independent counsel

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Independent counsels were a post-Watergate attempt to establish a regular means of investigating alleged wrongdoing in the executive branch. Appointed by the Department of Justice or a special panel of judges, an independent counsel could prosecute cases in federal courts.

The independent counsel replaced the special prosecutor appointed by the attorney general, whose independence was guaranteed only by “guidelines” issued by the attorney general at the time of each appointment, by department regulations. Congress, responding to public lack of confidence in the aftermath of the Watergate crisis, wished to institute a system more independent of the Presidency and attorney general. Instead of leaving the initiative solely to the attorney general, it provided that a majority of either party's membership on the House or Senate Judiciary Committee could trigger a request for an independent counsel. Instead of leaving the appointment to the discretion of the attorney general, it provided that the appointment of independent counsel would be made by a special three-judge panel of the Court of Appeals for the District of Columbia. In this way Congress sought to restore public confidence in the integrity of prosecutors dealing in matters involving high administration officials.

Title VI of the Ethics in Government Act of 1978 provided for the appointment of an independent counsel to investigate and prosecute the President, Vice President, members of the cabinet, or other political executives appointed by the President if the attorney general received “specific information” about their possible violation of federal criminal law.

The attorney general conducted a preliminary investigation and then might request the appointment of an independent counsel. The Judiciary Committee of either the Senate or the House might also request the attorney general to conduct a “threshold inquiry,” which is a preliminary investigation of allegations of wrongdoing. If the attorney general failed to apply for an independent counsel, he or she had to explain the decision to Congress within 30 days.

The independent counsel received funds from Congress to conduct the investigation and trials. Title VII of the law provided that he or she could not be dismissed by the President or by the attorney general except on grounds of “extraordinary impropriety,” thus ensuring the integrity of the investigation.

In 1979 an independent counsel investigated President Jimmy Carter's chief of staff, Hamilton Jordan, on charges that he used cocaine but decided that prosecution was not warranted. President Ronald Reagan's attorney general, Edwin Meese, was subject to two investigations regarding his efforts to help a friend build an oil pipeline between Iraq and Jordan; he was not indicted. Two former Reagan White House aides, Lyn Nofziger and Michael Deaver, were investigated for lobbying activities within one year after leaving their government positions. An assistant to Samuel Pierce, Reagan's secretary of housing and urban development, was investigated for conflicts of interest involving the award of contracts. Secretary of Labor Ray Donovan was investigated for business activities that had occurred before he joined the Reagan administration. Reagan's secretary of defense, Caspar Weinberger, was indicted in 1992 for giving false statements to Congress about the Iran-Contra affair, in which U.S. arms were sold to Iran and the profits illegally diverted to the NicaraguanContras, but he was pardoned by President George Bush in 1992.

The legality of the independent counsel law came under attack from Colonel Oliver North, who was also investigated by the special prosecutor in the Iran-Contra affair. North charged that the appointment of the counsel was a violation of the doctrine of separation of powers (because the prosecutor was appointed by judges and not by the attorney general, a member of the executive branch). The Reagan administration also argued that the statute was unconstitutional because it infringed upon the Presidential removal power. Nevertheless, the Supreme Court upheld the law.

The independent counsel law expired in 1992, and Bill Clinton supported its renewal. The three-judge panel appointed Kenneth Starr to investigate Clinton's Whitewater land dealings. Starr was unable to link Clinton to criminal acts. He referred to the House of Representatives charges that Clinton perjured himself and obstructed justice in court proceedings involving his personal affairs, and the House impeached Clinton. Because of criticism of how the investigation was handled, with Democrats charging that the prosecution had been overzealous and had denied witnesses their due process rights, Congress in 1999 allowed the independent counsel statute to expire.

See also Appointment power; Ethics; Removal power; Watergate investigation (1973–74)

Sources

• Katy J. Harriger, Independent Justice: The Federal Special Prosecutor in American Politics (Lawrence: University Press of Kansas, 1991)

An attorney appointed by the federal government to investigate and prosecute federal government offi- cials.

Before 1988 independent counsel were referred to as special prosecutors. In 1988 Congress amended the Ethics in Government Act of 1978 (Ethics Act) (92 Stat. 1824 [2 U.S.C.A. § 701 et seq.]) to change the title to independent counsel. This change was made because lawmakers considered the term special prosecutor too inflammatory.

