interview: samuel dash


The former chief counsel to the Senate Watergate Committee is considered the "father of the independent counsel law." Dash now teaches law at Georgetown University and served, until November 1998, as Ethics Advisor to Independent Counsel Kenneth Starr. This interview was conducted in May 1998, before the expiration of the independent counsel statute on June 30, 1999.

CONSTITUTIONAL PLACE OF THE INDEPENDENT  COUNSEL

Describe for me the constitutional place, if you will, of the independent counsel. The founding fathers provided for an executive branch, headed by the president, and for a legislative branch and for a judicial branch, but I haven't seen any mention in the Constitution of something called a special prosecutor or an independent counsel. So where does it fit in?

Well, it fits into our concept of checks and balances. And Madison, for instance, one of the founders for the Constitution and our Bill of Rights said something very interesting that has lasted through time. He said, "If men were angels, we wouldn't need government or checks and balances, but we're not angels." And he really supported certain discrete types of institutions that are born from time to time to carry out the concept of keeping government honest. The concept of an independent counsel, specially recommended by the Attorney General and appointed by a court, became necessary in the history of our country when it became clear that a president like Richard Nixon, being investigated by a special prosecutor, had the power to fire that special prosecutor, not on any cause or merit, but because that special prosecutor was getting close to home in proving the president's guilt.

And it occurred to us in Congress - I was chief counsel of the Senate Watergate Committee - that there is something wrong with that system, that we could never continue... to give the power to fire the prosecutor to the president, particularly when he is being investigated.

And we came up with this auxiliary procedure that Madison spoke about, a specially appointed independent counsel, recommended by the Attorney General and appointed by the court. The issue of constitutionality, as to whether that could fit within our Constitution, came up before the Supreme Court in the Morrison case. There, the Supreme Court upheld the constitutionality of this statute on the ground that it didn't take away from the executive branch the essential power of prosecution, since it gave to the Attorney General two important powers: the power to determine that there is need for such an independent counsel, and ultimately the power to fire the independent counsel for cause. Therefore, this was a perfectly valid constitutional officer.


APPOINTMENT OF THE IC - THE SPECIAL DIVISION

Tell me, professor, exactly what the Special Division is.

The Special Division is created by the statute. And there are three usually senior judges of the Court of Appeals. And they're appointed by the Chief Justice of the Supreme Court. And the purpose of the Special Division, [in accord with] the strategy of the statute is to take the appointment power of the prosecutor out of the hands of the traditional executive - the President or the Attorney General - because of conflict of interests.

There has to be an appointing authority. Initially it was my idea that the best appointing authority ought to be the judicial branch, because of not only the general respect for the judicial branch, [but] the fact that the judicial branches in federal courts are lifetime appointees. There really is no reason for them to do anything but something on the merits, [so it makes sense] to let those judges appoint the independent council....

So... the three judges are appointed by the Chief Justice. And they're the ones who, when the Attorney Generalfinds specific and credible evidence and the need for further investigation, [receive the application for the appointment of an independent counsel]. They make a determination from the bar who would be the best person to be that counsel.

They do not change the jurisdiction or mandate. They take the same mandate that the Attorney General gives them. They must do that. They also must appoint an independent counsel. In other words, they do not play an intermediate judicial role. They're actually ministerial in this case. If they were to play an intermediate judicial role they would be actually supplanting the authority of the executive branch. It's the prosecutor, the Attorney General, [who] makes the decision there should be an independent counsel.

But the judges are the ones on that request who must fill the appointment. But they must, of course, make an appointment on merit, and they're the ones trusted to do it. But they've got to do it. And they can't expand the initial mandate. Later they can interpret the law to see whether or not an addition is a related matter.

And what is the mechanism through which we are to invest in them our trust of independence?

Well, the mechanism is that they are part of the federal judicial system.... The federal system is an appointment for life. It's an appointment also by the President which must be confirmed by the Senate.... Of course mistakes are made. Of course we've had some judges who we shouldn't trust. But on the whole the federal judiciary is highly respected, has experience and integrity and are independent because they can't be fired, except they can be impeached.


CONTROVERSY OVER THE CURRENT SPECIAL DIVISION

These particular judges have not only gone through the Senate confirmation process, have not only gone through the Presidential nomination process, but have been for this particular job been chosen by the Chief Justice of the Supreme Court....What are we to make then of the big row over this particular Special Division? I mean, Judge Sentelle has now become a household name as the right wing colleague of the right wing senators from the state of North Carolina?

Well, that's very difficult for anybody to answer. The allegations were made, he has denied them and his court has reviewed them and sustained him on that. I think that in the interests of this statute and the interests of respect for the court, I think we ought to accept that. I don't think we have any facts to the contrary. There is a lot of stuff out there about this. And that has sort of put a cloud over everything that's going on in the Whitewater investigation. But then again, it seems to me that it's not really been confirmed. The appointment has been made. People can differ on whether or not that Special Division should have appointed Fiske, as Janet Reno asked, or should have appointed Ken Starr. It's irrelevant now. They appointed Starr. And the issue is that investigation.

I wouldn't at all be critical of the Special Division. By the way, even though they're judges, as in our Supreme Court, they read the newspapers too. They're human beings. They've got to be very sensitive. More so than others, because judges are supposed to be loved and respected. And they want to be loved and respected....

Does it surprise you that the rhetorical warfare extended even to the bench, even to the Special Division?

No. It seems to me that - and again I'm not referring to any particular investigation - but if you had people of power leading up to the utmost power under investigation, then I think what you will find is there is a willingness to attack and to destroy and to question everybody that may be in the process; particularly the independent counsel statute - from the judges to the independent counsel to the staff, to everything that's being done. Because the strategy is one of avoidance and preventing the independent counsel from doing his job. And by the way, when I say that, it's not by way of demeaning a strategy of attempting to protect oneself. I think defense counsel do that with ordinary defendants the best that they can.

The words you're using, "people with power," "attack," "destroy the credibility of the investigation," aren't those right there the very definition of a crisis?

Well, again, it seems to me - and I have to be very neutral on this - one has to look at it from the point of view of those who are practicing that strategy. Whether or not they believe that the investigation or prosecution is unfounded...

As Nixon believed.

Yeah, he did. At least he so stated. And therefore, whether it's a crisis or not, if you put your feet in the shoes of counsel representing the President, say, and how he perceives it and how he can best represent his client, then it's not necessarily a crisis.... The assumption is that the prosecutor - in this case the independent counsel - is just as able and as professional and he knows how to counter it. And again I'm not faulting anybody in the White House or counsel or anybody for what they consider to be legitimate strategies. What I think is that they have more leeway than the independent counsel, who is governed by certain restrictions on what he can say publicly. And my view is that an independent counsel caught in this kind of a hurricane has to ignore it to the best that he humanly can and get on with his business and do the job. And professional lawyers know how to do that....


WHO CAN FIRE AN INDEPENDENT COUNSEL?

Explain to me the difference between the Attorney General's power to fire an independent counsel under the statute [and] the case of Richard Nixon, for example. In other words, Richard Nixon's Attorney General could fire the special prosecutor, Archibald Cox, who, of course, resigned before doing so.... [compared to the case of Janet Reno].

Perhaps it's really no real difference. Under the statute the Attorney General can fire the independent counsel for cause. There's one other check on that. The independent counsel can appeal to the Special Division of the court, and they have a right to review the cause.

Now, I would submit that Attorney General Reno could fire the chief of the criminal division or some other member of the Justice Department. But I also believe that that's modified for cause. An arbitrary firing might be questionable. The fact that the President arbitrarily could order Janet Reno to fire somebody in the Justice Department, I think would be just as aggravating an outrage as Nixon ordering the firing of Cox.

So I believe in our system that even executive branch officials can fire their subordinates, but it's usually for cause. The difference, however, is the statute emphasizes that. I think everybody seems to agree that even if the Attorney General can't find real cause about a subordinate, she pretty much has ultimate power to make that firing. And it doesn't give the independent counsel that much protection. But it does say "for cause" and allows the independent counsel to check it out with the court.

Check it out with the court meaning -

Meaning appeal the firing on the ground that the Attorney General didn't have cause, but the ultimate decision then would be the Special Division of the court.

And, in fact, the independent counsel statute does specifically provide for that eventuality?

