The recent conclusion of the trial of Lieutenant Colonel Oliver North provides as good an occasion as any to take stock of a remarkable federal law whose influence is increasingly felt in today’s Washington. The special-prosecutor law—enacted as Title VI of the Ethics in Government Act of 1978—has been twice amended, in 1983 and 1987, and is scheduled to expire in 1992. Over the years this law has acquired a new name—now it is the “independent-counsel statute”—and last summer the Supreme Court upheld its constitutionality in Morrison v. Olson. It is popular on Capitol Hill and in the most influential segments of the media, and a betting man would have to wager that some time before the end of 1992 Congress will extend it another five years, if not stitch it permanently into the federal code.

Nonetheless, the experience of the past eleven years, which have witnessed the appointment of more than nine independent counsels and some well-publicized investigations, including the North probe, argues in favor of major reform of the statute, if not its repeal. This experience shows that the great desideratum of post-Watergate Washington—truly independent special prosecutors to investigate administration malfeasance—has been achieved, all right, but at a very high price that was only dimly perceived at the time of Watergate itself.

_____________

 

The idea of a court-appointed “special prosecutor” (or independent counsel) to investigate criminal allegations involving administration officials first arose in the fall of 1973, in the wake of the firing of Watergate Special Prosecutor Archibald Cox, who had been appointed, in accordance with the then-prevailing system, not by any court but by the Attorney General. Legislation to this effect was seriously discussed but finally shelved, as the Nixon administration named Leon Jaworski to succeed Cox; Jaworski continued the investigation without White House interference and with apparent success. Nonetheless, a new conventional wisdom insisted that the public could not have confidence in executive-branch investigations of itself, and during the mid-70’s Congress considered various proposals designed to authorize the appointment of “independent” prosecutors. This search resulted in the 1978 statute.

In 1979 and 1980, special prosecutors were named to investigate cocaine charges involving two of President Carter’s closest aides. Neither investigation led to prosecution, and both probes were widely regarded as ill-advised and unnecessary, even though the law effectively compelled them. Congress thus changed the statute in 1983 to prevent recurrences of such meritless probes, which in this case had cost the taxpayers close to $200,000 and the defendants substantial legal fees, not to mention injury to reputation.

In 1982, then-Labor Secretary Raymond J. Donovan was investigated on corruption charges by an independent counsel but not prosecuted on account of insufficient evidence. In 1984 Jacob Stein was named to inquire into various charges involving then-White House Counselor Edwin Meese III, who was confirmed as Attorney General after Stein found no evidence to prosecute.

In the spring of 1986 Alexia Morrison was picked to investigate Theodore B. Olson, a former Justice Department official, on charges of misleading Congress. It was his constitutional challenge to the statute that the Supreme Court rejected in Morrison v. Olson, but Morrison in the end concluded against prosecution. Also in 1986, Whitney North Seymour was appointed to investigate illegal lobbying allegations against former Reagan aide Michael K. Deaver, who was eventually convicted of perjury, and in the same year Lawrence Walsh was appointed to investigate the Iran-contra affair. In early 1987 James McKay was selected to investigate illegal lobbying charges involving former Reagan aide Lynn Nofziger and the scandal-ridden Wedtech Corporation. Later that year, McKay was asked to probe related matters involving Attorney General Meese. Nofziger was convicted, though his conviction was later overthrown on appeal. Meese, who was not prosecuted, left office in August 1988 shortly after McKay issued an 814-page report. These are the “officially” known cases so far.1

No one can dispute that in one respect the statute has proved a resounding success. The many investigations carried out under its terms have indeed been “independent,” free of real or apparent conflicts of interest. And no doubt the public has perceived the investigations to be independent; there has been no loss of confidence in the integrity of government, at least not on this score.

This is no minor achievement, but it cannot be evaluated without regard to what independence has meant in other respects. For we now know that independent counsels can be unreasonably, even perversely, independent.

Nothing better illustrates this tendency than certain actions by Whitney North Seymour, who investigated Michael Deaver. Seymour drew his own office seal, featuring an eagle with its head turned defiantly in the opposite direction from the one on the Justice Department seal; the point, as he put it, was that his office had “total independence.” And it was Seymour who, upon winning Deaver’s conviction on perjury, told reporters how much “loose money” there was in Washington, before going out to advertise himself on the college-lecture circuit as someone willing to accept large fees to talk about government ethics.

Seymour has proved the most eccentric of the independent counsels to date; others have been stylistically more sedate. Yet whatever their styles, they have generally regarded themselves as the Lone Rangers of the federal criminal law.

