The Independent Counsel Act: What Congress Should Consider In Deciding Whether To Reauthorize It

The Independent Counsel Act:
What Congress Should Consider In Deciding Whether To Reauthorize It

By David C. Vladeck
Alan B. Morrison(1)

The Issue

The Independent Counsel Act, 28 U.S.C. 591-599, was enacted in the aftermath of the Watergate scandal, impeachment proceedings in Congress, and the resignation of Richard M. Nixon. The Act was a direct response to President Nixon's firing of Watergate Special Prosecutor Archibald Cox, who had insisted that Nixon comply with subpoenas after Nixon had unsuccessfully exhausted avenues of judicial review. Congress enacted the Act to ensure that future independent counsels, charged with investigating certain criminal conduct by high-level federal officials, were effectively insulated from White House and Department of Justice pressure.

The Independent Counsel Act is slated to expire on June 30, 1999, see 28 U.S.C. 599, and its scheduled expiration raises a number of profoundly important policy questions that should be explored now, as the political battle over the fate of the Act is being joined. There are three overarching questions:

(1) Whether some form of Independent Counsel Act should be reauthorized, or is it instead preferable to revert back to the pre-Act practice of having the Attorney General designate a Special Prosecutor or Counsel (typically a lawyer outside the Department of Justice, as was done in Watergate) or appoint someone within the Department of Justice to head the prosecution team?(2);

(2) Assuming that the Act should be retained, what reforms are needed to avoid the abuses that have been seen with the Act in its current form?; and

(3) Assuming that Congress decides that the Act should not be retained, should Congress institutionalize an office within the Justice Department (new or existing) and assign it responsibility for investigations and prosecutions arising out of allegations of high-level corruption, and what measures should be imposed to insulate that Office from untoward interference by the Attorney General or President?

Our conclusion, which we set forth in more detail below, is that neither the label attached to the office nor its location within the Executive Branch resolves the question of how to insulate a prosecutor investigating credible allegations of criminal conduct by senior officials from political interference, while, at the same time, holding the prosecutor accountable and assuring a swift and competently conducted investigation. The question of how to strike the right balance, it seems to us, depends far more on the powers granted to the prosecutor, and the controls placed on his or her exercise of those powers, than anything else.

We also conclude that significant reforms are needed if the Act is to be reauthorized. We recognize that the Act succeeds in its mission of insulating the Independent Counsel from Executive Branch political interference. Indeed, many of the Act's proponents point to the formal separation between the Justice Department and the Office of Independent Counsel as the Act's chief virtue. See 28 U.S.C. 594(i) (providing that Independent Counsel "are separate from and independent of the Justice Department"). We recognize as well that many investigations and prosecutions under the Act have been performed with competence and little political controversy. But there is a growing concern, which we share, that the Act strikes the wrong balance because it fails to impose sufficient constraints on the Counsel, and therefore can be a breeding ground for prosecutorial abuse.

On the other hand, there are real problems in having Special Prosecutors appointed by, and therefore subservient to, the Attorney General. Proponents of maintaining a separate office for Independent Counsel, outside of the Justice Department, argue that it is essential to ensure that prosecutors investigating high-ranking officials are not subject to the control of the Attorney General. It is also argued, with considerable force, that separateness is the only way to truly guarantee independence. We do not disagree with the fundamental insight that any Special Prosecutor should not be a subordinate of the Attorney General. We also agree that, to the extent that the Attorney General is empowered to remove a Special Prosecutor, the removal power should be carefully circumscribed. These measures, of course, form the heart of the Independent Counsel Act as currently framed, and could easily be imported into legislation governing the Justice Department's the appointment of Special Prosecutors or, for that matter, into legislation establishing an office within the Department of Justice designated to investigate charges of criminal conduct by senior officials. As discussed in more detail below, however, we do not agree with the proposition that the location of the office of a Special Prosecutor or Independent Counsel -- inside or outside of the Department of Justice -- is the crucial or determinative factor.(3)


Location of the Prosecutor's Office:
Inside or Outside of the Justice Department?

The first question that must be explored is whether it makes sense to provide for an Independent Counsel outside the Department of Justice. After all, allegations of wrong-doing by high-ranking officials are not new, and historically such concerns were addressed by either the appointment of a Special Prosecutor by the Attorney General on an ad hoc basis or the designation of an in-house Department of Justice lawyer to spearhead the investigation and prosecution.(4)

At least until Watergate, there were strong arguments -- rooted in both accountability and efficiency -- that supported the practice of having the Attorney General appoint a Special Prosecutor to investigate charges of wrongdoing by high-level government officials. Even when an outside lawyer is appointed Special Prosecutor, he functions within Department of Justice channels, and hence is directly accountable to the Attorney General. Moreover, the practice is to have Special Prosecutors work closely with, and draw on the expertise and resources of, the Justice Department. This not only adds to the accountability of the Special Prosecutor, but also hedges against the possibility that a Prosecutor would engage in politically motivated conduct -- for instance, conduct designed to embarrass the President politically. To take one illustration, it is hard to imagine that a Special Prosecutor would have compelled the First Lady to go to the courthouse (and run a gauntlet of reporters) to appear before a grand jury. While at times Special Prosecutors have been drawn into political battles -- and at times their independence was subject to legitimate question --?the record suggests that they performed their responsibilities reasonably well. At least prior to Watergate, there was no shared consensus that the process was tainted or that some other means should be employed.

