need for renewal of the Independent Counsel Act, The

Georgetown Law Journal, Jul 1998 by Walsh, Lawrence E

LAWRENCE E. WALSH*

INTRODUCTION

One of the most hotly debated issues in Washington and around the country is whether Congress should renew or amend the Independent Counsel Act (the "Act").1 Like fuel for the fire, Independent Counsel Kenneth Starr's recent activities have brought this issue to the forefront of political debate. Some commentators, however, are quick to criticize the perceived shortcomings of the Act without fully considering whether they are rightly attributed to the Act or would be equally applicable to the Attorney General's traditional power to appoint a special prosecutor under Department of Justice (DOJ) regulations.2

This essay summarizes the current issues in controversy as Congress considers the renewal of the Act and attempts to focus the debate on whether such criticisms should be attributed to the Act.3 Part I of this essay outlines the history of the Act. Part II discusses the general need for a mechanism whereby high-ranking government officials can be investigated by a person independent of the DOJ. Part III summarizes the primary criticisms of the Act and attempts to demonstrate how most of the alleged weaknesses in the Act can also be attributed to the Attorney General's general power to appoint a special prosecutor.4 Since most criticisms of the Act apply equally to the Attorney General's power to appoint a special prosecutor, Part V concludes that the Act should be renewed with only minor modifications.

I. HISTORY OF THE INDEPENDENT COUNSEL ACT

In 1973, Acting Attorney General Robert Bork sparked a storm of controversy by carrying out President Richard M. Nixon's order to fire Watergate Special Prosecutor Archibald Cox.5 The president of the American Bar Association, Chesterfield Smith, led the public expression of outrage by demanding Cox's replacement by an equally independent special prosecutor.6 In addition, Smith created an ABA special committee to recommend statutory changes which would prevent such a disruption of the work of future special prosecutors.7 In 1977, the committee's work led to the enactment of the first independent counsel act.8 The statute had an initial life of only five years unless renewed by Congress, and it has since been renewed three times.9

The Act requires the Attorney General (after a preliminary investigation) to request a special division of the United States Court of Appeals for the District of Columbia to appoint an independent counsel (i) when an investigation by the Attorney General may result in a personal, financial, or political conflict of interest; or (ii) when the Attorney General concludes there are "reasonable grounds to believe that further investigation is warranted" against the President, Vice President or other specified high-ranking official.10

Although perceived excesses have, from time to time, provoked opposition to the Act's renewal and some have urged its repeal,11 this opposition has been primarily focused on the insertion of possible controls over the expenditures of an independent counsel and the duration of his investigation. Until the appointment of Judge Kenneth Starr to replace Robert Fiske as independent counsel for the Whitewater investigation, the actual selections by the Special Division had not received significant criticism. Until my investigation of Iran-Contra matters,12 there had been little complaint of the length or expense of investigations.

The latest re-enactment of the Act included some new provisions designed to address some of these perceived weaknesses in the Act. Although the Act has always authorized the Special Division of the court to terminate the office of independent counsel if it concludes that the investigation is complete, or so nearly complete that it can be completed by the DoJ,13 the latest re-enactment requires the Special Division to review the status of the investigation at the end of two years and at the end of each subsequent year.14 In addition, it generally requires that independent counsel move to the site of the primary office after a year or thereafter pay his own travel expense to his primary office.15

II. THE NEED FOR AN INDEPENDENT COUNSEL

Most official criminal misconduct must be left to criminal prosecution rather than congressional review. The executive branch has grown so large and presidential appointments so numerous that Congress does not have time to use its impeachment power except in dealing with officials of the highest rank. Other available forms of congressional oversight are not adequate to deal with criminal misconduct. Political retaliation by curtailment of appropriations or adverse legislation may injure the public more than the offending individual. Public hearings can bring disgrace, but only if they are well-focused and consume a considerable amount of congressional time. Hearings rarely lead to voter retaliation because presidential elections are and should be concerned with broader issues than the misconduct of a presidential subordinate. While some protest the "criminalization of policy disputes,"16 deliberately false statements to congressional committees have long been criminal and have been successfully prosecuted.17