An anecdote is revealing. One of the issues in the litigation over the constitutionality of the statute concerned whether or not, for purposes of his appointment, a counsel was an “inferior officer” of government. Now it so happened that independent counsels had to be defined as inferior officers, or else their appointments would have been clearly invalid under the Constitution; and therefore in Morrison the Supreme Court, in upholding their constitutionality, so classified them. But to some this definition has seemed merely technical. Thus, Guy Struve, Lawrence Walsh’s chief deputy, told the judges of a federal appeals court that in his view an inferior officer did not have to be inferior to anyone, not even the President. Asked by the court just who would have the last word in case of a disagreement over foreign policy and its implications for prosecution, Struve answered that the counsel would.

This is an answer with breathtaking implications for constitutional law, even democracy itself, although the Supreme Court failed to see them. Yet the purpose here is not to reargue the case but to make a psychological observation: Struve’s remark shows how independent counsels tend to think of themselves. Struve’s boss also demonstrated this tendency in remarks before the American Bar Association in a 1987 speech. There Lawrence Walsh stated that if an investigation finds “probable cause that a crime has been committed, it is the duty of the independent counsel to prosecute.” This, however, is not the prevailing or the reasonable standard: according to the prosecution manual of the Justice Department, fundamental fairness requires that an indictment issue only if the prosecutor believes that an unbiased jury would convict.

_____________

 

Today’s independent counsel—inferior to no one, ready to go it alone in pursuit of alleged crime—has in fact taken unreasonable prosecutorial actions. Consider Alexia Morrison. Upon finding that the subject of her investigation probably had not violated a federal law, she nonetheless sought to expand her jurisdiction in order to see whether he might be implicated in a conspiracy with others—even though she had no evidence of any such conspiracy. It is doubtful that a prosecutor operating under other legal authority would have gone to such lengths.

It is, indeed, the lengths to which independent counsels go in their singleminded pursuit that tends so to increase their expenses. From 1979 through March 31 of this year, bills submitted by independent counsels and paid by the Administrative Office of the U.S. Courts amounted to over $19 million. This figure undoubtedly understates the actual taxpayer cost, since the contribution of the FBI and other investigative agencies is not included in it, and neither, of course, are the substantial costs borne by the White House and other agencies in responding to independent-counsel inquiries.

Yet the burden on the taxpayer is hardly the most important one. It is also apparent that independent counsels can act in such a way as to damage the traditional, non-prosecutorial interests of the executive branch. Whitney North Seymour, for example, persistently tried to subpoena the Canadian ambassador to the United States; although in the end the district court held that his subpoenas violated diplomatic immunity, a great deal of expensive diplomatic china was broken in the process.

Then there is the matter of civil liberties. Already there have been instances of counsels who have unjustifiably gone too far, at the expense of those they investigate.

In the Olson probe, the applicable statute of limitations was five years, and was scheduled to expire on March 10, 1988. Independent Counsel Morrison, who was investigating Olson for misleading Congress, threatened him with a “sealed, protective indictment” if he did not waive his rights to the expiration of the statute of limitations. Olson agreed, thus enabling Morrison to buy more time, but obviously he had little choice. Had he been indicted, he could not, under the statute, have sought recovery of legal fees, even if he were later acquitted. With Olson’s fees running close to a million dollars, Morrison’s threat was tantamount to blackmail, made more outrageous by the fact that she not only had no reasonable assurance of winning a conviction but also had no evidence against Olson.

Another action taken by an independent counsel ranks as equally outrageous. Watergate Special Prosecutor Henry Ruth once observed that it is “irresponsible and unethical for a prosecutor to issue a report suggesting criminal conduct on the part of someone” who is not indicted. Yet in his report on Meese, whom he had decided not to prosecute, McKay said that the then-Attorney General had probably violated federal tax laws relating to the sale of securities. McKay also found that Meese probably had violated federal conflict-of-interest laws by participating in Justice Department matters that directly affected companies in which he held stock.

This represented the first time ever that an independent counsel had used the statutorily required report to suggest guilt on the part of the individual investigated. (In an ordinary criminal investigation, it is not language by a prosecutor in some report but grand- and petit-jury actions that alter the presumption of innocence to which a citizen is entitled.) The impact was duly noted by the National Law Journal: “Although as a practical matter the criminal findings have no effect, they were a public-relations disaster for Mr. Meese. News stories . . . highlighted the criminal allegations, while the explanation of the charges was too complicated to get much play in the press.” For all intents and purposes, Meese, who was neither indicted nor convicted of any crime, was nevertheless perceived by many as a criminal.

_____________

 

So much for what experience shows about independent counsels. In retrospect, it is clear that much of what has happened to the office could have been predicted, though perhaps not by those like Senator Sam Ervin who in the heady post-Watergate days were decrying White House “monarchy.”

