The story of independent prosecutors over the past half-century is a harrowing one in which the nation has never found a lasting, apolitical means to hold rogue presidents or other senior officials to account.
During Watergate, President Richard M. Nixon was initially investigated by Archibald Cox, a special prosecutor appointed by the Justice Department. But because the special prosecutor ended up working for the Attorney General, he was not truly independent, as Nixon showed by ordering Mr. Cox’s firing in 1973 in what became known as the Saturday Night Massacre. Under pressure, Nixon agreed to appoint a successor, Leon Jaworski, a hard-line prosecutor who uncovered the secret tapes that led to the president’s resignation.
In 1978, hoping to protect future prosecutors from Mr. Cox’s fate, Congress created the independent attorney, an official who would be more autonomous. When an attorney general determined that credible allegations against a president or other senior official should be investigated, an independent attorney was selected by a panel of three judges. Such a prosecutor had more discretion, was required by law to report possible presidential impeachment offenses to Congress, and could only be fired by the attorney general for “good cause” or disability.
In the end, neither party was too happy with the independent legal structure, believing it was a blank check that led to endless investigations. Republicans were angered by Lawrence Walsh, the independent attorney who investigated President Ronald Reagan and the Iran-Contra affair. Democrats were disillusioned with Ken Starr, whose Whitewater inquiry turned into Mr Clinton’s impeachment for lying under oath about an affair with a former White House intern, an investigation later closed by Mr Ray.
By the end of Mr Clinton’s term in office, seven independent attorneys were investigating him or his top officials, and the law was phased out in 1999 by the Attorney General and therefore less likely to stray too far.
But the experience of Robert S. Mueller III, the special counsel investigating Mr. Trump’s campaign for links to Russia, also underscored the weakness of that structure for many. Since a special counsel reports only to the Attorney General, it still falls to the Presidential Agent to decide on legal action.
Based on a long-standing opinion by the Department of Justice that a president cannot be prosecuted while in office — a ruling made under two presidents who have faced allegations, Nixon and Mr. Clinton, and never tested in court — Mr. Mueller chose not to say whether he thought Mr. Trump had committed obstruction of justice, even though his final report included evidence the President had.