SO YOU THINK YOU WANT TO BE

By Donald C. Smaltz

   So you think you want to be an Independent Counsel? Notions of public service run strong among many lawyers. Particularly among former prosecutors, there seems to be a desire, once you leave the U.S. Attorney's Office, to return to it after you've made some money in the private sector and can afford to send your kids to college.

   The position of independent counsel, or special prosecutor, is regarded at least by some as being a very desirable position. After all, you can serve your country on a project that is temporary and put your finely-honed lawyer skills to work investigating and prosecuting the bad guys. It offers a former prosecutor — like the Lone Ranger — an opportunity to return to those thrilling days of yesteryear. Once again, you ride a white horse and wear a white hat. However, the job is not all a bed of roses, and you need to be forewarned so you can be fore-armed about some of the problems. 

   Among the first questions people frequently ask is "how do you get to be a special prosecutor?" The selection process is not public except for the fact that the Special Division of the U.S. Court of Appeals for the District of Columbia Circuit — a three-Circuit-Judge tribunal created specially to handle independent counsel matters — is tasked under 28 U.S.C. 593(b)(2) of the statute to make the selection.

   Little is known about the selection process. It is known that the Special Division keeps a so-called "talent book" with names of individuals who might make appropriate independent counsel. It is also known that professional colleagues of the Special Division judges make recommendations for possible candidates.

   In my case, I was contacted in 1990 by the then-presiding judge of the Special Division and asked whether I would be interested in handling the Pearce—HUD matter. At the time, I was with a 700-person firm — Morgan, Lewis & Bockius — and we represented at least one of the potential subjects. Accordingly, I was unable to accept because of the conflict.

   I thought there would never be another opportunity. After all, the IC statute, which had five-year expiration periods, expired on December 31, 1992 and was probably not going to be reenacted.

   But shortly after the statute was reenacted on June 30, 1994, I was called by one of the federal district judges in the Central District of California who told me that he had submitted my name to the panel and said that, if I were interested, I should send a copy of my current resume, which I did. Shortly thereafter, I got a call, was interviewed, and ultimately appointed as Independent Counsel in the Espy matter.

   Little did I realize what I was stepping into. To put the matter into perspective, let me start with some of the history. 

   It was in 1978, after 200 years of relatively-stable and effective government, that 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 judges.

   Since President Grant's appointment in 1875 of General John B. Henderson as a special prosecutor to investigate one of the numerous scandals in his administration — the so-called "Whiskey Ring" — special prosecutors of one sort or another have appeared. After Grant — Presidents Garfield, Teddy Roosevelt, Coolidge, Truman, Nixon, Carter, and Clinton appointed special prosecutors.

   Congress was very well-aware in 1978, when it enacted the Ethics in Government Act, that special prosecutors appointed by the President can be fired by the President. Grant fired his special prosecutor, Henderson, because Henderson's investigation and prosecutions were getting too close to Grant. Truman fired his special prosecutor after only 63 days. Nixon's firing of special prosecutor Cox, in what is now known as the infamous "Saturday Night Massacre," produced such a public furor that political concerns required he appoint a successor — Leon Jaworski.

   Grant and Truman were able to frustrate the special prosecutor's purpose and efforts. Nixon's attempt to do so during Watergate failed. 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, 1993, and it was in that interval that President Clinton appointed Bob Fiske as Special Prosecutor to investigate "Whitewater."

   Since passage of the Act, there have been 15 Independent Counsel appointed under the Act. Twelve of those Independent Counsel investigations have been publicly-identified, and three more were appointed in 1989, 1991, and 1996, and their identities and subjects have not been disclosed. In addition, on two occasions — Griffin Bell and, later, Janet Reno — appointed regulatory independent counsels who are not covered by the Act.

   Under the Act, the Independent Counsel's identity and jurisdiction may not be made public before indictment unless the Attorney General requests, or the Special Division determines it to be in the public interest to do so.

   Of the 15 publicly-identified Independent Counsels, six — after investigation, brought criminal prosecutions.

   Because the IC is appointed to investigate and, if appropriate, prosecute a senior-level Executive Branch official — almost by definition — from the outset — he is conducting a political investigation.

   The IC aspiring candidate, no matter how a-political he might be — no matter what his party affiliations — or connections — or political activities were in the past — once he is appointed, the odds are that, because he is conducting a political investigation, he is now, a fiorti, a political figure.

   Like it or not — intended or not — wanted or not — he will most probably be caught up in the Washington political swirl.

   If history is any guide, if he does bring any criminal prosecutions, he can expect to have lots of adverse media coverage.