Watergate changed the landscape. Above all else, Watergate revealed the Achilles' heel in having a Special Prosecutor function as part of the Justice Department framework. As proponents of the Act rightly point out, the at least nominal subservience of the Special Prosecutor to the Attorney General raises the possibility that the Attorney General, or the President, would be in a position to exert political pressure to subvert the work of the Special Prosecutor or to punish him or her by removal.

In our view, however, the evidence that the pre-Act system is seriously flawed is somewhat overstated. After all, although President Nixon did seek to interfere with the work of Special Prosecutor Cox, and ultimately directed the Attorney General to fire him, even Nixon's discharge of Cox -- the infamous "Saturday Night massacre" -- did not derail the investigation significantly. Indeed, Cox's discharge was quickly followed by the appointment of Special Prosecutor Leon Jaworski and others, who capably concluded the investigation Cox started, forced Nixon out of office, and successfully prosecuted many of Nixon's staff. Moreover, the courts made it clear that Cox could have sought judicial intervention to preserve his position had he chosen to do so, because the Justice Department regulations under which he had been appointed limited his discharge to matters involving "extraordinary cause" -- a standard that had not been met. And from a political standpoint, the act of discharging Cox played a key role in sealing Nixon's fate. Both Congress and the public recoiled from Cox's firing, and the President was rightly seen as engaging in an effort to obstruct justice. No President would follow Nixon's path unless, like Nixon, he was desperate to stave off inevitable impeachment. Thus, there is something to the notion that we should let the Attorney General appoint Special Prosecutors when the need arises, and do no more.(5)

Moreover, the Attorney General's power to appoint and remove is not necessarily a significant barrier to the independence of a Special Prosecutor, as the vigorous and highly successful investigation into Watergate shows. Nor does the Independent Counsel Act wholly solve the problem of subservience to the Attorney General, since the Act itself assigns the Attorney General the responsibility for discharging an Independent Counsel for "good cause," or mental or physical incapacity. 28 U.S.C. 596(a). While the Attorney General's removal power may not constitute the sort of "here and now" subservience that makes Independent Counsel subject to day-to-day control by the Attorney General, it is certainly not an empty provision. It surely empowers the Attorney General to discharge an Independent Counsel who, for instance, consistently fails to abide by established Department policies, as the ICA requires. 28 U.S.C. 594(f). Thus, as we see it, the real value of the Independent Counsel Act is the physical and political separation of the Counsel from the Attorney General and the Executive Branch.

There is, however, one benefit from a separate Independent Counsel investigation that is very difficult, if not impossible, to replicate for a Special Prosecutor or an in-house Department of Justice proceeding: When there is a need to clear a subject of wrongdoing -- as was the case for Attorney General Edwin Meese or Labor Secretary Raymond Donovan -- an outside investigation has far more credibility than one conducted by Justice Department insiders. The only way that an Attorney General could accomplish this in the absence of an Independent Counsel, appointed by the Special Division, would be for the Attorney General to appoint a truly independent prosecutor (a member of the opposing political party, for example), a power she currently possesses. See 28 U.S.C. 515, 543. But even with that power, an outside office would plainly be preferable.

In the end, the question whether an Independent Counsel statute should be re-enacted is one requiring a delicate balancing of competing interests. On the one hand, the Act has the indisputable virtue of insulating an Independent Counsel as much as possible from the supervision and control of the Executive Branch, of which he is nonetheless a part. On the other hand, the Act suffers from the indisputable vice of handing great power to an individual who, in marked contrast to other government servants, functions almost autonomously.

We leave it to others to resolve this balancing. We offer below first our thoughts on the considerations Congress should review in evaluating how to prevent abuses under the current Act, and then suggest how Congress should proceed if it decides not to reauthorize the Act. We urge Congress in the strongest terms, however, not to just let the Act expire, but to confront the important issues laid out in this memorandum and elsewhere and either reauthorize an Act with the sort of reforms we suggest, or strengthen the Justice Department's authority to handle public corruption cases. This issue is too important for Congress just to punt.


Recommended Amendments to the Independent Counsel Act

Should Congress decide that it is preferable to retain the current system of appointing a counsel independent of the Department of Justice, then the question becomes, what should be done to improve the Independent Counsel Act? In addressing that issue, it will be crucial to put the question into perspective by inquiring whether the law worked tolerably well until the Whitewater investigation. After all, many Independent Counsel have done an effective job in conducting thorough investigations, exercising reasonable prosecutorial discretion, deciding not to proceed with prosecutions where the circumstances did not warrant action, and bringing wrongdoers to justice. Independent Counsel Starr's investigation into Whitewater, however, has suggested structural flaws in the statute that should be rectified by Congress, if it decides to retain the Act.

1. Who Should Serve? One problem stems from the lack of specified qualifications for the job. Nothing in the Independent Counsel Act provides any meaningful guidance about the qualifications necessary to perform as Independent Counsel. Indeed, as currently written, the Act simply directs the Special Division to "appoint as independent counsel an individual who has appropriate experience." See 28 U.S.C. 593(b)(2) (emphasis added).(6) Starr's tenure illustrates at least four flaws in the appointment process that should be rectified.

