|THE PROSECUTION RESTS|
June 30, 1999
JIM LEHRER: The quiet death of the independent counsel law. Kwame Holman begins.
KWAME HOLMAN: The Independent Counsel Statute was created 21 years ago in the wake of Watergate, after President Nixon ordered the firing of special prosecutor Archibald Cox. Since then, there have been 20 separate independent counsel investigations launched during the administrations of four presidents. But the law is due to expire at midnight. And so, should tomorrow morning's Washington Post, for example, report evidence of criminal wrongdoing by the president, vice president, or other top administration official, Attorney General Janet Reno will have to conduct any investigation of the matter within the confines of the Justice Department. If she had to oversee such an investigation herself, Reno, who also is a member of the administration, could be accused of having a conflict of interest. That's the very problem the Independent Counsel Statute was designed to prevent. Nevertheless, members of Congress not only will let the Independent Counsel Statute lapse, they've shown little interest in resurrecting it anytime soon.
SEN. DANIEL INOUYE: Do you solemnly swear -
KWAME HOLMAN: Many congressional Republicans cite the six-year, $48 million Iran-Contra investigation as an example of how the process can be politicized. Independent Counsel Lawrence Walsh announced an indictment, which cast a shadow on George Bush just five days before the 1992 election. And many Democrats point to Kenneth Starr's Whitewater investigation that, over the last five years, grew to include so much more. When asked his opinion of the Independent Counsel Statute in April, Starr recommended against its renewal.
KENNETH STARR: The statute, in sum, tries to cram a fourth branch government into our three-branch system. But invariably, this new entity lacks, in Mr. Madison's phrase, "the constitutional means to resist encroachments." The result is structurally unsound, constitutionally dubious, and, in overstating the degree of institutional independence, disingenuous.
KWAME HOLMAN: Attorney General Reno has requested the appointment of six independent counsels, more than any of her predecessors. But it was the independent counsel she didn't request, to investigate charges of campaign fund-raising abuses by the administration, that drew intense political criticism.
SEN. TRENT LOTT: Why hasn't the attorney general, Reno, appointed an independent counsel to investigate these matters?
SEN. DON NICKLES: I don't see how she has any other choice.
KWAME HOLMAN: Such political pressure is just one of the reasons Reno opposes renewing the Independent Counsel Statute.
JANET RENO: This climate of criticism and controversy weakens rather than strengthens the public's confidence in the impartial exercise of prosecutorial power. And that, at the end of the day, undercuts the purpose of the act.
KWAME HOLMAN: While no new independent counsels can be appointed, ongoing investigations of cabinet secretaries Alexis Herman and Bruce Babbitt and former secretaries Mike Espy and Henry Cisneros will continue to their completion, as will Kenneth Starr's investigation of President Clinton. Today, Starr said he would try to complete his investigation soon.
KENNETH STARR: These matters have been going on for a considerable period of time, and it is in the public interest, we believe, to find an appropriate and, we believe, just disposition of these matters, and to try to bring our work to as orderly a conclusion as possible.
|Goodbye to the independent counsel law.|
|JIM LEHRER: And to the leaders of the Senate Governmental
Affairs Committee: The chairman, Senator Fred Thompson, Republican of
Tennessee; and the ranking Democrat, Senator Joe Lieberman of Connecticut.
Senator Thompson, I take it you're crying no tears over the death of the
Independent Counsel Law tonight?
SEN. FRED THOMPSON: No. I've suggested that we thank all those who have served well in the past, and there have been many good independent counsels, but then give it decent burial and move on.
JIM LEHRER: What was the problem, Senator? Was it just a bad idea to begin with, or was it badly executed through the years? Senator Thompson?
SEN. FRED THOMPSON: I can't hear you.
JIM LEHRER: You can't hear? Senator Lieberman, can you hear me?
SEN. FRED THOMPSON: We're back on.
JIM LEHRER: All right. You're back. Senator Thompson, my great question was as follows: Was it a bad idea to begin with, or was it just bad in the execution?
