SPEECH DELIVERED BY DONALD C. SMALTZ
BEFORE THE GONZAGA UNIVERSITY STUDENT BODY ASSOCIATION,
SPOKANE, WASHINGTON, ON MONDAY, JANUARY 29, 1996
THE CASE FOR INDEPENDENT COUNSEL
IN AMERICAN POLITICS
In 1978, after 200 years of relatively-stable and effective
government, Congress, in its infinite wisdom, decided that thereafter when allegations
were levied against the President, members of his cabinet, and other high officials in the
Executive Branch, the investigation should not be handled by the Attorney General's
Department of Justice. Instead, a special prosecutor should be appointed by a panel of
judges to investigate the charges and, when appropriate, bring indictments.
At the time this legislation, the Special Prosecutor Act (Title VI of
the Ethics in Government Act of 1978), was pending, its numerous and significant critics
denounced the concept as being inimicable to the separation of powers required by our
Constitution. That is, the Constitution, in Article I, Section 1, charged the legislature
with enacting the law; Article II charged the President with enforcing the law; and
Article III charged 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, it most assuredly would be unconstitutional.
If the President were corrupt, the critics noted that the
Constitution provided the remedies: After all, the President, like everyone else, was
subject to prosecution for violating criminal law. And Congress could always impeach a
President and members of his cabinet; Congress could expose a chief executive's corruption
through legislative hearings; and, after all, the people in their infinite wisdom could
always throw the crooks out at the next election.
What was it that happened to goad Congress into passing legislation
that our 39th President, Jimmy Carter, signed into law that provided for the courts to get
into the business of appointing Special Prosecutors? To understand the spark that lit this
fire, one must visit Watergate.
One balmy June evening in 1972, five burglars broke into the
Democratic National Headquarters in the Watergate apartment/office complex in Washington,
D.C. While repairing some broken bugging equipment installed three weeks earlier, these
five were nabbed in the act by the D.C. Police.
The FBI entered the case, conducted an investigation and, thereafter,
the Department of Justice obtained indictments against the five burglars and two
co-conspirators. Of these seven, five eventually pleaded guilty, and 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 tried
and found guilty.
Congress, in an effort to get to the bottom of this dastardly deed,
appointed the Select 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, the no-nonsense judge handling the trial,
gave the defendants notice that unless they cooperated with the Watergate Committee they
should expect and would receive a bunch of years in the penitentiary.
This not-so-subtle "hint" produced prompt results.
Defendant James McCord wrote a letter to the judge, which the judge read in open court,
claiming that perjury had been committed, other persons besides the convicted seven were
involved, "higher-ups" had applied political pressure to coerce them into
pleading guilty, and there was a "cover-up."
Now, Washington was abuzz and the rest of the country began to pay
The President, for those of you who don't recall, happened to be
Richard M. Nixon, the 37th President, who was elected in 1968 and re-elected in 1972 by a
landslide. McCord's accusations titillated the public's imagination and the Watergate
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 Justice Department but by an outside prosecutor.
On April 30, 1973, President Nixon, in an effort to dim 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, Richardson, could appoint one.
Shortly thereafter, Richardson appointed Democrat Archibald Cox, a
Harvard Law professor and former Solicitor General, to serve as a special prosecutor.
About this same time the Watergate Committee's hearings began in
earnest and were televised by all three networks. John Dean, the President's White House
counsel, 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.
During the course of the hearings, when the whole country was abuzz
with 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.
With the Watergate hearings operating publicly, and the special
prosecutor operating through the Grand Jury (these proceedings are secret), both demanded
these White House tapes. The Federal District Court ordered the President to turn over the
tapes. The President, citing executive privilege, refused to turn over the tapes. 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.
When Special Prosecutor Cox refused to accept the summary, the
President on October 20, 1973, ordered Attorney General Richardson to fire the special
The Attorney General refused to fire Cox, and then resigned. Next,
his deputy, William Ruckelshaus, refused to obey the President's order to fire Cox, and he
in turn was fired. Finally, the next ranking official the Solicitor General (who,
at the time, was Robert Bork) obeyed the order and that Saturday evening fired
Archibald Cox. The media dubbed this event the "Saturday Night Massacre." Now
the fat was really in the fire! Calls for Nixon's impeachment began to reverberate from
one end of the country to the other.
