The independent-counsel statute will expire on June 30 unless Congress acts. With the law under attack both by Democrats who formerly championed it and by Republicans who have never liked it, a diverse, bipartisan group may seek to salvage a slimmed-down version.
Some Senators, including Democrats Joseph I. Lieberman of Connecticut and Carl Levin of Michigan, and Republicans Susan Collins of Maine and Arlen Specter of Pennsylvania, seem to be groping for some way to avoid reverting to the pre-Watergate system, in which allegations of crimes by the President and his top appointees were disposed of by the Attorney General.
Several of the veterans of the independent-counsel wars who have testified in the four illuminating Senate Governmental Affairs Committee hearings held since late February have urged retention of the statute, albeit with major changes. One theme in this plea has been, in the words of Washington lawyer Nathan Lewin, that ”the concept of an independent counsel–not answerable to the Attorney General or the President–is essential for public confidence in government.”
The arguments for keeping some kind of court-appointed independent-counsel system are sincere, thoughtful–but, in my view, ultimately unconvincing. It is time to let this statute die, and to give the Justice Department’s prosecutors–a more honest and professional bunch than they are given credit for being–a chance to show they can do the job.
Two fundamental problems with the statute transcend such ephemera as Democrats’ hatred of its current personification, Kenneth Starr, and Republicans’ hatred of Iran-Contra Independent Counsel Lawrence E. Walsh.
The first problem is that the independent-counsel system has failed almost utterly to achieve its purpose of fostering public confidence that investigations of alleged high-level criminality are untainted by partisan bias.
”Partisan politics infects every phase of the independent-counsel process,” Robert S. Bennett, who has represented President Clinton and former Defense Secretary Caspar W. Weinberger, among others, testified on March 3. ”Every step of the process–the very first call for an independent counsel, the decision to make a referral, the court’s choice of an independent counsel, the conduct of the investigation . . . — every step has become an opportunity for one side or the other to cry political foul. We can argue for days about who is to blame for this . . . but the bottom line is this: The public now views the independent-counsel process as largely a political process.”
To be sure, most of the 20 independent counsels appointed since 1978 have completed their work quickly and economically. Most of them have cleared the persons under investigation of allegations of wrongdoing, and they have done this more credibly than the Justice Department could have done.
But along the way, those independent counsels who have pressed serious accusations against high-level officials have themselves become targets of furious and politically debilitating attacks on their motives and tactics.
Starr, more reviled than any other prosecutor since Torquemada, has been given little credence by the public even though his evidence of presidential perjury and obstruction of justice stands unrefuted. Any independent counsel who takes aim at a President in the future may be in for similar treatment. Nor has the statute shielded Attorneys General from charges of partisan bias, like those hurled at Janet Reno for rejecting demands that she trigger an independent-counsel probe of the 1996 Clinton-Gore campaign.
The statute’s second fundamental problem is that its vain pursuit of public confidence has been purchased at great cost: the creation, by means that do considerable violence to the Constitution’s separation of powers, of a singularly merciless brand of justice for high-level officials–who are often personally scarred and financially drained, even when they are exonerated.
As Justice Antonin Scalia wrote in his lone dissent from the Supreme Court’s 1988 decision upholding the constitutionality of the statute:
”The mini-executive that is the independent counsel, . . . operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation . . . may in his or her small world assume the proportions of an indictable offense. . . . How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but investigate you until investigation is no longer worthwhile.”
Scalia’s dissent also explains how the statute injects both the judiciary and Congress into the core executive function of deciding which crimes should be prosecuted, and weakens the President–every President–by shifting prosecutorial power to others, to be used against him or his aides.
So clearly have Scalia’s concerns been borne out by history that even those who would renew the independent-counsel statute have proposed many amendments to redress flaws: shrinking the number of covered officials; making it easier for the Attorney General to dismiss allegations she considers unworthy of prosecution; limiting the appointing judges to a list of candidates submitted by the Attorney General; limiting the duration and cost of investigations; and more.
But no amount of amending of this already-complex statute can really address the problem of lack of accountability. Nor will tinkering do away with the incentives that inhere in any system insulating prosecutors from political controls and competing responsibilities–incentives encouraging a one-target prosecutor to conduct an unduly relentless and exhaustive investigation .
We could, of course, give those who investigate allegations against top officials a measure of independence without limiting them to one target at a time. One way to do it would be to create a quasi-independent office with jurisdiction over all public-corruption investigations, led by an official serving a term of years, as the FBI director does.
But this idea seems to me more dangerous now than it did when I advocated it in a 1992 article. A quasi-independent, quasi-unaccountable public prosecutor who turned out like FBI Director Louis J. Freeh might be OK. But what if he or she turned out more like J. Edgar Hoover?
The bottom line is that I can see no clearly preferable alternative to the pre-Watergate system of leaving prosecutions of alleged high-level criminality to the Justice Department.
That system has worked reasonably well through most of our history. When allegations against top officials have posed obvious conflicts of interest for the Justice Department–as with Teapot Dome and Watergate–political pressures have often forced the Attorney General to name outside lawyers of stature to conduct investigations as special counsels.
That’s what Reno did in early 1994 (the independent- counsel statute having lapsed in 1992), when she named Robert B. Fiske Jr. to investigate the Clintons’ Whitewater real estate investment.
Fiske, a widely respected and largely apolitical moderate-Republican former U.S. Attorney from Manhattan, was an ideal choice for the job. But in August 1994, after the statute was re-enacted, a special court unwisely replaced him–amid widely publicized mutterings that one or more of the appointing judges was biased against Clinton–with Starr, who had no prosecutorial experience and lots of political baggage as a conservative Republican with ambitions for high office. And Starr has proven to be far more vulnerable than Fiske would have been to Clinton’s political attacks.
Even Fiske was besieged–by conservative Republicans– with bogus innuendoes that he was too soft on Clinton and a stooge for Reno. This mirrored Democrats’ treatment of the special counsels appointed by Bush Attorney General William P. Barr to investigate the so-called Iraqgate and Inslaw scandals. The lesson is that in today’s world, there is simply no escaping the partisanship and cynicism that infect public perceptions of politically charged criminal investigations. In this regard, the independent-counsel system is an illusory, legalistic nonsolution to a pervasive political and cultural problem.
We should worry less about shaping public perceptions and more about reality. And the reality is that there is nothing that even the most intricately designed independent-counsel statute could ever do to attack high-level criminali ty that a first-rate Attorney General could not do better.