STATUTE WITH LIMITATIONS: The Independent Counsel Statute

Tuesday, January 12, 1999

The independent counsel statute was passed by Congress as a response to Watergate. And it has been the subject of controversy and criticism ever since. This year the statute is up for renewal. David Brady, Hoover Institution Senior Fellow, Associate Dean and Bowen H. and Janice Arthur McCoy Professor of Political Science, Business and the Changing Environment, and Ethics at the Stanford Graduate School of Business, Professor, Department of Political Science at Stanford University, James J. Brosnahan, Senior Partner at Morrison & Foerster, Attorneys at Law, and John Donohue, Professor, Stanford Law School discuss whether Congress should reenact it, reform it, or let it die?

Recorded on Tuesday, January 12, 1999

ROBINSON Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today, the Independent Counsel Statute, a piece of legislation first enacted in 1978 that must be renewed every 5 years. The next time the statute must be renewed, this very spring. We'll return to the statute in a moment, but first a brief civics lesson. As you know, our founders gave us three branches of government- branch number one, the judicial, the nine justices of the Supreme Court and the 900 some judges who sit on the federal bench. Branch number two, the legislative, the House, the Senate, they make up Congress. Congress enacts laws, the judicial branch interprets them. Branch number three, the executive. Here of course we come to the president of the United States, responsible for administering the vast federal government, for conducting foreign policy, and for enforcing the laws that Congress enacts and the judicial branch interprets. One, two, three, and four- the independent counsel, here he is, Kenneth Starr himself. Of course there isn't really, not formally a fourth branch of the American government. But many would argue that the independent counsel statute in effect establishes just that- a fourth and unconstitutional branch of government, accountable neither to the American people nor to any of the other three branches of government. As I say, this spring Congress must decide whether to reenact the legislation or let it fail. With us today, three guests- John Donohue is a professor of law at Stanford University, David Brady is a fellow at the Hoover Institution. John and David want Congress to reenact the statute but with major reforms. Our third guest, James Brosnahan is a senior partner at the San Francisco law firm of Morrison and Foerster. Mr. Brosnahan served briefly in the office of the independent counsel, he wants Congress to let the legislation die.


ROBINSON Later this year the independent counsel statute comes up. Should Congress reenact the statute as is, reform it, or let it die? Jim?

BROSNAHAN Let it die.

ROBINSON Abolish the thing altogether?

BROSNAHAN Don't use it anymore, we had 200 years without it, let's go back to what we had.

ROBINSON Fine. John?

DONOHUE Reform it substantially.

ROBINSON Reform it substantially but you want that law on the books?

DONOHUE If it can be modified greatly, if not than I'd be willing to let it die as well.

ROBINSON OK, we'll come to your modifications in a moment. David?

BRADY Reenactment, minor reforms.

ROBINSON Reenactment, minor reforms? So we have the strong independent counsel position here, the modified position here, and the hell with it position here.

BROSNAHAN Well yes, as you put it.

ROBINSON Alright, my words counselor, not yours. OK...Jim you have been a member of the office of independent counsel. You worked with independent counsel Lawrence Walsh investigating former Secretary of Defense Cap Weinberger. [BROSNAHAN That's true..] You did it. But now you're calling to abolish the law, would you please explain yourself there?

BROSNAHAN I had some reservations about independent prosecutors after my experience there and long before Kenneth Starr started his present activities. But as it has gone on, I've come to the point where I think we'd be better off without it.

ROBINSON You were going after a Republican and had a few reservations about it. Now that the independent counsel statute is being used principally against Democrats, you want to abolish it. Defend yourself- it can't be pure partisanship, can it?

BROSNAHAN And I think you've put your finger on the most difficult issue because I watched the Iran-Contra and I watched Whitewater and I watched the same people change and I think it's inherent in it. For example, Judge Walsh was criticized for spending a lot of money and there was a lot of money spent, I have to say that, I'm a frugal person. And Kenneth Starr is criticized for it, but it's different people making those points and it's a partisan matter almost irresistibly, but when you stand back and say alright we got from the first president of the United States all the way through till 1972 when we have a robust democracy, we did it without an independent prosecutor and then in my mind you look at the problems with independent prosecutors, that's how I get to my position.

ROBINSON David, is there a partisan aspect to the current debate over the independent counsel statute?

