The Evolution of Witch-Hunting?
The life and death of the Independent Counsel Act
It began as way to check governmental abuses of power, and restore public confidence in the integrity of government. Over the next 20 years, however, it degenerated into a vehicle for partisan witch-hunts that consumed millions of tax dollars and prevented government from functioning efficiently, but rarely ferreted out the wrongdoing it was designed to punish.
So say critics of the Independent Counsel Act, enacted in 1978. This sentiment has obviously begun to resonate with government officials; the act, which had been renewed by congress every five years since it was created, will expire, for lack of presidential or congressional support, at midnight on June 30, 1999.
In 1978, a Democratic Congress, still stinging from the Watergate scandal and the "Saturday night massacre" that stymied the investigation, determined to find a way to curb the powers of the president and other senior executive branch officials. They crafted the Ethics in Government Act, creating a special prosecutor position, which could be used by Congress or the Attorney General to investigate wrongdoing by some 50 senior members of the executive branch.
Once appointed, the prosecutor could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could only be dismissed by the Attorney General or a panel of three federal judges. Since the president could no longer dismiss those investigating him, Congress thought it had made the country safe for democracy once more.
Things were not so safe for Democrats in office, however. Arthur Christy became the first Special Prosecutor when he was appointed in 1979 to investigate Hamilton Jordan, President Carter's chief of staff, for possible cocaine use. Like the majority of special prosecutor investigations, this one led to no indictments.
Republicans have never been strong supporters of the statute. Their complaints became notably more vociferous, however, once they were in the cross-hairs. There were eight independent counsel investigations of the Reagan administration, during which the Democratic Congress used the statute to undercut the authority of the executive branch.
Of the eight investigations, five returned no indictments. The other three resulted in a total of 13 convictions, 3 of which were overturned on appeal.
To stem the rising tide of investigations, Republicans decided to challenge the statute itself. When Theodore Olsen, Assistant Attorney General in the Reagan Administration, became the target of an independent counsel investigation for allegedly deceiving Congress about documents withheld from the Congress, he sued in federal court to challenge the constitutionality of the independent counsel statute.
The federal court found the statute unconstitutional, and Alexia Morrison, the independent counsel in the case, appealed the decision all the way to the Supreme Court. The Supreme Court heard the case in 1988 and ruled that the statute was legal, though in a dissenting opinion Justice Antonin Scalia made what would become a rather prophetic case against the role of a special prosecutor.
Scalia warned that the whole process of appointing an independent counsel, with its own jurisdiction and unlimited investigative scope, would alter the balance of power between the branches of government. It would be too easy to appoint political opponents to investigate the current administration, and "there would be no one accountable to the public to whom the blame could be assigned."
Few who have seen the fervor with which Democrats instigated investigations of the Reagan and Bush administrations, then witnessed the glee with which Republicans sought payback when Clinton was elected, would argue that Scalia was far from the truth.
So what have we gotten for the $150 million spent investigating our government officials over the past 20 years? Seventeen of the 20 investigations carried out under the law, after all, have incurred multimillion-dollar price tags.
As of six months ago, Attorney General Janet Reno argued that we got peace of mind. "The credibility and public confidence engendered by the fact that an independent and impartial outsider has examined the evidence and concluded that prosecution is not warranted serves to clear a public official's name in a way that no Justice Department investigation ever could," she said.
As Ken Starr's (and four other special prosecutors') investigation dragged on and the law's likely demise approached, even Reno decided it would be better if the Indpendent Counsel Act passed into oblivion. Other government officials agreed, often claiming that, rather than promoting public confidence in elected officials, prolonged and costly investigations that did not lead to convictions eroded it.
On the other hand, when the process worked as intended, it uncovered and prosecuted illegal activity. Public confidence seemed restored somewhat by the indictments and convictions resulting from the Iran/Contra investigations. Here was a clear case of abuse of executive authority that was found out, checked, and punished.
The White House had circumvented the will of the people: although the Boland Amendment had been passed banning U.S. economic support of the Nicaraguan Contras, members of the administration who opposed the law funded the rebels under the table. Furthermore, the funds had come from illegal sales of weapons to Iran, with whom all trade was ostensibly suspended in the wake of the hostage crisis. The people responsible for breaking these laws were investigated and hauled before Congress to account for their actions.
