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(Cite as: 86 Geo. L.J. 2307) Georgetown Law Journal July, 1998 Vol. 86, Number 6 Symposium: The Independent Counsel Act: From Watergate to Whitewater and Beyond Reflections THE INDEPENDENT COUNSEL: A VIEW FROM INSIDE Donald C. Smaltz TABLE OF CONTENTS
INTRODUCTION
So you think you want to be an independent counsel? Notions of public service are strong in many lawyers. Particularly among former federal prosecutors, there seems to be a desire, once they leave the U.S. Attorney's Office, to return to public service after they have made enough money in the private sector to send their kids to college and pay their mortgages.
Some regard the position of independent counsel, formerly known as special prosecutor, as a desirable opportunity to return to public service. After all, it allows you to serve your country on a temporary basis. It puts your finely- honed legal skills to work investigating and either clearing or prosecuting senior political officials who have been accused of criminal acts. It offers a former prosecutor an opportunity to return to those thrilling days of yesteryear. And, unlike in any previous public position you might have held, you are your own boss, taking direction from no one, not even the Attorney General or President.
However, before concluding that the independent counsel appointment is something you covet and would accept, you should acquaint yourself with much more than just the text of the independent counsel statute (the "Act"). [FN1] The office occupies a unique niche in the federal government, and has a political history and legal idiosyncracies that impact every independent counsel's term in office.
When I became an independent counsel some three and a half years ago, I did not realize what I was stepping into. While the independent counsel's core role is that of a prosecutor--an attorney--and while the independent counsel may consider himself apolitical, he inevitably gets caught up in the "political swirl" of executive branch politics. Part I of this article will describe some of the history of special prosecutors and independent counsels in America. Part II proceeds to outline briefly the nuts and bolts of today's independent counsel law and to explain how the Act attempts to depoliticize the appointment process. The Act's effort to depoliticize the appointment process creates a unique set of impediments to the efficient running and prompt resolution of the independent counsel's investigations and prosecutions, which I discuss in some detail in Part III. Finally, Part IV addresses criticisms of the Act, and explains--from my perspective--the values served by independent counsel investigations.
I. SOME RELEVANT HISTORY
In 1978, after 200 years of relatively stable and effective government, Congress, in its wisdom, decided that thereafter when allegations were levied against the President, cabinet members, and other high officials in the executive branch, the investigation would not be handled by the Attorney General's Department of Justice (DOJ). Instead, a panel of judges would appoint a special prosecutor to investigate the charges and, when appropriate, bring criminal prosecutions. The legislation effecting these changes was the Special Prosecutor Act--Title VI of the Ethics in Government Act of 1978. [FN2] For the first time in the nation's history, the special prosecutor became an institutional, albeit sporadic, part of the federal government.
At the time this legislation was pending, its numerous and substantial critics denounced the concept as being inimical to the separation of powers required by our Constitution. [FN3] As we all learn in high school civics, Article I of the Constitution charges the legislature with enacting the law; Article II charges the President with enforcing the law; and Article III charges the courts with interpreting the law. That constitutional balance, argued the critics, is impermissibly altered when anyone other than the President and those appointed by him undertakes to enforce the law. If the Act became law, they predicted, it most assuredly would be unconstitutional. [FN4]
The critics also noted that, if a President were corrupt, the Constitution provided adequate remedies. The President, like everyone else, was subject to prosecution for violating criminal law and, even if a sitting President couldn't be tried for criminal acts--an open question--Congress could always impeach a President and members of his cabinet, or could at least expose a chief executive's corruption through legislative hearings. [FN5] In the end, the ultimate constitutional remedy was for the people to throw the crooks out in the next election.
A. THE DAWN OF THE NEW AGE
What was it that goaded Congress into passing, and President Carter into signing, legislation that set up an elaborate system for the appointment and functioning of special prosecutors with no legal crisis on the horizon? To understand the impetus for the independent counsel legislation, it is necessary to recall the lengthy history of special prosecutors, culminating with Watergate.
There seems to be little disagreement that Watergate makes a compelling case for a special prosecutor with real independence from the President. President Nixon's unqualified admissions to criminal acts, which were recorded on tape and subsequently turned over to the special prosecutor, were an unprecedented chapter in American political history that is not likely to be repeated. But the history of special prosecutors before Watergate reveals that Nixon was not the first President to appoint a special prosecutor, nor the first to fire one.
B. THE FIRST CENTURY OF SPECIAL PROSECUTORS
President Grant appointed the first special prosecutor in 1875. Between this first appointment and the appointment of Archibald Cox ninety-eight years later, six different presidents appointed a total of ten special prosecutors-- with varied results. While the circumstances surrounding their appointments and their relative effectiveness differed, they shared one common characteristic-- they became involved in the swirling and complex events that make up presidential politics. This history helped shape the Independent Counsel Act enacted in 1978 which, in its essential terms, we still live with today.
1. President Grant's Special Prosecutor
President Ulysses S. Grant's two terms in office (1869-1877) have been dubbed by some historians "the most disgraceful years in American history" because of widespread corruption and graft in the government. [FN6] Following the Civil War, the country was morally bankrupt--profiteers exploited the Civil War, opportunists took advantage of the Reconstruction Acts, and carpetbaggers flocked to the defeated Confederacy. What resulted was the institutionalization of graft-ridden administrations at the city, state, and national levels.[FN7]
The spoils system was in full bloom when President Grant took office. Grant saturated the government with his cronies and those of his long-time friend and personal secretary, General Orville E. Babcock. [FN8]
One of Babcock's close friends, General John McDonald, was appointed Supervisor of Revenue for the Missouri District, and his responsibilities included collecting taxes from whiskey distillers located in his district. [FN9] McDonald soon devised and implemented a kickback scheme whereby distilleries were charged less tax than was due and would kick back about half of the unpaid tax. [FN10] This operation became known as the "St. Louis Whiskey Ring." [FN11]
General Babcock was one of McDonald's accomplices. [FN12] The Treasury Secretary, Benjamin Bristow, who was contemplating running for president, amassed a significant amount of evidence against the St. Louis Whiskey Ring, and presented it to President Grant. [FN13]
On June 1, 1875, in an effort to blunt press criticism, Grant appointed General John B. Henderson as Special Prosecutor to prosecute the St. Louis Whiskey Ring. [FN14] Henderson, previously a Republican Senator from Missouri, was a vigorous advocate who ultimately obtained numerous indictments and convictions, including McDonald's. [FN15]
When it became obvious to President Grant that Henderson's next target was going to be Babcock, Grant appointed a military court to investigate the charges against him. This military tribunal contacted Henderson and demanded all documents relating to Babcock's involvement in the ring. Henderson refused and, instead, presented the evidence to a grand jury, which promptly indicted Babcock. The military tribunal backed off, and Babcock now had to stand trial. [FN16]
Meanwhile, Special Prosecutor Henderson, during the trial of a mid-level Treasury official affiliated with the St. Louis Whiskey Ring, made a spirited closing argument to the jury in which he said, among other things: "What right has the President to interfere with the honest discharge of the duties of a Secretary of the Treasury? None, whatsoever." [FN17] When Grant heard of the special prosecutor's argument, he fired him on the basis that his statements were impertinent. [FN18]
In an effort to squelch public criticism, Grant appointed a new special prosecutor, James Broadhead, to handle the pending indictment against Babcock. [FN19] However, the cards were stacked against the new prosecutor. For one thing, he lacked familiarity with the facts of the case that had been indicted and was awaiting trial. Grant's Attorney General also issued an order to all federal prosecutors that expressly precluded any of the prosecutors who handled related cases from plea bargaining with any defendant. This prevented the special prosecutor from obtaining additional evidence against Babcock. [FN20]
The crowning blow was that, at Babcock's trial, a deposition from President Grant was read to the jury in which Grant stated that if Babcock had been guilty of misconduct, Grant would have been the first to know about it because of their close association and that, of course, Grant did not believe Babcock guilty of anything. [FN21] The result was a quick not-guilty verdict for Babcock.
