Independent counsel investigations.

AuthorHall, Joseph S.
PositionFourteenth Survey of White Collar Crime
  1. INTRODUCTION

    In the wake of growing mistrust of government integrity that culminated with the resignation of President Nixon, Congress enacted the Ethics in Government Act(1) in the late 1970s to promote greater confidence and accountability within the federal government. Since its inception, the Independent Counsel statute has been simultaneously revered and reviled, with the party controlling the White House continually decrying the statute as overbroad, expensive, partisan and vague, and the party outside the White House trumpeting the statute as a necessary check on abuses of power by the Executive Branch.

    Section II of this Article describes the background of the Independent Counsel statute and the events that precipitated its enactment. Section III documents the statute's legislative history, including revisions made during its past reauthorizations. Section IV offers a detailed statutory analysis. Section V discusses Morrison v. Olson in which the Supreme Court upheld the constitutionality of the statute. Section VI provides up-to-date information about the scope, cost and number of Independent Counsel investigations. Finally, Section VII discusses various proposals for statutory reform.

  2. BACKGROUND

    I was appalled at this senseless, illegal action, and I was shocked to learn that employees of the Re-Election Committee were apparently among those guilty. I immediately ordered an investigation by appropriate Government authorities.... I personally assumed the responsibility for coordinating intensive new inquiries into the matter, and I personally ordered those conducting the investigations to get all the facts and to report them directly to me....(2) On April 30, 1973, President Nixon addressed the nation to explain that the government was conducting a full inquiry into the Watergate break-in; earlier that day the White House had announced the resignations of Attorney General Richard Kleindienst, Counsel to the President John Dean, and Presidential aides John Ehrlichman and H.R. Halderman.(3)

    President Nixon appointed Elliot Richardson as Attorney General shortly after those resignations.(4) The Senate confirmed Richardson, but only after extracting a promise from Richardson that he would appoint a special prosecutor, removable only for "overwhelming evidence of cause,"(5) to investigate alleged Watergate wrongdoing.(6) Richardson subsequently appointed Archibald Cox, Professor and Dean of Harvard Law School, as the Watergate special prosecutor.(7)

    Cox's investigation eventually led him to subpoena White House audiotapes of earlier conversations between President Nixon and his aides in the Oval Office.(8) Angered by this decision, the President ordered Attorney General Richardson to fire Cox. He promptly refused and instead resigned.(9) Deputy Attorney General William Ruckelshaus also refused to dismiss Cox(10), and was consequently fired. Acting as Attorney General, Solicitor General Robert Bork eventually fired Cox.(11)

    Nixon then nominated Senator William Saxbe (R-Ohio) as Attorney General, and Bork announced the appointment of Leon Jaworski, a Texas attorney, as the new Special Prosecutor.(12) Under considerable pressure from Congress, Acting Attorney General Bork issued regulations giving the Special Prosecutor plenary authority to investigate "all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary...."(13) In return, the President agreed that he would not "exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, [and therefore] the Special Prosecutor will not be removed from his duties except for extraordinary improprieties...."(14) The Supreme Court relied in part on Bork's regulations and the Administration's pledges when it ultimately upheld Jaworski's subpoena of Nixon's audio tapes.(15)

    The resignation of Richardson, the firings of Ruckelshaus and Cox, and the subsequent steps taken to ensure an objective investigation of the Watergate break-in laid the foundation for enactment of the Independent Counsel statute. These events ultimately led Congress to debate legislation aimed at providing a structure for a fair, impartial investigation of the Executive Branch.

