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Donald Trump has been calling for a criminal investigation of his political opponent Hillary Clinton for a while now. Trump is angry that the FBI probe of Clinton's emails ended with no charges. He says an independent outsider needs to look at the Clinton Foundation. NPR's Carrie Johnson explored the history of special prosecutors and brings us this story.
CARRIE JOHNSON, BYLINE: Donald Trump says the Democratic U.S. attorney general can't be trusted to investigate Hillary Clinton. Here he is on the campaign trail last week.
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DONALD TRUMP: The Justice Department is required to appoint an independent special prosecutor...
UNIDENTIFIED MAN: Yes.
TRUMP: ...Because it has proven itself to be really, sadly a political arm of the White House.
JOHNSON: Trump offered no evidence to back up his claims that the Justice Department has been corrupted, but his call for a special prosecutor sounds familiar to people who study the intersection of law in politics, people like Ken Gormley.
KEN GORMLEY: If you look at the chronology, pretty much the political party that does not control the White House tends to want special prosecutors and independent counsel laws. As soon as the party is in the White House, they don't want it anymore.
JOHNSON: Few understand the history as well as Gormley. He wrote two books on special prosecutors. In modern times, the idea first cropped up during the 1970s. President Richard Nixon notoriously fired a special prosecutor who was getting close to the tapes that would bring down his administration.
Five months after what became known as the Saturday Night Massacre, Congress started work on an independent counsel law. The idea - to insulate sensitive criminal investigations from meddling by the White House. The law would stand more than 20 years - not many criminal convictions but a lot of trouble for presidents and people close to them as here back in 1996.
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UNIDENTIFIED REPORTER: First lady Hillary Rodham Clinton has been subpoenaed to appear before the Whitewater grand jury. White House officials say she's expected to testify on Friday.
JOHNSON: Hillary Clinton was never charged with wrongdoing in the Whitewater affair, but the investigation left a mark. Years later author Ken Gormley interviewed President Bill Clinton about it.
GORMLEY: He made clear that his decision to allow and endorse the appointment of an independent counsel in the Whitewater matter was one of the biggest mistakes of his presidency.
JOHNSON: By 1999 when Congress considered whether to renew the statute, opposition came from nearly all sides. Even Whitewater independent counsel Ken Starr told Congress the law had become a political weapon.
KEN STARR: The statutory mechanism intended to enhance confidence in law enforcement had the effect of weakening it.
JOHNSON: Starr said the law should not be reauthorized.
STARR: Jurisdiction and authority over these sensitive matters ought to be returned to the Justice Department. And who will oversee them - the Congress, the press, the public.
JOHNSON: That's exactly what happened. The law expired. The Justice Department can still use special prosecutors, though. They're career lawyers protected from political leaders at Justice by a firewall.
During the George W. Bush years, special prosecutor Pat Fitzgerald charged and convicted a top aide to the vice president. Justice Department leaders went on to deploy special prosecutors to investigate the firings of U.S. attorneys and the destruction of videotapes that showed torture of detainees. But authorities have relied on those prosecutors only sparingly. That makes sense to Ken Gormley.
GORMLEY: I think I've come to the conclusion that we are better off when we have less of these investigations rather than more. They should be reserved for very special and extreme occasions.
JOHNSON: Otherwise, he argues, they could distract from what's really important.
GORMLEY: As we as a country were just obsessed with the issue of Whitewater, Paula Jones, Monica Lewinsky and all of these distractions during the 1990s, there were people inside and outside our country literally plotting our attack.
JOHNSON: One of them, Gormley says, was Osama bin Laden. Carrie Johnson, NPR News, Washington.
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