   I say that because every one of the six independent counsel who brought criminal proceedings to date has found himself pillared by the media, and that includes Whitney North Seymour, Jr. — who prosecuted and convicted Mike Deaver; Judge Lawrence Walsh for the prosecutions he brought in the Iran-Contra matter; Judge Arlin Smith for the prosecutions he brought in the Pearce-HUD matter; Judge and former Solicitor General Ken Starr for his Whitewater prosecutions; Dave Barrett for the prosecutions he brought in the Cisneros matter; and me, for the prosecutions I brought in the Espy matter.

   In its current structure, the Independent Counsel Act, which is found at 28 U.S.C. 591, et seq., generally provides for appointment of an Independent Counsel to investigate and, where appropriate, prosecute certain designated high-ranking Executive Branch officials — about 70 — if there is specific and credible evidence that one may have violated federal criminal law. Alternatively, the Attorney General may seek appointment of an Independent Counsel where she determines her investigation may result in a personal, financial, or political conflict of interest. It was on this latter basis that the Attorney General filed an Application seeking appointment of an Independent Counsel to investigate "Whitewater."

   The Act is triggered when the Attorney General receives information sufficient to constitute grounds to investigate allegations of federal criminal conduct by a "covered person." When that occurs, she must conduct a preliminary investigation within 90 days. 28 U.S.C. 592(a)(1).

   If after the preliminary investigation she concludes "there are reasonable grounds to believe further investigation is warranted," she files an application for appointment of an Independent Counsel with the Special Division. 28 U.S.C. 592(c). If she concludes that requisite showing hasn't been made, she does not file an application, and her decision either to file or not file an application is not reversible.

   In making the determination whether or not further investigation is warranted, the Attorney General may consider only the specificity of the alleged criminal conduct and the credibility of the source of that information. 28 U.S.C. 591(d)(1). This is a very low threshold, indeed, that Congress has set, tilting the process in the direction of appointment of an Independent Counsel. Moreover, in making the determination, she is limited to questioning witnesses who voluntarily agree to interviews, and reviewing documents voluntarily produced.

   The Attorney General does not have any of the basic prosecutorial tools so necessary for thorough investigation because she is statutorily forbidden "to convene Grand Juries, plea bargain, grant immunity, or issue subpoenas." 28 U.S.C. 592(a)(2). 

   Since she is forbidden to use compulsory process, it is difficult to conceive how she can really gain a true and correct understanding of the factual core of the issue.

   While the Attorney General's "limited preliminary investigation" cannot, under the terms of the statute, meaningfully develop the facts underlying the accusations, it does, however, walk all over the supposed crime scene, leaving indelible footprints. Those prints portend a variety of mischief for the subsequently-appointed Independent Counsel, who first visits the scene months, or even years, after the events. First, they alert the subjects of the investigation where the investigation is coming from and who it's heading toward. Second, this alert causes them and others to "lawyer up," with the inevitable exchange of information among lawyers and their clients concerning whose client remembers what, whose client cannot recall what, and whose client believes he was absent that day. Third comes the lawyer's public espousal of his strategy — often complete with a public relations advisor, followed by statements from the subjects' surrogates in the media, to the effect "there was no intent to violate the law," "the law is too old," "the law has never been enforced," "he was only being treated as family," "there is no controlling legal authority," "this is a witch hunt," etc., etc.

   Thus, while few white collar federal criminal prosecutions take on a public persona at the investigative stage, it is the exceptional Independent Counsel investigation that does not become a media curio. Once so established, the investigation — conducted by a political figure, according to some — becomes a political vendetta against the subject of the investigation.

   The media then no longer reports the matter as a government investigation, but rather as a political event which in turn causes the subjects, and those politically aligned with the subject, to deride the "vendetta." Clever and politically-astute defense counsel are keenly aware that investigations suffering public approbation are less likely to obtain evidence from reluctant or neutral witnesses; and some obviously ascribe great wisdom to the observation: "you can indeed fool all of the people all of the time if the P.R. is right and the budget big enough." 

   So while the intent of the Act's provision for a limited preliminary investigation is understandable, the effect is to interject myriad problems that delay and often impede the Independent Counsel's investigation.

   Because of the "political" nature of the investigation, the media — at the urging of the "political foes" of the investigation — will begin to report the number of people you employ and the cost of your investigation.

   As the statute requires that the IC file annual public reports reflecting the amount of expenditures of your office, after a time, a prime concern of the media and the political opponents is the "cost of this witch hunt.".