BRADY Of course there is, it's obviously partisan. [ROBINSON It's Ok when it's being used against Republicans but not against Democrats?] No, my point is it's built into our constitutional system that we have a system in which you can have Democratic presidents, Republican congresses and vice versa. So the question, so that's there, it's inherent, you're not going to get rid of that.

ROBINSON It's now been used to gore Republican oxes and to gore Democratic oxes and who knows, maybe used to gore Gore before we're finished here, does that create a political opening? Both parties have seen their guys get injured by this statute and now they can both agree to bury it together. What do you think?

BRADY Neither Republicans like it when they're being gored the Democrats don't like it when they're being gored, that to me sounds like a pretty good sign. The question is who's going to police the police? And it may be true that we got by 200 years without it but it's also the case in the post-Roosevelt period the government of the United States is much more intrusive, much larger, much more capable of influencing people's lives. So something like it has got to be there.

ROBINSON John, what do you want to do to reform it?

DONOHUE Well I agree with David that one does want to inhibit the over-reaching and misconduct of governmental officials. The problem is that we now seem to be in a world where the independent counsel statute can be very much a partisan effort to discredit an individual politically.

ROBINSON Give me your top two reforms.

DONOHUE I think one reform that should be seriously considered is not to apply the statute to the president at all, that it could be used for cabinet officials and other members of the administration but not to the president where the impeachment powers are a mechanism for the Congress to remove a president that they think is acting inappropriately.

ROBINSON OK so you exempt the president and use it only against lower executive branch officials.

DONOHUE Most of the abuses of the statute I think will come when directed against the president and you might want to limit the statute by saying we're only going to allow investigations for some sort of serious misconduct, perhaps in the course of the president's administration or ultra-serious misconduct beforehand. In other words if the president had committed a murder before he became president, that might be something you'd want to look into. If there's some sort of you know, dubious land deals in Arkansas years before he became president, that's not something we'd have to look into.

ROBINSON The independent counsel has executive powers outside the presidency. Isn't that unconstitutional?


ROBINSON 1988, the constitutionality of the independent counsel statute goes before the Supreme court and the Supreme court finds that it is constitutional with one dissent- Justice Scalia, here's what he said: it is not for this court to determine and we have never presumed to determine how much of the purely executive powers of government must be within the full control of the president. The Constitution prescribes that they all are.

BROSNAHAN That is correct, number one. Number two, you will notice that Kenneth Starr was appointed by a judge. That is two departments of the government participating in a prosecution. That's a serious problem.

ROBINSON Congress and the judiciary.

BROSNAHAN And it's not just a sterile, technical constitutional objection by a lawyer, the judges should not be involved. When Judge Santell met with Jessie Helms a week before he appointed Kenneth Starr, he created an aura of suspicion.

ROBINSON Explain that incident.

BROSNAHAN He met, he had lunch with Jessie Helms the week before he appointed Kenneth Starr...

ROBINSON Jessie Helms is a conservative Republican Senator

BROSNAHAN ...And he had in place Robert Fisk, the former United States Attorney in Manhattan, a distinguished Republican prosecutor who was replaced with Kenneth Starr. The problem for the judiciary is there is a great shadow of partisanship that settles upon..and they should be above that, they should be removed from that, they shouldn't be involved in it.

ROBINSON Reform or not reform, you're still going to have an independent counsel statute that involves Congress and the Judiciary in investigations which are undoubtedly executive powers. So how do you get around the constitutional argument? Do you just say it's not important? How do you confront Scalia's argument?

DONOHUE Right now, one doesn't need to confront Scalia's argument in the sense that the Supreme Court has spoken and now the law of the land is that the special prosecutor is constitutional

ROBINSON So you just steamroll it? It's intellectually...

DONOHUE Yes but if you want to address the intellectual question I think there are legitimate constitutional concerns about the statute whether you can get a majority of the Supreme Court to revisit the question at this point is unclear.

