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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                                                                                              2309



  I.          SOME RELEVANT HISTORY                                                           2310
              A. THE DAWN OF THE NEW AGE                                                  2310
              B. THE FIRST CENTURY OF SPECIAL PROSECUTORS              2311
                 1. President Grant's Special Prosecutor                                              2311
                 2. President Garfield's Special Prosecutor                                          2313
                 3. President Theodore Roosevelt's Special Prosecutors                      2313
                 4. President Coolidge's Special Prosecutors                                       2314
                 5. President Truman's Special Prosecutor                                           2316
                 6. The Watergate Watershed                                                             2317
              C. THE TWO POST-1978 SPECIAL PROSECUTORS
                   OUTSIDE THE INDEPENDENT COUNSEL ACT                      2320
                 1. President Carter's Special Prosecutor                                            2320
                 2. President Clinton's Special Prosecutor                                           2320
              D. INDEPENDENT COUNSELS UNDER THE ACT                       2322
              E. SOME LESSONS FROM HISTORY                                            2325

II.         THE NUTS AND BOLTS OF THE INDEPENDENT
              COUNSEL ACT                                                                                 2327
              A. TRIGGERING THE ACT                                                               2328
              B. THE SPECIAL DIVISION'S SELECTION AND
                   APPOINTMENT OF AN INDEPENDENT COUNSEL               2329
                 1. The Attorney General's Application                                                2330
                 2. The Statutory Command to Fully Investigate the Matter
                     and All Related Matters                                                                 2330
                 3. The Authority of the Independent Counsel                                      2330
                 4. The Selection of the Independent Counsel                                      2331

III.         PROBLEMS UNIQUE TO THE INDEPENDENT
              COUNSEL                                                                                          2332
              A. NOT JUST ANOTHER FEDERAL PROSECUTOR                      2333
              B. CONSTITUTIONAL CONSTRAINTS
                   CONTRIBUTING TO DELAY AND EXPENSE                           2333
              C. PRE-INDICTMENT OBSTACLES                                                2336
                 1. The Independent Counsel Starts at Ground Zero                             2337
                 2. Independent Counsel Begins with Subject on Full Alert                   2338
                 3. The Independent Counsel's Recurring Jurisdictional
                      Issues                                                                                            2339
                    a. Expanding jurisdiction and referral of related
                        matters                                                                                        2340
                    b. The subject's primer for jurisdictional challenges                           2341
                    c. Never-ending jurisdictional challenges                                          2344
                 4. The Extraordinary Number of False Statements in
                      Independent Counsel Investigations                                               2346
              D. POST-INDICTMENT OBSTACLES                                             2347
                 1. Even More Jurisdictional Challenges                                               2348
                 2. Delays From Lawyer, Agent, and Staff Turnover                            2348
                 3. The Final Report and Attorneys' Fees Process                               2349
              E. DISCREDITING THE PROSECUTOR AS A MEANS
                   OF DEFEATING THE INVESTIGATION                                    2351
                 1. The Independent Counsel's Inability to Respond to
                     Accusations of Investigatory Misconduct                                        2352
                 2. Grand Jury Secrecy Prohibits the Prosecutor's
                     Response                                                                                      2353
                 3. DOJ Policy Constrains the Prosecutor's Response                         2355
                 4. From Politicalization to Demonization of the
                     Independent Counsel                                                                     2356
                    a. The forces set in motion                                                              2356
                    b. The attacks against the Whitewater investigation                          2359
                    c. The attacks against the Espy investigation                                    2361

IV.       VINDICATION OF THE INDEPENDENT COUNSEL                      2363
              A. WHY INDEPENDENT COUNSEL INVESTIGATIONS
                   ARE EXPENSIVE                                                                         2364
              B. WHY THE INDEPENDENT COUNSEL IS
                   ACCOUNTABLE                                                                          2366
              C. WHY THE INDEPENDENT COUNSEL IS WORTH
                   KEEPING                                                                                      2368
                 1. The Espy Matter Required an Independent Counsel                       2371

CONCLUSION                                                                                                2374

 

 

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.




YEAR

PRESIDENT

ISSUE

INVESTIGATED

SPECIAL

PROSECUTIONS

1875

Ulysses S. Grant Whiskey Ring John Hendereson*

1881

James Garfield Star Route Frauds William A. Cook

1903

Theodore Roosevelt Post Office Scandals Holmes Conrad

Charles J. Bonaparte

1905

Theodore Roosevelt Land Fraud Francis J. Heney

1924

Calvin Coolidge Teapot Dome Atlee Pomerene

Owen Roberts

1951

Harry S. Truman Tax Scandals Newbold Morris*

1973

Richard Nixon Watergate Archibald Cox*

Leon Jaworski

1979

Jimmy Carter Carter Peanut Warehouse Paul Curran

1994

Bill Clinton Whitewater Robert Fiske


*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:


DATE

PRESIDENT

ISSUE

INVESTIGATED

INDEPENDENT

COUNSEL

INDICTMENTS

1978 Jimmy Carter Hamilton Jordan-

Chief of Staff-

Drug Use

Arthur Hill Christy No
1980 Jimmy Carter Timothy Kraft-

Campaign Manager-

Drug Use

Gerald Gallinghouse No
1981

[FN93]

Ronald Reagan Ray Donovan-

Labor Secretary-

Organized Crime Connection

Leon Silverman No
1984 Ronald Reagan Edwin Meese-

Attorney General Nominee-

Multiple Accusations

Jacob Stein No
1986 Ronald Reagan Theodore Olson-

Office of Legal Counsel-

Obstruction of Justice

Alexia Morrison No
1986 Ronald Reagan Michael Deaver-

Former Chief of Staff-

Conflict of Interest

Whitney North Seymour, Jr. Yes
1986 Ronald Reagan Iran-Contra Lawrence Walsh Yes
1987 Ronald Reagan Edwin Meese-

Attorney General, and Franklyn Nofziger-

Assistant to Reagan-

Lobbying Ethics

James McKay Yes
1987 Ronald Reagan Lawrence Wallace-

Assistant Attorney General-

Income tax Evasion

James Harper No
1990 George Bush Samuel Pierce-

HUD Secretary

Arlin Adams Yes
1992 George Bush Clinton Passport Investigation Joseph diGenova No
1994 Bill Clinton Whitewater Kenneth Starr Yes
1994 Bill Clinton Mike Espy-

Agriculture Secretary

Donald Smaltz Yes
1995 Bill Clinton Henry Cisneros-

HUD Secretary

David Barrett Yes
1995 Bill Clinton Ron Brown-

Commerce Secretary

Daniel Pearson No
1996 Bill Clinton Eli Segal-

Conflict of Interest

Curtis Von Kann No
1998 Bill Clinton Bruce Babbitt-

Interior Secretary

Carol Elder Bruce To be determined
1998 Bill Clinton Alexis Herman-

Labor Secretary

Ralph Lancaster To be determined






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 whenever questions or requests for information do not fit squarely within the four corners of his jurisdictional mandate. An example of a jurisdictional challenge that is not atypical to independent counsel investigations is the jurisdictional dispute that arose in the Theodore Olson investigation by independent counsel Alexia Morrison. That case ultimately resulted in the Supreme Court's decision in Morrison v. Olson, [FN174] which held the independent counsel statute constitutional. The United States Court of Appeals for the District of Columbia Circuit had declared it unconstitutional. [FN175] A brief explanation of the jurisdictional issues will aid in understanding of how and why these jurisdictional challenges materialize and continue to plague an independent counsel investigation.


Alexia Morrison was appointed independent counsel in 1986 after Attorney General Meese filed an application for appointment of an independent counsel to investigate whether Theodore Olson, an Assistant Attorney General for the Office of Legal Counsel, lied to Congress in his congressional testimony. [FN176] Following its hearings, Congress had reported to the Attorney General that Olson; Edward C. Schmults, Deputy Attorney General; and Carol E. Dinkins, Assistant Attorney General for the Land & Natural Resources Division, had lied during their testimony. Congress requested that an independent counsel be appointed for all three. [FN177] The Attorney General after a preliminary investigation, concluded that no independent counsel was appropriate for Schmults and Dinkins, and applied for an independent counsel only for Olson "to investigate whether Olson's testimony regarding the completeness of his office's responses to the Judiciary Committee's requests ... and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress," violated federal criminal law. [FN178] His application also sought authority for the independent counsel to investigate "any other matter related to her investigation." [FN179] During the course of her investigation, independent counsel Morrison sought to have the Attorney General refer to her, as "related matters," congressional allegations that Schmults and Dinkins also lied.


The Attorney General declined the independent counsel's request to refer the Schmults and Dinkins matters as related, so Independent Counsel Morrison requested that the Special Division refer the matters to her as "related" under 594(e) of the Act. [FN180] The Special Division ruled that, since the Attorney General originally declined to refer Schmults and Dinkins to an Independent counsel, that declination was final and unreviewable under 592(b)(1), and the Court did not have the authority to make the referral. [FN181] It also ruled, however, that her original jurisdiction was broad enough to permit inquiry whether Olson may have conspired with Schmults and Dinkins. [FN182] Taking her cue from the Special Division, Independent Counsel Morrison then issued grand jury subpoenas to each of the three, who subsequently moved to quash, asserting inter alia that the Independent Counsel Act was unconstitutional. [FN183]


The District Court, upholding the validity of the grand jury subpoenas, denied the motions to quash and a divided United States Court of Appeals for the District of Columbia Circuit reversed. [FN184] The Supreme Court, in turn, upheld the constitutionality of the Act, thus reversing the court of appeals. [FN185] Naturally, in the process of these various appeals and arguments, the issues of an independent counsel's limited jurisdiction received a thorough vetting. This, in turn, spawned a new defense specialty: challenging an independent counsel's jurisdiction.


This jurisdictional controversy not only occupied the attention of the courts, but it also spurred Congress, in 1987, into amending the Independent Counsel Act to specifically provide that an independent counsel could seek "referral of a related matter" from either the Special Division or the Attorney General. If in fact the independent counsel was seeking an "expansion" of his jurisdiction rather than a "referral," then the expansion could only be granted by the Attorney General. [FN186]


Thus, at least since the effective dates of those amendments in 1987, an independent counsel could go directly to the Special Division for a referral of related matters, and was not required to seek the DOJ's authorization or approval. [FN187] While the statute does not define "related," it has been held that "relatedness for purposes of referral under 594(e) depends upon the procedural and factual link between the independent counsel's original prosecutorial jurisdiction and the matter sought to be referred." [FN188] The Special Division, in ruling on a request from our office for a referral of a related matter, held:

[i]n referring a related matter, this court is interpreting, but not expanding, the independent counsel's original prosecutorial jurisdiction, thus permitting the court to make explicit the independent counsel's jurisdiction over a matter that was implicitly included in the original grant of prosecutorial jurisdiction. [FN189]


The broad reach of the Special Division's and the Attorney General's referral powers can be gleaned from examining Independent Counsel Starr's acquisition of jurisdiction over allegations of criminal misconduct concerning then-Associate Attorney General Webster L. Hubbell, the third ranking official in the Justice Department in 1994. On August 5, 1994, the Special Division had appointed Judge Starr independent counsel to investigate whether President and Mrs. Clinton and various other individuals violated any federal statutes in connection with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, and Capital Management. [FN190] Starr's jurisdictional grant included an omnibus clause authorizing him to investigate other allegations of federal criminal conduct by any other person that were developed in his investigation and connected with or arising out of his investigation. [FN191] Less than a month after his appointment, Judge Starr requested that the Special Division refer him Hubbell as a related matter under 594(e) to investigate whether Hubbell, [FN192] "violated any federal criminal law ... in his billing or expense practices by a member of the Rose law firm." [FN193] Hubbell's billing practices had seemingly little, if anything, to do with Madison Guaranty S&L, Whitewater Development Corp., or Capital Management. The Special Division nevertheless granted the request and referred the matter to Starr as a related matter, apparently on the basis of the omnibus clause in his jurisdictional grant. Since the DOJ had proposed this broad omnibus provision in its application for appointment of an Independent Counsel, it could hardly complain that Starr relied on its literal breadth to reach a covered person who had committed violations of federal law unrelated to Whitewater.


At about the same time, Judge Starr also solicited the Attorney General to refer as a related matter jurisdiction over whether federal crimes were committed by any person in a Chapter 11 bankruptcy action in Texas bankruptcy court. While the Attorney General honored his request and referred this matter to him, subsequently, "out of an abundance of caution," Starr sought and obtained a parallel referral order from the Special Division for this same matter. [FN194] Notwithstanding this double-barreled referral of the related matter--from both the Attorney General and the Special Division--the trial judge dismissed the indictment, concluding that the independent counsel had no jurisdiction to prosecute the Governor of Arkansas, his Little Rock lawyer, and his San Francisco business partner--none of whom were federal officials. The court of appeals promptly reversed and noted that, arguably, given the breadth of the omnibus clause, "the prosecutions at issue fall within the broad grant of original prosecutorial jurisdiction without a referral even being necessary." [FN195] It also ordered the case reassigned to a different trial judge. The appellate proceedings delayed the case well over a year before it was returned to the district court. [FN196]


Given the broad interpretation the DOJ afforded the "related matter" provision of 594(e) in not objecting to the Hubbell law firm billings matters being assigned to Judge Starr, and in referring as related the Texas bankruptcy matter to Judge Starr, it was difficult to comprehend their opposition to my efforts to obtain a referral from the Special Division over Secretary of Agriculture Espy's Chief of Staff, Ronald Blackley. [FN197]


c. Never-ending jurisdictional challenges. Another factor contributing to the delay of independent counsel investigations, absent from most DOJ prosecutions, is that persons resisting an independent counsel investigation see the question of the independent counsel's grand jury jurisdiction as a productive avenue for delaying tactics. DOJ investigations are rarely resisted on jurisdictional bases at the grand jury level. That is because it has been a long-standing principle that subpoenaed grand jury witnesses are not entitled to "take exception to the grand jury or the court over the particular subject matter that is under investigation ... [as] the court and grand jury have authority and jurisdiction to investigate the facts in order to determine the question whether the facts show a case within their jurisdiction." [FN198] More recently, the Supreme Court observed that "the law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority." [FN199] However, the teachings of the Supreme Court on this subject seem to evaporate in independent counsel investigations, since these investigations are frequently challenged on the basis that the independent counsel has exceeded the scope of his jurisdictional grant--no matter how broad or narrow that grant may be. [FN200] These repeated challenges bring new resonance to the Supreme Court's long-standing and continual concerns that the grand jury not become enmeshed in a series of jurisdictional and evidentiary squabbles because that "would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws." [FN201] Where the challenge is to a grand jury subpoena duces tecum, the documents are not produced until that challenge is resolved. Where the ruling is not made promptly, but lengthens into weeks or months, the ability to conduct an orderly and deliberate examination is destroyed. Without the documents, witness interviews are delayed. Agents and lawyers assigned to review the subpoenaed materials, who were anticipating their immediate receipt, now must turn their attention and efforts elsewhere. When, after court order, the documents are ultimately obtained, those agents who had the learning curve on this area may have been reassigned to some other project and have become unavailable. [FN202] Now, new agents and lawyers may have to be assigned to start from ground zero.


