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What Will the Future Hold for the Independent Counsel Statute?

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What Will the Future Hold for the Independent Counsel Statute? Duquesne Law Review Volume 37 Number 2 Article 7 1999 What Will the Future Hold for the Independent Counsel Statute? Joseph E. Haviland Follow this and additional works at: https://dsc.duq.edu/dlr Part of the Law Commons Recommended Citation Joseph E. Haviland, What Will the Future Hold for the Independent Counsel Statute?, 37 Duq. L. Rev. 313 (1999). Available at: https://dsc.duq.edu/dlr/vol37/iss2/7 This Comment is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. What Will the Future Hold for the Independent Counsel Statute? A botched burglary attempt that occurred more than twenty-five years ago has affected every presidential administration since that time.1 The attempted cover-up of the break-in at the Watergate building and the affairs following what has come to be known as the Saturday Night Massacre2 led to the enactment of the Ethics in Government Act of 1978,3 which included a provision creating the position of independent counsel.' Since the statute went into effect, twenty independent counsels have been appointed,5 and more than $136 million in public money has been expended in the course of their efforts.6 As Professor Beth Nolan has observed, "During the first eight years of the Act, until May 1986, only four independent counsels were appointed.'" Currently, there are 1. On June 17, 1972, a group of burglars was apprehended breaking into Democratic Na- tional Committee offices in the Watergate building in Washington, D.C. Thomas M. DeFrank and Mark Mooney, with Dave Saltonstall, Watergate Legacy Enduring, DAILY NEWS (New York), June 15, 1997, at 28. 2. Sixty-seventh Judicial Conference of the Fourth Circuit, The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, 54 WASH. & LEE L. REV. 1515, 1521 n.4 (1997). As the investigation into the Watergate affair intensified, then-Attorney General Elliot Richardson created the Office of Watergate Special Prosecutor under the authority of the Department of Justice. As part of his investigation, the Watergate Special Prosecutor, Archibald Cox, subpoe- naed materials, including the infamous tapes, which were being held by President Richard Nixon. When he learned of Cox's request, President Nixon directed Attorney General Richardson to dismiss Cox. The Attorney General would not carry out the instruction and re- signed. Deputy Attorney General William Ruckelshaus followed suit when the President in- structed him to fire the Watergate Special Prosecutor. Finally, Robert Bork, the Solicitor Gen- eral and Acting Attorney General, fired Archibald Cox. Id. 3. 28 U.S.C. §§ 591-99 (1998). 4. Sixty-seventh Judicial Conference of the Fourth Circuit, The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, supra note 2, at 1521. The version of the act currently in effect is the Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, 108 Stat. 732 (1994). 5. Bill Miller, Counsels Have Spent $62 Million Investigating Administration, THE WASHINGTON POST, October 1, 1998, at A21. 6. A.B. Stoddard, Congress Rethinks Independent Counsel Law, THE HILL, Feb. 11, 1998, at 1 (citing U.S. Rep. Jay Dickey (R-Ark.)). Spending information pertaining to outlays by inde- pendent counsels are necessarily dated, because these figures are released only every six months by the Government Accounting Office. Miller, supra note 5, at A21. 7. Beth Nolan, Removing Conflicts from the Administration of Justice: Conflicts of Interest and Independent Counsels Under the Ethics in Government Act, 79 GEO. L.J.1, 18 (1990). 314 Duquesne Law Review Vol. 37:313 five ongoing inquiries.8 The framers of the Constitution of the United States made no provi- sion for the office of the independent counsel or any similar position, al- though they were keenly aware that there must be some check on the powers of the President.' In the nearly two hundred years that preceded the enactment of the statute, no fixed procedure existed by which the President or other high-level executive officials could be investigated and, if necessary, prosecuted." What has changed in our republic to have made the independent counsel such a regular part of the political scene in this era? Although the theories available to explain how we reached the current state of politics and society are as numerous as the pundits who espouse them, in the case of the independent counsel statute, the explanation is likely a combination of politics and public perception. To properly understand how and why the Ethics in Government Act came to pass, it is necessary to recall its historical context." In 1978, the American psyche was still badly bruised from the Watergate scandal. 