BROSNAHAN The legislature is now free to do whatever they want to do, from having nothing, to reforming it, to whatever. So the arguments are still valid, having the judiciary involved is a big mistake, number one, and number two it's always this great struggle between the presidency and the legislature and there's always going to be that. But the president, if the president is to be followed everyplace that he goes by a special prosecutor, if that's the new way to proceed, that's going to create tremendous problems. I don't think America was made as strong as it is, and we need to be strong, by that kind of person and we never voted for Kenneth Starr, we did vote for the president twice, and this to me is a big point


BRADY The problem of large governments intruding in citizens' lives and how do we police the people who do that is still present. So now public confidence in the special prosecutor is low and that is what we need to deal with, not the question of do we have to have some mechanism to police it. So I actually I hadn't though of John's point and maybe that is the right point, maybe if what's said is true that if you're investigating the cabinet and the actual acts as you can investigate cabinet members, members of the president's campaign, the Congress can still impeach the president that power's there.

ROBINSON Doesn't the statute give the independent counsel a virtual fishing license to investigate and investigate and investigate until he finally finds a crime?


ROBINSON Justice Scalia quotes in his dissent a famous Democrat, Justice Jackson, when he was FDR's attorney general, with the law...this is Justice Jackson speaking half a century ago, with the law books filled with a great assortment of crimes , a prosecutor stands a fair chance of finding at least a technical violation on the part of almost anyone. In such a case, and you're a prosecutor you know, in such a case it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books. Picking the man and searching the law books- isn't that exactly what the independent counsel statute has amounted to? David?

BRADY I think that the facts are that if you actually look at the cases when it was the Republicans in Whitewater, there was wrongdoing and influence, there was in case of the EPA with Gore, there has been in the Clinton administration. So I think there's no question but what the fact that there's been collusion [ROBINSON collusion between?] collusion between the cabinet officers, collusion in the sense that works against the public interest, there's no question that that has occurred. So how do you police that? Can the Congress do it? I think that the Congress is not very capable of doing that when you have a long period of divided government, with Democratic Congresses, Republican presidents or vice versa.

BROSNAHAN May I add an element that hasn't been mentioned, we're all aware of it, and that's the press. The press can't be left out of this discussion, I think we all agree to that. You look at the New York Times, you look at the story on the right hand page, on the front, and I learned this in Iran Contra, if that story is about the president of the United States and wrongdoing, this country is going to pay a lot of attention to it and therefore there'll be pressure on an attorney general. There's also impeachment been mentioned, an officer can be impeached for high crimes and misdemeanors and things that are really serious. The problem here is the one that you put your finger on. When I used to prosecute we were told by my boss Cecil Poole , we are not avenging angels. If we see a crime, we proceed. I served under Robert Kennedy just as an assistant U.S. attorney but I thought one of the weaker things that he did was when he took out after Jimmy Hoffa, to get him no matter what it took- that's wrong. That's not the way a professional proper prosecutor should proceed.

ROBINSON Policing the federal government, the huge federal government, is no trivial matter. How would we do it without an independent counsel?


ROBINSON Think of the executive branch of the United States government, the United States military, the Department of Justice, the FBI, the CIA, the IRS, without an independent counsel statute, let me ask you, how do you police these people?

BROSNAHAN Well who knows better than the attorney general if, as in Iran-Contra, missiles were sent, they can find that. They go to Mr. Nolan and they say, did you signed this paper? And he said, no I refused to send those missiles. And they have a criminal case. And they can bring it. Now the final problem I have is, Kenneth Starr is responsible to no one except Mrs. Starr. He is literally not responsible to anyone, he can and has in my view done things where he should be accounted...he should be talking to his boss or someone, to say: what are you doing?

BRADY Under the act of 1982 he can be removed. The fact that they haven't done so is a question of...

ROBINSON He can be removed only for a good cause. And good causes an impediment to removal they have to demonstrate immorality, incompetence..that actually, that construction actually makes it harder to get rid of the guy. [BRADY You can stop the investigation..] Anybody else who serves the president, serves at the will of the president of the United States. In this one case, they have to show good's hard to get rid of him.

BRADY The real point I want to make is that to consider the following. In 1935 the Supreme Court said that the role of any prosecutor is not that someone be convicted but at the end of the case, justice shall be done. Ok? So anytime there's a prosecutor, whether it's this level or the lower level of a crime, there's always the problem that the prosecutor has more evidence and could do exactly this sort of thing that has been talked about. That problem doesn't go away. Quick point, the attorney general's office used to be in pretty good shape but beginning with John Kennedy, when you appointed the person who ran his campaign, followed by Richard Nixon's appointment of Mitchell, it turns out that for quite a long time period after the 60's, the attorney general which is supposed to administer the law equally, became in fact the appointment of the president. That's not a very good situation, if we change that then I might come more to your view if the attorney general was more independent.

