Does anyone have an opinion about this? I would like to see other people's perspective on this, so when I go to vote I will be well informed. I mean no offense to anyone. Thank you.
Adieu to independent counsel law
Despite statute's demise, probes of Babbitt, others go on
June 29 — What would you call a law that a few years ago breezed
through the Senate with 51 Democrats and 25 Republicans
enthusiastically voting for it and with the president signing it?
You would call it dead. The independent counsel statute, which many
members of Congress once considered a necessary tool to combat crime
by high executive branch officials, expires Wednesday.
EVEN THOUGH Congress has allowed the independent counsel law to die,
Kenneth Starr and other current independent counsels —such as Carol
Elder Bruce, who is investigating Interior Secretary Bruce Babbitt —
will continue their investigations.
The law, first enacted in 1978 and given a five-year extension in
1994, provided that when allegations of criminal misconduct were
made against the president, vice president, cabinet officers and top
White House officials, the attorney general could decide to ask a
three-judge panel to appoint an attorney from outside the government
to investigate.
PRODUCT OF WATERGATE SCANDAL
The law was first passed the wake of the Watergate scandal, after
President Richard Nixon ordered special counsel Archibald Cox to be
fired. Congress was determined to guarantee that those who
investigated wrongdoing by a president or his associates could not
be intimidated or summarily fired.
But the law has proved a flashpoint for partisan warfare.
In the late 1980s, Republicans denounced independent counsel
Lawrence Walsh for his long-running investigation of a scheme
masterminded by a White House aide, Marine Lt. Col. Oliver North, to
funnel money to the Nicaraguan contras that had come from secret
arms sales to Iran.
In 1989, as North was fighting his legal battle with Walsh, Rep.
Henry Hyde, R-Ill., said, "There is something grotesque about a
private citizen forced to confront a vast array of top legal talent,
government investigators and a virtually unlimited expense account
to defend oneself."
GOP critics reacted in fury when Walsh indicted former Defense
Secretary Caspar Weinberger only four days before the 1992 election
—while releasing notes Weinberger took in 1986 indicating that
then-Vice President George Bush had known more about North's
arms-for-hostages strategy than he'd admitted.
In 1994, with strong support from Democrats such as Rep. Barney
Frank of Massachusetts, then-Rep. Charles Schumer of New York and
Sen. Christopher Dodd of Connecticut, Congress passed a measure
extending the life of the independent counsel statute by five years.
Clinton signed it into law on June 30, 1994.
In 1994, the House passed the measure renewing the law for five
years by a vote of 356 to 56, with 243 Democrats and 112 Republicans
voting "aye."
But Democrats soured on the law after the three-judge panel
appointed Starr, the Justice Department's solicitor general in the
Bush administration, to serve as independent counsel to investigate
President and Mrs. Clinton's Arkansas real estate ventures.
"This special counsel thing ought to be reviewed because the costs
outweigh the benefits," Clinton remarked at a 1996 press conference.
RENO'S CHANGE OF HEART
Last March, Attorney General Janet Reno, who had urged Congress to
renew of the statute in 1993, told the Senate Governmental Affairs
Committee that "I have come to believe — after much reflection and
with great reluctance — that the Independent Counsel Act is
structurally flawed and that those flaws cannot be corrected within
our constitutional framework."
Reno said "the statute puts the Attorney General in a no-win
situation. ...an Attorney General is criticized if she triggers the
statute, and criticized if she doesn't."
Before the statute expires, here is a final review of what critics
said was wrong with it:
• The law allowed independent counsels virtually unlimited time and
budgets. The counsels were not subject to the same constraints that
apply to district attorneys and ordinary federal prosecutors, who
must ration scarce time and staff resources.
This critique was made in a dissenting opinion by Justice Antonin
Scalia in the 1988 case of Morrison v. Olson.
"How frightening it must be to have your own independent counsel and
staff appointed, with nothing else to do but to investigate you
until investigation is no longer worthwhile — with whether it is
worthwhile not depending upon what such judgments usually hinge on,
competing responsibilities," Scalia wrote.
‘How frightening it must be to have your own independent
counsel and staff appointed, with nothing else to do but to
investigate you until investigation is no longer
worthwhile....’
Justice Antonin Scalia
Dissent in Morrison v. Olson, 1988
Appointed in 1986, independent counsel Walsh did not end his
investigation of North, Weinberger and others until 1994, at a cost
to the taxpayer of $47.9 million.
Donald Smaltz, the independent counsel in the case of former
Agriculture Secretary Mike Espy, spent $17 million on his
investigation, which began in 1994. A jury acquitted Espy last
December of 30 corruption charges.
• The law undermined Department of Justice prosecutors. "The
principal problem with the statute is that it applies to cases where
the Department of Justice could be trusted to do the job," said
Julie Rose O'Sullivan, professor of law at Georgetown University and
former prosecutor who worked for the Office of Independent Counsel
in Little Rock on the Whitewater inquiry.
"To remove cases from the Department of Justice indicates a lack of
confidence in our federal criminal justice system that is really
troubling," O'Sullivan said. "Congress in effect is saying 'you
can't trust the Justice Department to do the job fairly.'"
But the record shows that Justice Department prosecutors can handle
high-profile cases competently.
Justice Department prosecutors got a conviction of former federal
Judge Alcee Hastings in 1988. They also won their case against Rep.
Dan Rostenkowski, D-Ill., former chairman of the House Ways and
Means Committee, who pleaded guilty in 1996 after being indicted on
an array of charges, including using taxpayer funds to pay sham
employees.
• Independent counsels were not accountable to anyone. Critics said
that there were no real restraints are on independent counsels. The
three-judge panel that appointed independent counsels had no
supervisory powers.
And although the statute gave the attorney general the power to
remove the independent counsel "for cause," the meaning of that
phrase was unclear. In many if not most cases, the attorney
general's removal power was impossible to exercise. Imagine the
furor if Reno were to have fired Starr.
THE LAW'S DEFENDERS
Yet even now —with wounds still raw from the Starr investigations
—the statute does have some defenders.
One is Curtis von Kann, a Washington attorney who served as the
independent counsel in a 1997 investigation of Eli Segal, head of
the Corporation for National and Community Service, the agency that
runs the Americorps program. (Von Kann found no basis to prosecute
Segal for alleged violations of conflict of interest rules.)
Von Kann told the Senate Committee on Governmental Affairs that
"there is great value in having already in place an established
mechanism and procedures for dealing with those exceptional
situations where the public would not likely accept the integrity of
a Department of Justice decision to prosecute, or not to prosecute,
officials at the highest level."
The issue von Kann pinpoints —the public's trust in the integrity of
an investigation—will be crucial to what comes next.
With the independent counsel statute dead, it will be up to the
attorney general to choose outside lawyers to investigate future
allegations of misconduct by the president or his associates. Future
cases will depend largely on the probability of the attorney general and
the outside lawyer he or she picks.
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