Independent counsel: No more, no less a federal prosecutor

Georgetown Law Journal, Jul 1998 by Dash, Samuel

By 1992, Republicans, whose Reagan and Bush administrations had borne the brunt of investigations and prosecutions by appointed independent counsel, had grown increasingly frustrated with the independent counsel statute. They mounted an attack on the statute so fierce that they succeeded in blocking its re-authorization even though Republicans comprised a minority of Congress. Ironically, in 1994, when the Whitewater scandal erupted to embarrass a Democratic President, Republicans enthusiastically joined with then reluctant Democrats in Congress to pass the independent counsel Reauthorization Act of 1994 ("the 1994 Act"),13 so that an independent counsel would be available to investigate the President's involvement in the Whitewater matter. The 1994 Act also instituted a number of changes designed to increase the accountability of the independent counsel and ensure budget and fiscal control of his office.

This essay seeks to address the principal criticisms leveled at the independent counsel statute. Part I examines the political context in which these criticisms have been made. It suggests that the barrage of attacks directed at independent counsel have been fueled largely, although not exclusively, by the powerful public relations operations of the senior officials targeted by independent counsel investigations. Part II addresses substantively the principal complaints made of independent counsel: First, that independent counsel are not accountable; and second, that independent counsel are not constrained by limits on time and money. Part III tests the validity of these criticisms against the experience of Iran-Contra independent counsel, Lawrence Walsh. Walsh's experience illustrates-more clearly than an abstract argument ever could-the real-world constraints faced by an independent counsel and the continuing effectiveness of executive branch attempts to undermine such an investigation.

I. WHAT HAVOC WAS UNLEASHED?

This inquiry is suitable in light of the noisy and angry condemnation of independent counsel and the legislation that creates them. A chorus of critics supported by much of the media denounce independent counsel as dangerously powerful prosecutors accountable to no one and possessed of unlimited time and money. Independent counsel, say these critics, can use the vast resources of their offices to track, hound and destroy a single target. They are therefore more likely to abuse their power in a way that regular prosecutors in the Justice Department or United States Attorneys' offices are unable to do. To these angry critics, an independent counsel is not much better than Torquemada of the Spanish Inquisition.

Is there a valid basis for this criticism? If so, then the Congress has unleashed a monster in federal prosecution incompatible with American constitutional justice. In answering this question it is relevant to ask who these critics are. Most are either the targets of independent counsel investigations or counsel to a target. There is nothing new about a target or the target's counsel blasting the prosecutor for abuse and unfairness. Often unrelated to the merits of the criminal charge, this strategy is aimed at weakening the prosecutor in the hope that it will also weaken the prosecutor's case. Regular federal prosecutors often face this kind of attack. Very little public attention is given to these attacks on federal prosecutors because the criminal cases involved are generally not nationally newsworthy.