No more, no less a federal prosecutor

Independent counsel: No more, no less a federal prosecutor

Dash, Samuel

SAMUEL DASH*

INTRODUCTION

On Saturday night, October 20, 1973, the unthinkable happened-Acting Attorney General Robert Bork fired Watergate Special Prosecutor Archibald Cox on direct orders from President Richard Nixon.1 Cox had refused to obey Nixon’s directive to cease his aggressive efforts to obtain the White House tapes, tapes that were alleged to have recorded a criminal conspiracy to cover up the White House-sponsored burglary of the National Democratic Committee’s headquarters in the Watergate. The existence of these tapes was uncovered and publicly exposed by the Senate Watergate Committee during its televised hearings on July 16, 1973.2 Attorney General Elliot Richardson, who had appointed Cox in fulfillment of an agreement with the Senate Judiciary Committee made during his confirmation hearings, received the same order from Nixon, but refused to carry it out and resigned.3 Deputy Attorney General Ruckelhouse also resigned rather than obey the order.4 Finally, Robert Bork, Solicitor General, acting as Attorney General, obeyed the President’s order.5 Then and since this horrendous presidential action to obstruct a federal criminal investigation of the President and his aides has been known as “The Saturday Night Massacre.”

Nixon could lawfully fire Cox. After all, Cox was a federal prosecutor within the Department of Justice under the supervision of the Attorney General and the President. As Attorney General, Richardson had assured Cox that he would not interfere with the investigation. But the Attorney General could not bind the Chief Executive. Richardson had no authority to stop Nixon, even though the President’s action was not only politically catastrophic, but incompatible with his Article II obligation to “take Care that the Laws be faithfully executed.”6

As Chief Counsel of the Senate Watergate Committee, which had exposed most of the details of the Watergate scandal in televised hearings during the summer of 1973, and which was still holding hearings when Cox was fired, I was shocked that the President could so easily terminate a criminal investigation targeted at him. The irony is that Nixon would have succeeded had there been no Senate Watergate hearings that summer. To the uninformed public, the firing of the Special Prosecutor would have been just another political donnybrook in Washington. But, as the hearings progressed, the facts of the Watergate conspiracy and cover-up outraged the public; they came to understand how corrupt Nixon’s firing of Cox really was. Millions of Americans wrote, called or telegraphed their outrage to the White House and Congress. This public outcry, then referred to as the “firestorm,” was so fierce that Nixon was forced to appoint another special prosecutor, Leon Jaworski, to pick up where Cox had left off.7

Despite this encouraging response to the Saturday Night Massacre, I believed this kind of political solution to an abuse of executive power was a unique event produced by the televised exposure of Watergate by the Senate Watergate Committee. I feared there could be a different outcome when a future President directly interfered with a criminal investigation in which he or she was a target.8 I advised the Senate Committee that its first legislative reform recommendation needed to be the creation of an independent prosecutor who would be appointed by judges-not the President or Attorney General-when there were credible and serious charges of violation of the federal criminal law by a President, Vice President or senior executive branch official. The first recommendation in the Senate Watergate Committee’s June 1974 Final Report addressed this issue. The Committee initially believed that such an independent officer should be a permanent “Public Attorney” to investigate and prosecute when there was an actual conflict or the appearance of one in the executive branch.9

Subsequent consideration resulted, however, in the belief that a permanent office was not desirable. Experienced and successful members of the bar would not be attracted to such a position. More likely, it was believed, young lawyers on the way up would seek this position, thereby creating the potential for overly ambitious investigation and prosecution of executive branch officials, including the President. In addition, it was expected that this special prosecution would rarely occur and that a permanent office would not have much to do. Instead, Congress enacted legislation in 1978 requiring a court to appoint a special prosecutor upon the application of the Attorney General on a case-by-case basis.10 The statute also provided that the legislation would expire in five years if not re-enacted.11 In 1983, and again in 1987, Congress re-enacted the statute,12 while also amending it to respond to persistent criticism from the Department of Justice. For example, the title of the lawyer appointed under the statute was changed to “independent counsel” in order to avoid any connotation that the appointment meant that a criminal violation had occurred and that prosecution would ensue. Other amendments modified the standards triggering a request by the Attorney General for the appointment of an independent counsel.

By 1992, Republicans, whose Reagan and Bush administrations had borne the brunt of investigations and prosecutions by appointed independent counsel, had grown increasingly frustrated with the independent counsel statute. They mounted an attack on the statute so fierce that they succeeded in blocking its re-authorization even though Republicans comprised a minority of Congress. Ironically, in 1994, when the Whitewater scandal erupted to embarrass a Democratic President, Republicans enthusiastically joined with then reluctant Democrats in Congress to pass the independent counsel Reauthorization Act of 1994 (“the 1994 Act”),13 so that an independent counsel would be available to investigate the President’s involvement in the Whitewater matter. The 1994 Act also instituted a number of changes designed to increase the accountability of the independent counsel and ensure budget and fiscal control of his office.

This essay seeks to address the principal criticisms leveled at the independent counsel statute. Part I examines the political context in which these criticisms have been made. It suggests that the barrage of attacks directed at independent counsel have been fueled largely, although not exclusively, by the powerful public relations operations of the senior officials targeted by independent counsel investigations. Part II addresses substantively the principal complaints made of independent counsel: First, that independent counsel are not accountable; and second, that independent counsel are not constrained by limits on time and money. Part III tests the validity of these criticisms against the experience of Iran-Contra independent counsel, Lawrence Walsh. Walsh’s experience illustrates-more clearly than an abstract argument ever could-the real-world constraints faced by an independent counsel and the continuing effectiveness of executive branch attempts to undermine such an investigation.