As the Special Division noted in a published decision, [FN203] in the space of about fourteen months, the jurisdiction of my office in grand jury matters had been tested by forty-three jurisdictional motions. Since then, and through today, the challenges continue and number far beyond the forty-three mentioned by the court. Given the volume of such motions filed in the investigatory phase of an independent counsel's activities, it is not at all surprising that the district courts have experienced delays in deciding pending motions concerning the grand jury's investigation. The delays in the Espy matter have averaged around fifteen weeks and have had an adverse impact on the momentum of our investigation.


4. The Extraordinary Number of False Statements in

Independent Counsel Investigations


Other factors that contribute to the length of independent counsel investigations that apparently are not encountered to the same extent in DOJ investigations are lying, perjury, and plain old obstruction of justice, which might collectively be called "false statements." If, as it is sometimes said, conspiracy charges are the "darling of the modern prosecutor's nursery," [FN204] for independent counsel investigations "false statement" charges also occupy a most-favored cradle.


When federal agents question a witness, the witness has only two choices: answer the question truthfully, or decline to answer. Lying is not an option and, if the witness lies, he can, and should, be prosecuted. The false statement statute is relatively straightforward. It provides, in essence: "whoever ... knowingly and wilfully ... makes any materially false ... statement" to a federal investigator is guilty of a felony. [FN205]


The regularity and frequency with which these charges appear (more than one- third of all independent counsel prosecutions have been for false statements, perjury, and obstruction) is not attributable to ease of proof. Quite the contrary. This crime is difficult to prove because, usually, it is just the word of the investigator against the word of the defendant--usually a person who is well-educated, erudite, and without apparent criminal blemish--who was lying to the investigator in the hope he could steer the investigation away from himself, or his boss, or his friend.


Lying not only misleads the investigation, it impedes and delays ongoing investigations. In a case we tried in New Orleans entitled United States v. Ferrouillet, [FN206] we were able to quantify the delay caused by the defendant's lies. It was eight months.


Alvarez Ferrouillet was a New Orleans lawyer who had managed the efforts to retire the campaign debt of Henry Espy, the former Secretary of Agriculture's brother. Our investigators approached him about six months into our investigation to inquire about the source of $20,000 cash that had been deposited in the Henry Espy campaign debt retirement account. Ferrouillet told our investigators about some fundraisers he held, and said the cash came from various individuals who gave varying amounts of cash--between $250 and $500. He gave us a list of forty-six names and amounts. At that moment we had no reason to disbelieve Ferrouillet, so we accepted his explanation and turned our attention elsewhere. It was not until eight months later, after a considerable amount of effort looking into dry holes, that we learned the true source of the $20,000 cash--a $20,000 check from Crop Growers Insurance Corp., a Montana- based company with matters before the United States Department of Agriculture, paid to Ferrouillet, and falsely recorded as a legal retainer. That "retainer" check did not appear on the law firm's books. Neither Ferrouillet nor his firm ever performed any legal services for Crop Growers Insurance Corporation. Ferrouillet cashed this check at a grocery store in Algiers, Louisiana (which did not file a Currency Transaction Report--the legally required form for large cash transactions), then slipped the money into the campaign account in three separate cash deposits. Ferrouillet and Crop Growers' Chairman John Hemmingson were convicted of taking the $20,000 by fraud and of money laundering. [FN207] We also convicted Ferrouillet of making false statements to our investigators concerning the source of the cash. [FN208]


The career prosecutors and agents in my office, including those acting in an advisory capacity, are uniformly of the belief that there is more lying, perjury, and obstructive behavior in the investigative stage of independent counsel cases than in ordinary white collar cases. One can only speculate as to the reasons, but one explanation might be that independent counsel investigations depend on witnesses whose entire existence revolves around the swirl of politics--an environment where it is far too acceptable to put a glib, self-serving spin on responses to critical inquiry than to simply tell the truth. Whatever the reason, the lies translate to more delay, more false trails, and greater investigative effort and time.


D. POST-INDICTMENT OBSTACLES


Up through this point, I have discussed delays at the investigative stage. If indictments occur, a whole new series of delays might arise. Foes of the independent counsel continue to exert pressure, but the tenor and forum of the debate changes: subjects of the investigation and prosecutions continue to challenge the independent counsel's efforts but wage their battles in public court proceedings as well as in the media. Once an indictment is returned, there is little that either a DOJ attorney or an independent counsel can do beyond requesting as early a trial date as the court's calendar permits. The prosecutor is captive to the court's calendar, and the court is usually deferential to defense counsels' requests. Finally, the practical burdens of maintaining a functioning office, and then of closing it out in accordance with the requirements of the Act, are further cause for delay.


1. Even More Jurisdictional Challenges


The indictment presents a whole new opportunity for testing the independent counsel's jurisdiction, a tactic unheard of in an ordinary prosecution by the DOJ or a United States Attorney. Virtually every indictment my office has brought has resulted in a motion to challenge jurisdiction, not one of them successful. [FN209] Indeed, although the core subject matter of my jurisdiction is the allegation that former Secretary Espy accepted things of value, he did not hesitate to bring a motion challenging my jurisdiction when he was indicted for receiving gratuities. [FN210]


It is the rare white-collar case indeed that meets the Speedy Trial Act's command for a trial commencing within seventy days of arraignment. [FN211] Setting of the trial date is delayed at defense counsel's request because of his stated intention to file numerous dispositive motions. The trial court needs time to consider and decide these matters, and that means more delay.


If a prosecutor is ready to go to trial, the elapsed time from indictment to judgment is beyond his control. It is, however, only in independent counsel matters that the responsibility for delay is cast at the feet of the prosecutor. His DOJ counterpart is seldom, if ever, criticized for a prosecution that "takes too long."


2. Delays From Lawyer, Agent, and Staff Turnover


Delays in the trials exact another toll from the independent counsel that the DOJ does not pay. Since the office of the independent counsel is a temporary one, its personnel are by definition also temporary. Some of the employees come from within federal service and some come from without. Virtually all the attorneys and investigative agents working on these cases have plans to return somewhere, and their desire is to return sooner rather than later. Consequently, if a case isn't tried expeditiously, or if the investigation gets stalled, there is likely to be turnover in personnel, rendering the prosecution not only highly inefficient but significantly more costly. Sometimes the trial court's postponement of trial results in the independent counsel's trial team being disbanded.


Restaffing the trial team requires redundancy of effort, which adds to the mounting expense. I will give you one example. In one case, we obtained an indictment on October 18, 1996. Despite our repeated requests for an early trial, the first trial date the court set was September 16, 1997, and the trial did not actually start until October 28, 1997. In the meantime, at a pretrial hearing in April 1997, the court, on motion of the defendant, dismissed the two false statement counts, concluding that the defendant's extended false explanations fell within the "exculpatory no" doctrine in the Ninth Circuit. The court also severed the remaining seventeen counts into two parts, each requiring a separate trial.


Because of these trial delays in the intervening 375 days, I had to recast the trial team on three different occasions. The third team was almost disbanded because two different U.S. Attorneys from two different jurisdictions who consented to the detailing of their assistants to my office wanted them back in October, 1997, as I had promised. If that weren't bad enough, the trial judge, who had set the severed case to commence immediately after the first trial, had a change of heart after the first trial was complete and ultimately set the second trial to commence five months following the conclusion of the first trial. This five-month delay naturally resulted in a need to reconstitute the trial team a fourth time. Thus, the trial of the second half of the indictment was not scheduled to commence until more than 500 days after the defendant was first arraigned. Approximately $400,000 of the $900,000 it cost to maintain an office and prosecute the case in San Francisco was due to the delays we experienced.


When the court permits the dates to slip, independent counsel costs increase. Be prepared, if you're the independent counsel, to be tagged with the responsibility for those costs, and do not expect anyone to understand the explanation that you have no control over the trial date or the trial court.


Just as a prosecutor is unable to control the trial date or trial's duration, the independent counsel is similarly unable to control, or even meaningfully influence, the appellate process. The number of appeals defendants file and the time for judicial decision are matters over which no prosecutor has control.


However, the independent counsel is somehow charged with responsibility for that time. This is a double whammy, because the independent counsel cannot prepare and release his final report until all the appeals are resolved, and release of the final report can be a complicated and time- consuming process.


3. The Final Report and Attorneys' Fees Process


The final report process adds another eight months to two years to independent counsel matters, commencing only after all of the investigation, trials, and appeals are concluded. I describe it as a process, because the independent counsel's statutory obligation to prepare a "final" report setting forth fully and completely a description of the work, including the disposition of all cases brought, entails far more than just putting a description of his activities into writing. [FN212] This unique and lengthy process again reflects the extraordinary character of the independent counsel investigation as a means of assuring the public that the government is effectively policing itself.


The Special Division is charged with reviewing that report and identifying and contacting those individuals who should have the opportunity to comment. [FN213] To facilitate this process, the independent counsel must divide the report up by witness and indicate who needs to review it--basically, anyone who is mentioned in a substantive way--and provide their addresses and telephone numbers. The Special Division, after its review, then notifies everyone entitled to review the report and allows them the opportunity to do so and to present comments. After such comment, the independent counsel can then move the Special Division to revise the report--now in final, final form--and gives it to the Government Printing Office. After printing, the report is released to the public. [FN214]


But the independent counsel's duties still do not end. After the final report is published and released, parties who were subjects of the investigation and not indicted may apply for reimbursement of any reasonable attorneys' fees they incurred which would not have been incurred "but for the appointment of an independent counsel." [FN215] The word "subject" is not defined in the Act, and has been interpreted by the Special Division to mean one whose "conduct was within the scope of the grand jury investigation" and who reasonably believes there was "a realistic possibility" he would be indicted. [FN216] The requirement that the attorneys' fees would not have been incurred but for the appointment of the independent counsel requires the fee applicant to show that the investigation "subjected him to different standards of the criminal law than applied to private citizens." [FN217] To put it another way, if the applicant "would have been similarly investigated and prosecuted in the absence of the Ethics in Government Act,"he does meet the "but for" test. [FN218] Applicants are given thirty days to file applications which, when filed with the Court, are served on the independent counsel and on the Attorney General, who separately consider, evaluate, and report their respective findings to the Court within ninety days. [FN219] Eventually, the issue of attorneys' fees is resolved by the Special Division. [FN220] That this can be a heavily litigated issue is illustrated by the more than forty reported decisions on these claims.


Finally, the independent counsel must package and transfer the office's records to the Archives of the United States. [FN221] Only then can the office be closed.


By now I hope I have made clear that the twin criticisms of the independent counsel are pregnant with condemnation but shot on specifics. The investigation and prosecutions are "too long" and "too expensive"--compared to what? Which of the various required functions of an independent counsel take too long to perform--the investigation or the prosecutions? The only bases for comparison are similar governmental entities performing similar governmental functions, such as the DOJ. Should the independent counsel be blamed for delays caused by the witnesses' stonewalling in the investigative stage? Should he be accountable for judges' failure to resolve legal issues and set trials promptly? For the cumbersome start-up costs and close-out procedures required by the statute? Each of the separately designated responsibilities of the independent counsel involves not only the independent counsel but witnesses and subjects and defendants and their lawyers, not to mention the courts.


E. DISCREDITING THE PROSECUTOR AS A MEANS

OF DEFEATING THE INVESTIGATION


If history is any guide, an independent counsel who brings any criminal prosecutions can expect lots of adverse media coverage throughout the investigative phase. Early criticisms were aimed at the law establishing a special prosecutor rather than the prosecutors themselves. The first two special prosecutors, Arthur Christy and Gerald Gallinghouse, received almost no criticism for their handling of cases, in which ultimately they did not bring indictments. Likewise, little criticism greeted Leon Silverman for his two investigations of Reagan Labor Secretary Raymond Donovan or Jacob Stein for his investigation of Attorney General Edwin Meese. Again, neither of these independent counsels brought charges against the officials they were investigating. A second Meese investigation, this one conducted by James McKay, was mildly criticized because of a comment in his final report. While McKay did not indict Meese, he reported that a jury might well have convicted him for ethics violations, a charge Meese and some prosecutors found objectionable. [FN222]


Through the mid-1980s, criticism and debate primarily focused on the constitutionality of the independent counsel statute. [FN223] That changed, however, in the months immediately preceding the indictment of Michael Deaver.


In spring 1987, claiming the administration was fighting for the constitutional principle of separation of powers, and that all federal prosecutors must be accountable to the President, the Justice Department launched a concerted campaign against three of the independent counsels investigating Reagan officials. Assistant Attorney General John Bolton wrote Senator Carl Levin (D-Mich.) accusing Seymour of serving the Canadian ambassador with a subpoena in the Deaver case "in defiance of the most basic principles of diplomatic immunity and over the protests of the State Department." He also accused Alexia Morrison of "unconscionable delay" in her investigation of former Reagan Justice Department official Theodore Olson. [FN224] Citing the expenses incurred by the independent counsels, Bolton later told reporters, "These independent counsels, as presently operating, are utterly without supervision .... Nothing is too trivial for these people to investigate. And the proof of that lies in what we already know about their expenditures." [FN225] Bolton's assault was reportedly coordinated by White House counsel A.B. Culvahouse and White House budget managers. [FN226] Senator Levin's response was that "the Justice Department wanted to return to the days of the Nixon 'Saturday Night Massacre."' [FN227]


Every one of the six independent counsels who instituted criminal proceedings to date found himself pilloried by the media--including Whitney North Seymour, Jr., [FN228] for the prosecution and conviction of Michael Deaver; Judge Lawrence Walsh [FN229] for the prosecutions he brought in the Iran-Contra matter; James McKay [FN230] for his prosecution of Lynn Nofziger; Judge Arlin Adams for the prosecutions he brought in the Pearce-HUD matter; former Solicitor General Ken Starr [FN231] for his Whitewater prosecutions; Dave Barrett [FN232] for the prosecutions he brought in the Cisneros matter; and myself, [FN233] for the prosecutions brought in the Espy matter.


1. The Independent Counsel's Inability to Respond to

Accusations of Investigatory Misconduct


Soon after the initial report of alleged wrongdoing surfaces in the press, the target of the investigation not only begins to plan his legal strategy, but also mounts an aggressive public relations campaign. Plans may be put into motion as soon as the Attorney General begins her preliminary investigation, and are well under way by the time the independent counsel begins his own investigation. Lawyers join forces with public relations advisors. The subject's surrogates pepper the media with statements such as: "there was no intent to violate the law," "the law is too old," "the law has never been enforced," "he was only being treated as family," "there is no controlling legal authority," "this is a witch hunt," and so forth. As inquiries proceed, the various surrogates are dispatched to spin facts and vilify those investigating the cases.


The independent counsel, like any federal prosecutor, is in no position to refute or even comment on these various assertions since his investigation has barely begun, and the facts and controlling legal principles await development and determination. His lack of specific and relevant information--totally aside from any other restraints (two of which are noted below)--prevent any response to these claims.


