When U.S. District Judge Aileen Cannon tanked the classified documents case against Donald Trump, she argued that she was not alone in her reasoning that it’s “dangerous” to have rogue prosecutors involved in politically sensitive investigations.
Another critic of independent prosecutors, Cannon wrote, was a Democrat: Bill Clinton’s attorney general, Janet Reno.
Except, a closer inspection of Reno’s Senate testimony in 1999 offers a very different reading of the current situation. Reno didn’t argue that the appointment of a special prosecutor is lawless, but rather, that Congress did away with a law specifically carving out an “independent counsel” to make sure future prosecutors like Smith were better controlled.
Cannon noted how we’ve gone 25 years without the Independent Counsel Act — a post-Watergate law that allowed for high-stakes political investigations of various presidential administrations by a prosecutor chosen by a panel of judges.
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Cannon’s overarching idea here is that, absent that law, Smith doesn’t really have any authority to prosecute the former president for hoarding classified documents at his oceanside estate and lying about it when caught.
“No such special counsel statute exists today, and no such statute existed in November 2022 when Attorney General [Merrick] Garland issued the appointment order,” she wrote.
In discussing the history of that expired law, Cannon noted that Reno had “expressed various criticisms” of the law before it was allowed to die.
“We have come to believe that the country would be best served by a return to the system that existed before the Independent Counsel Act — when the Justice Department took responsibility for all but the most exceptional of cases against high-ranking public officials, and when the attorney general exercised the authority to appoint a special prosecutor in exceptional situations,” Reno told senators back then.
When Reno spoke before the Senate Governmental Affairs Committee in March 1999, it had been six months since Ken Starr submitted his report to Congress about “substantial and credible information that President William Jefferson Clinton committed acts that may constitute grounds for an impeachment.” The nation was politically fractured, the White House was distracted and the Justice Department was reeling from an investigation that appeared to have gone off the rails.
Hence, Reno’s assessment that the independent counsel idea was “structurally and fundamentally flawed.” The law was originally intended as a bulwark against a repeat of President Richard Nixon’s corrupt firing of the special prosecutor looking into his Watergate scandal in 1973.
But in reality, the process was more convoluted and expensive and didn’t quell doubts about political interference (the AG could still technically interfere). Reno said, “The act has failed to live up to its promise” because it “failed to instill confidence among the public that politics has been removed from the process.”
In Reno’s mind, independent counsels could too easily run amok — racking up massive legal bills and going down rabbit holes.
“All of these factors combine, I believe, to create a strong incentive for the independent counsel to do what prosecutors should not be artificially pushed to do — that is, to prosecute,” Reno said.
Reno also warned that the law shielded independent counsels from accountability, given that “he has not been confirmed by the Senate, and he is not typically subject to the same sorts of oversight or budgetary constraints that the department faces day in and day out.” Instead, Reno preferred leaving it up to an AG to tap a special prosecutor when necessary — and be held more directly responsible if something went wrong.
“Perhaps the real lesson of our nation’s experience with the special prosecutor during Watergate is not that the old system was broken but that it worked,” Reno told the Senate committee.
In her decision on Monday, Cannon criticized Garland’s appointment of Smith as an “unconstitutional problem” and noted how the temporary office has already spent more than $24 million conducting its investigation.
“Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision,” she wrote.
In the judge’s view, the AG should have appointed one of the 93 Senate-confirmed federal prosecutors already overseeing regional districts — or somehow obtained approval from a split Congress on the creation of an office that would investigate Trump.
“Congress — historically, and in the present moment — has shown that it knows how to create offices for special counsels,” Cannon wrote. “Congress knows how to legislate in this space. And when it does, it does so expressly and unequivocally.”
Congress did in 1999, when it sat back and let the previous iteration of a special prosecutor expire — and allowed the DOJ to run this all on its own. Smith did exactly what Reno wanted someone in his position to do: narrowly stick to the inquiry at hand and promptly prosecute.
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Jose Pagliery is a reporter at NOTUS.
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