Historical Analysis Reveals Key Differences Between Pre- and Post-Watergate Special Counsels

In 2024, as part of research on the Jack Smith case, a comprehensive corpus of primary sources about special counsels before Watergate was compiled. Much of this research was previously unassembled and presented novel insights into historical legal practices.

This work has now been published in the South Texas Law Review under the title "A Historical Record Of Special Counsels Before Watergate."

Article Abstract and Key Findings

The article presents a corpus of primary sources written by Presidents, Attorneys General, U.S. Attorneys, Special Counsels, and others between the 1850s and the 1950s. These sources were drawn from more than a dozen archives to provide a clearer legal account of how Special Counsels were retained by Attorneys General under six presidential administrations:

• James Buchanan
• Andrew Johnson
• Ulysses S. Grant
• James A. Garfield
• Theodore Roosevelt
• Harry S. Truman

During these administrations, Attorneys General retained outside lawyers as Special Counsels for two primary purposes:

1. To assist a U.S. Attorney with prosecutions
2. To assist the Attorney General with an investigation

Crucially, in none of these cases did the Attorney General delegate the powers now claimed by modern special counsels—specifically, all the powers of a Senate-confirmed U.S. Attorney.

The 1924 Teapot Dome Exception

One notable exception occurred in 1924 during the Coolidge Administration. Congress enacted legislation establishing Senate-confirmed Special Counsels to prosecute defendants in the Teapot Dome Scandal. These Special Counsels were granted "total independence."

However, this arrangement may conflict with the Supreme Court’s modern separation of powers jurisprudence, raising questions about its constitutional validity today.

Pre- vs. Post-Watergate Special Counsels: A Clear Divide

The article argues that the positions of special counsels in the post-Watergate era are not analogous to those in the pre-Watergate era. This historical record does not support the modern, post-Watergate special counsel model, particularly regarding the vast powers they are purportedly vested with.

The issue of the special counsel has temporarily faded from public discourse, but the research is expected to provide valuable context when the topic resurfaces.