Michigan Law Review Volume 97 Issue 3 1998 An Original Model of the Independent Counsel Statute Ken Gormley Duquesne University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Legal History Commons, Legislation Commons, President/ Executive Department Commons, and the Supreme Court of the United States Commons Recommended Citation Ken Gormley, An Original Model of the Independent Counsel Statute, 97 MICH. L. REV. 601 (1998). Available at: https://repository.law.umich.edu/mlr/vol97/iss3/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. AN ORIGINAL MODEL OF THE INDEPENDENT COUNSEL STATUTE Ken Gormley * TABLE OF CONTENTS INTRODUCTION • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 602 I. HISTORY OF THE INDEPENDENT COUNSEL STATUTE • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • . • • • • • • 608 A. An Urgent Push fo r Legislation . .. .. .. .. 609 B. Th e Constitutional Quandaries . .. .. .. .. 613 1. Th e App ointments Clause . .. .. .. .. 613 2. Th e Removal Controversy .. ................ 614 3. Th e Separation of Powers Bugaboo . .. 615 C. A New Start: Permanent Sp ecial Prosecutors and Other Prop osals .. .. .. .. .. .. .. .. .. .. .. 617 D. Legislation Is Born: S. 555 .. .. .. .. .. .. .. .. .. 624 E. Th e Lessons of Legislative History . .. .. .. 626 II. THE FIRST TWENTY YEARS: ESTABLISHING THE LAW'S CONSTITUTIONALITY • . • • • • . • • • . • • • • . • • • • . • • • 633 III. REFORMING THE INDEPENDENT COUNSEL LAW • • . • 639 A. Refo rm the Method and Frequency of App ointing In dependent <;ounsels ..... :........ 641 1. Amend the Triggering Device . .. .. .. .. 644 2. Allow the Attorney General to Exercise More Power in Conducting the Preliminary Investigation . .. .. .. .. .. .. 646 3. Limit the Categories of Persons Covered by the Statute .. .. .. .. .. .... .. .. 649 4. Leave Other Investigations to Ad Ho c App ointments of Sp ecial Prosecutors . .. .. 653 * Professor of Law, Duquesne University. B.A. 1977, University of Pittsburgh; J.D. 1980, Harvard. Professor Gormley is author of .ARCHIBALD Cox, CONSCIENCE OF A NATION (1997), the biography of the first Watergate Special Prosecutor. - Ed. I would like to thank Professor Archibald Cox, Judge Lawrence Walsh, Professor Julie O'Sullivan, Professor Mark Kende, and Judge Robert J. Cindrich, who read drafts of this article and provided useful comments. I would also like to express my appreciation to Dean Nicholas P. Cafardi for his support, June Devinney for her excellent secretarial assistance, and Kate Sabatos for her expert research work. William Sherman and Kristin Wilhelm from the Michigan Law Review deserve much credit for guiding this Article to completion so pro­ fessionally. I would finally like to thank my wife, Laura Kozler Gormley, who endured an­ other long writing project just when she deserved a vacation in Tahiti. 601 602 Michigan Law Review [Vol. 97:601 B. Reform the Role and Regulate th e Power of In dependent Counsels .. .. .. .. .. .. .. .. 659 1. Th e In dependent Counsel's Ju risdictional Limits Must Be Strictly Controlled . .. .. 659 2. Control the Duraiion of In vestigations Th rough Periodic Review . .. .. .. .. 669 3. Require Th at Each In dependent Counsel Wo rk Full-Time . .. .. .. .. .. .. .. 671 4. Control Costs by Reducing th e Number of Cases Th at Tr igger the Statute.............. 674 5. Sharply Limit Final Reports . .. .. .. 675 C. Refo rm and Clarify the Duties of the Sp ecial Court.......................................... 678 1. Authorize the Sp ecial Court to Consult with the Attorney General in Selecting an In dependent Counsel . .. .. .. .. .. 684 2. Give the Court Exp ress Power to Carry Out Its Duties . .. .. .. .. .. .. .. 686 3. Give th e Court Power to Replace an In dependent Counsel Un der Certain Circumstances . .. .. .. .. .. .. .. .. 689 IV. CONCLUSION ....................................... 