Grant appointed a special prosecutor to blunt public opprobrium, but when he did not like where the special prosecutor was heading, and particularly when he saw the special prosecutor coming too close, he fired him, and then crippled the effectiveness of the next appointee.
2. President Garfield's Special Prosecutor
President James A. Garfield (1881) served only about four months before he was shot, and he died eighty days later. In his brief tenure, he faced a mushrooming scandal in the Post Office Department. A number of prominent persons, including a former Senator and Secretary of the National Republican Committee (Garfield was a Republican), were alleged to have bribed senior postal officials to obtain choice postal routes, primarily in the western United States. [FN22] The resulting criminal cases were popularly known as the "Star Route" cases.
Garfield, who had run on a platform of civil service reform and clean government, was resolute in his desire to rid his administration of corruption. When told that the Star Route cases would involve some of his confidants, he stated: "Go ahead regardless of where or whom you hit. I direct you not only to probe this ulcer to the bottom, but to cut it out." [FN23]
Garfield appointed a well-known criminal lawyer, William Cook--whose claim to fame was that he had never lost a criminal case--to assist the government prosecutors handling the case. [FN24] Garfield's appointment of Special Prosecutor Cook no doubt reflected his belief not only that a more thorough investigation would be provided by an outsider, but also that the public would have more confidence in the prosecutions if they were handled by someone outside his administration.
Although Special Prosecutor Cook continued on the job after Garfield's death, his efforts produced only limited success; while some minor officials were convicted, the apparent major perpetrators of the frauds were acquitted. [FN25] The Star Route frauds, however, acted as a catalyst for the passage of the Pendleton Civil Service Reform Act in 1883. [FN26]
3. President Theodore Roosevelt's Special Prosecutors
President Theodore Roosevelt (1901-1909) appointed special prosecutors on two different occasions. On both occasions, the appointments addressed scandals erupting at high levels of government agencies.
In 1903, officials in the Post Office were accused of taking bribes and kickbacks in exchange for promoting employees. When details as to the nature and extent of the corruption surfaced, Roosevelt wrote that: "[t]here can be no greater offense against the government than a breach of trust on the part of a public official or the dishonest management of his office and, of course, every effort must be exerted to bring such offenders punishment by the utmost vigor of the law." [FN27]
To do so, Roosevelt appointed a duo of prosecutors, Holmes Conrad and Charles J. Bonaparte, to assist in the prosecution of the case. [FN28] This marked the first time that a President appointed two special counsel, much less two counsel of differing political persuasions, to contemporaneously investigate the same scandal.
The New York Times wrote on June 24, 1903 that Judge Conrad, a Democrat, "was chosen because of his high standing and ability, and for his special knowledge of public business and the Government departments." [FN29] As a Democrat, Conrad "cannot be accused of trying to hide or smother facts for partisan advantage." [FN30] On the other hand, Bonaparte, the Republican component of the prosecution team, was hailed an "ardent champion of civil service reform." [FN31]
The two appointees' efforts to prosecute the major persons responsible for the scandals were unsuccessful, however, as the statute of limitations had run on many of the charges. They brought the senior ranking official to trial, but he was ultimately acquitted. [FN32]
Two years later, in 1905, another scandal emerged involving the United States Land Office and various congressional leaders from Oregon. Roosevelt this time appointed a single special prosecutor, Francis J. Heney, who obtained convictions against the primary malefactors. [FN33]
4. President Coolidge's Special Prosecutors
While whiskey was the source of so much of the trouble suffered by Grant's administration, and Post Office corruption bedeviled Garfield and Teddy Roosevelt, it was oil that complicated the government under President Calvin Coolidge (1923-1929). He became the next President to employ special prosecutors.
Warren G. Harding's three years in office were awash with scandals that were unresolved when he died in 1923. Calvin Coolidge succeeded to the presidency upon Harding's death and inherited not only Harding's cabinet, but also a number of his scandals. [FN34] One of those was the so-called "Tea Pot Dome" scandal.
Tea Pot Dome was the name of a naval petroleum reserve located in Salt Creek, Wyoming. President Harding had appointed Albert Fall as Secretary of the Interior. Fall had granted two private companies' drilling rights on naval petroleum reserves; one in Elk Hills, California, and one in Salt Creek, Wyoming. These were very valuable rights and, in order for Secretary Fall to be able to grant the leases, President Harding, at Fall's direction, had to order the Navy Department to transfer the land from the Navy's jurisdiction to the Interior Department. [FN35]
Once the Department of Interior had jurisdiction, Fall leased the Elk Hills lands to Edward J. Doheny's company, and leased the lands at Tea Pot Dome to Harry Sinclair's company. [FN36] It was not until the companies began to construct facilities on the land that the leases came to public attention and the newspapers began to suggest that significant improprieties had occurred. [FN37]
Congress scheduled public hearings to investigate the matter. The hearings, which were ongoing when Coolidge took office, were lengthy, and they soon bogged down in seemingly mindless technicalities. They appeared destined to go nowhere until Doheny, who previously denied that he had given anything to Fall, testified under oath that he had indeed given Fall an interest-free $100,000 loan that had never been repaid. That bombshell, coupled with allegations that Fall had also received large amounts of money from Sinclair, began to generate public interest in the scandal. [FN38]
Up to this point, the hearings had a decidedly partisan tone: Fall, a Republican, had been on the take and the Democrats were pushing forward to expose and embarrass the Republicans. [FN39] However, when Doheny confessed to the Fall "loan," he also admitted giving gratuities to several Democrats, including Warren William G. McAdoo, who was then considered the frontrunner for the Democratic Presidential nomination. Suddenly the scandal had bi-partisan over-tones. [FN40]
Congress did not trust then-Attorney General Harry Daugherty, and it was in the midst of preparing legislation for the creation of a special prosecutor when President Coolidge announced that he would be appointing special prosecutors "of high rank drawn from both political parties to bring such actions for the enforcement of the law." [FN41] The President requested, and Congress then passed, a law authorizing President Coolidge to appoint two special prosecutors with the advice and consent of the Senate to "prosecute all illegal acts that occurred in conjunction with the granting of the leases." [FN42]
This was the first and only time that the appointment of a special prosecutor was to be with the advice and consent of the Senate. Previously, all special prosecutors were appointed either directly by the President or at the direction of the President by the Attorney General.
Coolidge appointed Atlee Pomerene, formerly a Democratic Senator from Ohio, and Owen J. Roberts, a little-known Republican lawyer from Philadelphia, to handle the prosecutions, and the Senate confirmed them. [FN43] Their investigation revealed that Fall received not only $100,000 from Doheney, but also $200,000 from Sinclair. [FN44] Fall was indicted and found guilty of accepting bribes from Sinclair and Doheny, and was sentenced to prison. He became the first cabinet official in United States history to go to prison.[FN45]
Doheney and Sinclair, the persons making the bribes, were each acquitted by different juries. Atlee Pomerene later became the head of Herbert Hoover's Reconstruction Finance Corporation, and Owen Roberts joined the Supreme Court in 1930. Coolidge fired Attorney General Harry Daugherty. The U.S. Attorney's office in New York subsequently indicted and convicted him. [FN46]
5. President Truman's Special Prosecutor
President Truman's presidency (1945-1953) is sometimes referred to as "the crisis presidency" because of the dramatic events of the time--the lowering of the Iron Curtain, the raising of the Berlin Wall, the Korean Conflict, MacArthur's firing, and the reign of McCarthyism, to name a few. [FN47] He also had occasion through his Attorney General to appoint and then fire a special prosecutor.