I. WHAT HAVOC WAS UNLEASHED?

This inquiry is suitable in light of the noisy and angry condemnation of independent counsel and the legislation that creates them. A chorus of critics supported by much of the media denounce independent counsel as dangerously powerful prosecutors accountable to no one and possessed of unlimited time and money. Independent counsel, say these critics, can use the vast resources of their offices to track, hound and destroy a single target. They are therefore more likely to abuse their power in a way that regular prosecutors in the Justice Department or United States Attorneys’ offices are unable to do. To these angry critics, an independent counsel is not much better than Torquemada of the Spanish Inquisition.

Is there a valid basis for this criticism? If so, then the Congress has unleashed a monster in federal prosecution incompatible with American constitutional justice. In answering this question it is relevant to ask who these critics are. Most are either the targets of independent counsel investigations or counsel to a target. There is nothing new about a target or the target’s counsel blasting the prosecutor for abuse and unfairness. Often unrelated to the merits of the criminal charge, this strategy is aimed at weakening the prosecutor in the hope that it will also weaken the prosecutor’s case. Regular federal prosecutors often face this kind of attack. Very little public attention is given to these attacks on federal prosecutors because the criminal cases involved are generally not nationally newsworthy.

Independent counsel differ from other federal prosecutors, however, in that independent counsel are appointed to investigate alleged wrongdoing by a President or one of the President’s senior officials. This kind of investigation inevitably triggers the powerful public relations mill of the President. The result is a barrage of attacks against the independent counsel disseminated through leaks to favored reporters, planned critical statements by chosen political spokespersons, and sometimes in accusations by the President, himself. Once these orchestrated attacks become public, the nature of the media is such that every newspaper and television station seems compelled to cover the attacks. This press coverage frequently leads to editorials critical of the investigation and fuels the general public perception that something has gone terribly wrong with the independent counsel statute. Even more troubling, these attacks are based on a hopelessly skewed perception of the investigation. Because the independent counsel and his staff are required to work secretly during their investigation, they are prohibited from responding fully to these attacks. Thus, an influential editorial lambasting an independent counsel may have little factual support, but may rely instead on the spiraling propaganda daily generated by “sources close to the investigation” and reporters and editors competing with other newspapers to keep the story alive as long as possible. It is, of course, true that today many of the critics of the independent counsel legislation are not targets of an investigation, but include responsible and much-respected lawyers, law professors and public figures. Unfortunately, they appear to have joined their voices with partisan detractors for reasons relating more to the media hue and cry, than from any actual knowledge of the implementation of the independent counsel statute.14

II. REAL1TY INSTEAD OF MYTH

An independent counsel under the 1994 Act is no more and no less than a federal prosecutor in the U.S. Department of Justice. An independent counsel has no powers greater than or different from the Attorney General or a United States Attorney. The statute states this specifically:

Authority and duties of an independent counsel

(a) Authorities. Notwithstanding any other provision of law, an independent counsel appointed under this chapter shall have, with respect to all matters in such independent counsel’s prosecutorial jurisdiction established under this chapter, full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice, except that the Attorney General shall exercise direction or control as to those matters that specifically require the Attorney General’s personal action under section 2516 of title 18.15

Where, then, do the critics of the independent counsel statute find such unusual and unchecked power? Most frequently, critics claim that first, the independent counsel is unaccountable and uncontrollable, and second, that the independent counsel has unlimited time and money, and can focus these unlimited resources on a single target.16 Briefly, let us examine these two claims.

A. ACCOUNTABILITY OF THE INDEPENDENT COUNSEL

This is the most empty of the criticisms. The charge is not grounded in the statute, but relies on the thesis that the independent counsel, unlike the Attorney General, is not part of the political or administrative structure of the federal government, and is, therefore, not under political party or executive branch supervision. This is true, as far as it goes; independence is a central goal of the statute. It is nonsense to say, however, that the independent counsel is not accountable for what he or she does.

The 1994 Act imposes a heavy scheme of accountability on independent counsel. Under 28 U.S.C. sec 595, Congress reserves oversight powers with respect to an independent counsel and can hold public hearings on his conduct.17 Also, under 28 U.S.C. sec 594(f), the independent counsel must comply with written and other established policies of the Department of Justice respecting enforcement of the criminal law.18 Most independent counsel borrow for their principal staff positions Assistant United States Attorneys from all over the country because of their experience in federal prosecution and their knowledge of how to comply with Justice Department guidelines.

Critics of the independent counsel statute contend that the requirement that the independent counsel comply with Justice Department policies provides no meaningful restriction on the independent counsel.19 This claim is strange indeed, particularly because these critics most often cite no departures by independent counsel from Justice Department policies, but claim, instead, that this statutory restriction is unenforceable. In fact, however, the requirement that independent counsel comply with Department of Justice policies is taken very seriously by independent counsel. The experienced federal prosecutors on loan to the independent counsel constantly check their conduct against Justice Department policies. Not only do they adhere to these policies, they invariably follow even higher standards because of their extensive experience as prosecutors and the unusual visibility and criticism of an independent counsel investigation.

Individual independent counsel are also subject to removal. Under 28 U.S.C. sec 596(a), the Attorney General may remove an independent counsel for good cause, physical or mental disability, or any other condition that substantially impairs the independent counsel’s performance.20 Critics argue that an Attorney General will be exceedingly reluctant to exercise this power for fear of a political backlash. Surely, however, if an independent counsel engages in the egregious abuses alleged by the critics, there will be sufficient press and public support to persuade the Attorney General that firing the independent counsel will be a popular action.

To skeptics, dismissal of the Attorney General’s statutory authority to fire the independent counsel for cause suggests nothing less than a belief that law itself is a meaningless restraint on human conduct. Independent counsel are very much aware that their investigative and prosecutorial decisions are subject to review by the Attorney General. It is true that the Attorney General is unlikely to exercise this power to remove an independent counsel except in cases of egregious misconduct. But, an independent counsel is no less accountable than the Attorney General who, of course, supervises Justice Department investigations and who is removable only by the President or through impeachment. Moreover, this impeachment power is an authority the House and Senate have never exercised with regard to an Attorney General.

