Independent Counsel (Update)

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INDEPENDENT COUNSEL (Update)

By the end of the 1990s, the institution of the independent counsel had come to dominate political and legal events in a manner that its drafters could not have imagined. By 1998, independent counsel investigations had produced the second impeachment and trial of a President in American history, the resignation and punishment of cabinet secretaries, and the judicial restriction of presidential powers that had undergone little challenge during the Cold War (with the ever-applicable exception of President richard m. nixon). The activities and conduct of independent counsels also triggered vociferous reactions, including political attacks on individual counsels and their method of appointment, proposals to eliminate or alter the independent counsel law, and criticisms that the attorney general of the United States had appointed either too many or not enough counsels. Recovering from the strains of scandal and investigation, Congress let lapse the Independent Counsel law in 1999.

Independent counsels became the top political and legal story of the scandal-besieged administration of President william j. clinton. Six independent counsels were appointed to investigate Clinton and various cabinet secretaries and advisers. Most notably, Kenneth G. Starr's inquiry into whether Clinton had committed fraud and obstruction of justice in regard to his investment (before he became President) in the Whitewater development deal mushroomed into an investigation of the President's sexual relationships and conduct. Starr came under unprecedented political attack as he examined whether the President had committed perjury and obstruction of justice in attempting to conceal his intimate relationship with a White House intern, Monica S. Lewinsky, from a federal court in a sexual harassment suit. In the course of the Starr investigation, which was vigorously contested by the President's government and private lawyers, the federal courts were confronted with several disputes concerning privilege, including executive immunity from suit, executive privilege, attorney–client privilege, and a newly claimed one, U.S. Secret Service protective privilege. Allowing Starr's inquiries to go forward, the courts ruled against the administration on all of these claims, with the exception of attorney–client privilege.

Starr provided evidence to the U.S. house of representatives, under a special provision of the 1978 Independent Counsel Act, that the President had committed "high crimes and misdemeanors." In the course of the House's remarkable deliberations, Starr appeared as a witness to justify his investigatory tactics, which had included efforts to place a recording device on Lewinsky. The House even provided the President's lawyers, who had criticized the independent counsel's ethics, methods, and goals, with the opportunity to question Starr. Nonetheless, the House impeached Clinton by a close vote in late 1998, and the U.S. senate conducted an unsuccessful removal trial in 1999.

Although the constitutionality of the counsel's freedom from presidential control was settled by the Supreme Court in Morrison v. Olson (1988), many raised doubts about the policies behind the law. Chief among them was the ease with which independent counsels were appointed. Under the statute, a relatively low threshold of proof could trigger the Attorney General's duty to seek the appointment of an independent counsel. The Attorney General could not inquire into whether, for example, the target of the investigation had the requisite mens rea to commit the crime. The low standard of proof led to a proliferation of counsels, with no required showing that U.S. Department of Justice officials were politically or institutionally incapable of conducting these investigations. The statute might profitably have been limited to investigations of only the President, Vice President, and the Attorney General, where the threat of a conflict of interest would be greatest. Criticizing the unreviewable nature of the Attorney General's decisions, others pointed to Clinton administration Attorney General Janet Reno's failure to seek a counsel for the 1996 Clinton campaign fundraising scandals as a ground for even broadening the statute's reach where those officials are involved.

Many were in agreement, however, that the institutional freedom of the independent counsel required reform. Without budgetary or resource constraints, investigations had continued for many years and involved large sums of money that no regular federal prosecutor could expend. The investigation into the iran –contra affair lasted for seven years and cost taxpayers almost $50 million; the Clinton Whitewater inquiry will last at least six years and cost even more. Without responsibility to any superior, independent counsels could pursue individuals and violations that normally would not receive Justice Department attention. Indeed, the statutory duty of the counsel was to pursue the issues over which he had jurisdiction, rather than to make judgments about what crimes to pursue in light of overall prosecutorial resources.

Congress revisited these issues in 1999 when the Ethics in Government Act came up for its periodic re-authorization. One oft-mentioned approach to address these problems would have folded the independent counsel into the Justice Department's Office of Public Integrity, which already operates with substantial autonomy. Other proposals urged that Congress subject counsels to the same budgetary, time, and resource restraints that apply to other U.S. Attorneys. It should be noted, however, that even during the watergate scandals, the federal justice system proved itself able to investigate and prosecute criminal wrongdoing at the highest levels without the assistance of an independent counsel. After twenty years of investigating counsels and presidential scandal, Congress concluded not to renew the law and that the time had come to end an ill-conceived experiment in creating independent operators with the powers of investigation and prosecution.

John Yoo
(2000)