The Attorney General and the independent counsel statute

Damned if she does and damned if she doesn’t: The Attorney General and the independent counsel statute

Harriger, Katy J

KATY J. HARRIGER*

INTRODUCTION

Attorney General Janet Reno’s controversial decision not to seek appointment of an independent counsel to investigate the campaign finance scandal1 highlights the enduring tension between politics and the law, and particularly, the impact of that tension on the Attorney General and the Department of Justice. This tension was at the heart of such historically significant national political scandals as Teapot Dome and Watergate, and has been well documented by scholars of the federal legal process.2 It was this problem that Congress sought to resolve when it provided for the judicial appointment of an independent counsel under the Ethics in Government Act (the “Ethics Act” or the “Act”) of 1978,3 and it is this problem that clouds our ability to discern clearly the propriety of Attorney General Reno’s interpretation of the Act.

In this article, I use this longstanding tension between politics and law to frame a discussion of the Attorney General’s discretion to trigger the appointment of an Ethics Act prosecutor. After considering in more detail the nature and political implications of this discretion, I discuss how Congress sought to address problems resulting from this discretion in the 1978 legislation. I then explore problems with the Act that have been revealed through its implementation and discuss Congress’s largely unsuccessful attempts to remedy these problems by periodically amending the statute. Finally, I consider the policy options available to remedy these problems and the practical implications for governance inherent in each of these choices. I conclude that Congress should seek to limit the number of independent counsel appointments by expanding the Attorney General’s discretion to trigger-or not to trigger-the Act.

I. LAW, POLITICS, AND THE ATTORNEY GENERAL’S DISCRETION

Whether or not a tension exists between law and politics depends upon how we define these two terms. If we understand law to be “authoritative statements that have the weight of governmental power behind them,”4 and politics to be “[t]he process by which a society makes authoritative allocations of values,”5 then the two notions are complementary. In the United States, for example, we might simply say that our law is the product of a process by which constitutionally authorized decisionmakers seek to reflect the values of the communities they represent. In this broad sense, there is a desirable connection between law and politics, because law is the legitimate product of a democratic process. In a country that calls itself a democracy, a separation between law and politics would be an anathema.

The tension between the two concepts becomes more apparent, and thus problematic, as we move from broad systemic assumptions to the practice of law and politics in everyday life. In this context, popular notions of law and politics set the two against each other: “Law is often thought of as being the opposite of politics. Law seems dignified whereas politics seems seamy. Law appears predictable whereas politics seems typified by the unexpected. Law seems to search for justice while politics seems to seek the expedient.”6 It is at this level that it is possible to imagine politics corrupting law when the two intersect-and it is at this level that questions raised about the Attorney General, the Department of Justice, and the independent counsel come into play.

The U.S. Attorney General performs multiple roles, some of which put her on the side of law and politics in their more positive connotations; and others of which, at the very least, open her to the criticism that she is susceptible to the seamier side of politics. On the positive side, she serves as the President’s delegate in the enforcement of the law, a fundamental constitutional responsibility of the executive branch.7 On the other hand, she must also be an advisor to the President on matters of legal policy, and there are often ideological and partisan differences between the executive and legislative branches over what legal policy should be. When such conflicts over policy have arisen, presidents have often expected attorneys general “not to say ‘no’ but to find a way to say ‘yes.'”8 In recent decades the inherent conflicts over legal policymaking have been heightened by the persistence of divided government and the subsequent increase in interbranch conflict.9 In addition, the impartiality of attorneys general as law enforcers has been called into question by the tendency of presidents to appoint close personal friends and political advisors to the position.10

Each of these roles-legal advisor, policy advisor, or personal confidante-is potentially problematic in a political sense because of the discretion available to the Attorney General in the interpretation and enforcement of the law. While some discretion in interpreting and applying the law is not only inevitable but desirable, our notion of the rule of law “requires faith in the notion that law can be objectively interpreted; and at some point, the exercise of discretion ceases to enjoy the color of law.”11 The fagade of the Department of Justice building captures this notion in the motto engraved upon it: “Where law ends tyranny begins.”

But the relationship between discretion and the abuse of law is not so simple. In his seminal work on the role of discretion in the administration of justice, Kenneth Culp Davis challenges the notion that tyranny is always the outcome when rules are not present. He argues that “[w]here law ends, discretion begins, and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness.”12 If we accept the premises that all law enforcement involves some degree of discretion, and that some discretion actually contributes to the ends of justice, then the problem becomes finding the appropriate methods for channeling that discretion in such a way that justice will more likely prevail over tyranny.13 This dilemma is not only at the heart of the current debate over the Attorney General’s role in the appointment of independent counsel, but has been present from the start.

The published guidelines for federal prosecutorial decisionmaking recognize the existence and importance of discretion, acknowledging that “the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law.”14 The Principles of Federal Prosecution suggest that the need for uniformity in the application of the law must be balanced with responsibly exercised discretion both in order to ensure fairness and to accommodate the differences among cases that arise under federal law.15

The courts have found that the Attorney General’s obligation to exercise prosecutorial discretion is a byproduct of the executive branch’s constitutional responsibility to faithfully execute the laws. The Supreme Court established early on that the Attorney General is “the hand of the President in taking care that the laws of the United States .. . be faithfully executed,” and is thus responsible for the direction and control of legal suits involving the interests of the United States.16 Federal courts have been very reluctant to force federal prosecutors to carry out certain functions of law enforcement, finding that the doctrine of separation of powers limits the ability of federal judges to interfere with executive discretion. In Milliken v. Stone,17 for example, a federal district court held that it was “without power to compel the prosecuting officers to enforce the penal laws, whatever the grounds of their failure may be. The remedy for inactivity of that kind is with the executive and ultimately with the people. st 18 A number of other decisions support the notions that federal prosecutors have wide discretion in deciding whether or not to initiate prosecution and that the separation of powers doctrine severely restricts the ability of federal courts to intervene in the exercise of executive discretion over law enforcement.19

These decisions do not mean that executive discretion in the enforcement of the laws is unlimited. Another federal district court held in 1972 that the Attorney General’s discretion is necessarily constrained by constitutional and statutory standards, and stated that “the doctrine of prosecutorial discretion has never insulated conduct from review on charges of bad faith, fraud, or illegality.”20 Legal scholars have also warned against an unrestrained view of executive discretion, noting the dangers inherent in such a concept,21 and the importance of recognizing Congress’s role in limiting discretion by means of statutory instructions.22

Although these constraints are important, the majority of cases support the proposition that attorneys general enjoy broad discretion in the enforcement of the laws. When the executive is called upon to investigate itself, the implications of this discretion for the potential conflict between law and politics are profound. Given the Attorney General’s inevitable, and often legitimate, exercise of discretion regarding the application of the criminal law, how can we be confident that this discretion will not be exercised to the advantage of her executive colleagues and, particularly, her boss? This age-old problem is reflected in the fact that “the Justice Department has been near the center of almost every major political scandal of the twentieth century.”23

