Within hours after the U.S. court of appeals declared the independent counsel statute unconstitutional, Sen. Carl Levin (D-Mich.) described the law as an "essential mechanism" for ferreting out wrongdoing by government officials. He predicted that unless the Supreme Court overturned the lower court's decision, there would be a "return to the chaos of Watergate." In this era of heightened concern about the integrity of high government officials, these comments are understandable. It is essential to maintain public confidence in the process by which allegations of criminal wrongdoing by such officials are investigated and, where appropriate, prosecuted.
The proponents of the current system suggest that these concerns create a compelling need for the institution of an unaccountable independent counsel outside the executive branch, and that we should not be overly punctilious about turning square constitutional corners in meeting this need. But to many thoughtful observers the cure is as bad as the disease. Moreover, the argument from necessity seems to us seriously flawed. We submit that the investigation and prosecution of high government officials can be structured to avoid the constitutional pitfalls perceived by the court of appeals while maintaining public confidence in the evenhanded administration of justice when suspicion falls on such officials.
First, a few words about the defects in the existing system. Constitutional questions aside, the system concentrates a disturbing amount of power in one pair of hands -- a feature that would normally be of substantial concern to the proponents of "special prosecutors" and "independent counsels." Today, the people appointed to the position of independent counsel -- virtually alone among public officials -- are answerable neither to other public officials nor to the electorate. This is so even though they control perhaps the most potent weapon the government can wield against a private citizen -- the power to bring criminal charges.
The lack of accountability is not the only unsettling feature of the current system. Because each independent counsel is appointed on an ad hoc basis for the limited purpose of investigating specific allegations against one individual or a small group of individuals, his decisions are made without resort to any institutional memory and without the ability (or the need) to place a case within the broader framework that has evolved in the course of exercising prosecutorial discretion in large numbers of cases. Only this could account for the truly extraordinary statement attributed to independent counsel Lawrence Walsh suggesting that he would have a duty to prosecute whenever his investigation reveals probable cause to believe an offense has been committed. We doubt that any experienced prosecutor would espouse that standard.
The unique context within which the honorable men and women who thus far have served as independent counsel have carried out their investigations and prosecutions tends to produce a dogged and single-minded inquest that may exhibit insufficient regard for the prospective policies ordinarily followed by the Department of Justice or the administrative, national security, diplomatic and other considerations that would normally shape a federal criminal investigation. A seasoned federal prosecutor in the handling of numerous criminal cases acquires a sense of perspective, fairness and judgment, which a one-shot prosecutor necessarily lacks. But the objective of the exercise should be to apply the normal standards of investigation and prosecution evenhandedly to those in high government circles (taking into account that it may be appropriate to hold such individuals to a somewhat higher standard of conduct), not to loose on them some avenging angel freed from traditional constraints on the exercise of prosecutive power.
Despite Levin's lament, the choice need not be between the present defective system, with its court-appointed Lone Rangers each fixing a single alleged miscreant between the hairs of his or her gun sights, and the pre-Watergate model of investigations controlled by the target's political cronies. There is a feasible alternative that would maintain the practical independence of the prosecutor and protect the legitimate concerns of those accused of wrongdoing, while meeting all the constitutional complaints voiced by the court of appeals.
We propose that Congress create a permanent Office of Special Counsel with the following attributes:
The office would be headed by a lawyer appointed by the president, subject to Senate confirmation. This method of appointment would meet the court of appeals' constitutional objection. At the same time, the political visibility of the appointment process would give reasonable assurance that a person of stature and political independence would be selected.
The special counsel would serve a fixed term designed to extend well beyond the presidential term during which the appointment is made -- for example, a four-year term beginning Jan. 1 of each presidential election year. This would also help to ensure that the occupant of the office had minimal political or personal ties to those he or she might be called upon to investigate.
The special counsel would be assigned the duty of investigating and, where appropriate, prosecuting high government officials and would have a modest, permanent staff that could be expanded as needed to conduct specific investigations. This institutionalization of the office would help to develop consistent standards for investigative activities and decisions whether to prosecute. It would also eliminate the need for the attorney general to perform the potentially controversial (and unreviewable) initial screening function required under the present system.
The special counsel would be subject to removal at the discretion of the president, in the same manner as other federal prosecutors. If the court of appeals is correct, this element of accountability to the chief executive is constitutionally mandated. But even if it were not, it is a desirable limitation on what would otherwise be excessive prosecutive power. The specter of Watergate does not suggest a contrary conclusion. If anything, Watergate proves that a president who unjustifiably interferes with the special counsel's investigations would pay a heavy, and perhaps fatal, political price.
The office would be placed organizationally within the Department of Justice and, as the current statute also provides, would be expected to adhere generally to the rules and regulations that govern the department's ordinary enforcement of the criminal laws. On the other hand, it should be physically housed in its own, separate quarters so that an arm's-length relationship with the department is preserved.
We are confident that an Office of Special Counsel designed along these lines would maintain the kind of practical independence that is needed to inspire public confidence that justice will be administered impartially to high government officials. At the same time, the president's ultimate power of removal, and the continuing institutional responsibilities of the special counsel, would provide a needed check against a rogue prosecution that unjustly discriminates against its targets or threatens real injury to foreign policy, national security or other important interests of the nation.
The writers are Washington attorneys who served as deputy solicitors general. Mr. Geller also was a member of the Watergate Special Prosecution Force.