Four Questions: Andrew Coan on Special Prosecutors and the Law

A professor from the UA James E. Rogers College of Law focused his research on special prosecutors and their role in the U.S. government, and along the way uncovered some fascinating stories about the history of the position.
Jan. 28, 2019
Andrew Coan
Andrew Coan

Students at the University of Arizona James E. Rogers College of Law learn the craft of law from some of the most influential legal scholars in the world – faculty who routinely produce powerful and provocative scholarship, from shaping legal debate on water policy and ethics, to conducting research that identifies and solves important real-world challenges like jury bias and internet censorship.

That faculty expertise is often shared outside of the classroom and made available to the public through lectures, seminars, editorials and books. Andrew Coan, professor and associate director of the William H. Rehnquist Center on the Constitutional Structures of Government, focused his research and knowledge on the subject of special prosecutors, and turned it into the recently released book, "Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law."

"I wrote the book because everyone I knew – and lots of people I didn’t know – were desperate to understand how special prosecutors work," Coan said. "People have written about individual special prosecutor investigations, like Watergate and Iran-Contra, and a few professors have written scholarly books for an academic audience. But no one else has written about special prosecutors in general – their history in American politics and how they work – for a broad readership."

What was one of your favorite stories about the early cases that you turned up in your research?
Teapot Dome was one of the most audacious, and colorful, corruption scandals in U.S. history. In the early 1920s, a small group of ambitious and unscrupulous oil barons basically bought the Republican presidential nomination for Warren Harding. In exchange, Harding’s campaign manager promised to sign over the drilling rights to several spectacularly rich federal oil reserves, including one called Teapot Dome that gave the scandal its name. The dirty work fell to Secretary of the Interior Albert Fall, a relic of the old West who would have fit in nicely at the O.K. Corral. Fall signed over the oil rights, but was forced from office and ultimately sent to jail by special prosecutors who often had to fund the investigation out of their own pockets. 

What did you find out about the history of this role that surprised you?
Many people know that Richard Nixon fired the Watergate special prosecutor Archibald Cox, but he was not the first president to do so. Ulysses Grant fired the first special prosecutor in U.S. history when his investigation got too close to Grant’s inner circle. Harry Truman also fired a special prosecutor. Grant and Truman were good presidents and admirable men in many ways, but these episodes represent a major stain on their legacies, especially Grant’s.

Why can the special prosecutor be fired by the president at any time, and what happens if he or she is fired?
It is counterintuitive; it hasn’t always been that way, and many other countries take a different approach. On the other hand, the American system isn’t entirely crazy. The basic idea behind it is this: Special prosecutors, no less than presidents, can abuse their power. To prevent this, they must be accountable to someone, preferably an elected official. As the head of the federal executive branch, the president is the logical choice – and arguably the only constitutional one. If he exercises that power corruptly or capriciously, special prosecutors have no legal remedy. But they are not unprotected. The president must ultimately answer to the American people. This has proved a surprisingly powerful deterrent, though also a fragile one.

If this decision to fire a special prosecutor provokes a major public or congressional backlash, the president might feel compelled to reverse course or, more likely, appoint another credible and independent special prosecutor. That’s what happened when Richard Nixon fired the first Watergate special prosecutor Archibald Cox. If the president refuses to back down, Congress can begin its own investigation, calling the special prosecutor and his staff as witnesses. There are many contingencies, but these are two of the most likely scenarios.

What is the one thing you hope readers of the book will remember?
Special prosecutors can do much to hold presidents accountable, but they are incapable of saving us from ourselves. Ultimately, only the American people can decide whether the president is above the law.

A version of this article originally appeared on the College of Law website: https://law.arizona.edu/news/2019/01/prosecuting-the-president-andrew-coan-special-prosecutor