Testimony From Attorney General Janet Reno Before The Senate Governmental Affairs Committee Concerning The Reauthorization Of The Independent Counsel Statute (excerpt)

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 legislation....

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 independent forum.

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.


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