One of several scandals plaguing Truman erupted in the Internal Revenue Service. In 1950, 166 IRS employees either resigned or were fired, and others, including the Assistant Attorney General in charge of the Tax Division, were facing indictments from the DOJ on a variety of tax-fixing and bribery charges. [FN48] A congressional subcommittee had uncovered serious misconduct in the Treasury Department, and there was a public perception that the DOJ was delaying the investigation into the scandal, and was inept in prosecuting this corruption. [FN49]
The press and Congress clamored for appointment of a special prosecutor to investigate charges of corruption within the administration. [FN50] President Truman ignored the demands and instead appointed his Attorney General, J. Howard McGrath, as the head of the "clean-up," a move that both the press and Congress roundly condemned. [FN51]
To head off the House Judiciary Committee's announcement that it would undertake a public investigation of McGrath's handling of the DOJ, Truman agreed to appoint a special prosecutor. [FN52] He appointed a New York Republican, Newbold Morris, who had been a protege of Mayor Fiorello LaGuardia. Morris took office on February 1, 1952 and, after his first meeting with the President, promptly announced that he did not want, nor did he need, the power of subpoena, "because if I want something and can't get it, I can go to the President for it." [FN53]
To expedite his investigation, Special Prosecutor Morris prepared a lengthy questionnaire for all senior executive officers, starting with all DOJ employees whose salaries were over $10,000. The questionnaire, to be answered under oath, was intended to reveal whether the employee's lifestyle was commensurate with his salary. [FN54] On March 18, 1952, Morris sent 596 questionnaires to the DOJ for distribution to senior officials. [FN55] Attorney General McGrath ordered them not to be distributed. Morris then announced he wanted unlimited access to all McGrath's official and personal records. McGrath refused and, on April 3, 1952, fired Morris. [FN56] Newbold Morris spent a total of sixty-three days as special prosecutor, the shortest appointment of any special prosecutor in history.
Later that day, Truman fired McGrath. Shortly thereafter, Truman announced Judge James P. McGranery as his new Attorney General. [FN57] Judge McGranery announced that the investigation of the DOJ would be conducted through regular channels. The net result of that investigation was that one DOJ official was removed for unethical conduct, whereupon Judge McGranery publicly declared that his investigation was complete and that all the wrongdoers had received their due. [FN58]
6. The Watergate Watershed
In June 1972, five burglars were arrested for breaking into the Democratic National Headquarters in the Watergate apartment and office complex in Washington, D.C. The D.C. Police nabbed them as they were repairing broken bugging equipment they had installed three weeks earlier. [FN59]
The FBI entered the case and conducted an investigation. Thereafter, the DOJ obtained indictments against the five burglars and two co-conspirators. Of these seven, five pleaded guilty in January 1973. The two who pleaded not guilty--G. Gordon Liddy (then an attorney for Nixon's campaign finance committee and now a syndicated commentator and radio talk-show host) and James McCord, Jr. (a former CIA agent and security chief of the Committee to Re-Elect the President)--were subsequently tried and found guilty. [FN60]
President Richard M. Nixon, first elected in 1968, had been re-elected by a landslide in November 1972. In February 1973, because of the obvious political issues these events raised, Congress appointed the Select Senate Committee on Presidential Campaign Activities, known as the Watergate Committee, to investigate the bugging of the Democratic National Headquarters, as well as other dirty political tricks in the 1972 Presidential campaign.
Federal Judge John Sirica, who presided over the Watergate trial of Liddy and McCord, put the defendants on notice that, unless they cooperated with the Watergate Committee, they would receive very heavy terms of imprisonment.[FN61] In response, defendant McCord, in March 1973, wrote a letter to the judge claiming that perjury had been committed, that other persons besides the convicted seven were involved, "higher-ups" had applied political pressure to coerce them into pleading guilty, and that a "cover-up" was taking place. [FN62]
In late April, Nixon's two key aides, H.R. Haldeman and John Ehrlichman, resigned, as did his Attorney General Richard Kleindienst. Because the President's office and close advisors appeared to be involved, there was a growing sentiment that the criminal investigation of the scandal should be handled not by the DOJ but by an outside prosecutor.
On April 30, 1973, President Nixon, in an effort to dampen the increasing crescendo for a special prosecutor, announced that his new Attorney General, Elliott Richardson, would have full responsibility for the Watergate case, and that if Richardson thought a special prosecutor appropriate he could appoint one. [FN63] Shortly thereafter, Richardson appointed Democrat Archibald Cox, a Harvard Law professor and former Solicitor General, to serve as Special Prosecutor. [FN64]
About this same time the Watergate Committee's hearings began in earnest, televised by all three networks. Former White House counsel John Dean was called as a witness and directly implicated President Nixon, as well as Haldeman, Nixon's Chief of Staff, and Ehrlichman, the Chief Domestic Affairs Advisor. [FN65] During the course of the hearings, while the whole country debated whether John Dean's detailed recollections were fact or fiction, a White House employee informed the Committee that there was a voice-activated system that tape-recorded all conversations, including those between the President and Dean, and that these tapes could verify or dispute Dean's accusations. [FN66]
Congress, which was conducting Watergate hearings publicly, and the special prosecutor, who was operating through a grand jury, both subpoenaed some of the White House tapes. [FN67] The United States District Court ordered the President to turn the tapes over to the Special Prosecutor. [FN68] Citing executive privilege, the President refused. After much wrangling, the President offered a compromise: he would not provide the tapes, but he would provide a summary of what was on the tapes. [FN69]
When Special Prosecutor Cox refused to accept the summary, the President, on October 20, 1973, ordered Attorney General Richardson to fire him. The Attorney General refused to fire Cox, and then resigned. Next, Richardson's deputy, William Ruckelshaus, refused to obey the President's order to fire Cox, and he in turn was fired. Finally, the next ranking official-- Solicitor General Robert Bork--obeyed the order and that Saturday evening fired Archibald Cox. [FN70] The media dubbed this event the "Saturday Night Massacre." The public was outraged, and calls for Nixon's impeachment began to reverberate from one end of the country to the other. [FN71] Nixon, in an effort to quell the groundswell of criticism, released some--but not all--of the White House tapes. One of those tapes had an inexplicable 18.5-minute gap.
To mute the cacophony of criticism, Nixon appointed Leon Jaworski, a well- known Texas lawyer and a democrat, as Special Prosecutor. Jaworski accepted the job on the condition that he could not be fired without consent of Congress, and that he was free to pursue the investigation, wherever it might lead. [FN72] However, in early 1974, President Nixon announced he would no longer cooperate with the Watergate Committee, saying that "one year of Watergate is enough." [FN73] Special Prosecutor Jaworski sought certain key White House tapes for use in a pending trial against some of the Watergate participants. Nixon, claiming executive privilege, refused to produce the tapes. After Judge Sirica ordered production, Nixon appealed the order to the Supreme Court. [FN74]
On July 27, 1974, the House Judiciary Committee approved three articles of impeachment against Nixon--obstruction of justice, abuse of power, and refusal to comply with Committee subpoenas. On July 24, 1974, the Supreme Court held that the district court had the authority to order the President to turn over the tapes sought by the Special Prosecutor. [FN75] On August 5, 1974, Nixon released transcripts of three tape-recorded conversations of June 23, 1972 which demonstrated his involvement in, and knowledge of, the cover-up. [FN76] Three days later, on August 8, 1974, President Nixon resigned. The impeachment inquiry ended because of the President's resignation. However, there still remained the issue of his liability for breaking the criminal law. Nixon's Vice President and successor President Gerald Ford, shortly after taking office, pardoned Nixon, finally ending the Watergate affair as far as Nixon was concerned.