   No matter what your accomplishments are — or are not — the costs and length of the investigation will be constantly parroted by the press, so much so that, after time, the venality vel nom of the subject of the investigation, and his cohorts, becomes lost in a din of criticism about the costs of the investigation.

   It is only in independent counsel investigations that costs are so prominently displayed by the opponents and offered up by the proponents of the subject of your investigation as a reason for not pursuing the offenders.

   Think of it — how many instances can you recall where the success or failure of the federal criminal investigation/prosecution was being measured by the amount of money it cost the Justice Department? The Justice Department does not break down its costs per investigation, and so there are few comparisons available. One comes to mind — the Fiske regulatory independent counsel — which preceded Independent Counsel Starr's appointment. That investigation ran as a DOJ operation and cost a little over $6 million in nine months, averaging in excess of $700,000 per month.

   The length of your investigation will have a direct effect on the cost, so that all delays you encounter necessarily add proportionally to your costs. After the Attorney General determines it is appropriate to request an Independent Counsel, she files an Application with the Special Division. The Application requests appointment of an Independent Counsel to investigate a specific subject matter. That Application is required to contain "sufficient information to assist the division of the court in selecting an Independent Counsel and in defining that Independent Counsel's prosecutorial jurisdiction so that the Independent Counsel has adequate authority to fully investigate and prosecute the subject matter and all matters related to that subject matter." 592(d).

   The Act then charges the Special Division with responsibility to define the Independent Counsel's jurisdiction and the court is commanded to "assure that the Independent Counsel has adequate authority to fully investigate and prosecute the subject matter . . . and all matters relating to that subject matter." (28 U.S.C. 593(b).

   Congress' command that the Special Division ensure the Independent Counsel has jurisdiction to fully investigate not only the matter, but also all related matters, reflects Congress' concerns that an informed decision to indict or decline to prosecute can and will be based on all the facts.

   The role of declining to prosecute a senior government official after full investigation is as important, if not more so, than the decision to prosecute. The fact that a prosecutor independent of the current administration has fully investigated the matter and all related matters, and concluded that prosecution is not warranted, not only serves to clear the official of the allegations, but also leaves the public with the assurance that there is no cover-up, since the public necessarily doubts the ability of the Executive Branch to investigate itself.

   Although the statute requires the Special Division to define the independent counsel's jurisdiction, the Attorney General, when she files her Application, attaches a proposed jurisdictional grant which, at least in the recent past, the Special Division adopted.

   For instance, in the applications filed by the Attorney General in connection with Whitewater, Cisneros, Brown, and the Espy matters, the Special Division accepted the recommended statement of jurisdiction proposed by the Attorney General and then added a paragraph providing that the independent counsel shall have appropriate prosecutorial authority.

   The "scope of the independent counsel's jurisdiction" and the interpretation of same has been a bone of contention between some independent counsel and the Justice Department, as some of you may be aware from recent media accounts.

   In appointing a person to serve as an Independent Counsel for the particular matter, the Special Division is statutorily required to appoint a person who "has appropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner . . . . [and who shall serve] to the extent necessary to complete the investigation and prosecution without undue delay." Section 593(b)(2).

   The court is precluded from appointing any federal employee or officer. Thus, from the outset, the newly-appointed Independent Counsel is on notice that he is required to conduct the investigation fully, promptly, responsibly, and cost-effectively.

   So, if you are the selected nominee for the new IC position — at least in the Special Division's eyes you have the appropriate experience to investigate and, if necessary, prosecute the particular matter.

   Upon taking the oath to faithfully discharge the duties of your office, you are under an obligation to proceed "promptly, responsibly, and cost-effectively to fully investigate the subject matter and all matters relating to that subject matter, completing these tasks without undue delay," and you have committed to serve to the conclusion of the investigation and prosecution.

   You've been sworn-in — Great! — you say. Ready to go! Where's my office? Where's my staff? Where're my agents? Where're my lawyers?

   Surprise! Unlike an incoming United States Attorney or a Department of Justice official who steps into an existing office complete with office space, staff, telephones, agents, attorneys, and all the trappings of a functioning office, the Independent Counsel, after he's sworn in, starts from ground zero.

   He has only the piece of paper evidencing the Division's appointment of him, and his jurisdiction. He has no telephone, no office, no staff, no lawyers, no agents, no books, no computers — not even a copy machine. While the 1994 amendments to the statute obligate GSA to "promptly provide office space for the Independent Counsel," that is easier said than done. If experience is any guide, the newly-appointed Independent Counsel will be provided "temporary" space — a closet in the basement of the Thurgood Marshall building — from which he must now begin the process of attempting to recruit staff, whose first question usually is "how long will I be working on this investigation? Response: I don't know!

