Independent Counsel: A view from inside, The

Georgetown Law Journal, Jul 1998 by Smaltz, Donald C

DONALD C. SMALTZ*

INTRODUCTION

So you think you want to be an independent counsel? Notions of public service are strong in many lawyers. Particularly among former federal prosecutors, there seems to be a desire, once they leave the U.S. Attorney's Office, to return to public service after they have made enough money in the private sector to send their kids to college and pay their mortgages.

Some regard the position of independent counsel, formerly known as special prosecutor, as a desirable opportunity to return to public service. After all, it allows you to serve your country on a temporary basis. It puts your finely-honed legal skills to work investigating and either clearing or prosecuting senior political officials who have been accused of criminal acts. It offers a former prosecutor an opportunity to return to those thrilling days of yesteryear. And, unlike in any previous public position you might have held, you are your own boss, taking direction from no one, not even the Attorney General or President.

However, before concluding that the independent counsel appointment is something you covet and would accept, you should acquaint yourself with much more than just the text of the independent counsel statute (the "Act").1 The office occupies a unique niche in the federal government, and has a political history and legal idiosyncracies that impact every independent counsel's term in office.

When I became an independent counsel some three and a half years ago, I did not realize what I was stepping into. While the independent counsel's core role is that of a prosecutor-an attorney-and while the independent counsel may consider himself apolitical, he inevitably gets caught up in the "political swirl" of executive branch politics. Part I of this article will describe some of the history of special prosecutors and independent counsels in America. Part II proceeds to outline briefly the nuts and bolts of today's independent counsel law and to explain how the Act attempts to depoliticize the appointment process. The Act's effort to depoliticize the appointment process creates a unique set of impediments to the efficient running and prompt resolution of the independent counsel's investigations and prosecutions, which I discuss in some detail in Part III. Finally, Part IV addresses criticisms of the Act, and explains-from my perspective-the values served by independent counsel investigations.

I. SOME RELEVANT HISTORY

In 1978, after 200 years of relatively stable and effective government, Congress, in its wisdom, decided that thereafter when allegations were levied against the President, cabinet members, and other high officials in the executive branch, the investigation would not be handled by the Attorney General's Department of Justice (DOJ). Instead, a panel of judges would appoint a special prosecutor to investigate the charges and, when appropriate, bring criminal prosecutions. The legislation effecting these changes was the Special Prosecutor Act-Title VI of the Ethics in Government Act of 1978.2 For the first time in the nation's history, the special prosecutor became an institutional, albeit sporadic, part of the federal government.

At the time this legislation was pending, its numerous and substantial critics denounced the concept as being inimical to the separation of powers required by our Constitution.3 As we all learn in high school civics, Article I of the Constitution charges the legislature with enacting the law; Article II charges the President with enforcing the law; and Article III charges the courts with interpreting the law. That constitutional balance, argued the critics, is impermissibly altered when anyone other than the President and those appointed by him undertakes to enforce the law. If the Act became law, they predicted, it most assuredly would be unconstitutional.4

The critics also noted that, if a President were corrupt, the Constitution provided adequate remedies. The President, like everyone else, was subject to prosecution for violating criminal law and, even if a sitting President couldn't be tried for criminal acts-an open question-Congress could always impeach a President and members of his cabinet, or could at least expose a chief executive's corruption through legislative hearings.5 In the end, the ultimate constitutional remedy was for the people to throw the crooks out in the next election.

A. THE DAWN OF THE NEW AGE

What was it that goaded Congress into passing, and President Carter into signing, legislation that set up an elaborate system for the appointment and functioning of special prosecutors with no legal crisis on the horizon? To understand the impetus for the independent counsel legislation, it is necessary to recall the lengthy history of special prosecutors, culminating with Watergate.

There seems to be little disagreement that Watergate makes a compelling case for a special prosecutor with real independence from the President. President Nixon's unqualified admissions to criminal acts, which were recorded on tape and subsequently turned over to the special prosecutor, were an unprecedented chapter in American political history that is not likely to be repeated. But the history of special prosecutors before Watergate reveals that Nixon was not the first President to appoint a special prosecutor, nor the first to fire one.