Counsels, councils and lunch: preventing abuse of the power to appoint independent counsels.

• Author: Ryan, Peter M.

INTRODUCTION

On July 14, 1994, Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") ate lunch in the Senate dining room with Republican North Carolina Senators Lauch Faircloth and Jesse Helms. Judge Sentelle later described the lunch as nothing more than a visit with old friends, the discussion ranging from prostate problems to country music.(1) At the time of the lunch, however, Judge Sentelle was a member of the Court of Appeals "Division to Appoint Independent Counsels" ("Special Division"), a three-judge panel which makes such appointments pursuant to the Ethics in Government Act of 1978 ("Ethics Act").(2) The Special Division was then considering the appointment(3) of an independent counsel(4) to investigate investments by President Clinton and his wife, Hillary, in the Whitewater Development Corporation, and loans to the Clintons from the failed Madison Guaranty Savings & Loan--the so-called "Whitewater" affair.(5) Attorney General Janet Reno had requested that the Special Division reappoint Robert B. Fiske, Jr.,(6) the independent counsel she had chosen in January 1994.(7) Senators Helms and Faircloth, who had both been critical of Fiske's stewardship as independent counsel, opposed his reappointment.(8) Senator Faircloth had been an especially vocal Fiske critic during the six days of Whitewater hearings before the Senate Banking Committee, accusing Fiske of being unaggressive and of having conflicts of interest.(9) At least a dozen Republican members of Congress had written to Judge Sentelle in opposition to Fiske's reappointment.(10)

On August 5, 1994, less than three weeks after Judge Sentelle's lunch with the two Senators, the Special Division replaced Fiske with Kenneth W. Starr, a former Bush Administration Solicitor General and D.C. Circuit Judge.(11) Fiske was six months and some $2.5 million into his investigation.(12) In a brief opinion, the Special Division noted that it would be inconsistent with the Ethics Act for the Clinton Administration to play any part in the selection of the independent counsel.(13)

Starr, like Fiske, had a strong reputation for fairness. Unlike Fiske, however, Starr had strong Republican political affiliations. A member of the Reagan Administration Justice Department, he became the youngest judge ever named to the D.C. Circuit.(14) After serving as the Bush Administration's Solicitor General, Starr headed the Quayle Commission on civil justice reform.(15) He, too, could have been described as having potential conflicts of interest regarding Whitewater. These alleged conflicts, however, suggested a potential bias against, rather than for, the Clinton Administration. For instance, before being appointed by the Special Division, Starr had agreed to represent the Independent Women's Forum, a conservative Virginia legal policy group, in preparing a legal brief arguing against President Clinton's claim that during his tenure in office he should be immune from Paula Corbin Jones's sexual harassment suit.(16) Unlike Fiske, Starr continued his private legal work while serving as independent counsel. In 1995, Starr was retained by the Lynde and Harry Bradley Foundation, a group that provides substantial funding to the Free Congress Foundation, American Spectator magazine and the Landmark Legal Foundation.(17) Both the Free Congress Foundation and American Spectator provided a media forum for Clinton's fiercest Whitewater critics, while the Landmark Foundation provided legal counsel to Jean Lewis, the Resolution Trust Corporation investigator who was one of the President's chief Whitewater accusers.(18)

News of Judge Sentelle's lunch with Faircloth and Helms during the Special Division's appointment process prompted Democratic complaints and general concerns that the appointment of the new independent counsel was made for partisan political reasons. Senator Carl Levin (D-Mich.) wrote a letter to the Special Division urging the judges to ask Starr for an accounting of his recent partisan activities and to issue an opinion stating whether he could fairly investigate a case involving a Democratic president.(19) The panel replied, in an unsigned unanimous opinion, that the reauthorized independent counsel statute did not give it the power to make such a request of Starr or to issue any opinions on his fitness to remain the Whitewater prosecutor.(20) Judge Sentelle, when questioned about the lunch with the Senators, replied in a letter to the Washington Post that, "[t]o the best of [his] recollection nothing in these discussions concerned independent counsel matters."(21)

In an unprecedented action, five former ABA presidents issued a joint statement addressed to the Special Division, asking the three judges to act in an impartial manner when making future appointments.(22) The former ABA presidents described the meeting as "'unfortunate, to say the least,'"(23) and stated:

"Whether or not Mr. Fiske's replacement by Mr. Starr was discussed,

the meeting gives rise to the appearance of impropriety and the

public is left in doubt.... The special court must make sure in the

future that its selections of independent counsel are not just

objective, but also appear to be objective, and to be made without

regard to political considerations."(24)

They did not, however, call for Starr's resignation because they had the "'utmost confidence in [his] integrity and objectivity.'"(25) In another response to the lunch meeting, two private citizens filed formal complaints with the chief judge of the D.C. Circuit, Judge Harry T. Edwards, seeking disciplinary action against Judge Sentelle.-(26) The complaints were filed pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 ("Judicial Conduct Act").(27)

On November 1, 1994, Judge Edwards dismissed the complaints as not conforming with the substantive disciplinary standard of the Judicial Conduct Act--the complainants failed to allege, as required by statute, that Sentelle had engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts."(28) In the opinion, Judge Edwards emphasized that Judge Sentelle's behavior could not be subject to discipline under the Judicial Conduct Act because the primary business of the courts is the resolution of "Cases" and "Controversies" within the jurisdiction conferred by Article III of the Constitution, and because "[t]he Special Division's authority to appoint an independent counsel arises not from Article III . . . but from the Appointments Clause of Article II, Section 2."(29) The opinion stated that because the Ethics Act is silent as to whether, or to what extent, members of the Special Division may solicit or consider the views of outsiders, the panel was free to consult opponents of the President in making the appointment.(30) Judge Edwards concluded:

There may be some members of society who would question the

actions of the accused judge, for they have a pristine (albeit

arguably naive) view of the appointment process. But this is

irrelevant. The simple point here is that, even accepting the

complaints as true for the purposes of this analysis, the judge who

has been accused in this case would have violated no provision of

law or ethical Canon. There is no basis whatsoever for proceedings

against this judge.(31)

A majority of the D.C. Circuit Judicial Council endorsed Judge Edwards's dismissal of the complaints.(32) On May 30, 1995, the Supreme Court denied a request, without comment, to overturn the dismissal.(33)

This Comment discusses the interplay between two Watergate-inspired statutes: the Judicial Conduct Act and the Ethics Act. Both statutes were attempts to address misconduct by public officials.(34) This Comment argues that the Judicial Conduct Act does and should apply to the conduct of members of the Special Division, notwithstanding the fact that they make appointments pursuant to Article II. Part I briefly describes the procedures of the Ethics Act and the Supreme Court's decision in Morrison v. Olson,(35) which determined the constitutionality of the Ethics Act. In particular, Part I illustrates how Justice Scalia's dissent in Morrison perceived the potential for abuse of the appointment power by the Special Division. Part II discusses in detail Chief Judge Edwards's opinion dismissing the complaints against Judge Sentelle under the Judicial Conduct Act. Part III examines possible amendments to the Ethics Act. It concludes that there is no practical, effective way to amend the Ethics Act to prevent Special Division abuse of the appointment power without undermining the very purpose of the Act: the expeditious appointment of a temporary prosecutor who is truly independent from the Executive Branch to investigate potential criminal behavior by members of that branch. Part IV argues that Judge Edwards's formalistic conception of the scope of the Judicial Conduct Act is inconsistent with the Act's legislative history, purpose and practice. It concludes that applying the Judicial Conduct Act to the actions of judges on the Special Division is the simplest, most sensible way to ensure the proper functioning of the Ethics Act.

1. THE ETHICS ACT, THE SPECIAL DIVISION AND MORRISON V. OLSON

   1. Ethics Act Procedures and the Special Division

      Title VI of the Ethics in Government Act(36) provides for the appointment of an independent counsel for the investigation and, if necessary, the prosecution of certain high-ranking government officials for violations of federal criminal law.(37) The statute requires the Attorney General to conduct a preliminary investigation whenever she receives "information sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated Federal criminal law."(38)

      The Act's major innovation is the creation of a three-judge panel for the purpose of appointing independent counsels.(39)...