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Independent Counsel: Process and Policy UNLV Retrospective Theses & Dissertations 1-1-1998 Independent counsel: Process and policy Sheri Michele Schwartz University of Nevada, Las Vegas Follow this and additional works at: https://digitalscholarship.unlv.edu/rtds Repository Citation Schwartz, Sheri Michele, "Independent counsel: Process and policy" (1998). UNLV Retrospective Theses & Dissertations. 907. http://dx.doi.org/10.25669/kls0-ffz1 This Thesis is protected by copyright and/or related rights. It has been brought to you by Digital Scholarship@UNLV with permission from the rights-holder(s). You are free to use this Thesis in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you need to obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/ or on the work itself. This Thesis has been accepted for inclusion in UNLV Retrospective Theses & Dissertations by an authorized administrator of Digital Scholarship@UNLV. For more information, please contact [email protected]. INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UMI films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter fiice, viiile others may be from any type o f computer printer. The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely afièct reproduction. In the unlikely event that the author did not send UMI a complete manuscript and there are missing pages, these wQI be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. Oversize materials (e.g., maps, drawings, charts) are reproduced by sectioning the original, b%inning at the upper left-hand comer and continuing from left to right in equal sections with small overlaps. Each original is also photographed in one exposure and is included in reduced form at the back of the book. Photographs included in the original manuscript have been reproduced xerographically in this copy. Higher quality 6” x 9” black and white photographic prints are available for any photographs or illustrations appearing in this copy for an additional charge. Contact UMI directly to order. UMI A Bell ft Howell Infinmaticn Company 300 North Zed) Road, Ann Arbor MI 48106-1346 USA 313/761-4700 800/321-0600 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. THE INDEPENDENT COUNSEL: PROCESS AND POLICY by Sheri Michele Schwartz Bachelor of Arts Whittier College 1990 A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts in Political Science Department of Political Science University of Nevada, Las Vegas August 1998 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UMI Number: 1392311 UMI Microronn 1392311 Copyright 1998, by UMI Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. UMI 300 North Zeeb Road Ann Arbor, MI 48103 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. © 1998 Sheri Michele Schwartz All Rights Reserved Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Thesis Approval UNIV The Graduate College University of Nevada, Las Vegas July 17 19 98 The Thesis prepared by ______ Sheri Michele Schwartz Entitled The Independent Counsel: Process and Policy is approved in partial fulfillment of the requirements for the degree of Master of Arts in Political Science_____ mination Committee Chair Dean of the (Jpduate College Examination Committee Member Examination^mnmitl lember Graduate College Faculty Representative U Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ABSTRACT Independent Counsel: Process and Policy by Sheri Michele Schwartz Dr. Jerry Simich, Examination Committee Chair Professor of Political Science University of Nevada, Las Vegas Independent Counsel: Process and examines Policy the Office of the Independent Counsel, established by the Ethics in Government Act of 1978. It discusses the history of the Act, its implementation, and its application. Although there is a need for independent investigation of high-level government officials, the Act suffers from major defects which damage its credibility in accomplishing the goals Congress set with its passage. Independent Counsel: Process and suggests Policy changes to the Act which will increase the efficiency and fairness of the office, and encourage efforts to eradicate the public’s perception of the independent coimsel as a renegade. Ill Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS ABSTRACT ..............................................................................................................................iii ACKNOWLEDGMENTS..........................................................................................................vi CHAPTER 1 INTRODUCTION...............................................................................................1 History............................................................................................................................... 2 Scope ............................................................................................................................... 8 CHAPTER 2 CONSTITUTIONALITY...................................................................................16 The Appointments Clause..............................................................................................17 Article ill ................................................................................................................ 21 Separation of Powers.................................................................................................... 23 CHAPTER 3 POLICY CONSIDERATIONS........................................................................32 Name ............................................................................................................................. 34 Standard for Preliminary Investigation and Request for Appointment................... 34 Cost ............................................................................................................................ 37 Length and Termination ................................................................................................ 38 Reports ................................................................................................................ 40 Reimbursement of Fees................................................................................................. 41 Persons Covered By The Act........................................................................................41 CHAPTER 4 HOT ISSUES.......................................................................................................43 Executive Privilege........................................................................................................45 Governmental Attomey-Client Privilege.....................................................................50 Attomey Client Privilege After Death.........................................................................52 Protective Function Privilege........................................................................................53 May a Sitting President be Prosecuted?.......................................................................57 CHAPTER 5 PROBLEMS AND SOLUTIONS .....................................................................60 Statutory Criticisms.......................................................................................................60 Overall Criticisms ..........................................................................................................67 Statutory Solutions.........................................................................................................68 Overall Solutions ..........................................................................................................71 BIBLIOGRAPHY.......................................................................................................................73 IV Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. VITA 75 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGEMENTS The Author wishes to thank Dr. Jerry Simich for his help in reviewing this work and for all his encouragement. The Author also wishes to thank the members of the Reviewing Committee and the Graduate College. Finally, the Author wishes to thank Samuel Schwartz for all his help and support. VI Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 1 INTRODUCTION “The Independent Counsel is wholly free of presidential control and virtually impervious to dismissal; he is accountable only to his own conscience. “Starr: Relentless or Reluctant?"^
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