May 14, 1993
(source: Federal News Service)
Mr. Chairman and members of the committee:
I appreciate the invitation to be here to present the views of the Department
of Justice and the administration on the... enactment of the new Independent
Counsel Act. After consideration of the issues and options available to us, I'm
pleased to announce that the department and the administration fully support
re-enactment of the act and we will work closely with this committee and
Congress to pass this very important piece of legislation.
I'm well aware of the depth of the controversy that has surrounded this act
since its inception. While there are legitimate concerns about the costs and
burdens associated with the act, I have concluded that these are far, far
outweighed by the need for the act and the public confidence it fosters. As you
pointed out, the Independent Counsel Act was originally adopted in 1978. After
Congress first passed the special prosecutor act, it changed the terminology
and now uses the phrase independent counsel in the belief that the title better
reflects the balanced, impartial role of the office. The act has twice been
reauthorized. The constitutionality of the statutory scheme has been upheld by
the Supreme Court. Last year the legislation was permitted to lapse. It is
proper that this committee is now moving to fill that void. It is my firm
conviction that the law has been a good one, helping to restore public
confidence in our system's ability to investigate wrongdoing by high-level
executive branch officials.
In 1975, after his firing triggered the constitutional crisis that led to the
first version of this act, Watergate Special Prosecutor Archibald Cox testified
that an independent counsel was needed in certain limited cases, and he said,
"The pressure, the divided loyalty are too much for any man, and as honorable
and conscientious as any individual might be, the public could never feel
entirely easy about the vigor and thoroughness with which the investigation was
pursued. Some outside person is absolutely essential."
Now, nearly two decades later, I could not state it any better. It is neither
fair nor valid to criticize the act for what politics has wrought nor to expect
the act to solve all our crises. The Iran-Contra investigation, far from
providing support for doing away with the act, proves its necessity. I believe
that this investigation could not have been conducted under the supervision of
the attorney general and concluded with any public confidence in its
thoroughness or impartiality.
The reason that I support the concept of an independent counsel with statutory
independence is that there is an inherent conflict whenever senior executive
branch officials are to be investigated by the department and its appointed
head, the attorney general. The attorney general serves at the pleasure of the
president. Recognition of this conflict does not belittle or demean the
impressive professionalism of the department's career prosecutors, and permit
me to say again I have been so impressed with the lawyers in the Department of
Justice at every level. They are not political, they are splendid lawyers, and
they have enjoyed the opportunity to work with your staff on this
It is absolutely essential for the public, in the process of the criminal
justice system, to have confidence in the system, and you cannot do that when
there is conflict or an appearance of conflict in the person who is, in effect,
the chief prosecutor.
There is an inherent conflict here, and I think that that's why this act is so
important. It is worth noting that only a few matters that have been
investigated by independent counsels over the last decade resulted in
convictions. Far more covered individuals accused of wrongdoing have been
cleared at the close of an independent counsel's investigation. This role of
declining to prosecute a government official is, I'd suggest, as important as
the goal of the independent counsel -- it's as important a part as any process
in the prosecution.
The credibility and public confidence engendered by the fact that an
independent and impartial outsider has examined the evidence and concluded that
prosecution is not warranted serves to clear a public official's name in a way
that no Justice Department investigation ever could.
It is telling that, on occasion, covered individuals, including former Attorney
General Edwin Meese, have called for an appointment of an independent counsel
to investigate the allegations against them. I doubt that the public would
have accepted with confidence the decision not to prosecute had each of those
individuals been cleared not by an impartial outside prosecutor, but by the
attorney general and his Justice Department.
The Independent Counsel Act was designed to avoid even the appearance of
impropriety in the consideration of allegations of misconduct by high-level
executive branch officials and to prevent, as I have said, the actual or
perceived conflicts of interest. The act thus served as a vehicle to further
the public's perception of fairness and thoroughness in such matters and to
avert even the most subtle influences that may appear in an investigation of
highly placed executive officials.
Three months ago, the Senate Judiciary undertook an extensive study of
everything I had done for the last 15 years, and the fact that governors of
Florida, independent of me, could appoint special prosecutors when anybody said
boo about me was, oftentimes, I think, what gave credibility to the process of
those 15 years.
It is a measured, appropriate response to a limited but serious problem, and
the administration therefore supports the Independent Counsel Act re-enactment.
My conclusion upon reviewing the history and operation of the Independent
Counsel Act is that the statute has served the country well. This does not
mean, however, that the statute functions without flaws or without imposing
real costs and burdens.