II. ATTORNEY GENERAL DISCRETION AND THE SPECIAL PROSECUTOR PROVISIONS OF THE ETHICS IN GOVERNMENT ACT

The Watergate scandal made clear the potential for conflict of interest when the Department of Justice investigates members of the executive branch. Richard Nixon’s former Attorney General, John Mitchell, was deeply involved in the scandal; both he and his successor, Richard Kleindienst, had been forced to resign by the spring of 1973. The Department of Justice was criticized for failing to pursue the possibility of a conspiracy behind the break-in at the Democratic National Committee headquarters, and for reporting to the White House on developments in the investigation.24 Further, the dangers inherent in Presidential control over the prosecutor charged with investigating the case were made dramatically evident by the October 1973 firing of Watergate Special Prosecutor Archibald Cox.25 Within days of that event, Congress began considering ways to insulate special prosecutors from executive control.26

Congress had a series of interrelated policy goals as it constructed a legislative response to the problems made evident in the firing of Cox.27 First, Congress sought to reassure the public that government scandals could be investigated impartially. The public had responded with outrage to Cox’s firing, and the Watergate scandal had a serious impact on public confidence in government more generally.28 Second, Congress sought to eliminate the potential conflict of interest of attorneys general by limiting their ability to control the investigation of executive branch colleagues. Third, it sought to ensure independence by providing that the special prosecutors responsible for investigating executive misconduct would be appointed by judges. Finally, it sought to construct this independent arrangement in a manner that would withstand constitutional challenge.

It was this concern about constitutionality that ultimately shaped the outcome of Congress’s five-year effort to respond to the events of Watergate. While supporters of an independent arrangement were convinced that the executive conflict of interest and public confidence problems could not be solved without judicial appointment of special prosecutors, it was also clear that removing or limiting executive control over law enforcement was at the very least constitutionally problematic. In addition, there were real concerns about the danger of creating a prosecutor that was too independent or establishing an arrangement that was unfair to executive branch targets.29

The key argument supporting the constitutionality of the judicial appointment of special prosecutors rested on the Appointments Clause of Article II of the U.S. Constitution. This clause grants Congress the power to vest appointment of “such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”30 More broadly, proponents focused on Congress’s expansive legislative powers, noting that the inherent conflict of interest present when the executive investigates itself made it “necessary and proper”31 to vest appointment of the special prosecutor, an “inferior Officer,” in the “Courts of Law.”32 This constitutional argument was buttressed by case law that without exception upheld congressional grants of appointment power to courts.33

Nonetheless, the executive’s exclusive control of law enforcement also has both a long tradition and constitutional foundations. Article II, Section 1 vests executive power in the President, and Section 3 requires him to “take Care that the Laws be faithfully executed.”34 Thus, opponents of a judicially appointed special prosecutor argued that law enforcement was an “inherently . . . executive function,” and that the President or his designate had sole constitutional authority to perform that function.35 This position was also supported by case law,36 although the Appointments Clause had prevailed in the one case involving a conflict between executive and Appointments Clause claims.37

In the end, Congress resolved this constitutional conflict by reaching a compromise between the two positions. The special prosecutor provisions38 of the Ethics in Government Act of 1978 divided control over the special prosecutor between the Attorney General and the judiciary. In recognition of the executive’s claims for control over law enforcement, the Attorney General was given the critical role of “triggering” the provisions. If the Department of Justice received specific allegations of criminal misconduct against highranking executive branch officials, it was required to begin a preliminary investigation into the charges.39 During the ninety days available for such an investigation, the compulsory process could not be used to obtain information.40 At the end of this limited investigation, the Attorney General was required to determine whether or not the allegations warranted further investigation or prosecution. If they did, the Attorney General submitted a request for the appointment of a special prosecutor to a special panel of circuit court judges.41 If they did not, a report was filed with the panel explaining the decision.42 The Attorney General’s decision to request an appointment was not reviewable.43

In recognition of the need for public confidence in and independence of the special prosecutor, the actual appointment was placed in the hands of a special judicial panel made up of three senior or retired circuit judges, appointed by the Chief Justice of the U.S. Supreme Court.44 The panel was to be responsible for selecting prosecutors, defining their jurisdiction, receiving reports from the Attorney General and the special prosecutor, and making decisions about whether or not to make the appointments and reports public.45 Although Congress gave the panel authority to appoint the special prosecutor, it gave the Attorney General the power of removal, subject to judicial review if the special prosecutor requested it.46

This compromise is at the root of the controversies that have swirled around the implementation of the provisions ever since their inception. For although the appointment of an independent counsel lies outside the executive branch, the decision about whether an appointment is necessary remains in the hands of the Department of Justice and the Attorney General. Although there are statutory guidelines that attempt to channel the discretion of the Attorney General in triggering the provisions, these guidelines have proven to be controversial in their own right. Attorneys general have been criticized not only for viewing their discretion as too limited under the Act, thus provoking appointments in cases that did not warrant such extreme measures, but also for viewing their discretion as too broad under the Act, thus preventing appointments when others deemed them appropriate. Attorney General Reno spoke for her predecessors as well as for herself when she said she was damned if she did and damned if she didn’t trigger the provisions.

III. THE LESSONS OF EXPERIENCE WITH THE SPECIAL PROSECUTOR PROVISIONS

The first two cases under the 1978 special prosecutor provisions prompted the criticism that the trigger for the Act limited the Attorney General’s discretion too much. The cases involved two Carter administration officials, Hamilton Jordan and Timothy Kraft, both of whom were investigated for alleged cocaine use. In neither case were the allegations of sufficient seriousness or credibility to warrant a U.S. Attorney in pursuing them had they been made against a regular citizen. Yet the Department of Justice believed that the language of the statute required the Attorney General to trigger the appointment of independent counsel: Kraft and Jordan were covered officials, and cocaine use was a federal crime.47 After relatively brief grand jury investigations, both special prosecutors concluded that there was insufficient evidence of criminal wrongdoing to warrant prosecution.48

During the first reauthorization hearings in 1981 and 1982, these two cases were exhibits A and B for the argument that the Attorney General needed more discretion to avoid triggering the Act.49 Moreover, the newly elected president, Ronald Reagan, and his Attorney General, William French Smith, were hostile to the Act and supportive of the notion of broad executive power in law enforcement.50 It is not surprising then that the first amendments to the special prosecutor provisions reflected this concern about executive discretion. The standard for triggering the provisions was changed to allow the Attorney General to consider the specificity of the allegations and the credibility of the persons making them.51 The restrictions on removal of the special prosecutor were lowered from “extraordinary impropriety” to “good cause.”52 Special prosecutors were urged to follow Department of Justice prosecutorial guidelines “except where not possible.”53 Congress also demonstrated more sympathy for the targets of investigations, providing for the reimbursement of “reasonable” attorneys fees to targets who were not indicted.54

Ironically, several events that occurred after these changes were enacted and before the next round of reauthorization hearings in 1987 suggested that the Attorney General’s discretion under the independent counsel provisions was too broad. Among these events were a number of refusals to seek appointment of independent counsel, several circuit court opinions interpreting the Attorney General’s discretion broadly, and a political climate that encouraged a far more combative relationship between Congress and the Department of Justice. The combination of these factors led Congress to revise the statute yet again in 1987-this time in an attempt to limit, rather than expand, the Attorney General’s discretion.

