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Do We Need the Independent Counsel Act?

independent counsel

ANNOUNCER: Brought to you in part by ADM,feeding the world is the biggest challenge of the new century, ADM ispromoting soil conservation, so history doesn't repeat itself. ADM,supermarket to the world.


Additional funding is provided by the JohnM. Olin Foundation, the Lilly Endowment, the Lynde and Harry BradleyFoundation, the United States-Japan Foundation, and the DonnerCanadian Foundation.


(Musical break.)


MR. WATTENBERG: Hello, I'm BenWattenberg. By one measure, at least, the Independent Counsel Actand the office it has created have been wildly successful. Afterall, didn't Ken Starr uncover activities which a majority of theHouse of Representative

s have deemed impeachable. And yet, thestatute has never been in greater disrepute than it is today. Successful and maligned, why? Joining us to sort through theconflict and consensus are Judge Robert Bork, John M. Olin Scholar inLegal Studies at t

he American Enterprise Institute, and authorof The Tempting of America, The Political Seduction of the Law; andPaul Rothstein, a law professor at Georgetown University, where hewill be teaching a seminar on the independent counsel next semester. The

topic before this house, judging theIndependent Counsel Act, this week on Think Tank.


(Musical break.)


FORMER PRESIDENT NIXON (From video): Ishall resign the presidency effective at noon tomorrow.


MR. WATTENBERG: The Watergate scandalwhich brought down President Nixon gave rise to the IndependentCounsel Act. After all, it was Attorney General John Mitchell,appointed by Nixon, who actually headed the group that funded theWatergate break in.

And it was Elliot Richardson, alsoappointed by Nixon, who resigned after orders from Nixon to fire thespecial prosecutor investigating Nixon. These events led to a fearthat an independent investigation of a president or other highranking government officials by the Justice Department wasimpossible. As a result, Congress enacted an independent counselstatute in 1978 to address this apparent conflict of interest.


Since then, the act has withstood achallenge before the Supreme Court, and it has resulted in severalhigh profile investigations. The best known and most controversialbeing Lawrence Walsh's investigation of the Iran Contra Affair, andKenneth Starr's investigation of President Clinton. Critics offer anumber of complaints. Norman Ornstein argued in the Washington Postthat the counsels themselves are granted unlimited budgets, unlimitedtime frames, and virtually open invitations to expand theirinvestigations wherever their egos or ambitions take them. And thepublic seems to agree with that.


Sam Dash, one of the architects of theindependent counsel statute, argued that the public's distaste forthe statute comes merely from seeing the standard tactics ofprosecutors up close. And he recently argued that there is nothingnew about a target or a target's counsel blasting the prosecutor forabuse and unfairness. Regular federal prosecutors often face justthis kind of attack, but they are generally not nationallynewsworthy.


Gentlemen, welcome. Let's just briefly. Is Sam Dash right that all the horribles that see about theindependent counsel is what goes on regularly in a day-to-day basisin normal federal prosecutors' offices, and we just get shockedbecause we see it?


JUDGE BORK: I don't think it goes onregularly. I think it does happen. And you will see politicallymotivated prosecutions among regular prosecutors, and you will seepeople hounded by regular prosecutors. But it's not a regularfeature, nor is it a regular feature of the independent counselstatute.


MR. WATTENBERG: Paul, what do youthink?


MR. ROTHSTEIN: Well, I think the toolsthat Ken Starr used are tools that are in the arsenal of everyprosecutor. But the question is, when does judgment dictate that yousoft-peddle them, and when should you use them? Usually, we only seethem used against Mafia figures, murderers, drug cartel bosses, and Ithink people are offended that it was used in a more kind of averagelooking setting.


MR. WATTENBERG: Well, in a normal perjurycase, would it be unusual or irregular to call a witness' mother asMonica Lewinsky's mother was called who, after all, was in on thealleged cover-up? Everybody was aghast at, oh, my God, you'd call awitness' mother.


