Independent Counsel Donald C. Smaltz
AOn the Need for Independent Counsel to
UNIVERSITY OF KANSAS SCHOOL OF LAW
January 29, 1999
In 1978, after 200 years of relatively-stable and effective government, Congress, in its infinite wisdom, decided that, henceforth, when allegations were levied against the President and other high officials in the Executive Branch, the allegations should not be investigated or prosecuted by the Department of Justice but, rather, by a special prosecutor appointed by a panel of judges.
The legislation was a result of the country=s experience in the so-called AWatergate@ matter, when President Nixon, who initially directed his Attorney General to appoint a Special Prosecutor to investigate allegations that he was involved in a cover-up, directed that the same Special Prosecutor -- Archibald Cox -- be fired when he repeatedly pressed -- over the President=s objections -- his requests for certain tape recordings of conversations between the President and certain of his key advisors.
Nixon=s firing of special prosecutor Cox, in what is now known as the infamous ASaturday Night Massacre,@ produced such a public furor that political concerns required he appoint a successor -- Leon Jaworski.
However, firing Archibald Cox and the Watergate episode polarized, and practically paralyzed, the three branches of government.
In the process, the public=s confidence in government reached a new low. With Nixon=s forced resignation in the face of certain impeachment, and with 39 convictions of high-ranking officials in his administration -- including a Vice President, two Attorneys General, a Secretary of the Treasury, and Nixon=s Chief of Staff -- by 1976, according to one poll, only 11% of the population had confidence in the President, and only 9% in Congress.
The stage was set for passage of the Ethics in Government Act two years later. Since 1978, we have had a Special Prosecutor Act continuously, save for the period December 31, 1992 through June 30, 1994.
Since passage of the Act, there have been 20 Independent Counsel appointed. Eighteen of those Independent Counsel investigations have been publicly-identified.
President Carter signed the Independent Counsel legislation into law, and there were two Independent Counsels appointed in his term. There were eight Independent Counsels appointed during Ronald Reagan=s terms; three during George Bush=s term; and seven during Clinton=s term. To date, seven of the 20 Independent Counsels, after investigation, brought criminal prosecutions (35% criminal prosecutions/ 65% not).
I was the second of seven Independent Counsels appointed to investigate officials in the current administration. Four of those investigations are still ongoing -- AWhitewater,@ Cisneros, Babbitt, and Herman.
I took the job in September 1994 with twin expectations: that I would be done in less than a year; and would be able to return to California on weekends to be with my wife and two young sons. Both expectations were woefully wide of the mark. In September 1998, I completed my fourth year. During the fourth year, I averaged one out of four weekends at home.
Had I looked to the great Yankees catcher-turned-philosopher Yogi Berra for advice before I took this job, he would have said to me:
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.
Little did I realize -- when I began -- that in four years we would prosecute 22 firms, corporations or individuals in such diverse venues as San Francisco; Oxford, Mississippi; and New Orleans, Louisiana -- as well as Washington, D.C. -- collect $11 million in fines and penalties, and have one of our cases -- U.S. v. Sun-Diamond -- go to the Supreme Court (March 1999).
The Sun-Diamond case concerns the proper interpretation of 18 U.S.C. ' 201(c) -- the so-called Agratuity statute,@ which is a sub-part of the federal bribery statute.
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. 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. 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 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. The court held that, under the statute, Athe giver must intend either to reward some past concrete official act or acts or to enhance the likelihood of some future act or acts.@ 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, 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.
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. We therefore sought cert. because there should be one rule of interpretation for the Country.
Today there are five Independent Counsel investigations, and there is a lot of criticism about Independent Counsels and where they are going.
One of 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 Agood 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.
Recall 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.
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 Agood cause.@ But he surely can be fired.
A second constraint on the Independent Counsel is Congress, which can summon him to testify, require him to justify his actions, and even institute impeachment proceedings. These are fairly drastic weapons 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 subject to semi-annual General Accounting Office audits and other extraordinary financial controls. We are the only government entity of which I am aware to have 2 GAO reviews a year!
Fourth, the office submits semi-annual expense reports to the Special Division, the three-judge panel that appoints Independent Counsels and can terminate the office when it decides his job is done.
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 our investigation.
Finally, there is the unprecedented public scrutiny and press coverage. Only in Independent Counsel investigations, before the investigation begins C indeed, even before the Independent Counsel is appointed C does the Attorney General announce publicly she is initiating a preliminary investigation.
