More on the Independent Counsel Act...
Ken Starr clearly states that the investigation into the personal sexual life of the president began when Linda Tripp came to the Office of Independent Council and said that Bill Clinton and Monica Lewinsky were about to lie under oath, suborn perjury, make false state-
ments under oath, and were attempting to tamper with a potential witness.
If Ken Starr clearly stated that, John, then there may be some merit to the charges that the Starr investigators entrapped the President, "set him up," as it were. And we should remember that legal technicalities like this are often more decisive than moral principles in determining the outcome of criminal cases (you ARE saying that Clinton committed crimes).
Let me add also that some "anti-Clintonites" themselves feel that Starr's case is weak, which is why they would prefer to concentrate on potentially more "impeachable" offenses (e.g., filegate, Chinagate). And that is probably one of the reasons why the Republicans voted to broaden the scope of the impeachment inquiry, rather than to limit it to the charges (all Monicagate charges) listed in the Starr referral.
Incidentally, I posted the Holtzmann piece on the Independent Counsel Act strictly FYI, not because I necessarily agreed with her argument. The McCarthy piece, which I also posted, takes a different approach.
The most interesting, and persuasive, "anti-Independent Counsel Law" piece I have read recently was written by University of Chicago law professor Cass Sunstein, and published back in May:
epn.org
The article in question was to be republished in The Georgetown Law Review, as a contribution to a symposium on the Independent Counsel Law. If that issue has come out, it might be of interest to anyone interested in this question.
In any event, to the point: Sunstein attacks not Starr, but the law setting up Starr's office. His criticisms of that law are based on his observation of what he says are "a large number of less publicized
but drawn-out, expensive, and sometimes obsessive investigations by other independent prosecutors." Their "peculiar behavior," he writes, "is best understood as a product of the bizarre incentives created by the Independent Counsel Act."
That well-known liberal, Justice Scalia, was absolutely right, according to Sunstein, when Scalia, the only judge on the Supreme Court to oppose the Act as unconstitutional, expressed the view that it created a "novel and dangerous means of law enforcement: a prosecutor who is effectively accountable to no one and entirely focused on a single person."
Some other points Sunstein makes:
1) "The original goal of the Independent Counsel Act was simple, laudable, and entirely appealing: to ensure that the decision whether to prosecute high-level government officials would not be made by high-level government officials. In the aftermath of the Watergate scandal, which was a genuine constitutional crisis, the act seemed indispensable as a way of promoting public trust in government. The idea that no person should be the judge in his or her own cause is deeply rooted in American constitutional traditions; it seems only natural to think that those investigating high-level criminality should be insulated from control of the highest executive officers... The Independent Counsel Act... would create an assurance that a disinterested person would investigate and if necessary prosecute high-level officials. But as sometimes happens, legislation driven by particular events may have created problems more serious than those that it was meant to prevent."
2) "By narrowing the prosecutor's focus to a single target of investigation and providing unlimited funds, the act eliminates the key safeguards built into the ordinary role of the prosecutor
and creates an incentive for zealotry. ... The act encourages independent prosecutors to do what, in a free society, no good
prosecutor does: to take all imaginable steps to indict a single individual."
3) "Most ordinary Americans will not face a prosecutor dedicated to investigating them alone, for prosecutors don't have the time and must pay attention only to the most serious crimes. For public service, the consequences of this asymmetry can be devastating. Prospective public officials know that by accepting a high-level appointment, they run the risk that someone,someday, will make a credible charge against them, that an independent counsel will be appointed with no
time or budgetary limit on the investigation, and that they will have to defend themselves against allegations that could put them in jail."
5) On politicians and the press: "Among political opponents of any administration, a number are likely to find it in their political interest to call for an independent counsel to investigate some
real, possible, or even wholly imagined wrongdoing." And the press has focussed overmuch on such investigations: "Even before the recent events involving Monica Lewinsky,the preoccupation with independent counsel investigations had been growing. Front-page stories in the New Front-page stories in the New York Times and Washington Post referring to such investigations have grown over time. There were just
three such stories in the final years of the Carter administration; then 50 in the first four Reagan years; 225 in Reagan's second term; 63 under Bush; 220 during Clinton's first four years; and already 120 in Clinton's second term up to November 6, 1997."
6) "The result of all this is a disaster for the public: a belief that all politicians are crooks participating in cover-ups, a deflection of attention from substantive issues, a situation in which anyone contemplating public office faces a serious risk of being investigated."
7) Finally: "Many investigations have been a waste of taxpayer resources, in the process tarnishing the reputations of public officials and other possible defendants, not to mention imposing enormous legal costs on them. It is not clear that the 20 total convictions and 24 total guilty pleas offset these costs." |