JUDGE BORK: Oh, no. I think regularprosecutors call family members regularly to ask them about thesuspects. In Monica Lewinsky's case, or Marcia Lewis' case, hermother, she bargained for and got immunity, which indicates that shehad her own troubles. Perhaps out of her testimony before the grandjury.


MR. ROTHSTEIN: I think maybe the legacyof Mr. Starr here will be that people will question whether evenregular prosecutors ought to have these powers. It's brought home topeople there may be some objectionable Big Brother aspect to regularprosecutors.


MR. WATTENBERG: Okay. Let's just go backand do a little history of this thing so we can understand why therewas a necessity to set up this Independent Counsel Act. If you goback to 1961, John Kennedy appointed his brother as attorney general. Is that sort of the kind of thing that set up the demand for thissort of a thing?


JUDGE BORK: It should have, but it didn'tat the time. I don't think it came about until the firing ofArchibald Cox, and even then it took four years and Jimmy Carter toget the statute through. Because, as a matter of fact, in the Nixoninvestigation, the Department of Justice was looking into it. TheWashington offices of the U.S. Attorney had made pretty much thecase, they had the outlines of the case made, including a caseagainst Nixon. They turned that material over to the specialprosecutor when he came in.


MR. ROTHSTEIN: But Attorney GeneralMitchell under Nixon was a part of the whole Watergate mess. He wasone of the crooks. So that's the problem. And I think anindependent counsel does properly address that problem, although Ihave some quarrel with it.


MR. WATTENBERG: Before that -- and, Imean, the argument is that the Justice Department won't investigatepart of the Executive Branch, but the Justice Department took it toSpiro Agnew to a point where he had to resign. I mean, he was vicepresident. You were in on that.


JUDGE BORK: Yes, I was. I wrote thebrief against him. And, we were prepared to prosecute him, and wouldhave prosecuted him except for the fact that he plea bargained. Andthe only reason he was able to plea bargain was that Nixon was introuble and the Attorney General Elliot Richardson felt that itwouldn't do to have the vice president up on criminal charges at thesame time the president was being impeached. So he let Agnew pleabargain and to get Gerald Ford in or to get somebody in as the newvice president.


MR. WATTENBERG: So, that would indicatethat the Justice Department can prosecute --


JUDGE BORK: That's what I always thought. I no longer think that. I think this Justice Department ispoliticized from top to bottom.


MR. WATTENBERG: The so-called SaturdayNight Massacre, you were involved in that also.


JUDGE BORK: I was, indeed.


MR. WATTENBERG: Now, how did that changethe views of people?


JUDGE BORK: Well, I think it did look topeople as if a coup were being attempted. As if the investigation ofNixon were to be stopped. But that was not the case. Nixon neverasked anybody but Cox be fired, or anything else. I talked to Nixonthat night, to remind some of you viewers, I fired Cox. I talked toNixon that night, and he said that he wanted a prosecution, not apersecution. He really thought that Cox was an ally of and an toolof the Kennedys. He was a close ally of the Kennedys. There's noevidence that Cox misbehaved at all, but Nixon was paranoid abouthim. But he had no idea of turning off the wholeinvestigation.


MR. ROTHSTEIN: I think, though, as amatter of principle, there's something wrong with the fox guardingthe chicken house. There are bad incentives. So, I think you needto have an independent counsel, although I would severely limit it,and also I think the idea of an impeachment report by an independentcounsel against the president really turns the Constitution on itshead, circumvents the political constraints that the founding fathershad in mind when they entrusted the investigation to Congress.


MR. WATTENBERG: And yet, you are in favorof an Independent Counsel Act?


MR. ROTHSTEIN: I am in favor of anIndependent Counsel Act with some pretty severe limits that we needto have.


MR. WATTENBERG: All right. Let's justcontinue quickly the history of this thing. The first really bigIndependent Counsel Act is Lawrence Walsh's. Can you all give ussort of a capsule of that?


