Against the Independent Counsel
For almost fifteen years America has experimented with a second and separate system of criminal-law enforcement. The Ethics in Government Act of 1978 created court-appointed independent counsels, placed outside the control of the President and the Attorney General, to investigate and, where possible, prosecute certain high-ranking executive-branch officials. Members of Congress and the judiciary were exempted. The statutory authorization for the Office of Independent Counsel expired this past December, but as a result of the pardons George Bush extended on Christmas Eve to six former officials involved in the Iran-contra affair, the chances that Congress and President Bill Clinton will revive the law seem to have increased. They should first study the record, which has been abominable.
The conventional wisdom, echoed on almost all editorial pages, holds that an independent counsel is essential because the Department of Justice cannot be trusted to prosecute miscreants in the executive branch. The conventional wisdom is wrong. The real effect and, to a large extent, the purpose of a special-prosecutor law has little to do with Department of Justice cover-ups.
“If the institution of the American presidency has grown enfeebled over the past two decades,” Suzanne Garment of the American Enterprise Institute writes,
it is not only because of battles with its opponents over policies or institutional prerogatives. Its adversaries have also waged a crucial and more or less continuous attack on the underlying moral legitimacy of the office, its occupants, and the President’s allies in the executive branch.
A spearhead in the assault on the moral legitimacy, and hence the effectiveness, of the presidency has been the independent-counsel statute. The statute has helped tilt the balance between the executive and legislative branches and has, as a result of the prosecutorial incentives it created, produced savage injustices to individuals. All of this to cure a problem that does not exist.
Two instances routinely cited as showing the need for an independent prosecutor are the Department of Justice’s handling of the cases of Spiro Agnew and Richard Nixon. If those two examples do not withstand scrutiny, the argument for a new statute collapses, because there could hardly be greater tests of the Department’s capacity than its handling of the wrongdoing of a President and a Vice President. As Solicitor General at the time, I participated in both matters and claim some knowledge of what took place.
In the summer of 1973, George Beall, the United States Attorney for Maryland, discovered that Spiro Agnew had taken bribes when Governor of Maryland and had continued to receive payments while Vice President. Beall informed Attorney General Elliot Richardson. There can be few more startling and unhappy messages for an Attorney General to receive, but Richardson informed President Nixon, had a grand jury investigate Agnew, and ultimately indicted him. After Agnew’s attorneys and I exchanged briefs on the constitutionality of indicting him before he was removed from office by conviction on impeachment, he plea-bargained, confessed his guilt, and resigned the vice presidency.
Though the Department of Justice thus demonstrated that it could remove an incumbent Vice President, some critics apparently believe that Agnew was treated too leniently, that he should have been sent to prison. That option, however, was not available. The Watergate investigation was closing in on Richard Nixon, and Richardson thought it would be devastating to the nation if the President were defending an impeachment trial while the Vice President was a criminal defendant. Agnew used that as a bargaining chip and the deal was struck to be rid of him so that a new Vice President could be in office if Nixon should be impeached. That seemed to me then, and seems to me now, the only responsible course for Richardson to have taken.
The prime exhibit in the argument of those who want an independent counsel, however, is Watergate and what came to be called the Saturday Night Massacre. In fact, those episodes have been thoroughly misunderstood.
The initial investigation of the break-in at the Watergate complex was conducted by Earl Silbert and his colleagues in the Office of the U. S. Attorney for the District of Columbia. The facts unearthed caused Silbert to order research on the constitutionality of indicting the President before he was removed from office by conviction on impeachment. He also issued a wide-ranging subpoena for White House documents. Silbert and his colleagues were ready to make the case against Nixon and his aides, but Elliot Richardson had just been nominated by Nixon for the post of Attorney General, and the Senate Judiciary Committee conditioned confirmation on Richardson’s agreement to appoint a special prosecutor. Richardson chose his old law-school professor, Archibald Cox. Silbert gave Cox about 90 typewritten pages outlining the conspiracy and the evidence. More work remained to be done, but the essential outline of the case was there. Watergate would have played out about the way it did had the U.S. Attorney’s Office been allowed to continue.