Independent counsel are attorneys who investigate and prosecute criminal activity in government. They hold people who make and implement laws accountable for their own criminal activity.

The need for independent counsel arises from the conflict of interest posed by having the established criminal justice system investigate government misconduct. Prosecutors and law enforcement agencies work under the authority of government leaders. When government leaders are accused of wrongdoing, these entities face conflicting duties: the duty to uphold the laws on the one hand, versus the duty of loyalty to superiors on the other. Independent counsel do not answer to the government officials they are assigned to investigate, and therefore avoid much of this conflict of interest. One potential element for bias remains: the political affiliations of the accused government official and the independent counsel. The people rely on independent counsel's duty as members of the bar to uphold the laws and the U.S. Constitution, to overcome any similarities or differences in political beliefs. Independent counsel who appear to be motivated by political or other bias may be dismissed.

President Ulysses S. Grant was the first to appoint independent counsel to investigate high-level federal government officials. In 1875 Grant's personal secretary, Orville E. Babcock, was indicted in federal district court on charges of accepting bribes. Babcock had allegedly arranged favorable tax treatment for a group of moonshiners known as the Whiskey Ring. Grant removed the federal district attorney and replaced him with an independent counsel, who finished the investigation and the trial.

In the early 1920s, another bribery scandal, known as Teapot Dome, led to the appointment of an independent counsel. President Warren G. Harding appointed independent counsel to investigate the sale of oil-rich federal lands. The independent counsel's investigation led to the prosecution of Harding's secretary of the interior Albert B. Fall.

In its later days, President Harry S. Truman's administration labored under allegations of corruption. Specifically, officials in the Internal Revenue Service and the Tax Division of the Department of Justice were accused of giving favorable treatment to tax evaders. Attorney General J. Howard McGrath appointed a special assistant attorney to investigate. When the special prosecutor sought to investigate McGrath, McGrath fired him. Truman then fired McGrath and refused to pursue the matter.

The Watergate scandals of the 1970s gave Congress the incentive to create the first statutory framework for investigating government officials. In 1973 newspaper reports concerning a burglary at the Democratic National Committee headquarters in the Watergate Hotel in Washington, D.C., implicated officials in the administration of President Richard M. Nixon. Attorney General Elliot L. Richardson appointed Archibald Cox, a Harvard law professor, independent counsel to investigate the situation.

Cox endeavored to uncover the facts surrounding Watergate. As it became apparent that White House officials were involved in the episode, Cox was forced to investigate the president himself. When Cox asked Nixon for White House tape recordings, Nixon sought to have Cox fired. One weekend in October 1973, in a turn of events later known as the Saturday Night Massacre, Richardson and Deputy Attorney General William D. Ruckelshaus resigned rather than carry out Nixon's order to fire Cox. That same night Solicitor General Robert H. Bork, who had just become acting head of the Department of Justice, carried out Nixon's request and fired Cox.

Nixon then appointed Leon Jaworski the second independent counsel to investigate Watergate. Like Cox, Jaworski sought Nixon's White House tapes. After a court battle that reached the U.S. Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), Jaworski successfully subpoenaed the tapes. Nixon resigned the office of president shortly thereafter.

After the Saturday Night Massacre and the Watergate matter, it became obvious that independent counsel were necessary to check government misconduct. In 1978 Congress passed the Ethics Act to establish on the federal level a statutory scheme for policing the executive branch.

Ethics in Government Act

Under the Ethics Act, the process of appointing independent counsel begins when the attorney general receives information on criminal activity. The attorney general may investigate all violations of criminal law other than minor misdemeanors and minor violations. This permission includes special ethics laws that apply to executive branch officials, such as laws that make it illegal for an executive branch official to receive money from a person if the official has arranged for that person to be employed by the federal government.

There must be sufficient credible information of criminal activity to constitute grounds for an investigation, and the information must be in regard to the president, the vice president, a member of the president's cabinet, a high-level executive officer, a high-level Justice Department official, the director or deputy director of the Central Intelligence Agency, the commissioner of the Internal Revenue Service, any person with a personal or financial relationship with the attorney general or any other officer in the Justice Department, or the president's campaign chairperson or treasurer.

