not-so Independent Counsel: How Congressional investigations undermine accountability under the Independent Counsel Act, The

Georgetown Law Journal, Jul 1998 by Dormer, Stephen G

As a result, Congress can play a major role in establishing the facts upon which the Attorney General will base her preliminary investigation. Carefully orchestrated hearings and a selective focus on accusatory witnesses could guarantee that an independent counsel will be appointed.80 Other witnesses who may be inclined to exonerate the executive branch official being investigated might assert their Fifth Amendment privilege, leaving the Attorney General little or no choice but to recommend an appointment. Finally, congressional findings may also compel an independent counsel appointment.81

This scenario essentially happened to Theodore Olson. As Justice Scalia explained in his dissent:

As a practical matter, it would be surprising if the Attorney General had any choice . . . but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000-page indictment drawn by our representatives over 2 1/2 years does not even establish "reasonable grounds to believe" that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? . . . The context of this statute is acrid with the smell of threatened impeachment.82

This ability to dictate the facts and circumstances of the preliminary investigation thus allows a Coercive Congress to intrude further on executive discretion in deciding whether or not to appoint an independent counsel. It is hard to imagine that such authority was envisioned in the Ethics in Government Act because the result would just be a substitution of the external political influences of Congress for those of the Executive, when the independent counsel statute was conceived with the purpose of ensuring criminal investigations free from external political influences.

3. Congressional Oversight of the Independent Counsel

Congress, under the independent counsel statute, placed on the independent counsel the "duty to cooperate with Congress's [oversight] jurisdiction" without defining what it meant by "oversight."83 And, as has happened in the current Congress, the Attorney General herself could be subpoenaed to justify a decision not to appoint an independent counsel.84 Such use of Congress's oversight authority, combined with the absence of a statutory definition of oversight, raises the question of where oversight ends and coercion begins: Can a Coercive Congress bring political pressure to bear on an independent counsel to prosecute, or not to prosecute, an individual?85

For instance, former Independent Counsel Lawrence Walsh describes an instance of what he terms "spurious oversight" by Congress during his conduct of the Iran-Contra prosecutions.86 As Walsh writes, after the indictment of Secretary of Defense Caspar Weinberger, "[w]e were denounced by Senator Robert Dole and by a number of Republican congressmen.... [calling the indictment] the work of hired assassins. Then seventy-five congressmen asked the Attorney General to have me removed."87 While Senator Dole was a member of the minority party at the time, and these comments were not part of an oversight hearing under the independent counsel statute, the same kind of remarks foreseeably could be made by the majority members of an independent counsel oversight committee. Such comments, particularly if the independent counsel were to respond by changing his or her mind, could present serious separation of powers questions as Congress would be invading the executive branch's prosecutorial discretion.88 Fortunately, as of yet, this issue has never materialized.