In an effort to mute the cacophony of criticism, Nixon appointed Leon
Jaworski, a well-known Texas lawyer and a Democrat, as Special Prosecutor. Jaworski
continued his investigation without White House interference, culminating in a number of
indictments and convictions of senior White House officials.
Ultimately, the House Judiciary Committee approved three articles of
impeachment against Nixon obstruction of justice, abuse of power, and refusal to
comply with Committee subpoenas. In the meantime, the Supreme Court held that the Court
had authority to order the President to turn over the tapes. On August 5, Nixon released
transcripts of three tape-recorded conversations of June 23, 1972 which, despite an
18-1/2-minute gap, demonstrated his involvement in, and knowledge of, the cover-up. Three
days later, on August 8, 1974, President Nixon resigned. The impeachment inquiry ended
because, by resigning, he removed himself from the possibility of being impeached and
standing trial before the Senate. However, there still remained the issue of his liability
for breaking the criminal law. Nixon's former Vice President, and successor President
Gerald Ford pardoned Nixon shortly after Ford took office, finally ending the
During what has come to be called Watergate, Special Prosecutor
Jaworski and his successor Henry Ruth, and the Department of Justice working on parallel
tracks, ultimately obtained 45 indictments and 39 convictions, including Nixon's former
Vice President Agnew, Nixon's Chief of Staff Haldeman, two former Attorneys General
Mitchell and Kleindienst, Domestic Affairs Advisor Ehrlichman and Secretary of the
Treasury Morgan. As a direct result of the revelations of corruption in Watergate, and the
difficulties in investigating them, Congress in 1978 enacted the Special Prosecutor law.
PREDECESSOR SPECIAL PROSECUTORS
From the title of my lecture this evening, you are on notice that I
believe a special prosecutor is an essential component of our political matrix. I also
expect you agree that Watergate does indeed make a rather compelling case for a special
But, you say, one rose doesn't make a summer. Nixon's and his
advisors' criminal acts were an unprecedented chapter in American politics that is not
likely to be repeated. So, why do we need to institutionalize the office of special
prosecutor just because of some rotten apples in 1972?
To that, I recall the observations of George Santayana that,
"Those who cannot remember the past are condemned to repeat it."
In evaluating the need for institutionalizing the office of Special
Prosecutor, I believe it is appropriate to examine the history of special prosecutors
before Watergate. In beginning that review, I note that Archibald Cox was neither the
first special prosecutor to be appointed by a president, nor the first to be fired.
The first special prosecutor was appointed by President Grant in
1875. His name was General John B. Henderson.
Including the appointment of General Henderson and the appointment of
Archibald Cox 98 years later, six Presidents appointed a total of ten special prosecutors
with varied effectiveness. While the circumstances surrounding the 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.
- President Ulysses S. Grant
President Ulysses S. Grant's two terms
in office (1869 - 1877) have been dubbed by some historians as "the most disgraceful
years in American history" due to the widespread corruption and graft that existed in
Following the Civil War, the country was morally bankrupt
profiteers from the Civil War, Reconstruction Acts, and carpetbaggers, among other things,
all contributed to the institution-alization of graft-ridden administrations at the city,
state, and national levels.
This spoils system was in full bloom when President Grant took
office. There was no civil service, and Grant saturated the government with his cronies
and those of his long-time friend and personal secretary, General Orville E. Babcock.
One of Babcock's friends General John McDonald was
appointed as Supervisor of Revenue for the Missouri District. He had a large staff and was
responsible for collecting taxes from whiskey distillers located in his district.
General McDonald quickly used his office to implement a scheme
whereby he would collect from distilleries less tax than due and they would pay a kickback
about half of the unpaid tax. There were a number of rings like this throughout the
country, and this one was known as the "St. Louis Whiskey Ring."