During Watergate, Special Prosecutors Jaworski and his successor Henry Ruth, and the DOJ, working on parallel tracks, ultimately obtained forty-five indictments and thirty-nine convictions, including Nixon's Chief of Staff Haldeman, two former Attorneys General--Mitchell and Kleindienst--Domestic Affairs Advisor Ehrlichman and Secretary of the Treasury Morgan. [FN77]
Watergate polarized and practically paralyzed the three branches of government. It brought to a new low the public's confidence in the government. As a direct result of the revelations of corruption in Watergate, and the difficulties in investigating them, Congress in 1978 enacted the Independent Counsel Act. [FN78]
C. THE TWO POST-1978 SPECIAL PROSECUTORS OUTSIDE THE INDEPENDENT COUNSEL ACT
Even after the original passage of the special prosecutor statute in 1978, two special prosecutors were appointed outside its provisions. Because their legal status was akin to that of the pre-Act special prosecutors discussed above, I briefly discuss their tenures before turning to the prosecutors appointed under the Act.
1. President Carter's Special Prosecutor
In early 1979, allegations surfaced that funds from the Carter Peanut Warehouse business illegally had been funneled into the 1976 Carter Presidential campaign. Although the Ethics in Government Act had been enacted the year before, Attorney General Griffin Bell concluded that it didn't cover allegations of misconduct that preceded the effective date of the Act. However, in an effort to quiet the mounting public criticism, he appointed a special prosecutor--Paul Curran, a Republican attorney from New York City--to investigate the matter. After investigation, Curran concluded there was no basis for criminal prosecution, and the matter was closed. [FN79]
2. President Clinton's Special Prosecutor
Fourteen years later, in January 1994, after a year in office, President Clinton directed his Attorney General to appoint a special prosecutor in an effort to silence the criticism of his conduct in what has come to be known as "Whitewater." According to the White House, the scandal was becoming "too much of a distraction" for the President to govern the nation effectively. [FN80] However, The Los Angeles Times reported the appointment of a special prosecutor was an effort by President Clinton to avoid congressional hearings. [FN81] At the time, the independent counsel statute was not in effect, having lapsed on December 15, 1992.
Attorney General Janet Reno, in response, appointed a Republican attorney, Robert Fiske, from New York City, to be a regulatory independent counsel. [FN82] Six months later, on June 30, 1994--while Fiske was well into his investigation--Congress passed the Independent Counsel Reauthorization Act of 1994. The Attorney General, who could have followed Griffin Bell's precedent that the misconduct alleged antedated the effective date of the reauthorization as a basis for declining appointment of an independent counsel, chose not to do so. Instead, she filed an application with the Special Division to appoint an independent counsel under the Act, and suggested Fiske. The Special Division concluded that it would be inappropriate to appoint Fiske since he had been appointed by the administration, and selected instead a former District of Columbia Circuit Court Judge who had also served as Solicitor General--Kenneth Starr. [FN83]
The following table summarizes the special prosecutors appointed outside the Act.
*Fired
D. INDEPENDENT COUNSELS UNDER THE ACT
Since 1978, we have had a Special Prosecutor Act (its original title) or, as it is now known, the Independent Counsel Act, except for an eighteen- month period from January 1993 through June 1994. In its current structure, the Act generally provides for appointment of a special prosecutor to investigate and prosecute designated high-ranking executive branch officials under certain specific circumstances.
The Act, which has repeatedly been enacted for five-year terms, has been amended three times--in 1983, 1987 and, most recently, in 1994. [FN84] One amendment changed the name from "special prosecutor" to "independent counsel," in the belief that this title better reflects the balanced, impartial role of the position, as the purpose of the independent counsel is to investigate the facts fully and fairly, and to issue indictments and prosecute only when warranted. [FN85]
The Supreme Court found the Act constitutional in 1988, in an opinion authored by Chief Justice Rehnquist, with one Justice dissenting. [FN86] This result has answered the separation of powers question but has not silenced critics of the Act. The Supreme Court's careful analysis of the constitutional issues that the Act successfully skirts is useful in understanding the rationale behind the Act's complicated provisions. [FN87]
In its current structure, the Independent Counsel Act generally provides for the appointment of an independent counsel to investigate and, where appropriate, prosecute certain designated high-ranking executive branch officials--about seventy in all. [FN88] In addition, an independent counsel may be appointed to investigate any other person for whom the Attorney General determines that investigation or prosecution by the DOJ may result in a personal, financial, or political conflict of interest, or to investigate a member of Congress, if the Attorney General determines it would be in the public interest to do so. [FN89] Attorney General Reno relied upon her perceived conflict of interest in applying to the Special Division for an independent counsel to investigate the Madison Guaranty Savings and Loan matter, popularly known as Whitewater. [FN90] An independent counsel is to be appointed if, after a very limited investigation, the Attorney General concludes that further investigation of the allegations is necessary. [FN91] Under the Act, the independent counsel's identity and jurisdiction, prior to indictment, may not be made public except upon the Attorney General's request or the Special Division's determination that to do so would be in the interests of justice. [FN92] However, the identities and jurisdictions of almost all the independent counsels appointed under the Act were made public at the time the independent counsels were appointed.
Since passage of the Act, there have been twenty independent counsels. Eighteen have been publicly identified. The identities and subjects of the other two (appointed in 1989 and 1991) have not been disclosed.
A summary of the publicly-identified independent counsels to date, and their subject matters, follows:
Actual experience in the operation of the Act demonstrates that most high-ranking government officials whose conduct is scrutinized by a prosecutor under the Act are not indicted. Of the eighteen publicly-identified prosecutors, seven have brought criminal prosecutions.
The essential role of the independent counsel in our system has been repeatedly affirmed by Congress's subsequent reauthorization of the Act in 1983, in 1988, and in 1994. However, each of the enactments was accompanied by some adjustments in the statute. For instance, Congress amended the statute following two Carter-era investigations into charges that, arguably, would have been ignored had they been lodged against ordinary people. Among other things, the revisions raised the standard for triggering the Act. [FN94] In 1988, Congress amended the Act in reaction to perceived liberties then-Attorney General Edwin Meese had taken in interpreting the statute. [FN95] During his tenure, the Senate reported, half of the cases handled between 1982 and 1987, in which the investigation of a covered official had been declined, relied on factors other than credibility and specificity of the charges. The Senate report also pointed to irregularities in interpretation of recusal requirements and the status of the independent counsels and their staffs in relation to the DOJ. [FN96] The legislators also adopted symbolic language encouraging independent counsels to rein in costs, but rejected any specific provisions that might limit the independence of the office. [FN97]
In the wake of Judge Walsh's highly charged investigation of Iran-Contra, Senate Republicans led a filibuster that allowed the Act to lapse in 1992. Later, with a new democratic administration in the throes of the Whitewater investigation and the scent of scandal in the political winds, there was renewed congressional support for outside investigators. Congress revived the Independent Counsel Act in 1994. [FN98] In pleading his case for passage of the bill, former Senator and now Secretary of Defense William Cohen, a longtime supporter of the institution of the independent counsel, said:
If and when presidents of this country establish the practice of appointing individuals who are highly regarded within the legal profession, who have not engaged in partisan politics, and who in fact are a symbol of true impartiality in the administration of justice, then I think we can find there is no longer a need for the independent counsel law. In the meantime, I think there is a compelling need. [FN99]
E. SOME LESSONS FROM HISTORY
There are undoubtedly many lessons to be learned from the history of special prosecutors, even the brief and abbreviated version above. The most important lesson for present purposes is that special prosecutors have always been embroiled in politics. In this section, I would like to focus on a few points that I think help explain why we have the somewhat arcane system of independent counsels that is now in place.
