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New “Dependent” Counsel Regulations Are DangerouslyRestrictive, Public Citizen Says

July 26, 1999

New “Dependent” Counsel Regulations Are DangerouslyRestrictive, 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 newregulations governing the appointment and activities of special counsels, severelylimiting their authority to investigate misdeeds by high officials, Public Citizen says ina July 26 letter to Attorney GeneralJanet Reno. The new rules, issued in reaction to past abuses by special counsels, willput future special counsels at the mercy of top justice officials and subject the counselsto the political whims of administration officials, Public Citizen says.

Under the regulations, which took effect when the Independent Counsel Act expired June30, Justice Department officials not only can meddle with a special counsel’s workbut can cripple an investigation by slashing the counsel’s funding or cutting theoffice staff. Also, administration officials now have the power to veto a specialcounsel’s proposed indictments, appeals and requests for sensitive White Housedocuments.

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

“The Justice Department has attempted to cure the runaway independent counselproblem with an overdose of control by the attorney general,” Claybrook said. “Aspecial prosecutor will have no more autonomy than a Justice Department prosecutor, willbe under the thumb of the administration and will be subjected to the vagaries of theadministration’s political agendas. These regulations create a ‘dependentcounsel,’ 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, theletter says. The Justice Department wrote the rules without seeking comment from thepublic or members of Congress, all of whom have an interest in ensuring thatinvestigations of high-level administration officials are conducted competently and arenot tainted by politics. “For an issue that has been subject to such extensive publicdebate and public concern, the action of the Justice Department in summarily dismissingany opportunity for public comment is totally inappropriate,” the letter says. Theletter urges Reno to deem the regulations “interim rules” and to set a publiccomment period. The rules then could be modified in response to the comments.

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

Letter to Attorney General JanetReno

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