There were two major issues that concerned the anti-executive Congress of that time. One was who should appoint a special prosecutor; the other was how to restrict the President’s power to remove—and thus control—a special prosecutor. Vesting in the judiciary the power to appoint, and limiting to “good cause” the President’s power to remove, were viewed as the principal means to the end of prosecutorial independence. Both actions raised important questions of constitutional law, finally addressed in Morrison v. Olson. But from the perspective of 1989 it is evident that these were merely the two most obvious features of a statutory framework that was bound to produce unreasonably independent counsels the least of whose costs are the ones accounted for in dollars and in sense. All that has occurred the statute permits, and even positively encourages.

Under the statute, each counsel, who is answerable to no one in the executive branch, has only one subject matter to investigate, but unlimited resources to do the job. And each counsel gets to start from scratch, ordering supplies and hiring aides for an office that did not exist before his appointment. A counsel does not have to consider the merits of other cases; he does not have to worry about normal budgetary constraints in deciding how far to press the case he is handling; and he has around him no peers handling similar cases or supervisors advising him in his labor. Under the statute, a counsel need not follow Justice Department policies or take account of the administrative, national-security, diplomatic, or other considerations that often shape a federal criminal investigation.

In other words, the statute itself insulates independent counsels from the kind of environment that tends properly to constrain all other prosecutors. Nor is this all that the statute does. Even as it insulates the prosecutor from his normal world, it effectively places him in an altogether different and far more political world.

In an ordinary case, the government would not announce even that an investigation is occurring; that fact is acknowledged only on the day an indictment is returned. But the statute authorizes the judiciary to announce an investigation once it has appointed a counsel. Not surprisingly, such investigations attract intense media interest, and expectations arise that a counsel will indeed prosecute unless it becomes palpably evident that he has no chance of winning a conviction. Furthermore, since the statute requires the independent counsel to report on his investigation, expectations arise that even if he declines to prosecute he will take his pound of flesh in the report.

Consider in this respect a statement by McKay’s office defending its report on Edwin Meese: “Could you imagine if we came down where we came down and decided not to report that? Can you imagine the uproar?” Yet normal prosecutors keep their mouths shut all the time, and uproars do not roar up. But such are the pressures of the political world in which independent counsels operate, and such is the nature of human nature.

_____________

 

A congress worried about unreasonable actions by independent counsels might attempt to rewrite the statute in ways designed to prohibit them. But it does not appear possible for Congress actually to make the present law into a good one by reform. For in the final analysis the problem here is at the level not of detail but of concept, and that problem can be resolved only by integrating independent counsels into the traditional prosecutorial universe with its far more fully developed sense of fairness, perspective, and judgment.

Could this be done? Congress might, for example, consider legislation providing for a permanent Office of Special Counsel. Such an office would be assigned the duty of investigating and, if necessary, prosecuting high-ranking government officials. Its head would be appointed by the President, subject to Senate confirmation, and he would be subject to removal at the President’s discretion. This would introduce the element of accountability now lacking and have a beneficial influence upon the mindset of the counsel, who could not then consider himself superior to the President or empowered either to craft his own prosecution policies or to disregard other executive-branch concerns. Nor would the President’s unfettered ability to fire an independent counsel necessarily threaten the integrity of his work. The political costs of doing so, without justifiable cause, would remain the ultimate insurance policy.

Organizationally such an office could be located within the Justice Department but physically housed elsewhere, as a symbol—the only one needed—of its independence. The office would have a small staff and, as a unit of the Department, would be expected to follow agency policies. Because its existence would be continuous, institutional memory would develop; there would be a larger “culture” to check the occupational hazards of the single-minded prosecutor. The office would handle allegations from the moment they were made, and the roles played under the present statute by the Attorney General (in screening the allegations) and the special court (in appointing an independent counsel) would be eliminated. The Office of Special Counsel would make the decision whether or not to prosecute, and the first public notice of any action taken would be on the day an indictment was returned—as in any other government prosecution. Any report on an investigation would be patterned after the one in Watergate—no McKay-style reports, in other words.

The idea of such an office, which would be independent in all the senses that truly matter, is not new—it was first proposed in the mid-70’s, and legislation much to this effect actually passed the Senate in 1976 by a vote of 91 to 5. More recently, Andrew Frey and Kenneth Geller, former career officials in the Justice Department, advocated a similar idea on the op-ed page of the Washington Post. There can be little doubt that a statute creating such an office would be far preferable to the ad-hoc system of independent counsels that now exists.

_____________

 

The question remains, however, whether Congress can—or wants to—lift itself high enough to glimpse the public interest. For here we come to the darker side of the independent-counsel statute, a side that many in Congress may privately delight in.