   The second question is "where will it be housed?" Response: I don't know. The third question is: "when will you know?" Response: I'm not sure. The fourth, and often final, question is: "do you pay parking?" Response: No, the federal government doesn't do that.

   Despite their unknown duration and destination, Independent Counsel investigations have been able to attract tremendously talented, able and experienced staff and lawyers from private practice, U.S. Attorneys Offices, and DOJ. Agents are selected by the IC from a group of FBI and other federal investigative agencies whose personnel volunteered for the assignment. The agencies that I tapped for agents in my investigation included the FBI, IG-USDA, SEC, Customs, and IRS.

   My intent is not to burden you with the Independent Counsel's travails of locating, equipping and staffing the office, or complying with never-ending inane GSA regulations. I simply note that, starting from ground zero, it generally takes anywhere from 8 to 12 months before the organization is integrated fully and adequately equipped to function efficiently.

   Once the investigation is up and running, be prepared for some rough going in the investigative stage, which will significantly slow your investigative progress.

   First, be aware that even though you are investigating corruption, you will be denied the opportunity to use undercover investigative techniques to catch the subject in the act. Unlike ABSCAM or Graylord, there will be no videotaping of the subject in the act of accepting cash. Your subject is there; he knows about the allegations; he knows about you; he is on his guard. You may have noticed, if you follow these investigations and prosecutions, that false statement, perjury, and obstruction of justice charges are almost always included in IC prosecutions. If, indeed, conspiracy charges are the darling of the prosecutor's nursery — for IC investigations, false statement charges occupy the most-favored cradle there and are very often brought under 18 U.S.C. 1001.

   The career prosecutors and agents in my office, including those acting in an advisory capacity, are uniformly of the belief that there is more lying, perjury, and obstructive behavior in the investigative stage of Independent Counsel cases than in ordinary white collar cases. One can only speculate as to the reasons, but one explanation might be that, in Independent Counsel investigations, the witnesses are often people whose entire existence revolves around the swirl of politics, and in an environment where it is far too tempting to put a glib, self-serving spin on responses to questions. Whatever the reason, the lie translates to more delay, more false trails, and more and greater investigative effort and time — and time means increased costs.

   Another factor which was probably absent — or at least not very prevalent in your AUSA experience — is that persons resisting an Independent Counsel investigation see the question of the Independent Counsel's jurisdiction as a productive avenue for delaying tactics. At the Grand Jury level, DOJ investigations are rarely resisted on jurisdictional bases. Conversely, Independent Counsel investigations are frequently challenged at that level because the challenger attempts to argue that the SDT does not fall within your subject matter jurisdiction. Where the challenge is to a grand jury subpoena duces tecum, that means the documents are not produced until that challenge is resolved. That means briefing, hearing, ruling.

   When the ruling is not made promptly, but lengthens into weeks and/or months, the ability to conduct an orderly and deliberate examination is destroyed. Without the documents, witness interviews are delayed. Agents and lawyers assigned to review the subpoenaed materials, and who were anticipating their immediate receipt, now need to turn their attention and efforts elsewhere. When, after court order, the documents are ultimately obtained, those agents who had the learning curve on this area may have been reassigned to some other project and not available. Now, new agents and lawyers may have to be assigned to start from ground zero. 

   If there are jurisdictional disputes between the Independent Counsel and DOJ, which sometimes occurs, when those disputes become public, the problem is exacerbated. Up through this point, I have been talking about the investigative stage. If there are indictments, a whole new series of delays will be encountered.

   Once an indictment is returned, there is little the government attorney can do, whether DOJ or Independent Counsel, beyond requesting as early a trial date as the court's calendar permits. The prosecutor is captive to the court's calendar, and the court is usually deferential to defense counsels' requests.

   It is the rare white collar case indeed that meets the Speedy Trial Act's command for a trial commencing within 70 days of arraignment. Setting of the trial date is delayed at defense counsel's request because of his stated intention to file numerous dispositive motions. The trial court needs time to consider and decide these matters, and that means delay.

   The ultimate responsibility, however, for the elapsed time the delay creates, is beyond the control of the prosecutor. It is, however, only in Independent Counsel prosecuted matters that responsibility is cast at the feet of the Independent Counsel. His DOJ counterpart is seldom, if ever, tagged with responsibility.

   Delays in trial exact another toll from the Independent Counsel which DOJ doesn't pay. Since the office of the Independent Counsel is a temporary one, its personnel are by definition temporary also. Some of the employees come from within federal service and some come from without. Virtually all the attorneys and investigative agents working on these cases have plans to return somewhere, and their desire is to return sooner rather than later. Consequently, if a case isn't tried expeditiously, or the investigation gets stalled, there is likely to be turnover in personnel rendering the prosecution not only highly inefficient but significantly more costly. Sometimes the trial court's postponement of trial results in the Independent Counsel's trial team being disbanded.

   Restaffing the trial team requires redundancy of effort, which adds to the mounting expense. One example: We have a case on the West Coast that was indicted on October 18, 1996. Despite our requests for an early trial at the October 1996 arraignment, and repeated requests, it was not until April 30, 1997 that the court set a trial date — September 16, 1997, and the trial didn't start until October 28, 1997, and concluded a month later. There is still another portion of the case to be tried, and that hasn't even been scheduled.

   Because of the trial delays, I had to recast the trial team on three different occasions. The third team was almost disbanded because two different U.S. Attorneys from two different jurisdictions who consented to the detailing of their Assistants to my office wanted them back in October, 1997, as I promised. To maintain the trial team and an office at the ready in anticipation of the scheduled September trial date, our costs as at the end of July exceeded $75,000 per month.

   When the court permits the dates to slip, the IC costs increase. Be prepared, if you're the IC, to be tagged with the responsibility for those costs, and don't expect anyone to understand the explanation that you have no control over the trial date or the trial court.

   Just as a prosecutor is unable to control the trial's duration and time of sentencing, he is similarly unable to control, or even meaningfully influence, the appellate process. Whether the prosecutor is DOJ or Independent Counsel — outside of moving for expedited treatment and promptly meeting the briefing schedules — the number of appeals defendants file and the time to resolve them is something over which the prosecutor has absolutely no control at all.

   The difference between DOJ and Independent Counsel is that the latter is charged with somehow being responsible for that time. This is a double-whammy because the Independent Counsel cannot prepare and release his Final Report until the appeals are resolved, and release of the Final Report can be a complicated and time-consuming process.

   The Final Report process adds another eight months to two years to Independent Counsel matters. I describe it as a process because the Independent Counsel's statutory obligation to prepare a "final" report setting forth fully and completely a description of the work, including the disposition of all cases brought, is only the first step. 28 U.S.C. 594(h)(1)(b)

   The Special Division is charged with reviewing that report and identifying those individuals who should have the opportunity to comment. 28 U.S.C. 594(h)(2). After comment, the Independent Counsel then revises the report — now in final, final form, and gives it to the Government Printing Office. After printing, it is released to the public.

   But the matter doesn't end there. After the Final Report is published and released, parties who wish to claim attorneys fees are given 30 days to file applications which, when filed with the Court, are served on the Independent Counsel and on the Attorney General, who separately consider, evaluate, and report their respective findings to the Court within 90 days. 28 U.S.C. 594(f)(1).

   Eventually, the issue of attorneys fees is resolved 28 U.S.C. 594(f)(2). Lastly, the Independent Counsel must package and transfer the office's records to the Archives of the United States in accordance with the procedures of 28 U.S.C. 594(k). Only then can the office be closed.

   decide you do, be prepared to take up residence in the Washington, D.C. area on an indefinite basis. Be prepared to visit your family in Iowa — if you're lucky — maybe two weekends a month. Be prepared to accept a rate of pay of $53 per hour, with a ceiling of 80 hours during any two-week period, and no compensation for any time you spend in excess of that 80-hour maximum.

   While the statute permits you to maintain a private practice, if you're a trial lawyer, be prepared to see your clients find other lawyers while you're in D.C. At least for me, it is impossible to maintain a trial practice while performing duties as an IC. If you're an appellate specialist, however, and you have a large enough firm behind you, you can probably balance your IC duties and your private appellate specialty. After all, you can read and write appellate briefs on the plane between Des Moines and D.C., and your oral argument dates in the Circuit and Supreme Courts are established well in advance. 

   You cannot, however, take depositions or prepare clients to give testimony on the airplane. An appellate practice does not have the same time-constraints and demands on your time as does a trial practice so, if you're a trial lawyer, unless there's a very large firm behind you, be prepared to kiss your practice goodbye.

   Do you still think you want to be an IC? While I knew none of the problems beforehand that I'm discussing with you here today, even knowing them now as I do, I'd still be delighted to accept.

   I suggest you favorably consider the post if you're offered the opportunity.

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