Based on the recommendations of those career prosecutors who've worked with the
act on a daily basis and after the department's 15 years of experience with the
act, I'm prepared to suggest a number of changes that I believe will
significantly improve the act. I will discuss these proposals in general terms
today, and we at the department stand ready to work together with your staff in
every way possible throughout this process.
Senate Bill 24 proposes to expand the attorney general's discretion to utilize
the act with respect to any investigation of a member of Congress. I do not
believe this change is necessary, as the attorney general has that power right
now under 591-C of the act. This section provides that investigations of
noncovered persons may be handled under the provisions of the act in cases in
which there may be a personal, financial, or political conflict of interests.
You've asked me to discuss why I oppose a mandatory extension of the act to the
members of Congress. Consistent with the doctrine of separation of powers,
Congress is separate from the executive branch, and there is no inherent
conflict between the executive branch and Congress. They're two independent
branches of government, and if we were to suggest a conflict, I'd start
worrying about whether we had separation of powers, and I feel very strongly,
particularly after the experience of the last three months, that we do. The act
was designed to address conflicts of interest which exist when the executive
branch attempts to investigate itself. The act does provide a procedural
mechanism, as I have pointed out, for removing criminal investigations from a
forum wherein there might be a real or institutional conflict of interest to an
In 1982, Congress gave the attorney general the power to invoke the provisions
of the act on a discretionary basis, should she or he conclude a conflict of
interest exists. Since that time, the attorney general has never found it
necessary or appropriate to invoke the discretionary provision with respect to
a member of Congress, and throughout this period, during both Democratic and
Republican administrations, the department has successfully investigated and,
where need be, prosecuted, numerous members of Congress. Therefore, mandatory
coverage certainly is unwarranted.
Senate Bill 24 proposes also that independent counsels be periodically
reappointed by the special division of the court, based on the court's
assessment of the status of the investigation. We believe that this procedure
would be too great an intrusion by the court into the investigation of the
independent counsel. While the current limited role of the court in appointing
the independent counsel is appropriate, any continuing oversight of the
progress or scope of the investigation would be constitutionally suspect and
unwise as a matter of policy, and I recommend against that provision.
I want to emphasize my commitment to a productive and efficient working
relationship between the Justice Department and the independent counsels. The
need for an independent, unbiased decision maker is no reason for hostility
between the department and the independent counsel. We must not work at cross
purposes. Independent counsels or federal prosecutors whose mission is the
same as mine -- to determine whether federal crimes have been committed and, if
so, to prosecute the perpetrators.
The department has much to offer any independent counsel, ranging from
resources to prosecutorial experience to institutional memory. It is
inefficient and ultimately harmful to the interests of justice for any
independent counsel to be left to reinvent the wheel on a difficult legal or
policy issue. Therefore, I would suggest that the committee consider whether
the statute should require that the independent counsel consult on issues of
law and department policy and practices with the appropriate components of the
department unless the independent counsel concludes that the unique needs of
the particular stage of the investigation mandate not only independence but
secrecy from his or her fellow prosecutors in the Department of Justice.
I believe that regular and frequent contact by independent counsels with the
prosecutors in the department will foster productive working relationships and
serve to help avoid many of the problems that have occurred in the past. I also
want to emphasize efficiency and effectiveness in the process. For example, the
15-day period for initial inquiries has proven too short, I am told, to resolve
the complex issues raised and to cover the inevitably long distance between my
prosecutors' word processors and my desk. I think this period should be
changed to 30 days, with an option to extend the inquiry for an additional 30
days on notice to the special division.
The act historically covered all allegations of both felonies and most
misdemeanors. I believe that this coverage could be narrowed to felonies and
those few misdemeanors that are routinely prosecuted by the department,
particularly if I have broad discretion to utilize the act in other appropriate
cases. In addition, the ambiguity of the provision concerning campaign
officials continues to cause difficulties in interpretation and application,
sometimes requiring a full-scale investigation simply to determine whether an
individual who served on the campaign, quote, "exercised authority at the
national level," unquote.
In conclusion, I want to confirm my full support for the reauthorization of
the Independent Counsel Act. Public support for our government is predicated
on the belief that the government is fair and just. The Independent Counsel
Act is a crucial element of ensuring public confidence. I believe that in the
spirit of cooperation we will pass this important legislation, and I look
forward to working with you and would be happy to answer any questions.