First, special prosecutors could be and sometimes were fired by the presidents who appointed them--for example, Grant, Truman, and Nixon. Such uncertain job security is of course repugnant to the central idea of a special prosecutor, which is independence from the regular channels of the executive branch. Under the present Act, the Attorney General personally can fire the independent counsel, but only for good cause, and subject to judicial review. [FN100] The Special Division of the Court of Appeals can also terminate the independent counsel if it finds that the independent counsel's work is substantially completed. [FN101] No prosecutor appointed under the Act has ever been fired by the Attorney General or had his investigation terminated by the Special Division.
Second, where corruption was endemic to the administration (Grant, Harding/ Coolidge, Truman, Nixon and Clinton) the special prosecutor was appointed by the President in an apparent effort to prevent Congress itself from either conducting more extensive hearings or passing legislation calling for a special prosecutor. This undoubtedly is a motivation for the appointment of independent counsels under the Act today, but the sole authority to make the call for an independent counsel now resides in the Attorney General. [FN102]
Third, reform-minded Presidents Garfield and Roosevelt appointed special prosecutors because of their perception that a prosecutor from outside the system would do a more comprehensive and effective investigation and prosecution. This is the present philosophy behind the Act, which mandates that an independent counsel must be someone other than a current federal employee. [FN103]
Fourth, when a President appointed a special prosecutor, he usually selected someone from the opposite party. In those instances where corruption involved both parties, Presidents Roosevelt and Coolidge opted to appoint a prosecutor from each political party. Under the Act, the independent counsel is chosen by a three-member panel from the judiciary, the nonpolitical wing of the government. Thus, while the independent counsel's political affiliation still becomes an issue, particularly among the independent counsel's critics, party labels have been removed to the extent possible from the selection process.
Fifth, Grant and Truman were able to frustrate the special prosecutor's purpose and efforts. Nixon's attempts to do so failed for a variety of reasons, but primarily because the Supreme Court required the President to turn over the White House tapes that revealed his active participation in the cover-up, and because the media coverage of events including the Watergate Committee hearings turned the tide of public opinion decidedly against him. The independent counsel under the current Act is more insulated from the President's control. The President through the Attorney General has some say over whether an independent counsel can be fired (subject to judicial review), but as a practical matter the Act is structured to minimize the President's power to impede directly the independent counsel's efforts.
Sixth, whether Presidents appointed special prosecutors to avoid continued condemnation about their corrupt administrations, or were genuinely interested in exerting, in the words of Theodore Roosevelt, "every effort ... to bring such offenders [to] punishment," [FN104] by 1978 Congress concluded that the best way to eliminate, or at least reduce, political conflicts of interest and maintain public trust is to appoint an independent prosecutor from outside the administration.
Since Watergate, Congress has seen the creation of a semi-permanent (the Act has a five-year sunset provision), [FN105] external, institutional investigative body as the best way to shed light on the darker side of politics and ensure fair and credible investigations and, where appropriate, prosecutions. However, to achieve an independent counsel's independence from control of the executive branch, Congress had to straddle the commands of Articles II and III of the Constitution while crafting an act that would also not intrude upon the separation of powers doctrine. The Independent Counsel Act of 1978 passes constitutional muster, [FN106] and it has created a federal prosecutive office that is required to function within the traditional DOJ boundaries. [FN107] The Act "contemplates an apparent as well as an actual independence on the part of the Independent Counsel," [FN108] and an office that is apolitical. Because of the uniquely public aspects of the independent counsel's investigation, however, its opponents can engage in a variety of attacks on the independent counsel's investigative avenues as being politically inspired, motivated and directed. As discussed more fully in Part III infra, the independent counsel must traverse a variety of issues not ordinarily encountered by his DOJ counterpart in its investigations and prosecutions. Particularly when the focus of the investigation is the President, his cabinet, and immediate staff--and appears headed in the direction of indictment--the independent counsel should expect that his efforts will be politicized and that he will be vilified in an effort to discredit both him and his investigation. These attacks diminish not only the effectiveness of independent counsel investigations but, equally important, the public's perceptions of fairness of those investigations--criticisms to which a prosecutor is unable to respond during his investigation.
II. THE NUTS AND BOLTS OF THE INDEPENDENT COUNSEL ACT
As discussed in Part I, executive branch political concerns featured prominently in the appointment and termination of special prosecutors prior to 1978. In response, the basic provisions of the current Independent Counsel Act attempt to standardize the procedures by which independent counsels are appointed, and strive to depoliticize the appointment process itself by removing it as far as possible from the President's direct control. In this Part, I offer a brief overview of the provisions of the Act that, in my estimation, are critical to accomplishing these goals. [FN109]
A. TRIGGERING THE ACT
The Act is triggered when the Attorney General receives "information sufficient to constitute grounds to investigate" allegations of federal criminal conduct by certain designated high-ranking executive branch officials--about seventy in number--who are designated as "covered persons." [FN110] She has a thirty-day period after her receipt of the allegations of criminal conduct to determine in this initial inquiry whether grounds to investigate exist, considering only whether the information is "specific and from a credible source." [FN111] If she concludes from this inquiry that the information lacks the requisite specifics, or is not from a credible source, she closes the matter. [FN112] In determining whether the information is specific and credible, she may not consider whether the covered person lacked criminal intent. [FN113] If she concludes the information is specific and credible, or if she is unable, in this thirty-day initial inquiry period, to determine whether the information is specific and from a credible source, she must commence and conclude a preliminary investigation within ninety days to determine whether further investigation is necessary. [FN114] If it is, she is to apply to the Special Division of the United States Court of Appeals for the District of Columbia Circuit--a three-judge tribunal created specially to handle independent counsel matters--for appointment of an independent counsel. She may also, for good cause, obtain a sixty-day extension from the Special Division in which to complete her preliminary investigation. [FN115]
In conducting a preliminary investigation to determine whether "there are reasonable grounds to believe further investigation" by an independent counsel is warranted, the Attorney General is required to follow DOJ policies, [FN116] except she may not use grand juries, issue subpoenas, grant immunity, or plea bargain. [FN117] This denial of compulsory process to the Attorney General is a major impediment which precludes her from getting to the factual core of the issues because she is essentially limited to asking for voluntary cooperation from witnesses and document custodians. Further, absent "clear and convincing evidence" of lack of criminal intent, she may not base her decision not to request an independent counsel on lack of the requisite intent. [FN118] Given that the statute expressly enjoins her from utilizing the fundamental investigative tools necessary to get at the true facts, the most that can reasonably be expected is that her preliminary investigation will barely scratch the surface. That preliminary investigation will portend a variety of problems, however, for an independent counsel should one be appointed. [FN119]
If after the preliminary investigation the Attorney General concludes "[t]here are reasonable grounds to believe further investigation is warranted," she then files with the Special Division an application for appointment of an independent counsel. [FN120] If her conclusion is that "there are no reasonable grounds to believe further investigation is warranted," [FN121] she does not file an application. While her decision to file or not file an application is not reviewable, she must notify the Special Division of her decision and provide it with a summary of the information and results of her investigation. [FN122]
B. THE SPECIAL DIVISION'S SELECTION AND APPOINTMENT OF AN INDEPENDENT COUNSEL
It is the Attorney General's decision--and hers alone--whether to file an application with the Special Division, and that decision is not reviewable. [FN123] While the statute prescribes a legal standard for the exercise of her discretion, the fact that it is non-reviewable implicates both her legal and political judgments.
The Special Division before whom the Attorney General files her application is a division of the United States Court of Appeals for the District of Columbia Circuit. [FN124] It consists of three circuit court judges or justices appointed by the Chief Justice of the Supreme Court for two-year terms. One of the judges must be a judge of the United States Court of Appeals for the District of Columbia, and no two of the judges may be named to the Special Division from the same circuit. Judges serving in the Special Division are precluded from participating in other independent counsel matters. [FN125] Because of constitutional concerns discussed in Part IIIB, infra, the role of the Special Division is--relatively speaking--limited. Its primary duties are to select, appoint and define the independent counsel's jurisdiction, and refer related matters to the independent counsel upon request. [FN126] As noted infra, the concept of the independent counsel's jurisdiction can sometimes be a thorny thicket.
