Independent counsel law under fire

ANDREW A. GREEN
ARKANSAS DEMOCRAT-GAZETTE

The only casualty of the independent counsel's investigation of the president will likely be the independent counsel, congressional officials say.
The law that authorized Kenneth Starr's exhaustive investigation of President Clinton is set to expire June 30, and the prevailing opinion among congressional leaders is that the law must be radically reformed or scrapped.
U.S. Rep. Jay Dickey, a Republican of Pine Bluff, introduced an independent counsel reform statute on the first day of the 106th Congress, including limits on the power of an office that many say is out of control.
But other lawmakers, notably Sen. Fred Thompson, R-Tenn., have said the law is unsalvageable and should be scrapped.
Thompson is chairman of the Senate's Governmental Affairs Committee and will have great jurisdiction over reauthorization in the upper house. He has argued that Attorney General Janet Reno's refusal to appoint an independent counsel to investigate alleged fund-raising improprieties by Clinton and Vice President Gore proves that the independent counsel law is ultimately subject to political pressures.
At its national convention in Los Angeles this month, the American Bar Association voted to recommend the law not be reauthorized in any form. If Congress does reauthorize the law, the group requested a series of safeguards limiting the power of the independent counsel and holding the office more strictly accountable to Department of Justice rules and procedures.
Philip Anderson, the Little Rock lawyer who is president of the American Bar Association, said the group recommended the ordinance 20 years ago and has supported it over the years. But it has come to the conclusion that the statute has had the opposite of its intended effect.
"We had to conclude that public confidence in government has not been restored, and public cynicism has increased. When we asked ourselves if politics has been removed from investigations of high officials, we had to conclude it had not," Anderson said.
The law was designed in the wake of the Watergate scandal to provide for an investigator who would not be subject to the political pressures that can be levied against the Justice Department.
As Watergate began to unfold, President Nixon's attorney general, Elliot Richardson, appointed Archibald Cox to serve as a special prosecutor. The procedure was the same that had been used to investigate all previous alleged presidential wrongdoing, such as the "whiskey ring" scandal of the Ulysses S. Grant administration.
When Cox refused to withdraw a subpoena of White House tapes, Nixon ordered Richardson to fire him. Richardson resigned rather than follow Nixon's orders, and both Richardson's top aide and Cox were dismissed in the "Saturday Night Massacre."
The 1978 Ethics in Government Act created an exhaustive set of rules for investigating certain elected, appointed and party officials, centering around an independent counsel designed to operate more or less independently of all three branches of government. Independent counsels have the power to subpoena witnesses and documents, call grand juries and pursue indictments. Their investigations have no time limits and are not constrained by fixed budgets.
Since the law was passed, 20 independent counsels have conducted investigations at a cost of more than $150 million. The most famous examples are Lawrence Walsh's seven-year, $50 million investigation into the Iran-Contra affair and Starr's four-year, $50 million investigation into Clinton's involvement in questionable real estate transactions in the 1980s, which has expanded into various other alleged improprieties, including Clinton's relationship with Monica Lewinsky.
In the Reagan and Bush years, Republicans were the act's strongest foes and Democrats its biggest supporters. But now, the drive to substantially reform or scrap the independent counsel statute is strikingly disconnected from the partisanship of the impeachment hearings. Dickey and the six co-sponsors of the House reform bill overwhelmingly supported the four articles of impeachment last December, casting 21 yes votes and seven no votes. Two of the no votes came from Dickey and four from the bill's sole Democratic co-sponsor, Cynthia McKinney of Georgia.
In considering the independent counsel law, Dickey thinks about Watergate as much as Whitewater. The difficulty the Justice Department had investigating Nixon is proof that in some situations, more separation is needed between the investigator and the investigated.
But the current system has ingrained a scandal mentality and unleashed roving prosecutors bent on targeting individuals, he said.
"We have encouraged a soap opera mentality that is being financed by taxpayers' money," Dickey said. "I think we need to hurry in our efforts to curb this temptation of our society."
Dickey's bill addresses many of the concerns of the act's critics. Major elements include:

Requiring independent counsels to get budget approval from Congress every two years.
The most significant piece of the reform proposal, Dickey said this measure is designed to hold independent counsels accountable to the political process in a way they haven't been before. Because they will have to derive approval from Congress and Congress is accountable to the people, the independent counsel will become more dependent on public support.

