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Who me -- the fact that the Democrats dreamed up the Special Prosecutor Law may not be all that relevant to the question of whether the law needs revision or not. Sometimes laws have consequences that not even the framers anticipated. (After posting this, I saw your message to j g cordes, so I may be beating a dead horse here.)
In any event, criticism of the Special Prosecutor Law has been bipartisan. I'll try to find you some pure Republican critiques, if you're interested. Meanwhile, you might want to hear the opinions that some former Special Prosecutors (some of whom investigated the activities of Democratic officials)have voiced about it, as reported in this New York Times story. Sorry to post the whole story here (it is very long), but when I filed this I forgot to write down the URL.
New York Times
August 11, 1998
FORMER SPECIAL COUNSELS SEE NEED TO ALTER
LAW THAT CREATED THEM
Todd. S. Purdum
They are a rarefied roster of not quite two dozen, the men and women who have served as independent
counsels investigating high Government officials over the last 20 years. They have delved into
accusations of everything from cocaine use by a senior White House aide to perjury, influence-peddling
and favor-trading, and have produced decidedly mixed results, from no indictments to convictions to
reversals on appeal.
Some of them have been harshly criticized for taking too long, spending too much or criminalizing
conduct other prosecutors would most often not bother with. But as Kenneth W. Starr's investigation of
President Clinton has moved from scrutiny of a tangled real estate investment to intimations of intimacy
with an intern, the law that created independent counsels has come under attack as almost never before.
Interviews in the last week with seven of the people who have held the job since that law, the Ethics in
Government Act of 1978, was adopted in the wake of Watergate produced broad consensus that the
statute was needed but might have to be overhauled if it was to be renewed by Congress when it expires
next year.
The former counsels were unanimous on one point: all were glad to have served. But a majority also said
that as currently written, the law covered too many officials and too many potential acts of wrongdoing,
and left the Attorney General too little discretion about when to invoke it.
"It should be limited to activities that occur in office," said Lawrence E. Walsh, who spent six years and
$40 million investigating the Iran-contra affair and whose suggestions for changes were among the most
sweeping. "It should be limited to misuse of Government power and should not include personal mistakes
or indiscretions. The enormous expense of an independent counsel's investigation and the disruption of
the Presidency should not be inflicted except for something in which there was a misuse of power. That's
not out of consideration for the individual; it's out of consideration for the country."
And while the former counsels generally declined to comment on Mr. Starr's investigation, virtually all of
them also said that wide experience as a criminal prosecutor or a defense lawyer -- which Mr. Starr does
not have -- should be a requirement for the job.
"I believe strongly in the concept of an independent counsel to guarantee public confidence in the
impartiality of any criminal investigation into conduct of top officials in the executive branch of our
Government," said Whitney North Seymour Jr., who won a perjury conviction against Michael K. Deaver,
a former top aide to President Ronald Reagan who was accused of lying about his lobbying activities
after leaving office.
"However," Mr. Seymour continued, in comments generally echoed by his colleagues, "appointments to
that position should be limited to lawyers with proven good judgment and extensive prior experience in
gathering admissible evidence, developing corroboration and satisfying the trial standard of reasonable
doubt. We simply cannot afford the spectacle of on-the-job training in such a sensitive position."
Since Arthur H. Christy was appointed in 1979 to investigate accusations that Hamilton Jordan,
President Jimmy Carter's chief of staff, had used cocaine at Studio 54 -- a case that ended with no
indictments -- there have been a total of 20 independent-counsel investigations, some conducted by more
than one prosecutor. The names of the targets of two investigations in the Bush era, and the counsels
who conducted them, were sealed by court order. One investigator, Robert B. Fiske Jr., was appointed by
Attorney General Janet Reno in 1994, at a time when the law had expired, and was replaced four years
ago last week by a three-judge Federal panel that chose Mr. Starr instead, but Mr. Fiske had essentially
all the same powers.
Five investigations of Clinton Administration officials, including Mr. Starr's, still await outcome, and
Ms. Reno remains under intense pressure to ask the judicial panel for yet another independent counsel,
to look into campaign finance abuses. No effort was made to interview those conducting active
investigations, or the counsel who ended his investigation of Commerce Secretary Ronald H. Brown after
Mr. Brown's death in a plane crash in 1996.
ENORMOUS POWER AND INTENSE ISOLATION
A common theme in the remarks of the seven former counsels who agreed to be interviewed was the
momentous power and isolation of the job, a universe of solitude and solemn responsibility.
"In terms of individual power, I never had anything like this," said Mr. Walsh, who had served as a
Federal district judge and Deputy Attorney General in the Eisenhower Administration. "Night after night,
I'd wake up in the middle of the night. I kept a notebook by my bed, and the only way I could get back to
sleep was to write down whatever was bothering me. I'd worry about my travel expenses, thinking, 'This
is going to seem very high.' "
When Mr. Fiske set up shop to investigate Whitewater, he forsook the companionship of the only four
friends he had in Little Rock, Ark., who all happened to be leading lawyers with ties to the city's political
and legal establishment.
Scholarly critics of the independent counsel law, including a Supreme Court Justice, Antonin Scalia,
have argued that it creates built-in incentives for prosecutors to pursue evidence and avenues of inquiry
that law-enforcement officials might otherwise decide were never likely to bear fruit. Those incentives:
simply the intense political pressure and public scrutiny that surround any appointment, and the
requirement that the prosecutor produce a detailed report justifying all the effort.
That concern was also common among the former prosecutors themselves.
"There ought to be some way to limit the ability of an independent counsel to expand his or her
investigation, to keep their eye on the original target they were initially appointed to investigate," said
James C. McKay, whose conviction of Lyn Nofziger, a former Reagan aide charged with violating ethics
laws on lobbying, was overturned on appeal after an inquiry that lasted 14 months and cost $3 million.
"When you think of how the Starr investigation started with Mr. Fiske and Whitewater and now what's
become of it, it just seems that there should be some way to have prevented that from occurring."
Joseph DiGenova, who ultimately brought no charges after a three-year, $2.2 million investigation into
accusations that senior Bush Administration officials improperly sought information from Bill Clinton's
passport files during the 1992 campaign, was the sole former prosecutor to condemn the law altogether,
and he said it should not be renewed.
"All of the usual governors, both legal and practical, are absent, because of the special nature of the
statute," said Mr. DiGenova, who argues that once the law is invoked, prosecutors are forced to bring "an
unnatural degree of targeted attention" to the case.
DISCRETION THAT CUTS IN EITHER DIRECTION
Mr. Fiske, who like Mr. Walsh and Mr. DiGenova thinks any law should cover investigation of only the
President, the Vice President and the Attorney General rather than the 75 or so senior Government and
campaign officials now automatically covered, also worries about the potential for abuse.
"Once the person is selected, it's like recalling a missile," Mr. Fiske said. "You can't recall it, and it's
kind of unguided, except by its own gyroscope. And so all these things are judgment calls."
But like his colleagues, he emphasized that a prosecutor's wide discretion ultimately cut both ways. He
recalled that David Hale, a former municipal judge in Arkansas, having pleaded guilty and begun
cooperating in the Whitewater case, provided much useful information, along with some that seemed far
afield.
"There were a lot of other things that David Hale told us that we could have investigated under our
charter," Mr. Fiske recounted, "but I just said, 'This is too far removed from what we were supposed to be
doing.' "
Several of the prosecutors expressed concern that the current law led too easily to the appointment of
independent counsels. Every time the Attorney General receives from a credible source specific
allegations of wrongdoing by an official covered under the act, she has 30 days to decide, without
compelling anyone's testimony, whether a preliminary investigation is warranted. If she concludes that it
is, then she must decide within 90 days whether there are "reasonable grounds" to believe that further
investigation is warranted. If there are, she must apply to the special three-judge court for appointment
of an independent counsel.
"That time limit now is too brief," Mr. McKay said.
But one of the former prosecutors, who spoke only on the condition of anonymity, said that the law was
sound as written and that complaints that it invited prosecutorial vendettas were overblown. Mr.
Seymour also rejected complaints of unbridled power, saying he had had no more leeway as independent
counsel than he had earlier had as United States Attorney in Manhattan in the Nixon Administration.
"The United States Attorney for the Southern District has almost unlimited power," Mr. Seymour said.
"How the responsibility is carried out is another question."
Similarly another former independent counsel, Alexia Morrison, said that the law did not need any
major changes and that "there's been a very successful campaign to lay faults at the foot of the statute
when in fact it is conduct that got us here." Asked whether she meant conduct by President Clinton, Mr.
Starr or both, Ms. Morrison simply repeated her assertion.
It was Ms. Morrison's investigation into whether Theodore Olson, an Assistant Attorney General in the
Reagan Administration, misled Congress in a dispute over toxic waste cleanup that led to the 1988
Supreme Court ruling unholding the independent counsel law. And though she ultimately brought no
charges after a 30-month, $1.5 million investigation, she, like some of her colleagues, said that very
result underscored one of the most important features of the law: enhancing the public's confidence that
nothing has been covered up.
"There are a heck of a lot of very troublesome investigations that have been resolved without bringing
any criminal charges," Ms. Morrison said, "and there was not a situation in which anyone came back
and said, 'That's outrageous.' "
Mr. Fiske, too, said that in the absence of an independent counsel law, there would seldom be significant
public controversy if high officials were charged and brought to trial, whatever the outcome, but that
"the problem is when the case isn't brought" because a prosecutor decides there is not enough evidence
or likelihood of success. "In many respects," he said, "that is where you need the independent counsel
most of all."
But for alleged misdeeds that may have occurred before a senior official took office, Mr. Walsh said, the
independent counsel law should not apply. Rather, the solution should be to extend the statute of
limitations for any such crimes and investigate after the official leaves office -- a suggestion that Ms.
Morrison seconded while acknowledging that this could pose its own problems, in terms of stale evidence
or lost witnesses.