Once the investigation is in gear, other legal principles emerge that preclude any comment. One principle is the absolute requirement of grand jury secrecy. Federal grand juries operate in two separate but related capacities. The first is that the Fifth Amendment to the Constitution specifically requires that a defendant charged with a felony in federal court is required to be indicted by a grand jury. [FN234] This indictment process is the first function of a grand jury and is sometimes referred to as the "accusatory" function of the grand jury. The second function is its investigative function-- determining the facts and circumstances surrounding allegations of criminal conduct. In conducting its investigation, " t he function of the grand jury is to inquire into all information that might possibly bear on its investigation ... and a s a necessary consequence of its investigatory function, the grand jury paints with a broad brush." [FN235]


2. Grand Jury Secrecy Prohibits the Prosecutor's Response


The grand jury is the independent counsel's primary investigative tool. Through the grand jury, the independent counsel issues subpoenas for the testimony of witnesses and for documents. Grand jury proceedings historically have been conducted in secret, and are now required by federal rule to be conducted and maintained in secrecy. [FN236] One reason for this secrecy is to protect the subject of a grand jury investigation who is subsequently not indicted from disclosure of the fact that he was under investigation. [FN237] Accordingly, all the information the prosecutor acquires through the grand jury is required to be kept secret by all the participants--the prosecution, grand jurors, stenographers-- save one, the witness. [FN238] Only the grand jury witness is permitted to disclose to anyone she chooses what she told the grand jury. Should the independent counsel leak or otherwise breach that secrecy, he not only violates DOJ guidelines but can be prosecuted for contempt.


Ordinarily, grand jury subjects find significant comfort in the secrecy provisions of the investigation, and do not publicize the fact they have been summoned--let alone investigated! Not so in independent counsel investigations, where the fact of the investigation is not only public, it is often front-page news. Indeed, upon leaving the grand jury, witnesses often seem eager to address the media and "spin" the explanation of their testimony. And you may sometimes see the witness or, more often, her lawyer on the six o'clock news, standing on the courthouse steps denouncing the prosecutor in no uncertain terms for the alleged impropriety of his questions--all the while confident that her accusations can never, as a matter of law, be publicly rebutted by the prosecutor. So, while the witness--or, more commonly, the lawyer for the witness--is free to describe the asserted "testimony" of the witness, the prosecutor is prohibited from commenting. [FN239]


While the media is quick to reprint the accusations of gross improprieties by a variety of independent counsels, they seldom stop to publicly acknowledge that the prosecutors' actions before the grand jury are subject to the tight control exercised by the district court over the conduct of matters occurring before the grand jury. In the words of the Supreme Court: "Grand juries are subject to judicial control and subpoenas and motions to quash. We do not expect Courts will forget grand juries must operate within the limits of the First Amendment as well as the Fifth." [FN240] As noted above, [FN241] the number of challenges to an independent counsel's grand jury subpoenas is extraordinary, and in the process of ruling on those challenges the district court reviews the independent counsel's challenged procedures to ensure propriety. Few commentators realize--let alone mention--that each and every alleged impropriety, real or imagined, can be and usually is challenged by innovative defense counsel representing grand jury witnesses. While there is no way of knowing the success rate of defense challenges to the various independent counsels' grand jury subpoenas, without violating grand jury secrecy, I can report that in our investigation relatively few subpoenas were modified by court order during the course of our investigation and only one was outright quashed by the court. Unfortunately for the independent counsel, when these allegations are raised, the independent counsel's responses are sealed by the court [FN242]--that is, not publicly disclosed--so that the public never gets to hear the independent counsel's side of the story.


An independent counsel cannot dispel his critics' charges by showing them the evidence that he is bound by law to follow because he is also bound by laws of secrecy, leaving him in the unenviable position of pushing ahead with his case while his credentials and motives are constantly questioned and his reputation inexorably stained.


3. DOJ Policy Constrains the Prosecutor's Response


Secondly, even where the witness did not testify before the grand jury but, instead, was interviewed by an FBI agent from the Office of Independent Counsel, some witnesses want to tell the media about the independent counsel's alleged improprieties. In these instances, independent counsel usually can't respond. A federal prosecutor is constrained by DOJ guidelines from releasing investigative information to news media from the time a person becomes the subject of a criminal investigation until the investigation has been terminated by trial or otherwise. [FN243] These guidelines preclude the prosecutor from making any statement or furnishing any information for the purpose of influencing the outcome of a defendant's trial or that could "reasonably be expected" to influence the outcome of a pending or future trial. [FN244] The prosecutor, according to the guidelines, may make public only a very few details--limited to incontrovertible factual matters--concerning the investigation and the defendant; subjective observations are not to be disclosed. [FN245] So, even when the independent counsel receives information through agents' interviews of witnesses, he is constrained from using those statements to rebut the public proclamations of the subjects' surrogates who are beating the publicity drum.


4. From Politicalization to Demonization of the Independent Counsel


Any discussion of problems unique to an independent counsel investigation would not be complete without considering the most recent stratagem employed to derail, politicize, and demonize the independent counsel.


At least at the federal level, few criminal investigations in American history have been the subject of public scrutiny during the course of the investigation. Ordinarily, federal grand juries are not the subject of gossip for the reasons discussed above. [FN246] We are taught, and respect, that prosecutors speak through indictments, and we await the outcome of trial to judge the merits, efficiency, and effectiveness of the underlying investigation and prosecutions. Moreover, it is difficult to track the length, breadth, and costs of the usual federal criminal investigation--which often begins on the basis of a tip, hunch, or press report--with no one but the United States Attorney and the investigative agency (sometimes not even the former) aware that the investigation commenced. Once the prosecutor is involved, however, his utilization of the grand jury brings down a curtain of secrecy on the investigation. Subjects, targets, and other opponents of the investigation can hardly identify the fact of the investigation let alone quantify the costs.


a. The forces set in motion. To the extent that expenses of an investigation are easily identified--and they are in independent counsel investigations since they are required to be reported semi-annually--they provide a convenient jumping-off point for critics, particularly those who are seeking an excuse to deflect the investigation from its course. Because of the significant interest generated by these investigations in a city that has a seemingly insatiable desire for scandal of whatever sort, [FN247] the media is attentive to the slightest suggestion of criticism of the investigation--whether that criticism is merited or meritless.


So, after the political prosecution ball is put into play by the subject's initial reaction to the Attorney General's preliminary investigation and public denouncement of the Attorney General's decision to seek appointment of an independent counsel, defense counsel can and often do write the independent counsel a letter complaining of perceived abuses occurring in the investigation--real or imagined--copied to the press. This criticism is dutifully reported after the press makes a quick call to the independent counsel asking for comments, with the usual response being "no comment," whereupon controversy is born. For good measure, defense counsel might write to the Attorney General complaining of the prosecutor's "misconduct," and asking her to take corrective action, with a copy to the press--more controversy. Once this base is established, it is a relatively small step to have the witnesses friendly to the subject of the investigation begin to spin stories to the media about questions they were or believe they were asked, together with the witnesses' explanation as to the complete impropriety of the questions.


Next follows the grand jury witness using the courthouse steps as a platform to complain and explain the defects in the independent counsel's now "obviously misguided and unlawful investigation." Throughout this time, the independent counsel has been hobbled by policy--obligated by restraints against comment-- and facing criminal proscriptions if disclosures of grand jury information occur by his office. Shortly thereafter, it is not a question of whether the independent counsel is conducting an improper investigation--he obviously is, witness the fact that he has not otherwise spoken out!


Thus, while few white collar federal criminal prosecutions take on a public persona at the investigative stage, it is the exceptional independent counsel investigation that does not become a media curiosity from the outset. Once so established, the investigation becomes, according to subjects' spin doctors, a political vendetta against the subject of the investigation, rather than protection of the public against the dangers that attend corruption of political offices.


There is a vintage witticism among trial lawyers to the effect that:

If you have the law, argue it;

But if you don't have the law, argue the facts; and

If you don't have the law or the facts, argue the inferences; and

Finally, if you don't have the law, the facts, or the inferences, argue the other fellow's character.


This witticism has metastasized into an axiom for lawyers representing targets and, often, witnesses in independent counsel investigations. While the politicalization of the independent counsel seemingly began with Independent Counsel Seymour's prosecution of former White House aide Mike Deaver, it came into full bloom with Judge Walsh's prosecutions in the Iran- Contra matter. Independent Counsel Walsh's investigation, and subsequent prosecutions, were sometimes referred to by critics as the criminalization of the Boland Amendments. [FN248] These critics argued that these amendments effectively denied the president his legitimate powers and control over Central American foreign policy and, thus, endangered national security by forcing the White House to adopt devious but defensible support for the Contras. "By abruptly terminating its support, Congress had left the Contras and their families to defend themselves from retaliation by the Sandinistas. Whatever North, Secord, and their colleagues had done, good or bad, had prevented a massacre." [FN249] The country was quickly divided between the vibrant testimony of Colonel North and others who seemingly were following official orders in carrying out their assigned duties and now were facing the prospect of indictment for what many perceived as, at best, political offenses. Moreover, the clincher for those opponents claiming that Walsh was driven by pure politics came when former Secretary of Defense Caspar Weinberger was indicted three days before the general presidential election in 1992. [FN250] That indictment redoubled the energy and volume of the critics of Independent Counsel Walsh who roundly condemned him for a variety of alleged misdeeds and abuses. [FN251] One abuse that seemed to resonate a harmonious chord with even the most casual observer--indeed even the unobservant--was the issue of expenses incurred by his investigation and prosecutions. Thirty-five million dollars after six years was a formidable amount [FN252] to the man in the street, no matter what his political bent, and seemed excessive by any measure. The Iran-Contra legacy will likely be lost in the tumultuousness of the time and the extravagance of this amount. Attorney General Reno spoke to it before the Senate Governmental Affairs Committee on May 14, 1993, when she testified with regard to reauthorization of the Independent Counsel Act:


The Iran-contra investigation, far from providing support for doing away with the act, proves its necessity. I believe that this investigation could not have been conducted under the supervision of the attorney general and concluded with any public confidence in its thoroughness or impartiality. [FN253]


Whatever Independent Counsel Walsh's legacy is or is not, the defense bar took the opportunity to avoid the merits of an independent counsel investigation by attacking the prosecutor's motives and, from there, his character. It is no secret that, to the extent an investigation is perceived as unfair, biased, or out of control, fewer citizens feel duty-bound to cooperate with that investigation. Indeed, people may not only be uncooperative, that is, act as if they are chilled, but they may openly resist. Nowadays, if you can destroy the effectiveness of the independent counsel's investigation, you may never have to meet the merits of the charge. Accordingly, a recent tactic is to arouse public sympathy for the target and antipathy for the independent counsel.


While the "politicalization" of an independent counsel probably reached a new plateau during the Iran-Contra investigation, that strategy has been ratcheted up several notches with the "demonization" of the independent counsel now witnessed by the American public.


b. The attacks against the Whitewater investigation. The independent counsel to suffer the most intense criticism and vilification is Judge Starr. Judge Starr was only two days into his investigation when the President's personal attorney in the Paula Jones litigation publicly announced "nobody could have confidence" in Starr's investigation. [FN254] Aside from criticizing the investigation, White House spokespersons and other close advisors to the President have engaged in a series of absolutely unwarranted personal attacks against Judge Starr's investigators. These attacks, coming directly from the office of the President of the United States, are absolutely unprecedented in the annals of American history. [FN255]


No subject was beyond the pale for these White House surrogates. Personal attacks were even made on Judge Starr's religious beliefs when James Carville, the President's 1992 campaign advisor, publicly mocked Starr, stating: "He plants a story, he goes down by the Potomac and listens to hymns, the cleansing waters of the Potomac go by, and we are going to wash all the Sodomites and fornicators out of town." [FN256] Carville's comments also accused Starr of being "a sex-obsessed person ... who's out to get the President .... H e's concerned about three things--sex, sex, and more sex. That's all that man's about." [FN257]


His legions of critics include current and former presidential advisors, political activists, and those ever-present know-nothing pundits. The efforts of these agitators were not lost on the public who, at one point during the so- called "Monica Lewinsky investigation," gave a nine percent approval rating to Judge Starr. [FN258] Critics had successfully convinced the public that the investigation was not about perjury and obstruction by the President and his closest advisor, but merely about the President's sex life. Shortly thereafter, another poll reported that forty-three percent of those polled believed any investigative report by Judge Starr would be untrustworthy. [FN259] Approval ratings for prosecutors engaged in ongoing grand jury investigations, who cannot respond to accusation, may seem silly on its face, but they signal a dangerous erosion of public confidence in the investigation. These efforts to demonize the independent counsel--particularly when coming from the President and his surrogates--not only have a tremendously detrimental effect on the independent counsel's ability to promptly and fully conduct his investigation, but on the institution of the Office of Independent Counsel.


The effects of these demonization efforts are not limited only to that particular independent counsel, but extend to all independent counsel investigations as well as federal prosecution efforts throughout the country. The administration of justice takes a beating. The independent counsel employs the same agents, and often utilizes DOJ attorneys or Assistant United States Attorneys who will--after the investigation is completed--return to the DOJ or their respective United States Attorneys' offices. Is the public to conclude that the same DOJ lawyer, when he is detailed to the independent counsel, acts irrationally, or even unlawfully, while there, but properly when he returns to the DOJ?


c. The attacks against the Espy investigation. The demonization of independent counsels that has been so much on display in the Whitewater investigation also occurred, to a lesser extent, early in the Espy investigation. From the expected criticisms on the length and cost of the investigation, to unnamed DOJ officials saying they believe the current independent counsels to be overzealous amateurs, to suggestions that the Attorney General's unhappiness with current independent counsels was her reason for not appointing an independent counsel to investigate the Democratic National Committee's fundraising scandal, hyperbole--and sometimes downright character assassination--have become the norm among critics. And all of it has taken place in the full glare of the media spotlight. [FN260]


Early in my investigation, Time magazine published an article on the apparent expansion of our inquiries to include Tyson Foods, Inc. and its relationship to politicians other than Mike Espy. That article mentioned the questioning of a former Tyson pilot who claimed he transported envelopes of cash to then- Governor Bill Clinton from Tyson headquarters. Unknown to me, Time Magazine learned about our inquiries from the former Tyson pilot. While I had previously declined to speak with Time--on or off the record--Time then confronted me with a confidential investigative document--the immunity letter I had given to the pilot. Time stated it was conducting a parallel investigation and writing a story about the pilot who had given Time a copy of his immunity letter. In my unsuccessful effort to convince Time not to publicize our investigative efforts and progress, I agreed to discuss the matter, and was under the mistaken impression that my comments would be off the record. I was attempting to keep our investigation covert because of my concern that public knowledge of the investigation would impede it. During discussions about what Time's investigation disclosed, the reporter asked me my opinion of the pilot's story. I said that, based upon the manner in which the pilot told his story, it had "a ring of truth" to it. Time, however, ran with my comments. [FN261] Tyson, who previously publicly condemned my three-month investigation as a "witch hunt," [FN262] and the White House unleashed a coordinated avalanche of rebuke designed to bring discredit to the investigation and "chill" witnesses from cooperating with us. [FN263] The label "witch hunt" resonated from Arkansas to Washington, D.C.