MR. ROTHSTEIN: Yes. President Reagan, orhis men, his cohorts, were circumventing some pretty expresscongressional mandates that you not aid terrorist countries likeIran, and that you not aid the Contras in our own hemisphere. And,so they said that they weren't doing this, but in fact they weredoing both of these things. And that was a circumvention ofcongressional policy, and possibly criminal, and there was some lyingand cover-up. It's always the cover-up that gets people. It may nothave been illegal to exercise what is arguably the president'sconstitutional powers in these areas. But the cover-up was illegal,and several of the president's men got hung up on lying in officialproceedings, and to official investigations. And Independent CounselWalsh was appointed to investigate the whole Iran Contra Affair. Itwent on and on.


JUDGE BORK: I don't think we have time togo through the case of what Walsh did.


MR. WATTENBERG: Seven years.


JUDGE BORK: I know. And I don't think,for example, the sum of what he called lying was lying. I think heexerted enormous pressure, financial pressure, and other kinds ofpressure to get people to plead guilty.


MR. WATTENBERG: As in the case of ElliottAbrams.


JUDGE BORK: Elliott Abrams.


MR. WATTENBERG: Elliott Abrams haswritten a wonderful book about the experience, and it's just--


JUDGE BORK: Completely misguidedjustice.


MR. WATTENBERG: It's persecution, Ithink.


JUDGE BORK: Yes. And I think -- but,oddly enough, Walsh's outrages, and they were outrages, for example,four days or three days before the election, he indicted CasperWeinberger and dropped a note suggesting that George Bush, who wasthe candidate, knew more about Iran Contra than he let on. That wasa purely political use of the office.


MR. WATTENBERG: Do you agree withthat?


MR. ROTHSTEIN: No. I don't. I don't seethat Walsh would have any real political stake in this, and I thinkprosecutors get committed to their case, and they get mad at thepeople who are resisting them. And this was just ordinary prosecutorstuff.


JUDGE BORK: I think it's personallymotivated more than politically motivated. I think Walsh became thezealot that Ken Starr is unfairly accused of being. But you getthere. One of the problems with the statute is that it produces somesavage injustices to individuals.


MR. ROTHSTEIN: It makes people zealots, Iguess. It makes the independent counsels, some of them,zealots.


MR. WATTENBERG: But isn't there an aspecthere for whose ox is being gored? In other words, Bob Bork, when itwas Lawrence Walsh attacking Republicans, some of whom werecolleagues of yours and good friends of yours, you thought Walsh wasterrible, right, for doing this. Now, you are saying that Starr hasbeen right, and the Democrats are saying the Independent Counsel Actis terrible.


JUDGE BORK: Oh, sure.


MR. WATTENBERG: So, I mean, you keep--


JUDGE BORK: Well, I don't think you cansay that quite that simply.


MR. WATTENBERG: I don't know who's beenconsistent. Have you been consistent on this over the years?


MR. ROTHSTEIN: Well, I have. There areabuses both in that one, Iran Contra, and in this one, and theindependent counsels in both of them have become a bitoverzealous.


MR. WATTENBERG: Okay. Now, this act isgoing to come up for renewal this year, 1999, is that right?






MR. WATTENBERG: You have alluded severaltimes as to what you think ought to be done with it.


MR. ROTHSTEIN: I think they should getrid of the part that allows the independent counsel to make animpeachment report, because the founding fathers said this issupposed to be an investigation done by Congress, and if the politicsand the people are against it and it's unpopular, it will never bedone. It should be done out in the open, not by a secret grand jury. Ken Starr used the grand jury as cardboard cutouts. There wasnobody -- he wasn't going to indict the president, a sittingpresident can't be indicted. So that grand jury was just there doingnothing. He was just using their powers to essentially compile animpeachment report. It turns the Constitution on its head. I thinkit's a bad idea. There never would have been this impeachment effortwithout that.


MR. WATTENBERG: So, what's thealternative to that?


