An original model of the independent counsel statute.

• Author: Gormley, Kenneth

INTRODUCTION

On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency.(1) The U.S. Court of Appeals had just directed him to turn over tape-recordings subpoenaed by Watergate Special Prosecutor Archibald Cox; these tape-recordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone with the assistance of a single White House lawyer. Cox would be entitled to the verified transcripts, but nothing else. It was a generous offer, in the President's mind; there would be no further negotiations.

The following day, October 20th, Cox held a dramatic press conference, spelling out for the American public why he could not agree to the Stennis proposal. President Nixon turned off his television set and summoned Attorney General Elliot Richardson to the Oval Office: Cox had to be fired -- immediately. Richardson refused the Presidential directive and resigned. Deputy Attorney General William Ruckelshaus attempted to resign and was "fired" by the President. Finally, Solicitor General Robert Bork carried out the President's order, terminating Cox. "In the shock of that moment," one commentator later recounted, "the American public got a taste of what it would be like to live in a country where their ruler is above the law."(2) A firestorm of public protest erupted that led to the appointment of a new special prosecutor -- Leon Jaworski -- and the slow unraveling of the Nixon presidency.(3)

Nine days after the infamous "Saturday Night Massacre," Congress began hearings to consider legislation that would create a statutory special prosecutor. The purpose: allow the Watergate investigation to resume and prevent future crises such as Nixon's firing of Cox.(4) A lineup of distinguished witnesses filed through the House and Senate to testify during those stormy days of October and November. Archibald Cox himself was one of the chief spokesmen in favor of a statutorily-created special prosecutor. Before packing up his boxes and driving with his wife to their secluded farmhouse in Maine, the ousted Watergate Special Prosecutor told a subcommittee of the House Judiciary Committee that an investigation by an outside, neutral prosecutor was almost essential if the country was to survive future crises like Watergate.(5) As Cox reiterated in a second round of congressional testimony: "The pressures, the tensions of divided loyalty are too much for any man, and as honorable and conscientious as any individual might be, the public could never feel entirely easy about the vigor and thoroughness with which the investigation was pursued. Some outside person is absolutely essential."(6)

Even as he testified, however, Cox was keenly aware that the concept of a special prosecutor divorced from the executive branch raised serious constitutional concerns, particularly relating to separation of powers. But he felt strongly that an office could be crafted to surmount these constitutional obstacles. "[I]t is a doubt which I have satisfied myself that I would be willing to run," he told the Representatives, "if I were in the position of the members of the committee."(7)

Five years later, in 1978, the Ethics in Government Act was adopted by Congress after much haggling.(8) It was signed into law on October 26, 1978, by an ebullient President Jimmy Carter.(9)

Recent events in Washington have spawned an increasingly public debate as to the effectiveness, constitutionality, and sanity of that nobly conceived Watergate-era statute. With the expansions in 1998 of the Whitewater investigation by independent counsel Kenneth Starr, moving into the Monica Lewinsky affair(10) and other matters only remotely connected to his original charter, the public questions about the independent counsel law have become intense and vocal. Twenty years after its adoption, the statute teeters on the verge of collapse.

Whitewater Independent Counsel Kenneth Starr -- a distinguished lawyer, former Solicitor General, and former federal appeals court judge -- has tested the independent counsel law as no other prior special prosecutor, and has revealed serious design defects in the statute. At the time he was appointed in 1994, Starr's jurisdictional charter was a narrow one authorizing him to investigate an Arkansas land deal involving Bill and Hillary Clinton that took place in the 1980s.(11) From that launch pad he has gone on to investigate the suicide of Clinton friend and deputy White House Counsel Vince Foster (1994);(12) irregularities in firings within the White House Travel Office (1996);(13) alleged false statements to the House Committee on Government Reform and Oversight by White House Counsel Bernard Nussbaum;(14) the improper request for FBI background files on prominent Republicans by White House officials (1996);(15) and alleged perjury and subornation of perjury by President Clinton, in denying a sexual affair with White House intern Monica Lewinsky, during his civil deposition in the Paula Jones case (1998).(16)

In the course of the Lewinsky investigation, and his subsequent referral of impeachment material to Congress, Starr has further tested the limits of the statute's boundaries by making prosecutorial decisions that (whether one agrees or disagrees with them) can certainly be categorized as aggressive. He has subpoenaed Monica Lewinsky's mother to testify about her daughter's sex life;(17) subpoenaed Secret Service agents to testify about the President's whereabouts in the Oval Office;(18) subpoenaed White House lawyers to reveal their conversations with President Clinton concerning the Lewinsky case;(19) and subpoenaed the President to testify before the grand jury, all of which culminated in impeachment proceedings in Congress.(20) The expansive power that Starr has sought to vest in the independent counsel (at times with the apparent blessing of the attorney general and the judiciary), has prompted commentators -- Democrats, Republicans, and agnostics alike -- to question whether the independent counsel statute has outlived its usefulness.(21)

This Article seeks to diagnose the troubles plaguing the independent counsel law, particularly in light of the recent blizzard of activity during the tenure of Whitewater Independent Counsel Kenneth Starr. The "sunset" provision of the statute establishes a deadline of June 30, 1999, by which Congress must face the difficult task of determining if and under what terms the statute should be reauthorized. This Article will offer specific proposals, arguing that the law is worth saving -- but in a dramatically overhauled form designed to return the statute to its original purpose.

In Part I of the Article, I review the genealogy of the special prosecutor law, starting from the time of its conception in Congress during the Watergate crisis. Focusing upon legislative history that is often overlooked by scholars because much of it relates to early proposals that were rejected during the five-year gestation period of the statute, I will demonstrate that the global vision of Congress was quite different from the scheme which has actually developed under the statute. Indeed, I conclude that the independent counsel law has evolved into precisely the sort of "Frankenstein monster" that congressional leaders and commentators feared. In part due to the conflicting signals sent by the Supreme Court in its 1988 decision of Morrison v. Olson,(22) and in part due to the failure of the statutory language to match its original purpose, the law has bedeviled the American system of government. What began as a cautious piece of legislation, designed to deal primarily with extreme crises, has transformed itself into a runaway statute creating the equivalent of a permanent special prosecutor.

In Part II of the Article, I briefly review the constitutional debates that consumed the first twenty years of the statute's existence. That scholarship has largely validated the Supreme Court's decision in Morrison v. Olson, upholding the constitutionality of the special prosecutor statute. Rather than rehashing the conceptual questions of the past, however, I will assume that the general framework is constitutional and instead suggest that Congress should move forward toward a frank examination of the tedious details of the statute, addressing its obvious gaps and patent failures.

In Part III, I advocate over a dozen specific reforms that are essential if the independent counsel law is to be brought back on track. The proposed reforms fall broadly into three categories: reforming the process by which independent counsels are appointed; reforming the role of the independent counsel; and reforming the role of the special court.

With respect to the appointment process, it will be argued that the statutory triggering device must be set much higher, so that it is "sprung" only rarely; the category of individuals covered by the statute must be dramatically reduced; and the attorney general must be given much more discretion to decide whether to appoint special prosecutors in the lion's share of cases.

With respect to reforming the role of the independent counsel, it is of paramount importance that his jurisdictional limits be firmly established, with a strong presumption against expansion of those limits. As well, the independent counsel should be required to work full-time; should be carefully monitored to determine when his investigation is "substantially complete"; and should be relieved of the burdensome (and costly) task of producing a voluminous final report.

With respect to the special court, it should be given much more explicit duties...