How should a democracy balance the need for independent investigations of government wrongdoing with the president’s constitutional authority over prosecutions? Where do we draw the line?

In this episode of This Constitution, hosts Savannah Eccles Johnston and Matthew Brogdon dig into the fascinating and often murky world of special counsels. From their origins in President Grant’s efforts to distance himself from scandals, to the dramatic moments of the Watergate era and the "Saturday Night Massacre," the history of special counsels is anything but straightforward.

They break down the creation of independent counsels under the Ethics in Government Act of 1978, a powerful legal framework that was later undone by high-profile investigations like Iran-Contra and the Clinton impeachment. Fast forward to today, and the special counsel role has become a battleground for constitutional debate, raising tough questions about who holds the power to fire them and when.

Matthew makes a compelling argument for why prosecutorial power must remain politically accountable, warning against a future where legal battles spiral beyond the courts’ control. They wrap up the episode with a powerful reminder to rethink our reliance on legally ambiguous mechanisms and consider the Constitution’s built-in safeguards, like impeachment, as a much-needed check on power.

Tune in for an eye-opening dive into the constitutional tension between justice and executive authority.

In This Episode

• (00:15) Topic Introduction and definition of special counsels
• (01:16) Historical origins: Grant and Roosevelt
• (01:57) Watergate and Nixon: The rise of controversy
• (03:37) The Saturday night massacre
• (06:03) Aftermath of Watergate: Impeachment and resignation
• (07:14) Constitutional issues: Executive power and accountability
• (09:53) The Ethics in Government Act of 1978
• (11:31) Independent counsel vs. special counsel: Key differences
• (12:44) Scope and jurisdiction of independent counsel
• (14:35) Controversies: Iran-Contra and Whitewater
• (15:05) Supreme Court and Morrison v. Olson
• (17:20) Problems with removal and accountability
• (20:48) Expiration of the independent counsel statute
• (25:38) Return to special counsels: DOJ regulations
• (26:52) The Mueller investigation and modern special counsels
• (29:12) Removal and oversight of special counsels
• (31:51) Unresolved constitutional questions
• (33:23) Political vs. legal controls: Impeachment and accountability
• (37:38) Checks and balances: Political structure vs. legal process

Notable Quotes

• (09:07) "The prosecutorial power is a very dangerous power. Even if you can't get a conviction, to bring an indictment and to pursue a prosecution against someone can ruin their life." — Matthew Brogdon

• (12:26) "The independent counsel has, quote, full power and independent authority to exercise all investigative and prosecutorial functions and powers of The Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." — Matthew Brogdon

• (34:09) "I think the founding generation expected the impeachment power to be a far more widely utilized power. That's been extremely rare. And I think we've actually underutilized it." — Matthew Brogdon

• (37:43) "Checks and balances work best when you lean into their political structure. They're inherently political structure, and they get really murky, and we get lots of problems or potential problems when we ignore that structure in favor of a more legal structure and rely more on the courts." — Savannah Eccles Johnston