First, the two independent counsel investigations of Edwin Meese-one during his nomination battle to become Attorney General and the other during his tenure in that office55-heightened the level of congressional and media distrust of the Department of Justice. In a 1987 subcommittee investigation into the Department of Justice’s implementation of the provisions, congressional investigators uncovered a pattern of interpretations of the statute by Meese that they considered quite troublesome. The Senate subcommittee report of this investigation accused the Justice Department of reinterpreting the Act by conducting pre-preliminary investigations outside of the statutory time limits, thus avoiding the reporting requirements attached to preliminary investigations.56 The report also accused the Justice Department of using standards for disposing of cases that were not authorized under the statute, including “no criminal mind” and “no reasonable prospect of conviction.”57 The subcommittee’s staff found that the Justice Department had handled thirty-six cases implicating covered officials between 1982 and 1987. In only eleven of those cases had the Department conducted full-blown preliminary investigations under the Act. Independent counsel were appointed in eight of those eleven cases.58

Combined with this evidence of what seemed to many an overly generous interpretation of the Attorney General’s discretion under the Act were three federal circuit court decisions that also interpreted the Attorney General’s discretion in triggering the Act to be broad and unreviewable. In Nathan v. Smith,59 the District of Columbia Circuit overturned a district court ruling ordering Attorney General William French Smith to conduct a preliminary investigation into alleged FBI complicity in the shooting of Communist Workers Party demonstrators by the Ku Klux Klan in Greensboro, North Carolina.60 In three separate opinions, the D.C. Circuit judges rejected the lower court’s argument that the statute created a private right of action to force the Attorney General to trigger the Act. In the strongest statement supporting executive discretion, Judge Robert Bork argued that “[g]iven the area of constitutional doctrine and tradition in which this case falls, . . . we may not lightly impute to Congress an intent to remove prosecutorial discretion from the Executive and place it in the courts and private parties.”61 Judge Bork also relied on Congress’s initial decision to place the power to trigger the provisions in the hands of the Attorney General, and in its subsequent expansion of that discretion in the reauthorization amendments, as evidence of Congress’s deference to the Attorney General’s authority.62

In Dellums v. Smith,63 the Ninth Circuit had to decide whether the Attorney General could be compelled to conduct a preliminary investigation under the Act. In the Dellums case, private citizens and members of Congress sought to force Attorney General Smith to investigate whether or not the Reagan Administration was violating the Neutrality Act64 in its support of the Nicaraguan Contras.65 The plaintiffs had prevailed in the district court,66 but the Ninth Circuit reversed that judgment, echoing Judge Bork’s argument that Congress intended the decision to be at the discretion of the Attorney General.67

In 1984, a public interest lawyer sought to compel Attorney General Smith to conduct an investigation into allegations that the Reagan campaign had illegally obtained Carter campaign debate documents before the 1980 presidential debate.68 The Justice Department’s response to the initial allegations was reminiscent of its recent approach to the allegations of campaign finance improprieties.69 The Department of Justice conducted a lengthy investigation into the allegations but concluded that there was no evidence of any criminal misconduct by any of the named public officials. The investigation was not conducted as an Ethics Act preliminary investigation because the investigators concluded that they had discovered no evidence that made the allegations “specific” enough to trigger the Act. By refusing to trigger the Act, the Department of Justice avoided both the ninety-day time limit and the reporting requirements. Its investigation took eight months and the judicial panel received no report.70

As in the two earlier cases, the plaintiffs’ claim succeeded in the district court,71 only to fail before the appellate judges. In Banzhaf v. Smith,72 the D.C. Circuit held that the district court lacked jurisdiction to adjudicate Banzhaf’s claim, and that Congress had intended to preclude judicial review at the public request of the Attorney General’s decision to trigger, or not to trigger, the Act.73 Examining the legislative history of the Act, the circuit court concluded that Congress had not intended to allow public suits to compel the Attorney General to act.74 It noted Congress’s policy choice to design the provisions in a manner that avoided “premature airing” of charges against covered officials.75 The ability to air those charges in the district courts would conflict with this policy choice.76

By the time Congress reconsidered the provisions in 1987, there were also significant changes in the larger political environment. In 1986, the Democrats had regained control of the Senate, and thus took control of the oversight committee with primary responsibility for the Ethics in Government Act as well. President Reagan’s influence with Congress had been further diminished in late 1986 as a result of the Iran-Contra scandal.77 These developments encouraged Congress to take a more skeptical view of executive discretion under the Act.

The amendments Congress adopted in 1987 reflected this renewed concern about the amount of discretion enjoyed by the Attorney General. Supporters of the Act insisted that this discretion had to be limited.78 But the countervailing constitutional concerns continued to be influential. A constitutional challenge to the Act was pending,79 and there was little incentive to change in any fundamental way the basic balance struck in the original provisions. Instead, Congress decided to tinker with the language of the triggering provisions, reducing the criteria to be considered to “only” specificity of the allegations and credibility of the source,80 and limiting the Attorney General’s ability to use “state of mind” criteria to dispose of investigations to only those cases in which a preliminary investigation revealed “clear and convincing” evidence of the state of mind of the target.81 In addition, “threshold inquiries” (inquiries to decide whether or not a preliminary investigation was needed) were limited to fifteen days82 and the Attorney General was required to notify the judicial panel when a preliminary investigation began.83 The amendments also required attorneys general to provide prior, written recusal decisions when they became personally involved in a case covered by the Act, whether they decided to recuse themselves or not.84

When the U.S. Supreme Court finally addressed the constitutional issues surrounding the independent counsel provisions in Morrison v. Olson,85 Congress’s compromise received the imprimatur of constitutional approval. This result made it difficult for opponents to continue their constitutional criticisms, but equally difficult for proponents of the Act to go much further in limiting the discretion of the Attorney General. In particular, the Court considered it important that the Attorney General had the power to remove the independent counsel (for this made the independent counsel an inferior officer under the appointments clause);86 that the judicial panel’s duties beyond appointment were limited to ministerial tasks largely incident to the power to appoint;87 and that the continued role of the Attorney General in triggering the Act and removing the independent prosecutor offered “sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.”88

By the time Janet Reno became Attorney General, there was considerable legislative and implementation history accompanying the independent counsel provisions though the message of that history was not altogether clear. On the one hand, there was widespread concern that the independent counsel was too expensive, too political, and too powerful.89 The 1994 amendments focused almost completely on controlling the independent counsel, and ignored the issues raised by Attorney General discretion.90 Early experience under the Act had demonstrated the Attorney General’s need for some discretion to weigh the significance and credibility of allegations. Automatic triggering was viewed as unfair to the targets. On the other hand, the 1987 amendments reflected a desire to channel the Attorney General’s discretion in order to alleviate the Attorney General’s inherent conflict of interest in making Ethics Act judgments.

