Address of Independent Counsel
DONALD C. SMALTZ
THE FUTURE OF THE INDEPENDENT COUNSEL LAW
National Press Club Forum, Washington, D.C.
Moderated by Michael Doyle, McClatchy Newspapers
March 12, 1999
Katy Harriger (Wake Forest University Assistant Professor and
Author of AIndependent Justice@),
James Cole (Chairman of the American Bar Association=s White Collar Crime
Committee and former Special Counsel for the House Ethics Committee),
Donald C. Smaltz (Independent Counsel in re Espy), and
Congressman Asa Hutchinson (R-Ark)
The future of the Independent Counsel statute, in my judgment, is in fact -- in the future. The Independent Counsel statute as we know and understand it appears dead as the proverbial doornail, and will, most probably, not be renewed in the immediate future in anything close to the present format.
Nor -- I hasten to add -- should it be renewed at this time. It should not be renewed because there is way too much misunderstanding, too much invective, too much disinformation about the statute=s provisions, how it works, and its actual application.
The opponents of the Independent Counsel investigations have succeeded in destroying the statute and its purpose. The primary purpose of the statute was to restore and maintain public confidence in the system=s ability to investigate wrongdoing by high-end Executive Branch officials. If the pundits are correct, the country apparently no longer has faith in the way these high-profile matters are investigated and/or prosecuted by Independent Counsel.
I agree with Deputy Attorney General Holder=s recent statement that Aactions and decisions under the Act both by Independent Counsels and by the Attorney General inevitably and unavoidably become such targets for attack that public confidence in the administration of justice in these high-profile cases has been undermined rather than enhanced.@
The statute was not a bad one -- it was well-intended and, in my judgment, was and is necessary. It was the product of thoughtful consideration by the 95th Congress, which had just witnessed a country ravaged by the Watergate crisis; a Congress that was well-acquainted with the history of special prosecutors. It knew that in the previous century, of the six presidents who appointed special prosecutors, three fired them when they came too close for comfort. It was also aware that these special prosecutors had varying degrees of success in their investigations and prosecutions. It was a Congress that considered, and rejected, a wide variety of proposals -- including some that have reappeared today.
The 95th Congress sought to create a mechanism that provided for a truly independent but temporary prosecutor to investigate and, where appropriate, prosecute special instances of misconduct by senior executive officials.
To do so it had to carefully craft a statute that respected the President=s authority under Article II of the Constitution and that did not require the judiciary to overstep its Article III limitations. The Supreme Court, in Morrison v. Olsen, held that Congress successfully navigated these constitutional shoals. While Congress= efforts passed constitutional muster, the office it created was laden with congenital infirmities that ultimately caused the statute to fail in the face of a full-scale frontal assault on the Independent Counsel and the statute by the President of the United States.
There is intense public interest in accusations of wrongdoing at the highest levels of government. Those accusations are often made before an Independent Counsel is appointed. They are confirmed when the Attorney General=s public announcement of her preliminary investigation is made in her application to the Special Division.
That intense public interest in these accusations invariably creates a political cross-fire, since the accused official is at the apex of one of the two political parties and the outcome of the Independent Counsel=s investigation is usually publicly perceived as a victory for one party and a defeat for the other.
Federal prosecutors usually conduct criminal investigations behind a veil of secrecy. But the Independent Counsel federal prosecutor inherits a series of public accusations that have been cursorily examined in the Attorney General=s preliminary inquiry, accompanied by a covey of the investigation=s proponents and opponents. All of this occurs before he speaks to his first witness. In creating the Independent Counsel, Congress unintentionally created a prosecutor who was destined to become, in most cases, a political figure -- a federal prosecutor responsible for conducting a public investigation with the usual standards applicable to and methods utilized by federal prosecutors.
Shortly after the Independent Counsel is appointed, the public relations drums of those opposed to the investigation begin to beat their messages: Athe law gives the prosecutor too much power,@ Ait=s a witch hunt,@ Ait=s only about sex,@ etc.
Federal prosecutors are not elected -- they are appointed. They are often not only not politically-oriented -- they are a-political, as they should be. They are not in popularity contests and are not supposed to be. They are constrained by Grand Jury secrecy provisions of Rule 6(e). They are not in a position to publicly respond. They don=t have public relations staffs. They don=t have surrogates to appear on talk shows and smear their opponents. This is too often the situation in which an Independent Counsel finds himself shortly after appointment. These are but some of the unintended consequences of the Act.
But before this Independent Counsel statute is permanently entombed, let me remind you of the observation of George Santayana that AThose who cannot remember the past are condemned to repeat it.@
Ask yourself -- If not the Independent Counsel, then who?