MR. ROTHSTEIN: To do what the foundingfathers designed, which was that the investigation should be done bythe Congress, and it will never be opened. First of all, it would bein public, and it would never be opened if it were unpopular.


MR. WATTENBERG: But some of theseinvestigations --


JUDGE BORK: I have a lot of problems withthat. In the first place, Ken Starr was investigating a lot ofpeople, not just the president and people around the president, whoclearly were indictable without impeachment. In the second place, Idon't know that the Constitution says the thing must be done entirelyby the House, without this kind of assistance. Finally, Jaworskiturned over grand jury testimony to the House ofRepresentatives.


MR. WATTENBERG: This is Leon Jaworski--


JUDGE BORK: Leon Jaworski was a specialprosecutor in Nixon's case.


MR. ROTHSTEIN: Jaworski didn't write anadvocacy paper drawing conclusions. He just transferred information. And in fact, that's what the current independent counsel act callsfor. I think Starr stepped well beyond that. Also, if Starr hadjust compiled this material in the course of investigating otherpeople, in a legitimate grand jury function, that would have beenokay. But, at the end there, his grand jury was just focused onimpeaching the president. I think that's overstepping.


JUDGE BORK: No, no. In the first place,he could file a sealed indictment, or indict the president after heleaves office. So the material he gathered was relevant. In thesecond place, I think when he went up to Congress, the statue sayshe's to turn over evidence which may lead to impeachment, which maybe relevant to impeachment.


MR. ROTHSTEIN: It doesn't say write anadvocacy paper, though.


JUDGE BORK: Well, he has to explain whyhe thinks the evidence is relevant to impeachment.


MR. ROTHSTEIN: Or he could do whatJaworski did, you just transfer the information. Then I think that'swhat the statute calls for.


JUDGE BORK: Jaworski -- a moment ago, asyou were pointing out, Jaworski was not under that statute, and hewasn't required -- he wasn't required to turn over evidence which inhis judgment might be evidence leading to impeachment.


MR. ROTHSTEIN: But, he did.


JUDGE BORK: Wait a minute. And whenStarr had that evidence, turned it over pursuant to a statute, whichsaid it had to be something that in his judgment might lead toimpeachment. Then when he's called, I think he has to explain why hethinks it's relevant to impeachment.


MR. WATTENBERG: Paul, you were taking, Ithink, basically the position, as I recollect, that Sam Dash took,which is -- he was the ethics advisor to the Starr investigation, andhad been the person who actually was instrumental in writing theIndependent Counsel Act. His point was that what Starr did wasalright, but he jumped ship and said that what was wrong was whenStarr did this act of advocacy when he testified. Is thatright?


MR. ROTHSTEIN: That's correct. Now, SamDash draws a distinction between the written materials that Starrsubmitted, which he said was not advocacy, which I say is advocacy,and the oral presentation of Starr before Congress.


JUDGE BORK: I think Sam Dash was lookingfor a chance to jump ship. I think he was looking for a chance tojump ship. And I think he did a grave disservice to Starr, and Ithink it was unjustified.


MR. WATTENBERG: I want to ask you aschizophrenic question. I want you to give the me the answers firstof the old Bork, and now the new Bork. The old Bork, who was againstthis independent counsel case, make that case for me, justrat-tat-tat, because I know you can.


JUDGE BORK: Well, I think the statute isunconstitutional, because the Constitution plainly says the presidentis to see the laws are faithfully executed. He is the chief lawenforcement officer. They have effectively taken much of that out ofhis hands. I don't think you can do that. However, the SupremeCourt has said you can do it.


MR. WATTENBERG: That's Morrison v. Olson,right?


JUDGE BORK: Morrison against Olson, yes. And the second point, the second major point was that I thought theDepartment of Justice could be trusted, because of my experience inthe Spiro Agnew case, to go against -- to investigate and prosecuteits own. I no longer believe that.