Grant's personal secretary, General Babcock, was in league with
McDonald (among other things, they communicated with each other about the operation of the
ring in code). The Treasury Secretary, one Benjamin Bristow, who was not corrupt and who
had thought about running for President, with the help of a newspaper reporter amassed a
significant amount of evidence against the St. Louis Whiskey Ring. With the newspaper man
in tow, Bristow took the evidence to President Grant.
The President was aware that this particular scam, and a score of
others, was getting play in the press. In an effort to blunt the press' criticism, on June
1, 1875 he appointed General John B. Henderson as Special Prosecutor to prosecute the
"St. Louis Whiskey Ring."
Henderson, who had previously been a Republican Senator from
Missouri, was a vigorous advocate and, working in conjunction with the U.S. Attorneys,
ultimately obtained numerous indictments. In short order, special prosecutor Henderson
prosecuted and convicted McDonald. In the process, the special prosecutor obtained damning
evidence against Grant's personal secretary, General Babcock.
It thus became obvious to President Grant that the special
prosecutor's next target was going to be his personal secretary, Babcock. In an effort to
head off Babcock's indictment, Grant appointed a military court to investigate the charges
against Babcock. This military tribunal then contacted Special Prosecutor Henderson and
directed him to turn over all his documents relating to Babcock's involvement in the ring,
so it could try Babcock. The special prosecutor refused and, instead, presented the
evidence to a grand jury, which indicted Babcock in December 1875. At that point, the
military tribunal backed off. The efforts to head off Babcock's indictment having failed,
Babcock now had to stand trial.
Then during the trial of a mid-level Treasury official affiliated
with the St. Louis Whiskey Ring, Special Prosecutor Henderson 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
the Secretary of the Treasury? None, whatsoever. What right has he to interfere with the
discharge of the duties of Commissioner Douglas? None.
When Grant heard of the special prosecutor's argument, he promptly
sacked him on the basis that his statements were impertinent.
In an effort to squelch public criticism, Grant appointed a new
special prosecutor, James Broadhead, to handle the pending indictment against Babcock. The
cards, however, were stacked against this new special prosecutor. Sound familiar? Not only
did he lack familiarity with the facts of the case that had been indicted and was awaiting
trial, but also, Grant's Attorney General issued an order to all federal prosecutors that
expressly precluded any of the other prosecutors handling related cases from plea
bargaining with any defendant. This prevented the special prosecutor from obtaining
additional evidence against Babcock.
The final coup d'etat was that, at the trial of Babcock, a deposition
from President Grant was read to the jury whereby Grant stated that if Babcock had been
guilty of misconduct, Grant would have been the first to know about it as a result of
their close association and, of course, Grant did not believe Babcock guilty of anything.
Needless to say, the preordained result was a quick not-guilty verdict for Babcock.
So, while Grant reached out for a special prosecutor, when he didn't
like where the special prosecutor was heading and when the special prosecutor got too
close, he tried to derail him by appointing a military tribunal, and when that failed he
fired him. While Grant appointed another special prosecutor, he took additional steps to
ensure that his personal secretary Babcock would not be convicted.
- President James A. Garfield
President Garfield (a Republican) was
elected in 1880 and served 120 days before he was shot. He died 80 days later from the
wound. 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, were alleged to have bribed senior postal officials to obtain very
choice U.S. Mail routes located primarily in the Western United States. These mail routes
and the criminal cases resulting from them, were popularly referred to as the "Star
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 to probe this ulcer to the
bottom and then to cut it out.
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. Although Special Prosecutor Cook continued on
the job after Garfield's death, his efforts produced only limited successes since, while
the minor officials were convicted, the apparent major perpetrators of the frauds were
acquitted. The Star Route frauds, however, acted as the catalyst for the passage soon
thereafter of the Pendleton Civil Service Reform Act in 1883. 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.
- President Theodore Roosevelt
Teddy Roosevelt, during his terms in
office, on two different occasions appointed special prosecutors. He had been in office
for two years when officials in the Post Office were accused of taking bribes and
kickbacks in exchange for, among other things, promoting employees.
