The current rules and regulations do not restrict a special prosecutor from ensuring the truth comes out.

I am confused about the role of special prosecutor investigating the president of the United States. I am also confused about the role of the various lawyers representing the president. What is the rule in law? Can the special prosecutor reveal information ethically?

Samuel C. Stretton.

There clearly has been a lot of confusion and misunderstanding and misstatements about the role of the special prosecutor, particularly involving the investigation of the current president of the United States on the issues of Russian collusion and obstruction of justice.

Anyone who is interested should read a well-written book titled, “Prosecuting the President, How Special Prosecutors Held Presidents Accountable and Protect the Rule of Law.” The book is by Andrew Coan, professor at Arizona School of Law.

The history of special prosecutors begins really in 1876 during the President Ulysses S. Grant's administration. There was a scandal called the St. Louis Whiskey Ring. Apparently, federal revenue agents undervalued whiskey production and then the savings by the whiskey producers was split with federal officers. It's implicated to President Grant's former Civil War generals, Gen. John McDonald and Gen. Orville Elias Babcock. A special prosecutor was appointed named John Henderson. There were some convictions before Grant's term ended. Henderson had an interesting background and had voted to save President Andrew Johnson on the impeachment vote. He provided the critical vote which saved the president.

The next major special prosecutor scandal was in 1921 during President Warren G. Harding's administration. That was known as the Teapot Dome Scandal. This involved allegations of a bribe to Albert Fall, the Secretary of the Interior. He allegedly received a $100,000 bribe from a major oil producer. In return, he awarded oil producing land at bargain prices. Fall was an interesting person since he had been a lawyer and participated in some storied frontier trials. Through the efforts of Sen. Robert LaFollette, the Senate started a special investigation chaired by Sen. Thomas Walsh. With the death of Harding, a special prosecutor was needed and President Calvin Coolidge appointed Owen Roberts as special prosecutor. He was a prominent Philadelphia lawyer and later, of course, a prominent U.S. Supreme Court justice. He had a co-prosecutor named Atlee Pomerere. There were two convictions and some acquittals.

In 1951, there was the scandal under President Harry S. Truman's administration involving the then Bureau of Internal Revenue Services. Apparently, lawyers and businesses who owed back taxes were shaken down for bribes. Truman had Howard McGrath, his attorney general, review the matter. Apparently, McGrath was too close to the matter. As a result, there were protests and outside counsel Newbold Morris was appointed. Ultimately, Truman at the end of his tenure, fired the special prosecutor. But he also fired McGrath, whose hands were not clean in this particular matter.

The next special prosecutor, of course, involved the Watergate Scandal under President Richard Nixon. Archibald Cox was the special prosecutor and Elliott Richardson was the attorney general. This resulted in what was called the Saturday Night Massacre on Oct. 20, 1973, when Nixon fired Richardson, the attorney general and deputy attorney general, William Ruchelsaus, because they refused to fire the special prosecutor, Cox. The then-solicitor general, Robert Bork, followed Nixon's orders and fired Cox.

As one can imagine, there was quite an outcry and Leon Jawrski was appointed the new special prosecutor. He was very vigorous and argued the winning case before the U.S. Supreme Court requiring Nixon to produce the tape recording when the court found the tapes were not within the executive privilege. Nixon then resigned.

Several years after Watergate, Congress passed an Ethics in Government Act in 1978. That allowed for the appointment of a special prosecutor. To protect the special prosecutor, the law allowed the special prosecutor only to be fired for good cause and by and through the attorney general. There was a provision for judicial review of the termination. This special prosecutor statute lapsed in 1992. President George H.W. Bush was still the president and allowed it to lapse. Some people suggested that he did not like the special prosecutor in the Iran-Contra investigation and that's why he didn't sign it. Ironically, President Bill Clinton signed the statute back into law in 1994.

Clinton was the next major investigation arising out of initially the Whitewater Investigation, which allegedly involved land deals in Arkansas. Kenneth Starr was the special prosecutor. This prosecution moved from the land deal to Clinton's sexual relationship with a White House intern. The essence of that investigation was obstruction of justice charges where Clinton allegedly prompted his long-time presidential secretary to lie about his contacts with the intern.

The special prosecutor investigation on the obstruction of issues resulted in the impeachment proceedings against Clinton. But there were concerns at that point in time because the special prosecutor had gone far beyond the original mandate and some people believed the prosecution became almost a personal matter.

As a result, the Special Prosecutor Rule lapsed in 1999 and has never been reinstated.

In the early 2000s, the Department of Justice promulgated regulations for an outside special prosecutor. The decision to appoint is left to the attorney general. The special prosecutor has to be someone outside the government. The special prosecutor, according to the regulations, is not required or permitted to send his report to Congress. The attorney general of the United States decides what to publish and whether to publish the report. The attorney general can fire the special prosecutor. Although the attorney general can fire for any reason, the attorney general is supposed to give written reasons to Congress. Obviously, since the president appoints the attorney general, the president has the ultimate control.

