be subject to a presidential veto. It’s virtually impossible to imagine a two-thirds majority of both houses of Congress voting to override such a veto in these circumstances.
One thing I learned from your book is that special counsels have to comply with the legal opinions of the Office of Legal Counsel. I don’t mean to impugn the independence of lawyers in the OLC, but what stops a president from installing his own lackeys there to write opinions that stifle the special counsel’s mission?
Part of what prevents that is a long tradition of legal independence at the Department of Justice in general and at the Office of Legal Counsel in particular. Among other things, that tradition consists of a set of cultural norms which have been absorbed by the tenured civil servants, who constitute the vast majority of lawyers working in the Justice Department. Only the top level of the Justice Department, or any other federal department, consists of political appointees of the President. And those appointees have to work with a staff which in many cases will not be particularly loyal to any given administration but will be loyal to the longstanding cultural norms of their department. Any political appointee who is interested in pushing the envelope also has to think about the political costs of taking steps that suggest the President has something to hide.
Apart from “Prosecuting the President,” which books do you recommend for people who want to learn more about special prosecutors?
The memoir written by Richard Ben-Veniste and George Frampton of the Watergate task force, which is called “Stonewall,” is a really excellent inside account of the Watergate investigation.
“Final Days,” written by Washington Post reporters Bob Woodward and Carl Bernstein is a great account of the Watergate investigation from inside the White House. It’s much less famous than “All the President’s Men,” which recounts Woodward and Bernstein’s initial breaking of the Watergate story, but in many ways, I think “Final Days” is a more interesting, a more gripping, and a more dramatic book. It provides a great sense of the way a special prosecutor investigation affects decision-making in the executive branch. So those are two of the best. I also think that Ken Gormley’s biography of Archibald Cox, the first Watergate special prosecutor, is a really good one. Gormley’s book on Ken Starr’s investigation of Bill Clinton is another good one.
Benjamin Wittes’s book, “Starr: A Reassessment,” is also very good. It offers a revisionist portrait of Kenneth Starr, whose reputation was very badly tarnished at the end of the Watergate scandal. Wittes quite effectively demonstrates that many of the popular perceptions of Ken Starr at the end of the Clinton impeachment saga were overblown or otherwise inaccurate. He’s not by any means uncritical of Ken Starr but offers a really nuanced and intelligent take on the Ken Starr investigation, which serves as a useful corrective to the conventional historical narrative of that particular case.
But there really isn’t a whole lot written about special prosecutors for a general audience. And apart from Prosecuting the President, there is no other book taking a comprehensive look at the role of special prosecutors in American politics. This is really what motivated me to write the book.
You’re soon releasing another Supreme-Court-related book called “Rationing the Constitution.” What’s that about?
“Rationing the Constitution” is about Supreme Court decision-making in constitutional cases, and in particular, about the Court’s limited capacity. Its central thesis is that the Supreme Court is capable of deciding only a tiny fraction of the constitutional issues generated by the United States government in any given year. This limited capacity, I argue in the book, shapes and constrains the Court’s constitutional decision-making in profound ways. The most important is that it effectively requires the Court to defer the vast majority of constitutional questions to other institutional actors, such as the President and Congress, as well as state governments. For instance, on most questions involving the division of power between the federal and state governments, the Supreme Court is compelled to defer to Congress, even though it’s Congress’s own power that is at issue in these cases. Most questions about the permissibility of government discrimination of various kinds are left to the federal government and the states to answer, because the universe of possible unconstitutional discrimination is so much vaster than the Supreme Court could possibly review. The same goes for the boundaries of personal autonomy and individual liberty.
This, I think, is a really striking picture of the way that American constitutional law functions and the Supreme Court’s role in American society. It will certainly be counterintuitive for most Americans, who think of the Supreme Court as the ultimate authority on constitutional questions. But as I try to show in the book, my thesis is supported by ample historical evidence across many of the most important areas of constitutional law, including federalism, separation of powers, and individual rights. And that thesis has very important implications for some of the biggest and most controversial questions about the Supreme Court’s role in American democracy.
The biggest lesson or take-away from the book is that, in many of the cases where people might want the Supreme Court to do more, it simply lacks the capacity to do so. “Ought” implies “can.” To argue that the Supreme Court ought to do more implies that it can do more. But in fact, in many of the most important domains of American constitutional law, this is just not the case. For this reason, concerns about the Supreme Court taking over American democracy are wildly overblown. In any individual case, there might well be room for debate about whether the Court has overstepped its bounds or whether it should have left a particular question to the democratic process. But sweeping claims about judicial tyranny, which you hear from the Court’s critics on both ends of the political spectrum, have very little foundation in reality. The Court simply lacks the capacity to review more than a tiny fraction of the constitutional questions generated by the American government, making it effectively impossible for the Court to assert the kind of sweeping authority that some of its critics worry about.
The last big takeaway is that advocates of an expanded judicial role should be careful what they wish for. Often, when the Court does take on a bigger role, its limited capacity compels it to do so in the form of really crude categorical rules, which are at best a very rough proxy for the underlying constitutional principle that the Court is seeking to vindicate. Where this is the case, the Court may well do best by doing nothing at all.
It seems pretty straightforward why you wrote “Prosecuting the President,” as special counsels are on the forefront of the national conversation. Why did you want to write “Rationing the Constitution”?
It’s a culmination of the work that I’ve been doing as a law professor over the course of ten years. In a much more direct sense than “Prosecuting the President,” “Rationing the Constitution” grew out of my teaching. As I taught the first-year constitutional law course, it increasingly dawned on me what a large fraction of the most important constitutional questions the Supreme Court was deferring to other branches of government, and how small the Court was relative to the institutions whose output it is routinely called upon to review. I gradually put these ideas together and read more widely about the institutional structure of the Court. Through conversations with my students over a period of years, I began to develop the theoretical model of Supreme Court decision-making which I lay out in the book and apply to many of the most important questions in American constitutional law.
When does this book come out?
This book will be out from Harvard University Press in the end of April. It’s not quite as accessible as “Prosecuting the President” – it’s definitely an academic book. But I think some of your readers are probably big enough Supreme Court geeks (a term of approbation in my book!) that they might enjoy it.
Other interviews conducted by Anna Salvatore: UChicago law professor Justin Driver, SCOTUSblog founder Tom Goldstein, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes.