Jim Mokhiber provided reporting and research for "Secrets of an Independent Counsel."

This report was written in May 1998. The independent counsel statute expired on June 30, 1999.

Can the public trust the executive branch of government -- the President and his appointed officials, including the Attorney General -- to investigate itself fully and fairly?

From the early days of the American republic, concerns of this kind have led Presidents to appoint special prosecutors charged with rooting out high-level official corruption. Special prosecutors have investigated such notorious cases as the 1920's Teapot Dome bribery and corruption affair and the tax scandals of the early 1950's. However it was the wide-ranging investigation of Watergate and the Nixon administration which convinced the public of the need for someone independent of the executive branch to lead an investigation of the government's upper echelons.


A law born of Watergate, 1973-1978

As the investigation of the 1972 break-in of the Democratic National richard nixon Committee's Watergate offices began to reveal a deeper level of corruption -- including political sabotage, obstruction of justice, and campaign finance irregularities -- many in Congress pushed for the appointment of a special prosecutor. After his top aides and Attorney General either resigned or were dismissed in April 1973, President Richard Nixon himself suggested he might allow a new Attorney General to name a special prosecutor to investigate the scandal. The Senate held the administration's feet to the fire by threatening to delay Attorney General-designate Elliot Richardson's confirmation unless he agreed to appoint a special prosecutor. Richardson responded by naming Harvard University law professor Archibald Cox to the position, and publicly guaranteeing him the Justice Department would not interfere in his case.

This promise was put to the test in October 1973 during the so-called "Saturday Night Massacre," when Nixon ordered Attorney General Richardson to fire Special Prosecutor Cox, who had continued to press for full release of the President's secret Oval Office tapes. Neither Richardson nor Deputy Attorney General William Ruckelshaus acceded to the President's demand to fire the special prosecutor, and instead resigned. Finally, the next in command, Solicitor General Robert Bork, removed Cox on October 20. Galvanized by Cox's firing and the subsequent public outcry, Congress initiated impeachment proceedings and began searching for ways to appoint a new prosecutor with greater independence. Trying to calm the storm he had unleashed, Nixon appointed Leon Jaworski to Cox's position, with the proviso that Jaworski could not be fired without the consent of a majority of the Senate Judiciary Committee.

By the time Nixon resigned on August 9, 1974, Archibald Cox and his successor Leon Jaworski had carved out a new space in the public mind for the special prosecutor's role in reining in official corruption. Moreover, many in Washington -- including prominent Watergate investigator Sam Dash, members of Congress and important public interest groups -- continued to push for some kind of institution which would insure a prosecutor's independence in the future.


The First Years of the law, 1978-1982

The Watergate crisis continued to loom large in 1978, when President Jimmy Carter signed the group of reforms collectively known as the Ethics in Government Act.

The Act aimed to clean up American politics by creating a new ethics watchdog organization and by instituting new controls on high-ranking government officials, including financial disclosure requirements and lobbying restrictions. Prominent among these reforms were provisions for the appointment of an independent special prosecutor. Covering a wide range of executive branch officials, the law obliged the Attorney General to recommend the appointment of a special prosecutor whenever he or she received specific charges of misconduct, unless the charges were "so unsubstantiated" as to not warrant further investigation. Actually appointing the special prosecutor was a new three-judge panel, based at the US Court of Appeals in the District of Columbia.

All told, the special prosecutor law was invoked eleven times from 1978 to 1982, and resulted in three appointments of a special prosecutor. The first independent counsel appointed under the new law was Arthur Hill Christy, who in 1978 was charged with looking into allegations of drug use by President Jimmy Carter's Chief of Staff Hamilton Jordan. He was followed by Gerald Gallinghouse in 1980, who investigated separate drug charges levelled at Carter's campaign manager, Tim Kraft. After Ronald Reagan took office, an independent counsel began examining Labor Secretary Ray Donovan's alleged connections to organized crime. None of the subjects of any of these investigations was indicted.


The Law is Reformed, 1983-1987

Originally authorized for a five-year period, the Special Prosecutor provisions of the Ethics in Government Act were set to expire in October 1983.