Then, she files a public document advising the world about her preliminary investigation results, and that she is requesting the appointment of an Independent Counsel. Before an Independent Counsel has been appointed, the need for the Independent Counsel will be publicly questioned by those political forces opposing the investigation. By the time he=s appointed and begins his investigation, he will certainly be politicized by his opponents and, if recent experience is any gauge, as soon as indictments are apparent he will be publicly demonized -- all in an effort to delay, hinder, and defeat the investigation.
r When the President adds his voice to the criticism, the effect on the prosecutor is that of the most powerful bully pulpit in the world turning against the investigation and prosecution -- this was unprecedented and deadly.
The Independent Counsel is independent C 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 C again, within our very limited jurisdiction C as to whom to investigate and whom to prosecute.
What history 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.
Attorney General Janet Reno, speaking before Congress as it debated the re-enactment of the law, said in 1993 that Athere 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.@ I think her premise was true then and believe it to be especially 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.
That fundamental proposition is often obscured by the intense political swirl surrounding Independent Counsels.
The reason we have the Independent Counsels today -- as I noted at the outset -- 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 B Grant, Garfield, Teddy Roosevelt, Coolidge, and Truman. Grant fired his special prosecutor after he indicted a number of his former military cronies, including President Grant=s personal Secretary, Babcock.
Truman fired his special prosecutor after only 63 days. 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?
One answer might be sheer numbers: in the 100 year span between Grant and Nixon a total of 10 special prosecutors were appointed. In the two decades since the act was passed in 1978 -- 20 special prosecutors were appointed. There is the possibility of more to come.
There are at least three factors that intensify the public scrutiny of 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.
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 indeed 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.
Criminal investigations are expensive, and DOJ=s practice has been neither to track nor report costs of investigations for specific cases. If they do have the figures, they don=t publicly report them. We do, for example, know that when the Attorney General first appointed Bob Fiske (the Justice Department employee who preceded Ken Starr) to investigate AWhitewater,@ in about eight months DOJ=s costs totaled $6-million, or about $750,000 per month.
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.
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.
A public official=s acceptance of gratuities goes to the heart of his credibility in the performance of his duties. When he accepts gratuities, it calls the impartial exercise of his judgment into question in all those instances where he has matters before him that affect the gratuity givers.
When the gratuities statute was introduced to Congress, President John F. Kennedy said:
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 title -- the Independent Counsel must, necessarily, be independent. I think that some of last summer=s developments in the Starr investigation illustrate in a very immediate way the value of the Independent Counsel=s independence.
Independent Counsel Starr had been attempting to compel evidence and testimony from people very close to the President C namely, the White House counsel and Secret Service agents C before the grand jury.
The White House, seeking to block this evidence, asserted various privileges C attorney-client, to preclude government lawyers from testifying; and a previously unheard-of Aprotective function privilege,@ to bar Secret Service testimony.
As you probably know, these efforts didn=t get too far C 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.
Last 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:
We are taught, and our leaders proclaim, that our nation is Aone 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:
When the administration sought to create a Aprotective privilege@ in an effort to prevent the Secret Service from testifying against the President in the Lewinsky 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 Aprotective 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:
Behind these decisions is a little-discussed provision in the United States Code C 28 U.S.C. ' 535. This section requires every member of the executive branch to report, expeditiously, any information regarding Title 18, U.S.C. offenses by government officials to the Attorney General.
But -- when the offending party is the Attorney General, a close colleague (such as Associate Attorney General Webster Hubbell was), or the one person who can fire her C the President C how much comfort can this law give us? Who is left to enforce it C if she will not?
To state that question is to provide the answer. And that is why the Independent Counsel Act was passed C to avoid such a dilemma.
These decisions are fully in accord with the principles expressed in the Nixon case, in which the Supreme Court stated:
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 C 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 they are supposed to prosecute C human nature being what it is C there is no way to avoid the lingering suspicion that justice is not fully served. 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 C one that has proved its worth, notwithstanding the controversy that inevitably follows, surrounds, and engulfs 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 this Spring, as the statute expires June 30, 1998, and Congress considers whether it should be re-enacted.
Unfortunately, its future may have more to do with how the Clinton / Lewinsky / impeachment 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:
And that applies particularly to questions about the impeachment trial, which is exclusively Congress= turf, and the best I could do anyway is parrot Yogi=s answer regarding pennant chances C that there=s Aa fifty percent chance it will happen, but a seventy-five percent chance it won=t.@