Yes. And it would seem to me... that if a particular independent counsel acted as egregiously and without control and without accountability and did the kinds of things certain independent counsel have been accused of in the past, that it would not be difficult for an Attorney General to find the cause and to fire such an independent counsel. Because what would go ahead of it would be all of the criticism of that independent counsel out in the public. And there would be a public expectation that perhaps this would happen. And then the Attorney General wouldn't have to fear a political backlash on it.

It seems to me that the arguments of many have been that "You can't really expect the Attorney General to fire an independent counsel. I mean, the political backlash would be overwhelming." Well, that depends on how the spin has gone outside the office, and what the people know, based on what they read in the newspapers. And I suggest it would be very easy for the Attorney General to fire that kind of independent counsel.

Which is a great point, because in fact who is to determine whether or not it is "that kind" of independent counsel? Indeed what we are constantly told is that Ken Starr... is indeed that kind of independent counsel. I won't ask you, of course, to say whether or not he is. But in fact he has been painted as being "that kind" of independent counsel.

That's out in the public limelight. That's the public perception. I'm frequently asked by good friends, professional friends, even strangers, you know, how I can respond to that. Now I don't want to get into the specifics of Ken Starr, but all I can say is that I haven't seen you at the counsel table with the independent counsel and a staff lately, and so I don't know how you know what you say you know. And it's obvious that you know what you've read in the newspapers, and it seems to me that there may have been an excellent job in the newspapers of depicting an independent counsel quite differently than he really is.

Because, if in fact he were - not just Ken Starr, but if in fact an independent counsel were behaving so egregiously, it would be, would it not, incumbent upon an Attorney General to in fact fire him?

As a matter of fact the case in point is Lawrence Walsh, former Judge Walsh, who was the independent counsel in the Iran-Contra case. The attacks on him were at the highest extreme in terms of both ridiculing him for not being able to get any information. And, two, from being somewhat of a monster in that he was overreaching, overbearing. He was a persecutor.

If you look back at the press reports at that time, they even scared the democrats in the Congress, who began to believe what they were reading in the newspaper. So he didn't get their support. And, nevertheless, the Attorney General never even thought of firing him. Because they knew that that was a stonewalling on their part. They knew that they were pulling the rug from under him, and that all these criticisms were unfair as to Walsh.


PUBLIC OPINION AND THE ROLE OF THE PRESS

Politics, of course, is ruled in a democracy by public opinion, and public opinion can be very one-sided, when it comes to an independent counsel, especially given the fact that they tend not to stand up and defend themselves.

They may not. The professional ethics of a prosecutor is that he may not speak in a way that could prejudice future prosecutions, and for an independent counsel to try to rebut the criticism against him by saying, "No. I'm not doing this, because I've got a very strong evidence, and I've got a great case and I'm really following the line," transmits a message to a future juror that his case is right. And he's not allowed to do that.

If there is a specific allegation against him of corruption or things like that, he's allowed to answer, but he's got to be very careful how he does. And that was true of all independent counsel, they have to behave like professional lawyers and not try their cases in the newspaper, whereas the targets of an investigation have no such restriction. And, therefore, you have basically a one-sided presentation of what happens.

I agree that public opinion is absolutely essential in a democracy. That's ultimately what we tried to do in Watergate, was to communicate to the people of America what happened, and we connected and we got from them their outrage, which ultimately caused the President to resign. Not us, the people, and I believe that was a excellent demonstration of democracy in practice.

Because I think we had better information going to them. One, we went over the heads of journalism, directly to the people through live TV.

They saw what we produced. It wasn't filtered out in terms of a selective report. But then I think even the press at that time, all the good newspapers were reporting it accurately, getting their sources, corroborating and reporting.

I think today particularly with scandal of this nature, with the sex angle and everything else, that you're finding so much misinformation being reported that the press are acting most likely as a conduit of the news, rather than a screen. That, unfortunately, the public opinion could be skewed. And that's dangerous in a democracy. Because it seems to me the people will react, and they will ask for certain decisions to be made, but a good democracy is where they are an informed public, and informed correctly.

And it seems to me this is a responsibility of the free press. I'm very much in support of the free press, but the free press ought to be educational and informative. And I believe they have fallen down recently on that.

