The Independent Counsel Act will expire in 10 days despite persistent calls for statutory safeguards against high-level abuse of power in the executive branch. It will be allowed to lapse because Kenneth Starr and other recent holders of that office have discredited the law by over-investigating and over-indicting. They have tried the country's patience.
Ignoring the problem won't solve it. What will we do the next time serious allegations of wrongdoing arise involving the president or top presidential appointees? The current act's flaws have much to do with how it was conceived and enacted 20 years ago.
Ever since the independent counsel law first surfaced as part of the Ethics in Government Act of 1978, everyone who has attempted to devise a statutory antidote to Watergate-style abuse has faced the same dilemma: how to empower independent prosecutors without unleashing runaway prosecutors. All have failed for the same reason. They have tried simultaneously to cover two quite distinct types of problems--abuse of power by presidents, potentially justifying impeachment, and the lesser matter of possible criminal offenses by senior officials. It's now clear that's unworkable.
I say this without condescension because, as a Carter White House staffer assigned to cover ethics in government, I was significantly responsible for drafting and lobbying for the original version of the independent counsel law. With the memory of Attorney General John Mitchell's role in the Watergate coverup fresh in mind, I assumed that any credible investigation of high-level wrongdoing must proceed independently of the attorney general. Permitting the attorney general (who serves at the president's pleasure) to pick the investigator could clearly compromise any investigation, we thought at the time.
I still think that is true. But the point missed by ethics reformers past and present is that an inquiry into presidential abuse of power need not--indeed, should not--be conducted by a prosecutor and should not be a criminal investigation. Because such an investigation is in effect the first phase of a national impeachment debate, it is the start of a political process. For this, what is needed is a fact finder, someone who is effective, credible, and knows when to publish his report and go home.
Prosecutors are programmed to work in secret and find or shape facts to fit the criteria for a criminal conviction. But where major allegations against sitting presidents are involved, legal criminality is not the primary concern. Congress and the public did not need to know whether President Nixon's role in the Watergate coverup was criminal to conclude that he should be removed from office. Nor did the public need to know whether President Clinton's role in the Lewinsky affair, or President Reagan's role in Iran-contra, was criminal to reach the opposite conclusion. Moreover, in these circumstances, the public and Congress need to know the facts. Hence, the secrecy required of criminal investigations is out of place.
Investigating a sitting president requires first-rate legal and investigative skill. But it also requires political attributes of the highest order--the craft to sustain public support, the perspective to weigh the societal import of the matters under investigation, and the judgment to quit when Congress and the public have learned enough to make up their minds about what action to take. As Starr frequently points out when criticized for his legendary political tone-deafness, prosecutors are trained to ignore nonlegal factors such as these. Their mission is to secure convictions.
The threat of the overzealous prosecutor was recognized as a possibility when the act was first passed. Indeed, the decision to have a court appoint the prosecutor was actually a compromise in the original 1978 law. It was adopted in part to minimize this prospect. An earlier proposal, passed by the Senate in 1976, would have created a permanent Office of Special Prosecutor with a nonrenewable fixed three-year term. This bill was stopped in the House Judiciary Committee by Rep. Henry Hyde, the Illinois Republican, who warned that it "would generate the urge to prosecute on the part of a top-flight lawyer" and encourage "witch-hunting." After Jimmy Carter rode the anti-Watergate wave into the White House later that year, he put high on his priority list enactment of a special prosecutor law. But his staff took to heart Hyde's critique of the tough 1976 Senate bill. We persuaded the president to take the approach of having a special prosecutor appointed by a court on the basis of one case at a time.
History appears to have vindicated our claim that this approach would shield investigations from presidential control. But our hope of reining in the "urge to prosecute" has not fared as well. To be sure, the great majority of matters triggering the appointment of independent counsels under the act have in fact been appropriate for a prosecutor conducting a standard grand jury investigation. These have involved criminal allegations against senior officials, such as Housing and Urban Development secretaries Samuel Pierce and Henry Cisneros, and Agriculture Secretary Mike Espy, with no potential for prematurely ending a presidency. What is less clear is whether the effective and credible resolution of such matters requires an independent prosecutor outside the Justice Department. On the contrary, the Justice Department can be trusted to prosecute high officials below the level of the president; for example, President Reagan's Justice Department secured the conviction of Deputy Secretary of Defense Paul Thayer for securities law violations, while the Clinton Justice Department successfully prosecuted House Ways and Means Committee chairman and Clinton ally Dan Rostenkowski for personal misuse of government property.
While the Justice Department was able to handle these official corruption cases through regular channels, too many independent counsels have rampaged beyond standard departmental practice and common sense. Moreover, the record indicates that it is not the appointment mechanism that has created the kind of runaway prosecutor of which Hyde warned more than 20 years ago. Starr, Iran-contra investigator Lawrence Walsh and other independent counsels widely criticized as overzealous had solid professional credentials. They would have been likely selections for a special investigation no matter who was responsible for making the appointment. The real problem may be the absence of any effective supervision or accountability after the prosecutor is selected.