Further, the independent counsel must file reports with the Congress and the division of the court that appointed him. In addition to these statutory controls, the independent counsel operates under the same restraints faced by any federal prosecutor reporting to the Attorney General: constitutional restrictions on investigations and prosecutions; the Federal Rules of Criminal Procedure and the Federal Rules of Evidence; the Rules of Professional Conduct; and judicial supervision during criminal proceedings in court.21

Finally, the independent counsel, even more so than the Attorney General, must conduct his investigation under the constant scrutiny of the media. This scrutiny is particularly intensive because, unlike most federal prosecutions, the independent counsel’s investigation often involves the President and the White House, subjects of irresistible interest to print and electronic media.

B. UNLIMITED TIME AND MONEY

The 1994 Act imposes fiscal controls on the Office of Independent Counsel (OIC) that are as tight-and in some respects tighter-as those fiscal controls imposed on the Justice Department. An in-house comptroller exercises oversight over his office.22 He is audited by the General Accounting Office.23 He must report to Congress on how he is managing his expenses,24 and he must comply with Justice Department policies respecting expenditures.25 Time constraints are also genuine. The 1994 Act gives authority to the Special Division of the court to terminate an individual investigation either at the request of the Attorney General or on its own motion. The Special Division of the court must make any determination to terminate within two years of the independent counsel’s appointment, at the end of the succeeding two-year period, or at the end of a succeeding one-year period.26

In light of these constraints, the accusation that independent counsel take too much time and spend too much money-allegedly far more in both cases than regular federal prosecutors-is a red herring. Critics who make this accusation compare the mandate of the independent counsel with the normal case load of an Assistant United States Attorney. This is not simply a comparison of apples and oranges-more true yet, it is like comparing apples and watermelons.

The independent counsel’s mandate is not the case load of most federal prosecutors. Instead, in most cases, an independent counsel is charged by the Special Division of the court on the application of the Attorney General to investigate accusations of complex white collar crimes involving conspiracies, thousands of documents, and powerful and influential persons, including the President. Rarely does an Assistant United States Attorney have such an assignment on her plate.

Comparable white collar crime cases do arise, however, at the Justice Department. These are usually assigned to a special task force. The challenges faced by these Justice Department task forces are similar to those of an independent counsel, with the exception that an independent counsel’s investigation is more difficult because it involves allegations against the President, Vice President or senior officials. Consequently, it is to those task force cases that the work of an independent counsel should be compared. An example is the Justice Department task force investigating alleged illegal campaign funding practices in the Presidential elections of 1996.

Such a comparison shows that the Justice Department task forces investigating complex white collar or organized crime cases take as much time and spend as much money as any independent counsel.27 Also, these Justice Department investigations are frequently expanded beyond their original scope. And like independent counsel, these Justice Department investigations frequently exert their power and authority on individuals-sometimes collateral to the principal targets-in order to “turn” them as government witnesses. Critics have claimed that this practice is unique to independent counsel, but this is not so.

HII. A CASE STUDY: THE DEFAMATION OF IRAN-CONTRA INDEPENDENT COUNSEL LAWRENCE WALSH28

The strategy of attacking independent counsel and the statute authorizing them originated as a response to the Iran-Contra investigation by independent counsel Lawrence Walsh. Walsh could not have anticipated this development at the outset of his investigation. He was appointed independent counsel in December 1986 at the specific request of President Reagan and Attorney General Edwin Meese.29 His appointment was broadly welcomed and applauded, with high expectations for a professional and objective investigation. Why then, over six years later, did his tenure end so miserably (at least from the public’s standpoint), leading even to the lapsing of the independent counsel statute itself?

Prior to Walsh’s investigation, there was little need for an attack strategy, since most of the early independent counsel concluded their work by announcing there was no basis for prosecution.30 But Walsh had developed evidence of a major conspiracy involving important aides to Presidents Reagan and Bush. He had also found evidence of other federal crimes by persons who appeared to be carrying out the policies of the Reagan and Bush administrations.

Walsh’s threat produced an avalanche of bitter criticism from the White House, Republican Members of Congress, Walsh’s targets and their counsel. This criticism weakened Walsh’s investigation and tainted his reputation, even though Walsh himself was a former judge and past president of the American Bar Association. The attacks also fueled efforts by the Republican minority in 1992 to kill the re-authorization of the independent counsel statute. The Republicans were joined in this effort by Democrats who had begun to believe the criticism of the statute.

Walsh’s Final Report31 (“Final Report” or “Report”) shows this criticism to be unfair and inaccurate. The Final Report is a thorough accounting of an exhaustive, professionally conducted investigation that successfully uncovered, to the extent possible, the full story of the Iran-Contra scandal in the Reagan Administration. It demonstrates that Walsh’s office secured evidence against the principal offenders that was sufficient to convict them. Walsh’s accomplishments become even more impressive when considered against the extraordinary obstacles and obstructions, many from the Administration itself, that were placed in his way.

The Final Report, however, hardly created a ripple of favorable public opinion or acknowledgment when it was publicly released on January 19, 1994. This is hard to understand. Much was riding on this report. It was Walsh’s chance finally to tell his story. He had been publicly criticized and vilified by President Bush, Justice Department officials, Republican congressional leaders, defense lawyers and conservative newspaper columnists as an irresponsible persecutor. Even less-biased commentators complained that Walsh had kept the investigation going too long (over six years), had spent too much money (over $37 million) and, unlike the Attorney General, had been accountable to no one.32

This criticism was based not on any failure by Walsh to fulfill the mandate given to him by the Special Division of the court. Rather, the conduct and accomplishments of Walsh and his staff in the OIC had been grossly and unfairly distorted and misrepresented. Hence, the question I raised at the beginning of this case study: Why was this Final Report not fully aired by the Congress and not widely communicated and explained to the American people? For I believe, if it had been, the public perception of Walsh’s performance as independent counsel would have been quite different.

