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Address by Independent Counsel Donald C. Smaltz

to

The Commonwealth Club of California

September 18, 1998

San Francisco, California

 

 

IS THE INDEPENDENT COUNSEL TOO INDEPENDENT ?

 

Last week marked the fourth anniversary of my being named to investigate criminal allegations against former Agriculture Secretary Mike Espy. I can’t say that the anniversary was cause for celebration — it wasn’t.

I took the job with the expectation that I would be done in less than a year, and would be able to return to California to be with my wife and two young sons on weekends. Both expectations were incorrect, and way wide of the mark.

This investigation has taken over four times as long as I believed, and I’m lucky to get home one weekend out of five. Had I looked to the great Yankees catcher-turned-philosopher Yogi Berra for advice before I took this job, he might have said to me:

"You got to be careful if you don’t know where you’re going, because you might not get there."

The problem with any criminal investigation, including an Independent Counsel investigation, is you don’t know where you are going to wind up when you start.

An etymologist will tell you that the word investigate comes from the Latin root word "vestigium" — footprint or track. That’s what a criminal investigator does  — follows the footprints.

In Washington, D.C., which one sage described as "45 square miles of real estate — surrounded by reality," there are a number of Independent Counsel investigations, and there is a lot of criticism about Independent Counsels and where they are going.

One of the those criticisms is that the Independent Counsel is too independent.

No one will be surprised to hear that I disagree with that notion, but I would like to explain to you today that my conclusions go beyond any desire to protect my turf.

When critics charge that the Independent Counsel is too independent, they assert he has uncontrolled power, a limitless budget, and a license to investigate anything and anyone, for a long as he likes.

While that makes good copy, I have to tell you, it just isn’t so.

For one thing, the Attorney General can fire the Independent Counsel for "good cause." Critics charge that this is unlikely to happen because firing an Independent Counsel is a politically untenable course, but that seems to me to be more a virtue of the system than a drawback. It means that the fate of the Independent Counsels lies in the hands of the electorate, not the politicians.

We need to remember that the firing of Special Prosecutor Archibald Cox turned out badly for the Nixon administration, not because Nixon did not have the authority to fire the special prosecutor, but because doing so did not play well in Peoria.

As we all know, in response to Special Prosecutor Cox's demand for White House tapes, Nixon ordered Cox's firing. In reaction, the then-Attorney General and his deputy both resigned rather than fire the Special Prosecutor. The task fell to then-Solicitor General Robert Bork, who obeyed the order and dismissed Cox.

Bending to public outrage, Nixon appointed Leon Jaworski, who eventually won access to tapes that implicated Nixon in the cover-up and led to his resignation.

The difference between Special Prosecutor Cox and today’s Independent Counsel is that the statute now spells out that the Independent Counsel can only be fired for "good cause." But he surely can be fired.

The second constraint on the Independent Counsel is Congress, which can summon him to testify and even institute impeachment proceedings against him as provided in Article I, section 2 of the Constitution. This is a fairly drastic weapon to be employed against the Independent Counsel, to be sure, but it is the same one that overhangs the Attorney General.

Third, the Office of Independent Counsel is required to subject itself to semi-annual General Accounting Office audits, the results of which are published. Most agencies undergo such audits only once a year and draw very little, if any, public attention. Moreover, the Independent Counsel’s office is required to hire a staff controller to oversee and certify the correctness of its expenses.

Fourth, the office submits semi-annual expense reports to the Special Division, the three-judge panel that appoints Independent Counsels. The Special Division periodically reviews the Independent Counsel's case status to determine whether the office's function is complete and should be terminated.

Fifth, the Independent Counsel is subject to the same Justice Department guidelines and legal canons that govern all prosecutors. You can be sure we hear about these from the defense bar, which raises them at every turn in the road in an effort to derail or slow down the investigation.

