Let's Kill the Independent Counsel

Independent counsel Kenneth Starr's impeachment investigation of President Clinton has set a dangerous precedent. There are currently six unelected independent counsels working in Washington, and they have become the most powerful people in the capital. They are also the most threatening. Following Starr's lead—and Congress' new attitude toward impeachment—any of them could refer alleged impeachable offenses about countless executive officers. But this potential for instability is only the newest and most egregious problem to develop under the troubled independent counsel law.

Criminal investigations by independent counsels have become increasingly aggressive, partisan and ugly. Everything is fair game, from lying about a mistress to accepting a few football or basketball tickets. Minor offenses are often turned into major cases by using the same facts to charge violations under multiple statutes. It is quite clear that independent counsels have become little more than partisan weapons launched by Congress against its political opponents in the executive branch. This symbiotic relationship between Congress and prosecutors has become more of a threat to good government than all the misdeeds these prosecutors are authorized to chase with endless time and money. Now the relationship between Starr and Congress has taken the independent counsel law into a new area: impeachment. While I am violently opposed to violence, there is an imminent solution to the problem. We must kill the independent counsel.

Of course, I'm talking about the post and not about any of the present or past occupants of the Office of Independent Counsel. The independent counsel law will expire at the end of June, providing the perfect opportunity to kill off a law that has already wreaked too much havoc and too many uncalled-for assaults against good people who have sought to serve their country in Washington.

•

It's not surprising that the independent counsel law has gone astray, for it has bad genes. It is the product of a union between shortsighted congressional expediency in dealing with Watergate and political posturing in the aftermath of that incredible 1972–1974 presidential scandal. In truth, these new prosecutorial brutes are the bastard children of Watergate, offspring of a fear that another president might fire a special prosecutor, as Richard Nixon did Archibald Cox during the Saturday Night Massacre. Nixon's attorney general and deputy attorney general refused to execute the president's order and resigned under fire, but his solicitor general, Robert Bork, proved himself no slouch by performing the dirty deed. Never again, Congress said.

This law was initially proposed by the Senate Watergate Committee. It was based, in part, on information I provided the committee about how the Nixon White House had obtained information from the Department of Justice. That information facilitated the cover-up of Watergate and assorted other nefarious White House activities—such as Nixon's ordering the wiretapping of newsmen, and his senior aides' authorizing other break-ins. Much more than a bungled burglary was at stake. Congress also learned that when Cox was fired, I was living in the care of the U.S. Marshal's witness protection program as the principal witness against the president. I was very concerned that if the Watergate investigation were returned to the Justice Department, Nixon would take control of it. That wouldn't have been good for the nation nor for yours truly.

Thus, keeping prosecutors outside of presidential control seemed a good idea. It isn't. Today I know, after researching events that preceded and followed Watergate, that Watergate was an aberration unique to Richard Nixon. Congress ignored that fact, as it ignored what actually occurred during Watergate. Public outrage at the firing of Cox forced Nixon to appoint another special prosecutor, Leon Jaworski, who went where the evidence led him. Nixon, of course, was forced to resign in the face of impeachment and conviction. He would have been criminally prosecuted had President Gerald Ford not pardoned him. The system worked quite well without the law that later created the Office of the Independent Counsel.

Experienced prosecutors on the Watergate Special Prosecution Force were the first to warn Congress about the problems of creating the OIC. It is the functional equivalent of an ad hoc attorney general's office with no real rules, regulations, time restrictions or financial restraints. The prosecutors foresaw what could happen if you let a bully build a gym just for himself and his friends, gave them all the steroids and equipment they wanted, and told them to police the neighborhood as they saw fit—free of law enforcement's normal supervision. As the Watergate prosecutors said in opposing the OIC law, "Lack of accountability carries a potential for abuse of power that far exceeds any enforcement gains that might ensue." They added in a prescient 1975 report that "the discretionary process of initiating and conducting investigations bears great potential for hidden actions that are unfair, arbitrary, dishonest or subjectively biased."

To make sure this law was not vetoed, Congress provided only temporary authority for appointing special prosecutors and tucked the provisions inside the Ethics in Government Act, which President Jimmy Carter signed in 1978. The ink had barely dried when Carter's attorney general decided he had no choice under the new law's hair trigger but to appoint the first independent counsel to investigate White House Chief of Staff Hamilton Jordan, who had allegedly been spotted snorting cocaine at New York's Studio 54.

After six months, the charges against Jordan proved groundless and the investigation was closed. But the first use of the IC law set a pattern. The thinnest evidence would be inflated by partisans and reported widely by the media, which cherish charges of misconduct.

The independent counsel law clearly doesn't work. Indeed, there are horror stories from both prosecutors and their targets in the records of the 22 investigations conducted under the law.

After over $150 million and 20 years of investigations, not a single principal target of an investigation has been sent to jail by an independent counsel. Most ICs have not even found evidence sufficient to return indictments, suggesting the initial (continued on page 160)Reporter's Notebook(continued from page 51) investigations were uncalled for.

The biggest trials (e.g., Reagan's secretary of labor Raymond Donovan, Reagan's longtime advisor Lyn Nofziger and White House aides Oliver North and John Poindexter) resulted in acquittals or were reversed on appeal. The premise of the law as a tool for removing corruption in high places (the type of conduct that occurred during Watergate) is not well-founded.