The answer may lie in the success of the campaign to demonize Walsh. By the time of his Final Report, Walsh had become so unpopular and discredited that even supportive members of Congress wished to avoid him and the Report. Likewise, the print and broadcast media had become disenchanted with Walsh, mostly because of the torrent of criticism that they had reported and partly believed. Therefore, with some editorial exceptions, they were disinclined to give much space or analysis to his Report. It had become tainted. This is shameful, because I believe that the Final Report would convince a fair and objective reader that the destructive attacks on Walsh were unsupported and false.

No one should have expected that this three-volume Report would be seen by more than a handful of citizens, let alone be read by a significant number. That is why it was so important for journalists to educate the public about Walsh’s accounting in his Final Report. Congress had abdicated its educational function; journalists also failed in their role, which they often tout, of informing and educating the public.

A fair question is how can Walsh’s Final Report be a credible response to his critics, since, at best, it must be self-serving? His supporters might wish that, to some extent, it were. They were frustrated when Walsh steadfastly refused to answer his critics during his investigation. At last, in his Report, his supporters hoped, he would do so with a vengeance. To the contrary, Walsh and his staff maintain a professional stance in the Report-to a fault. With the exception of the catchy headings, which appear to be an afterthought, the Report is tediously factual, written with no attempt to dramatize, or even to interest, and clearly with no overt design to defend Walsh against the attacks made against him. However, it is essentially this dry recitation-of the conduct of the investigation, the uncovering of the incriminating facts, the handling of the prosecutions and the crippling obstructions and obstacles Walsh encountered-that is so compelling. The Final Report describes an internally persuasive story of professional prosecution that is incompatible with the behavior and motives ascribed to Walsh.

As stated above, the criticism most widely believed and repeated most often about the statute itself is that it gives the independent counsel broad prosecutorial powers, without accountability, and with no restraints of time or financial resources, in a narrowly assigned area of offenses. Critics claimed that this combination of power and lack of restraints permitted the independent counsel to pursue targets unendingly, primarily for petty crimes, until the targets pleaded guilty, were indicted, or their reputations were destroyed. The principal attack on Walsh is that, as independent counsel, he transformed these fears into reality.

This case study will focus on the validity of the complaints against Walsh’s conduct as independent counsel and place them within the context of Walsh’s account in the Final Report. It considers the mandate given to Walsh, initial hurdles faced by his investigation, and the unique problems posed by congressional grants of immunity. Finally, it addresses specific accusations that have been directed at the Walsh investigation.

A. WALSH’S MANDATE

Before addressing the complaints, it is essential to examine the mandate the Special Division of the U.S. Court of Appeals gave Walsh. In summary, it directed the independent counsel to investigate:

* military arms, materials or funds sold, shipped or transferred to Iran or its representatives since 1984;

* military arms, materials or funds, sold, shipped or transferred to any government, entity or person, or purporting to act as an intermediary related to the transactions with Iran;

* the financing or funding of such activity relating to Iran;

* diversion of proceeds from any of these transactions to or for any person, organization, foreign government, or any faction or body of insurgents, such as in, but not limited to Nicaragua; and

* provision or coordination of support for military insurgents in armed conflict with the government of Nicaragua since 1984.33

Thus, by its own terms, Walsh’s mandate was an open ended command to Walsh to investigate the entire Iran-Contra affair.

B. INITIAL HURDLES

Awesome as this task was, Walsh’s mandate was even more complex and difficult because the obvious targets were or had been federal government officials exercising power and influence ranging in degree from the highest in the land to, at least, very substantial. Moreover, much of the evidence Walsh needed to obtain was primarily in the possession or under the control of federal officials or agencies decidedly unsympathetic to Walsh’s assignment. (These facts, alone, make it unreasonable, if not impossible, to compare Walsh’s responsibilities with those of most Justice Department prosecutors.)

Even so, the Final Report reveals that at the beginning Walsh aimed to expedite his investigation and make decisions on major indictments by the fall of 1987.34 He did not plan to investigate or prosecute with a broad brush, but only accepted those investigative actions presented by the Justice Department that held a significant possibility of misconduct by government officials. He soon found, however, that the size of his original staff was inadequate, that witnesses were less cooperative than expected, and that necessary documentary evidence was not as forthcoming from relevant federal agencies as he had hoped. More time was lost, the Final Report reveals, when Walsh unsuccessfully sought to interview Israeli nationals. Walsh was blocked not only by Israel, but by an agreement between Israel and the Select Iran-Contra Committees of Congress, about which Walsh had not been consulted.35

To prove the accusation that there had been a diversion of funds in the Iran-Contra matter required access by the OIC to Swiss bank financial records, access that was initially denied. The Final Report states that it took a full year for the OIC to obtain these records; the OIC only succeeded after lengthy negotiations with Switzerland and litigation against the bank account’s owner, an alleged Iran-Contra conspirator.36

C. CONGRESSIONAL INVESTIGATION AND GRANTS OF IMMUNITY

In addition to these investigative hurdles, Walsh faced the formidable threat to his ability to obtain and use evidence created by the concurrent investigation and televised hearings of the Congressional Select Committees on Iran-Contra. The Iran-Contra Committees rebuffed Walsh’s efforts to persuade them not to grant immunity to his principal targets, Oliver North, John Poindexter and Albert Hakim. But the Committees and Walsh agreed to a compromise whereby the timing for immunity grants was set to permit Walsh to insulate the testimony these targets were to give to the grand jury prior to their public appearance before the Committees.

