The History of the Independent Counsel Provisions: How the Past Informs the Current Debate - Katy J. Harriger

• Publication year: 1998

ARTICLES

The History of the Independent Counsel Provisions: How the Past Informs the Current Debateby Katy J. Harriger*

I. Introduction

The current "feeding frenzy"¹ around the campaign finance scandal invites us to reflect upon the importance of the past. The independent counsel provisions of the Ethics in Government Act² are the product of a particular time and sequence of events that determined their shape and continue to influence their implementation. If we want to understand the current controversy surrounding Attorney General Janet

Reno's interpretation of the independent counsel provisions, we must look back at the legislative history of those provisions and the larger history of the time.

When we look back, we can see that the issues at the center of the debate about the provisions today were there from the start. The difficult choices that faced the lawmakers then are no less difficult today. In response to the Watergate scandal, Congress sought to write a constitutional statute that balanced the competing values of independence and accountability in a political climate of deep partisan and public distrust. Could Congress create an officer independent of the executive branch without running afoul of the constitutional scheme of separation of powers? Would an officer wielding prosecutorial power independent of the executive branch be an unaccountable persecutor of vulnerable public officials? Could Congress create an arrangement that removed politics from the consideration of criminal allegations against executive branch officers? Could an independent counsel arrangement help restore public confidence in government in the wake of Watergate? The question we must ask ourselves today is not whether Congress could or should have come up with different answers then but whether twenty years later, in a political environment even more steeped in distrust,³ we can imagine any other balance among these interests.

In this Article, I use the history of the independent counsel provisions to frame the current controversies surrounding the arrangement. I begin with a brief discussion of the uses of special prosecution arrangements prior to Watergate, followed by a fuller discussion of the influence of the Watergate scandal on the creation of the 1978 provisions. After an exploration of the various issues debated by Congress before passage of the provisions, I consider the way in which the implementation of the Act shaped the debates at each consecutive reauthorization in 1982, 1987, and 1994.⁴ Finally, I return to the present, linking this history with the current controversies about the Attorney General's discretion, the independent counsel's independence, and the alternatives to the independent counsel in a climate of distrust.

II. The Ad-Hoc Uses of Special Prosecutors

Special prosecutors were appointed in three major national political scandals in the twentieth century prior to the adoption of the 1978 provisions. In the Teapot Dome scandal of the 1920s, the tax scandal of the 1950s, and the Watergate scandal of the early 1970s, presidentially appointed special prosecutors investigated allegations of wrongdoing by executive branch officials. It was the Watergate scandal that most directly led to the creation of the Ethics Act provisions, but the experience with the other two scandals offers additional insight into the dilemmas posed by independent prosecution.

A. Teapot Dome

The administration of Warren G. Harding, often characterized as one of the most corrupt of the twentieth century, was plagued by charges of cronyism and corruption. The most historically significant of these charges were attached to the Teapot Dome scandal, which involved allegations of bribery and corruption in the leasing of the federal government's naval oil reserves to private businesses. The scandal grew out of the concerns of powerful conservationists that the Secretary of Interior, Albert Fall, was not adequately enforcing conservation policy.⁵ In April 1922 the Senate agreed to investigate the way in which Fall had handled the leasing of the Teapot Dome reserves. Responsibility for the investigation fell on the Senate Committee on Public Lands and Survey, but hearings were postponed until after the 1922 congressional elections.⁶

Secretary Fall resigned in early 1923, but it was not until Harding's death in August of that year that the rumors of corruption turned into charges of bribery. Several months later the Senate finally began its investigation, and as more evidence was uncovered, the committee members began to talk of the need for a special counsel to handle the legal work involved in cancelling the illegal contracts.⁷ Coolidge was warned by Republicans on the committee that a special counsel was likely, and he decided to preempt that action by announcing his own appointment of counsel, drawn from both parties, to pursue the necessary litigation. He nominated former Democratic Senator Atlee Pomerene of Ohio and future Supreme Court Justice Owen Roberts, then a prominent attorney from Philadelphia, to be special counsel in the case. The Senate ultimately confirmed the two in February 1924.⁸

