Trump Inquiries Remain Politically Charged, Despite Special Counsel

The history of independent prosecutors over the past half century is a torturous one in which the nation has never found a durable, nonpolitical means for holding rogue presidents or other high 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 ultimately worked for the attorney general, he was not truly independent, as Nixon showed by ordering Mr. Cox fired in 1973 in what became known as the Saturday Night Massacre. Under pressure, Nixon agreed to the appointment of a successor, Leon Jaworski, a dogged prosecutor who uncovered the secret tapes that led to the president’s resignation.

In hopes of protecting future prosecutors from Mr. Cox’s fate, Congress created the independent counsel in 1978, an officer who would be more autonomous. If an attorney general determined there were credible allegations against a president or other high officer to be investigated, an independent counsel was selected by a three-judge panel. Such a prosecutor had more latitude, was obliged by law to report possible impeachable offenses by the president to Congress and could be fired by the attorney general only for “good cause” or disability.

Neither party ended up being all that happy with the independent counsel structure, becoming convinced it was a blank check that led to endless investigations. Republicans were soured by Lawrence Walsh, the independent counsel who investigated President Ronald Reagan and the Iran-contra affair. Democrats grew disenchanted by Ken Starr, whose Whitewater investigation morphed into the impeachment of Mr. Clinton for lying under oath about an affair with a former White House intern, an inquiry later completed by Mr. Ray.

By the end of Mr. Clinton’s administration, there were seven independent counsels investigating him or his top officials, and the law was allowed to lapse in 1999. Instead, the Justice Department created a regulation for the appointment of special counsels who would answer to the attorney general and therefore be less likely to wander too far afield.

But the experience of Robert S. Mueller III, the special counsel who investigated Mr. Trump’s campaign for ties to Russia, underscored for many the weakness of this structure as well. Since a special counsel reports only to the attorney general, it still falls to a president’s appointee to decide any legal action.

Because of a longstanding Justice Department opinion that a president cannot be prosecuted while in office — a judgment crafted under two presidents who faced allegations, Nixon and Mr. Clinton, and never tested in court — Mr. Mueller opted not to say whether he thought Mr. Trump had committed obstruction of justice even though his final report included evidence that the president had.