MR. WATTENBERG: Just to flesh out thatanti-case, I mean, the case is made that they are accountable to noone, that they have no time limits, that they have no money limits,that they turn --


JUDGE BORK: Well, that's --


MR. WATTENBERG: That they turn intozealots, by all of that.


JUDGE BORK: Not all of them do. Therehave been some highly honorable independent counsel.


MR. WATTENBERG: Are they'accountable'?


JUDGE BORK: Not really.


MR. WATTENBERG: Now, I want the newBork.


JUDGE BORK: Well, the new Bork is this, Istill think that statute is unconstitutional, but the Supreme Courtsays otherwise. I think, however, this administration has proved thevalue of the independent counsel statute. If you look at thisadministration and its history, I think -- I'm not going to gothrough all of the --


MR. WATTENBERG: Well, give us some tawdryhighlights, as you see them.


JUDGE BORK: Well, everything from perjuryand obstruction of justice, as we know in the cases, to the gatheringof FBI files, which I think is a much more serious matter,transferring raw FBI files to the White House, to the pay-off to WebbHubbell.


MR. WATTENBERG: But, Kenneth Starrindicates that the president had no knowledge of that.


JUDGE BORK: He doesn't indicate -- Idon't think he indicates that. I think he indicates he hasn't got acase.




JUDGE BORK: But, one is entitled to lookat this stuff, and say what the probabilities are. Now, indictmentbeyond a reasonable doubt, perhaps not. But, somebody in the WhiteHouse did that stuff.


MR. WATTENBERG: Well, they have looked atit. And they haven't come up even with an indictment of CraigLivingstone.


MR. ROTHSTEIN: See, I think that's dirtypool. If you'll forgive me Judge Bork. I have a great deal ofrespect for Judge Bork.

MR. WATTENBERG: We all have a great dealof respect for Judge Bork.


MR. ROTHSTEIN: I think it's dirty pool tointroduce things that have been looked at and have beendropped.


JUDGE BORK: Well, I don't think so. Idon't think so, because I think a reasonable person, looking at thehistory of misbehavior of this White House, thinks that there is apattern there.


MR. ROTHSTEIN: It's starting with anassumption that they are bad guys, and therefore there must be some--


JUDGE BORK: I don't think you start withan assumption. If you looked at the stuff, from the travel officefirings, to the removal of the files from Vince Foster's office atnight, which was -- you know, even Phil Hyman (sp), who is the deputyattorney general, said to the White House counsel, you're trying tohide something, and those files disappeared. To the consulting feesof, what, $500,000-700,000 to Webb Hubbell, who could have testified,and the consulting fees, he was on his way to prison, he couldn'tconceivably have earned those consulting fees.


MR. ROTHSTEIN: You know, the Vince Fosterthing, I think it's the White House's duty to look at documents thatare in a sensitive office before they turn them over.


JUDGE BORK: Before the Department ofJustice?


MR. ROTHSTEIN: Yes, there may be nationalsecurity questions there.


JUDGE BORK: The Department of Justicelooks at national security matters and decides --


MR. ROTHSTEIN: But, only under specialprocedures and special safeguards. You don't just turn them over tothe White House guards.


JUDGE BORK: There wasn't even any claimthat that was true, and you had the Justice Department -- I don'tthink Congress, unfortunately, has proved itself capable ofinvestigating these matters adequately. I think you need anindependent counsel. The

Department of Justice, I think the factalone that Janet Reno will not appoint an independent counsel to lookinto the Chinese money contributions to the Democratic campaign, whenthe director of the FBI and her own special investigators say thatthe law requires her to appoint one, and she won't do it, I thinkthis Department of Justice is politicized.

MR. WATTENBERG: What do you think ofJanet Reno.


MR. ROTHSTEIN: I actually think JanetReno is a sterling person, and I think there should be barriers, highbarriers to appointing an independent counsel, because otherwise itcan be used as a political instrument.