First is the conflict of interest problem. It was at best unseemly for Starr to represent private clients, like General Motors and major tobacco companies -- many of which had business before the Executive Branch -- at the same time he was investigating the President. There ought to be an iron-clad requirement that no one serving as an Independent Counsel should be permitted to engage in any private work involving the United States during the time in which he or she is serving as an Independent Counsel. Consideration must also be given to how far the disqualification should extend -- just to the Counsel? To the Counsel's law firm?

The second problem relates to Starr performing his job as a part-time prosecutor and the delays that were occasioned by Starr's inability or unwillingness to devote his full attention to the work of the Counsel's office. We recognize that, for some investigations involving less senior officials, there may be no need for a full-time Independent Counsel. But when the President or the Vice President is or may be the target of the inquiry, the Independent Counsel should assume his duties full-time and shed all private clients. At the very least, in every case, the Attorney General should make a recommendation to the Special Division as to whether the appointment should be on a full-time basis, and the Special Division should have the power to require full-time status initially, or as the investigation develops. Although the Special Division should not generally become enmeshed in the supervision of the Independent Counsel's work, this limited role does not appear to violate separation of powers principles or to constitute an inappropriate exercise of judicial authority. In any event, this course is preferable to the Attorney General having the right to decide whether the Counsel should serve full or part-time.

Third, nothing in the law requires an Independent Counsel to have relevant experience in criminal law. This appears to be a critical oversight. After all, service as an Independent Counsel should not entail on-the-job training. Thus, we urge that the statute explicitly provide that significant experience in criminal law is a prerequisite to appointment.

Fourth, persons clearly identified with a political party -- such as individuals having previously served in elected office with a party affiliation, or as a senior appointee in the Administration -- should be disqualified from service as an Independent Counsel. We recognize that an across-the-board disqualification would be problematic. But we see no reason why the Act could not provide that, in order to be eligible for service, a prospective Counsel could not have served in elective office, or as a Presidential appointee, in the recent past (perhaps five years). This requirement would significantly reduce the possibility of partisanship.

While this thought is tentative, one solution might be to have a standing list of pre-screened lawyers, compiled with the assistance of the Department of Justice, from which the Special Division could make a selection. Not only would this system de-politicize the selection process, but it could guarantee that appointees have actual criminal justice experience, be willing to work full-time, and be willing to jettison private clients.

2. Appointment to the Special Division. Another problem relates to the body charged with the responsibility of appointing Independent Counsel. Under the law, it is the Attorney General who is responsible for conducting a preliminary investigation to see whether the appointment of an Independent Counsel may be warranted. In making this inquiry, there are strict limitations on the ability of the Attorney General to gather information (no grand juries, no subpoenas, no grants of immunity, etc.). 28 U.S.C. 592(a)(2). The denial of compulsory process requires the Attorney General, as a practical matter, to rely on the voluntary cooperation of witnesses and document custodians. Nor may the Attorney General base a decision not to request an Independent Counsel on "lack of criminal intent," absent "clear and convincing evidence" on that point. Id. 592(a)(2)(B)(11). Nonetheless, the Attorney General is required (the Act says she "shall apply") to seek the appointment of an Independent Counsel if "there are reasonable grounds to believe" that further investigation is warranted, although the decision whether to refer an investigation to the Special Division is not subject to judicial review.

The problem comes in two places: First, the Court that appoints and supervises Independent Counsel is a Special Division of the U.S. Court of Appeals for the District of Columbia Circuit. 28 U.S.C. 49. Judges are selected to serve on this Court by the Chief Justice of the United States for two-year terms. There is no bar to their reappointment, and the practice has been to allow members of this panel to serve in virtual perpetuity. Giving the Chief Justice the right to select the judges can result in a panel dominated by judges of one particular political orientation, as happened with the panel that appointed Starr.

Several measures should be taken to ensure that the Special Division is free from political bias. To begin with, judges should be selected at random from all currently active court of appeals judges with at least three years tenure. Next, the terms of the Judges on the Special Division should be limited to three years. Moreover, we would propose that political balance on the Division be mandated, by requiring that no more than two judges on the panel have similar party affiliations. Appointments should be made by unanimous votes of the panel. Finally, as noted above, the Special Division's appointment of Independent Counsels should be made from a pre-existing, pre-screened list of candidates.

Another complication is that the Chief Justice also presides over impeachment trials in the Senate, if it comes to that. Thus, the same Chief Justice who appointed the Special Division, which in turn appointed the Independent Counsel, presides over the impeachment trial. Some may see this as too close a relationship, which would further counsel in favor of reducing the Chief Justice's role in the appointment of the judges who serve on the Special Division through the means addressed above.(7)

Second, the Special Division also has important supervisory responsibilities over Independent Counsel. Not only is the court empowered to terminate the office of Independent Counsel when it believes that an investigation has run its course, but, perhaps more importantly, the Court is also empowered, upon the request of the Attorney General or that of the Independent Counsel, to define and expand the scope of the Independent Counsel's jurisdiction.