Once the attorney general receives credible inculpatory information, the attorney general must decide within thirty days whether to investigate the matter. If the attorney general determines that the matter warrants an investigation, the attorney general must begin an investigation. The attorney general may not conduct this initial investigation for more than 150 days. At the close of the investigation, the attorney general must submit a report to the Independent Counsel Division of the U.S. Court of Appeals for the District of Columbia Circuit. The members of this three-judge panel are appointed by the chief justice of the U.S. Supreme Court.

In the report the attorney general must request or decline the appointment of independent counsel on the matter. This decision cannot be reviewed by a court. If the attorney general requests independent counsel, the panel must appoint one and define the scope of the investigation. Generally, the panel limits the counsel's investigation to certain persons or certain issues.

The appointment of independent counsel is unusual because the Department of Justice already is required to police the executive branch. In theory, the attorney general is an independent official. In practice, however, the attorney general usually is a political ally of the president. Like other executive branch officials, the attorney general is appointed by the president and reports to the president. Because the attorney general decides whether independent counsel should be appointed by the panel, an investigation can be influenced by the executive branch. An attorney general may be reluctant to recommend the prosecution of a political ally. However, if enough sources exert sufficient pressure, the attorney general may be forced to avoid the appearance of favoritism by requesting the appointment of independent counsel.

The appointment of independent counsel also is often politically charged in large part because independent counsel investigate executive branch officials and their political operatives. When politicians are investigated, an invariable response is that the investigation is politically motivated. Nevertheless, most politicians consider independent counsel crucial to conveying at least the appearance of propriety in the executive branch of government. The danger of independent counsel is that they may be called for on a regular basis by politicians opposed to the president, for the sole purpose of demoralizing the executive branch and gaining an electoral advantage.

Once appointed independent counsel may proceed as any other prosecutor. Counsel may file criminal charges in the U.S. District Court for the District of Columbia. Counsel has the power to subpoena witnesses, and to grant immunity to witnesses.

Under the Ethics Act, only the attorney general may fire independent counsel. Independent counsel may be dismissed only for good cause or because a physical or mental condition prevents counsel from performing the position's duties. Dismissed independent counsel may appeal to the U.S. District Court for the District of Columbia.

The first government officials investigated under the new Ethics Act were two officials in the administration of President Jimmy Carter. After investigating allegations of drug use and conflict of interest, the independent counsel declined to file criminal charges.

In May 1986 an official in the administration of President Ronald Reagan mounted a challenge to the Ethics Act. Theodore B. Olson, a former assistant attorney general in the administration, argued that the executive branch had the power to conduct all criminal investigations, and that it was unconstitutional for Congress to give the judiciary the power to appoint independent prosecutors. The Supreme Court disagreed, ruling that the Ethics Act was constitutional because the attorney general, an officer within the executive branch, had the power to remove independent counsel and therefore retained ultimate control (Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 [1988]).

The list of federal government officials investigated or prosecuted by independent counsel under the Ethics Act is long and ever growing. In December 1987 Michael Deaver, former aide to President Reagan, was convicted of perjury after prosecution by independent counsel. In February 1988 Lyn Nofziger, another presidential aide, was convicted of ethical violations. Nofziger's conviction was later overturned on appeal. President Reagan's attorney general Edwin Meese III resigned in July 1988 after an investigation by independent counsel James McKay. Although Meese was not prosecuted, McKay stated in his report to the panel that he believed that Meese had broken the law by helping a company in which Meese owned stock, Wedtech Corporation, solicit contracts with the U.S. military.

In December 1986, before he resigned, Meese appointed Lawrence E. Walsh independent counsel to investigate and prosecute wrongdoing in the burgeoning Iran-Contra scandal. The Iran-Contra Affair involved trading arms to Iranians and diverting the proceeds to fund a covert war in Nicaragua. Walsh was able to obtain several convictions of high-level Reagan administration officials, but some of those were overturned on appeal.

The administration of President Bill Clinton has also been investigated by independent counsel. Donald C. Smalz was appointed independent counsel to investigate Clinton's secretary of agriculture Mike Espy for receiving illegal gifts from companies regulated by the Department of Agriculture. In October 1994 Espy resigned his office.