The President joined in these condemnations during a March 1995 press conference, stating:


Secretary Espy was the single person who resigned because the subject of his activity involved things he had done as secretary of agriculture.... which, I might add, in the aggregate amounted to a few thousand dollars, all of which he has reimbursed, in return for which he got a special counsel with 33 lawyers and a historian. [FN264]


The President's statements were demonstrably false: I didn't have thirty-three lawyers--I had seven full-time lawyers and one part-time lawyer; this office did not then, nor have we ever had an historian; the gratuities totaled far in excess of a few thousand dollars; [FN265] only a portion had been reimbursed--and that reimbursement came only after the press exposed Espy's receipt.


Shortly thereafter, someone leaked that Attorney General Reno curtailed my investigation when she reportedly denied an application I made to expand my probe of Tyson Foods, Inc. [FN266] Correspondence from my office to the DOJ concerning our jurisdictional requests was highly confidential and contained Federal Rule of Criminal Procedure 6(e) grand jury materials. The only person outside my immediate office with whom I shared the Attorney General's response to my request was the chief judge of the district court as, shortly after receiving the letter, I filed a copy with the court under seal. I knew the leak did not come from my office and had no reason to suspect that the district court personnel leaked the information.


On March 29, 1995, the Los Angeles Times reported the information that "Reno denied permission to [me] to formally widen [my investigation]" came from "government sources" [FN267] The press articles then began reporting that defense counsel were filing motions to quash our grand jury subpoenas and gave the impression that our investigation was floundering on the shoals of rulings from the district court, which was simply not so. Because of the leak of grand jury secrecy, I could not and did not respond. [FN268]


The pieces had been neatly tied together, and the public relations juggernaut rolling: Tyson Foods, Inc. asserted that I was on a witch-hunt and out of control; Arkansas Congressman J.R. Dickey claimed that I should be reined-in by the DOJ as a loose cannon; I was condemned by the White House counsel for misbehaving; former White House counselor Lloyd Cutler asserted that there must be something in the water in Los Angeles; and--together with the President's false assertion that I had thirty-three lawyers--all were part of a concerted effort to discredit me and my investigation, and chill its effectiveness.


Such condemnations not only politicize calls for investigations and impede investigations, but also subvert the very law that was supposed to take the politics out of the probes themselves. "If you look at the tragedy of this whole thing, the independent counsel law was enacted to depoliticize such high- level investigations ... [b]ut where we stand [now], the whole independent counsel statute has become politicized." [FN269]


The politicalization and demonization of the independent counsel and the investigation pose two dangers. First, it frustrates the attempt to ensure an unbiased investigation into public corruption charges. Second, and in many ways more sinister, it makes an already cynical public even more disgusted with the democratic system. As St. John's University law professor John Barrett noted, "If you have too much of this outside political churning, you do have something that undermines what this is all about, which is instilling trust in the public." [FN270]


IV. VINDICATION OF THE INDEPENDENT COUNSEL


In this part, I address the main criticisms levied against independent counsels--namely, that their investigations are too expensive and that independent counsels themselves lack accountability--by offering some of the specifics that detractors fail to mention. Compared to DOJ investigations, independent counsel investigations receive closer scrutiny and must comply with more restrictive reporting requirements regarding dollars spent. Collectively, various constraints on the independent counsel make him more accountable than his counterpart at the DOJ. Finally, our experience under the Act shows that the institution of the independent counsel works to preserve important values in the administration of democratic government. The benefits to the public of maintaining the independent counsel outweigh the costs that derive from the inevitable obstacles he must face.


A. WHY INDEPENDENT COUNSEL INVESTIGATIONS ARE EXPENSIVE


By now it should be obvious that the independent counsel encounters a unique set of problems in his investigations and prosecutions. These lengthen the time required, and increased time means increased costs. The independent counsel uses primarily DOJ and United States Attorney's Office lawyers, and agents from the federal investigative services--the same resources used in other federal prosecutions--so the costs should be about the same, except for the additional responsibilities and duties the Act imposes on the independent counsel.


The cost of an independent counsel's tenure is proportional to the length of his investigations, prosecutions, appeals, final reporting process, and other close-out procedures. The appointment of an independent counsel will necessarily result in greater costs than if the DOJ handled the matter, simply because the independent counsel starts from ground zero and concludes by winding down through a reporting and attorneys' fees process unknown in a typical investigation or prosecution. The Special Division, regarding the costs of DOJ investigations compared to those of an independent counsel investigation, observed that the latter:


may be more costly to the government because of its 'start-up costs.' At the outset, he must rent private office space, acquire extensive equipment and capital assets, contract for and use private facilities and outside lawyers, and when finished make a complete final report. And during the progress of the case, he must maintain a staff to deal with one investigation. [FN271]


Another problem with the independent counsel's fixed or capital costs is the term of the lease for these necessities, such as office space, computers, and other equipment. Generally, the shorter the lease the higher the cost, and the longer the lease the better the deal. However, a better deal on a longer lease sometimes requires the payment of substantial penalties for early termination. Since, for the reasons discussed above, independent counsel investigations can continue ad infinitum, there is no safe bet in committing to leases.


The question ultimately comes down to the following: once the start-up costs have been incurred and amortized, are the investigations and any subsequent prosecutions more or less expensive than those of the DOJ? No hard data are readily available to assess the operational costs of DOJ prosecutions.


Corruption cases are expensive under any circumstances. A few years ago, The Arizona Republic attempted to do an analysis of the cost to the federal government of its then four-year-old investigation of Arizona Governor Symington. The United States Attorney overseeing Symington's case was quoted as stating that the government "doesn't do a cost-benefit analysis .... If we decide to prosecute, we do what is necessary to make sure we present the case in the best possible way." [FN272] The article went on to note that, although the Symington prosecutors will not reveal their detailed costs, they "seem like open books compared with other federal officials," noting that in their efforts to learn costs of a DOJ investigation into Maricopa County jails, they reported that "no one would discuss how much it costs," and, when the hapless writer attempted to contact a DOJ official in Washington, the answer was: " even if I did know the costs , I wouldn't be able to tell you." [FN273]


For comparative purposes, it is appropriate to note that before Senator Thompson started his investigation of the illegal campaign contributions to the Democratic National Convention and Republican National Committee, it was reported that it would cost approximately $4.35-million for a nine-month period, or approximately $500,000 per month. Congressman Dan Burton, chair of the House Government Reform and Oversight Committee, which is conducting its own open-ended investigation into the matter, had an initial budget of $3.8 million and can dip into a $7 million account if he needs to. [FN274] These are just investigative costs not including office space, apparently, and do not include prosecution costs. Similarly, when Bob Fiske was appointed a regulatory independent counsel, and worked within the DOJ as a special employee, Fiske's operation cost $6 million, and averaged about $750,000 per month for his investigation, while active. [FN275] While the investigations carried out by these different bodies may not be equivalent for various reasons, the comparisons are apt. Each illustrates the extensive time and resources it takes to investigate complex cases in which witnesses flee, lie, or withhold information and which rely on documents that are held back for months or years by the targets of the investigation.


The Senate is well aware of how stonewalling tactics on the part of witnesses increases an investigation's costs. As one knowledgeable observer noted:


The amount of money would have been considerably less had the [parties] cooperated with the investigation rather than taking the Fifth Amendment and fleeing the country....

. . . .

The cost to the government increases exponentially each time a ... witness or an administrative official refuses to testify or withholds key evidence or delays the production of subpoenaed information. [FN276]


As the statute requires that the independent counsel file annual public reports reflecting the amount of expenditures of his office, after a time, a prime concern of the media and the political opponents becomes the "cost of this witch hunt." No matter what the office's accomplishments, the costs and length of the investigation will constantly be parroted by the press-- so much so that, after time, the venality vel nom of the subject of the investigation, and his cohorts, becomes lost in a din of criticism about the cost of the investigation. At the same time, counsel for the subjects of the investigation and the defendants in the prosecutions will continually carp that their client is under scrutiny only because of the "unlimited" budget.


It is only in independent counsel investigations that costs are so prominently displayed by the opponents and offered up by the proponents of the subject of the investigation as a reason for not pursuing the offenders. In comparison, in how many instances is the success or failure of the federal criminal investigation and prosecution measured by the amount of money it costs the DOJ?


Independent counsel investigations are expensive and, because of the initial start-up costs, probably more expensive than the average DOJ investigation (although we don't know how much more because the DOJ does not report its figures). However, the question "How much more expensive?" is less important than "Is the expense justifiable?" In answering the question, the public must appreciate that independent counsels investigate corruption at the highest levels of government by individuals who hold the public trust. These guardians of the public trust deserve the closest of scrutiny in the performance of their public duties as provided for in the Independent Counsel Act. [FN277] The President, his cabinet, and their immediate staffs, oversee substantial sections of our economy and control hundreds of billions of dollars in governmental programs and subsidies. When we begin to evaluate the costs in monetary terms whether to investigate and root out the corruption of officials in charge of these programs, we start down a dangerous path. Any investigation of criminal acts, whether they are conducted by the DOJ, Congress, or an independent counsel, will be expensive and time consuming. But when compared to insuring the safety and welfare of the people and upholding the rule of law by holding our leaders accountable, the costs are a small price to pay.


B. WHY THE INDEPENDENT COUNSEL IS ACCOUNTABLE


The notion that an independent counsel lacks accountability and has unlimited money and resources to hound his quarry into submission is simply a fiction, and individuals espousing that notion demonstrate their lack of familiarity with the provisions of the statute. As Professor Sam Dash, formerly Chief Counsel to the Senate Watergate Committee, recently observed, the statute gives an independent counsel no more authority or power than the Attorney General, and the independent counsel's "accountability" is greater than the Attorney General's. [FN278]


Indeed, there are a number of controls that fall within five general categories that significantly constrain the independent counsel and ensure he acts fully in accordance with the obligations of a federal prosecutor and follows federal requirements in his expenditure of funds. First, the Attorney General can fire the independent counsel at any time for cause. If she believes that the independent counsel is indeed pursuing avenues not related to his jurisdictional mandate, or employing methods not in accordance with DOJ policies, or for any other of a host of reasons, she can and should fire him. [FN279] While only the President can fire the Attorney General, the Attorney General--either on her own volition or on that of the President--can fire the independent counsel.


This "good cause" standard does not serve as any real impediment to the exercise of the Attorney General's authority. As noted by one DOJ official's testimony before Congress, the good cause standard makes the independent counsel "no more interdependent than officers of the many so-called independent agencies in the executive branch." [FN280]


Second, Congress oversees the independent counsel's official conduct, and can summon him to appear and testify at congressional hearings where it can examine his conduct, as with other executive branch officials. [FN281] While Congress does not have the power to fire him, it nonetheless could institute impeachment proceedings pursuant to its powers under Article I, Section 2, if it believed he was guilty of an impeachable offense. [FN282]


Third, unlike most federal agencies which undergo General Accounting Office reviews, at most, once a year, the independent counsel is subject to a mid-year financial review as well as an audit of the independent counsel's annual statements and a final, termination statement. Those reviews and audit reports are, in turn, submitted to Congress. [FN283] The Office of Independent Counsel is probably the only agency subject to a twice-a-year review, as well as an audit upon termination of the office. Moreover, an independent counsel is required to employ a staff controller to ensure his expenses are reasonable, within the requirements of law, and follow DOJ policies for the expenditure of funds. [FN284]


Fourth, the independent counsel is required to file reports semi-annually with the Special Division identifying, explaining, and summarizing expenses, [FN285] and the Special Division, in turn, is charged with periodically determining whether the independent counsel's function is complete and should be terminated. [FN286]


Fifth, the independent counsel must, to the extent possible, follow DOJ policies for the enforcement of criminal laws. [FN287]


These express requirements imposed on the independent counsel are in addition to his obligations as a federal prosecutor who is bound by the provisions of the Constitution and the various statutory constraints regulating his conduct, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and, finally, the ethical rules governing all lawyers' conduct. As noted previously, whether the independent counsel is conducting an investigation using the auspices of the grand jury, or engaged in a trial, or, pending appeal, his conduct is under constant assault from the defense, whose challenges at each level invoke court scrutiny concerning the propriety of that challenged conduct.


Finally, there is always the spotlight of constant media scrutiny illuminating his investigative and prosecutorial methods, means, and efforts. These constraints collectively impose on an independent counsel a far more elaborate system of controls and review than those thrust upon his counterparts at DOJ or in the United States Attorney's office.


C. WHY THE INDEPENDENT COUNSEL IS WORTH KEEPING


While the Independent Counsel Act itself is far from perfect, our experience under the Act shows that the institution serves important public functions: first, to uncover the truth behind allegations of criminal wrongdoing by "covered persons" and to ensure their accountability; second, to preserve the public's confidence that any investigation will be fair and will uphold an individual's innocence where appropriate and bring indictments when necessary. Despite the fact that the opponents of the current independent counsel investigations have succeeded in demonizing the independent counsel, and discrediting their investigations, I suggest current events, including the difficulties of the DOJ in effectively investigating allegations of illegal campaign financing activities by the President, Vice President, and others, make the case for the need for an Independent counsel. Indeed, the Attorney General was right on the money when, in 1993, while testifying in favor of the reenactment of the independent counsel statute, she detailed for the Senate Committee on Governmental Affairs the reasons why independent counsel were a necessary and important component of modern government:


It is my firm conviction that the law has been a good one, helping to restore public confidence in our system's ability to investigate wrongdoing by high-level executive branch officials. In 1975, after his firing triggered the constitutional crisis that led to the first version of this Act, Watergate Special Prosecutor Archibald Cox testified that an independent counsel was needed in certain limited cases. He said, "The pressure, the divided loyalty, are too much for any man, and as honorable and conscientious as any individual might be, the public could never feel entirely easy about the vigor and thoroughness with which the investigation was pursued. Some outside person is absolutely essential." Now, nearly two decades later, I could not state it more clearly, and it is this point that the Act's critics most often ignore.


Though some cite Independent Counsel Lawrence Walsh's investigation and its length and cost as proof of the Act's failings, I disagree.... Judge Walsh's original appointment defused a rapidly escalating confrontation between the branches of our government, permitting an impartial and independent examination of the tangled web that constituted the Iran/Contra scandal. The heated passion his investigation has caused since then is, in my view, more reflective of the political division which underlay the criminal allegations he investigated than it is suggestive of shortcomings in the independent counsel process.


It is neither fair nor valid to criticize the Act for what politics has wrought, nor to expect the Act to solve all our political crises. The Iran/Contra investigation, far from providing support for doing away with the Independent Counsel Act, proves its necessity; I believe that this investigation could not have been conducted under the supervision of the Attorney General and concluded with any public confidence in its thoroughness or impartiality.