Repeated requests for expanded grants of jurisdictions were a central problem with Starr's investigation. On several occasions, Starr asked the Attorney General to approve expansions in the scope of his investigation. If the Attorney General's approval was not forthcoming within thirty days, Starr would have been able under existing law to take his requests to the Special Division. 28 U.S.C. 593(c)(2)(C). Through this process the Whitewater investigation evolved into one concerning the White House's travel office, the death of Vincent Foster, the use of FBI files, and then Paula Jones and Monica Lewinsky -- quite a remarkable trajectory. Given the political sensitivity of the issue of referrals to the Attorney General and the relatively low threshold for referrals (a point discussed below), there is a concern that the Attorney General had little practical ability to reject Starr's requests. Thus, even though there are finite constitutional limits on the supervisory role of the Special Division, it may be that the Division is the only institution that can exercise meaningful control on an Independent Counsel dead-set on expanding the scope of an inquiry. This makes it doubly important to have politically impartial judges on the panel.

3. Modify or Eliminate the List of "Covered Persons." As currently written, the Independent Counsel Act applies to a broad array of senior government officials. See 28 U.S.C. 591(b) (listing covered officials). Obviously, the frequency of appointments under the Act is at least partially dependent on the number of officials covered by the Act. One question is whether the current list of covered persons should be continued. One idea would be to make the statute apply only to the President, the Vice-President, and the Attorney General, and to give the Attorney General the discretion to invoke it for other senior officials. This approach would mitigate the other difficulties with the Act, and has been advocated by certain bar groups.

4. How Should the Independent Counsel be Held Accountable? This is the most vexing problem in reforming the Act. At root, the problem is both a pragmatic and constitutional one, because there is no clear-cut answer to the question of "what individual or institution in the government should hold an Independent Counsel accountable?" For obvious reasons, the statute must insulate the Independent Counsel from any control or supervision by the President. Nor can the courts direct or supervise the work of Independent Counsel. As the Supreme Court explained in Morrison v. Olson, 487 U.S. 654 (1988), although it is constitutionally permissible for the courts to appoint Independent Counsel, Counsel are nonetheless part of the Executive Branch of government, and it would be too great an encroachment on Executive Branch prerogatives for the courts to assume greater supervisory power over the work of Independent Counsel than is already assigned to them under the Act. The same separation of powers problem precludes active supervision of the work of the Independent Counsel by Congress, see Bowsher v. Synar, 478 U.S. 714 (1986). And making the Independent Counsel accountable to the Attorney General is fraught with complexities and is ultimately self-defeating, since the professed goal of the Act is to ensure that Independent Counsel "are separate from and independent of the Justice Department." 28 U.S.C. 594(i).

As currently written, the Act addresses the accountability problem by placing a number of constraints on the Independent Counsel. First, the Department of Justice is directed to provide assistance to the Counsel, and the Counsel is supposed to comply with established Justice Department policies relating to the enforcement of the criminal laws. Second, the Counsel is required to cooperate with the appropriate congressional oversight committees, and make an annual report to Congress.(8) Third, the Attorney General can remove an Independent Counsel for cause or mental or physical disability, and the Special Division may terminate an investigation where it believes that the investigation should be concluded. In our view, these measures are too weak and diffuse to impose any meaningful limitation on the day-to-day operations of an Independent Counsel.

The most substantial constraint on the activities of the Independent Counsel is the determination as to the scope of the investigation, which is at least preliminarily set jointly by the Attorney General and the Special Division. As we discuss below, one important reform that needs to be explored is whether a stricter standard should be used for initial and subsequent referrals and to evaluate requests by Independent Counsel to expand their jurisdiction. The Clinton case makes this point well. Because of the low threshold for expansions of jurisdiction, and the requirement that the Attorney General defer to the Independent Counsel's judgment, it is hardly surprising that requests by Starr to expand his investigation were routinely approved, even though the connection between the new matters and Whitewater seemed ephemeral or non-existent.

5. What Should be the Legal Standard for Referrals? As just noted, the Act sets quite a low legal standard for both initial and subsequent referrals. This reflects the statute's strong preference for having the Independent Counsel conduct investigations, even where there is only scant evidence of possible wrongdoing. The Attorney General's role is first to conduct a preliminary investigation to see whether a covered person may have violated any federal criminal law, excluding only minor misdemeanors or other non-serious infractions. If the Attorney General finds that there is "specific" information from a "credible source" suggesting wrongdoing, then she must open a formal preliminary investigation that must be completed in 90 days to see whether there are "reasonable grounds to believe that further investigation is warranted." If so, she must ask the Special Division to appoint an Independent Counsel. Not only is this a fairly low threshold for referral, but it is also somewhat of a straightjacket for the Attorney General. As mentioned above, she cannot use any of the traditional investigatory techniques such as compulsory process to conduct her own inquiry into the likelihood of a violation, but must instead rely on the voluntary cooperation of witnesses and document-holders. Nor may she base her decisions on lack of criminal intent, unless the evidence on that point is clear and convincing. Handcuffed in these ways, the Attorney General is very restricted in the scope of the preliminary investigation she can make. As a result, more cases than should be are referred to the Special Division for the appointment of an Independent Counsel.

There are really two questions regarding referrals that should be laid bare and addressed separately. First, there is the question of what standards should be set for initial referrals. And second, there is the question of what showing should be required to expand upon the jurisdiction conferred on an Independent Counsel. We address these questions in turn.

A. Initial Referrals. There are several modifications to the standard governing initial referrals that would make the referral process more rational and reduce, albeit modestly, the number of cases available for referral.