  3. LEGISLATIVE HISTORY

    In Watergate's aftermath, the Senate Judiciary Committee, Subcommittee on Separation of Powers, held hearings in 1974 to draft legislation intended to prevent future Watergate-type conflicts of interest, and to ensure independent administration of justice.(16) These hearings led to several proposals including S. 2803, which would have established the Department of Justice ("DOJ") as an independent agency.(17) Senator Alan Cranston (D-Cal.) introduced S. 2978, which would have established a commission to study the need for a permanent, independent mechanism to investigate offenses committed by high-ranking federal officials.(18) Although neither bill passed, they laid the foundation for S. 495, the Watergate Reorganization and Reform Act of 1975, which would have created a permanent independent special prosecutor.(19) This 1975 legislation, reported out of the full committee, did not provide for a permanent office for a special prosecutor, but instead created a process through which the Attorney General could petition the United States Court of Appeals for the District of Columbia Circuit for the appointment of a temporary special prosecutor under certain circumstances.(20) As with previous efforts at statutes authorizing a special prosecutor, S. 495 failed to gain the necessary votes, but the resurging debate and clamoring for such a statute continued to grow.

    Finally, the Ethics in Government Act of 1978 was introduced in the 95th Congress.(21) This Act was an omnibus package of governmental reforms, including requirements for financial disclosure by each branch of the federal government, establishment of the Office of Government Ethics, and other reform provisions.(22) Most notably, this legislation provided for a temporary special prosecutor to be appointed by a division of the United States Court of Appeals for the District of Columbia Circuit upon application by the Attorney General.(23) The Ethics in Government Act was approved by Congress and signed into law by President Carter in October 1978.(24)

    The Ethics in Government Act has undergone numerous amendments. In 1982, as part of its statutorily required reconsideration, Congress amended the statute by (1) lowering the threshold for removal of a special prosecutor from "extraordinary impropriety" to "good cause;"(25) (2) eliminating mid-level Executive Branch officials as possible targets of any investigation;(26) and (3) adjusting the statute's triggering mechanism to allow the Attorney General to weigh the specificity and credibility of evidence before conducting a preliminary investigation.(27) The 1982 amendments also changed the name of special prosecutor to "Independent Counsel"(28) and added a "catch-all" provision authorizing the Attorney General to apply for an Independent Counsel to investigate any officials or citizens for whom a routine DOJ investigationmight result in a conflict of interest.(29) On January 3, 1983, President Reagan signed into law the reauthorization bill incorporating these and other changes.

    The Independent Counsel statute was amended a second time in 1987 after it had been in operation for ten years.(30) Substantive changes made in 1987 focused primarily on DOJ's responsibilities and DOJ's implementation of the law. These changes specified that a preliminary investigation should be conducted if an official listed in the statute "may have violated" the law instead of the higher threshold of when such an official "has committed" a federal crime,(31) and disallowed the Attorney General from weighing "state-of-mind" evidence before commencing a preliminary investigation.(32") In addition, the amendments clarified that the Attorney General could consider "only the specificity of the information received and the credibility of the source of that information" when deciding whether to commence a preliminary investigation,(33) The 1987 amendments reduced the Attorney General's discretion in commencing and conducting the early phases of an Independent Counsel investigation, while simultaneously adding new accountability measures to the statute.(34)

    Congress allowed the Independent Counsel statute to lapse in 1992 amid election year politics, the increasingly controversial Iran-Contra investigation, and the tenure of an unsympathetic Attorney General.(35) However, in the wake of allegations about President Clinton's possibly improper involvement in the Whitewater land deal, Congress renewed the statute in 1994 by passing the Independent Counsel Reauthorization Act of 1994.(36)This reauthorizing legislation, like its predecessors, sought to address perceived statutory deficiencies in previous Special Prosecutor statutes. The 1994 changes included: (1) the requirement that an Independent Counsel appoint a chief financial officer to oversee expenditures;(37) (2) the requirement that expenditures be reviewed by the General Accounting Office ("GAO");(38) and (3) the lowering of the threshold for invoking the statute to investigate members of Congress from a "conflict of interest" standard to a showing that an investigation would "be in the public interest."(39)

    As a result of the highly controversial and politicized debate about Ken Starr's investigation of President Clinton, several members of Congress have recently introduced bills to reform the Independent Counsel statute. S. 2075, introduced May 13, 1998, would have provided for expedited review of executive privilege claims.(40) H.R. 3464 introduced on March 12, 1998 would have altered the Independent Counsel's jurisdiction, the authority to appoint an independent counsel, and the crimes subject to investigation.(41) Although none...

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