The reason that I support the concept of an independent counsel, with statutory independence, is that there is an inherent conflict whenever senior executive branch officials are to be investigated by the Department and its appointed head, the Attorney General. The Attorney General serves at the pleasure of the President. Recognition of this conflict does not belittle or demean the impressive professionalism of the Department's career prosecutors, nor does it question the integrity of the Attorney General and his or her political appointees. Instead, it recognizes the importance of public confidence in our system of justice, and the destructive effect in a free democracy of public cynicism.

. . . .

The credibility and public confidence engendered by the fact that an independent and impartial outsider has examined the evidence and concluded that prosecution is not warranted serves to clear a public official's name in a way that no Justice Department investigation ever could. It is telling that on occasion, covered individuals under a cloud of accusation--including former Attorney General Edwin Meese--have called for appointment of an independent counsel to investigate the allegations against them. I doubt the public would have accepted with confidence the decision not to prosecute had each of those officials been cleared, not by an impartial outside prosecutor, but by the Attorney General and his Justice Department.


The Independent Counsel Act was designed to avoid even the appearance of impropriety in the consideration of allegations of misconduct by high-level executive branch officials, and to prevent either actual or perceived conflicts of interest. The Act thus served as a vehicle to further the public's perception of fairness and thoroughness in such matters, and to avert even the most subtle of influences that may appear in an investigation of highly placed executive officials. It is a measured, appropriate response to a limited but serious problem, and the Administration therefore supports the Independent Counsel Act's reenactment. [FN288]


Her 1993 testimony in support of the independent counsel institution was prophetic. In less than four years, she applied for the appointment of a record seven independent counsels (with the prospect of having to appoint more). [FN289]


High-level DOJ officials have publicly pointed fingers of derision at the independent counsels, claiming that it was the Attorney General's dissatisfaction with their collective performance that not only caused her to abandon support for the independent counsels, but also was responsible for her not appointing an independent counsel to investigate alleged criminal fundraising activities by President Clinton, Vice President Gore, and others. [FN290] Moreover, these articles disparage the independent counsels, the quality of their staffs, and even take swipes at the Special Division. [FN291] Aside from the ethical impropriety of DOJ lawyers condemning the Special Division, [FN292] these attacks undermined the efforts and effectiveness of independent counsels. To the extent that an independent counsel violates his duties, the Attorney General can and should fire him, [FN293] but her dissatisfaction can be no excuse for failing to follow her statutory duty under the Act to request appointment of an independent counsel when the Act requires it. [FN294]


Recent events have demonstrated that the DOJ is apparently unable to cope with these politically-supercharged issues, and has considerable difficulty conducting these investigations. Throughout 1997, the DOJ was dogged by criticisms that it was not pursuing its investigation of alleged illegal campaign fundraising activities by President Clinton, Vice President Gore, and the Democratic National Committee aggressively enough. According to The Washington Post, lawyers for the agency's task force routinely fought with the FBI on how to proceed with the investigation. The Public Integrity Section of the DOJ wanted to avoid interviewing high level administration and democratic party officials, and thereby avoid triggering the independent counsel statute. One DOJ prosecutor reportedly told The Washington Post:


If they said we're not going to look into this because it might lead to a covered person ... it is prima facie evidence of proof of conflict of interest. If they were restraining the agents, if they curtailed the manner in which questions could be asked, that should have been the moment when they appointed an independent counsel. [FN295]


Even though there were in excess of 100 DOJ lawyers and FBI agents on the case for over a year, the Attorney General wasn't even aware that soft- dollar campaign contributions were converted to hard-dollar contributions until she read it in the newspaper. [FN296]


By September 1997, the investigation was bogged down and criticism from Capitol Hill grew louder. Reno was said, at the time, to have had "a crisis in confidence" in the system at Justice. To end the crisis, she replaced the public integrity lawyer who was heading the task force and brought in Assistant United States Attorney Charles LaBella, a very experienced and competent prosecutor from San Diego, California. The shake-up was meant to "inject the task force with a more aggressive spirit." [FN297]


By December 1997, however, Attorney General Reno was now at odds not only with Congressional Republicans conducting their own investigations, but also, it was reported with FBI Director Freeh and Mr. LaBella, both of whom reportedly had expressed the opinion that an independent counsel was necessary to carry on the investigation. [FN298] Under Mr. LaBella's able leadership, the task force brought three indictments through April 30, 1998. However, after six months in Washington, D.C., he decided to return to San Diego and his family and become Acting United States Attorney for the Southern District of California. Mr. LaBella's decision to depart caused concerns over the future direction of the investigation. [FN299] Considering the significant difficulties DOJ had with just the campaign finance investigation, and given the host of other major matters the DOJ had to contend with, including Waco, Ruby Ridge, and the Oklahoma City bombing case, it seems likely that, had it also undertaken the investigations and prosecutions of the cases handled by the five independent counsel appointed between 1994 and 1997, the DOJ may well have imploded from the overload. These events suggest the question, given the perceived inability of the DOJ to handle these highly-political investigations: If not an independent counsel--then who?


1. The Espy Matter Required an Independent Counsel


The Espy matter is a case that supports the need for, and worth of, independent counsel. As Secretary of Agriculture, Michael Espy administered a government department with a work force of 124,000 employees (6% of the total number of federal employees), and administered an annual budget of $65.5-billion (representing 4.3% of the total federal budget). The Office of the Secretary of Agriculture is ninth in line to succeed the President of the United States. [FN300] But for the appointment of an independent counsel, the illegal conduct surrounding Secretary Espy would never have been exposed, investigated, or prosecuted.


When the allegations of misconduct concerning Secretary of Agriculture Espy first surfaced in The Wall Street Journal in March 1994, there was no Independent Counsel Act in effect, it having lapsed fifteen months earlier on December 31, 1992. The Journal's allegations were cursorily investigated by the Public Integrity Section of the DOJ, which The New York Times, on June 9, 1994, reported "[came] at a time when the Agriculture Department is trying to crack down on unsanitary practices at the nation's slaughterhouses." [FN301] The Public Integrity Section of the DOJ wanted to close the investigation, the article stated. [FN302] Subsequently, The Los Angeles Times reported the FBI and Public Integrity were at odds over whether to curtail or continue the "politically sensitive investigation" concerning Espy's acceptance of favors and gifts from Tyson. [FN303] According to the article, the FBI wanted to continue to investigate while Public Integrity wanted to close it out because of "insufficient evidence" of criminal violations. [FN304] The value of the benefits that Espy received from Tyson Foods, Inc. was too small to warrant criminal prosecution--"less than $100"--and, at a "heated meeting" the FBI "strongly objected to the desire of the DOJ to curtail the probe." [FN305] The article also reported:


But FBI officials are known to fear that the sensitive matter could "blow up" if the case is closed before all leads are followed to their conclusion. Among other things, investigators have been unable to track down documents related to a May, 1993, decision regarding poultry inspections. In his interview with the FBI, Espy is understood to have said that he had heard rumors that the documents had been shredded. [FN306]


Shortly thereafter, on June 30, 1994, the Independent Counsel Act was reenacted. The Attorney General apparently overruled Public Integrity's repeated recommendations to close-out the investigation, as she requested the appointment of an independent counsel in August 1994. In her application for appointment of an independent counsel, she asserted, however, that the value of the gifts only amounted to several hundred dollars. [FN307]


These press articles accurately depicted the knowledge of the DOJ of the details and its apparent desire to decline further investigation. That investigation was woefully deficient--not because the DOJ was constricted to making an initial inquiry or a preliminary examination by the Independent Counsel Act (there was none)--but because the DOJ, over the apparent protestations of the FBI, chose to conduct only a very narrow investigation that focused primarily on Tyson Foods, Inc.'s relationship with Secretary Espy as related in the press. But for the reauthorization of the Independent Counsel Act there would apparently have been no further investigation. Our investigation ultimately resulted in the prosecution of Tyson Foods, Inc., which pleaded guilty to supplying Espy with not just a few hundred dollars in gratuities, but rather $12,000 of gratuities, in violation of 18 U.S.C. 201(c). In the past three and one-half years my office has investigated and indicted government officials who unlawfully accepted things of value, as well as those corporate executives and their corporations who sought unlawfully to obtain access at the expense of the American people. Our investigation has revealed and the convictions we obtained have established that the regulated parties gave illegal gratuities, made illegal corporate campaign contributions, made illegal conduit campaign contributions, obtained corporate funds by fraud, laundered money, falsified corporate records and lied--lied to law enforcement agents and independent auditors to conceal their illegal acts. To date, in excess of $10.5 million in fines and penalties have been obtained from six corporations, [FN308] seven individuals, [FN309] and one partnership [FN310] found guilty of a variety of offenses, all relating in some fashion to unlawfully giving gratuities to Secretary Espy, his family, or to lying about the nature and extent of things given Espy. However, the road from investigation to indictment--through prosecution--to conviction and penalty has not been an easy one. Our investigation has been challenged at every turn. It has been time-consuming and expensive and while we have rounded the far turn and are in the home stretch it is still ongoing. There are three appeals by convicted defendants, two appeals by this offense and two cases: United States v. Alphonso Michael Espy; and United States v. Williams and Schaffer awaiting trial.


We have not hesitated to apply novel theories of prosecution in our cases. These theories, whether criticized or embraced by the courts, prosecutors and analysts, are mindful of the purpose underlying the specific criminal statutes at issue. The charges in our indictments and theories of prosecution are consistent with the plain statutory language, consonant with the intent of Congress, and follow DOJ policy. We also do not hesitate to exercise our discretion not to prosecute and have referred matters to DOJ, U.S. Attorneys and administrative agencies for resolution.


The common thread running through the thirteen cases that comprise the Espy matter to date (April 30, 1998), including the three cases in which not-guilty verdicts were returned, is the perceived subversive effect of the regulated buying access to and influence with the regulators.


While these cases reaffirm the proposition that the law is not a substitute for ethical conduct, my sense is that its strict implementation, coupled with vigorous prosecution, can be a powerful disincentive to these unlawful and pernicious practices. And while there is no certainty that our investigation and prosecutions have made any difference--let alone a measurable difference-- in the way government interacts with the businesses it regulates, I firmly believe that, but for the existence of the Independent Counsel Act, these criminal activities never would have been either fully exposed or prosecuted.


CONCLUSION


Well--do you still think you want to be an independent counsel? If you decide you do, be prepared to take up residence in the Washington, D.C. area on an indefinite basis. Be prepared to visit your family in California--if you are lucky--maybe two weekends a month. Be prepared to accept a rate of pay at a ceiling of fifty-three dollars per hour, for a maximum of eighty hours during any two-week period. You will receive no compensation for any time you spend in excess of that eighty-hour, bi-monthly maximum--and you'll spend lots. You'll not be paid for holidays--and you'll work many. There will be no vacation or sick pay, and forget about receiving any health benefits--there won't be any because you're a WAE ("when actually employed") employee.


While the statute permits you to maintain a private practice, if you are a trial lawyer--in a boutique litigation firm--be prepared to see your clients find other lawyers while you are in D.C. You won't have the time or place to "schmooze" with clients when you are 2,000 miles distant from your office, and fully occupied in an intense investigation. Moreover, you cannot take depositions or prepare clients to give testimony on the airplane. At least for me, it has been impossible to maintain a trial practice while performing duties as an independent counsel and, after three years of trying, I finally gave it up and dissolved my firm.


If you are an appellate specialist, however, and you have a large enough firm behind you, you may be able to balance your independent counsel duties and your private appellate practice. After all, you can read and write appellate briefs on the plane between Los Angeles and D.C., and your oral argument dates in the circuit and supreme courts are established well in advance. An appellate practice does not have the same time constraints and demands on your time as does a trial practice, so, if you are a trial lawyer, unless there is a very large firm behind you, be prepared to kiss your practice goodbye.


That said, having experienced the frustrations of the job, I would still accept the offer. Why? Because as Capra-esque as it may sound, the job presents an opportunity--working with some very talented and dedicated professionals--to make a difference. It is indeed a fascinating and rewarding experience working with these bright, energetic prosecutors and tremendously experienced agents as this team threads its way through the investigatory and prosecutory mazes while remaining faithful to its obligations to follow DOJ policies, procedures and practices.


This dedicated team is unanimously of the view that, as long as our government continues to be a government of all the people and not just the privileged few who seek to buy their way into regulatory grace, the victims of these illegal acts are the American people. And to ensure that these offenses, which the uninformed may describe as victimless, hereafter are appropriately measured on the culpability scale, we applied innovative prosecutive theories-- status gratuity, [FN311] companionship and consortium as things of value and as illegal gratuities, [FN312] money laundering for illegal campaign contributions, [FN313] the books and records and lying to the auditors provisions of the Foreign Corrupt Practices Act [FN314] for concealing illegal contributions, [FN315] and misrepresentation of a payee and the purpose of a check as a basis of misappropriation by fraud. [FN316]


Equally important were some of the sentences we proposed and courts imposed -- requiring a lobbyist to author and distribute, at his own expense, to more than 2,000 lobbyists and entities, a monograph detailing the criminal provisions of FECA relating to corporate and conduit contributions to candidates for federal political office; and requiring a corporation to implement and adhere to a comprehensive Corporate Compliance Agreement that includes a Corporate Code of Conduct and Compliance Policy, replace the Chairman of its Audit Committee of the Board of Directors, and create a log of all substantive contacts by officers and directors with representatives of all federal agencies at a contracting officer level and above.


The independent counsel's obligation to faithfully uphold the law includes the duty to see that it is equally applied. It is sometimes said "hard cases make bad law." Many independent counsel prosecutions are difficult for a variety of reasons. Sometimes the trial or appellate rulings in these cases produce seemingly anomalous results. When that occurs, the independent counsel may be obligated to appeal in an effort to rectify or clarify the result. That effort will, however, necessarily extend the length and, naturally, increase the costs of his investigation. On March 20, 1998, Sun-Diamond Growers of California, a large agricultural cooperative we had prosecuted, succeeded in obtaining a reversal on one of the eight counts on which it was convicted. [FN317] That count charged Sun-Diamond with giving Secretary Espy in excess of $6,000-worth of gratuities in violation of 18 U.S.C. 201(c). The statutory mandate for our investigation was whether Secretary Espy received gratuities from entities having business before the USDA in violation of 18 U.S.C. 201(c). It is a part of the statute that also proscribes bribery of federal officials. [FN318] The gratuities statute prohibits both the giving and the receiving of things of value to a public official who has regulatory authority for or because of official acts performed or to be performed by the official.


The congressional purpose in enacting gratuity legislation was to eliminate "the tendency to provide conscious or unconscious preferential treatment of the donor by the done ...." [FN319] The gravamen of this gratuity offense is "not an intent to be corrupted or influenced, but simply the acceptance of an unauthorized compensation." [FN320] As reported by the United States Senate in 1962, when the recodification of this statute, together with others, occurred: "The necessity for maintaining high ethical standards of behavior in the Government becomes greater as its activities become more complex and bring it into closer and closer contact with the private sector of the Nation's economy." [FN321]


Our mandate required us to examine both the actions of the regulated companies who gave Espy gratuities as well as Espy's acceptance of same.