ONE COMMON THEM: DISDAIN FOR PARTISANSHIP
In one way or another, all the former counsels who were interviewed deplored the partisanship now
surrounding an office that grew out of bipartisan concern over President Richard M. Nixon's "Saturday
night massacre" of the first Watergate special prosecutor, Archibald Cox, and the two highest officials of
the Justice Department.
"It's become so politicized now," Mr. McKay said, "that the ins hate it and the outs love it just for the
purpose of bringing the ins down. That's the part that will turn the public sour."
Mr. Seymour agreed, saying: "It plainly has gotten a bad name. And that comes from the public
perception of recent events, and I think that's unfortunate."
Mr. DiGenova contended that the aftermath of Mr. Cox's dismissal demonstrated that the independent
counsel law was not needed, since the Watergate inquiry continued under a new special prosecutor, Leon
Jaworski, until Mr. Nixon's downfall four years before the law was enacted.
"There's no way that a sitting President can possibly prevent his own investigation by firing anybody,"
Mr. DiGenova said, "because the political process will not permit it."
Ms. Morrison said it remained unclear whether the public would continue to support the law.
"I think most of the previous independent counsel have been able to achieve a result with a general sense
of public confidence that the way they got there was appropriate," she said. "But hold your breath. It
may be that Starr can spin out a report that tells an incredibly interesting tale that puts the lie to most of
the procedural and substantive assaults on him. On the other hand, if it looks like he hasn't produced so
much, and has used an elephant gun on a flea, then maybe that won't be so well regarded."
CHART: "A Rarefied Roster"
Independent counsels, the years of their appointments and the results of their investigations.
1979
Arthur H. Christy
Investigated accusations of cocaine use by Hamilton Jordan, chief of staff to President
Jimmy Carter. No indictments.
1980
Gerald Gallinghouse
Investigated accusations of cocaine use by Tim Kraft, President Carter's campaign
manager. No indictments.
1981
Leon Silverman
Investigated alleged mob ties of Raymond J. Donovan, Labor Secretary to President
Ronald Reagan. No indictments.
1984
Jacob A. Stein
Investigated alleged financial improprieties of Attorney General Edwin Meese 3d. No
indictments.
1986
Whitney North Seymour Jr.
Won perjury conviction of Michael K. Deaver, former White House deputy chief of staff
under President Reagan.
1986
Alexia Morrison
Investigated accusations that former Assistant Attorney General Theodore Olson was
deceptive about documents withheld from Congress. No indictments.
1986
Lawrence E. Walsh
Investigated the sale of weapons to Iran and the diversion of some profits to Nicaraguan
rebels. Obtained many convictions, some overturned on appeal, others leading to
pardons by President George Bush.
1987
James C. McKay
Won conviction of Lyn Nofziger for violating ethics law on lobbying. Conviction was
overturned on appeal, and Mr. McKay decided not to retry case.
Investigated Mr. Meese on accusations related to the collapse of Wedtech, a military
contractor. No indictments.
1987
Carl Rauh
James Harper
Investigated the finances of W. Lawrence Wallace, a former Assistant Attorney General.
No indictment.
1989
Name of independent counsel and target sealed by court order. No indictment.
1990
Arlin M. Adams
Larry D. Thompson
Investigated variety of scandals involving the sale of favors in the Department of Housing
and Urban Development. Several indictments and convictions.
1991
Name of independent counsel and target sealed by court order. No indictment.
1992
Joseph DiGenova
Investigated possible abuse of passport files by Bush Administration officials. No
indictments.
1994
Robert B. Fiske Jr.*
Kenneth W. Starr
Conducted inquiry into Whitewater real estate deal, since expanded to include several
other investigations, some still ongoing.
1994
Donald C. Smaltz
Won indictment of former Agriculture Secretary Mike Espy on charges of receiving, and
covering up, favors from companies doing business with the Government. Trial pending.
Mr. Espy's former chief of staff was convicted of lying to investigators.
1995
David M. Barrett
Investigated accusations that Henry G. Cisneros, the Secretary of Housing and Urban
Development, lied to the F.B.I. about payments he made to a former mistress. Won
indictment of Mr. Cisneros on 18 felony counts. Trial pending.
1995
Daniel S. Pearson
Investigated Commerce Secretary Ronald H. Brown's personal finances. Stopped after
Mr. Brown was killed in a plane crash in Croatia.
1996
Curtis Emery von Kann
Investigated Eli J. Segal for conflict-of-interest accusations involving fund-raising for a
private group while he was head of the Americorps national service program.
Investigation ended in 1997 without any action.
1998
Carol Elder Bruce
Appointed to investigate whether Interior Secretary Bruce Babbitt broke the law in
connection with his testimony to Congress about an Indian casino license.
1998
Ralph I. Lancaster Jr.
Appointed to investigate accusations that Labor Secretary Alexis Herman engaged in
influence-peddling solicitation of $250,000 in illegal campaign contributions.
*Appointed by Attorney General Janet Reno during a period when the independent
counsel law had lapsed.
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