1. The Attorney General's Application
The Attorney General's application must contain "sufficient information to assist the division of the court in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction so that the independent counsel has adequate authority to fully investigate and prosecute the subject matter and all matters related to that subject matter." [FN127] The Special Division defines the independent counsel's jurisdiction. In so doing, it must "assure that the independent counsel has adequate authority to fully investigate and prosecute the subject matter ... and all matters relating to that subject matter." [FN128] Typically, when she files her application, the Attorney General attaches a proposed jurisdictional grant which, at least in the recent past, the Special Division has adopted. For instance, in the applications filed by the Attorney General in connection with the Whitewater, Cisneros, Brown, and Espy matters, the Special Division accepted the recommended statement of jurisdiction proposed by the Attorney General and then added a paragraph further elucidating the breadth of the independent counsel's prosecutorial authority. [FN129] 2. The Statutory Command to Fully Investigate the Matter and All Related Matters
The congressional command that the Special Division ensure the independent counsel has jurisdiction to fully investigate not only the matter, but also all related matters, reflects congressional concerns that an informed decision to indict or decline to prosecute be based on all the facts. The decision not to prosecute a senior government official after full investigation is as important as, if not more important than, the decision to prosecute. The fact that a prosecutor independent of the current administration has fully investigated the matter and all related matters, and concluded that prosecution is not warranted, not only serves to clear the official of the allegations, but also leaves the public with the assurance that there is no cover-up. In its initial passage of the Act, Congress recognized the value of special prosecutors not only in examining suspected crimes, but also in ferreting out unsuspected criminal acts. "When we have used temporary special prosecutors every few decades, they have discovered and prosecuted additional crimes that we might never have known about if they had not been appointed," the Senate wrote in its 1977 report on the proposed Ethics in Government Act. [FN130]
3. The Authority of the Independent Counsel
The Independent Counsel has "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the DOJ, the Attorney General, and any other officer or employee of the DOJ," [FN131] for all matters within his jurisdiction, save one. The exception is that the Attorney General retains "direction or control" for "wire tap" authorizations required under § 2516 of Title 18. [FN132]
Whenever a matter is referred to an independent counsel under the Act, the Attorney General and the DOJ must suspend all investigations and proceedings regarding the matter. [FN133] The independent counsel's full authority includes conducting grand jury proceedings and other investigations, participating in civil and criminal court proceedings and litigation, and appealing any decision in any case in which the counsel participates in an official capacity. [FN134] He is authorized to receive security clearances, obtain immunity for witnesses, and consult with the U.S. Attorney in the district where crimes were committed. [FN135] His powers include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States." He appoints employees, [FN136] requests and obtains assistance from the DOJ, [FN137] and may accept referral of matters from the Attorney General if the matter falls within the counsel's jurisdiction as defined by the Special Division. [FN138] He is required, except to the extent inconsistent with the statute, to "comply with the written or other established policies of the DOJ respecting enforcement of the criminal laws." [FN139] He has "full authority to dismiss matters within his prosecutorial jurisdiction without conducting an investigation or at any subsequent time before prosecution, if to do so would be consistent" with DOJ policy. [FN140] In short, he stands in the shoes and is the functional equivalent of a United States Attorney, albeit with a narrow jurisdictional mandate.
4. The Selection of the Independent Counsel
In selecting the person who is to be the independent counsel for the particular matter, the Special Division is required to appoint a person who "has appropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner.... [and] who will serve to the extent necessary to complete the investigation and prosecution without undue delay." [FN141] The court may not appoint a federal employee or officer.
A frequently asked question is, "How do you get to be an independent counsel?" The particulars of the selection process are not public, except that the statute designates the Special Division to make the selection. [FN142]
Little is known about the selection process, even by those of us who have been selected. We do know that the Special Division keeps a so-called "talent book," listing individuals who might make appropriate independent counsel. We also know that professional colleagues of the Special Division judges make recommendations for possible candidates. [FN143]
In my case, I was contacted in 1990 by Judge MacKinnon, the then- presiding judge of the Special Division, and asked whether I would be interested in handling the Pearce-HUD investigation. At the time, I was with Morgan, Lewis & Bockius, a 700-person law firm, and we represented at least one of the potential subjects. The conflict kept me from accepting. I thought there would never be another opportunity. The independent counsel statute, which had a five-year sunset period, was to expire on December 15, 1992, and at the time seemed unlikely to be re-enacted.
But the statute was re-enacted on June 30, 1994, [FN144] and shortly thereafter one of the federal district judges in the Central District of California called to tell me that he had submitted my name to the Special Division. He said that, if I was interested, I should send the Special Division a copy of my current resume, which I did. On August 8, 1994, the Attorney General filed her application for appointment of an independent counsel in the Espy matter, and after an interview, I was appointed independent counsel a month later.
At the time I accepted the position, I had read the most-recently-amended version of the Act; had some passing familiarity with the prosecution of Messrs. Deaver, Nofziger, North, and Poindexter; recalled (in the most general sense of the word) various press criticisms of Independent Counsels Seymour and Walsh; and re-read the Supreme Court's decision in Morrison v. Olson. [FN145] Within days after my appointment, I realized there was a lot more to this job than just fairly and expeditiously conducting a criminal investigation. With no institutional memory upon which to rely, I lacked an appreciation for the full extent of duties before me and was woefully ignorant of the tactics that opponents of independent counsel investigations employ.
III. PROBLEMS UNIQUE TO THE INDEPENDENT COUNSEL
The Act's command that the person appointed as independent counsel have "appropriate experience" in investigations and prosecutions ensures that the appointee will have federal prosecutorial experience either in the DOJ or one of its United States Attorney offices. However, these experienced prosecutors probably won't realize that, while they have all the prosecutorial powers of a United States Attorney, from the outset of their investigation they are effectively denied some of the most effective public corruption investigative techniques. Most appointees can not begin to understand that their duties in preparing and publishing a final report and evaluating attorneys' fees applications may well extend their tenure in office by a third. Few will have a sense of the constitutional precepts that gird the Act and create a series of procedural hurdles to the appointee's swift and expeditious completion of his duties. And it will be the rare appointee--if any--who will appreciate that undertaking the duties of an independent counsel will probably place him in the currents of a political maelstrom that may focus as much attention on him as it does on the subjects of his investigation.
In this Section, I'll explain how, despite the Act's attempt to depoliticize the process, constitutional constraints created a unique series of obstacles in the pre-and post-indictment phases. Some of these obstacles are unintended consequences or "accidents" of the Act; others are wholly manufactured by the targets of the investigations. Whether real or imagined, these obstacles are targets for a variety of criticisms from the subject of the investigation and his political allies.
A. NOT JUST ANOTHER FEDERAL PROSECUTOR
The independent counsel is not just another federal prosecutor. The job has numerous pitfalls that would not bedevil an attorney of the DOJ or a United States Attorney. This is due partly to the nature of the task he undertakes, and partly to the unique circumstances under which he is appointed and operates. Because an independent counsel is appointed to investigate and, if appropriate, prosecute a senior-level executive branch official, he is from the outset, almost by definition, conducting a political investigation. No matter how apolitical the independent counsel might have been in the past, once he is appointed the odds are that, because he is conducting a political investigation, he will become a political figure. As a political figure, he will--like it or not--most likely be caught up in the Washington political swirl. Moreover, unlike in other federal investigations, the subjects of his investigation may choose to go public in an effort to turn public opinion against the investigation and "chill" witnesses from cooperating. During the course of his investigation and long before any indictments are returned, that defense tactic will further serve to politicize and impede his investigation.
