Independent counsel: No more, no less a federal prosecutor

Georgetown Law Journal, Jul 1998 by Dash, Samuel

SAMUEL DASH*

INTRODUCTION

On Saturday night, October 20, 1973, the unthinkable happened-Acting Attorney General Robert Bork fired Watergate Special Prosecutor Archibald Cox on direct orders from President Richard Nixon.1 Cox had refused to obey Nixon's directive to cease his aggressive efforts to obtain the White House tapes, tapes that were alleged to have recorded a criminal conspiracy to cover up the White House-sponsored burglary of the National Democratic Committee's headquarters in the Watergate. The existence of these tapes was uncovered and publicly exposed by the Senate Watergate Committee during its televised hearings on July 16, 1973.2 Attorney General Elliot Richardson, who had appointed Cox in fulfillment of an agreement with the Senate Judiciary Committee made during his confirmation hearings, received the same order from Nixon, but refused to carry it out and resigned.3 Deputy Attorney General Ruckelhouse also resigned rather than obey the order.4 Finally, Robert Bork, Solicitor General, acting as Attorney General, obeyed the President's order.5 Then and since this horrendous presidential action to obstruct a federal criminal investigation of the President and his aides has been known as "The Saturday Night Massacre."

Nixon could lawfully fire Cox. After all, Cox was a federal prosecutor within the Department of Justice under the supervision of the Attorney General and the President. As Attorney General, Richardson had assured Cox that he would not interfere with the investigation. But the Attorney General could not bind the Chief Executive. Richardson had no authority to stop Nixon, even though the President's action was not only politically catastrophic, but incompatible with his Article II obligation to "take Care that the Laws be faithfully executed."6

As Chief Counsel of the Senate Watergate Committee, which had exposed most of the details of the Watergate scandal in televised hearings during the summer of 1973, and which was still holding hearings when Cox was fired, I was shocked that the President could so easily terminate a criminal investigation targeted at him. The irony is that Nixon would have succeeded had there been no Senate Watergate hearings that summer. To the uninformed public, the firing of the Special Prosecutor would have been just another political donnybrook in Washington. But, as the hearings progressed, the facts of the Watergate conspiracy and cover-up outraged the public; they came to understand how corrupt Nixon's firing of Cox really was. Millions of Americans wrote, called or telegraphed their outrage to the White House and Congress. This public outcry, then referred to as the "firestorm," was so fierce that Nixon was forced to appoint another special prosecutor, Leon Jaworski, to pick up where Cox had left off.7

Despite this encouraging response to the Saturday Night Massacre, I believed this kind of political solution to an abuse of executive power was a unique event produced by the televised exposure of Watergate by the Senate Watergate Committee. I feared there could be a different outcome when a future President directly interfered with a criminal investigation in which he or she was a target.8 I advised the Senate Committee that its first legislative reform recommendation needed to be the creation of an independent prosecutor who would be appointed by judges-not the President or Attorney General-when there were credible and serious charges of violation of the federal criminal law by a President, Vice President or senior executive branch official. The first recommendation in the Senate Watergate Committee's June 1974 Final Report addressed this issue. The Committee initially believed that such an independent officer should be a permanent "Public Attorney" to investigate and prosecute when there was an actual conflict or the appearance of one in the executive branch.9

Subsequent consideration resulted, however, in the belief that a permanent office was not desirable. Experienced and successful members of the bar would not be attracted to such a position. More likely, it was believed, young lawyers on the way up would seek this position, thereby creating the potential for overly ambitious investigation and prosecution of executive branch officials, including the President. In addition, it was expected that this special prosecution would rarely occur and that a permanent office would not have much to do. Instead, Congress enacted legislation in 1978 requiring a court to appoint a special prosecutor upon the application of the Attorney General on a case-by-case basis.10 The statute also provided that the legislation would expire in five years if not re-enacted.11 In 1983, and again in 1987, Congress re-enacted the statute,12 while also amending it to respond to persistent criticism from the Department of Justice. For example, the title of the lawyer appointed under the statute was changed to "independent counsel" in order to avoid any connotation that the appointment meant that a criminal violation had occurred and that prosecution would ensue. Other amendments modified the standards triggering a request by the Attorney General for the appointment of an independent counsel.