The federal offenses that are consuming millions of dollars and endless years of effort to prosecute are more often than not petty, small-time stuff. They're far removed from the serious abuses of power in high places that prompted the law. For example, independent counsels have investigated cocaine use (Carter aide Jordan and campaign manager Tim Kraft), lobbying after leaving office (Reagan aides Michael Deaver and Nofziger), lying—not under oath—to Congress (Iran-contra targets North, Poindexter and Elliott Abrams), failure to file an income tax return (Reagan Justice Department official Lawrence Wallace), misuse of presidential candidate Clinton's passport files (Bush's State Department and White House staff), firing White House travel office employees and misuse of FBI files (Clinton White House aides), accepting sports tickets, luggage and a crystal bowl from longtime friends subject to regulation by his department (Clinton agriculture secretary Mike Espy) and making a false statement to the FBI about a mistress (Clinton HUD secretary Henry Cisneros).

One experienced Watergate prosecutor told me that, given enough time and money, any overzealous federal prosecutor could indict anyone, because sooner or later that person would either violate one of the myriad federal laws or make a mistake during the course of the investigation. Unlimited time and resources to pursue a target have thus become standard operating procedure under the IC law. This, of course, is how the government investigates the Mob, gangs and drug dealers. Independent counsels often hire career prosecutors experienced in pursuing tough criminals to go after their targets, and they can employ every investigative tactic except wiretapping (though, as Monica Lewinsky learned, there are ways around that problem).

The media (except for The Washington Post, of course) that missed the story of Nixon's dirty deeds during the early days of Watergate appear determined never again to give the benefit of the doubt to any Washington official. Many in the media now assume an official is probably guilty of whatever wrongdoing with which he is charged. Those in government must, in effect, prove their innocence. The IC law has worked well for Congress in this atmosphere.

Independent counsel investigations, rather than the inciting conduct, often lead to the most-serious criminal charges, such as perjury before a grand jury or obstruction of justice. When Agriculture Secretary Mike Espy learned he may have violated a law by accepting gifts from friends, he sent letters explaining his mistake and reimbursed his friends or returned the gifts. The IC charged him with mail fraud.

When reporting the closing arguments against Espy, The New York Times noted the trial had been "not only about Mr. Espy but also about the wisdom and effectiveness of the law that allows for the appointment of independent counsels to investigate accusations of wrongdoing by senior administration officials." In the coming months Congress will focus on this law, and two counsels will attract the most attention: Donald Smaltz (who went to trial and lost against Mike Espy) and Kenneth Starr.

Donald Smaltz (the first and, to date, only independent counsel with a Web site: oic.gov) argues for the continuation of the law, but with amendments. As is evident from the many recent bar association and law school conferences on this law, Smaltz' activities as an IC are a case study on what has gone wrong with this law. He spent $20 million to prosecute alleged improprieties relating to $35,000 worth of gifts. (Espy estimates the value to be far less.) Espy received these gifts from longtime friends over an extended period of time and did nothing of an official nature in return. If Smaltz did not shoot himself in the foot when he filed this case, he certainly did when he concluded it. After Espy's acquittal, Smaltz said that "the actual indictment of a public official may in fact be as great a deterrent as a conviction." That is a frightening statement, which one Espy lawyer called Kafkaesque. But it's not as frightening as Starr's activities.

Without question the Starr investigation of Clinton and Lewinsky makes the most compelling case for ending the independent counsel law. Not because Starr may have proceeded without authority in commencing the investigation of Lewinsky, nor because he ignored Justice Department regulations in calling Monica's mother. Not because he pushed the law against the wishes of the Justice and Treasury Departments and forced Secret Service agents to testify about the president. And not even because he may have leaked secret grand jury information to hurt the targets of his investigation. What Starr has done is far more dangerous.

Rather than merely conducting an overly aggressive criminal investigation, he has rewritten the IC law and established a precedent that may affect our government's stability. By building a case for impeachment in the secrecy of a grand jury and by using his powers to gather evidence to overturn a national election, he has made himself an impeachment counsel. That is Kafkaesque.

Starr has been around Washington long enough to know the House Judiciary Committee isn't very good at investigating (and I speak as a former chief minority counsel of that committee)—so he did it for them. Starr also knew that the House would find his impeachment work irresistible. He, in effect, assembled the munitions for a little legislative coup, a putsch by a group of right-wing Republican ideologues hell-bent on imposing their will on a nation that has rejected them at the polls. Starr provided the black powder and defined the targets for the most powerful political weapon in the constitutional arsenal: the impeachment process. He did this with no legal authority.

There is nothing in the independent counsel law that authorizes a counsel to become an investigator or advocate for impeachment. That is why Sam Dash, Starr's ethics advisor, a Georgetown law professor and Senate Watergate Committee chief counsel, resigned. The law merely instructs the independent counsel to "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." The law does not authorize an IC to investigate for impeachable offenses, and he is instructed to report only what he receives in carrying out his responsibilities under the law.

Even though the Constitution is quite clear (Article I, Section 2: "The House of Representatives ... shall have the sole power of impeachment"), the partisan House ignored its responsibility and welcomed Starr's referral (you won't find anything about "referrals" in the law, either) of alleged impeachable offenses by President Clinton. The House Judiciary Committee used Starr's information as if he were an impeachment investigator for the House of Representatives. This is a remarkable relinquishment of responsibility. It may even be a delegation of authority to every IC to look for impeachable offenses.

Even if there were no other problems with the IC law, this new interpretation alone would justify killing it.

How long will it take for another of the currently active counsels digging near the White House to expand his or her investigation and send another impeachment referral to the pliant House of Representatives?

Since 1870, when the Department of Justice was established, it has done quite well at prosecuting misconduct by high government officials. The IC law wasn't around when Watergate was resolved. If the 106th Congress cannot agree to let this law expire by bipartisan agreement, then the Democrats must filibuster it to death, as the Republicans did in 1992.

Please, Congress, let the IC law R.I.P.

Starr provided the black powder and defined the targets. He did this with no legal authority.