If there is a gap in the existing constitutional machinery that needs to be filled, it is not at the Justice Department, but in Congress. Congress is empowered to conduct fact-finding investigations, but it is widely perceived to lack impartiality to conduct a credible inquiry into a president's fitness for office and to be missing the focus and discipline to conduct one effectively.
What Congress should do is take a fresh look, including a review of the experience of other nations, such as Great Britain and Israel, which provide for investigations of governmental abuse by independent commissions or individual investigators. The statute that emerges from this inquiry could:
* Provide for a slate of prestigious individuals to be jointly approved by Congress and the president, from which one could be selected to conduct an inquest into substantial allegations of presidential abuse of power. An alternative, probably less likely to be effective, would be to provide for appointment of a multi-member body like the Warren Commission.
* Provide the fact finder with inquisitorial powers and prescribe severe penalties for failure to cooperate with his investigation--sanctions sufficient to discourage White House stonewalling.
* Direct the fact finder to refer to the attorney general evidence of criminal offenses discovered in the course of a White House investigation, with provision for expedited consideration and, possibly, public explanation of any failures to prosecute.
A statutory grand inquisitor would be a novel approach to getting at, and getting out, the facts about allegations that if true might justify impeachment of a sitting president. But unlike the terminally discredited independent prosecutor concept, it might work.
Simon Lazarus, a Washington lawyer, assisted in drafting the special prosecutor section of the Ethics in Government Act of 1978.
Said and Done
Four times since the original special counsel law was enacted 20 years ago (1983, 1987, 1993 and this year), Congress has battled over whether to renew the statute. Every reauthorization has brought forth calls for the act to be killed, and spirited defenses. Excerpts:
APRIL 20, 1981: Attorney General William French Smith, in a letter to the Senate's legal counsel opposing the reauthorization of the law:
The Special Prosecutor Act removes the responsibility for the enforcement of federal criminal laws and lodges it in an officer who is not appointed by, or accountable to, or save in extraordinary circumstances, removable by the attorney general or the president.
JUNE 17, 1987: John R. Bolton, assistant attorney general for legislative affairs, in a letter to the Senate Governmental Affairs Committee opposing reauthorization of the law:
No independent counsel makes a reputation by deciding not to prosecute. So every lead, every possible violation, every picky little concern is open for investigation in a way that within the Justice Department simply wouldn't be possible.
MAY 14, 1993: Sam Dash, former chief counsel of the Senate Watergate Committee, testifying before the Senate Governmental Affairs Committee:
In most cases--as we have seen--independent counsel has not been these aggressive, ferocious people who were trying to get somebody. They were independent. They were objective. They were fine lawyers who took their duties seriously, and in most cases have ended up with recommendations of no prosecution. And the public and the media accepted [the outcome]. . . .
Imagine if the Department of Justice had engaged in the same investigation--acted, by the way, with the same integrity and with the same courage--what kind of outcry there would have been of cover-up and whitewash. . . . I've heard too much about officials in the Justice Department seeing this kind of legislation as an insult to them. It is by no means that. It respects them.
FEB. 24, 1999: Sen. Fred Thompson (R-Tenn.), chairman of Senate Governmental Affairs Committee:
We set up these independent counsels. We give them all of the power that the attorney general has, without the controls, all the time, all the money. They only have one case to investigate many times. And we put on top of that. . . the terribly increased media scrutiny, which creates pressures on normal human beings, knowing that they're going to be judged in the media, usually according to how many scalps that they're able to put on the wall.
It causes them to turn over every leaf, big leaf, small leaves, everything in between--which would not be the case in a normal situation handled by normal prosecutors.
FEB. 24, 1999: Sen. Joseph Lieberman (D-Conn.), ranking minority member of the Senate Governmental Affairs Committee:
I agree that the law needs to be changed to reflect our experiences over the past 20 years. I'm even willing to consider ideas for replacing it altogether with some other statutory scheme that could achieve the same purposes, perhaps in a better way. But I just don't think we should walk away from the noble goal that motivated our predecessors in Congress to pass the Independent Counsel Statute 20 years ago: Namely, maintaining the public's trust in our government by providing that the rule of law reaches even our most powerful leaders.
MARCH 17, 1999: Attorney General Janet Reno, testifying before the Senate Governmental Affairs Committee:
I've been a prosecutor for most of the last 25 years and I think I can fairly say that the Independent Counsel Act creates a prosecutor who is unlike any other. Virtually all other prosecutors have limited time, limited budgets and a great many actual and potential targets. And so we have to make choices. . . .
The Independent Counsel Act distorts this process. In trying to ensure independence, the statute creates a new category of prosecutors with no practical limits on their time or budgets. They have no competing public duties and no need to make difficult decisions about allocating scarce resources.
APRIL 14, 1999: Independent Counsel Kenneth Starr, testifying before the Senate Governmental Affairs Committee:
The statute should not be reauthorized. The reason is not that criminality in government no longer exists. Nor is the reason that the public has grown serenely indifferent to our tradition of holding government officials to a high standard. Rather, the reason is this: By its very existence, the Act promises us that corruption in high places will be reliably monitored, investigated, exposed, and prosecuted, through a process fully insulated from political winds. But that is more than the Act delivers, and more than it can deliver under our constitutional system.