Though there was no need for a special prosecutor to deal with Watergate, it was politically inevitable that one would be named. But there might not have been a further demand for a special prosecutor removed from all executive-branch control had it not been for the Saturday Night Massacre (that is, Nixon’s firing of Cox, together with the resignations it triggered). For almost 200 years, the public and Congress had been satisfied with what Terry Eastland of the Ethics and Public Policy Center calls the “politics of ethics.”1 The instruments of that politics included investigation and prosecution by the Department of Justice or by special prosecutors brought in for single occasions; congressional investigation; impeachment; clamor in the press; and, most effective, public reaction that determined the political future of those involved in wrongdoing.
The Cox firing changed all that. Although Cox was a man of integrity and ability, Richardson made a mistake in naming him special prosecutor. Nixon was immediately convinced that the investigation would be partisan because Cox was a long-time ally of Nixon’s despised and feared political enemy, Senator Edward Kennedy. To compound matters, Cox made the politically maladroit move of taking the oath of office with the Kennedy family in attendance. The newspaper accounts and photographs of that event magnified White House paranoia.
Actually, Cox’s behavior as special prosecutor did not warrant distrust. Any prosecutor, on learning of the existence of the tapes Nixon had secretly made, was bound to seek them, by subpoena if necessary. Cox did just that, and panic rolled over the White House. Richardson and the President’s top defense lawyers attended a meeting in the office of Alexander Haig, Nixon’s chief of staff, to decide what to do about the subpoena. The answer was in two parts. The first was to offer the “Stennis compromise.” Senator John Stennis would listen to the subpoenaed tapes and produce a transcript from which national-security matters were deleted. The second part was to give Cox an order to seek no further tapes.
It is surprising that no one at the meeting realized this was a prescription for disaster. It should have been obvious that Cox could not accept either the compromise or the order. To do so would have been to betray his responsibilities. It should also have been clear that Richardson, given his commitment to the Senate Judiciary Committee, could not fire Cox for refusing the order. Apparently neither of these things was thought through, and once the order was given, the Saturday Night Massacre became inevitable.
Cox predictably refused and explained his decision on national television. Though Cox’s decision was correct, Nixon now had to fire him: no President can afford to be faced down in public by a subordinate member of the executive branch. Richardson and the Deputy Attorney General would not carry out the firing and departed. I was the third and last in the line of succession established by Department regulations, and I discharged Cox. Had I not done so, the President would have named an Acting Attorney General from outside the Department who would have discharged Cox and perhaps his entire staff. That would have caused mass resignations in the Department of Justice. As it was, I explained the situation to the top officers of the Department and no one resigned.
Whatever the motivation behind the order to Cox, his firing had nothing to do with any attempt to stop the investigation. No one at the White House suggested that I interfere with the investigation in any way. When I met with Nixon after signing the letter removing Cox from office, the President understood that the investigation would continue and said only that he wanted “a prosecution, not a persecution.” Cox’s deputies and staff remained in place and, as they noted in their final report, did not miss a day’s work.
It is partly my fault that the “firestorm,” and hence the demand for a court-appointed prosecutor, followed. When I left the White House that night, I should have held a press conference to explain that only Cox was going and his staff would continue as before. That would have countered the impression that a coup was being attempted. I was new to Washington, however, and a press conference never crossed my mind, nor did anyone suggest the idea. That mistake aside, however, the Department of Justice had nothing to apologize for in its handling of Watergate or the Saturday Night Massacre.
In the Nixon and Agnew cases, no one at the main Department of Justice or in the United States Attorneys’ Offices was tempted to ignore the evidence in order to protect the President or the Vice President. It may be objected that the nation cannot rely upon always having persons of integrity in those positions. But anyone familiar with institutions such as the Department of Justice or a U.S. Attorney’s Office will realize that there are other safeguards.
Let us suppose that in the Nixon or the Agnew affair either or both the U.S. Attorney and the Attorney General had been men of less exacting ethical standards. They would have found it impossible to suppress the evidence. High-ranking law-enforcement officials do not go about detecting crime on their own. Evidence is brought to them by others. The facts are known to lower-level prosecutors, FBI agents, often to a grand jury. These are people of professional integrity who also possess keen instincts of self-preservation. They will not be associated with a cover-up, and cannot afford to be. Nor need they have the courage to go public. They have connections with Congress, the press, and public-interest organizations. If an Attorney General had tried to protect Nixon or Agnew, that fact would have been leaked at once. The more spectacular a case is, the higher it reaches into the executive branch, the less willing is anybody to be connected in any way with a cover-up or even the suspicion of one.
