New “Dependent” Counsel Regulations Are Dangerously Restrictive, Public Citizen Says

July 26, 1999

New “Dependent” Counsel Regulations Are Dangerously Restrictive, Public Citizen Says

Special Counsels Will Be Hamstrung Under New Rules, Letter Warns

WASHINGTON, D.C. — The U.S. Justice Department has gone too far in issuing new regulations governing the appointment and activities of special counsels, severely limiting their authority to investigate misdeeds by high officials, Public Citizen says in a July 26 letter to Attorney General Janet Reno. The new rules, issued in reaction to past abuses by special counsels, will put future special counsels at the mercy of top justice officials and subject the counsels to the political whims of administration officials, Public Citizen says.

Under the regulations, which took effect when the Independent Counsel Act expired June 30, Justice Department officials not only can meddle with a special counsel?s work but can cripple an investigation by slashing the counsel?s funding or cutting the office staff. Also, administration officials now have the power to veto a special counsel?s proposed indictments, appeals and requests for sensitive White House documents.

These regulations give special counsels far less leeway than they had during the Nixon administration. Further, these were enacted in secret, without any opportunity for public comment, the letter noted. The letter was signed by Public Citizen President Joan Claybrook; Alan Morrison, director of the Public Citizen Litigation Group; and Alison Van Horn, staff attorney. Public Citizen participated in the legislative debate that led to the Independent Counsel Act in the wake of Watergate and has since monitored its implementation. In February, Public Citizen issued a report containing detailed recommendations for appointment of special counsels. (The Independent Counsel Act: What Congress Should Consider in 1999 can be read online.)

“The Justice Department has attempted to cure the runaway independent counsel problem with an overdose of control by the attorney general,” Claybrook said. “A special prosecutor will have no more autonomy than a Justice Department prosecutor, will be under the thumb of the administration and will be subjected to the vagaries of the administration?s political agendas. These regulations create a ?dependent counsel,? not an independent one.”

The regulations are riddled with problems, the letter says. For example:

The rules give the Justice Department sole discretion to appoint, or not appoint, a special counsel, with no guidelines whatsoever as to when an appointment is “appropriate”;

The rules do not spell out what kinds of crimes should warrant an appointment or what level of official should be investigated;

Nothing in the regulations disqualifies a clearly partisan prosecutor;

The regulations do not prohibit a special counsel from simultaneously engaging in private work involving the United States government, as did Independent Counsel Kenneth Starr;

The reasons for which an attorney general may remove a special counsel are far broader than when President Richard Nixon tried to fire Special Prosecutor Archibald Cox in the midst of the Watergate scandal; and

Special prosecutors who are fired will have little recourse, because they are not entitled to notice, hearing or appeal.

Public Citizen also objects to the manner in which the regulations were issued, the letter says. The Justice Department wrote the rules without seeking comment from the public or members of Congress, all of whom have an interest in ensuring that investigations of high-level administration officials are conducted competently and are not tainted by politics. “For an issue that has been subject to such extensive public debate and public concern, the action of the Justice Department in summarily dismissing any opportunity for public comment is totally inappropriate,” the letter says. The letter urges Reno to deem the regulations “interim rules” and to set a public comment period. The rules then could be modified in response to the comments.

“The issue of how and when investigations of high-level government officials should be conducted is vital to our national interests and should not be decided by Justice Department decree alone,” Morrison said. “The regulations need to balance independence and accountability, which was clearly lacking in the Independent Counsel Act. But these new regulations tilt too far toward Justice Department control and would, at the least, result in investigations that are viewed with skepticism by the public. At the worst, they would result in special counsels being denied the freedom and resources to pursue politically sensitive investigations.”

Letter to Attorney General Janet Reno