Unwise Counsel
by Anders Hove
By this time we've all heard enough about the Monica Lewinsky scandal. Most Americans don't want to hear any more about the topic, and a large majority would like Ken Starr, the independent counsel, to end his investigation. Many Democrats and Republicans in Congress have expressed the wish that Starr would at long last deliver his final report to Congress.
I am tired of the investigation as well. Starr has shown the president to be a liar and a philanderer. Whether or not his actions were private, Clinton seems to have gotten what he deserves.
The biggest revelation of the Starr probe has nothing to do with Clinton, however. Ken Starr has proven that the independent counsel system is broken. It is fundamentally at odds with the balance of power system set up in the Constitution, and it creates an incentive for the independent counsel to continue investigations long after they should have been concluded.
The office of the independent counsel is a legal anomaly in America. Unlike all other prosecutors, the independent counsel is free of budget constraints, political supervision, and requirements for prosecutorial discretion. The job itself was created by the 1978 Ethics in Government Act. Every president (including Jimmy Carter) has opposed the law because it creates an executive office with no accountability to the president, Congress, or any other official authority. Once an attorney general authorizes an investigation, the only way it can end is by Congress refusing to budget money for its continuation, or for the independent counsel to choose to conclude it him- or herself.
Why did Congress establish the office? The law was a response to the notorious Saturday Night Massacre of October 20, 1973, in which President Richard Nixon ordered Special Prosecutor Archibald Cox fired after he subpoenaed the White House tapes. Both Attorney General Eliot Richardson and his deputy, William Ruckelshaus, refused to comply with the president's order, and were fired as well. The phone passed to Robert Bork, who agreed to carry out Nixon's order.
The Saturday Night Massacre was central to undermining Nixon's claim of innocence and candor, and led directly to the filing of the first articles of impeachment in the House of Representatives. The public reaction was also vehement: Nixon had crossed the line.
Unfortunately, the lesson learned after the Cox firing was the wrong one. The system wasn't broken - Nixon was. When Nixon was removed, the system righted itself.
Before Watergate, the system had worked reasonably well. Special prosecutors were appointed by the attorney general, and were accountable to the Justice Department, which was in turn responsible to Congress and the president. Executive authority over the prosecutor rested with the attorney general, a presidential appointee who is typically subjected to a high degree of public accountability.
The Saturday Night Massacre demonstrated how that accountability worked in practice. When Nixon tried to tamper with the Cox probe, the attorney general and his deputy did everything they could to block him, including refusing a direct order. They had promised Congress that they would not interfere with the investigation, and would not allow the president to do so. When they were fired, Congress and the public reacted strongly and appropriately.
Teapot Dome also demonstrated the strength of the system in the face of an even greater challenge: a corrupt attorney general. President Warren Harding's attorney general, Harry Daugherty, was a political appointee and friend of Harding's from his days as an Ohio pol. Daugherty was heavily implicated in the cover-up of Interior Secretary Albert Fall's bribe-taking in connection with the Teapot Dome Naval oil reserve in Wyoming. (The word "cover-up" was invented to describe their activities.)
Both Fall and Daugherty tried to stymie and block a congressional investigation into the Harding administration. Congress has the power of subpoena as well, and when Fall and Daugherty sought to obstruct justice to avoid testifying truthfully, members of both parties sought their resignations. Both were out of office within a year - forced out by political pressure they had initially tried to withstand. A special prosecutor was appointed and Fall wound up in jail. If Harding had lived, he might have been impeached as well.
The problem with the independent counsel is that the presidency is a political position, and investigating him is an inherently political act. Congress and the Justice Department are responsible for seeing that the laws are carried out, but the independent counsel arrangement abrogates that responsibility. In its place we have an unaccountable office that is not checked or balanced by any branch of government. As The New Republic pointed out this week, "No normally constrained prosecutor would be convening a grand jury to investigate alleged perjury about adultery in a deposition in a civil case that had been dismissed."
Before the Starr investigation, only Republicans had discussed the dangers of the independent counsel arrangement. Partisans of George Bush have argued that Lawrence Walsh, who spent six years investigating Iran-Contra, timed his indictment of Caspar Weinburger to embarrass Bush right before the 1992 election. Whether that was Walsh's intent, his timing was offensive and reprehensible. But, hey: in our system, independent counsels can do that.
Attorney General Janet Reno and the members of the three-judge "oversight panel" bear some responsibility for agreeing to let Starr expand his probe into the Lewinsky matter. But it is time for us to recognize that the system itself is broken.
All of the prosecutors who have served since the law was written, with the exception of Ken Starr, believe it should be revised to make the independent counsel accountable. If this is not done, it seems there will never be a time when an independent counsel investigation is not underway, dragging the presidency and the national agenda down with it.
Once Bill Clinton is out of office, it will be time for Congress to quietly revise the independent counsel law. Whether or not we like it, independent counsels have come to play a central role in our political structure. The present system undermines the balance of power by besieging and immobilizing the presidency. That is a travesty of the justice independent counsels were intended to defend.
This story was published on August 28. 1998.
Volume 118, Number 33.