Giving the attorney general subpoena power to help determine whether to call for an independent counsel.
In some cases, independent counsels have been called unnecessarily because the attorney general wasn't able to conduct a thorough investigation, Dickey said.
"This will give the attorney general a greater perspective and will also save money," he said.

Limiting the independent counsel's ability to add matters to his investigation that are unrelated to his original mandate.
Independent counsels have been given broad authority to expand their investigations to cover any potentially illegal acts they learn of while pursuing their initial mandate.
Over the course of his investigation of the Whitewater land deal, Starr added inquiries into the death of White House aide Vincent Foster, the firing of seven employees in the White House travel office, the appearance of hundreds of confidential FBI files in the White House and, finally, alleged perjury and obstruction of justice connected to Clinton's affair with Lewinsky.
"If the independent prosecutor is going to work one day and sees a robbery take place, he can become a witness and can refer it to the state or federal prosecutor, but he shouldn't bring that into the independent prosecutor's jurisdiction," Dickey said.

Requiring the court to order reimbursement for attorneys' fees the target of an investigation may incur if he is not convicted.
Dickey said he knows of Arkansans who have amassed tens of thousands of dollars in legal bills dealing with the Starr investigation even though they were never accused of a crime.

Forcing independent counsels to follow Justice Department procedures in releasing information gained during an investigation.

Forbidding independent counsels from conducting outside legal work. Until last year, Starr continued to earn a seven-figure salary from a private law firm while serving as independent counsel. Dickey said he thinks this provision will put additional pressure on the independent counsel to wrap up his investigation more quickly.
Dickey's bill does not directly address several fundamental objections critics have raised. The law's most powerful criticism by virtue of its source comes from Supreme Court Justice Antonin Scalia's 1988 dissent in Morrison v. Olson. The court upheld the independent counsel's constitutionality in that case, but in his dissent, Scalia argued that the independent counsel violates the separation of powers.
The sole authority of the executive branch is vested in the president, but he is allowed to delegate authority to officers who are approved by the Senate. Congress is also allowed to appoint "inferior officers" in the executive branch as they see fit, according to Article II, Sections 1 and 2.
Independent counsels are appointed by three-judge panels, not by the president with the consent of the Senate, and Scalia concludes that since the president's ability to fire an independent counsel is indirect and severely limited, they cannot be considered "inferior officers." Hence, he argues, the office cannot be allowed under the Constitution.
Moreover, the independent counsel functions as an executive officer but is not subject to the public accountability that makes up an important check on the executive branch, Scalia writes. Federal prosecutors ordinarily have a great deal of discretion in which cases they pursue and how they go about their investigations, but since they are accountable to the elected president, they are ultimately accountable to the people.
Independent counsels, appointed by judges, are not accountable in the same way, leaving open the possibility that an overzealous prosecutor, prejudiced against the target of the investigation, will conduct a never-ending search until he finds some violation of the law, Scalia writes.
"An independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one," Scalia writes.
Dickey acknowledges that his bill doesn't directly address these concerns, but in a practical sense it may solve the problems Scalia foresaw.
Forcing the independent counsel to get budget approval from Congress every two years provides a check on the independent counsel's power, and other elements of the bill set limits on counsel's activities in office, Dickey said.
Dickey and Thompson plan to hold hearings on the issue in the spring.
Reaction to the House bill has been limited so far, but no one has argued that the independent counsel statute should stay the way it is, Dickey said. Some have told him they think it needs to be scrapped altogether, but he said he thinks there will be support for an independent counsel in some form.
"We know from Watergate that we can't have a person appointed by the president investigating the president. That is the reality in our system of government," he said.

This article was published on Sunday, February 14, 1999

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