There is no doubt that this conflict between the congressional function and the prosecutorial function caused Walsh much delay and expense. In his Report, Walsh recognizes that Congress, under the Constitution, has the final say in this matter.37 But as a matter of policy, the question of whether the Congress or the independent counsel had the better argument on the grants of immunity is not an easy one.

The Senate Watergate Committee faced the same problem when Watergate Special Prosecutor Cox urged the Committee not to give immunity to John Dean and Jeb Magruder, key targets of the Cox investigation. Like the IranContra Committees, the Senate Watergate Committee turned down Cox. It was Chairman Sam Ervin’s view that, in light of the Watergate crisis facing the nation, including the possible involvement of the President, the full story should be quickly communicated to the public on television, even though as a consequence some individuals might avoid conviction and prison. As the former Chief Counsel of the Senate Watergate Committee and a participant in the Committee’s decision to go ahead with the grants of immunity, I still believe we made the right decision. However, I am much less sure of the justification to grant immunity to North, Poindexter and Hakim. In brief, I believe that the Iran-Contra Committees, particularly in North’s case, so handicapped themselves by the compromises they made to obtain North’s immunized testimony, that they accomplished little more than exhibiting a notorious witness on television, without fulfilling their congressional responsibility to inform the public. Walsh makes a similar criticism of the Committees. He also offers some needed and workable guidelines for granting immunity to such witnesses by congressional committees in the future.

The congressional immunity decisions forced Walsh to double the size of his staff and halt other areas of investigation; to hurriedly spend considerable time gathering as much evidence as possible, in the form of documents and witness testimony; and to follow meticulous procedures to seal this evidence prior to the presentation of the immunized testimony on television. All this was necessary in order for Walsh to show the trial court that his office had obtained this evidence independently, without recourse to the congressionally-immunized testimony. Although this effort again took substantial time and involved heavy financial costs-in part explaining and further justifying the time and money it took Walsh to complete his work-ultimately it proved futile for Walsh. The U.S. Court of Appeals for the District of Columbia Circuit reversed the convictions Walsh obtained against North and Poindexter on the ground that, despite the independent counsel’s precautions, congressionally-immunized testimony may have tainted the convictions.38

The reversals of these convictions caused even greater delay because of the appeal process and time taken to consider seeking Supreme Court review.39 This setback played another important role in fueling the attacks against Walsh. It added to an earlier blow suffered by Walsh when he was compelled to drop the major cornerstone of his prosecution strategy, the operational conspiracy count against North, Poindexter, Hakim and Richard Secord.40 This count of the indictment went to the heart of the Iran-Contra offenses and the mandate given Walsh by the Special Division of the U.S. Court of Appeals. With the convictions of North and Poindexter reversed and the major conspiracy count dismissed, Walsh’s enemies were able to expand their attacks. They accused him of incompetence and claimed he had wasted taxpayers’ time and money to convict on petty offenses a handful of officials who had served their country well.

Walsh’s Report, however, reveals a different and convincing account of these defeats. The convictions of North and Poindexter by juries were successes for Walsh, rather than failures-and impressive successes at that. The Final Report details at length the handicaps Walsh faced as a result of the publicly televised Iran-Contra hearings and the congressional immunity given to North, Poindexter and Hakim.41 His staff’s ability to build cases for the jury despite these handicaps is a testament to their skill and commitment. The reversals of these convictions by the Court of Appeals were no reflection against Walsh. The reversals did not challenge the sufficiency of Walsh’s evidence, but were based solely on the impact of the congressional immunity grants. As such, the reversals reflect not on Walsh’s conduct as a prosecutor, but on the decision of the congressional committees to grant immunity.

Also, with regard to Walsh’s having to drop the important conspiracy count, the Final Report credibly shows, without overtly making the accusation, that Walsh was booby trapped by the Attorney General and the defendants. There appears to be no doubt from the Report’s presentation of the evidence collected by the OIC, that Walsh would have been able to prove the charge of conspiracy to the jury and obtain sustainable convictions against North, Poindexter, Hakim and Secord.42 That is, he would have done so if the administration of justice had not been manipulated.

Before trial, the defendants insisted to the court that they needed to obtain from the government certain classified documents in order to defend themselves against the conspiracy count. The Attorney General has authority to release these documents by virtue of a special statute passed by Congress providing for the release of classified documents when needed by the defense in a criminal case.43 By giving this discretion to the Attorney General, Congress manifested its clear intent to allow the federal prosecutor in a serious criminal case to defeat an effort by the defendant to frustrate the prosecution by a demand for classified documents (called “gray mailing”) when the Attorney General decides, on balance, that prosecuting the defendant is more important than withholding the documents. Walsh applied to the Attorney General to exercise his discretion in favor of the prosecution. His request was appropriate, particularly because he was able to show that the content of the classified documents was already publicly known. Amazingly, the Attorney General refused to order the documents released.44 Walsh had no alternative but to drop the conspiracy count on the ground that the government (the independent counsel) cannot, on the one hand, be permitted to prosecute defendants for crime, while the same government (the Attorney General), on the other hand, refuses to provide the defendants with evidence they claim is necessary in order to defend themselves fairly. Once again, a significant obstruction caused considerable delay and expense to Walsh. Even more troubling, the obstruction was caused by the Justice Department, which had already admitted its conflicted position by requesting the appointment of an independent counsel.

Another indictment obtained by Walsh against the former CIA Costa Rica station chief had to be dismissed for the same reason. Despite favorable rulings for Walsh for the introduction in evidence of the classified documents involved by the U.S. District Court and the U.S. Court of Appeals, the Attorney General refused to release the documents.45 The unsuccessful effort by Walsh to get to trial in this case consumed a full year, including appeals, with the dismissal occurring in October 1990.