Finally, there is the unprecedented public scrutiny and press coverage. Only in Independent Counsel investigations, before the investigation begins — indeed, even before the Independent Counsel is appointed — does the Attorney General announce publicly she is initiating a preliminary investigation, and then file a public document advising the world about her preliminary investigation results, and that she is requesting the appointment of an Independent Counsel.

As a result of this unique process, not only has the subject had notice of his transgression and the opportunity to get rid of bothersome evidence, but the public’s attention is now focused on the investigation before the investigator has even been appointed, let alone begun his investigation.

Despite all this, the Independent Counsel is independent — independent of the Justice Department, the Attorney General, and the President, the normal chain of command for federal criminal prosecution. We do not report to them, and we do not ask their permission to take action within our very limited sphere of responsibility. In the end, it is our decision — again, within our very limited jurisdiction — as to whom to investigate and whom to prosecute.

What experience has taught us, and what the Independent Counsel Act tries to address, is the problem of the politics involved in the investigation of high-level political officials. The concern is that the Attorney General may pull punches when it comes to investigating high-level officials, whether out of personal or political loyalty.

What if the Attorney General were the sister of the President? What if the Attorney General were the lawyer and best friend of the President before he became President? If the President is the subject of the investigation, then the Attorney General — at a minimum — owes her job and allegiance to, and is obligated to take her orders from, the very person under investigation. But because both the investigator and the subject of the investigation hold a position of public trust, it is imperative that the inquiry that is conducted be conducted fully, with no hedging.

Attorney General Janet Reno, speaking before Congress as it debated the re-enactment of the law, said in 1993 that "there is an inherent conflict whenever senior Executive Branch officials are to be investigated by the Department of Justice and its appointed head, the Attorney General." She believed that the Act serves as a vehicle to further the public's perception of fairness and thoroughness in such matters. While Attorney General Reno's opinion of the law may have changed somewhat since that 1993 testimony, I think her premise was true then and is true today.

The public needs to be sure that criminal conduct, if it occurred, has been rooted out. And if the allegations are unfounded, an independent investigator can reassure the public that no cover-up occurred.

This is why we have this rather unwieldy institution of the Independent Counsel today — because of a deep-seated suspicion that neither high executive officials, nor anyone else, for that matter — can investigate and prosecute themselves with detachment and objectivity.

As the Court of Appeals for the District of Columbia once said:

"the entire purpose of the independent counsel was to provide independence from the executive branch."

That fundamental proposition is often obscured by the intense political swirl surrounding Independent Counsels.

For most Americans today, at least among those of us old enough to remember the political turmoil of the 1970s, the reason we have Independent Counsels today is Watergate. But while Watergate was a watershed, it was far from the first instance in American political history to illustrate why the power to investigate the highest levels of the Executive Branch cannot reside solely in the hands of the officials under investigation.

In the years before the firing of Archibald Cox, five presidents appointed special prosecutors to investigate high-level government corruption. Ulysses S. Grant, whose two terms in office have been called "the most disgraceful years in American history" because of the widespread graft and corruption, was the first to appoint a special prosecutor.

This attempt at independent investigation and prosecution of the upper echelons of the Executive Branch did not end particularly well. When the special prosecutor got too close to Grant’s close friend and personal secretary, the President called for a military tribunal to investigate his secretary, thereby attempting to kill the special prosecutor’s investigation. The special prosecutor ignored the military tribunal and took his evidence on Grant’s secretary directly to the grand jury — which did not relinquish the case to the military tribunal — and thereafter indicted Grant’s secretary.

However, shortly thereafter, in the trial of another administration official, the special prosecutor, in closing argument, condemned Grant for interfering with the Secretary of Treasury’s duties in that case. Word of the criticism made its way back to Grant, who fired the prosecutor on the ground that his statements were impertinent.

The press, while praising the special prosecutor for pursuing the case, condemned his attack on the President in terms that might not seem so far removed from the present day.

A New York Times editorial of December 11, 1875 stated:

"It would be an extraordinary weakness for any government to confess itself obliged to sustain a representative who had outraged truth and propriety alike, in order to make a base attack upon the character of the Chief."

