You silly twit, Republicans are far far better educated as a group than Dems; proving yourself no exception to that rule is the product of your crazed assertion. You confuse feeding off the public trough with being educated.
February 24, 1999
Commentary
The Law Liberals
Finally Learned to Hate
By Theodore B. Olson, a constitutional lawyer in Washington.
At its midwinter meeting earlier this month, the American Bar Association abruptly reversed its 25-year record of support for the independent counsel law and approved a resolution opposing its re-enactment "in any form" when it comes up for renewal this summer. This is just the most recent of what has become a stampede of defections by those who have been the independent counsel law's most avid and outspoken supporters. These newly minted critics are finally reaching the right conclusion, but for mostly the wrong reasons.
The ABA's conversion is particularly stunning. Its voice carried considerable weight during the post-Watergate era, when it became one of the first and most ardent proponents of a special prosecutor law. It was joined by most of the liberal legal and political establishment as well as the Carter administration Department of Justice in insisting that an atmosphere of "partiality" would "cast a shadow over" any Justice Department investigation of the president or high-ranking presidential appointees. Special prosecutors were indispensable for such investigations, they argued, in order to "preserve public confidence in the administration of justice."
Suddenly, the ABA and most of its allies in the independent-counsel brigade have dropped their conviction that the Justice Department cannot credibly investigate the president. And the transformation has been decisive. The ABA vote was by a margin of nearly eight-to-one (384-49). Yet the serious flaws now unearthed by the ABA and liberal commentators such as Albert Hunt of this newspaper and Anthony Lewis of the New York Times have been there from the beginning. The only real difference between the mechanism Congress re-enacted most recently in 1994, which the liberals loved, and the law they now claim to loathe, is that it is now being applied to Democrats rather than Republicans.
Far Afield
Independent counsel investigations have almost invariably tended to probe allegations of trivial and technical offenses, and have often ranged far afield from their original assigned mission, as the prosecutor, issued a fishing license that names a particular fish, looks for any way to catch it. These investigations, with their unlimited budgets, have nearly always taken too long and cost too much money. And the tactics for which Kenneth Starr has been criticized -- alleged leaks of information about investigations, subpoenas to family members -- are familiar characteristics of many high-profile federal investigations, whether conducted by an independent counsel or the Department of Justice.
I have had personal experience as the subject of an exasperatingly protracted and utterly pointless independent counsel investigation, which led to the landmark U.S. Supreme Court decision Morrison v. Olson (1988), declaring the independent counsel statute constitutional. I have acted as counsel to numerous other subjects of these nightmarish probes, including Ronald Reagan in the seven-year Iran-contra investigation. There were no complaints from the ABA or the New York Times about grand jury leaks or endless investigations then. Iran-contra independent counsel Lawrence Walsh actually boasts of his virtually daily off-the-record sessions with journalists during his investigation. Yet today's critics were sublimely unfazed by the leaks and abuses of that investigation, or any independent counsel investigation prior to the Clinton era.
It is easy to trace the beginning of the turnabout on the independent counsel law. Shortly after the Mr. Starr's appointment, five former ABA presidents harshly criticized one of the three judges who appointed Mr. Starr. The judge, it seems, had been observed prior to the appointment having lunch in the Senate dining room with the senators from his home state, both Republicans. Although there was no evidence that anything improper had happened at the lunch, the dreaded "appearance of impropriety" was shocking enough for the ABA heavyweights to declare Mr. Starr's investigation politically tainted and therefore illegitimate.
Lunches in public with conservative senators are apparently a threat to legal order. On the other hand, the ABA has uttered not a single syllable of criticism of the president -- who is, after all, a lawyer -- for repeatedly lying under oath, hiding evidence, coaching witnesses, and sitting in rapt and approving silence while his lawyer misled a federal judge. Plainly, the recent rush to condemn the independent counsel law reflects the anguish of those who are now being forced to consume the toxic diet they had cooked up for others.
Fortunately, this transformation of liberal opinion will help in ridding America of a flawed and destructive experiment. The independent counsel law is bad policy because it creates a new governmental prosecutorial agency, with an inexhaustible budget and essentially no institutional accountability, whenever allegations of criminal conduct are made against top executive-branch officials, unless the attorney general can certify that there is "no reasonable ground to believe that further investigation is warranted." Once that low threshold is surmounted, federal judges are forced into an inappropriate role as appointers of prosecutors, and seemingly endless and enormously damaging and distracting criminal investigations begin.
As Justice Antonin Scalia wrote in his lone dissent in Morrison v. Olson, "How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but investigate you until investigation is no longer worthwhile." It is amazing how many columnists, politicians and law professors disagreed with him then yet extol his wisdom now.
The independent counsel law has many flaws, but its uncorrectable core defect is that it attempts to improve on our constitutional system of checks and balances and separated powers. The Constitution vests the exclusive authority to enforce the law in the president, but imposes many limits on presidential power including an independent judiciary and a Congress with the power of impeachment. These restraints cannot prevent corruption in government, but they have been remarkably effective in redressing it. We did not need an independent counsel law to drive a corrupt president from office in 1974.
Silly Emptiness
The Clinton administration has already gone a long way toward eviscerating the independent counsel law. The statute has been defined into silly emptiness in the case of President Clinton's evasions of campaign finance laws. And the White House seriously damaged the effectiveness of the Starr investigation by hiding evidence, lying to the grand jury, inventing an endless stream of frivolous and time-consuming legal objections, and conducting a war on Mr. Starr in the press. Now Attorney General Janet Reno is threatening to initiate an investigation that would cripple the Starr investigation, which she is prohibited by law from impeding.
It is vastly preferable to end the independent counsel law by allowing it to expire than to allow the Clinton administration to destroy it in substance while pretending to abide by it. Carter administration Attorney General Benjamin Civiletti has now joined former Attorneys General Edward Levi, Griffin Bell, William French Smith, Edwin Meese, Richard Thornburgh and William Barr, an unbroken line from the Ford through the Bush administrations, in condemning the independent counsel law as bad policy and bad government. Their collective and uniform views should tell us something.
There will be those who say that without an independent counsel law, the president or his subordinates could escape responsibility for criminal conduct and subversion of the law. We have now seen that an independent counsel law can do very little to prevent that from happening.
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