Richard Nixon’s presidency was doomed from the moment the investigation started, and it really did not matter whether the U.S. Attorney’s Office, Cox, or his successor, Leon Jaworski, was in charge. The Watergate investigation could not have been avoided, and once started, it could not have been stopped. There is simply no danger that any criminal violation by a high-ranking official in the executive branch will be hidden by the Department of Justice. Though the fact has been overwhelmed by the mythology of Watergate and the Saturday Night Massacre, there is no case in our history in which the Department failed in its duty to prosecute executive-branch wrongdoing.2
That is one reason I testified to both the Senate and House Judiciary Committees in 1973, very shortly after the firing of Cox, that a mechanism for obtaining court-appointed special prosecutors was unnecessary as well as unconstitutional, and that I would therefore recommend to the President that he veto any bill seeking to establish such an office.
No bill was passed, and we escaped the predictable horrors of the institution, until Jimmy Carter became President and supported such a measure. Carter’s Attorney General, Griffin Bell, understood the evil of the scheme but loyally backed his President. Since Carter left office, Bell, freed of his commitment, has consistently argued against the legislation.
The independent-counsel statute went through several versions but all versions displayed the features that make the law a recipe for irresponsibility, injustice, and the deformation of the constitutional balance between the legislative and executive branches.
In the Office of the Independent Counsel, Congress created, for the first time in our history, a federal prosecutor who is not really responsible to anyone. Under this statute, when the Attorney General receives allegations of criminal behavior by a high-ranking executive-branch official he must make an inquiry, but he is now deprived of most means of investigation. Unless, thus handicapped by the statute, he can determine that there are no reasonable grounds to believe that further investigation is warranted, he must ask the court to appoint an independent counsel. If a designated number of members of the Judiciary Committee of either House requests an independent counsel, the Attorney General must either agree or submit a report to Congress explaining his negative decision. In short, despite the Constitution’s commitment of law enforcement to the President, he and his Attorney General are effectively stripped of that function in cases covered by the statute.
To make matters worse, when an independent counsel finishes his assignment, he must file a report with the court “setting forth fully and completely” a description of his work, the disposition of all cases brought, and his reasons for not prosecuting any matter. The court may then release the report, or such portions of it as it deems appropriate. No regular prosecutor would make public his reasons for not indicting, but the release of the special counsel’s report can result in considerable embarrassment to the persons involved.
It is hardly surprising that such a statute is subject to abuse and that lawyers of great distinction have thought it unconstitutional. Thus, in the case of Morrison v. Olson, former Attorneys General Edward Levi, Griffin Bell, and William French Smith, who served, respectively, under Presidents Gerald Ford, Jimmy Carter, and Ronald Reagan, submitted a brief amicus curiae asking the Supreme Court to invalidate the law. It is a great pity that the Court did not follow their recommendation.
Morrison v. Olson was a classic use of the independent-counsel statute to weaken the presidency by punishing an executive-branch official for carrying out his duties. A committee of the House demanded files of cases the Department of Justice and the Environmental Protection Agency were investigating or prosecuting. No law-enforcement officer could properly reveal that information. On the advice of the Department of Justice, President Reagan refused disclosure. The committee, enraged at this display of responsibility, asked the House Judiciary Committee to investigate the role of the Department in advising the President.
The Judiciary Committee subpoenaed all the memoranda prepared by Justice in advising the President and called Theodore Olson, the Assistant Attorney General responsible for giving legal advice to the Attorney General and the President. Some materials had been produced and a file search was continuing. Olson said he did not recall whether certain documents existed. Later they were found and produced to the committee.
Still, the committee was angered by Olson’s forthright defense of the President’s law-enforcement powers. On one occasion, the committee demanded any handwritten notes the Department’s lawyers might have made in preparing their advice. Olson replied that he was sure the committee could arrange an exchange of those notes for the handwritten notes of the committee’s staffers. One member rose, slammed the file down, and said that was the most outrageous remark he had ever heard.
The hearings were so inconsequential that they were not even published. But over two years later, the committee delivered a 3,100-page report accusing Olson of making false statements to Congress when—to cite one instance—he said he could not recall documents that were later produced. Alexia Morrison was appointed independent counsel and Olson’s travails began.