B. CONSTITUTIONAL CONSTRAINTS CONTRIBUTING TO DELAY AND EXPENSE
The variety of unique pre-indictment obstacles interfering with the independent counsel's prompt and full performance of his duties results in part from constitutional requirements that bind the Independent Counsel Act. To understand the source of the impediments, it is necessary to have some acquaintance with the constitutional principles on which the Act rests.
A bedrock principle of our republic is the constitutional requirement that each branch is separate from, and independent from, the other, and that one branch may not, without constitutional authorization, exercise powers the Constitution exclusively confers on another. Our Constitution carefully allocates the powers, duties and responsibilities of each branch of government, with Congress's powers conferred in Article I, the executive's in Article II, and the judiciary's in Article III.
The independent counsel, as we have seen, is a federal prosecutor, and principal executive branch officers are required by Article II to be appointed by the President and confirmed by the Senate. [FN146] How, then, can an independent counsel be appointed by a court? The answer is that the independent counsel is not a principal officer like the Attorney General or a United States Attorney but, rather, constitutionally-speaking, is an inferior officer. The Constitution, for purposes of appointment, divides officers into two classes-- principal officers and inferior officers--and permits Congress to vest the appointment of inferior officers in the President, the courts, or department heads. [FN147]
There is no bright line between an inferior and a principal officer. [FN148] However, the independent counsel has been deemed an inferior officer because he is a temporary officer, has very limited jurisdiction, and can only be created by request of the Attorney General. [FN149]
Because the independent counsel is an inferior officer, it is permissible for Congress to authorize the Special Division--the court specifically created--to appoint him. Courts have traditionally appointed attorneys in a variety of situations, including: to prosecute judicial contempt; as federal commissioners; as interim U.S. Attorneys; and as lawyers to represent indigent defendants. [FN150] Ancillary to this power to appoint, the Special Division may properly define the independent counsel's jurisdiction so long as the jurisdiction is demonstrably related to the Attorney General's application. [FN151]
While the Special Division has the authority to appoint this inferior officer, and to define his jurisdiction, Article III expressly limits the judicial power to "cases and controversies," [FN152] and thus prohibits the Court from directing the investigation. Instead, beyond the acts of appointment and defining jurisdiction, the Special Division is limited to what the Supreme Court has described as passive or essentially ministerial duties, such as granting the Attorney General extensions of time for her preliminary investigation; receiving reports of the Attorney General at the conclusion of her preliminary investigation; granting the Attorney General's requests to expand an existing independent counsel's jurisdiction; determining what is and what is not a related matter; determining whether to release grand jury transcripts in connection with matters it is considering; and determining entitlement to attorneys' fees. [FN153]
Finally, as the independent counsel can be fired for cause by the Attorney General, he is subordinate to her. Since the executive branch [the President through the Attorney General] is solely responsible for determining whether or not to request an independent counsel, and designates the areas of his investigation, and can fire him, the Act--given the independent counsel's limited jurisdictional mandate--does not violate the separation of powers doctrine required by the Constitution. [FN154]
These constitutional constraints required Congress to create the Office of Independent Counsel by a statute laden with congenital inefficiencies. Because his is a temporary office, the independent counsel starts at ground zero, assuming office with no staff, no infrastructure, and no institutional memory. From scratch, he must create a microcosm of the DOJ and, once operational, bring it to bear on the matters at hand following DOJ policies. Creation of the office takes time and necessarily delays the independent counsel's investigation, but the Act's requirement that the office be created after the appointment is premised on the perceived constitutional principle that the office be a temporary one.
The Attorney General, in requesting the appointment of the independent counsel, must furnish the Special Division sufficient information to enable it to select the independent counsel and define his jurisdiction, so she first needs to investigate the allegations. However, because of its concern that the Attorney General, while conducting her preliminary investigation, not directly or indirectly immunize the "covered person" and/or his confederates, Congress deprived her of compulsory process and limited her essentially to mere inquiries. The effect, however, is to alert the covered person to the fact of investigation, deny the prosecutor covert investigatory techniques, and permit the subject and his accomplices--if they are so inclined--to "arrange" their stories. The unintended result of the Attorney General's legitimate efforts has an adverse effect on the ability of the independent counsel to fully obtain the relevant facts and documents, and that impairment--at a minimum--translates into delays.
The independent counsel's limited jurisdiction quickly becomes a breeding ground for jurisdictional challenges by those called upon to provide testimony and documents to the independent counsel investigators and the grand jury. These delay the investigation. Often, in peeling the investigatory onion, new crimes are revealed by the investigation that may, in turn, spawn new jurisdictional issues. Jurisdictional disputes sometimes occur between the independent counsel, who naturally desires to fully explore the facts as is his statutory obligation, and the DOJ, which sometimes takes a more limited view of the independent counsel's mandate. When this occurs--more delay.
As the independent counsel is temporary, so, too, are his experienced prosecutors and investigators, who are the core of his investigation and prosecutions. Each has a place to which to return after his "temporary" tour of duty, and each--because of professional and/or personal commitments--has only a finite availability to continue with the investigation. Significant delays, whether in the investigation or trial, can prevent their continued participation. Departure of these core group members, aside from causing loss of major sources of "institutional knowledge," requires locating adequate replacements. Constantly replacing key personnel is not only highly inefficient and very costly, but also detrimental to the investigation and prosecutorial efforts. Thus, the constitutional requirements that demand a statute with hurdles necessarily cause unintended delays that prolong the independent counsel's investigation; these hurdles are not encountered by his DOJ counterpart, but are endemic to independent counsel investigations.
C. PRE-INDICTMENT OBSTACLES
Upon taking the oath to faithfully discharge the duties of the office, the Act places the independent counsel under an obligation to proceed in a "prompt, responsible, and cost-effective manner ... without undue delay." [FN155]
The independent counsel's usual focus is on suspected public corruption at the highest levels of government, very often involving complex factual patterns. The statute of limitations for most of these offenses is five years. [FN156] But that is just the outer limit to discover, investigate, and indict the charges. It does not include time to get the case to trial, try it, and resolve appeals--three separate and equally time-consuming efforts. Also not included is the time for the independent counsel to prepare and publish the final report, or the Special Division's resolution of attorneys' fees, and objections and comments of persons to the final report, which can consume years of effort. Those substantial and additional obstacles encountered by the independent counsel in the investigative and trial stages, and not by his DOJ counterpart, contribute substantially to the length and concomitant costs of his investigation. The costs of any federal investigation have a direct relation to its length--the longer the investigation the greater the costs. The many critics of the independent counsel most frequently complain of two things: length of time and cost. These criticisms are the quintessential sound-bite because they can be shouted and depicted in well under the fourteen- second time limit. Yet, few understand--and the public has not the foggiest notion--that the Act is the source of at least a significant portion of the delays and some substantial portions of the costs. For ease of discussion, these are broken into pre-indictment and post-indictment obstacles.
1. The Independent Counsel Starts at Ground Zero
Unlike an incoming United States Attorney or a DOJ official who steps into an existing office complete with office space, staff, telephones, agents, attorneys, and all the trappings of a functioning office, the independent counsel, after being sworn in, starts with nothing. He has only the piece of paper evidencing the Special Division's appointment and his jurisdiction. He has no copy machine, no office, no staff, no lawyers, no agents, no books, no computers--not even a telephone. While the 1994 amendments to the statute obligate General Services Administration to "promptly provide appropriate office space for the independent counsel," [FN157] that is easier said than done. If my experience is any guide, the newly-appointed independent counsel will be provided "temporary" space--a closet in the basement of the Thurgood Marshall building--from which to begin the process of recruiting staff.