SEN. FRED THOMPSON: I really think that it was flawed to begin with. What we've tried to do is kind of go around our system of checks and balances and bring in someone outside the system so-called, kind of a white knight on horseback to come and take care of the responsibilities that are given to the Executive Branch and to the Legislative Branch really to oversee the Executive Branch. I think that ultimately you're going to have the kind of problems that we had. You have independent counsels out there who sometimes misuse the broad discretion that Congress gave them and the mandates that Congress put on them. And recently, we've been exposed to a new flaw in the process, and this is they're vulnerable, the independent counsels themselves are vulnerable from attack by those who they are investigating. And that just causes, I think, skepticism, cynicism with regard to the whole process. We'd do better to get back to constitutional fundamentals and put the responsibilities back where they were before the independent counsel law was passed.
JIM LEHRER: Now, Senator Lieberman, you hold a different view. You think things should continue.
SEN. JOSEPH LIEBERMAN: I'm not ready for a proper burial. I'm working toward a rebirth. And I'm actually expecting that there will be a rebirth, whether we bring it about before there's another crisis in which some high official of our government is suspected of criminal wrongdoing or at a time of such crisis, when I will predict to you, as has happened before, members of Congress will demand independent investigation. This is all about the rule of law and whether when the highest officials of our government are suspected of committing a crime, they can essentially investigate themselves. And while there's no perfect system, it seems to me that it's much preferable to have a counsel not appointed by the attorney general and not subject to being terminated by the attorney general. And it is constitutional. The Supreme Court said that in the case of Morrison versus Olson that the Independent Counsel Law was constitutional. And while some of the counsels have trade a bit, they are accountable. They've got to convince a court, as Judge Starr saw, and in the case of impeachment, Congress. What they're asking for is correct, and in both cases, Judge Starr was turned down.
JIM LEHRER: So you don't see the Starr investigation necessarily as a reason for doing away with the Independent Counsel Law?
|The Starr investigation.|
SEN. JOSEPH LIEBERMAN: No. I see the Starr investigation and some of what I would call its excesses as a reason, a basis for us to amend the law when, as I believe we should, we reenact it. For instance, I think we ought to narrow the number of high officials of our government who are subject to this investigation. We ought to -- independent counsel. We ought to raise the threshold a bit for when the counsel gets appointed. We ought to limit the time in which the counsel can carry out its work and say that unlike Judge Starr, the independent counsel just can't hop scotching from one related or unrelated investigation to another to a point where it appears that he is really pursuing a person or persons rather than a crime. And Senators Collins, Levin, Specter and I have submitted a package that we think applies to lessons that we learned from Judge Starr's experience and other independent counsel.
JIM LEHRER: But you won't buy that, Senator Thompson, right?
SEN. FRED THOMPSON: Well, I think the proposals that Joe and my other colleagues have made certainly improve on the current situation. There's no question about that. But you can't get around some inherent problems. One of the main problems is when do you bring in an independent counsel? We've shown that we can't have any effect on an attorney general, who persists in not activating the Independent Counsel Statute, even if it's pretty clear that she should.
JIM LEHRER: You're talking - excuse me -- you're talking specifically about the campaign financing. You were really hot about that yourself, were you not?
SEN. FRED THOMPSON: Yes. It's right. I don't think she did the right thing there. She appointed independent counsels in cases that may well should not have required one, and she refused to appoint one in the most egregious case of them all, where Labella, Freeh, and others recommended it. So that's the first hurdle that you just can't get over constitutionally. But it's not like that we're abandoning the idea that you can't investigate yourself. I agree with my colleagues on that. But what the attorney general can still do under a statute that I've proposed is bring in a special counsel on occasion. Griffin Bell has done that in times past. Over attorney generals have done that in times past. When you have a conflict of interest or other circumstances that call for it, bring in a special counsel for a brief period of time, however long it takes, but not have all the rubric and all of the detailed reporting requirements and all these other things that have gotten us in trouble. That will give more accountability to the attorney general. She can't hide behind the intricacies of the statute anymore. She just has to answer the clear question: Is this a conflict situation? Would the public be -- have more confidence in the investigation if we brought in someone from the outside?