Within six months, in seeking unsuccessfully to expand her jurisdiction to others, Morrison stated that, standing alone, Olson’s testimony probably did not violate any criminal statute. Nevertheless, she took almost three years before she announced that there was no case against him.
In the course of these proceedings, Olson challenged a subpoena on the grounds that the independent-counsel statute was unconstitutional. He lost, but in upholding the constitutionality of the law, the Supreme Court created a number of constitutional anomalies that the Founders certainly never contemplated.
One of the most serious is to involve Congress in law enforcement directed at the executive branch. The Constitution protects members of Congress from executive-branch prosecution through the Speech and Debate Clause which makes them legally immune for anything said or written in the course of their duties. No such constitutional protection was thought necessary for the executive branch because it was given control of prosecutions. But now the Court has allowed prosecutions of the executive branch that are effectively initiated by Congress. That is not quite a bill of attainder, but it is a lot closer than the Constitution, properly interpreted, allows. The unfortunate outcome of Morrison v. Olson leaves the executive branch largely defenseless against this sort of assault. The power to pardon is one of the few shields the President has left.
Though Chief Justice Rehnquist’s Morrison opinion was unpersuasive, only Justice Scalia dissented, so it is clear that hopes for the law’s permanent demise rest not with the Court but with the wisdom and good will of Congress. Given the use Congress has made of the law in the past, the prospect is bleak.
In addition to everything else that is wrong with it, the institution of the independent counsel damages lives and reputations in ways that few regular prosecutors ever could or would. The human as well as the institutional costs are described rivetingly by Elliott Abrams in Undue Process: A Story of How Political Differences Are Turned Into Crimes.3
When he left the State Department in 1989 after serving there in a variety of positions since 1981, Abrams intended to write a book, but this is not the one he planned. Abrams’s last job at State was Assistant Secretary for Inter-American Affairs. Among his many duties was carrying out Ronald Reagan’s policy of keeping the Nicaraguan contras a viable force against the Sandinistas. That involved him in two wars:
a guerrilla war in Central America, and an almost equally violent political war about Central America between the Reagan administration and the Democratic-controlled Congress.
In the fall of 1986, the Iran-contra affair exploded and Abrams was called to testify before Congress, the Tower Commission, and a grand jury about the nature of U.S. support for the contras. An independent counsel, Lawrence Walsh, had also been appointed to investigate Iran-contra. He and his staff interviewed Abrams endlessly and took him before the grand jury three times. In early 1988, he was told that the Office of the Independent Counsel believed his statements, and he heard no more about the matter.
Until 1991. Taking into account everything else we now know about that Office, it seems too much of a coincidence that the prosecutors’ interest in Abrams should have reawakened right after they lost the case against their most famous target, Oliver North, and when all indications were that they would also lose their other most important case—the one against John Poindexter. After all, they had no information about Abrams they had not had three-and-one-half years earlier.
The supposition that Walsh and his staff went after Abrams because they badly needed trophies to justify their existence is strengthened by the absurdity of the misdemeanor charges they leveled against him. The first was that he knew North had been encouraging a private supply network to support the contras when he, Abrams, had testified to the Senate Foreign Relations Committee that the United States government was not involved with that network. But there was never any secret about the fact of encouragement. Abrams thought he was talking about illegal operational involvement.
The second charge was that when asked by a House committee whether any foreign government was helping the contras, Abrams had said none was, although he knew that funds not yet delivered had been promised by the Sultan of Brunei (who had asked for, and received, pledges of absolute secrecy from our government). Subsequently he made the same denial to a Senate committee, but ten days later, feeling that the denial, while literally true, might have been a bit too close to the line, he went back and informed the Senate committee. The independent counsel charged him with withholding evidence from the House committee.
The answers Abrams gave were not prepared in advance; they were spontaneous responses to hostile questioning. Five years later, equally hostile prosecutors scrutinized every nuance, like lawyers examining a stock prospectus, to see if something, anything, could be said to have been withheld. They had picked their man and had only to imagine a crime. Indeed, a former member of Walsh’s team, Jeffrey Toobin, wrote a book disclosing the team’s eagerness to prosecute Abrams and their disappointment that they had not found sufficient evidence. Walsh rejoined: “He [Toobin] missed his target. He was supposed to get Abrams. We hit the target after he left.”