But absent the unlikely phenomenon of a sort of spiritual awakening on the part of the press, which, as I say, seems at least a little bit unlikely, what we have it strikes me is a real problem. If indeed an independent counsel cannot investigate high government officials to a fruitful end, be it a prosecution or letting the case, whatever it is, [go] to a fruitful end without public opinion - or at least public goodwill - on his or her side. And, if in fact an independent counsel cannot go out and counterspin, and if in fact we live in a moment where spin is of hurricane force and vitriol unprecedented... If all of that is true..., how can you have expect a true legitimate outcome in any of these cases...?

I guess where I disagree with your assumption is, "can an independent counsel follow through with an investigation ultimately, say, to a prosecution?" And it seems to me that every independent counsel can do that, particularly if they are professional and have professional staff and particularly if they learned the lesson that the noise outside is going to be there, because it's the nature of the game. And there's nothing they can do to change it. Therefore, there's only one thing they can do professionally. They have to close their doors and get on with their job and finish it, as expeditiously as possible....

That press out there spun, as you say, makes them feel cheap. Makes them be ashamed for their children and all of this. It's hard. But it seems to me that the good professional knows that, once again, that's par for the game. He understands why it is happening, and he goes about and does his duty....

One example, though, of who the heroes are and who the villains are - Archibald Cox, my former labor law professor at Harvard, was the hero of Watergate. He had integrity. He was following his investigation as strongly and as best as he could, trying to determine if Nixon was involved in the coverup. And because he did too good a job he was fired. And we remember Archie Cox as the prosecutor of integrity. Now, let me switch and instead of Cox being appointed, Lawrence Walsh has been appointed special prosecutor in the Watergate era. He would have done the same job, would have got fired, and would be the hero. Let me place Archie Cox in Walsh's position in Iran-Contra. He would have been vilified and attacked and the rug pulled from under him, and he would be remembered always as a failed independent counsel. So it's not the character of the person. It's how he is portrayed by the spin artists and by others who don't know what he is doing himself, and therefore what that tells me is the statute is right. The procedure is right. It's necessary, but the person who takes it, runs the risk of losing reputation. But, you know, that is also one of the things professionals know they have to do.

It's inherent. It's particular of the job isn't it?

Particular of the job, particularly when you are an independent counsel charged with investigating the White House or the president. It's not as severe if it's a cabinet official, but if it's the White House and the president, what any independent counsel knows is... that there's going to be an effort to destroy him. Because if he's successful, he could destroy the president, only if he has the evidence, of course. But that doesn't matter. Even a president who may not even be guilty would want to do this. Because it interferes with his administration. It obstructs him in the things that he would want to do, and exposes him in the press. It's not a good thing that a President has to be President in the midst of that kind of an investigation. But then what's the alternative?

If there is a charge that involves the president, should the Attorney General investigate? Well, there have been a number of cases that have shown that if the Attorney General did in fact or assigns somebody to do it or Justice, and cleared the president, practically every newspaper in the country would have an editorial about a whitewash or coverup. No one would accept it. Even though the Attorney General or the Department of Justice lawyer acted with integrity and did the right thing.

And one of the important examples of this is Attorney General Meese in the Bush Administration was charged with a serious federal offense. And a very significant lawyer, Jake Stein in Washington, was appointed independent counsel. And he investigated it and concluded that there was no basis for prosecution.

Meese was not a popular Attorney General in this country. He was seen as a overreaching pompous persecutor. And here comes this highly respected lawyer and says that, "There is no prosecutable case." Well, everybody accepted it. There wasn't a single editorial or columnist who criticized that decision. Imagine if a U.S. attorney in the Justice Department or any Justice Department lawyer had come to the same conclusion.

There would be screeching all over this country about coverup and whitewash.

And so the value of the independent counsel statute, with all its flaws - no statute is perfect that's a human-made piece of law. But with all its flaws, it is the only way and the only alternative when serious charges are brought against the President or a high executive official for it to be investigated and still get the confidence of the public, despite the fact that in the intermediate periods the public may be misled and may be very critical of the independent counsel. They would be just as critical and be just as misled if this wasn't an independent counsel, but a regulatory special prosecutor appointed by the Attorney General.

If he was honest like Mr. Fiske and did his work well, he'd be getting close on the heels of the White House. And, again, that spin would occur, and he would be attacked and condemned no less than the present independent counsel. So what I'm saying is the public criticism, the public perception of an independent counsel may really reflect on how good a job he's really doing....