Until the campaign finance scandal broke during the presidential election of 1996, the mood in Congress clearly seemed to favor enhanced discretion in order to limit the number of independent counsel appointments.91 In addition to continued concerns about the cost and length of investigations, there were many critics of Attorney General Reno who believed that she had triggered the provisions too many times for minor cases that did not warrant an independent counsel investigation.92 For example, her decision to request the appointment of an independent counsel to investigate whether Secretary of Housing and Urban Development Henry Cisneros lied to the FBI about his payments to a mistress, which ultimately led to Cisneros’s indictment, has been challenged as unjustified in light of the seriousness of the behavior that Congress had intended the statute to address.93 In contrast, she now stands accused of a narrow and legalistic reading of the provisions, and of denying the discretion she has to trigger an independent counsel investigation.94

IV. ATTORNEY GENERAL DISCRETION AND THE LIMITS OF THE LAW

The history of the independent counsel provisions thus demonstrates the need for more careful thinking about the extent to which the Attorney General’s discretion can and should be channeled under an independent counsel arrangement. Certain experiences suggest that restriction of the Attorney General’s discretion produces too many cases, many of which do not involve the magnitude of scandal that the statute was designed to address. Expanding the Attorney General’s discretion in order to limit the number of cases, however, only seems to raise the level of distrust among members of Congress and the press, and thus interferes with the goal of reassuring the public that violations of federal law by members of the executive branch can be investigated impartially. In order to determine where Congress should strike the balance between too much and too little discretion, it is worth considering more carefully the alternatives available and the consequences of each choice.

A. THE FIRST ALTERNATIVE: LIMITING DISCRETION

The case for limiting the Attorney General’s discretion to trigger the Act depends upon the actual and apparent conflict of interest that she has when called upon to investigate her executive branch colleagues. Congress’s initial judgment on this issue was that attorneys general had a presumed conflict anytime they received allegations not only against the President, Vice President, cabinet officers, and other high ranking executive officials, but also against the top tier of political appointees in the Department of Justice, most senior White House staff members, and officers of the presidential campaign committees.95 Since 1978, this presumption of widespread and automatic conflict of interest has been challenged, and this challenge has been reflected to some extent in the re-authorization amendments. For example, the 1983 re-authorization altered the coverage so that the number of automatically covered officials was reduced from about 120 to 70.(96)

Still, if we accept the notion that there is a presumptive conflict of interest in the remaining cases, then we must also agree upon the need for statutory guidelines that strictly channel the discretion of the Attorney General in the triggering process. Namely, if the statutory standards for triggering are met, then the Attorney General must ask the judicial panel to appoint an independent counsel. The benefit of limiting discretion in this way is that doing so reassures the public that no political considerations enter into the decision not to investigate or prosecute.97

Before concluding that restricting discretion is the appropriate avenue to take in the triggering process, we ought to consider the practical implications of doing so. First, as no less a defender of limited discretion than Kenneth Culp Davis has argued, “[e]ven when rules can be written, discretion is often better. Rules without discretion cannot fully take into account the need for tailoring results to unique facts and circumstances of particular cases.”98 Restricted discretion can, and has,99 led to the appointment of independent counsel in cases that surely fell outside the intended purview of the Act. But as soon as attorneys general begin such a tailoring process, they open themselves to the charge of conflict of interest. Despite the fact that we have had seventeen independent counsel investigations in the past twenty years and have spent more than one hundred million dollars on these investigations,100 many cases remain where attorneys general have been criticized for failing to seek the appointment of an independent counsel.101

This “damned if you do and damned if you don’t” problem requires us to look more closely at the assumptions underlying the impulse to limit the Attorney General’s discretion. First, we should question the presumption that the conflict of interest at stake whenever the Department of Justice investigates executive branch wrongdoing encompasses both actual conflict and the appearance of conflict. Early in the debate about the nature of the conflicts of interest that arise when the executive branch investigates itself, a proponent of the Act argued that actual and apparent conflicts are equally dangerous:

Conflicts of this sort are doubly incapacitating. They prevent unfettered and vigorous prosecution of those who should be prosecuted. Equally important, they breed public distrust of decisions not to prosecute that may be entirely justified on their merits…. The appearance of conflict is as dangerous to public confidence in the administration of justice as true conflict itself. Justice must not only be done; justice must also be seen to be done.102

While few would question the need for appointment of an independent counsel when an actual conflict exists, if we want good policy in this area we ought to at least challenge the notion that every appearance of conflict requires an independent counsel. What is the legal standard by which to judge whether something appears to be happening? If an Attorney General must trigger the provisions any time someone in Congress or the press, regardless of the quality of their evidence or their own partisan or professional biases, claims an appearance of conflict, then the problems of fairness and expense that have been at the root of recent criticisms of the statute will only be aggravated. Furthermore, there is the very real question whether frequent resort to independent counsel investigation helps or harms public confidence. Evidence suggests that the public has become unable to distinguish between legitimate and illegitimate claims of official misconduct, and has instead resorted to an “everybody does it” dismissal of the subject. While this attitude cannot be blamed entirely on the independent counsel statute,103 one does have to wonder whether the almost annual appointment of an independent counsel since 1978 has not somehow diminished the effectiveness of the statute as a public confidence builder.

Such concerns suggest that the Attorney General must be afforded some room to maneuver when deciding whether to trigger the statute. Congress has recognized this need for discretion by incorporating it in the operation of the three-part test mandated by the statute: before asking the judicial panel to appoint an independent counsel, the Attorney General must determine whether she has before her: (1) “specific” and “credible” allegations (2) of violations by covered officials (3) of federal criminal law.104 While no real discretion exists in determining whether an official is covered under the second part of the test, the other two parts not only allow for, but in fact create opportunities for the exercise of discretion. “Specific” and “credible” are not meaningless words, but they do leave room for interpretation. The federal criminal law, while clearly applicable in many cases, is also subject to interpretation as to its intent and scope. The only substantial limitation on the Attorney General’s discretion to interpret these requirements lies in the fact that she must report her conclusions to the panel of judges, and that in most cases these findings become public. On several occasions, attorneys general have refused to trigger a preliminary investigation or request the appointment of an independent counsel after concluding that the allegations were insufficiently specific, that the accusers were insufficiently credible, or that the federal criminal law in question did not cover the facts or was not ordinarily applicable to the particular situation.105

Janet Reno’s interpretation of her discretion under the independent counsel statute highlights the paradoxical consequences of attempts to limit that discretion under the Act. While her critics contend that her application of the statute has been inconsistent-displaying “trigger happy” tendencies in her first term, and stubborn refusal to trigger in her second-her behavior is described more accurately as interpretive consistency. In all of the cases, she has viewed her discretion as limited by the requirements of the triggering mechanism. The irony of this consistency is that by following the letter of the law, Attorney General Reno has undermined the essential purpose for which the provisions were created.

