Law Prof Got Watergate Special Prosecutor - Now For IRS, Ferguson Shooting?

WASHINGTON - Aug. 21, 2014 - PRLog -- WASHINGTON, D.C. (August 21, 2014):  In the wake of the 40th anniversary of President Nixon's resignation at the hands of a special prosecutor, the George Washington University is recognizing the role played by a then-young law professor in creating such a position, and wondering whether a special prosecutor should be appointed to investigate recent possible criminal activity at the IRS, or even the shooting by a police officer in Ferguson.

        An article in today's school newspaper quotes Allan Lichtman, a distinguished professor of history at American University, as saying that "There is no doubt that he [Law Professor John Banzhaf] was the first to seriously raise the issue [of appointing a special prosecutor] in a public way. He certainly put it in the minds of members of Congress and was a contributing factor.”  LAW PROFESSOR REFLECTS ON HIS ROLE IN NIXON'S RESIGNATION [The Hatchet].

        It also quotes law professor Peter Meyers, Banzhaf's former student who worked with Banzhaf on the Watergate special prosecutor legal action: “A case like that, we had raised the issue on the front page of the American newspapers of why isn’t there a special prosecutor. You’ve accomplished a lot even if you lose, . . .  The very good lawyers understand what’s the definition of victory.”

        The concept of having a special prosecutor to avoid conflicts of interest, or even the appearance of possible conflicts of interest, in the investigation and possible prosecutor of criminal matters could be as important today as it was 40 years ago, suggests Banzhaf, wondering if the IRS scandal might reach even into the White House as the Watergate scandal did.

        "Banzhaf argues that such an act would be useful to investigate the former director Lois Lerner's role in the 2013 Internal Revenue Service scandal," reports the Hatchet.  A special prosecutor to handle state investigations concerning Ferguson might also be very useful, Banzhaf adds
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         Here's how a young nontenured law professor helped bring down a president.

        When the Watergate burglary was first being investigated by a Washington grand jury, Professor John Banzhaf filed a motion with the presiding federal judge, John J. Sirica, asking him to use his inherent power as a judge to appoint a special prosecutor to take over presenting the case to the grand jury.

        This, Banzhaf argued, was necessary to avoid the conflict of interest which occurs when a U.S. attorney, subject to the control of the President, is directing the investigation into crimes allegedly committed by persons linked to the President.

        Judge Sirica denied Banzhaf's motion, later writing in this book  “To Set the Record Straight”: “I’m sure he was well-intentioned, but I didn’t feel I needed other lawyers stomping around in what was already a touchy and difficult situation.”

        However, the very significant publicity Banzhaf’s legal request and its denial generated alerted the media, the public, and members of Congress to the position of a "special prosecutor,"  a concept which was virtually unknown at the time.

        Subsequently, as more facts came out and the conflict of interest became even clearer, public and political pressure moved the Senate to demand, as a condition of permitting him to become Attorney General, that Elliot Richardson appoint Archibald Cox as a special prosecutor to investigate Watergate.

        When, in the notorious "Saturday Night Massacre," Cox was fired under pressure from Nixon, Banzhaf again asked Judge Sirica to appoint a special prosecutor.

        Sirica again refused, but the public's and congressional outrage over the firing, and the growing understanding about the concept of and need for a special prosecutor, led to the passage of a law establishing a process for appointing special prosecutors whenever necessary. Under that new law, a new special prosecutor, Leon Jaworski, was then appointed.

        Jaworski obtained a subpoena for the release of certain tapes and papers related to specific meetings between the President and those indicted by the grand jury.

        When Nixon, claiming executive privilege, refused to turn over the tapes, the case ultimately went to the U.S. Supreme Court.

        The Court, in a unanimous decision, rejected Nixon's claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances," and ordered him to turn over the incriminating tapes.

        Nixon resigned only 15 days later, on August 9, 1974.

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)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf