All or Nothing, or Maybe Cooperation: Attorney General Power, Conduct, and Judgment in Relation to the Work of an Independent Counsel - John Q. Barrett

• Citation: Vol. 49 No. 2
• Publication year: 1998

All or Nothing, or Maybe Cooperation: Attorney General Power, Conduct, and Judgment in Relation to the Work of an Independent Counselby John Q. Barrett^*

I. INTRODUCTION: KENNETH ATARR'S MONIKER

The question of what to call Ken Starr is not merely a provocation to commentators across the opinion spectrum. It relates to a serious legal argument that was made in 1997 litigation involving Starr and his office. It also relates to a larger, more complicated issue under the current independent counsel law:¹ the allocation of power and authority between independent counsel, who are temporary prosecutors operating within jurisdictional limits, and the Attorney General of the United States, who continues during independent counsel investigations to serve as the nation's chief law enforcement officer and to head the United

States Department of Justice, which is a central institution of the permanent United States government.

The legal argument regarding Starr was a very small part of one piece of finished litigation relating to the investigations and prosecutions that Starr—who is the "Whitewater" independent counsel, although his jurisdiction embraces many more subjects and allegations than Bill and Hillary Clinton, Jim and Susan McDougal, and their 1970s real estate investment² —has been conducting since his appointment in August 1994. In June 1996 a federal grand jury sitting in the Eastern District of Arkansas directed a subpoena duces tecum to the White House.³ The subpoena required production of notes of interviews and meetings that First Lady Hillary Rodham Clinton had with White House officials on a range of Whitewater-related topics. The White House responded to the subpoena by giving Starr a "privilege log."⁴ It identified nine sets of notes that were responsive to the subpoena and stated that the White House refused to produce the notes based on various claims of legal privilege.⁵

In August 1996 Starr filed a sealed motion asking the United States District Court for the Eastern District of Arkansas to compel the White House to produce two of the nine sets of notes that had been subpoenaed.⁶ Each set of notes had been created by a White House lawyer, not a private lawyer.⁷

Starr, litigating on behalf of the grand jury, won the ensuing legal battle to obtain the White House lawyers' notes, but it took him a full year to do so.⁸ The grand jury issued the subpoena in June 1996. In April 1997 the United States Court of Appeals for the Eighth Circuit ruled in Starr's favor.⁹ In a ringing but sealed majority opinion, the court rejected the claim that there is a government attorney-client privilege that can frustrate lawful federal criminal investigations, such as the investigation by the Arkansas grand jury.¹⁰ Although the White House sought Supreme Court review of this ruling (unsealing the matter in the process and thus bringing it to widespread public attention), the Court denied the White House's petition seeking a writ of certiorari.¹¹

The foregoing leads to the issue of Starr's moniker. In both the district court and the Eighth Circuit, the litigation over the two sets of White House attorney notes that were responsive to the subpoena was captioned "In re" a grand jury matter.¹² This caption is in accord with the convention for government motions of this type and appeals from denials thereof. When the matter moved to the Supreme Court, however, the private attorneys retained by the Department of Justice to represent the White House filed their petition for a writ of certiorari with the case caption, "Office of the President v. Office of Independent Counsel."¹³ What they were calling Starr, in other words, was conspicuously not "the United States."

Like many federal prosecutors before him, Starr and his client, the United States Government, had been "dissed" in court pleadings by the adversary being investigated. Surprisingly, however, in the brief filed in opposition to the White House petition, Starr responded to his adversary's rhetorical jab.¹⁴ Starr devoted the last two pages of his brief to what he described as

a procedural point: The current caption of this case is directly contrary to the independent counsel statute . . . and to this Court's consistent practice.

The issue also plays itself out in the cauldron of trials. Opposing counsel at times prefer to label prosecutors as "the independent counsel" and to state or imply that the prosecutors do not represent the United States.

The caption of this case, by referring to the "Office of Independent Counsel," directly contradicts [the independent counsel law]. It is the law, not convention, which establishes that this Office, within its jurisdiction, possesses the full "authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General" and is responsible for handling "all aspects of any case, in the name of the United States . . . ." Neither the governing statute nor this Court's practice admits of an exception when the other party before the Court is a separate entity within the Executive Branch. As to that issue, moreover, there is controlling precedent: United States v. Nixon.¹⁵

Although Starr's written demand to be referred to in case captions as "the United States" rather than "the Office of Independent Counsel" may seem petty and even a little bit prissy,¹⁶ consider the next development in the case. Following the filing of Starr's brief in opposition, the Department of Justice filed its own brief urging the Court to grant the White House's petition for review.¹⁷ In this matter, which pitted an independent counsel against the White House and drew the Department of Justice in on the side of the latter, the Department called itself, of course, "the United States."¹⁸

This short-lived tussle over the nameplate that reads "the United States" gave voice, if only for a moment, to a deep and fundamental tension that has run through the experience of many independent counsel. An independent counsel is, by law, appointed to stand in the place of the Attorney General and is given, with some exceptions, many of the Attorney General's legal powers.¹⁹ Starr was, in other words, correct: legally, the independent counsel is "the United States," just as regular federal prosecutors, up to the level of the Attorney General, are "the United States" in non-independent counsel cases.

As an independent counsel goes forward to investigate and, if necessary, prosecute criminal cases, however, the regular, permanent United States—the executive branch of the national government—is all around. It includes the Attorney General and the Department of Justice that she commands, including its components and personnel.²⁰ From an independent counsel's perspective, the rub is that this regular United States government continues to command many of the powers, resources, and personnel that an independent counsel needs to work promptly and successfully.

This Article considers the allocation of power under the independent counsel law between the Attorney General along with the Department of Justice and the independent counsel whose appointment the Attorney General has triggered. Although the law explicitly transfers much of an Attorney General's lawful power to an independent counsel, it does not go far enough in reallocating that power. Thus, it leaves a fundamental gap between what the current statute purports independent counsel to be and what it actually empowers independent counsel to accomplish. Part II of this Article reviews the current legal provisions, including the allocations to independent counsel of powers that ordinarily would belong to the Attorney General and the Department of Justice. Part III considers some instances in which the powers that the law or custom reserves to the Attorney General have been exercised to complicate or impede the work of independent counsel. Part IV proposes statutory modifications that would allocate further power to independent counsel. Part V considers some of the challenges that would arise and the political consequences that might flow from these proposed statutory modifications.

I conclude in Part VI that an empowered independent counsel might have better working interactions with an Attorney General and the Department of Justice, facilitating quicker and more satisfying outcomes to independent counsel investigations. In the alternative, even if empowering independent counsel vis-a-vis the Attorney General would result in more visible and frequent political showdowns—between Attorneys General and independent counsel or between Presidents and independent counsel—this too could be healthy for our larger governmental processes.

II. THE PRESENT ALLOCATION OF POWER BETWEEN THE ATTORNET GENERAL AND AN INDEPENDENT COUNSEL

The independent counsel law contains explicit and quite detailed provisions regarding the allocation of power between the Attorney General, who ordinarily is responsible for federal law enforcement, and an independent counsel, who is appointed at the Attorney General's request to investigate matters within a court-ordered area of jurisdic-tion.²¹ These provisions give much of the Attorney General's investiga-tive and prosecutorial authority to the independent counsel.²² In return the law places some obligations on the independent counsel with regard to the Department of Justice.²³ The independent counsel law also explicitly provides that certain specified powers and responsibilities will remain exclusive to the Attorney General notwithstanding the appointment of an independent counsel. Finally, there are issues of investigative, prosecutorial, and managerial authority that the indepen-dent counsel law does not explicitly address.

A. What Goes Over: The Statute's Reallocations of Power from the Attorney General to an Independent Counsel

Section 594 of the Independent Counsel Statute is the primary provision that transfers powers ordinarily belonging to...