2 At the time, Congress determined that the citizens of the United States should be given reason to comfortably believe that any allegation of mis- conduct at the highest levels within the executive branch of the govern- ment would be fully and objectively investigated.3 According to one view, Congress believed that neither it nor the public could be assured that officials within the Department of Justice would act in the sole inter- est of justice in investigating certain matters involving administration officials. 4 One result of this lack of confidence was the enactment of the Ethics in Government Act. 5 Included within the Ethics in Government 8. Miller, supra note 5, at A21. Arlin M. Adams and Larry D. Thompson are investigating issues concerning the Department of Housing and Urban Development during the Reagan ad- ministration; Kenneth W. Starr is investigating the Whitewater and Monica Lewinsky matters; Donald C. Smaltz is investigating Mike Espy; David Barrett is investigating Henry Cisneros; and Carol Elder Bruce is investigating Bruce Babbitt. Id. 9. See generally, THE FEDERALIST NOS. 47, 48 (James Madison). 10. Sixty-seventh Judicial Conference of the Fourth Circuit, The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, supra note 2, at 1520. 11. Senator Carl Levin & Elise J. Bean, A Symposium on Special Prosecutions and the Role of the Independent Counsel: The Independent Counsel Statute: A Matter of Public Confidence and Constitu- tional Balance, 16 HOFSTRA L. REV. 11 (1987). 12. Id. at 13. 13. Sixty-seventh Judicial Conference of the Fourth Circuit, The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, supra note 2, at 1521. 14. Nolan, supra note 7, at 10-11. 15. Sixty-seventh Judicial Conference of the Fourth Circuit, The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, supra note 2, at 1521. During reauthorization debate, a later Congress declared the following purpose for the act: to ensure that a fair, impartial, and thorough investigation is conducted into all criminal allegations against senior government officials; to ensure continuing 1999 The Future of the Independent Counsel Statute Act is the independent counsel statute, which, by its terms, must be reauthorized by Congress every five years. 6 The present version of the independent counsel law will expire on June 30, 1999.1' The Attorney General is responsible for enforcing the statute, which applies to government officials in two categories. 8 The President and Vice President, cabinet-level officials within the executive branch, 9 cer- tain high-level executive staff offices, Assistant Attorneys General or certain other high-ranking officials at the Justice Department, the Di- rector and Deputy Director of the Central Intelligence Agency, the Commissioner of the Internal Revenue Service, and the chairman and treasurer of the President's political campaign committee all fall under the first category.' When the Attorney General receives information "sufficient to constitute grounds to investigate" whether an individual within this category "may have violated any federal criminal law," she is obligated to conduct a preliminary investigation.2 ' The second category under the independent counsel statute in- cludes individuals regarding whom the Attorney General determines a real or perceived conflict of interest may exist.22 A conflict of interest is deemed to be present where a political, personal, or financial conflict would result from an investigation or prosecution conducted by the Jus- tice Department.23 In such cases, the Attorney General may, at her dis- public confidence in our democratic system and to protect the Executive Branch from unwarranted suspicion; to insulate the investigation suspicion; to insulate the investigation of senior officials from personal or political influence and therefore to ensure that its conclusion will have the fullest credibility; and to afford protection to the reputation of any person subject to investigation, pre- cisely because the independent counsel's investigation is independent and credi- ble. Nolan, supra note 7, at 15 (citing H.R. REP. No. 316, 100th Cong., 1st Sess. 25, 11 (1987)). 16. 28 U.S.C. § 599 (1998); see also Sixty-seventh Judicial Conference of the Fourth Circuit, The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, supra note 2, at 1521. 17. 28 U.S.C. § 599 (1998); see also Sixty-seventh Judicial Conference of the Fourth Circuit, The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, supra note 2, at 1521. 18. 28 U.S.C. § 591(b) and (c) (1998). 19. The Cabinet consists of the secretaries of each of the departments within the executive branch. The executive departments are the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Housing and Urban Development, Interior, Justice (in this case the attorney general), Labor, State, Transportation, Treasury, and Veterans Affairs. OFFICE OF THE FEDERAL REGISTER, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, THE UNITED STATES GOVERNMENT MANUAL 1998/99, at 89.
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