INDEPENDENT COUNSEL

In 1978, Congress established a permanent framework for dealing with allegations that a senior official of the federal government had committed federal crimes. The fundamental element of the new process is the selection of a special officer with the sole responsibility of investigating the allegations. The special selection of a person from outside the government frees the person from the institutional and personal restraints that might affect the judgment and objectivity of a regular Justice Department prosecutor called upon to investigate his governmental superiors or colleagues.

As originally enacted as part of the Ethics in Government Act of 1978, this officer was called a special prosecutor. Congress later changed the officer's title to "independent counsel" in order to diffuse criticism that appointment of an official called a "special prosecutor" prejudged the outcome of the investigation. The original title seemed to suggest that the offense being investigated was special and that prosecution was probable or necessary. The title "independent counsel" signifies that the official's responsibility is to be more neutral and dispassionate.

Before Congress acted in 1978 to provide a permanent mechanism for appointing an independent counsel, the decision whether to take any unusual steps to respond to reports of high-level corruption was left to an unpredictable combination of public notoriety and political integrity. For example, in order to deal with reports of massive corruption in the warren harding administration concerning the sale of the Teapot Dome petroleum reserves, Congress enacted a special statute authorizing the President, with Senate confirmation, to appoint "special counsel" to investigate and prosecute criminal violations relating to the leases on oil lands in former naval reserves. The incumbent attorney general, Harry Daugherty, lacked public trust, since he himself faced separate criminal allegations. President calvin coolidge appointed a former Ohio senator and a private lawyer from Pennsylvania (later a Supreme Court Justice) to serve as special counsel. Among those prosecuted was the former secretary of the interior, Albert B. Fall, who was convicted of bribery and sentenced to prison.

During the administration of harry s. truman, public pressure forced Attorney General J. Howard McGrath to appoint a highly respected former New York City official to serve as his "special assistant" to investigate widespread corruption in federal tax cases. The special assistant, however, had no statutory mandate. When he tried to press his investigation by seeking information from high-level Justice Department officials, including the attorney general himself, Attorney General McGrath fired him. President Truman immediately fired the attorney general, but did not see to the appointment of any replacement special prosecutor. Not until a new administration took over did the allegations yield prosecutions and convictions, including the convictions of the former assistant attorney general in charge of the Tax Division and of President Truman's own appointments secretary.

Then came watergate. Shortly after the beginning of President richard m. nixon's second term, allegations surfaced that his senior aides in his reelection committee, the White House, and the Justice Department had been personally involved in planning a burglary at the offices of the Democratic National Committee during the 1972 presidential campaign or had helped to cover up the guilt of the conspirators. Public skepticism about a Justice Department investigation led the new attorney general, Elliot Richardson, to appoint a Harvard Law School professor, Archibald Cox, as the "Watergate special prosecutor." When Cox insisted on subpoenaing tape recordings that President Nixon had made in his White House office and refused to yield voluntarily, the President fired him.

The public firestorm that followed Cox's firing and Richardson's resignation forced the President to agree to the appointment of a new special prosecutor, Leon Jaworski, whose authority was derived from newly issued Justice Department regulations that the President pledged to respect. Those regulations guaranteed that the special prosecutor would not be removed except for "gross impropriety" or other special cause. In united states v. nixon (1974), the Supreme Court upheld the constitutional authority of the Special Prosecutor to press another subpoena directed to the President, despite the President's objection that it invaded his constitutional right to invoke executive privilege. The Court concluded that the Justice Department regulations to which the President had agreed and which remained in effect provided the special prosecutor with autonomy to pursue the investigation, regardless of the President's wishes.

During the jimmy carter administration, Attorney General Griffin Bell appointed an official outside the Justice Department to serve as his "special counsel" to investigate allegations concerning the financial interests of the President and his brother.

The 1978 legislation goes well beyond any of the prior approaches. It requires the attorney general to apply to a special court to appoint a special prosecutor (or independent counsel) whenever preliminary inquiry into allegations against the President or other senior government officials specified in the statute leads the attorney general to conclude that there are "reasonable grounds" for further investigation. The court then must appoint an independent counsel from outside the government. That counsel becomes vested with all of the investigative and prosecutorial authority that the attorney general and his subordinates would otherwise have. In exercising his judgment, the independent counsel is not subject to supervision or direction by the attorney general or even the President. The statute protects the independent counsel's autonomy by specifying that he may be removed only by the attorney general personally and only for "good cause." The statute also makes the removal decision subject to judicial review.

In the first ten years of experience under the statute, there were more than thirty instances in which the statute came into play and at least eight special prosecutors or independent counsels were formally appointed. In Morrison v. Olson (1988) the Supreme Court upheld the constitutionality of the independent-counsel provisions. Their constitutionality had been challenged by the target of an investigation, a former assistant attorney general. The Justice Department itself joined in urging the Court to strike down the statute as an invasion of the President's constitutional prerogatives. The constitutional attack rested on two basic arguments: first, that the provisions for court appointment and protected tenure violated the President's right to appoint and remove all senior "officers" of the government and, second, that the independent counsel's autonomy invaded the prerogatives assigned to the President under the separation of powers, particularly the responsiblity for enforcing federal law.

The Court ruled, however, that an independent counsel is only an "inferior officer" within the meaning of the appointments clause of Article II of the Constitution, so that Congress may vest the appointment power in a court. The Court reasoned that the narrowness of the investigative charter and other statutory constraints put an independent counsel into the "inferior officer" status.

The Court also rejected the more fundamental objection that the independent-counsel mechanism violates the Constitution's separation of powers. The Court agreed that investigation and prosecution of federal crimes is essentially an executive-branch function, but concluded that the attorney general's role in the initial decision to apply for appointment of an independent counsel and his power to remove the counsel "for good cause" provide adequate executive-branch control over the assertion of these powers. The Court also concluded that Congress' solution to a difficult problem of assuring public confidence in the integrity of the criminal process satisfies the constitutional separation of powers because neither the legislature nor the judiciary had "aggrandized" its powers at the expense of the executive branch.

Although the Court's decision settles the constitutional question, doubts about the wisdom of the statute remain. An independent counsel lacks either an electoral base or public accountability. The appointment to investigate a particular set of allegations, with virtually no limit on the resources that can be devoted to the investigation, may tend to distort, rather than protect, the fair and objective judgment that the statutory mechanism is supposed to promote. This special charter may also lead to relentlessly intensive and sweeping investigations that subject government officials to substantially more onerous treatment than an "ordinary" criminal suspect would receive at the hands of a full-time, professional prosecutor.

Philip A. Lacovara
(1992)

Bibliography

Baker, Howard H. 1975 The Proposed Judicially Appointed Independent Office of Public Attorney: Some Constitutional Objections and an Alternative. Southwestern Law Journal 29: 671–683.

Cummings, Homer S. and Mcfarland, Carl 1937 Federal Justice: Chapters in the History of Justice and the Federal Executive. New York: Macmillan.

Huston, Luther A. 1967 The Department of Justice. New York: Praeger.

——1968 Roles of the Attorney General of the United States. Washington, D.C.: American Enterprise Institute.

Jacoby, Joan E. 1980 The American Prosecutor: A Search for Identity. Indianapolis: Lexington Books.

Tiefer, Charles 1983 The Constitutionality of Independent Officers as Checks on Abuses of Executive Power. Boston University Law Review 63:59–103.