If the Clinton administration has accomplished nothing else, it has at least sensitized Democrats- with a vengeance-to the dangers of the system of court-appointed independent counsel that they used for so long to harry Republican presidents.
President Bill Clinton, and his wife, and his closest White House aide (Bruce Lindsey), and Commerce Secretary Ronald Brown, and Housing and Urban Development Secretary Henry Cisneros, and former Agriculture Secretary Mike Espy, and others now are (or are about to be) squirming under microscopic scrutiny by independent counsel. And suddenly, onetime champions of the statute that mandates such investigations, like Clinton and White House Counsel Abner Mikva, are sounding more like critics.
It’s easy to make fun of the hey-those-are-our-oxen-being-gored timing of such Democratic misgivings, and I’ve done so. But "|w]isdom too often never comes, and so one ought not to reject it merely because it comes late," in the words of Justice Felix Frankfurter.
And the Clintonites’ current travails provide perspective- especially for those of us whose hearts did not bleed for the likes of Oliver North and Michael Deaver-on the risk that the current independent counsel regime will have a debilitating effect on the presidency for many years to come.
Governments are not, and never have been, run by paragons of ethical purity. After all, just about every elected official in Washington, and many a Cabinet officer, owes his or her position in large part to success at the legalized corruption of wheedling campaign contributions from special interests seeking political payoffs. It’s a dirty business, but somebody has to do it. And some people steeped in sleaze have done it rather well. Like the first Mayor Richard Daley of Chicago. And like Ron Brown.
Every administration, at least in recent history, has had people near the top who could be made to look sleazy-and even implicated in arguably criminal violations-under scrutiny by prosecutors with unlimited resources and broad mandates to comb through those officials’ closets in search of skeletons.
The independent counsel law has become an engine for unleashing precisely this kind of prosecutorial scrutiny on the president and his top aides. All it takes to start the engine is for a political adversary or journalist to come up with a superficially plausible allegation of ethical impropriety.
Independent counsel probes can be especially onerous in an era when the criminal law has become all-encompassing, sprawling, and vague, and littered with traps for casual perpetrators of petty ethical lapses. Few businesses, or gubernatorial campaigns, or other enterprises could come completely unscathed through such a no-holds-barred investigation.
Kenneth Starr, the independent counsel who is now putting President Clinton, Bruce Lindsey, and many others through the wringer in the sprawling scandal known as Whitewater, suggested in a thoughtful May 13 speech that "[t]he basic policy concern [is the] independent counsel’s lack of accountability to the president and the attorney general." I disagree. The 93 U.S. attorneys aren’t very accountable either, and some have brought cases more dubious and oppressive than any brought by independent counsel.
Rather, the most serious problem with the statute is the vesting of independent counsel with virtually unlimited time and money (only cosmetically restrained by the 1994 amendments to the law) and an implicit mandate to leave no stone unturned in probing a single target. The one-case independent counsel has every incentive to pursue possible crimes too petty, or too harmless, or too hard to prove, or too close to the line of legality to warrant the attention of an ordinary prosecutor.
As Justice Antonin Scalia has pointed out, the independent counsel statute comes close to institutionalizing what was called "the greatest danger of abuse of prosecuting power" in a 1940 speech by then Attorney General Robert Jackson:
With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.
The result is exhaustive exploration of questions that, 25 years ago, would have been of little interest to any good prosecutor, and of limited interest to journalists. Questions like whether Brown enriched himself through corrupt business deals before joining the Cabinet, or why Cisneros lied to the Federal Bureau of Investigation about how much he had paid his former mistress.
This inherent problem with the statute is magnified by the reality that not every court-appointed independent counsel will be a paragon of apolitical wisdom and restraint. Nor will the judges who do the appointing.
Consider the conduct of Independent Counsel Donald Smaltz. His assignment was to focus on Espy’s alleged receipt of illegal favors from regulated companies. But Smaltz has seized the opportunity to muckrake widely through Arkansas, while improperly blabbing to the press about his interest in unsubstantiated allegations that Tyson Foods sent envelopes full of cash intended for then Gov. Clinton in the 1980s.
Kenneth Starr appears to have done his job responsibly, and he has a reputation for integrity and good sense. But he is probably the wrong man for the Whitewater job, because he is a politically active Republican who has served in high office-both at the Justice Department and on the D.C. Circuit-and may well hope to serve again.
(Not to mention the appearance problem created by the role of Starr’s former D.C. Circuit colleague, the ardently conservative Judge David Sentelle. He heads the special three-judge court that appointed Starr-an appointment made soon after Sentelle had lunched with the intensely partisan Republican senators from North Carolina, Lauch Faircloth and Jesse Helms. Helms is a political benefactor of Sentelle’s.)