(i) We would propose that the Attorney General be given broader investigatory power (but probably not the authority to confer immunity, which could well hamper the Independent Counsel's subsequent investigation) in screening cases. We recognize that the hurdle for referrals should not be too high, since the whole point of the Act is to divest the Attorney General of substantial authority. As the law now stands, the Attorney General is essentially barred from making any independent investigation into the facts -- including potentially pivotal questions of criminal intent. As a result of these strictures, truly minor or collateral matters are referred for investigation by Independent Counsels, even if they would never be prosecuted by the Justice Department. That trivializes the law and should be rectified.

(ii) Consideration should be given to a statutory presumption that allegations that also amount to state law crimes should first be evaluated by state law enforcement officials. For example, there is no reason why state prosecutors could not have considered whether the allegations of narcotics use against former presidential advisor Hamilton Jordan or the allegations of racketeering against former Labor Secretary Raymond Donovan for activities that allegedly occurred before he took office should have been prosecuted. The statute ought to embody the presumption that matters like these -- allegations that, if proven, would plainly constitute offenses under state as well as federal law -- will not give rise to the appointment of an Independent Counsel unless it is clear that there has been a declination by the appropriate state officials. The Attorney General would then take into account the declination in determining whether there are in fact reasonable grounds for further investigation.

(iii) This presumption should be doubly strong -- and perhaps irrebuttable -- where the alleged conduct occurred before the official took office. Consider the allegations against Webster Hubbell. Stealing from one's clients is undoubtedly a crime even under Arkansas law. Was there any need to have an Independent Counsel handle that investigation, particularly before the Arkansas law enforcement officials had considered the matter and formally declined to pursue it?

(iv) Next, ongoing crimes not related to the allegations contained in the referral, such as the charges of perjury in the Paula Jones case, should not be referred to an Independent Counsel.(9) Aside from the practical problems of making referrals on a short timetable -- problems that have been evident in the Clinton matter -- and the need to continually alter and update the jurisdiction of the Independent Counsel, there is a structural problem of having an Independent Counsel involved in what is, at essence, the law enforcement side of the investigation. Independent Counsels should not be cops; they should investigate crimes that allegedly have been committed. Appointing them to investigate ongoing crimes, unrelated to the matter they have been asked to investigate, only blurs the line between those roles.

(v) There is no reason to appoint Independent Counsels to investigate the conduct of former federal officials, regardless of rank. For example, an Independent Counsel was appointed to investigate the conduct of Agriculture Secretary Michael Espy after he left office. It is difficult to see why the Justice Department could not have handled that investigation. At least the Justice Department ought to be given the discretion to handle investigations of former covered officials. However, conduct prior to entering federal office should not be immune from Independent Counsel investigation where the offense relates directly to federal service. Thus, for instance, allegations of election fraud or other election-related offenses, or allegations of perjury or other crimes in order to secure confirmation, ought to be within the Counsel's purview.

B. Independent Counsel Requests for Expanded Jurisdiction or Additional Referrals. It is critically important that Congress address and set a high threshold for referrals of subsequent matters to Independent Counsel who have already been appointed or expansions of jurisdiction. As currently written, the Act simply incorporates the standard for initial referrals to Independent Counsels to assess requests by an Independent Counsel to expand his jurisdiction. See 28 U.S.C. 592(c) (initial referrals), 593(c) (expansions of jurisdiction).(10) One reason why sequential referrals are a real problem is that, no matter how limited the Attorney General's discretion is with regard to initial referrals, it is, as a practical matter, even more circumscribed with regard to subsequent ones. The Independent Counsel has far greater access to the facts than does the Attorney General, and this superior position gives the Independent Counsel enormous leverage when requesting that the scope of an investigation be expanded. Compounding the problem, the Act directs the Attorney General to "give great weight" to the Independent Counsel's request. And should the Attorney General fail to agree with a request within thirty days, the Independent Counsel can seek expanded jurisdiction by going to the Special Division, which is in an even worse position to make judgments about whether it is appropriate to expand an investigation.

(i) One way of raising the referral bar would be to explicitly deal with the question of sequential referrals in the Act and to provide:

1. That additional referrals should be governed by the same substantive standard that applies to initial referrals; namely that there must be reasonable grounds to believe that further investigation is warranted; and also

2. That no subsequent referral shall be made unless the alleged misconduct arises from same transaction or occurrence or involves a common nucleus of operative facts as the initial referral.

Put more bluntly, the aim of this provision would be to reverse the existing presumption, under which virtually any allegations involving the same target are referred to an existing Independent Counsel. Under the standard we advocate, expansions of jurisdiction would be made only if there are compelling reasons rooted in efficiency to do so, and if there was a congruence or overlap between the alleged criminal violations.

(ii) Because many of the materials relating to requests by Independent Counsel for expansions of jurisdiction are not available to the public, it is difficult to know what quantum of information is required by the Special Division when it evaluates additional referral requests. We believe that a heavy burden should be placed on an Independent Counsel who is seeking to expand his jurisdiction to demonstrate that both factors mentioned above are satisfied and that the additional referral would not unduly protract the investigation.

(iii) We see no reason why the Attorney General should be compelled to give "great weight" to the Independent Counsel's recommendation when it comes to expanding his jurisdiction. The Attorney General should be free to reach her own determination, even if it is at odds with that of the Independent Counsel.