692 IN TRODUCTION On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency.1 The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoe­ naed by Watergate Special Prosecutor Archibald Cox; these tape­ recordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone with the assistance of a single White House lawyer. Cox would be entitled to the verified tran­ scripts, but nothing else. It was a generous offer, in the President's mind; there would be no further negotiations. The following day, October 20th, Cox held a dramatic press con­ ference, spelling out for the American public why he could not 1. RICHARD NIXON, RN: THE MEMOIRS OF RICHARD NIXON 929 (1978). December 1998] Th e Independent Counsel 603 agree to the Stennis proposal. President Nixon turned offhis televi­ sion set and summoned Attorney General Elliot Richardson to the Oval Office: Cox had to be fired - immediately. Richardson re­ fused the Presidential directive and resigned. Deputy Attorney General William Ruckelshaus attempted to resign and was "fired" by the President. Finally, Solicitor General Robert Bork carried out the President's order, terminating Cox. "In the shock of that moment," one commentator later recounted, "the American public got a taste of what it would be like to live in a country where their ruler is above the law."2 A firestorm of public protest erupted that led to the appointment of a new special prosecutor - Leon Jaworski - and the slow unraveling of the Nixon presidency.3 Nine days after the infamous "Saturday Night Massacre," Congress began hearings to consider legislation that would create a statutory special prosecutor. The purpose: allow the Watergate in­ vestigation to resume and prevent future crises such as Nixon's fir­ ing of Cox.4 A lineup of distinguished witnesses filed through the House and Senate to testify during those stormy days of October and November. Archibald Cox himself was one of the chief spokes­ men in favor of a statutorily-created special prosecutor. Before packing up his boxes and driving with his wife to their secluded farmhouse in Maine, the ousted Watergate Special Prosecutor told a subcommittee of the House Judiciary Committee that an investi­ gation by an outside, neutral prosecutor was almost essential if the 2. Simon Lazarus & Jane E. Larson, Th e Constitutionality of the Independent Counsel Statute, 25 AM. CRIM. L. REv. 187, 187 (1987). Lazarus participated in drafting, and lobbying in favor of, the final independent counsel statute as a White House advisor to President Jimmy Carter. Id. 3. For a more detailed examination of these events, see KEN GORMLEY, ARCHIBALD Cox: CONSCIENCE OF A NATION 318-58 (1997). The White House lawyer who was intended to assist Senator Stennis in verifying the tapes was J. Fred Buzhardt, a friend of Stennis. Id. at 332. 4. See Katy J. Harriger, Damned If She Does and Damned If She Doesn't: Th e Attorney General and the Independent Counsel Statute, 86 GEo. L.J. 2097, 2101-02 (1998). Cox had been appointed Special Prosecutor by Attorney General Elliot Richardson, as part of a pack­ age by which the Senate insisted upon the selection of a neutral prosecutor for the Watergate case, before it approved the President's choice (Richardson) to replace Attorney General Richard Kleindienst, who had resigned due to allegations of impropriety in handling the Watergate prosecution. Cox was governed by a hastily-made charter that was drafted by Richardson's office and refined by Cox and Richardson even before Cox accepted the posi­ tion. See GORMLEY, supra note 3, at 232-51. The charter was formalized pursuant to a regu­ lation adopted by the Attorney General. See 38 Fed. Reg. 14,688 (1973). For a copy of Cox's charter, designated "Duties and Responsibilities of the Special Prosecutor," see also Hear­ ings on H.J. Res. 784 and H. R. 10937 Before the Subcomm. on Criminal Justice of the House Comm. on the Ju diciary, 93d Cong. 110 (1973) [hereinafter 1973 Hearings Before the Sub­ comm. on Criminal Justice], and WATERGATE SPECIAL PROSECUTION FORCE REPORT app. I, at 250-51 (1975) [hereinafter WATERGATE REPORT]. 604 Michigan Law Review (Vo l. 97:601 country was to survive1future crises like Watergate.5 As Cox reiter­ ated in a second round of congressional testimony: "The pressures, the tensions of divided loyalty are too much for any man, and as honorable and conscientious as any individual might be, the public could never feel entirely easy about the vigor and thoroughness with which the investigation was pursued. Some outside person is absolutely essential: "6 Even as he testified, however, Cox was keenly aware that the concept of a special prosecutor divorced from the executive branch raised serious constitutional concerns, particularly relating to sepa­ ration of powers. But he felt strongly that an office could be crafted to surmount these constitutional