Starr’s political ambitions could well suffer if he resists the enormous pressure from politically motivated Republicans in Congress to bring home Clintonite scalps, or at least to spare no effort in digging dirt. And even if Starr carried no such baggage, he could hardly be expected to confine himself to cases that would be brought by an ordinary prosecutor.
Consider-Starr’s pursuit of Deputy White House Counsel Lindsey, who is a target of the investigation in connection with his work as treasurer of Clinton’s 1990 gubernatorial re-election campaign. Starr appears to be pushing hard to see whether a case can be made that Lindsey told an Arkansas banker not to file routine reports with the Internal Revenue Service about Lindsey’s otherwise legal, and non-taxable, withdrawal of $30,000 in cash on May 25, 1990, (and a similar withdrawal later) for use as get-out-the-vote money in the Arkansas campaign.
These alleged crimes are, at worst, so petty that they would hardly be considered worth investigating if, say, Clinton had lost the 1992 presidential election and Lindsey were still just an obscure Little Rock lawyer. But crimes they may have been: The banker has pleaded guilty and become a cooperating witness. And almost any independent counsel with Starr’s broad mandate would feel obliged to investigate Lindsey’s role thoroughly and to bring any prosecutions for which evidence can be found.
It’s easier to find fault with the independent counsel system, of course, than to come up with a flawless alternative.
I’ve previously proposed creating a quasi-independent, permanent office of public prosecutions outside the Justice Department; headed by a Senate-confirmed presidential appointee; with jurisdiction over all executive, legislative, and judicial branch officials; and with political (but not judicially enforceable) protections against unwarranted remova, ("How About a Semi Gov. Clinton in the 1980s.
Kenneth Starr appears to have done his job responsibly, and he has a reputation for integrity and good sense. But he is probably the wrong man for the Whitewater job, because he is a politically active Republican who has served in high office-both at the Justice Department and on the D.C. Circuit-and may well hope to serve again.
(Not to mention the appearance problem created by the role of Starr’s former D.C. Circuit colleague, the ardently conservative Judge David Sentelle. He heads the special three-judge court that appointed Starr-an appointment made soon after Sentelle had lunched with the intensely partisan Republican senators from North Carolina, Lauch Faircloth and Jesse Helms. Helms is a political benefactor of Sentelle’s.)
Starr’s political ambitions could well suffer if he resists the enormous pressure from politically motivated Republicans in Congress to bring home Clintonite scalps, or at least to spare no effort in digging dirt. And even if Starr carried no such baggage, he could hardly be expected to confine himself to cases that would be brought by an ordinary prosecutor.
Consider-Starr’s pursuit of Deputy White House Counsel Lindsey, who is a target of the investigation in connection with his work as treasurer of Clinton’s 1990 gubernatorial re-election campaign. Starr appears to be pushing hard to see whether a case can be made that Lindsey told an Arkansas banker not to file routine reports with the Internal Revenue Service about Lindsey’s otherwise legal, and non-taxable, withdrawal of $30,000 in cash on May 25, 1990, (and a similar withdrawal later) for use as get-out-the-vote money in the Arkansas campaign.
These alleged crimes are, at worst, so petty that they would hardly be considered worth investigating if, say, Clinton had lost the 1992 presidential election and Lindsey were still just an obscure Little Rock lawyer. But crimes they may have been: The banker has pleaded guilty and become a cooperating witness. And almost any independent counsel with Starr’s broad mandate would feel obliged to investigate Lindsey’s role thoroughly and to bring any prosecutions for which evidence can be found.
It’s easier to find fault with the independent counsel system, of course, than to come up with a flawless alternative.
I’ve previously proposed creating a quasi-independent, permanent office of public prosecutions outside the Justice Department; headed by a Senate-confirmed presidential appointee; with jurisdiction over all executive, legislative, and judicial branch officials; and with political (but not judicially enforceable) protections against unwarranted remova, ("How About a Semi-Special Public Prosecutor?" Dec. 13, 1993, Page 25). But the vast power of such an office could be abused, and the idea has not exactly caught fire.
The Clintonites’ troubles tempt me to flirt with the idea of scrapping the independent counsel statute and leaving it to the Justice Department and Congress to cope with high-level crimes.
The risk is that such a change would open the way for a festival of unchecked corruption and executive branch lawlessness. Remember Iran-Contra, which the Reagan Justice Department would have buried quickly if it could.
So what is to be done? Pending further enlightenment, I can only take refuge in a 1986 concurrence by Justice Richard Sims III of the California Court of Appeals: "[H]aving taken all conceivable sides on the issue, I must certainly at some point have been right. Unfortunately, it too obviously follows that at some point I must also have been wrong."