During her first term, Attorney General Reno asked for the appointment of independent counsel in four cases-only one of which, Whitewater, even came close to involving allegations on the scale of Watergate. In each case, however, the statute’s three-part test had been satisfied: Attorney General Reno had before her specific and credible allegations that covered officials had violated federal criminal law. The federal statutes outlawing bribery and lying to Congress are fairly straightforward, and the cases against Espy, Brown, and Cisneros involved allegations of specific violations of those statutes.

Attorney General Reno’s analysis in the campaign finance case has been no more legalistic than it was in these earlier cases. The statute only requires her to seek appointment of an independent counsel when the three-part test has been met. So far, the only covered officials accused of wrongdoing are the President and Vice President;106 although the allegations against them are both specific (making fund-raising phone calls from public property) and credible (they admit making the calls), she concluded that the federal criminal law in question did not apply to the specific facts of either case.107 Legalistic, yes-but consistently so. Her legalism was controversial earlier because it prompted appointment of independent counsels and is controversial now because it has resulted in the opposite outcome.

Rather than prompting us to criticize Attorney General Reno, our concern about the results of her legalistic approach ought to lead us to examine the costs of channeling too narrowly the Attorney General’s discretion to interpret the independent counsel provisions. Limiting discretion invites legalistic analysis of the sort in which Attorney General Reno has engaged, and the legislative history of the re-authorization amendments offers support for the Attorney General’s claim that Congress designed the three-part triggering test to limit appointment to those circumstances in which all three parts have been satisfied.

B. THE SECOND ALTERNATIVE: EXPANDING DISCRETION

The argument for broadening the discretion of the Attorney General to trigger the statute is based largely on pragmatic concerns about the negative effects of too-frequent appointments, and also on the necessity and inevitability of discretion in applying the law. Even long time supporters of the independent counsel arrangement like Archibald Cox believe that the provisions are “overused and perhaps sometimes abused.” log Until the campaign finance imbroglio, Cox’s view was widely shared on Capitol Hill.109 And if we accept that some interpretive discretion is both inevitable and desirable, the key becomes finding a way to channel that discretion in a manner that contributes to the ends of justice, rather than eliminating discretion entirely by imposing inflexible rules.110

The difficulty, of course, is finding the ideal method for channeling the Attorney General’s discretion. One method would be to allow the independent counsel statute to expire in 1999 and return to the pre-1978 approach to cases of executive misconduct. This method would place the decision to seek independent investigation entirely at the discretion of the Attorney General. As a result, independent counsel would be appointed only in cases involving either an actual conflict of interest in the Department of Justice conducting the investigation, or the appearance of a conflict substantial enough to threaten public confidence in the outcome. These judgments certainly would be influenced by congressional and media perceptions, but in the absence of a statute requiring that the Attorney General either request an appointment or explain her refusal to do so, it is less likely that every allegation of misconduct in the executive branch will lead to the appointment of an independent counsel.

In the current climate of partisan conflict and public distrust, it is an open question whether such an arrangement is feasible. While there are those who argue persuasively that the statute has helped create this climate,111 the recent experience with the statute’s expiration in 1992 and its revival in 1994 suggests that the level of support or opposition depends largely on whose ox is getting gored. The once-staunch Republican opposition to the statute has withered during a Democratic administration, and conversely, the once-strong support for it among Democrats has been tempered by the experience of watching their President struggle with its effects. As long as members of Congress are unwilling to believe that a Department of Justice controlled by the other party can impartially investigate its colleagues, it seems unlikely that the statute will ever be permitted to die a natural death.

In light of this reality, the most feasible alternative available to Congress is to amend the current statute so as to provide the Attorney General with greater discretion. Congress should consider other changes: such as further reducing the number of officials covered; and giving the Attorney General explicit authority to consider such factors as the accused’s state of mind, the prospect of conviction, fairness to the accused, and the interests of justice. In addition, Congress should make explicit the distinction between actual and apparent conflicts of interest, and require the Attorney General to trigger the statute only when she identifies an actual conflict.

Congress should also move away from its focus on the persons covered and consider limiting the federal criminal laws that are covered under the Act. It might do so either by providing that the statute be triggered only when the Attorney General determines that the allegations involve “a substantial violation of the public trust,” or by enumerating a more channeled and specific list of federal criminal laws that involve such felonious violations of the public trust as bribery and conspiracy. Under either approach, it would be important to keep the statute’s reporting requirements, because public exposure of the Attorney General’s exercise of discretion would act as a crucial check upon it.

Finally, Congress should eliminate the provision that allows a majority of either party’s members of the House and Senate Judiciary Committees to “request in writing that the Attorney General apply for the appointment of an independent counsel.”112 While the Attorney General is not required to request such an appointment under the current scheme, she is required to give a written explanation for her refusal. Structured as it is along partisan lines, this provision is an invitation to politicize the process and seek partisan advantage in public disputes with the President or Department of Justice. It serves no useful purpose and should be eliminated.

The benefits to be gained from this expansion of discretion would include a reduced number of appointments under the Act. Given our past experience with the independent counsel provisions, this reduction will likely result in a substantial savings of public money, increased fairness to public officials, and perhaps a reduction in the amount of public cynicism about government. Of course, our experience with the Act’s implementation also suggests the drawbacks of expanded discretion: partisan incentives to challenge the impartiality of the Attorney General’s decisions; media refusal to accept decisions not to seek appointment; and, as a result, continued public cynicism and distrust of government. The only clear answer to these criticisms is that we already experience these problems under the current and more restricted approach to Attorney General discretion. For this reason, there seems little to lose and much to gain.

CONCLUSION

Our two decades of experience with the independent counsel statute make clear that Congress’s attempt to address the problems of governance revealed during the Watergate scandal raises substantial governance problems of its own. As Congress considers whether to maintain the statute as it is, revise it substantially, or eliminate it altogether, it would do well to make a careful assessment of the costs and benefits of the Ethics Act arrangement. When considering costs, Congress should move beyond the mere assessment of dollar amounts (although these are a legitimate concern) to consider the intangible costs to the polity of maintaining the existing arrangement-costs such as unfair pursuit of targets.113 and increased public cynicism.114

In addition to these intangible costs, Congress ought to consider the extent to which the statute promotes a kind of institutional distrust, laziness, and irresponsibility that ultimately harms the notion of accountable government. Automatic (or semi-automatic) triggers based on a presumption of broad conflict of interest in the Department of Justice undermine confidence in the body charged with enforcing the laws of the land. The statute invites members of Congress to allege criminal misconduct and urge appointment of an independent counsel in cases that may be more appropriately dealt with through congressional investigation, policy reform, administrative sanctions, or, in rare circumstances, impeachment. Such behavior is rewarded by a media consumed with its distrust of politicians and its own post-Watergate arrogance.

Nonetheless, the Watergate experience reminds us that presidents can control attorneys general, and that presidents can engage in misconduct so serious that it constitutes a violation of federal criminal law. Before we abandon the notion of a statutory independent counsel, we should attempt reform that substantially limits its use to those “rare national crises that arise when there is serious evidence of criminal misconduct by a President or other high executive official,” and when “only an independent counsel, chosen by a judicial panel, can provide the best assurance of thorough and impartial investigation followed by fair-minded prosecution or public dismissal of the charges.”115 Having an effective, fair, and appropriately-used arrangement requires striking the proper balance between the granting of sufficient discretion to the Attorney General to avoid overuse, and the channeling of that discretion in ways that minimize the influence of politics and maximize the likelihood of justice.