As early as the summer of 1981, Congress began reviewing the law for its effectiveness and several reforms were incorporated into the statute during the reauthorization process. The 1983 law reduced the overall number of individuals covered by the special prosecutor provisions. The law's notorious "hair trigger" was tightened, and the Attorney General was given more latitude in calling for a special prosecutor. For example, the Attorney General was now charged with requesting a special prosecutor only when she or he found "reasonable grounds to believe that further investigation is warranted." In addition, the Attorney General was given more power to remove a rogue special prosecutor, needing only to demonstrate "good cause." Finally, in a symbolic way, the term "special prosecutor" was dropped in favor of the less prejudicial title "independent counsel."

President Ronald Reagan's Justice Department had vigorously opposed the law during the reauthorization debate, asserting the law's unconstitutionality and the DOJ's ability to carry out even the most sensitive investigations of the executive branch. Nevertheless, on January 3, 1983 President Reagan signed the law, renewing it for another five-year period.

In an ironic twist, it was Attorney General-designate Ed Meese who was the first to be investigated following reauthorization. (Independent counsel Jacob Stein declined to prosecute Meese, though the latter was investigated again in 1987 for activities connected with the New York City-based defense contractor known as Wedtech.) All told, independent counsels investigated Reagan Administration officials -- including top White House aides Michael Deaver and Lyn Nofziger -- on seven separate occasions. The most prominent of the Reagan-era investigations, however, was Independent Counsel Lawrence Walsh's $48.5 million examination of allegations that money from arms sales to Iran had been improperly diverted to fund Nicaraguan Contra rebels. Begun in December 1986, Walsh's probe became the most wide-ranging -- and criticized -- investigation of high-ranking officials since Watergate.

In 1987, with the Iran-Contra investigation under way, the statute once again came up for reauthorization. In Senate hearings, critics charged that the Attorney General and the Department of Justice had sought to dodge the law through a variety of methods. In response, Congress introduced several provisions which placed new limits on the Attorney General's discretion and powers under the law. Other changes included greater controls on independent counsels themselves. Radical reforms, such as making the law permanent and mandatorily applying the law to members of Congress, were defeated. In December of 1987, President Reagan reluctantly signed the law, citing a need to maintain public confidence in government. Nevertheless, he noted the continuing Justice Department opposition to the law on constitutional grounds, and he predicted its demise at the hands of the Supreme Court.


A Constitutional challenge and further reforms, 1988-1992

In 1988, the Supreme Court heard the long-awaited challenge to the law's constitutionality. The complicated but relatively low-profile case involved Theodore Olson, a former Assistant Attorney General who was accused of misleading Congress during testimony on the EPA's Superfund program in 1982. In May of 1986, Alexia Morrison was appointed independent counsel and charged with looking into the allegations surrounding Olson's testimony. However Olson and others refused to heed Morrison's subpoenas, and asked a Federal District Court to rule the independent counsel law unconstitutional. The District Court ruled against Olson, but the Court of Appeals struck down the Independent Counsel Act, finding that it violated the separation of powers principle and the appointments clause of the Constitution.

In its 1988 ruling, the Supreme Court overturned the Appeals Court's decision in a 7 to 1 decision, and upheld the constitutionality of the independent counsel law. The Supreme Court found that Congress did not seek to increase its own powers by passing the law, and held that it did not interfere "unduly" or "impermissibly" with the executive branch's powers. The Court also held that independent counsels were "inferior officers" over which the Attorney General retained ultimate authority through her or his power to recommend appointment or dismissal. For these reasons and others, the majority of the Supreme Court upheld the constitutionality of the law, with Chief Justice Rehnquist writing the majority's opinion.

Alone in his dissent on Morrison v. Olson was Justice Antonin Scalia, who strongly criticized the majority for dismissing the serious separation of powers and fairness issues inherent in the case. Under the Constitution, he argued, the President is given all the executive powers of government -- particularly those of investigation and prosecution -- and it was "ultimately irrelevant how much the statute reduces Presidential control." Any infringement on the executive's power was unconstitutional.

More specifically, Scalia contested the majority's conclusion that independent counsels were "inferior officers" who remained under the executive's ultimate control. An independent counsel, he suggested, actually possessed some powers and advantages that even the Attorney General did not. Scalia worried that an overzealous, unaccountable independent counsel could pick his or her targets, and then prosecute them for even the most minor or technical offenses. Moreover, Scalia wrote, a partisan Special Division might appoint a committed foe of the administration or the individual under investigation. "Nothing is so politically effective," he wrote, "as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, `crooks'." Scalia prophesied that the majority's decision would weaken the Presidency, and expose the head of the executive branch to "debilitating criminal investigations" -- an opinion that has earned Justice Scalia new and unexpected admirers in recent days.