DONOHUE But I would think that the current situation has made it more likely that you won't see a Janet Reno, in other words, a pretty independent selection, because people are going to say, look I'm president, I have to have my person in there as Attorney general who is going to protect me..

ROBINSON Hold on a minute..your point is that what has happened under the Clinton Administration makes it even more likely that future attorney generals will have to be... [BRADY Gotta be part of the team] ..have to be insiders.

BROSNAHAN The attorney general of the United States by definition being confirmed by the Senate, there were hearings and somebody said you know this person has prosecuted, this person knows policy, this person knows the criminal law, whatever it is we like in an attorney general, we're agreed on that, ok. The independent prosecutor is selected when a judge decides that that person is appointed as of that moment. And that person in the case of Mr. Starr, has never prosecuted a criminal case. And I may be the only one in America that has a problem with this but it is a serious problem. The first judgement that Kenneth Starr ever made about somebody committing a crime was his written salacious report that he sent to the House. That was the first time he ever did it. Now in my world, where I practice law, that's malpractice- you can't do that. That's a problem.

BRADY You should have Jim explain exactly how the court gets involved in this process..

BROSNAHAN Ok, briefly, there's a panel in Washington D.C. of judges, there are three. Santell is the present chair and when it is determined through the attorney general's process that there needs to be an independent prosecutor [ROBINSON The attorney general makes that determination.]then this panel appoints a person. When I thought it could be reformed, I was trying to figure out a way that that person would be an experienced prosecutor. You go into the prosecutor's office in the morning and you say, book him or let him go. You're independent, you don't care what the newspapers say, you just call it and there are plenty of prosecutors out there, maybe some watching this show, that have that integrity, have that experience..Robert Fisk, in my book and in a lot of people's book, is one of those people.

DONOHUE But that was one reason why Jessie Helms didn't want him because he was deemed to be a straight shooting, professional prosecutor and they wanted a partisan in there which is why Fisk was replaced by Ken Starr.

ROBINSON Congress already has the constitutional authority to investigate the executive branch. Be relying on an independent counsel, isn't Congress just shirking its responsibilities?


ROBINSON Jim is making the argument that the attorney general is confirmed by the Senate? Congress has over-sight powers? "It would strike me," Justice Scalia argues, "that the independent counsel statute enfeebles," that's his word, "enfeebles the president in his dealings with Congress because there either is an independent counsel investigating him or Congress has the prospect of getting one appointed and so forth." It would strike me that in fact Congress has been enfeebled by this independent counsel by simply punting its constitutional duties to an independent counsel again and again and again.

BRADY It got punted because in 1978 the Ethics in Government Act passed the special prosecutor in part because the notion was that you wanted precisely to avoid the partisanship that had occurred. So it was a Democratic Congress with a Democratic president that passed the Ethics in Government Act that created this.

ROBINSON OK we blot out the Ethics in Government Act and we leave it to the Senate and to the House of Representatives in their over-sight capacities to expand those over-sight capacities. Directly elected representatives of the people doing their job of overseeing the executive branch as envisioned by the founding fathers. What the heck is wrong with that? Because they can't do it?

BRADY The good thing about Congress is, just like base closing, they understood that there's some things they can't do. When they can't do those things they create institutions which solve that problem for them. [ROBINSON Extra constitutional?] Yes that's what this is.

BROSNAHAN I believe that while Congress sits we're all in danger, but notwithstanding that beginning position Congress as you say can have investigations. Why couldn't they do that? If they think there's something that really threatens the country, they can investigate it.

DONOHUE I think there are a couple of points that we have to make clear here. In the 70s the fiasco of Watergate made people think we want the magic bullet, the independent counsel law will be the magic bullet. And the answer is there is no magic bullet. The law is messy, the institutions are messy, the thing is, how can we incrementally move to something that will improve things and eliminate the striving for perfection that sometimes leads to worst of all worlds. I think that if you can have a situation in which there is serious allegations of misconduct Watergate actually shows that there will be pressure mounting to get a prosecutor appointed even in the absence of a law. So it's not as though without having a law at all you would be completely unable to investigate misconduct by a high official, but I think...