Nevertheless, Walsh states in his Report that he still hoped to complete the investigation six months after Poindexter’s trial, which ended in April 1990. He explains, however, that it took him three more years “prolonged by the discovery of previously withheld notes and other documents by high-ranking Reagan officials, and the need to requestion key figures based on new information.”46 The Final Report demonstrates that Walsh had reason to believe that this prolongation for three more years; with its attendant high monetary cost, resulted from a sustained strategy of lies, obstruction of justice, and cover-up on the part of top members of the administration. Apparently, no amount of dedication and legal and investigative ability on the part of Walsh and his staff could save them from having the rug continuously being pulled from under them.

In my opinion, these facts provide ample justification for the time it took Walsh to complete his work and the funds expended. In Volume II of the Report, Walsh provides a financial accounting for the OIC investigation of Iran-Contra. Of the total $37,683,806 spent, almost $21,000,000 involved personnel compensation and benefits.47 Taking into account the broad mandate, the number of experienced attorneys and administrative staff Walsh needed, and the extended period of time the investigation took (for reasons already stated and others I have not had space to include), this amount for compensation and benefits is not unreasonable.

The remainder of Walsh’s expenditures were typical costs of administering a major national and international investigation, including: travel ($12,110,994); rent ($9,924,315) (including communications and equipment); contractual services ($2,924,481); supplies and materials ($651,206); capital assets ($1,243,506) (much of which was transferred to other independent counsel offices or to the Justice Department); and administrative services ($862,102).48 Significantly, Walsh’s Report points out that his office successfully recovered approximately $11,000,000 from the Swiss bank accounts of Iran-Contra participants,49 money that should rightly serve to offset the costs of the investigation.

D. SPECIFIC ACCUSATIONS

Finally, I want to review briefly three subjects that have produced some of the most bitter accusations against Walsh: the Weinberger investigation and indictment, Walsh’s characterizations of unindicted individuals, and President Bush’s pardon. With regard to Walsh’s investigation and indictment of former Secretary of Defense Casper Weinberger, I believe the issue is not whether Weinberger is guilty of the charges brought against him, but whether Walsh’s discretionary decision to bring those charges is reasonably supported by the evidence, and whether that evidence would have been sufficient to be submitted to a jury. Walsh charged Weinberger with making false statements to Congress and the OIC regarding the existence of notes taken by him relevant to the investigation and his knowledge of certain Iran-Contra weapons and funding transactions.50 Walsh made Weinberger a target after discovering thousands of pages of diary and meeting notes relating to the Reagan Administration’s initiative to sell weapons to Iran. Walsh claimed Weinberger had withheld these notes from the Congress and had denied making them when interviewed by the FBI and members of Walsh’s staff.51

Weinberger claims Walsh acted irresponsibly when he indicted him. First, Weinberger asserts that he had vigorously opposed the Iran arms sales initiative.52 Second, Weinberger claims that he had fully explained to Walsh and his staff that he could not recall the information contained in the notes when he was questioned, and that he had not withheld the notes because they were always available in the Library of Congress.53 This, of course, is Weinberger’s defense, and if it had been presented to a jury, it might have prevailed. However, the discovery by Walsh of the extraordinary quantity of Weinberger notes (which Walsh says FBI interview records show Weinberger had denied existed), together with the content of the notes (many of which Walsh reproduces in the Report), surely justified Walsh’s decision to present this evidence to the grand jury for an indictment. He would have been derelict if had he not done so.

Walsh is also strongly criticized for including in his Report prejudicial characterizations of the conduct of persons against whom he did not seek indictments. On the complaint of a number of such individuals who sought to have the Special Division of the court not make public the Final Report for this reason, the Special Division acknowledged that the Final Report was “rife” with such accusations against unindicted persons.54 However, while refusing to accept Walsh’s argument that the current provisions of the statute on final reporting required Walsh to make such accusations in his Final Report, the Special Division decided to release the Report publicly because it was in the public’s interest to have all of the facts, and because the complainants had filed responses to these accusations that would also be publicly released as an appendix to the Report.55

This kind of criticism goes to the heart of the complaints many lawyers have made against the requirement in the legislation that the independent counsel make a final report which can be, at the decision of the court, released to the public. It permits an independent counsel to accuse individuals of wrongdoing without obtaining indictments against them, thereby denying the accused a judicial forum to defend against the published, but unfiled and unproven, charges. Although the statute permits such persons to file responses to be printed in the Report, this procedure does not provide the same safeguards or relief as an open trial.

Because of these complaints, when Congress enacted the 1994 Act, it amended the Final Report section by removing the language calling for an explanation of why an investigation did not lead to an indictment.56 Nevertheless, the new provision does not prohibit an independent counsel from making similar allegations against persons the independent counsel chose not to indict.57 Justice Department prosecutors do not comment publicly on evidence obtained against individuals whom the prosecutors decide not to indict. The same restriction should be imposed on independent counsel. The initial conclusion by Congress that such reporting would make the independent counsel more accountable is clearly outweighed by the essential unfairness of the practice. Moreover, the practice is inconsistent with Justice Department policy.

Finally, a brief comment on Bush’s pardon of Weinberger, Elliott Abrams, Alan Fiers, Clair George, Robert McFarlane, and Duane Clarridge. Walsh challenges the propriety of these pardons, while also recognizing the President’s constitutional authority to grant them. At the heart of Bush’s pardon statement is his claim that no real crimes were committed and that Walsh had wrongly sought to criminalize what were policy differences.58 I believe Walsh’s Report and the evidence described therein demonstrate that President Bush was completely wrong in making this claim. Indeed, Bush’s action cheapened the pardon power using it as little more than a sham to protect those who had demonstrated loyalty to the White House in the Iran-Contra scandal. Indeed, the presidential pardons and successful campaign to discredit Walsh may have been the final acts of cover up of the Iran-Contra affair.

