The Disturbing Origins of Special Prosecution Teams
Geoff Shepard
by
Attorney General Robert F. Kennedy meets with advisers at his office in the Department of Justice (Department of Justice Archives)

Many remain worried about the reign of terror accompanying the Mueller team’s two-year, hugely politicized investigation of Donald Trump, particularly since it fits a pattern that began with the Watergate Special Prosecution Force (WSPF) — and perhaps even before.

It is true that the 1973 establishment of the WSPF as a specially selected team of prosecutors to investigate President Nixon in the Watergate scandal was the first such use in the 50 years since the Teapot Dome scandal in the 1920s. But this is not a fully accurate statement about the origins of special prosecution teams. You see, there was a far more recent appointment, one also made with the intent of bringing down a powerful and controversial president. But the president in question was not the president of the United States. He was the president of the International Brotherhood of Teamsters.

Jimmy Hoffa was elected the Teamsters president in 1957, after his predecessor, David Beck, left office having taken the Fifth Amendment some 117 times before the Select Committee on Improper Activities in Labor and Management, chaired by Sen. John McClellan (the “McClellan Rackets Committee”). Hoffa, who then served as Teamsters president until 1971, also was a target of that committee, particularly of its chief counsel, Robert Kennedy, who took his battle against Hoffa with him in 1961 upon becoming Attorney General — a position in which he could control the awesome investigating powers of grand juries and the prosecutorial powers of the Department of Justice (DOJ).

In what can only be described as a vicious personal vendetta, somewhat akin to Captain Ahab’s relentless pursuit of Moby Dick, RFK personally recruited some 20 lawyers into what became known as his “Get Hoffa” Squad. Led by FBI agent Walter Sheridan, they presented evidence against Hoffa to some 25 grand juries over four years and ultimately secured convictions for jury tampering charges: in Chattanooga in 1964 and later that same year in Chicago for defrauding a union pension fund. Hoffa was sentenced to prison terms totaling 13 years but was pardoned by Nixon in 1971.

Whether you believe Hoffa deserved such intense individual scrutiny and such harsh sentences or not, the corners that were cut by this specially recruited, highly motivated group of federal prosecutors should give pause to anyone who believes in the equal enforcement of the law. It’s also a disturbing precedent for actions of the special prosecution teams that have followed.

RFK and his Squad set their sights and brought immense DOJ resources to the goal of convicting a specific individual — no matter what it took. The best description of their efforts is found in the last chapter of Victor S. Navasky’s Kennedy Justice (1971), an otherwise laudatory account of Robert Kennedy’s service as our youngest attorney general. Navasky is a prominent liberal who taught journalism at Columbia University and was editor of the Nation from 1978 until 1995 and its publisher and editorial director from 1995 to 2005. For all of his expressed concerns about prosecutorial abuses by RFK’s “Get Hoffa” Squad, he stood mute during the Watergate investigations as similar excesses were undertaken by many of those same people.

For a taste of how offensive the “Get Hoffa” Squad’s conduct was, here is a portion of what Chief Justice Earl Warren wrote about their use of an informant in gathering evidence against Hoffa for their jury tampering case:

Here, the Government reaches into the jailhouse to employ a man who was himself facing indictments far more serious (and later including one for perjury) than the one confronting the man against whom he offered to inform. It employed him not for the purpose of testifying to something that had already happened, but, rather, for the purpose of infiltration, to see if crimes would in the future be committed. The government in its zeal even assisted him in gaining a position from which he could be a witness to the confidential relationship of attorney and client engaged in the preparation of a criminal defense. And, for the dubious evidence thus obtained, the government paid an enormous price. Certainly if a criminal defendant insinuated his informer into the prosecution’s camp in this manner, he would be guilty of obstructing justice. I cannot agree that what happened in this case is in keeping with the standards of justice in our federal system, and I must, therefore, dissent. (Hoffa v. United States, 385 U.S. 293, at 321, 1966.)