1. See David Johnston, Reno Rejects a Prosecutor on Clinton and Gore Calls; Bitter, G.O.P. Vows to Fight, N.Y. nMES, Dec. 3, 1997, at Al (discussing Reno’s decision not to appoint an independent counsel to investigate fund raising telephone calls by President Clinton and Vice President Gore). 2. See, e.g., NANCY V. BAKER, CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY GENERAL’S OFFICE, 1789-1990 (1992); CORNELL W. CLAYTON, THE POLITICS OF JUSTICE: THE ATTORNEY GENERAL AND THE MAKING OF LEGAL POLICY (1992); GOVERNMENT LAWYERS: THE FEDERAL LEGAL BUREAUCRACY AND PRESIDENTIAL POLITICS (Cornell W. Clayton ed., 1995) [hereinafter GOVERNMENT LAWYERS]; VICTOR S. NAVASKY, KENNEDY JUSTICE (1971).

3. 28 U.S.C. Sece 591-598 (1978). 4. HERBERT JACOB, LAW AND POLITICS IN THE UNITED STATES 8 (1986). 5. Id. 6. Id. at 1.

7. See Arthur Selwyn Miller, The Attorney General as the President ‘s Lawyer, in RoLES OF THE ATTORNEY GENERAL OF THE UNITED STATES 45 (1968). 8. Id. at 60.

9. See CLAYTON, supra note 2, at 4 (discussing twentieth-century changes in federal government and erosion of political process). 10. See BAKER, supra note 2, at 19-21. 11. GOVERNMENT LAWYERS, supra note 2, at 13.

12. KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A EL.PRELIMINARY,xx INQUIRY 3 ( 1969). 13. See id. at 3-4 (discussing the optimum solution for minimizing injustice resulting from discretionary power).

14. U.S. DEPARTMENT OF JUSTICE, PRINCIPLES OF FEDERAL PROSECUTION 1 (1980). 15. Id. at 3 (discussing the purpose of the materials in providing consistency, but not discarding the need for flexibility of federal prosecutors).

16. Ponzi v. Fessenden, 258 U.S. 254, 262 (1922); see also United States v. San Jacinto Tin Co., 125 U.S. 273, 279-80 (1887) (discussing the role of the Attorney General); The Confiscation Cases, 74 U.S. (7 Wall.) 454, 458 (1868) (same).

17. 7 F.2d 397 (S.D.N.Y 1925) (holding that courts cannot directly declare a treaty null, though may find it unconstitutional in a case properly before the court). 18. Id. at 399.

19. See, e.g., Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (discussing the wide discretion of the U.S. Attorney); Powell v. Katzenbach, 359 F.2d 234, 234-35 (D.C. Cir. 1965) (same); United States v. Cox, 342 E2d 167, 177 (Sth Cir. 1965) (same); Moses v. Kennedy, 219 F. Supp. 762, 764 (D.D.C. 1963) (same); Pugach v. Klein, 193 F. Supp. 630, 634-635 (S.D.N.Y. 1961) (same). 20. Boyd v. United States, 345 F. Supp. 790, 793 (E.D.N.Y. 1972).

21. See, e.g., DAVIS, supra note 12, at 25.

22. See Robert E. Palmer, The Confrontation of the Legislative and Executive Branches: An Examination of the Constitutional Balance of Powers and the Role of the Attorney General, 11 PEer. L. REv. 331, 353-54 (1984).

23. GovERNMENT LAWYERS, supra note 2, at 16-17.

24. Statement by the President Announcing Resignations and Appointments, Together with Assignment of Responsibilities Regarding the Watergate Investigation, 9 WEEKLY COMP. PRES. Doc. 431 (Apr. 30, 1973). For day-to-day coverage of the events of Watergate in 1973, see 1 WATERGATE AND THE WHITE HOUSE: JUNE 1972-JULY 1973 (1973), and Chronology of Watergate Developments in 1973, in 1973 CONG. Q. ALMANAC 1014-43 (1974).

25. The Watergate Special Prosecution Force was dissolved as an independent entity by Acting Attorney General Robert Bork. Abolition of the Office of Watergate Special Prosecution Force, Att’y Gen. Order No. 546-73 (Oct. 23, 1973). Bork became Acting Attorney General after Attorney General Elliot Richardson and his deputy, William Ruckelshaus, resigned rather than carry out the President’s order to fire Cox. See Elliot Richardson, The Saturday Night Massacre, ATLANTIC, Mar. 1976, at 40-71.

26. Special Prosecutor and Watergate Grand Jury Legislation: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong. (1973); Special Prosecutor: Hearings Before the Senate Comm. on the Judiciary, 93d Cong. (1973). House hearings were held

between October 29 and November 8, 1973, and Senate hearings were held between October 29 and November 20, 1973.

27. For a more detailed examination of the legislative history of the provisions, see KATY J. HARRIGER, INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS 40-72 (1992).

28. While that confidence had been steadily declining since the 1950s, the period between 1972 and 1974 had seen the sharpest decline. Confidence in government to do the right thing dropped 14% in this

two-year period, and the lack of confidence spread beyond the presidency to Congress. Opinion Roundup, PUB. OPINION, June-July 1981, at 34; see also Rating of Congress at All-Time Low, 5 CURRENT OPINION, Mar. 1974, at 32.

29. For a more extensive discussion of the way in which Congress struggled to balance independence with accountability, see Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the Current Debate, 49 MERCER L. REv. (forthcoming 1998). 30. U.S. CONST. art. II, 2. 31. U.S. CONST. art. I, 8.

32. See, e.g., Special Prosecutor: Hearings Before the Senate Comm. on the Judiciary, 93d Cong. 72

(1973) (open letter to Congress from D.C. lawyers); Note, Removing Politics from the Justice Department: Constitutional Problems with Institutional Reform, 50 N.YU. L. REv. 366 (1975) (evaluating proposed reforms designed to eliminate political conflicts of interest in the Justice Department); Karen H. Schneider et al., Note, The Special Prosecutor in the Federal System: A Proposal, 11 AM. CRIM. L. REv. 577 (1973) (examining the use of the court-appointed prosecutor to overcome conflict of interest problems).

33. See Ex parte Siebold, 100 U.S. 371, 397-98 (1879); Ex parte Hennen, 38 U.S. 230, 260 (1839); Hobson v. Hansen, 265 ft Supp. 902, 911-12 (D.D.C. 1967); United States v. Solomon, 216 F. Supp. 835, 840-42 (S.D.N.Y. 1963). 34. U.S. CONST. art. II, 3.