Attorney General Janet Reno, speaking before Congress as it debated the reenactment of the Independent Counsel law in 1993 after it had lapsed, testified it should not be the Department of Justice. She testified:
Her testimony quoted Archibald Cox=s testimony at the time the statute was first enacted:
I think Attorney General Reno=s premise was true then and I believe it to be true today. The Department of Justice does have a conflict-of-interest. The public needs to be assured the criminal conduct, if it occurred, has been rooted out. If the allegations are unfounded, an independent investigator can reassure the public that no cover-up occurred.
Let me remind you that since the Independent Counsel Act was passed, there have been 20 Independent Counsels appointed. Of those, to date seven have brought criminal proceedings. 13 did not. Therefore, 65% of the Independent Counsels appointed under the Act did not bring -- I repeat, did not bring -- criminal cases. Those who brought cases were subject to severe criticism, approbation, politicalization, vilification and, ultimately, in Judge Starr=s case, to demonization.
When the critic condemning the Independent Counsel most vociferously is the President of the United States and his surrogates, the Independent Counsel is guaranteed to come in at the bottom of the heap every time. Indeed, as one poll reportedly reflected, below even Sadaam Hussain.
What do popularity polls have to do with enforcement of the criminal law? When in the history of this country have we ever before seriously considered, let alone reported, a federal prosecutor=s rating in a popularity poll?
How much does the public understand, or want to understand, about the techniques, procedures, problems, and intricacies of federal criminal investigations? Indeed, how much does the press want to understand when these concepts do not readily convert to sound-bites? But popularity -- or, rather, unpopularity, makes good copy because it demonstrates controversy, and the media loves to focus on the controversies, real or imagined -- legitimate or not.
One criticism of the present Independent Counsel statute that I do not think is unwarranted is that it is an inefficient way to conduct criminal investigations and prosecutions. It is inefficient because it is required to start from ground zero, literally creating a brand new, and temporary, law office from scratch. And when he does so, he is inevitably criticized for taking too long and spending too much money.
I disagree with Deputy Attorney General Eric Holder that this Department of Justice is necessarily up to the task of investigating its officials and coping with these super-charged cases. Case in point: A task force of 100+ DOJ lawyers and FBI agents investigated DNC contributions which, for a year, went nowhere until Assistant United States Attorney Chuck LaBella was Abrought in to inject the task force with a more aggressive spirit.@ Add to that the numerous investigations and prosecutions (about 30) of the seven Independent Counsels appointed since 1994, plus Ruby Ridge, Waco, and the Oklahoma City bombing. Had DOJ the spirit -- had it wanted to -- could it have done it?
If you believe that it=s inevitable that people in high places will continue to commit crimes and, as our Attorney General testified, that there is an inherent conflict-of-interest whenever Executive Branch officials are to be investigated by the Department of Justice and its appointed head, the Attorney General, then who is left to do the investigation? Someone outside of DOJ must do these investigations.
For the past 4-1/2 years, I have been an up-close observer of the national political scene and a participant in the Independent Counsel wars -- a scarred participant. It is often said that what one sees depends upon where one sits, and I have been sitting in the seat of a federal prosecutor operating within the strictures of the Reauthorization Act of 1994. While critics and pundits of the Independent Counsel abound, very few have had the experience of both investigating and prosecuting cases under the Independent Counsel Act. It is from that perspective that I offer the following proposal.
If I were tasked with drafting the statute, I would provide for the Independent Counsel to be appointed by a President, subject to confirmation by the Senate, with a designated term of 10 years. While the Independent Counsel could be fired by the President, he could only be fired for good cause.
The jurisdiction I would grant the Independent Counsel would be to have responsibility for the investigation and prosecution of all allegations of misconduct by all senior federal officials in the Executive, Legislative and Judicial Branches, insuring an even application of the law to all.
These changes would improve the law in several ways, including the following:
To the extent that allegations of criminal misconduct by senior government officials are made in the future, as they surely will be; and crimes are in fact committed by officials in high places, as they most probably will; at that time, and assuming the stock market drops below 9,000, the public may once again be interested in the full investigation and prosecution of corrupt senior officials. When that time comes, I suspect that the public will demand, and the Congress will decide that DOJ can=t really convincingly do the job and, like the Phoenix, the Independent Counsel statute will rise from the ashes.
It is for these reasons that Santayana=s observation that Athose who cannot remember the past are condemned to repeat it@ is apt when the future of the Independent Counsel law is considered.