Earl Warren was not alone. The most interesting characterization of prosecutorial tactics that became evident under Robert Kennedy’s DOJ, and were later deployed against Nixon, comes from George Higgins’ The Friends of Richard Nixon (1975):

The course of human events being what it is, the people who knew how to prosecute, in 1973, were people conditioned (directly or at second hand) by the Kennedy Justice methodology. Imperfectly articulated as it was, that methodology was developed on the premise that law enforcement should not be passive, but aggressive. The governing hypothesis was that there is an ineradicable difference between good guys and bad guys, apparent to, and actionable by, the good guys. Out of that came targeted law enforcement: upon identification as a bad guy, the suspect may resign himself to merciless investigation, reinvestigation, indictment and reindictment, trial and retrial, until at last the Government secures a verdict which ratifies the prosecutor’s assessment of the defendant as a bad guy (p. 259).

My two books document the series of WSPF abuses carried over from the Kennedy DOJ — including secret meetings with trial judges, suppression of exculpatory evidence, and the false sentencing of their marquee witness, John Dean. What is interesting for now is that Archibald Cox’s first request upon being named special prosecutor was for Walter Sheridan’s contact information. Cox, it should be remembered, had been solicitor general under Robert Kennedy and was consulted regularly about “Get Hoffa” Squad initiatives. In addition to Cox, 16 alumni from the Kennedy/Johnson DOJ formed the leadership of the 70 prosecutors on WSPF’s “Get Nixon” staff.

The most interesting pairing was the two former Squad members who had secured Hoffa’s conviction for jury tampering — the very object of Earl Warren’s criticism above. Charles Shaffer became John Dean’s criminal defense lawyer; James Neal became head of the Watergate Task Force and lead prosecutor in the Watergate cover-up case. It’s little wonder that these two former colleagues were able to work out an acceptable plea arrangement for John Dean (which entailed his being sentenced to a long prison term but never actually spending a single night in jail).

The Independent Prosecutor Statute (1978–99)

WSPF prosecutors were so successful in driving Nixon from office and in convicting over two dozen members of his administration on various crimes that the Democratic Congress established the role of the Independent Prosecutor as a part of its Ethics in Government Act of 1978. Not surprisingly, its use has been criticized almost uniformly for abusive approaches and tactics.

The statute’s first significant application was during the Reagan administration’s Iran–Contra affair. Lawrence Walsh conducted a six-year investigation that cost $79 million and culminated in the conviction of NSC Director John Poindexter and staff member Oliver North (both convictions were reversed on appeal) and the re-indictment of Caspar Weinberger, Reagan’s Secretary of Defense, the week before the 1992 presidential election. DOJ guidelines, which admittedly didn’t apply to the independent prosecutor, would ordinarily have strictly prohibited the bringing of indictments during election campaigns.

The statute’s constitutionality was tested by Ted Olson, who had been Reagan’s solicitor general from 1981 to 1984. Olson’s challenge was successful at the D.C. Circuit level, in a 2-to-1 decision authored by Judge Laurence Silberman (with then-Circuit Judge Ruth Bader Ginsburg dissenting), which held that law enforcement delegation to an independent prosecutor encroached on the president’s powers. Here is the most telling part of Silberman’s opinion:

That very independence from presidential and Justice Department supervision and guidance that Congress deliberately fashioned for independent counsel has troubling consequences for those who find themselves the target of the independent counsel’s attention. A person occupying this statutory office has, it seems to us, unique incentives to seek an indictment. Our concern is based on the self-evident proposition that the whole raison d’être of the independent counsel is not to administer the criminal law across a wide population, but rather to focus on one individual or group of individuals targeted at the inception of the office. In effect, an entire self-sufficient government agency is created from scratch to investigate and perhaps prosecute a single individual. The need to justify even the expense of an office dedicated solely to one goal must generate a reluctance to decide against indictment or to conclude the investigation absent near certainty that no indictment is possible or that no further leads remain. And inevitably, the success of the office itself, in the public’s eyes, at least, must turn to some extent upon whether indictment and conviction are obtained. The independent counsel is thus “subject to formidable public — and perhaps self-imposed — pressure to indict in the one case he was appointed to pursue. (In Re Sealed Case, 838 F.2d 476, 1988).