A potential new hire's first question usually is: "How long will I be working on this investigation?" Response: "I don't know." The second question is: "Where will it be housed?" Response: "I don't know." The third question is: "When will you know?" Response: "I'm not sure."
Despite their unknown durations and destinations, independent counsel investigations have attracted tremendously talented, able, and experienced staff and lawyers from private practice, the U.S. Attorneys' Offices, and the DOJ. Generally speaking, the pay scale is that set for comparable positions at the U.S. Attorney's Office in the District of Columbia. [FN158] The independent counsels select agents from among volunteers at the Federal Bureau of Investigation and other federal investigative agencies. Agents have been furnished to the Espy investigation from the FBI, the Office of the Inspector General of the Department of Agriculture, the Securities and Exchange Commission, the Customs Bureau, and the Internal Revenue Service.
Starting from ground zero, it generally takes anywhere from eight to twelve months before the organization is integrated fully and adequately equipped to function efficiently. In other words, the better part of the first year of an independent counsel's tenure is burdened with efforts to create a functioning investigative and legal office from scratch.
2. Independent Counsel Begins with Subject on Full Alert
While the independent counsel has the full power and authority to exercise all the investigatory tools and prosecutorial techniques of the DOJ (save for wiretap authority), [FN159] the independent counsel is denied his most important investigative tool--secrecy. If the Attorney General's initial inquiry to determine whether specific and credible evidence exists to conduct a preliminary investigation of a covered person's alleged misconduct doesn't serve to alert the covered person, that is, the subject, to the fact he is under investigation, certainly the preliminary investigation conducted thereafter will. In due course, the subject will be questioned about his version of the events, as will his associates who may have some involvement. The net result is that the subject is well aware his conduct is under scrutiny.
Alerting the subject to the fact he is under investigation deprives the independent counsel of secrecy--a most critical element of the investigation. Secrecy is a very necessary component of public corruption investigations and DOJ career prosecutors are taught that the most effective "investigative technique to attack government contract corruption is the covert or undercover investigation ...." [FN160] The successful corruption prosecutor conducts his investigation carefully and quietly and avoids cursory questioning of witnesses and incomplete document searches, which interfere with and impede his investigations and "result in disclosure to a defendant of sensitive investigative information ... the loss or destruction of valuable evidence, and the necessity for additional investigative work to accomplish what should have been done previously." [FN161]
A corruption investigation that goes overt too early "often lead[s] to lost opportunities or mistakes" and "documents that are not obtained before a corruption investigation goes overt have a tendency to disappear or be altered." [FN162]
Contrast those concerns with the Attorney General's "limited preliminary investigation." The proscriptions of the statute preclude her from meaningfully developing the facts, since she is specifically denied use of the basic prosecutorial tools necessary for thorough investigation. She is statutorily forbidden "to convene Grand Juries, plea bargain, grant immunity, or issue subpoenas." [FN163] Her "limited preliminary investigation" does indeed walk all over the supposed crime scene, leaving indelible footprints. At a minimum, she has alerted the subjects as to the source of the investigation, and toward whom it is heading. This alert causes them and others to "lawyer up," with the inevitable exchange of information among lawyers and their clients concerning whose client remembers what, whose client cannot recall what, and whose client believes he was absent that day. Those footprints portend a variety of mischief for the subsequently-appointed independent counsel, who first visits the scene months, or even years, after the events. [FN164]
The Attorney General's preliminary investigation has deprived the independent counsel, before he is ever appointed, of two of the three "basic investigative techniques" requisite to a successful public corruption investigation: flipping insiders; use of undercover agents; and employing surveillance equipment. [FN165] Alerting the subject to the fact of the investigation effectively precludes the independent counsel from using investigative undercover agents or surveillance equipment. With the subject on full alert and in contact with his colleagues, the third investigative technique of "flipping" an insider is a dubious proposition, at best.
In sum, DOJ investigative procedures and techniques essential to public corruption investigations are denied to the independent counsel from the "get- go." An independent counsel's investigation, from its commencement, is overt and the subject has most probably been hastily interviewed by an Attorney General whose knowledge of the facts was, at best, minimal. The lost opportunities and mistakes cautioned against by the DOJ abound in the preliminary investigation, and key documents disappear before the independent counsel is even designated.
3. The Independent Counsel's Recurring Jurisdictional Issues
The independent counsel's jurisdiction can and often is broadened as an investigation proceeds, thus offering additional opportunities for jurisdictional challenges and concomitant delays. A criminal investigation-- particularly a white-collar criminal investigation--has often been compared to peeling an onion. As the investigation unfolds, it can reveal several different varieties and levels of related criminal conduct by persons who, at the inception of the investigation, were seemingly not implicated. As an independent counsel's investigation progresses, focusing on the subject matter of the jurisdictional grant and "all related matters," new and sometimes unanticipated crimes surface. This was anticipated by the authors of the Act [FN166] and the Act provides the Special Division can then, at the Attorney General's request, expand the original grant of an independent counsel's jurisdiction to include new matters unrelated to the independent counsel's original jurisdictional grant. [FN167]
Expansion of the independent counsel's jurisdiction can only occur if the Attorney General requests it. The Special Division has the authority to refer a matter to the independent counsel if the matter is related to his jurisdiction--even over the Attorney General's objection--if the independent counsel requests it. [FN168]
a. Expanding jurisdiction and referral of related matters. When an independent counsel discovers information about a "covered" person not within his subject matter jurisdiction, the independent counsel submits the information to the Attorney General who, after conducting a preliminary investigation and giving "great weight" to the independent counsel's recommendations, may decide to expand the independent counsel's jurisdiction to include that person. [FN169] If the Attorney General determines not to expand the jurisdiction, that ends the matter, as her decision not to expand jurisdiction is nonreviewable. [FN170]
The statute also provides that the independent counsel may request either the Attorney General or the Special Division of the court to refer "matters related to the independent counsel's prosecutorial jurisdiction" [FN171]--and either may refer such matters. The statute understandably does not define "related matters," since the boundaries of his jurisdiction are of necessity indistinct: [a]s reflected in the structure of the Act, the precise allocation of responsibility ... cannot be chiseled in stone at the commencement of the [independent counsel's] tenure.... The scope of [an independent counsel's] investigatory jurisdiction can be both wide in perimeter and fuzzy at the borders. [FN172]
For the same reasons, a determination of whether a given matter is related to an independent counsel's jurisdiction is not subject to a precise formula, but instead must be a functional determination of whether a referral will satisfy the purposes for which Congress created the referral power. The term "related," as one court observed, is "undefined and without parameters," and "Congress did not indicate the degree of consanguinity between matters that should be evident before jurisdiction may be properly asserted by the [independent counsel]." [FN173] Effective criminal prosecution necessarily requires the prosecutor to be able to pursue all relevant issues, leads, and persons.
Jurisdictional challenges (particularly at the grand jury level) can frequently cause substantial delays. It is therefore important that the independent counsel proceed on a firm jurisdictional base to minimize grand jury challenges. When the independent counsel is investigating matters beyond his core jurisdiction, he may seek as a prophylactic measure to have either the Attorney General or the Special Division refer these areas to him as related matters. When disagreements occur between the independent counsel and the DOJ over what is or is not a "related matter," the independent counsel may seek referral from the Special Division before indicting. This, of course, will result in delay while the matter is briefed, argued, and ultimately adjudicated by the Special Division.
b. The subject's primer for jurisdictional challenges. Recall that when the independent counsel's identity becomes public, his jurisdictional grant, which is part of his appointment, is also made public. Independent counsel are prosecutors operating within specific subject-matter areas, often limited to single or relatively few matters. The uncooperative witness and his counsel are quick to assert that an independent counsel is operating beyond his authorized mandate when |
