A Historical Record Of Special Counsels Before Watergate

In 2024, as part of my research on the Jack Smith case, I compiled a corpus of primary sources about special counsels before Watergate. Much of this research was novel and had not been assembled before.

I have now published this article in the South Texas Law Review. It is titled, “A Historical Record Of Special Counsels Before Watergate.”

Here is the abstract:

This Article presents a corpus of primary sources that were written by Presidents, Attorneys General, United States Attorneys, Special Counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account showing how Special Counsels were retained by Attorneys General under Presidents Buchanan, Andrew Johnson, Grant, Garfield, Theodore Roosevelt, and Truman.

During these six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: (1) to assist a U.S. Attorney with prosecutions, or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a Special Counsel, and then delegate to him the powers now claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. Attorney.

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome Scandal defendants. These Special Counsels were afforded “total independence.” It is doubtful that these positions would be consistent with the Supreme Court’s modern separation of powers jurisprudence.

This practice shows that the positions of special counsels in the post-Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with.

The issue of the special counsel has fallen to the wayside for the moment, but I suspect this article will prove useful at the appropriate time.