When details as to the nature and extent of the corruption surfaced,
Roosevelt wrote that "there can be no greater offense than the 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
To do so, Roosevelt appointed two special prosecutors, Holmes Conrad
and Charles J. Bonaparte, to assist in the prosecution of the case.
The New York Times wrote on June 14, 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." As a Democrat, Conrad
"cannot be accused of trying to hide or smother facts for partisan advantage."
On the other hand, Bonaparte, the Republican component of the prosecution team, was an
"ardent champion of civil service reform."
Their efforts to prosecute the major persons responsible were
unsuccessful, as the statute of limitations had run on many of the charges; the senior
ranking official was ultimately tried and acquitted.
This marked the first time that a President appointed two special
counsel, much less two counsel of differing political persuasions, to contemporanously
investigate the same scandal.
Two years later, in 1905, another scandal emerged involving the
United States Land Office and various congressional leaders from Oregon. Roosevelt again
appointed a special prosecutor, but for this matter, he tapped only one special
prosecutor, Francis J. Heney, who obtained convictions against the primary malefactors.
- President Calvin Coolidge
While whiskey was the liquid that caused
Grant's administration so much trouble, and Post Office corruption bedeviled first
Garfield and, 20 years later, Teddy Roosevelt, it was oil that complicated government
under Calvin Coolidge, who was the next President to employ special prosecutors.
Warren G. Harding's three years in office were awash in scandals when
he died in 1923. Coolidge succeeded to the Presidency on Harding's death and inherited not
only Harding's cabinet, but also a number of the scandals. One such scandal 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 one Albert Fall as Secretary of the
Interior. Fall had granted two private companies drilling rights on naval petroleum
reserves in Elk Hills, California, and 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.
Once the Department of Interior had jurisdiction, Fall then
leased the Elk Hills lands to Edward J. Doheny's company, and leased the lands at Tea Pot
Dome to Harry Sinclair's company. It was not until the companies began to construct
facilities on the land that the leases came to public attention and when the newspapers
began to suggest that some hanky-panky may have occurred.
Congress scheduled public hearings to find out how private companies
got into the Navy's petroleum reserves.
The hearings, which were ongoing when Coolidge took office, were
lengthy and bogged down in seemingly mindless technicalities. They seemed 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 was never
repaid. That bombshell, coupled with allegations that Fall had also received large amounts
of money also from Mr. Sinclair, began generating interest.
Now, until that testimony, the hearings had a decidedly partisan tone
that is, the Republican, Fall, had been on the take and the Democrats were pushing
forward to expose and embarrass the Republicans.
However, when Doheny confessed to the Fall "loan," he also
admitted giving gratuities to several Democrats, including one Warren William G. McAdoo,
then considered the frontrunner for the Democratic Presidential nomination. Suddenly the
scandal had bi-partisan overtones.
Congress did not trust the then-Attorney General 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 a special prosecutor "of
high rank drawn from both political parties to enforce the law." 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 connection with the granting of the leases."
Now, 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.
Their investigation revealed not only that Fall received $100,000
from Doheney, but $200,000 from Sinclair. 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 the history of the United States to go to prison.
Doheney and Sinclair, the persons making the bribes, were found not
guilty by a different jury. Owen Roberts was later appointed to the Supreme Court in 1930,
and Atlee Pomerene to the head of Herbert Hoover's Reconstruction Finance Corporation.
Attorney General Daugherty was fired by Coolidge and subsequently indicted and convicted
by the U.S. Attorney's office in New York.
- President Harry S. Truman
President Truman's presidency is often
referred to as "the crisis presidency" for a series of crises that occurred
(Marshal Plan, Berlin Wall, Korean Conflict, MacArthur's firing, and McCarthyism, to name
a few). He also had occasion first to appoint and then to fire a special prosecutor.
