Washington and Lee Law Review Volume 54 | Issue 4 Article 6 Fall 9-1-1997 The ndepI endent Counsel Process: Is It Broken and How Should It Be Fixed? Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons Recommended Citation The Independent Counsel Process: Is It Broken and How Should It Be Fixed?, 54 Wash. & Lee L. Rev. 1515 (1997), https://scholarlycommons.law.wlu.edu/wlulr/vol54/iss4/6 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. The Independent Counsel Process: Is It Broken and How Should It Be Fixed? A Five-Panel Program Presented at the Opening Session of the SIXTY-SEVENTH JUDICIAL CONFERENCE OF THE FOURTH CIRCUIT The Homestead Hot Springs, Virginia Friday, June 27, 1997 The Editors ofthe Washington and Lee Law Review arepleased to publish thispanel discussion held at the Fourth Circuit'sSixty-Seventh JudicialConference. The Washington and Lee University School of Law has always enjoyed a close relationshipwith the FourthCircuit. Many notable W&L alumnihave served in the Fourth Circuit,including Judge Hoffman, to whom we dedicate this issue, and Justice Powell, who sat in seniorstatus with the Fourth Circuitformany years afterhis retirementfrom the Supreme Court. For twenty-five years, the Law Review published an annual review ofcases from the Circuitand will soon publish biographicalprofiles of the Fourth Circuitjudges from the lastfifty years. Last fall, a Fourth Circuitpanel held oral argu- ments in the Moot Court Room at the Washington and Lee University Law School- among thefew times the Circuithas held oral arguments at a law school. The EditorialBoardis honoredthat the FourthCircuit chose the Washington and Lee Law Review to publish its in-depth dis- cussion of the Independent Counsel statute. The JudicialConference presented an interestinginvestigation into the IndependentCounsel statute, itsfaultsandfaiings, andsuggestions for changes. The discussion includedan impressivepanel of learned judges, attorneys, and specialprosecutors who have been intimately involved in this process. The Editors would like to acknowledge the invaluable assistance of the HonorableJ Harvie Wilkinson III, Chief Judge of the Fourth Circuit,and the Honorable T.S. Ellis, III,Judge, EasternDistrict of Virginia. To preserve the open nature of the pro- ceedings, the Law Review presents the text in its rawformat, although the participantsdid have an opportunity to review and make minor changes to their language. The Editors andparticipantshave indicated source references where appropriate. 1515 1516 54 WASH. & LEE L. REV 1515 (1997) Table of Contents Foreword Honorable J. Harvie Wilkinson III, Chief Judge, United States Court of Appeals for the Fourth Circuit ................. 1519 Honorable T.S. Ellis, III, Judge, United States District Court, Eastern District of Virginia ........................... 1520 ProgramIntroductory Remarks .............................. 1525 Panel One - Requests for Independent Counsel ................. 1526 Moderator: Honorable William L. Osteen, Sr., Judge, United States District Court, Middle District of North Carolina Speakers: Honorable William P. Barr, Senior Vice President and General Counsel, GTE Corporation; Attorney General of the United States (1991-1993) Honorable Jamie S. Gorelick, Vice Chair, Fannie Mae Corporation; Deputy Attorney General of the United States (1994-1997) Panel Two -Appointment of Independent Counsel ............... 1536 Moderator: Honorable Cameron McGowan Currie, Judge, United States District Court, District of South Carolina Speakers: Honorable David B. Sentelle, Judge, United States Court of Appeals for the District of Columbia; Presiding Judge, Special Panel for Appointments of Independent Counsel Honorable John D. Butzner, Jr., Senior Judge, United States Court of Appeals for the Fourth Circuit; Member, Special Panel for Appointments of Independent Counsel Panel Three - ProsecutorialInvestigations and Decisions ........ 1545 Moderator: Honorable T.S. Ellis, III, Judge, United States District Court, Eastern District of Virginia Speakers: Robert B. Fiske, Jr., Esq., Davis Polk & Wardwell, New York, New York; Former Independent Counsel, Whitewater Investigation FOURTHCIRCUIT JUDICIL CONFERENCEPROCEEDINGS 15171 Jacob A. Stein, Esq., Stein, Mitchell & Mezines, Washington, D.C.; Former Independent Counsel Larry D. Thompson, Esq., King & Spalding, Atlanta, Georgia; Former Independent Counsel for the Department of Housing and Urban Development Investigation Honorable Lawrence E. Walsh, Crowe & Dunlevy, Oklahoma City, Oklahoma; Former Independent Counsel for the Iran- Contra Investigation PanelFour - CongressionalInvestigations .................... 