Silberman had been deputy attorney general in the last year of the Nixon administration and, thus, knew firsthand the tensions resulting from such a dedicated allocation of prosecutorial assets.

Silberman’s decision was overturned, however, by the Supreme Court in Morrison v. Olson (487 U.S. 654, 1988) in a 7-to-1 decision (Justice Kennedy not participating) that upheld the independent prosecutor’s statute as constitutional. The opinion was authored by Chief Justice William Rehnquist, with Justice Scalia issuing a fiery dissent. In a 2013 interview with New York magazine, Scalia identified that case as the most troublesome in his decades on the bench:

Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong — I was the sole dissenter — but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.

The appointment of an independent counsel in the Olson case was but one of some 19 instances in which such prosecutors were appointed under the statute before its last use, which involved the appointment of former D.C. Circuit Judge Ken Starr in the Whitewater/Monica Lewinsky scandals of the Clinton administration in the late 1990s. Starr’s four-year investigation has been heavily criticized for its seemingly singular focus on Clinton’s personal sexual matters, which led to Clinton’s impeachment, but not to a conviction in the Senate trial that followed.

Special Counsels within DOJ

Not at all happy with the experience of the independent prosecutor statute’s use against a Democrat president, Congress allowed the law to expire in 1999. Since then, special counsels have been appointed by the attorney general and operate under the guidance and control of the Department of Justice. This, in its self, is a major reform, but it has not always worked as intended.

The first significant use of the statute was Deputy Attorney General James Comey’s appointment of Patrick Fitzgerald, then U.S. Attorney for the Northern District of Illinois (Chicago), to investigate the 2003 outing of CIA undercover agent Valerie Plame.  Comey’s choice of Fitzgerald raised eyebrows, since he was godfather to one of Comey’s children (today, he is one of Comey’s defense lawyers).

Fitzgerald’s focus and conduct were heavily criticized when it was discovered that he had learned within three days of his appointment that the origin of the leak was inadvertent and had come from Deputy Secretary of State Richard Armitage, whom Fitzgerald not only never prosecuted but also instructed not to publicly admit to his inadvertent action. While the Plame leak had nothing to do with actions by Vice President Richard Cheney’s chief of staff, Lewis “Scooter” Libby, Libby was nonetheless convicted in 2007 of lying during Fitzgerald’s investigation. It later turned out that Libby had had the misfortune of crossing bitter swords with Fitzgerald some years before in a totally separate matter, which again raises the possibility of a personally targeted prosecution without much oversight from DOJ.

If the secrets of Mueller team’s investigations remain as hidden as those of Watergate, their internal records may not surface for decades. But certainly the Mueller team’s extensive use of solitary confinement and outrageous dawn arrest of Roger Stone are fully in keeping with the troublesome pattern of prosecutorial abuse that has its roots in Robert Kennedy’s DOJ.

Among the other remaining questions from the two-year investigation of Trump’s alleged collusion with the Russians is just when Mueller, if not his specially recruited team, concluded there was no evidence of criminal collusion. Many critics believe the investigation was continued well past that point, with the hope of setting Trump up for an obstruction of justice charge. They equally wonder about the (non-)exercise of DOJ oversight responsibilities, which should have addressed the potential for abuses raised by totally independent prosecution teams.

We rely on federal prosecutors for even-handed, non-partisan enforcement of our laws. Admittedly, DOJ is the one place in our federal government where politics and law clash each and every day, making it a rather stressful place of employment. It’s just that specially recruited prosecution teams present unique challenges to the equal enforcement of the laws — both to the prosecutors themselves and to DOJ’s oversight responsibilities.

Geoff Shepard came to D.C. as a White House Fellow right after graduation from Harvard Law School and spent five years on Nixon’s White House staff, including being deputy counsel on his Watergate defense team. See more on his website:  www.geoffshepard.com.

Geoff Shepard
Geoff Shepard
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Geoff Shepard came to D.C. as a White House Fellow right after graduation from Harvard Law School and spent five years on Nixon’s White House staff, including being deputy counsel on his Watergate defense team. See more on his website: www.geoffshepard.com.
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