The Clock Is Running Out On The Independent Counsel Law
The American Lawyer /Counsel Connect

Will the independent counsel act survive Kenneth Starr? With the law set to expire in 15 months, it's not a theoretical question. Polls show that the American public is unhappy with the way Starr has conducted his investigation. But if a high-volume debate is likely, an easy solution is not: It's unclear what the politicians on Capitol Hill will do to change the way in which future government integrity probes are conducted. So muddied are the political waters, so unpredictable is the outcome of the Starr investigation, that no one knows what form a new independent counsel act will take -- or whether it will be renewed at all.

Such political uncertainty does not surprise anyone familiar with the history of the act. Twenty years later, it comes almost as a shock to recall that the 1978 independent counsel act was intended to take the politics out of politically sensitive prosecutions. Today it's clear that, if anything, the opposite has occurred. Say what you will about the criminalization of American politics, the history of the independent counsel is indicative of just how thoroughly politicized the law itself has become.

Consider this. When Democrats ran the Congress under Presidents Reagan and Bush, they faithfully renewed the statute. In those days, the hue and cry raised against the act came instead from, most notably, the editorial pages of The Wall Street Journal and libertarian-minded Republicans in Congress. Indeed, it's hard to recall a single kind word from those quarters for the work of Iran-contra independent counsel Lawrence Walsh.

Nor for that of Whitewater special counsel Robert Fiske, Jr. But all of that changed, virtually overnight, when a three-member panel headed by conservative judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit removed Fiske -- who had been appointed by Attorney General Janet Reno during a brief lapse in the 1978 statute -- and appointed Starr. Both the unquestioned support of liberal Democrats for the independent counsel act, and the animus of Republicans, evaporated. The independent counsel law had been defeated by politics: Where you stood depended on whose ox was being gored.

One result of all this political flip-flopping is that the Starr investigation, controversial as it is, may well prove to be the last of its kind after the independent counsel act expires in June 1999. With even the most liberal Democrats now demanding that the law be amended to provide more "accountability," few on Capitol Hill actually believe that it will survive in anything like its present form. So far, no one has bothered to offer a wholesale defense. And the frisson now extends even to longtime fans like Michigan senator Carl Levin. The second-ranking Democrat on the Senate Governmental Affairs Committee, Levin recently offered his own six-part plan to overhaul the act. His proposal would:

  • cover only crimes committed while in federal office or while a candidate for federal office;

  • narrow coverage of the law to fewer officials;

  • require greater proof of possible criminality before appointing an independent counsel;

  • more narrowly define an independent counsel's jurisdiction and restrict expansion of such jurisdiction;

  • allow the attorney general to specify when an independent counsel should be employed on a full-time basis; and

  • place limits on funding for each independent counsel.

The chairman of the Governmental Affairs Committee, Senator Fred Thompson, a Tennessee Republican, says he hasn't yet reached a conclusion about renewing the act. He's still mulling it over -- waiting to see where Starr comes down. In the House, where renewal legislation is the prerogative of the Judiciary Committee, the outlook is just as cloudy. Chairman Henry Hyde, a Republican from Illinois, and the key figure in any possible impeachment effort, says only that he favors more control over the process, while talking vaguely about the need for "oversight provisions."

House Democrats, meanwhile, worry that Hyde & Co. will use the act's renewal as an excuse to hold a series of "Lewinsky hearings," in order to censure the president rather than risk opening the Pandora's box of a full-blown impeachment process. Among the same Democrats there is also the uncomfortable feeling that it's their own law that is now haunting them. David Yassky, minority counsel on the House Judiciary Committee, sounds like he's already thrown in the towel. "Nobody," he says, "feels the IC law, as it is currently structured, works." He doesn't have to add that it was members of his own party that structured the law in the first place.

Take, for example, Abner Mikva. As a liberal Democratic congressman from Illinois, Mikva helped craft the original statute. Two decades later, having given up lifetime tenure as a judge on the D.C. Circuit, Mikva became White House counsel. Then he found himself in the uncomfortable role of trying to defend his client from the wrath of an independent prosecutor.

Mikva, though he helped develop the law and has defended one client from it, was never a special prosecutor; Julie O'Sullivan was. Having served under Fiske and then briefly under Starr, O'Sullivan, today a professor at Georgetown University Law Center, changed her mind as a result of her experiences. Today, she's widely considered the leading theoretical critic of the statute. The act, O'Sullivan has argued in the American Criminal Law Review, gives the independent counsel "an excess of time, means, and incentive to pursue a far greater number of people, over a wider investigatory landscape, with less justification, and at greater human, financial and institutional cost than is reasonably necessary to promote the reality, or appearance, of evenhanded justice."

To back up her case, O'Sullivan cites a litany of possible abuses inherent in the system as it currently operates. Under the statute, for example, neither the appointment of an IC nor an attorney general's refusal to refer a case to the IC is reviewable. Similarly, the appointment of an IC's staff and its supervision both lie within his sole discretion. And once appointed, independent counsel work with a virtually unlimited budget and no time constraints.

"In the conduct of an investigation," O'Sullivan argues, "the IC holds a blank check," with powers "vastly disproportionate" to those wielded by a U.S. attorney. Federal prosecutors make decisions every day about which cases to bring forward and which cases to pass up. That discretion, so valuable in checking prosecutorial power, goes the way of the 5-cent cigar in the office of the independent counsel.

Her solution: Return these high-profile governmental integrity cases to career prosecutors at the Department of Justice. And in cases of executive branch malfeasance involving potential conflict, the attorney general can always appoint another outside special prosecutor like Fiske or Archibald Cox. But what happens if a Fiske or a Cox turns up the heat too high? Isn't the lesson of Watergate that the government can't be trusted to investigate the government?

Wrong, says O'Sullivan. What's overlooked in the retellings of Watergate, she argues, "is the fact that the system subsequently worked as it should." Public outcry over the "Saturday Night Massacre" in 1973 led to the appointment of a second outside special prosecutor, Leon Jaworski, the investigation continued, and eventually Richard Nixon was forced from office. In short: Justice prevailed.

Nevertheless, argues former independent counsel Lawrence Walsh, the act serves an important function. "The most valuable part of the act is that it prevents the arbitrary firing of an independent counsel if he gets too close," says Walsh. But even Walsh would like to see the scope of the act narrowed to offenses committed while in office -- exclusive of the officeholder's private life.

Walsh has another concern. Even the slightest appearance of politics, he says, can cloud the appointment of an independent counsel. "No one ever expected a situation where a Chief Justice Rehnquist would appoint a Judge Sentelle, who would appoint a Kenneth Starr as independent counsel," he says, while insisting that he doesn't fault Sentelle or Starr. "If you're going to create this great cathedral for the sake of appearances, then that kind of political-looking daisy chain is something you obviously would want to avoid."

Walsh and O'Sullivan do agree on one point: the need for prior prosecutorial experience on the part of independent prosecutors. Says Walsh: "Judge Starr is always saying that he's 'just going by the book.' Well, there isn't any book. Prosecution is a matter of judgment. You learn the hard way. And I'd say Judge Starr still has a lot to learn."

Bill Clinton probably has hopes of teaching Starr a lesson or two himself. But in the end -- assuming he's still around then -- it will be President Bill Clinton who will have to decide whether or not to sign the next independent counsel act. If there is one.

This article is reprinted with permission from the April 1998 issue of The American Lawyer  © 1998 American Lawyer Media.


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