ROBINSON So to you, reforming the independent counsel statue or letting it die altogether is a close call.

DONOHUE Yes I really think...

ROBINSON It's not for David.

BRADY It's reasonably close. I don't think it's working particularly well for some time, I don't think..

ROBINSON How would you reform it? You like John's idea of exempting the president?

BRADY I actually did like that idea, I hadn't thought about that so I mean I haven't though about it for very long either about two seconds..

BROSNAHAN As far as this act is concerned, if you counted every critic of it from both parties since 1978 it would be unanimous and I think that's important. You and I are not happy with this and over time we don't want to have a governmental institution, which this has become , that we're not happy with.

ROBINSON At the time of the Iran Contra, James Brosnahan was part of the independent counsel's office. What does he think would've happened if that office in which he served had not existed?


ROBINSON Re-imagine history for me- there's no independent counsel statute, Lawrence Walsh is allowed to continue to practice....

BROSNAHAN Congress has to deal with it- they have to have hearings and they have to figure the summer of 1985 when President Reagan sat with 6 advisors and said, "I'm going to send missiles to Iran", what's the meaning of that? We have to get to the facts of it. I have a high regard, I imagine you do too, for the abilities of investigators that are staffed on Congressional committees. You can get the best people in the country, you bring them in and they find out. And then there's...

ROBINSON So the answer's there's no problem. If Congress had had the guts...

BROSNAHAN Well I wouldn't say no problem, because here's what I learned in Washington- when you're sitting there investigating things that have to do with the president of the United States and the CIA and the defense department, which was Iran Contra, it was in the security part of the government...when you're investigating that, to say you have no problem, that is not correct. But Congress would probably be in a more powerful position actually than with the independent prosecutor but the problem is going to be- when you have a president and a Congress of the same party, are they going to let things go by that are serious? That's the weakness of my position...

BRADY That's exactly the right question. Exactly the right question is this: had Watergate occurred, had it been a Democratic president with a Democratic Congress, what would've come out? And if the answer to that question is yes then he's right, if the answer to that question is no, then you do need an independent prosecutor.

ROBINSON Let me suggest two things: A, the answer is no, Watergate would not have come out and B, in the great scheme of things it wouldn't have mattered. Scalia, "While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty."

DONOHUE You know I think Robert Bork subscribed to Scalia's position at the time Scalia wrote that however recently Robert Bork has switched around and it shows that partisan...

ROBINSON How come Bork shows the partisan aspect but Jim doesn't?

DONOHUE People are much more sensitive to the misconduct of the people they don't like. And what you'd ideally like is a situation where people will look at a situation and say, hey, how would I feel if this was my guy doing this? You'd get very different answers if people tried to apply that standard.

ROBINSON Predictions, predictions..I began the show by asking whether Congress should reenact the statute as it stands, reform it or let it die. Now I want to know what you, as a political matter, think will happen.

BROSNAHAN In 1999 the Republican Congress will allow the bill to lapse.

ROBINSON And you a Democrat, will cheer?

BROSNAHAN I'll be happy.


BRADY I think the Republican Congress will be in exactly the opposite position. If they let it lapse the right wing in the party will say you have sold Kenneth Starr down the tubes so they'll not let it lapse but they'll pass it.

DONOHUE I would agree with David. Robert Bork I think has signaled what the Republican attitude will be when we are getting the guy we don't like, this statute looks like a good idea.

ROBINSON We've got two votes that the Congress does pass the legislation. Let me go to your question, Jim, and then we'll get out of here- Clinton signs it?

BROSNAHAN I think he would, but it's interesting to visualize it.


BRADY I think he will veto it if it's in its present state without major reform.


DONOHUE He signed it once before I think he'll sign it again.

ROBINSON Thank you very much- John, David, and Jim.

Here's the way our guests frame the choice Congress must make- reenact the statute and run the risk of independent counsel spending millions in taxpayers dollars persecuting public officials and undermining the executive branch or let the statute die and run the risk of an executive branch which is vast, rich, and powerful running amuck. And now, now we wait for Congress to decide. I'm Peter Robinson, thanks for joining us.

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