MR. WATTENBERG: But, here you have thehead of the FBI and her own chief of her task force saying that thereought to be an independent counsel appointed on this campaign financething, and she's saying no way.


MR. ROTHSTEIN: Well, I looked at it, andI think they're just wrong. This is such a welter of arcane anddifficult to parse regulations, that you can't say a person committeda crime. They draw a distinction between issue advocacy andsupporting a candidate. That's impossible to hue that line. Gingrich got into trouble over the same thing. So I just don't thinkyou should appoint independent counsels on that sort of thing.


MR. WATTENBERG: We are running out oftime. Both of you now favor, for different reasons, the retention ofthe Independent Counsel Act; is that correct?


JUDGE BORK: I'd do it -- let me say, I'ddo it because I think the presidency has become a real threat in thiscountry to our form of government.


MR. ROTHSTEIN: We are in the minority onthat, because I don't think the Independent Counsel Act will berenewed.


MR. WATTENBERG: Well, that's my nextquestion. Just to go out on this, give me a prediction, theIndependent Counsel Act is up for renewal, what's going tohappen?


MR. ROTHSTEIN: Probably not renewed, orif renewed with some very severe restrictions, along the lines that Isuggested.


JUDGE BORK: Probably not renewed, I thinkthe -- it would have been renewed so long as it was thought to applyonly to Republican presidents. Now, I think the Democrats have seenwhat it can do and they're not going to renew it.


MR. ROTHSTEIN: Both sides have seen whatit can do, and they don't like it.


MR. WATTENBERG: So it would then go backto a situation where -- if it's not renewed, where the JusticeDepartment would rely on its professional staff to insulatethemselves from whatever pressure, and do their jobs.


JUDGE BORK: Which I think has turned toout to be inadequate.


MR. WATTENBERG: Inadequate?


JUDGE BORK: Inadequate.


MR. ROTHSTEIN: They may beef up someindependents within the Justice Department, have an office ofindependent counsel within the Justice Department.


MR. WATTENBERG: But, as far as you'reconcerned, that would still be fox in the chicken coup kind ofthing?


MR. ROTHSTEIN: Yes, it would be.


MR. WATTENBERG: Okay. Thank you verymuch Paul Rothstein, and Bob Bork.


And thank you.


We received a great deal of mail on ournuclear power program, most questions dealt with who pays for thedisposal of nuclear waste, thus my husband and I were both surprisedthat a discussion about nuclear power failed to mention the very realconcern of the waste that this energy creates. Your discussionemphasized the economics of nuclear power, however the costs ofdisposal and containment, as well as the costs of warning futuregenerations of the hazardous waste was never mentioned.


Let me respond to that. Disposal ofnuclear waste is, generally, included in the cost of nuclear power. The government through the Department of Energy transports anddisposes of spent nuclear waste. But, the nuclear industry, and youits customers, do pay the costs. To date, $15 billion have beenraised by taxing nuclear utilities customers 1/10th of 1 cent forevery kilowatt hour consumed, $7 billion of that amount has beenspent to date with $2 to $3 billion of that going into a centralfacility at Yucca Mountain, New Mexico, a facility which was shown onour program, but not discussed. The Yucca Mountain facility is nowin the process of extensive safety testing. So if you get some ofyour power from nuclear energy, you pay for its disposal.If youdon't, you don't.


We read and appreciate our mail, pleasekeep it coming.


For Think Tank, I'm Ben Wattenberg.


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(Musical break.)


ANNOUNCER: This has been a production ofBJW Incorporated, in association with New River Media, which aresolely responsible for its content.


Brought to you in part by ADM, feeding theworld is the biggest challenge of the new century. ADM is promotingsoil conservation, so history doesn't repeat itself. ADM,supermarket to the world.


Additional funding is provided by the JohnM. Olin Foundation, the Lilly Endowment, the Lynde and Harry BradleyFoundation, the United States-Japan Foundation, and the DonnerCanadian Foundation.


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