The court reversed Sun-Diamond's conviction because it concluded the judge had erroneously charged the jury regarding the intent necessary to sustain a gratuity conviction. [FN322] The court held that, under the statute, "the giver must intend either to reward some past concrete official act or acts or to enhance the likelihood of some future act or acts." [FN323] It expressly rejected the holdings of four other circuits, one of which was affirmed by the Supreme Court that had held there was no requirement that a nexus be proven between the thing of value and the particular act, [FN324] thus effectively creating a situation where the giver of things of value in New York, Philadelphia, Houston, and Los Angeles can be convicted on a lesser proof than is now required in the District of Columbia. [FN325] It is fundamental that the most senior public officials in Washington, D.C., and the persons and companies who deal with them, be held to the identical standard of conduct as officials throughout the rest of the United States, and the persons and companies who deal with them. That concern now presents me, as independent counsel, with the responsibility of determining whether or not to seek Supreme Court review to bring uniformity among the circuits in the interpretation and application of the gratuity law. [FN326]


Earlier, in January 1998, we had appealed the trial judge's pretrial ruling that the Meat Inspection Act's criminal proscriptions against officers' and employees' acceptance of gratuities did not apply to the Secretary of Agriculture. The court's rationale was that, because the Secretary did not personally have any meat inspection duties under the Meat Inspection Act, he was not covered by the Act's proscriptions. [FN327] We believed there was no basis to exclude the Secretary of Agriculture who clearly had duties under the Act. It was our judgment that the Secretary must be held to the same accountability level as the other rank and file USDA employees and officers, since the plain language of the Act expressly included all officers. [FN328] Moreover, if this ruling stood, it could exempt from coverage a number of other USDA officers who had duties under the Meat Inspection Act, but who did not have inspection duties. Therefore, we felt duty-bound to appeal, even though we expected that our appeal would cause the court to vacate our scheduled trial date of March 27, 1998; and knew that any substantial delay would require us to substantially restructure the trial team. [FN329] While we sought and obtained an expedited hearing of the appeal in the United States Court of Appeals for the District of Columbia Circuit, the trial judge vacated the trial date pending the ruling in this pretrial dismissal and also in Sun-Diamond's appeal. As of this writing (April 30, 1998), we have not received a ruling from the court on this appeal. The effect of the trial court's vacation of the March 27 trial date predictably resulted in the departure of one of the members of the Espy trial team, who had to return to his position as professor of law at Kansas State University.


Seeking these appellate reviews necessarily delays the resolution of the Sun-Diamond matter and trial of the Espy matter. Delays not only increase expenses dramatically, they extend the tenure of the independent counsel and prevent his return to the private sector. However, not seeking appellate review deprives the government of its opportunity to clarify important issues relating to enforcement of criminal law. The alternatives are stark, and the choice clear.


Some months ago, while enjoying an after-dinner cigar, a colleague asked me to name the animal that best depicts the Office of Independent Counsel. After musing for a time, my response was that species of Rhinoceros known as Diceros bicornis. Like this black two-horned rhino, the independent counsel is imposing but is not a predator. The independent counsel's limited jurisdictional mandate, like the rhino's myopic vision, does not permit him to gaze much beyond his immediate area. This rhino's thick hide, with skin folded into shield-like pieces, is the envy of the independent counsel, who hopes his hide is equally tough to protect him from the picadores of the press and manifold other critics as he proceeds on his assigned duties. As the rhino's acute hearing offers it a measure of protection, so, too, the independent counsel's extrasensory investigative senses assist him in differentiating fact from falsity. The rhino's keen sense of smell alerts him to trouble, just as the independent counsel's investigative nose enables him to distinguish perpetrators from witnesses. Like the independent counsel, the rhino is indeed a formidable adversary and is relentless when pursuing his quarry.


Perhaps most importantly, like this rhinoceros, the independent counsel is also an endangered species.


[FNa1]. Donald Smaltz was appointed Independent Counsel In re Espy on September 9, 1994. At the time of his appointment, he was a partner in the Los Angeles law firm of Smaltz, Anderson and Fahey, at which he specialized in complex civil litigation, and white collar criminal defense work. Formerly Assistant United States Attorney and Special Assistant for the Central District of California, he is a Fellow in the American College of Trial Lawyers and a graduate of Dickinson School of Law (J.D. 1961). He acknowledges and thanks Rene Browne, an editor at The Georgetown Law Journal, for her substantive comments and assistance in editing this article.




-------------------------------






[FN1]. The Ethics in Government Act of 1978, 28 U.S.C. 591-599 (1994) [hereinafter "Independent Counsel Act" or "the Act"].


[FN2]. The Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978) (codified as amended at 28 U.S.C. 591-599 (1994)).


[FN3]. KATY J. HARRIGER, INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS 7 (1992).


[FN4]. Id. at 49.


[FN5]. See TERRY EASTLAND, ETHICS, POLITICS AND THE INDEPENDENT COUNSEL: EXECUTIVE POWER, EXECUTIVE VICE 1789-1989, at 3-4 (1989).


[FN6]. 4 DUMAS MALONE & BASIL RAUCH, THE NEW NATION: 1865-1917, at 64 (1960).


[FN7]. Id.


[FN8]. DAVID A. LOGAN, CONGRESSIONAL RESEARCH SERVICE, HISTORICAL USES OF A SPECIAL PROSECUTOR: THE ADMINISTRATIONS OF PRESIDENTS GRANT, COOLIDGE AND TRUMAN 5 (1973).


[FN9]. Id. at 4.


[FN10]. Id.


[FN11]. Id. at 3.


[FN12]. Id. at 5.


[FN13]. Id. at 7.


[FN14]. Id.


[FN15]. Id. at 8.


[FN16]. Id. at 10-11.


[FN17]. Id. at 12.


[FN18]. LOGAN, supra note 8, at 13; The Whiskey Fraud Trials: General Henderson's Dismissal, N.Y. TIMES, Dec. 11, 1875, at 1.


[FN19]. LOGAN, supra note 8, at 13; The Whiskey Ring Trials: General Henderson's Successor, N.Y. TIMES, Dec. 12, 1875, at 1.


[FN20]. LOGAN, supra note 8, at 14.


[FN21]. Id. at 14-15.


[FN22]. MALONE & RAUCH, supra note 6, at 133.


[FN23]. EASTLAND, supra note 5, at 14.


[FN24]. The Star Route Investigations, N.Y. TRIB., June 2, 1881, at 3; Stopping Postal Frauds, N.Y. TIMES, June 2, 1881, at 1.


[FN25]. An Inconclusive Verdict: Close of the Star Route Trials, N.Y. TIMES, Sept. 12, 1882, at 1.


[FN26]. MALONE & RAUCH, supra note 6, at 132-33.


[FN27]. President Aroused, L.A. TIMES, June 25, 1903, at 1.


[FN28]. To Prosecute Postal Cases, N.Y. TIMES, June 24, 1903, at 5.


[FN29]. Id.


[FN30]. Id.


[FN31]. Id.


[FN32]. Tyner, Near Death, Asks Roosevelt to Retract, N.Y. TIMES, June 14, 1904, at 3.


[FN33]. EASTLAND, supra note 5, at 8-9.


[FN34]. LOGAN, supra note 8, at 16.


[FN35]. Id. at 18-19.


[FN36]. Id.


[FN37]. Id.


[FN38]. Id. at 20-21.


[FN39]. Id. at 21.


[FN40]. Id. at 22.


[FN41]. Id.


[FN42]. Id. (citing Act of Feb. 8, 1924, ch. 16, 43 Stat. 56).


[FN43]. Id. at 23.


[FN44]. Id. at 24.


[FN45]. Id. at 25.


[FN46]. Id.


[FN47]. Id. at 26.


[FN48]. Id. at 27.


[FN49]. Id.


[FN50]. Id. at 27-28.


[FN51]. Id. at 28.


[FN52]. Id. at 28-29.


[FN53]. Id. at 29.


[FN54]. Id. at 31.


[FN55]. Id.


[FN56]. Id. at 32-33.


[FN57]. Id. at 34.


[FN58]. Id. at 34-35.


[FN59]. EASTLAND, supra note 5, at 17.


[FN60]. MYRON J. SMITH, JR., WATERGATE: AN ANNOTATED BIBLIOGRAPHY OF SOURCES IN ENGLISH, 1972-1982, at 2 (1983).


[FN61]. EASTLAND, supra note 5, at 18.


[FN62]. HARRIGER, supra note 3, at 18.


[FN63]. EASTLAND, supra note 5, at 18.


[FN64]. Id. See also 38 Fed. Reg. 30,738 (1973).


[FN65]. EASTLAND, supra note 5, at 18.


[FN66]. Id.


[FN67]. Id. at 18-19.


[FN68]. In re Grand Jury Subpoena, 360 F.Supp. 1, 14 (D.D.C. 1973).


[FN69]. Id. at 19.


[FN70]. HARRIGER, supra note 3, at 42.


[FN71]. Id. at 19.


[FN72]. Id.


[FN73]. Id.


[FN74]. Id. at 43.


[FN75]. United States v. Nixon, 418 U.S. 683, 702 (1974).


[FN76]. EASTLAND, supra note 5, at 19.


[FN77]. SMITH, supra note 60, at 1-12.


[FN78]. HARRIGER, supra note 3, at 41.


[FN79]. Id. at 124-26.


[FN80]. White House communications director George Stephanopoulos announced, "the president has decided to ask the attorney general to resolve the issues surrounding the controversy through a special counsel in order to ensure the public a full and fair accounting of this matter. This controversy is becoming too much of a distraction. The president wants to get on with the vital issues facing the American people." White House Briefing with George Stephanopoulos, Appointment of a Special Counsel to Investigate the Whitewater Matter, FED. NEWS SERV., Jan. 12, 1994.


[FN81]. John M. Broder and David Lauter, Clinton Calls For Special Counsel To Probe Land Deal, L.A. TIMES, Jan. 13, 1994, at A1.


[FN82]. Regulatory independent counsel may be appointed under 28 C.F.R. 600 (1997).


[FN83]. See, e.g., Michael Kranish, Whitewater Counsel Replaced, BOSTON GLOBE, Aug. 6, 1994, at 1.


[FN84]. See Pub. L. No. 97-409, 96 Stat. 2039 (1983); Pub. L. No. 100-191, 101 Stat. 1293 (1987); Pub. L. No. 103-270, 108 Stat. 732 (1994).


[FN85]. EASTLAND, supra note 5, at 74-75.


[FN86]. Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).


[FN87]. Id. at 654-97.


[FN88]. 28 U.S.C. 591(b) (1994), 5 U.S.C. 5312-5314.


[FN89]. Id. 591(c).


[FN90]. The Attorney General represented to the Special Division:

[C]ircumstances of this matter call for the appointment of an independent counsel pursuant to 28 U.S.C. 592(c)(1)(A), because investigation by the Department of Justice of the allegations of violations of criminal law by McDougal and other individuals associated with President and Mrs. Clinton in connection with Madison Guaranty Savings & Loan, Whitewater Development Corporation, and Capital Management Services, Inc., would present a political conflict of interest.... Accordingly, I hereby request that the Court appoint a statutory independent counsel as soon as possible ....

Application To The Court Pursuant To 28 U.S.C. 592(C)(1) For The Appointment Of An Independent Counsel In Re Madison Guaranty Savings & Loan Association, Janet Reno, Attorney General of the United States, dated June 30, 1994 (filed with the United States Court of Appeals for the District of Columbia Circuit, Independent Counsel Division, July 1, 1994), p. 3-4.


[FN91]. 28 U.S.C. 592(c)(2)(1).


[FN92]. 28 U.S.C. 591(b)(4) (emphasis added).


[FN93]. Leon Silverman also conducted a second investigation of Ray Donovan in 1985 regarding whether Donovan lied to the grand jury. The 1985 investigation resulted in no indictments.


[FN94]. HARRIGER, supra note 3, at 76-77.


[FN95]. Id. at 84-85; the Independent Counsel Reauthorization Act of 1987, Pub. L. No. 100-191, 101 Stat. 1293 (1987) (codified as amended at 28 U.S.C. 591-599 (1994)).


[FN96]. Id. at 84.


[FN97]. Id. at 86-89.


[FN98]. Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103- 270, 108 Stat. 732 (codified as amended at 28 U.S.C. 591-599 (1994)).


[FN99]. 139 CONG. REC. S15846, S15848 (daily ed. Nov. 17, 1993) (statement of Sen. Cohen).


[FN100]. 28 U.S.C. 566(a) (1994).


[FN101]. Id. 596(b)(2).


[FN102]. Id. 593(b)(2).


[FN103]. Id.


[FN104]. President Aroused, supra note 27.


[FN105]. 28 U.S.C. 599.


[FN106]. See Morrison v. Olson, 47 U.S. 654 (1988).


[FN107]. See 28 U.S.C. 594(e).


[FN108]. In re Madison Guar. Sav. & Loan Assoc., No. 94-1, 1994 WL 913274, at *1 (D.C. Cir. Aug. 5, 1994).


[FN109]. A thorough overview of the technical provisions of the Act is supplied in Chief Justice Rehnquist's opinion in Morrison v. Olson, 487 U.S. 654, 660-65 (1988).


[FN110]. 28 U.S.C. 591(a).


[FN111]. Id. 591(d).


[FN112]. Id.


[FN113]. Id. 592(a)(2)(B)(1).


[FN114]. Id. 592(a).


[FN115]. Id. 592(a)(3).


[FN116]. Id. 592(c)(1)(B).


[FN117]. Id. 592(a)(2).


[FN118]. Id. 592(a)(2)(B)(11).


[FN119]. See infra. IIC.2 and accompanying text.


[FN120]. 28 U.S.C. 592(c).


[FN121]. Id. 592(2)(b)(1).


[FN122]. Id. 592(b).


[FN123]. Id. 592(f).


[FN124]. Id. 49 (Supp. V, 1982).


[FN125]. Id. 49(e).


[FN126]. Id. 594(e). The Special Division's additional duties include receiving reports from the independent counsel regarding expenses incurred, Id. 594(h)(1)(A); granting attorneys' fees upon request to individuals investigated but not indicted by the independent counsel, Id. 593(f); receiving a final report from the independent counsel, Id. 594(h)(1)(B); deciding whether to release the independent counsel's final report to Congress or the public; determining what protective orders, if any, should be issued, Id. 594(h)(2); and terminating the office when the independent counsel's task is completed. Id. 596(b)(2).

The Special Division also has a few powers and duties with regard to the Attorney General, viz: granting extensions of her preliminary investigation, Id. 592(a)(3); receiving her report at the conclusion of her preliminary investigation, Id. 592(b)(1) and 593(C)(2)(B); receiving her report if she fires an independent counsel, Id. 596(a)(2).


[FN127]. Id. 593(b)(3).


[FN128]. Id. 593(b)(3).


[FN129]. See supra note 90 and accompanying table.


[FN130]. S. REP. NO. 95-170, at 15 (1977).


[FN131]. 28 U.S.C. 594(a).


[FN132]. Id.