Presidents Garfield and Theodore Roosevelt appointed special prosecutors who achieved some degree of success, as did the special prosecutors who investigated the Teapot Dome scandal of the Harding administration in the mid-1920s.

Harry Truman’s special prosecutor, appointed to investigate the Internal Revenue Bureau scandal, came under immediate attack — first because it was well known that Truman appointed him only because of intense Congressional pressure. He had little backing from Truman and, when it came to light that this special prosecutor’s company had supplied the Chinese and Koreans with oil tankers mere weeks before the outbreak of the Korean War, he lost the confidence of almost everybody else. Following an outburst before a Senate committee, the media savaged the prosecutor and soured the public’s opinion.

When the Special Prosecutor insisted on gaining access to the Attorney General’s personal records, the Attorney General promptly fired him. He had served for a total of 63 days in office. In response, Truman fired the Attorney General and appointed another. The investigation ultimately led to the firing of one Justice Department official for unethical conduct.

So Archibald Cox was neither the first special prosecutor, nor the first to be fired. Of these six presidents who appointed special prosecutors, three — Grant, Truman, and Nixon — fired them. It was, however, Nixon’s firing of Cox that led to the first attempt to create a statutory solution to the recurrent problem of investigating the federal government’s top executive officials.

If history demonstrates a real need for an independent entity to conduct the investigations that cannot be entrusted to the Department of Justice, why have the Independent Counsels drawn so much fire?

I suggest that there are at least three factors that intensify the public scrutiny of the Independent Counsels, scrutiny far beyond what the Justice Department normally receives. The first is the very public nature of the Independent Counsel’s assignment. By definition, what the Independent Counsel does is of great interest to the public, because it can affect those at the very top of the national government. And when the President is the focus of the investigation, with impeachment an outcome lurking somewhere in the background, the Independent Counsel’s work can be of profound historic importance.

A second reason for the intense scrutiny visited upon the Independent Counsels is the inevitable political crossfire. The officials under investigation are at the apex of one of the two major political parties; the outcome of the investigation will be seen by the political types as a victory for one party and a defeat for the other. The Independent Counsel can and must remain politically neutral while the atmosphere surrounding him is intensely politicized.

Finally, the expense of Independent Counsel operations has become a lightning rod for criticism. A big part of the reason for this is that the expense of the investigation is continually made public.

While it’s impossible to quantify the overhead costs for any given Justice Department investigation, the Independent Counsel’s cost accounting includes every penny we spend, including all overhead. Moreover, a good deal of our expenses — about 30% in my case — go to reimburse the government for Assistant United States Attorneys, other Department of Justice personnel, and law enforcement agents detailed to my office.

Criminal investigations are expensive, and DOJ has made an apparent practice of neither tracking nor reporting costs of investigations for specific cases. If they do have the figures, they don’t publicly report them. There are a couple of examples to which to look, however.

We know that when the Attorney General first appointed Bob Fiske (the Justice Department employee who preceded Ken Starr) to investigate "Whitewater," in about eight months DOJ’s costs totaled $6-million, or about $750,000 per month. According to then-Senator / now-Secretary of Defense Cohen, it cost the Justice Department $19-million to prosecute General Noriega, the deposed head of Panama, on drug charges. Senator Thompson’s investigation of the illegal campaign contributions to the Democratic and Republican National Committees reportedly cost about $4.35-million for a nine-month period, or approximately $500,000 per month. The Senator’s costs were purely investigative, and did not include prosecutorial costs. An Independent Counsel is responsible not only for investigation but also prosecutions, appeals, and preparation of the Final Report to the public. The cost of his office’s operations are directly proportional to the length of time it takes to complete each of these four phases. While the Independent Counsel has direct control over the size of his staff, he doesn’t have the ability to control the length of time it takes to complete any one of the four phases.

