Impeachment and the Independent Counsel: a dysfunctional union.

• Author: Gormley, Kenneth

When Independent Counsel Kenneth Starr submitted to Congress a report of his investigation of President Clinton and defended that report in testimony before the House Judiciary Committee, Professor Ken Gormley was in a unique position to comment on the implications of the statutory authorization for Starr's report. Having just published a biography of Watergate Special Prosecutor Archibald Cox, Professor Gormley is expert not just in the history of the independent counsel statute but also in the careful consideration that Cox and others since him have given to their appropriate roles as special prosecutors. Professor Gormley, along with Cox and Stanford Law School professors Gerald Gunther and Pamela Karlan, took part in a panel discussion at Stanford Law School on October 15, 1998, entitled "The Future of the Independent Counsel" This discussion was part of a tribute to Cox on the occasion of the twenty-fifth anniversary of his firing by President Nixon in the fall of 1973, in what has come to be known as the "Saturday Night Massacre." In this special commentary, Professor Gormley expands upon an argument he made at that tribute: that Starr's report and its political aftermath reveal previously unrecognized flaws in the independent counsel statute. Section 595(c), the provision that mandates independent counsels to submit to Congress any "substantial and credible evidence" related to impeachment, raises particular problems. Professor Gormley argues that it is likely that sitting presidents are constitutionally immune from criminal prosecution while in office and it is therefore improper for them to be subjected to the prosecutorial powers of an independent counsel, simply as a vehicle to gather impeachment-related material for Congress. Further, Gormley argues, the impeachment referral provision represents an impermissible congressional usurpation oft he power of the independent counsel--an executive officer--by making him a pre-impeachment deputy of the legislature. It thus constitutes an improper evasion of Congress' political accountability in the Framers' plan for impeachment. Professor Gormley concludes by offering specific suggestions for curing these serious defects in the independent counsel statute when the act sunsets next dune. The reader should note that this issue of the Stanford Law Review went to press on December 10, 1998, as the House Judiciary Committee debated whether to approve articles of impeachment against the President.

INTRODUCTION

Just when we thought we had unearthed all of the many flaws in the independent counsel law,(1) the recent issuance of the Start Report(2) of Whitewater Independent Counsel Kenneth Start and his testimony in Congress(3) supporting the movement to impeach President Clinton have exposed another constitutional defect in the statute. It interfaces in a dangerous fashion with the impeachment provisions of the U.S. Constitution. The congressional oversight provisions of the independent counsel statute include section 595(c), which mandates that "[a]n independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel's responsibilities under this chapter, that may constitute grounds for an impeachment."(4) This referral provision, which has been contained in the Watergate era statute since its adoption in 1978, was added to ensure that the product of an independent counsel's work would be available to Congress in the event a criminal investigation led to an impeachment inquiry.(5) Yet as recent events have revealed, if the principal target of a special prosecutor's investigation happens to be the President, serious problems lie beneath the surface of the referral provision's seemingly benign language. This commentary will argue that where the President's conduct is at issue, it is constitutionally improper, as well as unwise as a policy matter, to allow the independent counsel to interact with the legislative branch in the fashion that section 595(c) dictates.

The serious problems with the referral provision did not become apparent until twenty years after its enactment, section 595(c) finally made its debut. In January 1998, Independent Counsel Kenneth Starr received permission to expand his investigation from the Whitewater land deal into allegations that President Bill Clinton lied under oath in Paula Jones' sexual harassment lawsuit when he denied having a sexual affair with White House intern Monica Lewinsky, and thereafter covered up that false testimony.(6) In the tumultuous months that followed, as the Lewinsky scandal widened into a national drama, Starr became the first independent counsel--and the first government prosecutor in history--to subpoena a sitting President to testify before a grand jury.(7) In carrying out his duty under section 595(c), Independent Counsel Starr turned over to Congress a lengthy report which outlined the "substantial and credible evidence" he had gathered that might be relevant to impeachment.(8) The Starr Report set out eleven possible grounds for impeachment, including perjury, witness tampering, obstruction of justice, and abuse of power, all flowing from Clinton's conduct in the Lewinsky affair.(9) The House Judiciary Committee, armed with the independent counsel's information, immediately began deliberations concerning the initiation of impeachment proceedings against the President.(10) Starr himself testified before the Judiciary Committee as its chief witness.(11)

The referral of the impeachment-related Starr Report to Congress, the concomitant release of the grand jury testimony and videotape, and Starr's own testimony in the House have revealed serious, previously invisible flaws in the independent counsel statute. First, the statute authorizes special prosecutors to investigate sitting Presidents who may not be subject to criminal prosecution while in office, and requires those prosecutors to supply evidence to Congress for use in the purely political process of impeachment. Not only does this combination of provisions encourage a premature use of the grand jury and the independent counsel's extraordinary prosecutorial power, but it also turns the independent counsel into a pre-impeachment deputy for the legislative branch, co-opting him (and the executive branch) into performing certain political functions that the Framers carefully reserved to Congress.

Second, even if the independent counsel can prosecute a sitting President (a dubious proposition at best), the impeachment referral provision of section 595(c) obliterates the prosecutor's ability to function as a prosecutor. Section 595(c) not only allows but mandates that the independent counsel wear two incompatible hats: one as a detached criminal prosecutor hired to conduct a neutral criminal investigation on behalf of the executive branch,(12) and the other as a pre-impeachment deputy for the House of Representatives, gathering evidence that may be relevant to Congress' impeachment work. The latter job inevitably clashes with the prosecutor's ability to handle his or her criminal case in a responsible fashion. It also disrupts the work of the grand jury, which (in effect) is forced to accuse public officials of wrongdoing without indicting--something that is generally disfavored in American jurisprudence.(13) At the same time, section 595(c) allows Congress to evade its own constitutional responsibility for initiating impeachment proceedings by passing it off to an outside entity, thus sidestepping the political accountability that was an essential ingredient of the Framers' impeachment plan.

This commentary will urge that the only solution to these problems is for Congress to scrap the impeachment referral provision entirely, if it renews the independent counsel statute in some amended form in 1999.(14) That is only a first step, however, toward clarifying the blurred line between Congress' duties and those of the independent counsel. The unprecedented transmission of the Start Report to Congress has disclosed a great deal more about the dysfunctional interface between special prosecutors and legislators when their paths intersect in the dim terrain of impeachment. If the functions of the executive and legislative branches are to remain distinct (as the Framers envisioned) when it comes to examining alleged misconduct by public officials, Congress must address--through a comprehensive legislative plan--related ambiguities that have haunted American jurisprudence since the Constitution was drafted.

The most important of these uncertainties relates to the vexing question: Can a sitting President be indicted and prosecuted while holding office?(15) Scholars and statesmen have debated this question since the founding of the nation, without resolution. As will be seen, it holds the key to resolving many riddles regarding impeachment. Until Congress faces the indictment-prosecution issue and provides a definitive answer, the proper scope of an independent counsel's power (and that of the legislature) to investigate a sitting President will remain hopelessly confused.

Congress should make explicit, via statute, that the President cannot be indicted or prosecuted while holding office. This approach is strongly indicated by constitutional history and the application of the separation of powers doctrine. Although Congress cannot dictate what separation of powers means under the Constitution, it can certainly moot this troublesome issue by requiring (statutorily) that a President must be impeached or leave office before an indictment or prosecution can occur. Simultaneously, however, Congress should amend the independent counsel statute to make clear that special prosecutors can legitimately investigate sitting Presidents--but only pursuant to carefully delineated rules, by which evidence is collected and sealed for use in future...