In 1951, among a variety of scandals plaguing Truman was a scandal in
the Internal Revenue Service. In the year 1950, 166 IRS employees either resigned or were
fired, and a number were facing indictments from the Department of Justice on a variety of
tax-fixing and bribery charges, including the Asst. Attorney General in charge of the Tax
A Congressional subcommittee had uncovered serious misconduct in the
Treasury Department, and there was a perception that the Department of Justice not only
was delaying the investigation into the scandals, but also was inept when it came to
prosecuting this corruption.
The press and Congress clamored for appointment of a special
prosecutor to investigate charges of corruption within the administration.
President Truman ignored the demands and instead appointed his
Attorney General, J. Howard McGrath, as the head of the "clean-up," a move
roundly condemned by the press and Congress.
In order to head off the House Judiciary Committee's announcement
that it would undertake a public investigation of McGrath's handling of the Justice
Department, Truman agreed to appoint a special prosecutor. He appointed a New York
Republican, Newbold Morris, who had been a proteg of Mayor Fiorello La Guardia.
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
To expedite his investigation, Special Prosecutor Morris prepared a
lengthy questionnaire for all senior executive officers, starting with all Department of
Justice 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
On March 18, 1952, Morris sent 596 questionnaires to the Department
of Justice for distribution to senior justice officials. 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. Newbold Morris spent a total of 63 days as Special Prosecutor, which is the
shortest appointment of any special prosecutor.
Later that day, Truman fired McGrath. Shortly thereafter, Truman
announced Judge James P. McGranery as his new Attorney General. Judge
McGranery announced that the investigation of the Justice Department would be conducted
through regular channels. The net result of that investigation was that one Justice
Department official was removed for unethical conduct, whereupon Judge McGranery publicly
declared that his investigation was complete and that all the wrongdoers had received
- Some Observations About the Past
The chronicle of special
prosecutors after Truman take us back to Watergate which, as we've already seen, produced
some spectacular results in uncovering, exposing and removing corruption not only among
the President's cabinet members and closest advisors but also the President. Nixon
while neither prosecuted nor impeached gave up his office, the most powerful in the
world, to avoid almost certain impeachment and criminal proceeding.
What can we say was learned from these special prosecutors who
appeared on the political horizon in the second hundred years of our republic?
First, special prosecutors can be and were fired by the presidents
who appointed them Grant, Truman, and Nixon.
Second, where corruption was endemic to the administration (Grant's,
Coolidge's, Truman's and Nixon's) the special prosecutor was appointed by the President in
an effort to prevent Congress itself from either conducting more extensive hearings or
passing legislation calling for a special prosecutor.
Third, when a President appointed a special prosecutor he usually
selected someone from the opposite party and, in those instances where corruption involved
both parties, Presidents Roosevelt and Coolidge opted to appoint a prosecutor from each
Fourth, 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, and because the media coverage of events including the Watergate
Committee hearings turned the tide of public opinion decidedly against Nixon.
Presidents Garfield and Roosevelt, both reform-minded, appointed
special prosecutors because their perception was that a prosecutor from outside the system
would do a more comprehensive and effective investigation and prosecution.
Watergate polarized and practically paralyzed the three branches of
government. It brought to a new low the public's confidence in the government (one poll
reported that in 1976 only 11% of the population had confidence in the President, and 9%
in Congress), and set the stage for the Special Prosecutor law enacted in 1978.
THE CURRENT SPECIAL PROSECUTOR STATUTE
Since 1978, we have had a Special Prosecutor Act. 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
(i) if the Attorney General determines her investigation may result in a personal,
financial or other possible conflict of interest, or
(ii) if there is an allegation of felonious conduct made against a senior official of
the executive branch.
When such an allegation is made, the Attorney General conducts a
preliminary investigation and if that reveals reasonable grounds to believe further
investigation is warranted, the Attorney General applies to a three-judge tribunal who
selects and appoints a special prosecutor.
The Attorney General can fire the Special Prosecutor only for good
cause which is subject to review in the District Court.
The Act has been amended three times 1983, 1987 and most
recently in 1994. One amendment was to change the name from Special Prosecutor to
Independent Counsel, in the belief that this title better reflects the balanced, impartial
role of the Office as the purpose of the Independent Counsel is to fully and fairly
investigate the facts and, only when warranted, to issue indictments and prosecute.