In January 1994 Robert Fiske, Jr., was appointed independent counsel to investigate the death of White House counsel Vincent Foster and alleged financial misconduct by Clinton and the first lady, Hillary Rodham Clinton. Because the Ethics Act had lapsed, Attorney General Janet Reno chose Fiske herself. When Congress reauthorized the Ethics Act, Reno submitted the matter to the panel, and the panel appointed a new independent counsel, Kenneth W. Starr. Starr obtained several convictions.

Congress and Independent Counsel

When Congress is in session, independent counsel do not investigate and prosecute the criminal activities of members of Congress. Instead, Congress polices its members through ethics committees, and can expel a member with a two-thirds vote of the member's house (U.S. Const. art. I, § 5, cl. 2). Members of Congress cannot be arrested while Congress is in session, except for treason, felony, or breach of the peace (§ 6, cl. 1). When Congress is not in session, members of Congress are not exempt, and they may be prosecuted in the jurisdiction where an offense occurred.

Congress may also investigate official wrongdoing in the executive branch. When Congress and independent counsel are investigating the same persons or events, the matter can become a political tug-of-war, and one investigation can run afoul of the other. For example, if Congress grants immunity to a witness who is under investigation by independent counsel, it becomes difficult for independent counsel to prosecute the witness.

State or Local Independent Counsel

Independent counsel also may be appointed at the state or local level. In Alaska, for example, executive branch officials may be investigated by independent counsel appointed by a special personnel board (Alaska Stat. § 39.52.310 [1995]).

In its broadest sense, the term independent counsel can describe any attorney who is appointed by one party to represent, prosecute, or bring suit against someone connected with that party. For example, in Alaska, a municipal school board is represented by a municipal attorney. If the municipal attorney has a conflict of interest in a particular matter, the school board may hire independent counsel for that matter (§ 29.20.370). Thus, if the municipal attorney owns stock in a construction company hired by the school board, the school board might seek a different attorney to handle legal issues associated with that company, in order to avoid the appearance of collusion between government and private business. The new attorney would be called an independent counsel to describe her or his independence in the matter.

See: Congress of the United States.

United States Office of the Independent Counsel was an independent prosecutor — distinct from the Attorney General of the United States Department of Justice — that provided reports to the Congress under 28 U.S.C. § 595. The office was terminated in 1999 and replaced by the U.S. Department of Justice Office of Special Counsel.

Contents 1 History 2 Timeline 3 Investigations carried out by Independent Counsel 4 Notes and references 5 External links

History

In 1978, a Democratic Congress was determined to curb the powers of the President and other senior executive branch officials due in part to the Watergate scandal and related events such as the Saturday Night Massacre. They drafted the Ethics in Government Act, creating a special prosecutor (later changed to Independent Counsel) position, which could be used by Congress or the Attorney General to investigate individuals holding or formerly holding certain high positions in the federal government and in national Presidential election campaign organizations.

The prosecutor, who was appointed by a special panel of the United States Court of Appeals for the District of Columbia Circuit, could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could be dismissed only by the Attorney General for "good cause" or by the special panel of the court when the independent counsel's task was completed. As the president could not dismiss those investigating the executive branch it was felt that the independence of the office would insure impartiality of any reports presented to Congress. However, there have been many critics of this law including Supreme Court Justice Antonin Scalia. Many argued the new Independent Counsel's office was a sort of "fourth branch" of government that had virtually unlimited powers and was answerable to no one. However, the constitutionality of the new office was ultimately upheld in the 1988 Supreme Court case Morrison v. Olson.

Previously under the Independent Counsel Reauthorization Act of 1994, United States Attorney General Janet Reno had Donald C. Smaltz appointed Independent Counsel by the United States Court of Appeals for the District of Columbia (Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended, Division 94-2) on September 9, 1994, to "investigate to the maximum extent authorized by law" whether the US Department of Agriculture Secretary Mike Espy "committed a violation of any federal criminal law . . . relating in any way to the acceptance of gifts by him from organizations or individuals with business pending before the Department of Agriculture." Smaltz was also given jurisdiction to investigate "other allegations or evidence of violations of any federal criminal law by organizations or individuals developed during the course of the investigation of Secretary Espy and connected with or arising out of that investigation."