The amount of resistance to his efforts to collect evidence in the investigative stage has a substantial impact on how quickly his investigation will be completed. The more obstructions, the longer the time and the greater the cost.

Consider that the Monica matter has taken Ken Starr from January through August to complete an investigation and prepare a Congressional referral. In the process, he’s had to contend with numerous obstructive tactics that required numerous appellate court proceedings.

Once a case is indicted, the time it takes to bring the case to trial is within the control of the trial judge, and not the prosecutor. Likewise, the time it takes to resolve the appellate process is determined solely by the appellate courts. Extended trial and appellate time equals significant prosecution costs, over which the Independent Counsel has no control — and therein lies the rub.

There is no denying that it is very inefficient and costly to start a new law office from scratch every time a new Independent Counsel investigation is launched, but that is what occurs. And that is a price we pay for locating the Independent Counsel totally outside the authority of the Justice Department.

Neither economic efficiencies nor cost benefit analyses are the ultimate measures for determining whether potential criminal violations should be investigated or prosecuted — especially when dealing with the highest officials in government.

The press is fond of reporting the cumulative expenses of my office, as a very distant second to Judge Starr’s office, among the currently-sitting Independent Counsels. A cost-benefit analysis is a very difficult thing to perform for a criminal prosecution, but I do think the focus on expense figures only tells half the story.

The Espy case, aside from raising questions of public trust, has very concrete implications. Mike Espy, as Secretary of Agriculture, ran an agency responsible for guaranteeing food safety with an annual budget of about $60-billion. To the extent that the policy-making process was distorted because of illegal gifts made by corporate lobbyists to Espy, his staff, or his girlfriend, public confidence in the nation’s food supply may have been shaken. If our investigation and prosecutions dissuade corporations from giving gifts to their regulators, or the regulators from accepting gifts from the regulated, I believe the costs we have incurred are worth the price.

All of the sound and fury surrounding the Independent Counsel office takes me back to the original question: is the Independent Counsel too independent? Again, my answer to the question is "no." I think that some of this summer’s developments in the Starr investigation illustrate in a very immediate way the value of the Independent Counsel’s independence.

The broad outlines of the controversies are probably familiar to you, although they have been overshadowed in the public debate by the now-released public Referral to the House of Representatives.

Independent Counsel Starr had been attempting to compel evidence and testimony from people very close to the President — namely, the White House counsel and Secret Service agents — before the grand jury.

The White House, seeking to block this evidence, asserted various privileges — attorney-client, to preclude government lawyers from testifying; and a previously unheard-of "protective function privilege," to bar Secret Service testimony.

As you probably know, these efforts didn’t get too far — the courts ultimately told the White House that these were not valid objections, and all this evidence had to go to the grand jury.

What seems not to have drawn so much public attention is the reasoning behind these decisions. And this reasoning goes to the very heart of what it means to say that ours is a democratic government that belongs to the people, not to the officials who temporarily hold office with our consent.

The courts drew a clear distinction between the United States, the sovereign whose criminal laws are to be enforced, and the officials who are the temporary custodians of our governmental institutions. Earlier this year, the D.C. Court of Appeals rejected the White House Counsel’s use of the attorney-client privilege to withhold information from the grand jury, writing:

[A government attorney’s] duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure. The constitutional responsibility of the President, and all members of the Executive Branch, is to ‘take care that the laws be faithfully executed’."

This is a bedrock proposition for a nation that claims it is "one of laws and not of men." Yet, it took an Independent Counsel to have the court expressly recognize and articulate this principle over severe opposition from the President and his advisors.

In fact, the President — who took an oath to faithfully execute the law — lost essentially the same argument over a year before. There, the White House, in 1996, had also invoked the attorney-client privilege to preclude government lawyers from producing relevant evidence (including conversations with Mrs. Clinton) before a federal grand jury in Arkansas investigating Whitewater.