Most recently, Attorney General Reno stated that she supports the
Independent Counsel legislation because, "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 . . . [The Act] recognizes the importance of
public confidence in our system of justice and the destructive effect in a free democracy
of public cynicism."
The constitutionality of the Act was upheld in 1988, in an opinion
authored by Chief Justice Rehnquist, with only one justice dissenting. This result has
answered the separation of powers question but not silenced its critics.
From 1978 to date, there have been 14 publicly appointed Independent
Counsel under the Act. They are identified in the attached summary. Of the ten
investigations that have been completed, five have not resulted in any prosecution and
five have resulted in multiple prosecutions. The four special counsel appointed in 1994
and 1995 are still in the process of conducting their investigations.
The role of declining to prosecute a senior government official is as
important as a decision to prosecute. The fact that an outside prosecutor (independent
from the current party) has examined the evidence and concluded that prosecution is not
warranted, not only serves to clear the name of the official but leaves the public with
the assurance that there is no cover-up. Thus, whether or not there is a prosecution, the
Act avoids even the appearance of impropriety in the investigation of allegations of
criminal conduct by senior Executive Branch officials.
The Act requires the Independent Counsel at the conclusion of his
investigation to file a written report describing his investigation and explaining his
actions, including his prosecutorial decisions.
To date, the Independent Counsel investigation that has generated the
most controversy is Judge Walsh's investigation of Iran/Contra. While his investigation
spanned seven years and was costly to the U. S. Treasury (approximately $50 million), his
assignment was unprecedented in its legal, factual and geographical scope.
I agree with Attorney General Reno's observations when she testified
before Congress that Judge Walsh's 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 Independent Counsel statute lapsed in December 1992, and was not
resurrected until June 30, 1994 when the Independent Counsel Reauthorization Act of 1994
became law. When President Clinton signed the Act into law, he called it "a
foundation stone for the trust between the government and our citizens."
In January 1994, while there was no statute in effect, President
Clinton directed his Attorney General Janet Reno to appoint a Special Prosecutor, and she
appointed Robert Fiske as an Independent Counsel to investigate Whitewater. After the Act
was passed, in August 1994, the Attorney General filed an application to appoint an
Independent Counsel and suggested Fiske, who was the "Special Prosecutor"
appointed by her. The Special Division rejected that suggestion and, instead, appointed
Kenneth Starr to handle the Whitewater investigation.
Since August 1994 four Independent Counsels have been appointed under
the Act. The Whitewater investigation has generated considerable public interest as it
involves both the President and the First Lady. A number of indictments have already been
returned, and a Senate Committee is contemporaneously holding hearings which are
captivating the attention of the media with its continual efforts to draw parallels
between Whitewater and Watergate.
My own appointment to investigate Secretary of Agriculture Espy
occurred in September 1994. Shortly thereafter, Secretary Espy announced his resignation,
effective December 31, 1994.
Our investigation is ongoing as Espy's resignation from office does
not terminate the investigation. There are no congressional hearings. So far, we have
brought one indictment, although we expect there may well be others as our investigation
wends toward completion.
The Independent Counsel investigations of HUD Secretary Henry
Cisneros and Commerce Secretary Ron Brown are continuing. There are no present
congressional hearings involving these cabinet officers.
I submit that the Independent Counsel statute plays a significant role in the American
legal and political system. It provides a statutory mechanism for prompt investigation of
alleged criminal conduct in a fair and complete fashion by a person independent of and
unbeholden in any way to the President. The Independent Counsel in his final report
explains to the Congress and the public his findings and his decisions.
This procedure not only prevents the kinds of political crises that occurred with
Watergate and almost paralyzed our government it also maintains the public's
confidence that senior Executive Branch officials will be thoroughly investigated, that
there will be no cover-ups, and that justice will be done.
Books Relating To Independent Counsel
Ethics, Politics and the Independent Counsel
Independent Justice: The Federal Special Prosecutor in American Politics
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