One More Huge US Political Complication Explained

This would have been in line with what many of the founders originally intended . But Congress decided on more modest reform and passed the Ethics in Government Act of 1978 , which was enacted by President Jimmy Carter and created the Office of Independent Counsel.

This allowed for investigations into misconduct that could operate outside of presidential control because the attorney general could ask a special three-judge panel to appoint an independent counsel to investigate.

The Ethics in Government Act also disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could“result in a personal, financial, or political conflict of interest, or the appearance thereof” for the investigator.

A few years later, the Reagan administration argued that independent counsels were unconstitutional. Its reasoning: the act violated the appointments clause of Article II, Section 2, Clause 2 of the Constitution, which states that“Officers of the United States” are“appointed by the President” and“subject to the advice and consent of the Senate.”

In 1988 , the Supreme Court ruled that independent counsels were constitutional , as the appointment clause also states that“Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments.”

In essence the Supreme Court determined that appointees can be considered either“principal” and must be appointed by the president and confirmed by the Senate, or“inferior,” which could be appointed by a department head, such as the attorney general, or judges.

The Supreme Court ruled that an“independent counsel should be considered an inferior rather than a principal officer .”

In 1999, the Ethics in Government Act – which had a sunset clause – needed to be renewed.

By that point, both political parties and their presidents had been humiliated by prior independent counsel investigations. Republicans were reeling from the Iran-Contra scandal , while Democrats were embarrassed by the Monica Lewinsky scandal .

It was also unclear which party would win the White House in the upcoming 2000 election, and neither party wanted the other to have any future advantage. During this standoff, both parties decided to simply let the Ethics in Government Act expire , thereby ending the possibility of appointing future independent counsels.

Later that year, then-Attorney General Janet Reno authorized the appointment of what she called special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.

Robert Mueller was a special counsel appointed by Deputy Attorney General Rod Rosenstein in 2017 to investigate possible Russian interference in the 2016 elections and possible links between the Trump campaign and the Russian government .

John Durham was appointed in 2020 by Attorney General Bill Barr to investigate the origins of the investigation that triggered Mueller's appointment.

In 2022, Jack Smith was appointed special counsel by Attorney General Merrick Garland to oversee investigations into former President Donald Trump's role in the January 6 insurrection , as well as Trump's handling of classified government documents upon leaving office in 2021.

In 2023 , Robert Hur was appointed by Garland as special counsel to investigate President Joe Biden's handling of classified documents after leaving office as vice president in 2017.

Also in 2023 , David Weiss was appointed by Garland as special counsel to investigate Hunter Biden's illegal purchase of a firearm as well as tax-related problems.

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Effects beyond Trump

In early July, 2024, the Supreme Court ruled that past, current and future presidents have partial immunity from prosecution.

While the legality of special counsels was not at issue in this case, Justice Clarence Thomas used his concurring opinion to challenge the legality of Smith's appointment. Thomas argued that Congress has not passed any legislation that gives the attorney general the power to appoint a special counsel.

Thomas noted that the Ethics in Government Act of 1978“had lapsed, and Congress has not since reauthorized the appointment of an independent counsel.” As such, Thomas questioned the power of attorneys general to appoint special counsels.

In her 93-page order dismissing the case against Trump, Judge Cannon echoed Thomas' argument.

Cannon asked if there were“a statute in the U.S. Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?”

She then answered her own question.

“After careful study of this seminal issue, the answer is no,” she wrote.

Cannon's decision can be appealed to the Supreme Court. If that happens, the outcome could affect more than just Trump's classified documents case.

Under Cannon's ruling, any and all special counsels, including those that have investigated Joe and Hunter Biden , could also be deemed unconstitutional.

Joshua Holzer is an assistant professor at Westminster College .

This article is republished from The Conversation under a Creative Commons license. Read the original article .

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