The Law Has Independence and Accountability as Well
By Alexia Morrison
It is against these emotional responses -- colored by our politics, our mores and (we are told by the pundits) by our level of satisfaction with our economic prospects -- that we are asked to analyze the wisdom of the law providing for the Office of Independent Counsel. To do that we need to step away from the current fracas, and imagine both a faceless president for whom we feel neither loyalty nor distrust and an independent counsel who has no particular persona and no known political affiliations. Only then can we find answers to the tough questions that arise when we have a "presidency in crisis."
First, if a president is the subject of serious criminal allegations, do we want the investigation to be conducted by that president's handpicked attorney general or by someone independent? Will Americans have confidence in someone who serves at the whim of the president?
If our response to either question suggests that the attorney general is not the right person -- that citizens are unlikely to trust the vindication of the president by one of his own political appointees -- then we agree with the fundamental premise of the independent counsel provisions of the 1978 Ethics in Government Act.
In response to the Watergate crisis, the act was designed to insulate our justice system from presidential manipulation and to maintain public confidence in the evenhandedness of federal law enforcement, even when high political appointees are the subject of inquiry.
Once you have agreed with the goal of the act, there is not a lot of room for tinkering with the current system. Clearly, choosing the person to be independent investigator cannot be left to an attorney general if the attorney general is not to be trusted with the investigation itself. So the independent counsel law places that decision in the hands of three members of the judiciary -- lifetime appointees who are independent of any administration.
It's not as if the independent counsel and the law, once invoked, are beyond anyone's control. The attorney general continues to serve as the gatekeeper for what is acceptable policy in federal law enforcement. If a matter comes to the attention of the attorney general -- say some aspect of a sex scandal -- and it is simply not the kind of matter with which federal law enforcement would normally concern itself, the attorney general can find under the act's standards that "further investigation or prosecution is not warranted" and refuse to seek appointment of an independent counsel.
But once the attorney general finds "specific, credible" evidence of possible criminal misconduct by a senior member of the executive branch, a preliminary inquiry must be conducted to determine whether further investigation is warranted. Unless the answer is clearly "no," the attorney general must ask the court to appoint an independent counsel.
As with all federal criminal investigations, the attorney general can circumscribe the investigation. If the attorney general says the independent counsel may look at so-and-so, but not at other individuals, that determination cannot be overturned. If the attorney general determines that some part of the hypothetical sex scandal should be beyond the reach of the investigator, but lying under oath about it -- or encouraging others to do so -- is not, that determination is similarly unassailable.
The attorney general also has a legal obligation to remove a counsel for "good cause, physical or mental incapacity." If, for example, an independent counsel is failing to live by the law's mandate to "follow as closely as possible the established policies and procedures of the Department of Justice," the attorney general can dismiss him, subject to review by the judicial panel.
Critics of the law say it is politically unrealistic to expect the attorney general to take such action in a political ly charged matter. If their concern is that removing an independent counsel requires strong evidence of "good cause," that is how it should be. If their point is that it is unrealistic to expect an attorney general to act responsibly in such politically sensitive matters, then the need for the law itself has been proven.
Suggestions that we should "reform" the law by putting controls on each independent counsel's budget and on the length of an investigation could make it unconstitutional. Who is in a position to contradict the independent counsel's determination that there is further room for productive investigation? As a matter of constitutional division of powers between branches, we cannot have the court panel deciding how the independent counsel does what he does. Similarly, Congress is constitutionally prohibited from invading the executive function of law enforcement.
If the attorney general holds all these powers over an independent counsel, why do we call him "independent"? It is not because the independent counsel has room to run wild but because he is appointed by a process that should assure independence of thought, action and appearance.
It is true that the process is affected by the identity of the independent counsel at any given time. But this is the case in every criminal investigation.
In less-publicized federal investigations, defense attorneys also complain about "outrageous" and "unfair" tactics. The complaint bureau is the same: It is the attorney general.
There are areas in which we might tinker, such as eliminating the report issued at the end of an investigation. If the counsel appointed is independent, that is the basis for trusting the result. Let the counsel speak only as other prosecutors speak -- by indicting or not indicting.
If there is a case, bring it. If not, there should be no official discourse about the allegations. The report requirement is costly and little more than a demand for independent counsels to justify their outcome. They cannot speak candidly, for the real reasons cases are not brought frequently revolve around things prosecutors should not say publicly -- a witness is not credible or a jury will not find guilt, even though a technical violation is present.
Last, we can shore up the appointment process to ensure appointees are experienced line prosecutors or defense counsels, with apolitical reputations and no apparent axes to grind. "Independent" here is not a reference to political affiliation, but it would not hurt if it were descriptive of the counsel's appearance. Let's have a list of suitable candidates with broad-based support and a willingness to serve. When an appointment is necessary, the special division of the court, which appoints independent counsel, can refer to the list for a suitable candidate.
Lots of lawyers with solid (though not necessarily high-profile) backgrounds would do competent, credible investigations. And that is all we need to complete the otherwise sound structure established by the statute.
If the independent counsel is taking too long, issuing improper subpoenas, inquiring into unreasonable areas or leaking grand jury information, the attorney general can do something about it. Going to the media -- or anywhere besides the attorney general -- suggests the complainer does not have the goods to prove "good cause" for removing him.
And if there is a good case for a removal of an independent counsel, the attorney general can fire him.
Alexia Morrison is a partner in the law firm of Swidler & Berlin. She successfully argued the constitutionality of the independent counsel law before the Supreme Court.
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