The next major scandal then was out of the allegations that the Reagan administration obstructed the administration of justice in the investigation of the Environment Protection Agency under the administrator, Anne Gorsuch. There were allegations that Assistant Attorney General Theodore Olson, the head of the Office of Legal Counsel, had misled Congress. Under these new regulations, Alexia Morrison was appointed the special prosecutor. She successfully and brilliantly argued the case of Morrison v. Olson, 487 US 654, 108 Supreme Ct. 2597 (1988). That case found that the Special Prosecutor's Act did not violate the appointments cause, did not violate Article III of the Pennsylvania Constitution, and did not violate separation of powers. Of great interest in that case is the dissent of Justice Antonin Scalia. The dissent expresses grave concerns about separation of powers and that the president shall have exclusive executive power. He expressed concerns by retaliation of one branch of the government over the other. He also indicated there was no political check because the special prosecutor was not elected. There was concern about the prosecutor picking certain cases and withholding evidence in other cases.

Today, a president can, of course, can fire a special prosecutor and the Special Prosecutor Act is no longer in place, only the Department of Justice regulations are available. Can a president obstruct justice by deciding not to prosecute certain matters or removing the special prosecutor? This is a fine line and the subject of much debate. But it appears if the president attempted to obstruct justice as to alleged criminal conduct by the president, then there could be an obstruction of justice charge even if the underlying crime was not proven. After all, prosecutors can pick and choose what to prosecute. If the president is ultimately in charge and can fire a prosecutor, the same logic might apply. Former Pennsylvania Attorney General Kathleen Kane was found guilty of obstruction of justice for obstructing the investigation into leaks from her office that she apparently made. Of course, that was a Pennsylvania case.

Can the special prosecutor speak out particularly if the report generated is being misrepresented by the attorney general? The special prosecutor was appointed pursuant to the rules in the Department of Justice, but these rules are not statutes. The special prosecutor, as an appointee of an organization, has some obligations beyond the organization to the rules of ethics.

Under Rule of Professional Conduct 1.13 where an organization is the client, the special prosecutor might have the right to speak out. An analogy would be the special prosecutor's appointment by the attorney general and working through the attorney general. This is similar to a corporate counsel working for a corporation. If the report has been misrepresented, it appears the special prosecutor is, similar to a corporate counsel. Under Rule 1.13, he can ask the attorney general or president to release the report or clarify the situation or and, like the corporate counsel, that person can resign if the misconduct is not properly set forth. At times, that withdrawal can be a “noisy withdrawal.” Comment 6 to Rule of Professional Conduct 1.13 talks about a government agency and the requirements of the lawyers. This comment notes that the lawyer for a government agency might be allowed to discuss more than the lawyer for a private corporation because there's a different balance between confidentiality and assuring that a wrongful act is prevented or rectified.

Therefore, the short history of the use of special prosecutors by the U.S. government suggests strongly that the special prosecutor could release more of the report in the current situation. Failure to release enough of the report to provide adequate information or at least to prevent misconduct if the report is not properly summarized, could trigger the obligations of the independent prosecutor to speak out publicly and correct those misconducts at least from the standpoint of ethics.

The bigger questions of whether a president can be indicted (probably not), but certainly a president can be named as an unindicted co-conspirator (see Watergate Bill of Indictment) are difficult issues for special prosecutors. When and how a president can be convicted of obstruction of justice is a serious issue, but appears to be more limited to whether the obstruction applies to obstructing investigations as to the president's criminal activity. But the current rules and regulations do not restrict a special prosecutor it appears in ensuring the truth comes out, and the current special prosecutor might have an obligation to do so under the rules of ethics.

Despite bad economic times and perhaps too many lawyers, in-person solicitation is prohibited.

I know some young lawyers who apparently are desperate for business and are contacting people—who they have read about—that have been recently criminally charged or who are being sued. Is this permissible?

The answer is no, that is not permissible. Rule 7.3 of the Rules of Professional Conduct clearly prohibits in-person solicitation by a lawyer, whether it's by telephone, in each other's presence or by electronic means. But Rule 7.3 allows directed mailings or directed emails, as long as it's not in real time. The whole purpose of the prohibition is to prevent a lawyer from taking advantage of a person, particularly at the time of their injury. In-person communications often involves aspects of coercion, duress or harassment, which must be prohibited.

Direct mail or direct email is one step removed and the person can make a more rational choice as to whether they want to respond or hire the attorney.

Times are often tough for lawyers, particularly criminal lawyers in Philadelphia where the prison population has dropped by almost two-thirds and where courtrooms are closing since not nearly as many people are being charged. In Philadelphia, the reduction of cash bail has had a major influence on preventing lawyers from getting adequately paid. Despite bad economic times and perhaps too many lawyers, in-person solicitation is prohibited. There is a good reason for that. Lawyers aren't promotions people or businesspeople, they are professionals. A lawyer's job is to help people, not take advantage of them.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.