San Diego Law Review

Library of Congress Authority File


Document Type



A special counsel is appointed to investigate and potentially prosecute any criminal activity involving those in the Executive Branch. When an attorney general makes such a decision, the individual should consider not only the scope of the appointment but whether the special counsel will protect the fundamental rules of law upon which the Constitution rests; no one person is above the law. Recent history illustrates the abuses of the special prosecutor’s role where it was used as a political weapon or for low level officials. Instead, a special counsel should be used only when the crisis is severe enough that there are blatant criminal actions by the most powerful people within the Executive Branch. An examination of two other special counsel appointments in the Teapot Dome Scandal and Watergate illustrate the correct use of a special counsel.

These two historical appointments demonstrate the current need for Special Counsel Mueller’s investigation into Russian interference in the 2016 Presidential Election. The FBI and CIA began investigating Russian actions in the summer of 2016. Their investigation uncovered an aggressive effort by a hostile foreign power to affect a fundamental right for American citizens—the right to vote. As in both Teapot Dome and Watergate, not only are senior members of the cabinet and potentially the President involved, but senior members of the Department of Justice have been implicated as well. Only through the appointment of a special counsel can high ranking officials engaged in blatant criminal conduct be brought to justice. This Article examines why a special counsel is imperative when there are overt abuses of power that only a targeted investigation may uncover.