But, if another president - or even another high level government official - were to similarly abuse his office and perhaps again bring the country to the brink of a constitutional crisis, there would be no special prosecutor or any similar mechanism to expose and then deal with him, laments public interest law professor John Banzhaf, whose original legal actions led to the appointment of two different Watergate special prosecutors, and to a court order requiring the appointment of a third.
Title VI of the “Ethics in Government Act" was enacted during the Watergate investigation, and as a direct result of the "Saturday Night Massacre” when the special prosecutor who served at the pleasure of the attorney general was fired by Nixon’s order to stop his all-too-effective probing
The new law provided that the Attorney General was directed to petition a special three-judge panel of the U.S. Court of Appeals to name a special prosecutor (later renamed “independent counsel”) upon the receipt of credible allegations of criminal misconduct by certain high-level executive branch officials.
Once appointed, he could be fired only for cause. It was under that statute that Leon Jaworski was appointed Watergate special prosecutor with the power to subpoena incriminating documents; a power he used to expose and subsequently force the resignation of Nixon, notes Banzhaf
But if a president or other high ranking official were to engage in criminal conduct today, there may be no effective way to expose and put an end to it, because the special prosecutor statute was allowed to expire. Nor, suggests Banzhaf, is there any certainty that a modern "Deep Throat" would come forward, that there would be journalists able to devote themselves to the story, and a newspaper willing to publish it.
As a result, untold damage to the government, to individuals and organizations which were the targets of such criminal activity, and to the public's trust in its government, would occur with no mechanism in place to stop it.
The scandal involving former IRS Director Lois Lerner demonstrates, if more proof were needed, the inability of Congress to get to the bottom of alleged wrongdoing without the active cooperation of the executive branch - something unlikely to be provided in many situations.
However, if the special prosecutor statute were still on the books, there probably would be a much more effective remedy in such situations, says Banzhaf, who himself was able to get a court order requiring a prior attorney general to apply for a special prosecutor.
That vital statute was allowed to expire, largely because some of the investigations tended to drag on, and seemed quite expensive. But the former could be dealt with by more careful drafting.
Moreover, even if some of the investigations were expensive - which they may not have been compared with other major Justice Department undertakings - wouldn’t that expense be a small price to pay to avoid another crook in the White House, and another potential constitutional crisis, argues Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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