No discussion of the statute can overlook the fact that it applies only to high-ranking members of the executive branch. Here, as in so many other areas, Congress has exempted itself from law it imposes on others. Although President Bush has asked Congress to bring itself under the law, it is hard to imagine a Congressman so foolish as to welcome a single-minded prosecutor chasing after him. And it is not just the individual who has to fear the tunnel-visioned probe of the independent counsel. Like everyone else, Congress has seen the dissipation of energy and the ebbing of morale in the executive branch that has resulted from investigations of Reagan-administration officials. It is thus in the interest of Congress as an institution that any possible investigations into itself be conducted the old-fashioned way—by the Justice Department. By the same token, it is in the interest of Congress—and especially a Democratic Congress—that investigations into the Republican-controlled executive branch continue to be conducted the new-fashioned way.

Congress, after all, is not some disinterested observer of the statute. To the contrary, it designed the law precisely to suggest that criminal investigation and prosecution of the executive branch are some independent good that must be pursued regardless of the consequences. It has, in effect, ordered that prosecution policy be freed from all normal constraints and all burden of accountability. In the Olson case, it went so far as to arrogate to itself (in the persons of Democrats on the House Judiciary Committee) a role in compelling an investigation into actions taken by an executive officer in the line of duty and not involving any element of personal gain. As the Olson investigation showed, the independent-counsel statute has achieved the status, to rework Justice Jackson’s famous phrase, of a loaded gun, lying around on Capitol Hill where a sufficient number of Congressmen may grasp it and take aim at the executive branch. For those who use the statute in this way, it probably matters less that a given investigation result in conviction than that another name be added to the “sleaze” list, thus injuring an administration at the bar of public opinion, ensuring that administration officials themselves become more and more risk-averse, and dissuading strong-minded individuals from accepting invitations to work in positions subject to the strictures of the statute.

These are the political dynamics which indicate that Congress will not be eager do away with, or even substantially change, a statute that only the most naive can still say is about such high-minded notions as ensuring that no man is above the law. They are the same dynamics which indicate that when the opportunity arises, as it probably will in 1992, it would be wiser for a President to veto the statute than to extend it in its present form.

For in the end, the independent-counsel statute creates and breeds political irresponsibility. It absolves the President himself of responsibility for law enforcement, as neither he nor his aides any longer make the most important decision—whether to prosecute. Worse, the statute creates incentives for the President to be irresponsible. Instead of taking it upon himself to inquire into alleged misconduct of aides and deal with it accordingly—which might include standing behind an aide, not just prosecuting or removing him—the President can slough off his obligation onto the all-too-willing shoulders of an independent counsel.

Congress, meanwhile, and in exactly the same way, can slough off its responsibility to investigate malfeasance. The work of an independent counsel is the work of impeachment by other means; as Justice Antonin Scalia observed in his dissenting opinion in Morrison, the statute is “acrid with the smell of threatened impeachment.” But Congress is not accountable for this quasi-impeachment effort, however it turns out.

The statute thus invites the President and Congress to join in a handshake of irresponsibility, leaving the issue of executive malfeasance to those who may pursue allegations as they see fit and who are politically accountable to no one.

In a world without the statute, Congress could still investigate behavior that was not criminal, and could even impeach and convict an executive officer for conduct that was not prosecutable; likewise, the President could inquire into ethically dubious behavior (as well as allegedly criminal conduct), and could reprimand or remove officials who had engaged in it. What the statute has done is to encourage the framing of allegations of malfeasance in exclusively criminal terms. It invites both the President and the Congress to defer assessments of behavior in broader ethical terms, if not to forgo such assessments altogether. And so far as a defendant is concerned, it encourages him, in the event an independent counsel does not prosecute, to claim complete vindication, and indeed ethical probity.

There is another distortion the statute works—on our politics in general. It is no suprise that it tends to breed unbalanced prosecutors, for it is itself the product of an unbalanced idea—that criminal investigation or prosecution should have a place in our government removed as far as possible from all other interests and concerns. It is a natural consequence of this idea that prosecution of executive officials should acquire a larger and more prominent role than it otherwise would have. One reason ordinary politics is on the decline in Washington these days is precisely the fact that independent counsels have been on the rise during the past decade. Their existence—or, more accurately, the possibility of their existence—encourages a politically timid executive branch even as it invites the media and Congress to chase after any allegation, no matter how insubstantial.

It is Washington heresy to suggest that our politics could survive without the independent-counsel law. But we should ask just how well our politics can survive with it. The time has come to rethink this particular Watergate reform.

_____________

 

1 There have been at least two others, but it is up to the court that appoints counsels to release information about a particular case, or even acknowledge its existence.

+ A A -
You may also like
Share via
Copy link