SPEECH DELIVERED BY DONALD C. SMALTZ
BEFORE THE GONZAGA UNIVERSITY STUDENT BODY ASSOCIATION,
SPOKANE, WASHINGTON, ON MONDAY, JANUARY 29, 1996

I
INTRODUCTION

   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.

II
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 attention.

   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 Committee's interest.

   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 prosecutor.

   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 Nixon/Watergate episode.

   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.

III
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 prosecutor.

   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.

1. 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 the government.

      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.

2. 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 Route" cases.

      Garfield, who had run on a platform of civil service reform and clean government, was resolute in his desire to rid his administration of corruption. When told that the Star Route cases would involve some of his confidants, he stated:

   Go ahead. Regardless of where or whom you hit, I direct you 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.

   

3. 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 law."

      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.

4. 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.

   

5. 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 Division.

      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 it."

      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 his salary.

      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 their due.

6. 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 political party.

      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.

IV
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 specific circumstances:

(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.

V
CONCLUSION

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.

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Books Relating To Independent Counsel

Ethics, Politics and the Independent Counsel
T. Eastland

Independent Justice: The Federal Special Prosecutor in American Politics
K. Harriger

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