[FN133]. Id. 597(a).


[FN134]. Id. 594(a)(1)-(3).


[FN135]. Id. 594(a)(6),(7) & (10).


[FN136]. Id. 594(c).


[FN137]. Id. 594(d).


[FN138]. Id. 594(e).


[FN139]. Id. 594(f).


[FN140]. Id. 594(g).


[FN141]. Id. 593(b)(2).


[FN142]. Id.


[FN143]. See Walter Pincus & George Lardner, Jr., ABA President Criticizes "Prosecutorial Zeal," WASH. POST, Feb. 20, 1998, at A10.


[FN144]. The Ethics in Government Act, Pub. L. No. 103-270, 108 Stat. 732 (codified at 28 U.S.C. 591-599 (1994)).


[FN145]. 47 U.S. 654 (1988).


[FN146]. Article II reads in pertinent part,

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, 2, cl. 2. See 28 U.S.C. 593(b)(2) (1996).


[FN147]. U.S. Const., art. II, 2, cl. 2


[FN148]. "The line between 'inferior' and 'principal' officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn." Morrison, 487 U.S. at 671.


[FN149]. The United States Supreme Court determined that the independent counsel is an "inferior officer" for the following reasons, among others:

1. He can be removed by the Attorney General, who is part of the executive branch;

2. he has only limited authority to investigate and, where appropriate, prosecute those matters falling within his jurisdictional grant. He has no general jurisdiction or authority to promulgate policy; moreover, that jurisdiction is given by the Special Division pursuant to the Attorney General's request;

3. the independent counsel is required to follow DOJ procedures and policies to the extent possible; and

4. the office is temporary as, once the investigation and prosecutions are completed, and the independent counsel files his final report, the office is closed and there are no ongoing responsibilities.

See Morrison, 487 U.S. at 671-73.


[FN150]. Morrison, 487 U.S. at 676.


[FN151]. Id. at 679-81; see also U.S. CONST. art III, 2.


[FN152]. U.S. CONST., art. II, 2, cl. 2.


[FN153]. Morrison, 487 U.S. at 681.


[FN154]. Id. at 696-97.


[FN155]. Id. at 679-81; see also U.S. CONST. art III, 2.


[FN156]. 18 U.S.C. 3282 (1994).


[FN157]. 28 U.S.C. 594(1)(3) (1994).


[FN158]. Id. 594(c).


[FN159]. Id. 594(a).


[FN160]. DEPARTMENT OF JUSTICE, PROSECUTION OF PUBLIC CORRUPTION CASES 24 (Feb. 1988) (containing detailed instructions for DOJ attorneys regarding how to investigate and prosecute public corruption cases) [hereinafter DOJ MANUAL].


[FN161]. Id. at 98.


[FN162]. Id. at 147. One entire chapter (Chapter 12) in the DOJ Manual, is dedicated to impressing the prosecutor with the need to remain covert for as long as possible in these investigations.


[FN163]. 28 U.S.C. 592(a)(2) (1994).


[FN164]. For example, in Judge Walsh's Iran-Contra investigation, it was subsequently reported that, while Attorney General Meese was conducting his preliminary investigation, Lt. Col. Oliver North and his secretary, Fawn Hall, began shredding some incriminating documents, altering others, and even taking those documents out of the White House. Ms. Hall then gave those documents to her defense counsel. LAWRENCE WALSH, FIREWALL 62 (1997).


[FN165]. DOJ MANUAL, supra note 160, at 35.


[FN166]. See Section IIB.2 & n.126


[FN167]. 28 U.S.C. 593(c)(1).


[FN168]. Id. 594(e); In re Espy, 80 F.3d 501 (D.C. Cir.1996).


[FN169]. Id. 593(c)(2).


[FN170]. Id. 592(f).


[FN171]. Id. 594(e) (emphasis added).


[FN172]. United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir.1994).


[FN173]. United States v. Tucker, 78 F.3d 1313, 1320 (8th Cir.1996).


[FN174]. 487 U.S. 654 (1988)


[FN175]. In re Sealed Case, 838 F.2d 476 (D.C. Cir.1988); In re Sealed Case, 655 F.Supp. 56 (D.D.C. 1987).


[FN176]. Morrison, 487 U.S. at 667.


[FN177]. Id. at 667.


[FN178]. Id. at 666-67.


[FN179]. Id.


[FN180]. Id.


[FN181]. Id. at 668.


[FN182]. Id.


[FN183]. Id.


[FN184]. Id.


[FN185]. Id. at 659-60.


[FN186]. See H.R.REP. NO. 100-452, reprinted in 1987 U.S.C.C.A.N. 2185.


[FN187]. 28 U.S.C. 594(e).


[FN188]. In re Espy, 80 F.3d 501, 507-08 (D.C. Cir.1996) (citing United States v. Tucker, 78 F.3d 1313, 1321 (8th Cir.1996)).


[FN189]. Id. at 506.


[FN190]. In re Grand Jury Subpoenas Duces Tecum 78 F.3d 1309 (8th Cir. 1996).


[FN191]. The grant provided: "The Independent Counsel shall have jurisdiction and authority to investigate other allegations or evidence of violation of any federal criminal law, other than a class B or C misdemeanor or infraction, by any person or entity developed during the Independent counsel's investigation referred to above and connected with or arising out of that investigation." Id.


[FN192]. Hubbell was a covered person under 28 U.S.C. 591(b).


[FN193]. Webster Hubbell was the defendant in this case. See In re Madison Guar. Sav. & Loan Assoc., No. 94-1, 1994 WL 913274 at *1 (D.C, Cir., Aug. 5, 1994).


[FN194]. United States v. Tucker, 78 F.3d 1313, 1315-16 (8th Cir.1996).


[FN195]. Id. at 1320.


[FN196]. Defendants were indicted in early June 1995, trial judge dismissed the case on September 5, 1995, the Eighth Circuit reversed in March 1996, but issued a stay pending petition to the Supreme Court for review; the Supreme Court denied the petition in October 1996.


[FN197]. In re Espy, 80 F.3d 501 (D.C. Cir.1996).


[FN198]. Blair v. United States, 250 U.S. 273, 282-83 (1919).


[FN199]. United States v. R. Enter., Inc., 498 U.S. 292, 300 (1991).


[FN200]. In In re Espy the jurisdictional grant included:

ORDERED by the Court ... that DONALD C. SMALTZ, ... is hereby appointed Independent Counsel with full power, independent authority, and jurisdiction to investigate to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Alphonso Michael (Mike) Espy, Secretary of Agriculture, has committed a violation of any federal criminal law, ... relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture.

The Independent Counsel shall have jurisdiction and authority to investigate other allegations or evidence of violation of any federal criminal law, other than a Class B or C misdemeanor or infraction, by any organization or individual developed during the Independent Counsel's investigation referred to above and connected with or arising out of that investigation.

The Independent Counsel shall have jurisdiction and authority to investigate any violation of 28 U.S.C. 1826, or any obstruction of the due administration of justice, or any material false testimony or statement in violation of federal criminal law, in any investigation of the matters described above.

80 F.3d 501, 503 (D.C. Cir.1996).


[FN201]. United States v. Dionisio, 410 U.S. 1, 17 (1973).


[FN202]. See infra Part IIID2.


[FN203]. In re Espy, 80 F.3d at 507 n.2.


[FN204]. E.g., Harrison v. United States, 7 F.2d 259, 263 (2d Cir.1925).


[FN205]. 18 U.S.C. 1001 (1996). There used to be a notion rampant in some of the circuits that a false "exculpatory no" uttered to criminal investigators was beyond the reach of the statute, but the Supreme Court dashed that limitation in a decision of January of this year. Brogan v. United States, 118 S.Ct. 805, 810 (1998).


[FN206]. See United States v. Ferrouillet, No. Crim. A. 96-198, 1997 WL 266627 (E.D. La. May 20, 1997) (sentencing opinion).


[FN207]. Id. at *1.


[FN208]. Id.


[FN209]. See United States v. Crop Growers Corp., 954 F.Supp. 335 (D.D.C. 1997); United States v. Espy, 1996 WL 586364 (E.D. La. 1996); United States v. Sun-Diamond Growers, 941 F.Supp. 1262 (D.D.C. 1996).


[FN210]. See In re Espy, 80 F.3d 501 (D.C. Cir.1996) (finding jurisdiction of independent counsel over alleged improper gifts to the Secretary of Agriculture).


[FN211]. 18 U.S.C. 3161(c)(1) (1996).


[FN212]. Id. 594(h)(1)(B) (1994).


[FN213]. Id. 594(h)(2).


[FN214]. Id. 594(h)(3).


[FN215]. Id. 593(f)(1).


[FN216]. In re North (Dutton Fee Application), 11 F.3d 1075, 1079 (D.C.Cir.1993).


[FN217]. In re Nofziger, 938 F.2d 1397, 1400 (D.C. Cir.1991).


[FN218]. Id. at 1402.


[FN219]. 28 U.S.C. 593(f)(1).


[FN220]. Id. 594(f)(2).


[FN221]. Id. 594(k)(1).


[FN222]. Linda Greenhouse, Washington Talk: Independent Prosecutors; Law Offices Are Abuzz Over Report on Meese, N.Y. TIMES, July 28, 1988, at A22.


[FN223]. The D.C. Circuit held the Independent Counsel Act unconstitutional in January 1988 in In re Sealed Case, 838 F.2d 476 (1988); five months later, the Supreme Court reversed the court and held the law constitutional. Morrison v. Olson, 487 U.S. 654 (1988).


[FN224]. Aaron Epstein, Meese Deputy Attacks Special Prosecutors, ORANGE COUNTY REG., June 17, 1987, at A1.


[FN225]. George Lardner, Justice Dept. Attacks Special Counsel, WASH. POST, June 17, 1987, at A1.


[FN226]. Epstein, supra note 224, at A1.


[FN227]. Id.


[FN228]. See, e.g., Robert Jackson, Special Counsel May Be Biased, Deaver Charges, L.A. TIMES, Mar. 17, 1978, at 21; Deaver Says His High Visibility Caused Downfall, REUTERS, Mar. 15, 1987.


[FN229]. See, e.g., Stuart Taylor, Who Handles the Next American Scandal?, AM. LAWYER, Sept. 1992, at 5; Larry Magarsak, North Lawyers Calls Investigators "Vigilantes," ASSOCIATED PRESS, March 9, 1987.


[FN230]. See, e.g., Christopher Drew, Prosecutor May Clear Meese, CHI. TRIB., Apr. 2, 1998, at C1; George Lardner, Jr., McKay Reports Four "Probable' Meese Violations, WASH. POST, Jul. 19, 1998, at A1.


[FN231]. Susan Cornwell, Democrats Mad, But White House Quiet About Starr, REUTERS, Aug. 8, 1994; Ruth Marcus & Rebecca Fowler, Starr Urged to Decline Counsel Post, WASH. POST, Aug. 8, 1994, at A1.


[FN232]. See, e.g., David Savage, Independent Counsel Has Plenty of Time and Money, L.A. TIMES, Jan. 12, 1998, at A1.


[FN233]. See, e.g., David Grann, Prosecutorial Indiscretion, THE NEW REPUBLICS, Feb 2, 1998, at 24; Daniel Klaidman, Another Setback for Smaltz, LEGAL TIMES, July 3, 1995, at 1; Serge Kovaleski, Tyson's Attorney Labels Espy Probe a "Witch Hunt,' WASH. POST, Dec. 23, 1994, at A8; Widening of Espy Probe is Criticized as Excessive, WASH. POST, Feb 9, 1995, at A1.


[FN234]. The Fifth Amendment reads in relevant part, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." U.S. Const. amend. V.


[FN235]. United States v. R. Enter., Inc. 498 U.S. 292, 297 (1991).


[FN236]. Fed. R. Crim. P. 6(e).


[FN237]. Douglas Oil Co. of Cal. v. Petrol Stops Northwest, Inc., 441 U.S. 211, 220 (1979).


[FN238]. Federal Rule of Criminal Procedure 6(e)(2) provides:

A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of the Subdivision shall not disclose matters occurring before the grand jury except as otherwise provided in these rules. No obligation of secrecy may be imposed on any person except in accordance with the rule. A knowing violation of Rule 6 may be punished as a contempt of court.

Id.


[FN239]. Independent Counsel Kenneth Starr has recently been blasted in the press as "nutty," see Cass Sunstein on Investigating the Investigator (CNN television broadcast, Feb. 5, 1998); someone who uses "scuzzy, slimy tactics," see James Carville on Meet the Press (NBC television broadcast, Jan. 25, 1998); and whose inquiries Senator Patrick Lehey (D-Vt.) called "the most partisan, ends-justifies-the-means-investigation that I can remember in my life," see Investigating the Investigator (CNN television broadcast, Feb. 5, 1998). In defense, this federal prosecutor has only been able to say: "We are going by the book. We want the truth. We want all the truth, and we want it completely, accurately, and we will satisfy ourselves that we are getting the truth," see Investigating the Investigator (CNN television broadcast, Feb. 5, 1998). Other defenders of the independent counsel have said this investigation, by all appearances, is indeed a proper and fair investigation, using methods and tactics utilized by investigators and prosecutors all across the country. Those defenders, however, have been whistles in the proverbial gale-force winds of condemnation.


[FN240]. Branzburg v. Hays, 408 U.S. 665, 707 (1972).


[FN241]. See Part IIIC2c, supra.


[FN242]. The United States District Court for the District of Columbia has a local rule which is typical of those found in most federal districts. The rule provides:

A motion or application filed in connection with a grand jury subpoena or other matter occurring before a grand jury, all other papers filed in support of or in opposition to such a motion or application, and all orders entered by the court in connection therewith, shall be filed under seal. Such a motion or application shall be assigned a Miscellaneous case number. All hearings on matters affecting a grand jury proceeding shall be closed, except for contempt proceedings in which the alleged contemnor requests a public hearing....

U.S. DIST. CT. D.C. R. P. CRIM. 302.


[FN243]. Release of Information by Personnel of the Department of Justice Relating to Criminal and Civil Proceedings, 28 C.F.R. 50.2 (1998).


[FN244]. 28 C.F.R. 50.2(b)(2).


[FN245]. The guidelines:

(3) Personnel of the DOJ, subject to specific limitations imposed by law or court rule or order, may make public the following information:

(i) The defendant's name, age, residence, employment, marital status, and similar background information.

(ii) The substance or text of the charge, such as a complaint, indictment, or information.

(iii) The identity of the investigating and/or arresting agency and the length or scope of an investigation.

(iv) The circumstances immediately surrounding an arrest, including the time and place of arrest, resistance, pursuit, possession and use of weapons, and a description of physical items seized at the time of arrest.

Disclosure should include only incontrovertible, factual matters, and should not include subjective observations. In addition, where background information or information relating to the circumstances of an arrest or investigation would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public.

28 C.F.R. 50.2(b)(3).


[FN246]. See supra note 238 and accompanying text.


[FN247]. See generally SUZANNE GARMENT, SCANDAL: THE CRISIS OF MISTRUST IN AMERICAN POLITICS (1991).