6. Should Some Limits be Placed on the Time and Resources Available to the Independent Counsel? Making unlimited resources available to Independent Counsel skews the investigatory process considerably, since in the real world prosecutors make decisions regarding how hard to press an investigation in part on the basis of available resources. The present statute requires an Independent Counsel to "conduct all activities with due regard for expense," and incur only expenses that are reasonable. But these are just precatory cautions; there is no real limit on the time and resources an Independent Counsel can spend trying to find a crime by the target to prosecute. Nor does the Act set any time limit on the duration of the investigation. As we have seen with the Clinton investigation, the ability of a Counsel to proceed at a leisurely pace is a powerful and coercive tool, and can have a debilitating effect on the officials under investigation.

Some have suggested that the appropriate response to these concerns is to set time and expenditure limits in the statute for future Independent Counsel to follow. That approach seems artificial and inflexible. One tentative idea is to have the Attorney General, at the time of the referral, make estimates about the duration and cost of the investigation that would be transmitted to the Special Division, which would set some preliminary parameters within which it expected the Counsel to act. The drawback of this approach, of course, is that the Attorney General may not fully grasp the complexity of the undertaking given the bare-bones nature of her investigation. Another approach would be to require the Court to direct the Independent Counsel, within ninety days of the referral, to set a preliminary budget and tentative timetable. While neither of these predictions would be iron-clad, the burden would fall on the Independent Counsel to justify, and seek court approval for, any deviation. There may well be other ways of placing meaningful discipline on the Independent Counsel, and this is an area that warrants further thought.

7. Clarify the Role of the Independent Counsel in Potential Impeachment Proceedings. In its current form, the Act fails to address critical questions about the role of the Independent Counsel in matters that could be the subject of impeachment inquiries, especially those concerning the President. All the Act now says is that an Independent Counsel "shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for impeachment." 28 U.S.C. 595(c). The Act neither says when the Independent Counsel should report to Congress nor what form the report should take. Many have criticized Independent Counsel Starr for waiting as long as he did to refer the Clinton matter to the House of Representatives, and some have suggested that it was inappropriate for Starr to compel the President's Grand Jury appearance before he had referred the inquiry to the House. Others have contended that the Starr Report was too accusatory in tone, and provided far more than a recitation of the "information" available to Starr that might "constitute grounds for impeachment." And Congress has given no guidance about whether the report should be made public, and, if so, when and under what conditions to safeguard the privacy interests of those named in the report.

We acknowledge that the question of the timing of the referral is a difficult one, with legitimate arguments to be made on both sides. Nonetheless, Congress should be quite explicit about the role that it wants Independent Counsel to play in possible impeachment inquiries. Congress should also address what it wants in the way of a report where impeachment is a possibility; does it want the sort of non-adversarial, just-the-facts recitation that was supplied by the Watergate Special Prosecution Force, or does it prefer the more accusatory and argumentative report furnished by Starr that reads like a prosecution brief?

8. Congress Should Clarify Its Intent Regarding the Final Reports It Wants an Independent Counsel to File. We have noted above the issues surrounding the impeachment-related reports, but the law now requires final reports in all cases, whether there have been indictments or not. There are serious questions about the value of such reports, their appropriateness (given the sensitivity and privacy interests inherent in the subject-matter), and their costs. We take no position on the situations in which such reports are appropriate, but Congress should focus on this issue if it decides to retain a reporting requirement. Thus, in cases where the Independent Counsel decides not to prosecute, some report may be essential.(11) But in other cases, like Iran-Contra, serious questions were raised about the highly-detailed nature and accusatory tone of the report. And undoubtedly there will be a sharp division of opinion on the nature of Starr's final report to Congress.

9. The Act Should Provide Indemnification to Federal Officials Involved in the Investigation. The Act should also be modified to provide indemnification or "insurance" for federal officials who, through no fault of their own, are caught up in these investigations and incur frighteningly high financial costs in hiring lawyers to advise them. Most of President Clinton's closest advisors have been accused of no misdeed, and have not been alleged to have participated in any coverup or untoward activity. Yet many have had to hire lawyers and bear monumental legal fees. Part of the problem stems from the very aggressive use of grand jury proceedings by Starr and his staff; part of the problem is inherent in any criminal investigation. Although this problem would arise even if the investigatory job reverted to the Justice Department, it seems to be more acute where an autonomous Independent Counsel handles the investigation. Some provision -- such as indemnification or low cost insurance -- needs to be made to blunt the financial hardship on public servants. It is simply unacceptable to have the best and brightest be deterred from public service because of the potentially crushing financial blow of being caught up in the grips of an Independent Counsel investigation.(12)

* * *

In our view, no single amendment will eliminate all of the problems with the Independent Counsel Act, nor will the failure to adopt any one of the amendments proposed above guarantee continued problems. However, the enactment of these or similar proposals should alleviate, if not eliminate, the most serious problems that have been encountered under the Act.


Statutory Insulation of Justice Department Prosecutors

If Congress decides not to reauthorize the Independent Counsel Act, it must then face the question of what, if anything, should be put in its place. As we outline below, there are two basic options that Congress should consider, although they are not mutually exclusive. First, Congress can establish an office within the Justice Department to investigate and prosecute charges of criminal conduct by high-level government officials. It Congress chooses this option, then its focus should be on how to insulate career government prosecutors within the Justice Department from political interference by the President and the Attorney General.