1565 Moderator: Honorable Charles F. Haden II, Chief Judge, United States District Court, Southern District of West Virginia Speakers: Richard J. Leon, Esq., Baker & Hostetler, Washington, D.C.; Former Special Counsel, United States House of Representatives Whitewater Investigation John W. Nields, Jr., Esq., Howrey & Simon, Washington, D.C.; Former Independent Counsel for the Iran-Contra Investigation PanelFive - The Future of the Independent Counsel Process ...... 1578 Moderator: Honorable Andre M. Davis, Judge, United States District Court, District of Maryland Speakers: Professor Archibald Cox, Harvard University Law School, Cambridge, Massachusetts; Former Special Prosecutor, Watergate Investigation Terry H. Eastland, Ethics & Public Policy Center, Washington, D.C.; Author of Ethics, Politics, and The Independent Counsel Honorable Henry J. Hyde, Chairman, House Judiciary Committee, United States House of Representatives, Washington, D.C. Theodore B. Olson, Esq., Gibson, Dunn & Crutcher, Washington, D.C.; Former Counsel to President Reagan, Iran-Contra Investigation LVEEHFI WVI (l9 FOURTHCIRCUIT JUDICLIL CONFERENCE PROCEEDINGS 1519 Foreword Honorable J. Harvie Wilkinson III The Judicial Conference ofthe Fourth Circuit Court ofAppeals has a long tradition. Chief Judge John J. Parker convened the first circuit-wide judicial conference in Asheville, North Carolina, in 1931. The conference has flourished throughout the years. The sixty-seventh annual gathering of bench and bar took place at the Homestead in Hot Springs, Virginia, on June 26-28, 1997. Like all of its predecessors, the conference was an agreeable and convivial occasion. The circuit conference, however, has always had a more serious aim than mere sociability. The statutory purpose of such gatherings is to review "the business of the courts" and to consider improvements in "the administration ofjustice."' For most of the year, judges and lawyers are properly attentive to their individual cases and clients. The conference is one occasion when we can step back and survey the broader landscape. The independent counsel statute2 is an ideal topic for ajudicial conference. The statute is an intersection betweenthe strongest imperatives of the rule of law and the most basic prerogatives of democracy. How we approach this statute will have a lot to say about what kind of republic we will have. The statute asks the most fundamental questions involving public responsibility. It chal- lenges us to consider to what and to whom our highest officials are ultimately accountable. In recognition of that fact, we have drawn our panelists for this program from a wide variety of backgrounds. Represented on the panels are Justice Department officials, judges of the Special Panel for the Appointment of Independent Counsel, former special prosecutors, the Chairman of the House Judiciary Committee, congressional investigators, and other experts in the independent counsel process. The panelists on our program represent different and divergent points ofview. What they have in common, however, is an inti- mate acquaintance with how the independent counsel process works. The ensuing dialogue follows that process from start to finish. It begins with an examination of requests for an independent counsel from the Department ofJustice. It then discusses the appointment of independent counsel, prosecu- torial investigations and decisions, and congressional investigations that parallel the prosecutors' work. The program then concludes with a discussion ofwhether the statute should be retained or how it may be improved in the future. Inasmuch as the statute involves the potential prosecution of the top public officials of ourcountry, any discussion ofits operation is bound to be politically charged. That is all the more reason for a program such as this one. We have 1. 28 U.S.C. § 333 (1994). 2. 28 U.S.C. §§ 591-599 (1994). 1520 54 WASH. & LEE L. REV 1515 (1997) asked the panelists to separate their judgments from the political temptations of the moment and to ask what is ultimately the only question worth asking: whether and how the institution of independent counsels serves the public interest and the ultimate well-being of this republic. Honorable T.S. Ellis, III Few topics in recent memory have been as widely discussed in the media as the activities ofthe independent counsel and the operation of the independent counsel statute. Yet it is also true that most members of the public, including many lawyers, do not know the statute's