35. Removing Politics from the Administration of Justice: Hearings on S. 2803 and S. 2978 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong. 84 (1974) (statement of Robert G. Dixon, Jr., Assistant Attorney General, Department of Justice); see also Howard H. Baker, Jr., The Proposed Judicially Appointed Independent Office of Public Attorney: Some Constitutional Objections and an Alternative, 29 Sw. L.J. 671 (1975) (focusing on the constitutional and practical problems with placing appointment powers outside the executive branch); Luis Kutner, Nixon v. Cox: Due Process of Executive Authority, 48 ST. JoHN’s L. REV. 441 (1974) (arguing that imposition of restraints on the Executive’s power to appoint and remove officers would be unwise).

36. See, e.g., Springer v. Philippine Islands, 277 U.S. 189, 202 (1928); Ponzi v. Fessenden, 258 U.S. 254, 262 (1922); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967); United States v. Cox, 342 F.2d. 167, 171 (Sth Cir. 1965).

37. See Siebold, 100 U.S. at 397-98 (upholding judicial appointment of election supervisors carrying out law enforcement activities).

38. The name was changed to “independent counsel” during the 1982 reauthorization of the provisions, in order to remove the Watergate stigma attached to the label “special prosecutor.” 39. 28 U.S.C. 591 (1978). 40. Id. 592(a).

41. Id. 592(c)(1). 42. Id. 592(b). 43. Id. 592(f). 44. Id. 49. 45. Id. 593(b). 46. Id. 596(a).

47. Special Prosecutor Provisions of the Ethics in Government Act of 1978: Hearings Before the Subcomm. on Oversight of Gov’t Management of the Senate Comm. on Governmental Affairs, 97th Cong. 8-9 (1981) (statement of Benjamin R. Civiletti, former U.S. Attorney General). 48. ARTHUR CHRISTY, REPORT OF THE SPECIAL PROSECUTOR ON ALLEGED POSSESSION OF COCAINE BY HAMILTON JORDAN IN VIOLATION OF 21 U.S.C. SEC. 844(A), (May 28, 1980); GERALD GALLINGHOUSE, IN RE INVESTIGATIONS OF ALLEGATIONS CONCERNING T[MOTHY KRAFT: REPORT OF THE SPECIAL PROSECUTOR IN COMPLIANCE WITH 28 U.S.C. 595(B), (January 15, 1982).

In 1980, Timothy Kraft filed a civil suit challenging the authority of the special prosecutor to exercise executive authority over law enforcement. Memorandum of Points and Authorities in Support of Plaintiffs Motion for a Preliminary Injunction, Kraft v. Gallinghouse, CA No. 80-2952 (D.D.C. filed Nov. 19, 1980). The case was dismissed after the special prosecutor concluded that there were no grounds for prosecution. Joint Motion to Dismiss and Order of Dismissal, Kraft, CA No. 80-2952.

49. Special Prosecutor Provisions of the Ethics in Government Act of 1978: Hearings Before the Subcomm. on Oversight of Gov’t Management of the Senate Comm. on Governmental Affairs, 97th Cong. (1981); Ethics in Government Act Amendments of 1982: Hearings on S. 2059 Before the Senate Comm. on Governmental Affairs, 97th Cong. (1982); Amendment of the Special Prosecutor Provisions of Title 28: Hearings on S. 2059 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 97th Cong. (1982).

50. Special Prosecutor Provisions of the Ethics in Government Act of 1978: Hearings Before the Subcomm. on Oversight of Gov’t Management of the Senate Comm. on Governmental Affairs, 97th Cong. 249-50 (1981) (letter to Senate Legal Counsel from WIlliam French Smith, U.S. Attorney General). In the letter Smith contended that “[i]n some or all of its applications, the Act appears fundamentally to contradict the principle of separation of powers erected by the Constitution…. If the Department’s position is sought in future litigation, we would espouse views consistent with the above and addressed to the specific facts of the case.” Id. at 250. 51. 28 U.S.C. 592 (a)(2)(B)(i) (providing that information must be “specific and from a credible source”) (1983). 52. Id. 596(a)(1). 53. Id. 594(f).

54. Id. 593(f)(1).

55. A discussion of allegations and conclusions not to prosecute are detailed in JAcoB STEIN, REPORT OF INDEPENDENT COUNSEL CONCERNING EDWIN MEESE III, (September 20, 1984); and JAMES MCKAY, REPORT OF INDEPENDENT COUNSEL IN RE EDWIN MEESE III, (July 1988). 56. S. REP. No. 100-123, at 9 (1987), reprinted in 1987 U.S.C.C.A.N. 2150, 2158 (noting a suggestion that the Justice Department was conducting preliminary investigations in “all but name” to avoid reporting requirements).

57. S. REP. No. 100-123, at 7, 10-11 (1987), reprinted in 1987 U.S.C.C.A.N. 2150, 2156, 2159-60. 58. See id. at 6-7 (detailing results of the Department’s inquiries). Two of the appointments and investigations were never made public by the court panel. Id. 59. 737 F.2d 1069 (D.C. Cir. 1984).

60. Id. at 1077 (reversing Nathan v. Attorney General, 563 F. Supp. 815 (D.D.C. 1983), and directing the District Court to deny mandamus petition). 61. Id. at 1079.

62. Id. at 1080 (noting that the statute’s text strongly indicates preclusion of private remedies). 63. 797 F.2d 817 (9th Cir. 1986). 64. 18 U.S.C. 960 (1982). 65. Id. at 819.

66. Dellums v. Smith, 577 F. Supp. 1449 (N.D. Cal. 1984) (denying Attorney General’s motion to alter judgment); Dellums v. Smith, 573 F. Supp. 1489 (N.D. Cal. 1983) (denying Attorney General’s motion to dismiss, and granting plaintiffs motion for summary judgment). 67. Dellums, 797 F.2d at 823 (holding that the plaintiffs lacked standing to challenge the Attorney General’s actions).

68. Banzhaf v. Smith, 588 F. Supp. 1489, 1491 (D.D.C. 1984) (noting that the plaintiffs alleged that the documents had been taken from the Carter White House by a “mole”). 69. Although it is true that Attorney General Reno did eventually trigger the Act and conduct a preliminary investigation into the allegations that President Clinton and Vice President Gore solicited funds from public property, these preliminary investigations with ninety-day time limits came after months of investigation by a special task force assembled within the Department of Justice.

70. See HARRIGER, supra note 27, at 81 n.42 (citing an interview with a former Public Integrity Section lawyer).

71. Banzhaf, 588 F. Supp at 1498 (denying the Attorney General’s motion to dismiss). 72. 737 F.2d 1167 (D.C. Cir. 1984). 73. Id. at 1169-70.

74. Id. at 1169 (noting that the Act contained provisions restricting judicial review of Attorney General decisions). 75. Id.

76. Id. at 1170 (noting that Congress would not have undermined its own policy choices by providing for judicial review).

77. See Ronald D. Elving & Janet Hook, The Reagan Presidency Fades into the Twilight, 45 CONG. Q. WKLY. REP. 2500 (1987) (noting that Iran-Contra broke “Reagan’s unique grip on the American imagination”).