One result of the Supreme Court's decision was that four new investigations were initiated during the Bush years. (One of these, the investigation of HUD fraud and mismanagement continues in a more limited form today.) More importantly, by upholding the constitutionality of the law, the Supreme Court threw its fate back into the realm of politics, where the independent counsel's critics awaited.


A lapsed law is revived...for how long? 1993-1998

In December of 1992, the independent counsel law expired in the face of a Republican filibuster. In so doing, it drew a brief round of cheers from long-time skeptics and the law's other enemies, who continued to denounce the supposed excesses of the Iran-Contra investigation. Soon, however, Congressional critics of the new administration began to suggest that a revived independent counsel law might not be such a bad idea after all. In particular, Republicans hoped to invoke the law in the emerging Whitewater case, which was then being pursued by a Justice Department-appointed special prosecutor, Robert Fiske. In February of 1994, one Democratic Congressman sarcastically observed the "miraculous conversion" of former critics of the law.

Vowing to head up an administration with the highest ethical standards, President Bill Clinton took the step of being the first president since Carter to endorse the institution of the independent counsel. On July 1, 1994, Clinton signed the reauthorization bill, and called the law "a foundation stone for the trust between the Government and our citizens." He dismissed charges that it had been a "tool of partisan attack...and a waste of taxpayer funds." Instead, he said, the statute "has been in the past and is today a force for Government integrity and public confidence." In testimony before Congress, Attorney General Janet Reno stressed the government's and her own support for the bill, noting that it served "as a vehicle to further the public's perception of fairness and thoroughness...and to avert even the most subtle of influences that may appear in an investigation of highly-placed executive officials."

The bill which Clinton signed added some new provisions and controls to the independent counsel process. For example, the General Accounting Office was given increased financial oversight and reporting responsibilities. The independent counsels themselves were required to advise Congress of their progress on a yearly basis, and were instructed to adhere as closely as possible to Department of Justice policies regarding spending, salaries and prosecution. Finally, the Special Division was given the power to periodically review the independent counsel's investigation, starting two years after appointment. Though the DOJ retained primary jurisdiction over Congressional corruption, the new law explicitly stated that the Attorney General could request an independent counsel to investigate a member of Congress. Other changes were aimed at clarifying the statute and tightening up its requirements.

By mid-1998, seven separate investigations of the Clinton Administration were underway. After Kenneth Starr was appointed to replace Robert Fiske in the Whitewater investigation, the next independent counsel named was Donald Smaltz, who was charged with looking into Mike Espy's alleged acceptance of gratuities while Secretary of Agriculture. In 1995, the Special Division named David Barrett to investigate charges that Housing and Urban Development Secretary Henry Cisneros had lied to government investigators about payments made to a former mistress. Also during 1995, a new independent counsel, Daniel S. Pearson, began examining Commerce Secretary Ron Brown's financial dealings, though the independent counsel's investigation ended following Brown's death in an airplane crash in April of 1996. In 1997, after a low-key investigation conducted under court seal, Independent Counsel Curtis Von Kann cleared Americorps chief Eli Segal of conflict of interest charges. On March 19, 1998, the Special Division appointed Carol Elder Bruce to look into allegations that Interior Secretary Bruce Babbitt made false statements to Congress regarding an application by American Indians to build a gambling casino in Wisconsin. Finally, on May 11, 1998, Attorney General Reno called for the Special Division to appoint an independent counsel -- the seventh of the Clinton era -- to look into charges of influence peddling and campaign finance improprieties concerning Labor Secretary Alexis Herman.

Arising from the aftermath of Watergate, the independent counsel law has been changed and challenged several times in its relatively short lifetime. Now, however, even some of the law's strongest supporters have become critics and are urging significant changes. Recently-proposed reforms include further reducing the number of officials covered by the law, eliminating the independent counsel's final report, and allowing the Attorney General to consider a covered official's intent in determining whether to go ahead with an investigation. Broader suggestions for change have included giving the Attorney General the power to appoint independent counsels, and the Special Division power to confirm them.

Arguments over the shape reform should take, however, may be moot. With the current authorization set to expire in 1999, and with key political and public support waning, many in Washington believe the independent counsel law is one experiment in political crimefighting that will not be renewed.

 


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