Pomerene and Roberts worked for the next four years on the cases arising from the scandal. The Senate Committee continued its hearings, and a special committee was formed to investigate whether the Attorney General, Harry Daugherty, had obstructed efforts to investigate the case. Daugherty resigned under this cloud of suspicion. In 1931 Albert Fall entered federal prison after having been found guilty of accepting a bribe for the oil leases and after having had his various appeals rejected.⁹

B. The Tax Scandals

The tax scandals of 1951 and 1952 were similar to the Teapot Dome scandal in that they began with a congressional investigation that led to the appointment of a special prosecutor. Congressional hearings into allegations of misconduct by the Bureau of Internal Revenue and the Tax Division of the Justice Department uncovered widespread tax fixing involving complicity between both agencies.¹⁰ Large numbers of revenue officers were forced to resign, and in 1952 the former Commissioner of Internal Revenue and his assistant were convicted of tax fraud. The assistant attorney general responsible for the Tax Division was fired and later convicted of conspiring to fix a tax case. Despite these efforts by the administration to respond to the scandal, Congress continued its embarrassing investigation, and President Harry S. Truman decided to appoint a special commission to investigate the allegations.¹¹

Truman chose Newbold Morris, a New York attorney with a reputation for fighting corruption, to lead the investigation. Morris's first act was to prepare a questionnaire that was designed to measure income and expenses to test whether the attorneys filling it out were living beyond their means. The special counsel decided to ask all government officials (including the President and Attorney General) to complete the form, not just the attorneys in the two agencies under suspicion. When Truman suggested to Attorney General Howard McGrath that Morris was reaching beyond his assignment, McGrath fired Morris. Truman promptly fired McGrath, and the resulting controversy offered much fodder for the Republicans in the 1952 campaign.¹²

C. Watergate

The Watergate scandal stands out among American political scandals because it forced Richard Nixon's resignation from the presidency. But beyond that dramatic conclusion, it was significant because it resulted in the criminal convictions of a former Attorney General, a number of high-level White House aides, many lower level executive branch officials, and some private individuals and corporations. The vast majority of these convictions was obtained by a series of special prosecutors appointed by the Attorney General to investigate the charges.¹³ Above all, the scandal is important to understanding the current independent counsel arrangement because it was the firing of the first Watergate Special Prosecutor, Archibald Cox, which prompted the congressional efforts to create a mechanism for an independent, judicially appointed prosecutor.

The Watergate scandal began with a break-in at the Democratic National Committee headquarters in June 1972 and ended with the resignation of President Nixon in August 1974. In between, a complex story of intrigue and cover-up gradually emerged through the work of enterprising journalists,¹⁴ congressional investigators,¹⁵ and special prosecutors.¹⁶ The full story of the scandal has been told many times,¹⁷ so the emphasis here will be on two major aspects of the scandal that most help us understand the current controversy: the questionable behavior of some Justice Department officials in the early part of the investigation and the "Saturday Night Massacre."

The Watergate burglars were prosecuted for the break-in by the U.S. Attorney's office for the District of Columbia. In January 1973 three of the five pleaded guilty. The two others were tried, but during the trial no evidence of the involvement of anyone higher up emerged. Outside the courtroom, however, the Washington Post continued to uncover evidence of a conspiracy, and in February the Senate agreed to establish a select committee to investigate the allegations. At the sentencing of the burglars in late March, one of the accused (James McCord) informed Judge John Sirica that they had been pressured to plead guilty, that some defendants had committed perjury during the trial, and that there were others involved who had not been prosecuted. McCord sought and received immunity from the Senate committee in exchange for his participation in the hearings. The President's counsel, John Dean, followed suit. Both testified before a grand jury that had been established by the Department of Justice to investigate the mounting allegations of conspiracy. In April Attorney General Richard Kleindienst was forced to resign along...