JIM LEHRER: But you would still be in a position where all you could do is raise Cain with him or her -
SEN. FRED THOMPSON: That's right.
JIM LEHRER: -- if you didn't like it?
SEN. FRED THOMPSON: That's the situation under an Independent Counsel Statute. That would be the situation under a Special Counsel Statute. But accountability would be clearer under my proposal. There wouldn't be the details of whether or not this is a covered person or whether or not there is a - there are -- all of the triggering requirements of the statute are present and all of that. Those are the things the attorney general talks about now. The real question is whether or not this is a conflict, would public confidence be enhanced? That's the question that ought to be asked. Have accountability there. And if she doesn't do her job, attorney generals in the future, it's not just personal to this one, then Congress has got to exercise its oversight role I think more aggressively. We have the power of the purse. We have power of appointment. And ultimately the American people at the ballot box can have some say in this.
JIM LEHRER: Senator Lieberman, wouldn't that make things simpler?
SEN. JOSEPH LIEBERMAN: Well, Fred's proposal is well intended, but a special counsel is not an independent counsel. And that's the point. When -- that's why I talked about the rule of law. I think we want to prove here in fact but also in the appearance to the American people that when we're investigating the highest officials of our government for possible criminal behavior, that that investigation won't be controlled by them. And that gives the independent counsel the credibility not only to indict and prosecute, but also to say that the suspected individual did not commit a crime -- and to do so with some credibility. What I worry about -- Attorney General Reno, Jim, has promulgated some regulations, which will guide her as she implements her new special counsel status. And they're very controlling. They not only give her the power to appoint the special counsel, but require the special counsel to notify her of any significant actions he's going to take, either investigative or prosecutorial, and then give her the capacity to veto those actions. And she can terminate him for cause, but he doesn't have or she, the independent counsel, special counsel doesn't have the ability to appeal to the court. So this is going to be -- this special counsel will be very much like a regular Justice Department attorney.
JIM LEHRER: But what about Senator Thompson's argument there's nothing wrong with that because at least somebody's accountable?
SEN. JOSEPH LIEBERMAN: Well, I think you've got a choice here between accountability. I have a feeling that the kind of frustration that Fred Thompson and others felt when the attorney general did not act to appoint an independent counsel in the campaign finance case would be even magnified because of the retention of authority under the current proposal. And I would always err on the side of creating this option for a fully independent person to investigate high officials of our government. I think one of the reasons why there's so much cynicism toward people in government today is the lack of trust, the feeling that there may be a double standard. And I think that an independent counsel is our best answer to that distrust.
JIM LEHRER: Now Senator Thompson, before we go here now, both of you have proposals. You have one that kind of continues a pre-independent counsel status quo -- what you outlined a moment ago. Senator Lieberman and some of his colleagues have a different proposal. In the meantime, what happens after midnight tonight? Our example that Kwame Holman had in the setup, we pick up the Washington Post in the morning -- new allegations. What happens?
SEN. FRED THOMPSON: The attorney general still has the authority to bring in someone from the outside to look into a situation where a conflict is presented. There are also regulations that will not be abolished that will be in effect that have been passed that pretty much is consistent with what they're working on now. I agree with Joe with regard to the regulations. This is something that congress ought to have an input on. And this is where we can ensure, I think, a certain amount of independence. My statute or my proposal would have a statute with the discretion I described, but it would also require the attorney general to promulgate regulations. The Congress would have to agree with them. And I think that's where we can have significant congressional I input. I think -- I think this discussion shows that what we're trying to do here is achieve a proper balance between independence and accountability. We've achieved with the Independent Counsel Statute, I think, a large manner, a large amount of independence, but we've concluded, I think, many of us have, that on balance, we've sacrificed that to accountability. And that's what we need to get back to.
JIM LEHRER: Gentlemen, thank you both very much.
SEN. JOSEPH LIEBERMAN: Thank you, Jim.
SEN. FRED THOMPSON: Thank you.