CONCLUSION

In the Federalist No. 51, James Madison wrote that “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”59 But since men are not angels and angels do not govern men, Madison continued, “experience has taught mankind the necessity of auxiliary precautions.”60 The independent counsel legislation was enacted by Congress as such an auxiliary precaution against the recurrence of a “Saturday Night Massacre.” Madison would not be surprised that this legislation does not work perfectly; since it is the product of men and women-not angels. Yet it is still the best alternative to resolve the serious conflict created when the Attorney General receives specific and credible criminal charges against the President or other high executive branch officials. The implementation of the statute since 1978 has demonstrated that the American people have accepted the prosecutive judgments of independent counsel in such cases, where they would not have if they were made by the Attorney General.

If the present public dissatisfaction with the independent counsel statute, widely expressed by lay persons and legal experts alike, is based on the crediting of the frequent vitriolic attacks on individual independent counsel reported by the news media, it is misplaced and misinformed. Such attacks are basically unreliable because they cannot be rooted in knowledge of the actual conduct of a particular independent counsel and her staff, who are under the restrictions of grand jury secrecy and professional responsibility. Instead, these attacks are usually fueled by defense strategy to vilify the prosecutor for the purpose of weakening her investigation. Journalists, acting as conduits, and not the filters their ethics require them to be, routinely report these attacks, lending credibility to them and thus shaping the opinions and perceptions of the public. As a result, the public perception is based on a myth, which, unfortunately, may contaminate the reality in the office of the independent counsel through the chilling impact on professional prosecutors by constant, and from their point of view, unearned public condemnation.

An illustration may be useful to put in context the publicly reported disapproval of the independent counsel statute. For the purpose of this illustration, I will switch the roles of Archibald Cox and Lawrence Walsh. Assume that Walsh, not Cox, was picked by Attorney General Elliot Richardson to be the Watergate Special Prosecutor. I submit that Walsh would have performed his investigative responsibilities similarly to the way Cox did, and he would have reached the same confrontation with President Nixon. He would have been fired and gone down in history as a great American hero who courageously stood up for justice and integrity. On the other hand, assume that Cox had been selected by the Special Division of the court to be the independent counsel in the Iran-Contra matter. I submit that Cox would have performed his investigative and prosecution responsibilities similarly to the way Walsh did. Like Walsh, he would have been stonewalled and undercut by the President and the Attorney General, undermined by the Congress’s misuse of its immunity power, and exposed to vicious attacks reported in newspapers and on television made by his opponents and others too ready to believe what they read or heard. Thus, in my illustration, Cox, instead of being revered as an American hero, would have been remembered as a failure and an abuser of power. Public disapproval of the independent counsel statute is not the fault of the statute or any particular independent counsel. Instead, it is the product of marketing-an image woven largely of public relations and reinforced by the press.

1. See The Watergate Tapes: What has Happened, WASH. POST, Oct. 22, 1973, at A18. 2. See Lawrence Meyer, Principal Offices Secretly Bugged Since Spring, 1971, WASH. POST, July 17, 1973, at Al.

3. See William Chapman, Richardson, Ruckelhouse out in Dispute with Nixon on Tapes, WASH. POST, Oct. 21, 1973, at Al. 4. See id.

5. See Solicitor General Bork Sees Eye to Eye with the President, WASH. POST, Oct. 22, 1973, at A18.

6. U.S. CONST. art. II, 3.

7. See Carroll Kilpatrick, President Picks Sen. Saxbe as Attorney General, Jaworski Chosen as Prosecutor, WASH. POST, Nov. 2, 1973, at Al.

8. Indeed, Independent Counsel Walsh’s Iran-Contra investigation and prosecution were terminated when President Bush, a subject of the investigation, pardoned most of his indicted or convicted aides of all criminal charges related to the Iran-Contra investigation. See Proclamation No. 6518, 57 Fed. Reg. 62,145 (1992). Bush issued the pardons during the lame duck period after he had been defeated in his bid for reelection. Even though President Bush’s action was an egregious interference with a criminal investigation analogous to Nixon’s firing of Cox, there was hardly a ripple of public or media protest. 9. See S. REP. No. 93-981, at 96 (1974). The recommendation stated in pertinent part:

The Committee recommends that Congress enact legislation to establish a permanent Office of Public Attorney which would have jurisdiction to prosecute criminal cases in which there is a real or apparent conflict of interest within the executive branch. . . The Public Attorney would be appointed for a fixed term (e.g., 5 years), be subject to Senate confirmation and be chosen by members of the judicial branch to ensure his independence from executive control or influence. Id.

10. Ethics in Government Act of 1978, Pub. L. No. 95-521, 601(a), 92 Stat. 1824, 1869 (codified as amended at 28 U.S.C. 593). 11. Id. at 598.

12. Ethics in Government Act Amendments of 1982, Pub. L. No. 97-09, 96 Stat. 2089 (1983) (codified as amended at 28 U.S.C. 591-99); Independent Counsel Reauthorization Act of 1987, Pub. L. No. 100-191, 101 Stat. 1293 (1987).

13. Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, 108 Stat. 732 (1994) (codified at 28 U.S.C. 591-99).

14. Recently, a revered hero of Watergate, former Attorney General Elliot Richardson, spoke at a forum on the independent counsel legislation and criticized its provisions for establishing an unaccountable prosecutor who has unlimited money and time to hunt down an executive branch official. This amounted to a repetition of the typical partisan or media attack. I have no doubt that this icon actually and honestly believes what he said about the independent counsel. But he possessed no particular evidence to support his views, other than the negative reputation evidence such uninformed criticism has produced. Elliot Richardson, Address at the New York Bar Association Symposium on the Independent Counsel Statute (Dec. 9, 1997). 15. See 28 U.S.C. 594(a) (1994).

