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Jim Mokhiber provided reporting and research for "Secrets of an Independent
Counsel."
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This report was written in May 1998. The independent counsel statute creating the Special Division described here expired on June 30, 1999. |
In 1978, Congress created a new judicial mechanism charged with appointing
special prosecutors to investigate executive branch criminal activity. This
three-judge panel, formally entitled the "Division for the Purpose of
Appointing Independent Counsels," is better known today as simply the "Special
Division."
Based at the federal court building in Washington, the Special Division's
primary duty is to select an independent counsel when it receives the Attorney
General's request to do so in a particular matter. The process of selecting an
independent counsel is conducted in secret, and little is known of the policies
and procedures the panel uses to make its decisions. Under the independent
counsel statute, the Special Division is only required to select someone with
"appropriate experience...who will conduct the investigation in a prompt,
responsible and cost-effective manner."
The Chief Justice of the Supreme Court, Justice William Rehnquist, directly
appoints the three federal appellate court judges who sit on the panel. The
presiding judge is currently the District of Columbia Circuit's Judge David
Sentelle. Two other federal appellate court justices, not based in Washington,
also sit on the panel: Senior Judge John Butzner Jr. of the Fourth Circuit and
Senior Judge Peter Fay of the Eleventh Circuit. All are currently serving
two-year terms set to expire in October 1998, though they may be
reappointed.
While the Special Division appoints independent counsels, and receives their
final reports, it exercises little day-to-day authority over their
investigations.
In recent years, however, the Special Division has exercised a previously
untested power to widen the scope of an independent counsel's investigation.
Two independent counsels have invoked statutory provisions and asked the
Special Division -- and not the Attorney General -- to refer "related matters"
to them. In September, 1994, the Special Division quietly approved Independent
Counsel Kenneth Starr's request for jurisdiction over Rose Law Firm billing
issues involving Webster Hubbell. In 1996, the Special Division rejected
Justice Department objections and granted Independent Counsel Donald Smaltz
authority to investigate associates of Agriculture Secretary Mike Espy.
Though it formerly worked out of sight, the Special Division recently has been
pulled into the media and political spotlights focussed intensely on the
independent counsel. As if reading from Justice Scalia's 1988 Supreme Court
dissent in Morrison v. Olson, some critics have accused the
Special Division of partisanship in charges that date back to 1994. In that
year, the Special Division made the surprise announcement that Kenneth Starr
would replace Robert Fiske Jr. as head of the Whitewater probe. Attorney
General Janet Reno had appointed Fiske directly during a period when the
independent counsel law had been allowed to lapse. In naming Starr,
the panel claimed to be reaffirming the principle that the executive branch
should have no hand in appointing independent counsels. However charges soon
emerged that Judge Sentelle, formerly an active Republican, had acted in a
partisan manner in naming Starr shortly after a lunch meeting with two of
Fiske's critics, North Carolina Senators Lauch Faircloth and Jesse Helms.
Formal complaints about the meeting were dismissed by the chief judge of the
District of Columbia Circuit in late 1994, and his decision was later endorsed
by the D.C. Circuit Judicial Council. Nevertheless, in January of 1998 First
Lady Hillary Clinton again referred to the charges in her nationally-televised
remarks about a "vast right-wing conspiracy" against the President.
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