In ordering government lawyers to testify, the court held:

"The [Office of Independent Counsel] is actually investigating the actions of individuals, some of whom hold positions in the White House. [Its] investigation can have no legal, factual, or even strategic effect on the White House as an institution."

When the administration sought to create a "protective privilege" in an effort to prevent the Secret Service from testifying against the President in the Monica investigation, it again created a legal conundrum, one in which the United States, as sovereign, found itself doing judicial battle with itself.

The D.C. Circuit Court of Appeals rejected the White House’s "protective privilege" theory. Judge Silberman of the D.C. Court of Appeals, himself no fan of the Independent Counsel (he wrote an opinion in 1988 holding the statute creating the office unconstitutional, which was later reversed by the Supreme Court) authored a very interesting concurrence with the court’s refusal to reconsider this decision:

"The Attorney General is, in effect, acting as the President's counsel under the false guise of representing the United States, contrary to the whole purpose and structure of the Ethics in Government Act. . . . The Act . . . limits the options that the Attorney General can legally (and honorably) pursue. Litigating against the Independent Counsel is not one of them."

"The Attorney General is, in effect, acting as the President's counsel under the false guise of representing the United States, contrary to the whole purpose and structure of the Ethics in Government Act. . . . The Act . . . limits the options that the Attorney General can legally (and honorably) pursue. Litigating against the Independent Counsel is not one of them."

Behind these decisions is a little-discussed provision in the United States Code — 28 U.S.C.  535. This section requires every part of the executive branch to report, expeditiously, any criminal offenses by government officials to the Attorney General. But when the offending party is the Attorney General, a close colleague, or the one person who can fire her — the President — how much comfort can this law give us? Who is left to enforce it — if she will not?

To state that question is to provide the answer.

And that is why the Independent Counsel Act was passed — to avoid such a dilemma.

These decisions are fully in accord with the principles expressed in Nixon v. Sirica, the case in which President Nixon fought Judge Sirica’s order that the White House turn over the tapes to the special prosecutor and where, in response, the Supreme Court in 1974 stated:

Though the President is elected by nationwide ballot, and is often said to represent all the people, he does not embody the nation’s sovereignty, . . . . He is not above the law’s commands

That, I think, is a key point, maybe even the crucial point, to keep in mind in considering whether the Independent Counsel is too independent.

The President, his Cabinet members, and all other persons occupying federal offices serve the United States, not the other way around.

As one Court of Appeals noted, misconduct by officials is not official misconduct — it is an offense against the United States that officers of the United States must, when appropriate, prosecute.

However, when the misbehaving persons occupy, or are close to, the offices that are supposed to prosecute violations of federal law, then — human nature being what it is — there is no way to avoid the lingering suspicion that justice is not fully served.

These are occasions that call for a prosecutor who is beholden to the United States but not to the individuals who happen to occupy its high offices at any given time; a prosecutor who has the independence to follow the senior executive’s "footprints" through the hallowed corridors of power, wherever they ultimately lead. That is precisely why the Office of Independent Counsel was created.

It is for these reasons that I conclude that the Independent Counsel is not too independent, but rather the independence is a necessary component of the institution — one that has proved its worth, notwithstanding the controversy that inevitably follows it.

I believed this when I took the job, or I wouldn’t have taken it, and I believe it today, or I wouldn’t continue.

All of this and more will become a matter of intense public debate next year when the statute expires and Congress considers whether it should be re-enacted.

Unfortunately, its future may have more to do with how the exceptional Monica matter plays out than with the overall merits of the institution. Certainly, there are various ways one can imagine to modify or restructure the institution of the Independent Counsel, but that’s a question for another time.

As we head now into the question-and-answer portion of the program, I will issue the same warning as Yogi once did:

"If you ask me anything I don’t know, I’m not going to answer."

And that applies particularly to questions about impeachment, which is exclusively Congress’ turf, and the best I could do anyway is parrot Yogi’s answer regarding pennant chances — that there’s "a fifty percent chance it will happen, but a seventy-five percent chance it won’t."

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