16. See, e.g., Julie R. O’Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CraM. L. REv. 495 (1996); Norman Ornstein, This Law is a Taking, WASH. POST, Dec. 14, 1997, at C7.

17. See 28 U.S.C. 595(a)(1). 18. See 28 U.S.C. 594(f). 19. See O’Sullivan, supra note 16, at 495. 20. See 28 U.S.C. 596(a)(1).

21. Critics have even charged that the legislation allows an independent counsel to indict a person-far removed from the high executive branch official under investigation-without substantial evidence for the purpose of coercing the person to become a government witness, or to ruin the person’s reputation. This same criticism has been levied at regular federal prosecutors. Neither the independent counsel legislation nor any other federal statute or rule permits such improper conduct. That it may occur at times only shows what is well known-that some officials with power abuse their power. Most prosecutors, however, including independent counsel, regard their ethical obligations seriously, and care too much about their professional reputations to engage in such tactics. Because of the temporary nature of an independent counsel position and the special segment of the bar from which such counsel are selected, these considerations probably weigh more heavily on independent counsel than on regular federal prosecutors.

22. See 28 U.S.C. 594(l)(1)(A)(iii). 23. See 28 U.S.C. 596(c)(2)(A). 24. See 28 U.S.C. 595(a)(2). 25. See 28 U.S.C. 594(1)(1)(C).

26. See 28 U.S.C. 5%(b)(2).

27. In its report accompanying The Independent Counsel Reauthorization Act of 1993, the Senate Committee on Governmental Affairs observed:

The American Bar Association and Common Cause testified that the Iran-Contra matter is an unusually complex and difficult prosecution, complex prosecutions often take years to resolve, and the Iran-Contra case is lasting no longer than such comparable prosecutions as Ill Wind [Justice Department Task Force] which has also continued for more than six years. S. REP. No. 103-101, at 762 (1993).

28. This analysis is based, in part, on my earlier review of Walsh’s three-volume Final Report. See Samuel Dash, Final Report of the Independent Counsel for Iran/Contra Matters, FOREIGN POL’Y., Sept. 22, 1994, at 173 (book review).

29. See Howard Kurtz & George Lardner, Jr., Iran Inquiry Counsel Selected; Broad Mandate Granted to Oklahoma City Attorney Walsh, WASH. POST, Dec. 20, 1986, at Al. 30. See S. REP. No. 103-101, at 12-14 (1993). The fact that so many independent counsel investigations ended without a criminal indictment substantiates the underlying purpose of the statute and the professional role of the prosecutor. Under the statute, referral by the Attorney General to the Special Division of the Court for appointment of an independent counsel does not mean any crime has been committed-but only that an independent lawyer should investigate whether it had. 31. LAWRENCE E. WALSH, FINAL REPORT OF THE INDEPENDENT COUNSEL FOR IRAN/CONTRA MATTERS (1993) [hereinafter FINAL REPORT].

32. See, e.g., Yes to Independent Counsels, WASH. POST, Nov. 29, 1993, at A18 (“Mr. Walsh may indeed have taken his difficult write to its outer bound.”).

33. See I FINAL REPORT, supra note 31, at xiii. 34. See id. at 26. 35. See id. at 30n.14. 36. See id. at 31.

37. See id. at 32.

38. See United States v. North, 920 F.2d 940, 942-46 (D.C. Cir. 1990). Despite the fact that Walsh was able to argue that he successfully had isolated his prosecutors from the immunized testimony, the majority of the panel held that further steps were necessary to assure that jurors and witnesses had not had access to the immunized testimony. Id.

39. On May 28, 1991, the Supreme Court denied certiorari. Id., cert. denied sub nom. Poindexter v. United States, 490 U.S. 1004 (1991).

40. See United States v. Poindexter, 719 F. Supp. 6, 10-12 (D.D.C. 1989). 41. See I FINAL REPORT, supra note 31, Part II, at 36-38. 42. See Ill FINAL REPORT, supra note 31, at 55-75.

43. Classified Information Procedures Act (CIPA), 18 U.S.C. app. 6 (1994). 44. See I FINAL REPORT, supra note 31, at 55.

45. See United States v. Fernandez, 913 E2d 148, 154-62 (4th Cir. 1990) (holding that District Court did not abuse its discretion in ruling certain classified evidence to be admissible and rejecting government’s proposals for substantiated versions of the evidence); see I FINAL REPORT, supra note 31, at 288-91.

46. See I FINAL REPORT, supra note 31, at 39.

47. See II FINAL REPORT, supra note 31, at 729.

48. See id.

49. See id.,at 728 50. See id. at 47. 51. See id.

52. See III. FINAL REPORT, supra note 31, at 955 app. 53. See id. at 966-67 app.

54. See In re North, 16 F3d 1234, 1237-38 (1994). 55. See III FINAL REPORT, supra note 31, at Col. III, app. 56. 28 U.S.C. 594(h)(1)(B), amended by Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, 3(o), 108 Stat. 732, 736 (1994).

57. See 28 U.S.C. 594(h)(1)(B) (1994), which does not require or prohibit the inclusion in the

Final Report of such “reasons for not prosecuting,” as did the previous statute. See 28 U.S.C. 594(h)(1)(B) (1988).

58. See Proclamation No. 6518, 57 Fed. Reg. 62,145, 62,145 (1992) (“The prosecution of the individuals I am performing represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences.”). 59. THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961). 60. Id.

* Professor of Law and Director, Institute on Criminal Law and Procedure, Georgetown University Law Center; Former District Attorney of Philadelphia; Former Chief Counsel of Senate Watergate Committee; Ethics Counsel to Independent Counsel Kenneth Starr. I wish to thank Georgetown Law Journal editor David Saybolt for his excellent and insightful edit of my draft article.

Copyright Georgetown University Law Center Jul 1998

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