[FN248]. The term "Boland Amendments" refers to a series of amendments to various appropriation bills named after their author, Edward Boland (D-Mass.). These amendments, beginning in 1982, provided that

[n]o funds available to the Central Intelligence Agency, the Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended of the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.

These amendments had no criminal penalties. Pub. L. No. 98-618. See LAWRENCE WALSH, I FINAL REPORT OF THE INDEPENDENT COUNSEL FOR IRAN/CONTRA MATTERS 2 (1993) [hereinafter FINAL REPORT].


[FN249]. LAWRENCE WALSH, FIREWALL 116 (1997).


[FN250]. See, e.g., Walter Pincus & George Lardner, Jr., Bush Stance, Iran- Contra Note at Odds: Weinberger Memo Says President 'Favored' Arms-Hostages Plan, WASH. POST, Oct. 31, 1992, at A1 (recounting the bases for Weinberger's October 30, 1992 indictment for making false statements).


[FN251]. On Christmas Eve, 1992, President Bush pardoned Caspar Weinberger and five others who had been indicted by Walsh. In his statement, Bush called the prosecutions "a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences." Text of Bush's Weinberger Pardon, Reuters American Newswire, Dec. 24, 1992.


[FN252]. See Lawrence E. Walsh, The Need for Renewal of the Independent Counsel Act, 86 GEO L.J. 2379, 2380 n.12 (1998).


[FN253]. The Independent Counsel Reauthorization Act of 1993: Hearing on S. 24 Before the Senate Comm. on Governmental Affairs, 103d Cong. (1993) (statement of Janet Reno, Attorney General).


[FN254]. "I think Starr should decline it," Clinton's attorney said on August 7, 1994. "I think there is a real appearance of unfairness. If Starr found anything wrong, I don't think anybody could have any confidence in that." Ruth Marcus & Rebecca Fowler, Starr Urged to Decline Counsel Post, WASH. POST, Aug. 8, 1994, at A1.


[FN255]. The personal attacks included, but were not limited to, the dissemination of misinformation about Judge Starr's prosecutors, which caused his office to publicly note:

This office has received repeated press inquiries indicating that misinformation is being spread about personnel involved in this investigation ... Federal law makes it a crime for someone, by any threatening letter or communication, to influence, intimidate, or impede a member of a grand jury, a prosecutor, and certain other officials.

David Willman et al., Starr Subpoena Sharpens Clash With Clinton, L.A. TIMES, Feb. 25, 1998, at A1.

Sidney Blumenthal, a Clinton communications advisor, in a speech at Harvard University, stated:

His self-righteousness, his insecurity, his breathtaking hypocrisy have fueled an onslaught on rights that is unethical, illegal, and always political. Now he has appointed himself grand inquisitor for life.

Paul Canellos, White House Aide Blumenthal Aims Broadside At Starr, BOSTON GLOBE, Apr. 24, 1998, at A5.


[FN256]. Chuck Raasch, Carville Accuses Starr of Being Obsessed with "Getting" Clinton, GANNETT NEWS SERVS., Feb. 24, 1998.


[FN257]. Good Morning America, (ABC television broadcast, Feb. 26, 1998).


[FN258]. CBS News/NYT Poll, National Pollwatch, The Bulletin's Frontrunner (CBS television broadcast, Jan. 28, 1998).


[FN259]. Today Show: Results of NBC News & Wall Street Journal Poll On President's Approval Ratings (NBC television broadcast, Apr. 23, 1998).


[FN260]. David Johnston, Dispute at Justice Department Over Clinton Inquiries Comes into Sharper Focus, N.Y. TIMES, Nov. 25, 1997, at A18; Jane Mayer, Janet Reno, Alone, THE NEW YORKER, Dec. 1, 1997, at 40.


[FN261]. Time's story stated:

In his first conversation with TIME, Smaltz did not admit to knowing Henrickson. But when asked about the letter of immunity and presented with information that TIME had gathered, the independent counsel spoke with unusual candor. He found Henrickson's story "very interesting," he said, partly because in their first meeting, Henrickson did not mention the envelopes until the day was nearly finished. "Based upon the way his story unfolded, it has a ring of truth to it," said Smaltz. "If a guy's got an agenda, usually he can't wait to tell you about it."

Richard Behar, On Fresh Ground, TIME MAG., Dec. 26, 1994.


[FN262]. G. King, Tyson Foods Outraged By Smaltz's Ongoing Witch Hunt, THE MORNING NEWS OF N. ARK., Dec. 13, 1994, at A1.


[FN263]. In reaction to the Time article, the then-White House counsel publicly criticized me. Widening of Espy Probe is Criticized as Excessive, WASH. POST, Feb. 9, 1995, at A1. The Washington Post reported that, according to Tyson's Washington attorney, "Smaltz is absolutely detached from his moorings and is just roaming around in search of some case that will, in his view, promote his ambitions." Id.


[FN264]. President Bill Clinton, Press Conference (Nov. 3, 1995) (transcript by Federal News Service).


[FN265]. The indictment, United States v. Espy alleges Espy received things of value directly and indirectly--for himself, his family, and his girlfriend from prohibited sources totaling approximately $35,000.


[FN266]. Daniel Klaidman, Reno Reins In Espy Prosecutor, LEGAL TIMES (Nov. 27, 1995).


[FN267]. Robert L. Jackson and Sara Fritz, Wider Espy Inquiry Reportedly Denied, L.A. TIMES, Mar. 19, 1995, at A7.


[FN268]. Klaidman, supra note 266; Serge F. Kovalski, Judge Limits Scope of Subpoenas in Espy Investigation, WASH. POST, (Jan. 15, 1995) at A1.


[FN269]. Angie Cannon, Use of Probes As 'Political Weapons' Raises Questions of Fairness, BUFFALO NEWS, Oct. 1, 1997, at 6A (quoting Michael Zeldin, successor independent counsel in the Clinton passport investigation).


[FN270]. Id.


[FN271]. In re Nofziger, 925 F.2d 428, 442 (D.C. Cir.1991).


[FN272]. Michael Murphy, Probes of Politicians Costly: Taxpayers Pay as Officials Run Bill Into Millions, THE ARIZONA REPUBLIC, July 25, 1996, at A1.


[FN273]. Id.


[FN274]. Elaine Sciolino, Hard-Nosed Congressman Ready to Roar, AUSTIN AM.- STATESMAN, Sept. 28, 1997, at A21.


[FN275]. See Toni Locy, Independent Counsels Have Spent $17 Million Probing Clinton, Aides; GAO Report Comes Amid Growing Concern About Reining in Investigators, WASH. POST, Apr. 2, 1996, at A4.


[FN276]. Jonathan D. Salant, Senate Spends $60M on Investigations, ASSOCIATED PRESS, Jan. 8, 1998.


[FN277]. 28 U.S.C. 593 (b)(3) (1994).


[FN278]. Sam Dash, Why We Have the Independent Counsel Law, WASH. POST, Jan. 9, 1998, at A21.


[FN279]. See 28 U.S.C. 596(a).


[FN280]. Ethics in Government Act Amendments of 1982, Hearing Before the Subcomm. on Oversight of Gov't Management of the Senate Comm. on Governmental Affairs, 97th Cong. 7 (1981) (testimony of Associate Attorney General Guiliani).


[FN281]. See 28 U.S.C. 595(a)(1) (1996).


[FN282]. See id.; see also U.S. CONST. art. I, 2.


[FN283]. 28 U.S.C. 596(b)(2).


[FN284]. Id. 594(l)(1)(A)(iii).


[FN285]. Id. 594(h)(1)(A).


[FN286]. Id. 596(b)(2)


[FN287]. Id. 594(f).


[FN288]. The Independent Counsel Reauthorization Act: Hearing on S. 24 Before the Senate Comm. on Governmental Affairs, 103d Cong. 2-5 (1993) (statement of Janet Reno, Attorney General).


[FN289]. From July, 1994 to April, 1998, Attorney General Reno appointed: Starr, Smaltz, Barrett, Pearson, Von Kann, Bruce, and Lancaster.


[FN290]. Stephen Labaton, Experience Saves A Once-Enthusiastic Reno on Applying the Independent Counsel Law, N.Y. TIMES, Nov. 26, 1997, at A1.


[FN291]. See also Mayer, supra note 260, at 40. "But in recent years, top advisors to Ms. Reno have complained bitterly about the quality of independent prosecutors who are picked by a panel of three appellate judges ... and in recent days some Justice Department officials have derisively dismissed the suggestion that the outside prosecutors selected by [the] panel are in fact any more independent than Ms. Reno." David Johnston, Dispute at Justice Department Over Clinton Crimes Into Sharper Focus, N.Y. TIMES, Nov. 25, 1997, at A1.


[FN292]. Cf. ABA MODEL RULES OF PROFESSIONAL RESPONSIBILITY Rule 8.2, Judicial & Legal Officials ("(a) A Lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicator, officer, or public legal official, or of a candidate for election or appointment to judicial or legal office.").


[FN293]. 28 U.S.C. 596(a)(1).


[FN294]. Id. 592(c)(1).


[FN295]. Susan Schmidt & Roberto Suro, Troubled From the Start, WASH. POST, Oct. 3, 1997, at A1.


[FN296]. Bob Woodward, Attorneys For Gore, DNC Knew About "Hard Money," WASH. POST, Sep. 9, 1997, at A4.


[FN297]. Roberto Suro, "Crisis in Confidence" Prompted Reno's Decision, WASH. POST, Sept. 18, 1997, at A10.


[FN298]. Facts on File World News Digest, U.S. Attorney General Reno Declines to Appoint Counsel To Investigate, December 4, 1997, p. 877.


[FN299]. Dale Van Natta, FBI Chief Still Sees Need for Campaign Finance Prosecutor, N.Y. TIMES, May 2, 1998, at A10.


[FN300]. Government's Revised Supplemental Memorandum in Aid of Sentencing, at 2-3, United States v. Sun-Diamond Growers of California, 138 F.3d 961 (D.C. Cir.1998) (No. 96-0193).


[FN301]. Id.


[FN302]. Id.


[FN303]. Sara Fritz & Ronald J. Ostrow, FBI, Justice Dept. Clash Over Espy Probe, L.A. TIMES, June 10, 1994, at A15.


[FN304]. Id.


[FN305]. Id.


[FN306]. Id.


[FN307]. The application stated:

investigation developed evidence that Secretary Espy accepted gifts from Tyson Foods in the course of two separate trips, one to Arkansas in May 1993 and one to Texas in January 1994. The gifts fall into the categories of entertainment, transportation, lodging and meals. In total, the gifts amount to at least several hundred dollars in value.

In re Espy, Application to the Court Pursuant to 28 U.S.C. 592(c)(1) for the Appointment of an Independent Counsel, PN No. 94-2, at 2 (D.C. Cir. Aug. 8, 1994).


[FN308]. Sun Diamond Growers of California, Crop Growers Corporation, Tyson Foods, Inc., 5M Farming Enterprises, Municipal Healthcare Cooperative Inc., and Smith Barney Inc. were charged and found civilly liable for procuring a breach of Secretary Espy's fiduciary duty to the USDA.


[FN309]. James H. Lake, Brook K. Mitchell, Sr., Alvarez Ferrouillet, John Hemmingson, Jack L. Williams (guilty verdict set aside reindicted and awaiting trial), Richard Douglas, and Ronald H. Blackley.


[FN310]. Ferrouillet & Ferrouillet.


[FN311]. United States v. Sun-Diamond Growers of California, 941 F.Supp. 1262, 1266 (D.D.C. 1996).


[FN312]. Id. at 1269.


[FN313]. United States v. Espy, 1996 WL 586364, *4-5 (E.D. La. 1996).


[FN314]. 15 U.S.C. 714m.


[FN315]. United States v. Crop Growers Corp., 954 F.Supp. 335, 351-54 (D.D.C. 1997).


[FN316]. United States v. Espy, 1996 WL 586364, *4-5 (E.D. La. 1996).


[FN317]. United States v. Sun-Diamond Growers of California, 138 F.3d 961 (D.C. Cir.1998).


[FN318]. 18 U.S.C. 201.


[FN319]. United States v. Evans, 572 F.2d 455, 480 (5th Cir.1978).


[FN320]. Id. at 481.


[FN321]. SEN. REP. NO. 91-2213, reprinted in 1992 U.S.C.C.A.N. 3852. This federal gratuities statute has been widely used throughout most federal districts, but relatively sparingly in the District of Columbia where, by one anonymous knowledgeable observer's estimate, about 60% of the federal officials covered by the statute are headquartered.


[FN322]. United States v. Sun-Diamond Growers of California, 138 F.3d 961 (D.C. Cir.1998).


[FN323]. Id.


[FN324]. Id.


[FN325]. See United States v. Bustamante, 42 F.3d 933, 940 (5th Cir.1995) ("To find a public official guilty of accepting an illegal gratuity ... [g]enerally, no proof of a quid pro quo is required; it is sufficient for the government to show that the defendant was given the gratuity simply because he held public office. In addition, the jury need not find that the official accepted the gratuity with the intent to be influenced. The jury must only conclude that the evidence established beyond a reasonable doubt that the official accepted unauthorized compensation.") (citations omitted); United States v. Standefer, 610 F.2d 1076, 1080 (3d Cir.1979) (en banc) ("All that was required in order to convict [the defendant] was that the jury conclude that the gifts were given by him for or because of [the public official's] official position, and not solely for reasons of friendship or social purposes."); United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir.1976) (upheld the sufficiency of evidence for a gratuity conviction, "[t]he jury could properly conclude from the testimony at trial that appellant knew [the public official] was in a position to use his authority in a manner [desirable to the appellant]); United States v. Umans, 368 F.2d 725, 730 (2d Cir.1966) ("[the gratuities section of 18 U.S.C. 201] makes it criminal to pay an official a sum to which he is not entitled to receive regardless of the intent of either payor or payee with respect to the payment.").


[FN326]. The DOJ is divested of jurisdiction and the independent counsel has full power to "[appeal] ... any decision of a court in any case ... in which ... [he] participates in an official capacity. 28 U.S.C. 594.


[FN327]. United States v. Espy, 989 F.3d 17, 21-24 (D.D.C. 1987).


[FN328]. 21 U.S.C. 622, entitled "Bribery of or gifts to inspectors or other officers and acceptance of gifts," provides in pertinent part that: "any inspector, deputy inspector, chief inspector, or other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter ... who shall receive or accept from any person, firm, or corporation engaged in commerce any gift, money, or other thing of value, given with any purpose or intent whatsoever, shall be deemed guilty of a felony and shall, upon conviction thereof, be summarily discharged from office ...." Id.


[FN329]. We also appealed the dismissal of Count 39, which charged Espy with lying to the President's Chief of Staff (part of the Executive Office of the President) about the nature and extent of gratuities he received in violation of 18 U.S.C. 1001. The trial judge dismissed this count because he concluded that the Executive Office of the President was neither a department nor an agency of the United States Government within the meaning of 18 U.S.C. 1001.

 

 

 

 

 

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