The most famous Independent Counsel was Kenneth Starr, whose report led to the impeachment of President Bill Clinton. The most recently appointed and now dormant Office of the Independent Counsel was created to investigate the death of Vincent Foster, Whitewater and Monica Lewinsky scandals, among other prosecutions.

The Office of the Independent Counsel is not to be confused with the U.S. Office of Special Counsel (OSC) which is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.

It should also not be confused with the "independent counsel" who is appointed by the Attorney General pursuant to United States Department of Justice regulations. 28 Code of Federal Regulations 600.1. There have been three independent counsels of this type regarding the following: the Iran/Contra investigation in 1987 (sec. 601.1); Edwin Meese III and the Wedtech case in 1987 (sec. 602.1); and President and Ms. Clinton in the Madison Guaranty/Whitewater case in 1994 (sec. 603.1). Finally, it should also not be confused with the appointment in 2003 of Patrick Fitzgerald ("United States Department of Justice Office of the Special Counsel") regarding the investigation into the public naming of CIA spy Valerie Plame. This was done pursuant to the general statutory authority of the Attorney General.^[1]

Timeline

• Originally created by the Independent Counsel Act (1978) and the Ethics in Government Act Amendments of 1982 (96 Stat. 2039), January 3, 1983
• Reauthorized for five years by the Independent Counsel Reauthorization Act of 1987 (101 Stat. 1293), December 15, 1987
• Lapsed, December 15, 1992, by failure of reauthorization
• Reinstituted by the Independent Counsel Reauthorization Act of 1994 (PL 103-270), June 30, 1994
• Expired at midnight on June 30, 1999

Investigations carried out by Independent Counsel

• Independent Counsel Arthur Christy relating to allegations of illegal drug use of Jimmy Carter's aide Hamilton Jordan, 1978
• Independent Counsel Leon Silverman relating to Raymond Donovan, 1981-84
• Independent Counsel Jacob A. Stein relating to Edwin Meese III, 1984
• Independent Counsel Whitney North Seymour, Jr. relating to Michael Deaver, 1981-89
• Independent Counsel Alexia Morrison relating to Theodore Olson, 1986-88
• Independent Counsels Arlin Adams and Larry Thompson relating to Samuel Pierce and others associated with the U.S. Department of Housing and Urban Development, 1988-98
• Independent Counsel Lawrence E. Walsh relating to the Iran-Contra affair, 1986-93
• Independent Counsels Joseph DiGenova and Michael Zeldin relating to improper search of passport records, 1992-95
• Independent Counsel Donald Smaltz relating to charges of corruption against Mike Espy, 1994-2001
• Independent Counsel David Barrett relating to Henry Cisneros payments controversy, 1995-2006
• Independent Counsel Curtis Emery von Kann relating to Eli J. Segal, 1996-98
• Independent Counsels Kenneth Starr, and Robert Ray relating to the suicide of Vince Foster, the Whitewater scandal, Travelgate, Filegate, and later the Lewinsky scandal, 1994-2001
• Special Counsel, Nicholas J. Bua (November 13, 1991) relating to allegations that high-ranking officials of the United States Department of Justice during the Reagan Administration (1981–89) had acted improperly for personal gain to bankrupt Inslaw Inc.. Bua was appointed by Attorney General William Barr to advise Barr on whether or not an independent prosecutor ought to be appointed to investigate the allegations.^[2]

Notes and references

1. ^ http://www.usdoj.gov/usao/iln/osc/
2. ^ Opinion (1991-12-07). "Justice in the Inslaw Case". New York Times. http://query.nytimes.com/gst/fullpage.html?res=9D0CE6DF163CF934A35751C1A967958260. Retrieved 2008-09-11. 

External links

• United States Office of the Independent Counsel Official
• Final Report of Independent Counsel Walsh (August 4, 1993)
• Final Report of the Independent Counsel (March 2002)
• Final Report of Independent Counsel Starr
• IC Starr's Referral Report to Congress (September 9, 1998)
• Report of Independent Counsel Smaltz (October 2001)
• NARA Archives of the Independent Counsels

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