Second, Congress could opt to revert to the pre-Watergate practice of having the Attorney General appoint, on an ad hoc basis, outside lawyers to serve as Special Prosecutors. Appointment decisions would rest solely with the Attorney General, and neither Congress nor the courts would be empowered to overturn a decision by the Attorney General. Since statutory authority for the appointment of such prosecutors already exists, this approach does not even require new legislation. Nonetheless, if Congress decides to proceed down this path, we urge Congress to restrict the Attorney General's removal power with regard to such appointees, and to consider whether other measures -- such as rules prohibiting Executive Branch contacts with prosecutors while investigations are pending -- should be imposed by statute as well.

A. Establishment of An Office Within the Justice Department. One approach to institutionalizing and strengthening the ability of the Justice Department to handle cases of high level corruption would be for Congress to establish an independent office in the Justice Department and assign it the job of investigating and prosecuting charges of criminal conduct by senior government officials. Several measures would have to be taken, however, to ensure adequate political insulation for the career Justice Department prosecutors assigned to this office.

First and foremost, the head of such an office should be appointed by the President with the advice and consent of the Senate for a term of years (such as seven) and removable only for cause personally by the Attorney General. cf.. 28 U.S.C. 596(a)(1) (empowering Attorney General to remove independent counsel only "for good cause," "physical or mental disability," or "any other condition that substantially impairs the performance" of the Counsel).(13)

Next, Congress should consider enacting restrictions to prevent senior Executive Branch officials from having contact with prosecutors in this office while an investigation is pending. During the Watergate investigation, restrictions such as these were imposed by Justice Department regulation. There is no reason why Congress should not weigh in on the value of these protections and, if deemed appropriate, enact them into law.

In order for such an office to operate effectively, Congress would have to resolve four additional overriding issues, apart from protecting the office head from politically-motivated removal. First, Congress would have to mandate that all allegations of wrongdoing by covered officials be referred to that office, with no filter of any kind being applied within the Department of Justice. This referral system would have to be categorical and automatic. And it should be made clear that the office does not need the approval of the Attorney General to obtain an indictment and proceed with a prosecution. Second, Congress would have to create a mechanism to allow the office to seek immediate judicial review of privilege claims made by the White House and other Executive Branch entities. Third, Congress would have to empower the office to forward matters relating to impeachment directly to Congress, without control of any sort by the Attorney General or the President. And finally, Congress should create a special budget line for that office, so that the Attorney General or the Office of Management and Budget would not be able to use fiscal measures to place pressure on the office.

There are significant merits to this approach. It goes a long way towards eliminating the political element of investigations of high-ranking officials; it ensures that investigations will be conducted by experienced career prosecutors who presumably have no axe to grind; it allows prosecutors to take full advantage of the Justice Department's resources and expertise; and it avoids the "tunnel vision" problem of having an Independent Counsel appointed to investigate a single target. Above all else, it sends a message that Congress, and the American people, have faith in the ability of the Justice Department to investigate charges of criminal conduct by high-level officials professionally and impartially. On the other hand, this proposal suffers from the one flaw many see as fatal, namely that the counsel would not be "separate from and independent of the Justice Department." See 28 U.S.C. 594(i).

B. Revert to the Practice of Ad Hoc Appointments of Special Prosecutors by the Attorney General. Assuming that the institutional Justice Department model is not acceptable to Congress, then the remaining alternative would be to return to the pre-Watergate practice of ad hoc appointments of Special Prosecutors by the Attorney General. Under this system, which is authorized by existing law, the Attorney General has essentially unreviewable power to appoint Special Prosecutors, and to define and control the exercise of their power. See 28 U.S.C. 515, 543 (empowering Attorney General to appoint special attorneys on an ad hoc basis). There is nothing inherently wrong with this option. As noted earlier, this was the approach that was followed prior to and during Watergate, and although it is imperfect, it may not be any more imperfect than the other approaches outlined in this memorandum.

We believe that, even if Congress opts for this approach, it should not leave the question of insulating Special Prosecutors from political interference in the hands of the Attorney General. To be sure, the Attorney General could promulgate regulations that restrict her removal authority and prohibit contacts by senior Executive Branch staff with Special Prosecutors and their assistants. The Justice Department promulgated rules that did essentially that during Watergate. But in our view it would be far preferable for Congress to impose these controls by statute. Indeed, each of the measures outlined in Part III.A. above could be applied with equal benefit here, and we urge Congress to carefully consider doing precisely that if it chooses this approach.

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As we said at the outset, the debate over the reauthorization of the Independent Counsel Act raises difficult questions about balancing independence and accountability. While we make no recommendation as to whether the route of reauthorization is superior to other approaches, there is one point on which we take a strong position: Congress should act one way or another to address these serious issues. Congress should legislate either to reform the Independent Counsel Act to make Independent Counsel more accountable, or to establish procedures within Justice Department channels to ensure that any prosecutor charged with investigating and prosecuting criminal conduct by senior government officials can do so without fear of political interference or reprisal.(14)

1. Mr. Vladeck is the Director of Public Citizen Litigation Group and Visiting Professor of Law at Georgetown University Law Center. Mr. Morrison is the founder and former Director of Public Citizen Litigation Group, and was principal counsel for Ralph Nader and three members of Congress in Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973), which held that the firing of Watergate Special Prosecutor Archibald Cox was illegal. Public Citizen thereafter participated in the legislative debate that led to the enactment of the Independent Counsel Act, and it has monitored the Act's implementation. Public Citizen's Congress Watch has also been actively involved in matters relating to governmental ethics, including the recent amendments to the Ethics in Government Act.

