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Public Citizen Recommends Major Overhaul of Independent Counsel Act

Feb. 24, 1999

Public Citizen Recommends Major Overhaul
of Independent Counsel Act

Senate Hearings Begin as Controversial Law Nears Expiration

As Senate hearings on the Independent Counsel Act commence, Public Citizen today released a new analysis of the law and recommendations for Congressional action. Hearings on the Act, which is due to expire June 30, begin today in the Senate Governmental Affairs Committee.

Public Citizen played a role in the legislative debate that led to passage of the Independent Counsel Act in the aftermath of the Watergate scandal and now recommends that the Act should not be reauthorized without significant reforms. Alternatively, the consumer and government watchdog group suggests, Congress could establish a special prosecutor within the Department of Justice who would not be subordinate to the Attorney General or President.

“It is essential that Congress maintain a strong and fair process for investigating allegations of criminal conduct by high-level government officials,” said Public Citizen President Joan Claybrook. “It must not sweep this capacity aside because of the unpopularity of Ken Starr or the Independent Counsel Act. The Congress must strike a balance in the law between independence and accountability.”

Public Citizen?s analysis — The Independent Counsel Act: What Congress Should Consider in 1999 — is written by David Vladeck and Alan Morrison. Vladeck is director of the Public Citizen Litigation Group and is a visiting professor of law at Georgetown University Law Center. Morrison is the founder of the Public Citizen Litigation Group and was principal counsel for Ralph Nader and the three members of Congress in Nader vs. Bork, which held that the firing of Watergate Special Prosecutor Archibald Cox by President Richard Nixon was illegal.

Public Citizen makes the following major recommendations for strengthening both the independence and the accountability of the Independent Counsel:

1) Mandating significant prior experience in criminal law, disqualifying persons clearly identified with a political party through recent elected or appointed positions, assuring truly Independent Counsel by prohibiting concurrent representation of private clients in matters involving the United States, and requiring full-time Counsel when the president or vice president may be a target of the investigation;

2) Limiting partisan influence in the Special Division, the three-judge panel that appoints the Counsel, by providing for the random selection of pre-qualified judges rather than designation by the chief justice, three-year term limits, and a limit of two (out of three) judges from the same political party;

3) Raising the threshold for referrals of cases to the Independent Counsel by allowing a 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 for referrals of subsequent matters — the way Ken Starr?s inquiry journeyed from Whitewater to billing at the Rose law firm to Lewinsky — be governed by the same standards, 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 Independent Counsel by mandating Court approval of a preliminary schedule and budget and subsequent revisions.

Should Congress decide to allow the Independent Counsel Act to lapse, Public Citizen recommends that it take the following steps to help “ensure that the Justice Department prosecutors assigned to investigate allegations of wrongdoing by high-level officials are sufficiently insulated from political pressure”:

1) Creation of a new office or use of an existing unit within the Justice Department whose head would be appointed by the president with the advice and consent of the Senate for a term of years exceeding the president?s term (e.g. five or seven years) and removable only for “good cause” personally by the attorney general. Senior executive branch officials would be prevented from having contact with prosecutors in this office when an investigation was pending. All allegations of crimes by covered officials would be referred directly to the office, which would have its own budget line to protect it from executive pressure. It would also be empowered to seek immediate judicial review of executive privilege claims and forward matters regarding impeachment directly to Congress;

2) Alternatively, Congress could continue to sanction the Justice Department?s use of ad hoc outside Special Prosecutors operating under Justice Department rules but include statutory protections to ensure the prosecutors cannot be removed without “good cause” and are safeguarded from interference by executive branch personnel.