The History Of Using Outside Counsels In Hearings

Sep 27, 2018
Originally published on September 27, 2018 11:15 am
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It's MORNING EDITION from NPR News. I'm Steve Inskeep.

RACHEL MARTIN, HOST:

And I'm Rachel Martin. Today, when Brett Kavanaugh sits in front of the Senate Judiciary Committee again, he will answer questions about whether he sexually assaulted Christine Blasey Ford when they were both in high school. The person posing those questions will not be a member of Congress. Instead, the committee has hired an outside prosecutor named Rachel Mitchell with long experience with sexual assault cases.

Republicans said there's precedent for this. They pointed to the Watergate and Iran-Contra hearings in their decision to bring in outside help. The lawyers in those hearings became famous, none more so than the young minority counsel who asked the crucial question during Watergate.

(SOUNDBITE OF ARCHIVED RECORDING)

FRED THOMPSON: Mr. Butterfield, are you aware of the installation of any listening devices in the Oval Office of the president?

ALEXANDER BUTTERFIELD: I was aware of listening devices. Yes, Sir.

MARTIN: The man asking that question was Fred Thompson. He went on to serve in the U.S. Senate and to a career in television. Commentator Cokie Roberts has been thinking about this strategy of hiring outside counsel, and she joins us now. Hi, Cokie.

COKIE ROBERTS, BYLINE: Hi, Rachel.

MARTIN: So Democrats in this moment have been saying that the Republican senators have brought in an outside attorney to ask these questions because of optics because it looks bad to have 11 Republican men grilling an alleged victim of sexual assault. Republicans counter, as I mentioned, that there is precedent for doing this. They point to Watergate and Iran-Contra. Are there any parallels between those hearings and this Supreme Court confirmation hearing?

ROBERTS: No, not really. Both of those were investigations. And when you have an investigation, you have to bring in lawyers and investigators. And that was certainly the case in both Iran-Contra and in the Watergate hearings. And they were criminal activities that were being investigated. They both ran concurrent with the special prosecutor looking into the criminal activities. Very different set of circumstances from what we're looking at today.

MARTIN: How influential were the lawyers themselves in these cases?

ROBERTS: Well, as you said, they became quite famous, household names because people absolutely watched these hearings. And by the end of the Watergate hearings, what you had was a positive view of both the senators and the lawyers, with the majority of the country saying that they thought the hearings had been good for the country.

MARTIN: That wasn't the case with Iran-Contra, though, was it? How much of that was the fault of the lawyers?

ROBERTS: Well, Iran-Contra was a very complicated case just to begin with of selling arms to Iran and then using the money to pay Nicaraguan rebels called Contras. The public didn't get it in a lot of ways. But there was a sense that the lawyers were acting in a very prosecutorial fashion and that they were beating up on the witnesses, particularly Oliver North, the star witness for the administration. And as his days of testimony went on, his approval ratings went up with the public liking him a whole lot better than they liked the lawyers.

And that's the big danger here, Rachel. You bring in an outside lawyer who, in this case, in the hearings today, is a prosecutor, and you have the possibility of that lawyer looking too prosecutorial. As Fred Thompson, the man who asked that question in the Watergate hearings, said many years later, after he had gone on to the Senate and a lifetime in TV, he said a strong witness can change policy, and all of a sudden, the ground is shifting out from under you as a questioner. That's what the committee has to be fearful of today.

MARTIN: Commentator Cokie Roberts. You can ask Cokie your questions about how politics and government work by emailing us at askcokie@npr.org, or you can tweet us a question with the #askcokie. Cokie, thanks so much.

ROBERTS: Good to talk to you, Rachel. Transcript provided by NPR, Copyright NPR.