78. See, e.g., Oversight of the Independent Counsel Statute: Hearings Before the Subcomm. on Oversight of Gov’t Management of the Senate Comm. on Governmental Affairs, 100th Cong. 188 (1987) (testimony of Archibald Cox on behalf of Common Cause) (urging amendment of the statute so that the Special Division could expand the jurisdiction of the independent counsel without approval from the Attorney General).

79. Theodore Olson’s challenge to the Act was winding its way through the system. In 1988, the D.C. Circuit struck down the independent counsel provisions. See In re Sealed Case, 838 F.2d 476 (D.C. Cir. 1988). On appeal, the Supreme Court reversed that decision. See Morrison v. Olson, 487 U.S. 654 (1988).

80. 28 U.S.C. 591(d)(1) (1987). 81. Id. 592(a)(2)(B). 82. Id 591(d)(2). 83. Id. 592(a)(1). 84. Id. 591(e). 85. 487 U.S. 654 (1988).

86. Id at 670-77 (discussing the difference between “inferior” and “principal” officers). 87. Id at 677-83 (discussing the powers invested in the Special Division by the Act). 88. Id. at 696.

89. Based on these arguments, Congress had refused to re-authorize the provisions when they expired in 1992. It was only after Bill Clinton was elected president and the Whitewater scandal heated up that there was sufficient support on Capitol Hill for the reauthorization of the statute. Holly Idelson, Whitewater Boosts Prospects of Independent Counsel Bill, 52 CONG. Q. WKLY. REP. 73 (1994); see also 140 CONG. REC. H3697-703 (daily ed. May 19, 1994) (conference report on Independent Counsel Reauthorization Act). The Senate adopted the conference report on May 17, 1994 and the House cleared it on June 21, 1994. Holly Idelson, Provisions: Independent Counsel, 52 CONG. Q. WKLY. REP. 1739-40 (1994) (listing provisions of the new law).

90. The 1994 provisions had rules controlling costs of investigations, see 28 U.S.C. 594(a)-(c) (providing the independent counsel with “full power and independent authority,” compensation equivalent to level IV of the executive schedule, and guidelines for additional personnel); requiring audits of independent counsel expense records, see id. 596(c) (providing for audits by the Comptroller General); requiring an annual report to Congress from the independent counsel, see id. 595(a)(2) (providing for reports on activities, including the “progress of any investigation or prosecution”); and requiring compliance with Department of Justice procedures for the handling of classified documents, see id 594(f)(2) (1994) (providing for compliance with guidelines in “handling and use of classified material”). 91. See. e.g.. Independent Counsel: Should Congress Make Major Changes in the Law?, 7 CQ

RESEARCHER (Feb. 21, 1997) [hereinafter CQRESEARCHER] (discussing proposals pending in Congress that would have further limited the independent counsel and expanded Attorney General discretion, and reflecting concern about the frequency of appointments and the cost and length of investigations). 92. This criticism is discussed in Jeffrey Goldberg, What is Janet Reno Thinking?, N.Y nMEs MAG., July 6, 1997, at 20. During President Clinton’s first term Attorney General Reno asked for independent counsels to investigate the Whitewater scandal, Secretary of Agriculture Mike Espy, Housing and Urban Development Secretary Henry Cisneros, and the late Commerce Secretary Ron Brown. See id at 16. 93. See, e.g., Anthony Lewis, Reductio Ad Absurdum, N.Y. TIMES, Dec. 15, 1997, at A19. 94. See Goldberg, supra note 92, at 20-21; Neil A. Lewis, Republicans React Quickly and Angrily to Reno Move, N.Y. TMS, Dec. 3, 1997, at A19.

95. 28 U.S.C. 591(b) (1978). 96. Id. 591(b) (1983).

97. It is possible to question the degree to which this approach will actually enhance public confidence in the independent counsel appointment process. Certainly, Washington insiders who pay attention to these matters have generally accepted the conclusions of independent counsel as the product of impartial investigation-at least, that is, until the Iran-Contra investigation. It is less clear that the public has been sufficiently aware of the cases to make such a judgment. See HARRIGER, supra

note 27, at 168-98 (analyzing why “sleeping giant” of public opinion not awakened by investigations involving a few public officials and narrow legal issues, and not rising to the level of a major political scandal).

98. DAvis, supra note 12, at 17.

99. See supra notes 47-48 and accompanying text (discussing the Jordan and Kraft cases). 100. CQ RESEARCHER, supra note 91, at 156-57.

101. See, e.g., S. REP. No. 100-123, 10-12 (1987), reprinted in 1987 U.S.C.C.A.N. 2150, 2159-60 (criticizing Edwin Meese and William French Smith). 102. Lloyd N. Cutler, Conflicts of Interest, 30 EMORY L.J. 1015, 1020 (1981).

103. See SUZANNE GARMENT, SCANDAL: THE CULTURE OF MISTRUST IN AMERICAN POLITICS (1991) (surveying elements and causes of rampant scandal phenomenon in American politics). 104. 28 U.S.C. 591(a), (d)(1).

105. For example, after conducting an investigation into allegations that President Carter held a luncheon for prominent businessmen to pay off the Democratic party’s 1976 campaign debt in violation of campaign finance laws, Attorney General Griffin Bell concluded that the activity in question fell outside the parameters of the relevant statute. See HARRIGER, supra note 27, at 126-27. For a more extensive examination of how attorneys general have exercised their discretion under the Act, see id. at 117-38.

106. Bruce Babbit has also been accused of wrongdoing.

107. See Johnston, supra note 1, at Al. Attorney General Reno concluded that all of the calls made by President Clinton were made from the White House residence, which is not covered by the Pendleton Act. Id. at A30. She concluded that the calls made by Vice President Gore were made from his White House office but were meant to raise “soft money” for the Democratic Party, not “hard money” for particular campaigns. Id. In addition, she concluded that since the Department never prosecuted telephone solicitations from federal property it would be unfair to impose a higher standard on the Vice President. Id.

108. Archibald Cox, Curbing Special Counsels, N.Y TIMES, Dec. 12, 1996, at A37. 109. CQ RESEARCHER, supra note 91; see also Lisa Clagett Weintraub, Bill Would Rein in Special Counsels, 54 CoNG. Q. WKLY. REP. 2674 (1996) (reporting proposed House bill requiring independent counsels to submit quarterly reports to Congress and specific appropriation for any investigation lasting over two years).

110. DAVIs, supra note 12, at 3-4; see also JEFFREY L. JOWELL, LAw AND BUREAUCRACY: ADMINISTRATVE DISCRETION AND THE LIMITS OF LEGAL ACTION 195-97 (1975) (arguing that discretion in the interpretation of rules is desirable and inevitable). 111. GARMENT, supra note 103, at 89-90.

112. 28 U.S.C. 592(g)(1) (1994).

113. See supra Part Ill.

114. See supra note 97 and accompanying text. 115. Cox, supra note 108, at A37.

* Associate Professor of Politics, Wake Forest University. Ph.D. (University of Connecticut) 1986.

Copyright Georgetown University Law Center Jul 1998

Provided by ProQuest Information and Learning Company. All rights Reserved