IC LAW PROMPTED BY WATERGATE

You're known as the father of the independent counsel statute. Tell me what it was that you all were actually hoping for, and to what degree?

Well, it's a brief story, and it all goes back to what has been remembered in history as the Saturday Night Massacre. When Professor Cox, who was then special prosecutor appointed by Attorney General Elliot Richardson, was trying to get from the president, the White House tapes.... My staff uncovered the White House tapes, and I subpoenaed the President and so did Archie Cox.

And the President turned us down, but then told the Attorney General, "Hey, doesn't this guy work for us? Tell him to get off of it." And, of course, Cox said, "With all integrity and my duty and my oath of office, I must pursue it." And the President then ordered that Cox be fired. And, of course, Richardson refused, because he had made a promise to Cox and also to the Senate, Ruckelshaus, who was the deputy, refused and ultimately it fell to Bork.

And that was a shocker for all of us. If you were there at the time, and saw what happened, that the President of the United States, being the target under investigation could fire the prosecutor, that's investigating him, there was something wrong in the system of justice.

I decided then to meet with Ervin, and say that our very first recommendation of the Senate Watergate Report has to be the creation of an institution where the President will not have the power to fire arbitrarily the prosecutor, and that he shouldn't be appointed by the president. He should be appointed by a court.

If you read our first recommendation, it was there. We initially recommended a permanent public attorney. But after reviewing that, and some of the hearings before the Congress on that recommendation, we came to the conclusion that you wouldn't get your best lawyers being willing to put that much time in. You would get some young lawyers, bright, but maybe too ambitious. We were looking for the lawyers to take this job [who had], as it were, already made it. They were mature, experienced partners in big law firms, and they didn't need to persecute anybody in order to build themselves up.... We were looking for the ones who have got there already. And an ad hoc, case by case, independent counsel really fit the bill.

So that recommendation was not only approved by the full consent of the Watergate Committee, but Senator Ervin introduced it in the Watergate Reform Legislation. And I testified at all of the hearings on it, which ultimately led to the first statute being enacted in 1978.

And the statute was in that sense literally a direct result of Watergate?

Yes.

And as you have seen it in its various manifestations, as embodied by, I guess, more than a dozen now independent counsels that have come since, has it been more or less operating as you all envisioned it?

Yes. There are a number of evaluators who have looked at it over time, and every one of them really, except in recent times, has found that the independent counsel legislation has worked just as it planned to, and has served a very important function in preserving the confidence of the public in the administration of federal criminal justice. In all cases it recognized that it was good.

Janet Reno, when she became Attorney General, testified before the Congress when the Reauthorization Act of 1994 occurred, and she said to the committee that conflicts of interest that an Attorney General faces when they are being asked to investigate their President or other high cabinet officials in the same administration are insurmountable. And there's no way that you can do that as an Attorney General, and she favors and accepts the independent counsel legislation.... She's the only Attorney General that ever did that by the way, because most Attorneys General read the statute as an insult to them. It sort of said, "We don't trust your integrity." And the real reason, I've always explained to them, and some of them were people of high caliber, that this has nothing to do with your integrity, it has to do with public perception of justice. And even though you would have the integrity to do it, the public won't believe it. You'll either do an honest job, and find that there's no basis for prosecution, and the public will accuse you of coverup. Or in order to not be accused of coverup, you'll bend over backwards in a case where there shouldn't be a prosecution, and you'll get an indictment just to sort of show everybody that you're not controlled by the president. And that's unfair. That's not just. So you can't do it. Or at least be perceived to be able to do it.

I want to talk to you about an aspect of something you just said. You were remembering Watergate and the crisis. And it was a true crisis, and it was perceived as a true crisis at the time. The idea that a President would fire -

May I add something to that? Ordinarily it would not have been perceived by the public as a true crisis, because you remember in our great country, which is so spanned out over 3,000 miles, with people living in every little town and city in the country, that what happens in Washington doesn't necessarily have an impact on the people out there. And I believe if there had not been any Senate Watergate hearings in the summer of 1973 directly on television - which was informing millions and millions of Americans of the outrage of Watergate, the firing of Cox - if the public hadn't been tuned in, would appear to them as, "Well, another political thing happening in Washington," and it [wouldn't have] affect[ed] them....


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