Feb. 24, 1999
Public Citizen Recommends Major Overhaul
of Independent Counsel Act
Senate Hearings Begin as Controversial Law NearsExpiration
As Senate hearings on the Independent Counsel Act commence, Public Citizen todayreleased a new analysis of the law and recommendations for Congressional action. Hearingson the Act, which is due to expire June 30, begin today in the Senate Governmental AffairsCommittee.
Public Citizen played a role in the legislative debate that led to passage of theIndependent Counsel Act in the aftermath of the Watergate scandal and now recommends thatthe Act should not be reauthorized without significant reforms. Alternatively, theconsumer and government watchdog group suggests, Congress could establish a specialprosecutor within the Department of Justice who would not be subordinate to the AttorneyGeneral or President.
“It is essential that Congress maintain a strong and fair process forinvestigating allegations of criminal conduct by high-level government officials,”said Public Citizen President Joan Claybrook. “It must not sweep this capacity asidebecause of the unpopularity of Ken Starr or the Independent Counsel Act. The Congress muststrike a balance in the law between independence and accountability.”
Public Citizens analysis — The IndependentCounsel Act: What Congress Should Consider in 1999 — is written by David Vladeckand Alan Morrison. Vladeck is director of the Public Citizen Litigation Group and is avisiting professor of law at Georgetown University Law Center. Morrison is the founder ofthe Public Citizen Litigation Group and was principal counsel for Ralph Nader and thethree members of Congress in Nader vs. Bork, which held that the firing ofWatergate Special Prosecutor Archibald Cox by President Richard Nixon was illegal.
Public Citizen makes the following major recommendations for strengthening both theindependence and the accountability of the Independent Counsel:
1) Mandating significant prior experience in criminal law, disqualifying personsclearly identified with a political party through recent elected or appointed positions,assuring truly Independent Counsel by prohibiting concurrent representation of privateclients in matters involving the United States, and requiring full-time Counsel when thepresident or vice president may be a target of the investigation;
2) Limiting partisan influence in the Special Division, the three-judge panel thatappoints the Counsel, by providing for the random selection of pre-qualified judges ratherthan designation by the chief justice, three-year term limits, and a limit of two (out ofthree) judges from the same political party;
3) Raising the threshold for referrals of cases to the Independent Counsel by allowinga broader preliminary investigation by the attorney general (including use of subpoenas),giving state officials the initial option of proceeding against violators of state law,eliminating coverage of former federal officials, and requiring that requests forreferrals of subsequent matters — the way Ken Starrs inquiry journeyed fromWhitewater to billing at the Rose law firm to Lewinsky — be governed by the samestandards, and arise from the same set of facts, as the original referral; and
4) Encouraging reasonable limits on the time and money available to the IndependentCounsel by mandating Court approval of a preliminary schedule and budget and subsequentrevisions.
Should Congress decide to allow the Independent Counsel Act to lapse, Public Citizenrecommends that it take the following steps to help “ensure that the JusticeDepartment prosecutors assigned to investigate allegations of wrongdoing by high-levelofficials are sufficiently insulated from political pressure”:
1) Creation of a new office or use of an existing unit within the Justice Departmentwhose head would be appointed by the president with the advice and consent of the Senatefor a term of years exceeding the presidents term (e.g. five or seven years) andremovable only for “good cause” personally by the attorney general. Seniorexecutive branch officials would be prevented from having contact with prosecutors in thisoffice when an investigation was pending. All allegations of crimes by covered officialswould be referred directly to the office, which would have its own budget line to protectit from executive pressure. It would also be empowered to seek immediate judicial reviewof executive privilege claims and forward matters regarding impeachment directly toCongress;
2) Alternatively, Congress could continue to sanction the Justice Departments useof ad hoc outside Special Prosecutors operating under Justice Department rules but includestatutory protections to ensure the prosecutors cannot be removed without “goodcause” and are safeguarded from interference by executive branch personnel.