2. For simplicity's sake, we shall refer to a Special Prosecutor or Counsel appointed by the Attorney General on an ad hoc basis to investigate allegations of wrongdoing by senior officials as a "Special Prosecutor."

3. The purpose of this paper is not to explore the history of the Independent Counsel Act, the experiences of the Counsel appointed under it, the experience with Special Prosecutors appointed prior to the Act, or outside of the Act, as President Carter did to investigate allegations against his brother. These issues have been addressed at length elsewhere. See, e.g., Symposium, The Independent Counsel Act: From Watergate to Whitewater and Beyond, 86 Geo. L. J. 2011 (1998). Our more modest effort is to highlight those issues that we believe are central to the forthcoming congressional debate over whether the Act warrants reauthorization.

4. For an excellent discussion of the historical practice prior to the enactment of the Independent Counsel Act, as well as an appraisal of the performance of Independent Counsels appointed under the Act, see Donald C. Smaltz, The Independent Counsel: A View From Inside, 86 Geo. L. J. 2307-25 (1998).

5. Existing statutes permit the Attorney General to appoint an outside Special Prosecutor, should she see the need to do so, as might be the case if charges were leveled against the President, the Vice-President, or the Attorney General. See 28 U.S.C. 515, 543. That course does not preclude active congressional involvement. The regulations governing Cox's office, although issued by the Justice Department, were negotiated with the Senate Judiciary Committee. It is true that the Senate Committee had substantial leverage because, at the time, it had pending before it the nomination of Elliot Richardson for Attorney General. But the Senate Judiciary Committee always has considerable political power, and there is every reason to believe that it could exert influence sufficient to insist that no Special Prosecutor be appointed without meaningful protections against arbitrary or politically-motivated removal.

6. The Special Division is a panel of court of appeals judges selected by the Chief Justice of the United States to exercise responsibility under the Independent Counsel Act. Although the Special Division is housed along with and is nominally part of the United States Court of Appeals for the District of Columbia Circuit, it functions as a completely separate court. 28 U.S.C. 49. See id. at 7-8.

7. Another suggestion that should be explored is whether the statute ought to explicitly forbid judges of the Special Division from having any ex parte discussions with members of Congress or their staffs concerning the appointment of, and all matters relating to, Independent Counsel. This proposal responds to press reports that Judge David Sentelle, the Chief Judge of the Special Division, had lunch with Senators Lauch Faircloth and Jesse Helms immediately prior to the removal of Robert Fiske and the appointment of Kenneth Starr to replace him.

8. The Act also requires the Attorney General to provide an accounting to Congress annually on the "amounts paid during that fiscal year for expenses of investigations and prosecutions by independent counsel." 28 U.S.C. 593(d)(2).

9. As the Act itself and the case law interpreting it make clear, there is no question that the Independent Counsel is authorized to pursue "all matters related to" the subject matter of the referral or that "may arise out of the investigation or prosecution of the matter with respect to which the Attorney General's request was made, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." 28 U.S.C. 593(b)(3). See also United States v. Blakney, No. 98-3036 (D.C. Cir., Jan. 26, 1999), slip op. at 7-10; United States v. Hubbell, No. 98-3080 (D.C. Cir., Jan. 26, 1999), slip op. at 10-20. We do not advocate a change in this standard. What we are concerned about here is the practice of referring matters not related to or arising out of the initial referral to an Independent Counsel solely because they may pertain to the same target.

10. The law regarding expansions of jurisdictions and additional referrals is hardly a model of clarity, as a pair of recent D.C. Circuit cases make clear. United States v. Blakney, No. 98-3036 (D.C. Cir., Jan. 26, 1999); United States v. Hubbell, No. 98-3080 (D.C. Cir., Jan. 26, 1999).

11. A report would presumably be necessary to vindicate the reputation of the target of the investigation, whose reputation has been tarred by the appointment of an Independent Counsel to investigate his conduct. Under these circumstances, fairness seems to dictate the issuance of a report clearing the target of criminal wrongdoing.

12. The Act recognizes elsewhere the financial hardships that are imposed on "subjects" of Independent Counsel investigations who are not indicted and would not have been investigated in the absence of the Act, and allows them to shift the cost of their attorneys' fees to the government. 28 U.S.C. 593(f)(1). As a result, unindicted targets of Independent Counsel investigations are better off as a financial matter than their non-target colleagues who expend substantial sums on legal representation without any chance of recompense. This makes no sense and should be corrected.

13. Congress could assign these responsibilities to the Office of Professional Responsibility, which already has responsibility to enforce the Ethics in Government Act. The head of that office is already subject to removal protection, although he is currently appointed by the Attorney General, not the President. Congress could also assign these responsibilities to the Office of Public Integrity within the Criminal Division, since it handles public corruption cases.

14. This memorandum was subject to modest, non-substantive revisions on February 22, 1999.