But the result was ultimately unsatisfying. Republicans complained that Walsh's inquiry seemed endless, dragging on for six years and costing some $48 million. The indictments handed down failed to jail those at the highest levels of the conspiracy, who were found to be not criminally liable, and those who were most likely to be convicted were pardoned as a parting gesture before Bush left office. By pardoning these officials, Bush avoided a trial that would likely have led to revelations about the involvement of key figures, including President Bush himself.
So do we really know what happened? Were the guilty really punished? There were, after all, 11 convictions resulting from the investigation. Among those found guilty was Oliver North, whose conviction was subsequently overturned on appeal. He later went on to run for Senate in Virginia (and lost). North's transition from criminal to celebrity is not unprecedented: G. Gordon Liddy, who served time for his Watergate crimes, is now the host of his own radio talk show.
What's Wrong With It?
The National Commission on the Separation of Powers (NCSP), a bipartisan panel established by the University of Virginia's Miller Center of Public Affairs, includes members from previous administrations of both parties. Headed by former Reagan administration Chief of Staff Howard Baker and former Carter administration Attorney General Griffin Bell, the panel also includes federal appeals judge and former FBI Director William Webster, and Clinton's White House counsel Lloyd Cutler.
After a three-year study, the panel concluded that the statute should be allowed to expire. Concerned about the open-ended nature of independent counsel investigations, with their unlimited budget and timeframe and ever-expanding scope, the panel described the statute as "seriously flawed."
Legal scholars also found the statute flawed. As Kathleen Sullivan, UC Berkeley constitutional law professor, argues, the law created several major problems. First is what she calls the "witch hunt problem." With a single target to pursue, and an unlimited budget, timeframe, and jurisdiction with which to pursue him or her, the prosecutor could lose perspective.
As Scalia pointed out in his 1988 dissenting opinion, in traditional investigations, the prosecutor is assigned to investigate a specific crime and to find out who is involved.
However, the independent counsel was instructed to investigate a particular individual and find any crimes he or she may have committed, not just the most serious crimes or the crimes he or she was appointed to investigate. Furthermore, if an investigation was prolonged for several years, the investigator came under increasing pressure to bring charges for something, even if it is completely unrelated to the original investigation.
Second, Sullivan asserts that partisanship was "an unavoidable temptation." Politics is all about cooperation and the threat of retribution, so politically motivated investigations tended to be repaid in kind. What more fitting quid pro quo for seven years of Iran/Contra investigations than at least an equal measure for Whitewater? Furthermore, when investigations were perceived to be unfair or politically motivated, those under investigation were more likely to seek protection by taking full advantage of any powers available, risking further allegations of abuse of power.
Third, the media's obsession with scandal made even the slightest indiscretion fodder for further investigation, even matters that would not be investigated or criminalized outside the political realm. Suddenly the threshhold for acceptable behavior was raised to the point at which almost no one would be deemed fit to hold office because of past sexual liaisons or financial dealings.
Moving Forward: Beyond Partisanship
Any effort to save the Ethics in Government Act from expiration would haved require bipartisan support, which was not forthcoming. Republicans voiced their distaste for the bill from its inception, and Democrats came to share their opinion after five years of watching Ken Starr repeatedly widen the scope of his original investigation.
Previous independent counsels add the weight of experience to their opinions. Lawrence Walsh, who investigated the Iran/Contra affair, suggests that investigations "should be limited to activities that occur in office . . . [and] to misuse of government power and should not include personal mistakes or indiscretions."
With the expiration of the Independent Counsel Act, the Attorney General is once again responsible for appointing and overseeing special prosecutors to investigate high-level government officials. Some argue, however, that a prosecutor beholden to a presidential appointee could never be independent of adminstration interests.
A small but bipartisan group in the Senate has proposed a new—and radically revised—independent counsel law that would restrict the scope of independent counsel probes, as well as their length and budget. It would also require that any independent counsel have previous experience as a criminal prosecutor or a defense lawyer (experience that Ken Starr, for one, lacked). Given the current political climate, however, it is unlikely that Congressional support for an independent counsel law of any kind will be forthcoming.
Whether the independent counsel law will ever be revived remains to be seen. How the government manages with five special prosecutors at large, including one left over from the Bush administration, is another question entirely.
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