If the charges were based on prosecutorial hair-splitting, why did Abrams plead guilty to these two misdemeanor counts? There was the prospect of another two years of agony for himself, his wife, and his children and of an estimated $1 million in legal fees that would have drained his and his relatives’ savings and left him in debt. But the greatest pressure was the threat that the independent counsel would file an indictment charging multiple felonies in the expectation that the jury would compromise by acquitting him of most but convicting him of one or two. That would mean time in prison as well as disbarment as an attorney.
Abrams was right to fear that outcome. Judge Learned Hand once said that above almost all things, he would dread having his fate in the hands of a jury. The misdemeanor pleas allowed Abrams and his family to resume their lives. It was an eminently sensible decision. Walsh’s office offered Clair George, a high CIA officer, the misdemeanor route, George rejected it, was then indicted on seven felony counts, and ultimately convicted of two of them. Later, Walsh’s office offered former Secretary of Defense Caspar Weinberger the chance to plead guilty to a misdemeanor with no jail time, in return, according to Weinberger, for implicating Ronald Reagan. Weinberger rejected the offer and Walsh indicted him on five felony charges.
Of course, it is clear that Walsh and his staff wanted bigger game than Elliott Abrams. They repeatedly tried to get him to implicate an aide to George Bush, “trying [to] start something up that would end in impeaching the President.” They were also eager to get former Secretary of State George Shultz. Walsh has now made it clear that his office is still trying to get Bush.
Weinberger’s case was awaiting trial when Bush pardoned him, as well as George, Abrams, and three other former officials involved in Iran-contra. Angered at the escape of his prey, Walsh accused Bush of a “cover-up” and stated that the lame-duck President was a “subject” of investigation. These are remarks that would be highly inappropriate, and perhaps punishable under the code of professional ethics, if made by a regular prosecutor. They are no less so when flung out by an independent counsel.
Walsh’s fury is not hard to understand. For, having set out to uncover a conspiracy, and to prosecute for real crimes, his office has ended up—after spending six years and $35 million—with a record that ranges from poor to disastrous, prosecuting people for not being sufficiently forthcoming. If they could add a former President or Secretary of State to their game bag, they seem to feel, at least something might be retrieved.
In the process, Walsh’s prosecutorial team has behaved in ways more morally questionable than did their victims. Walsh’s chief deputy, Craig Gillen, in writing to the probation officer who was preparing a recommendation to the judge who would sentence Abrams, both withheld information and made an allegation the prosecutors knew to be false. Not only did the letter give the impression that Abrams had initiated the idea of soliciting third countries for contra support—ignoring that President Reagan had made that decision and that Secretary Shultz had authorized every action taken; Gillen also said that Abrams went to London under an assumed name to meet the Sultan of Brunei’s representative, when the prosecutors had numerous documents that showed he had traveled under his own name. As meticulous as Gillen and the others had been in analyzing every detail to “get” Abrams, it passes belief that this letter, designed to influence the sentence, could have been the result of an oversight.
The lessons of Elliott Abrams’s book are several. Some independent counsels have performed their tasks admirably. But the incentives the statute creates ensure that others will bring prosecutions that no regular prosecutor would bring, and that never should be brought. The independent counsel is set up with an unlimited budget to investigate one person or a small group of persons. The job, moreover, offers the chance to become a national figure, but only if scalps are taken. The independent-counsel statute, therefore, has built into it the certainty of pain and injustice to many innocent people. Abrams and his family are only one example.
The main problem, however, is that the independent counsel is accountable to no one. Four days before the 1992 presidential election, Walsh filed a second indictment of former Secretary of Defense Caspar Weinberger, which included a note suggesting that George Bush knew more about Iran-contra than he had admitted. The judge dismissed the new count as barred by the statute of limitations. The point of the charge was that Weinberger had kept notes he did not disclose and so it was wholly unnecessary to include that particular note. Moreover, the prosecutors can count as well as the judge, and their theory of why the new count was timely was implausible, so they must have known when they filed the indictment that the charge would likely be dismissed. Any regular prosecutor, accountable to a superior, would undoubtedly be called on the carpet, and probably discharged, for what looks remarkably like a partisan attempt to influence the outcome of a presidential election. So far as is known, no action is being taken against Walsh.
The independent-counsel law, however, has achieved its main objective: undermining the legitimacy and efficiency of the executive branch. Abrams, for example, advises officials of that branch to take no notes. Years later, you may not remember what certain phrases in your notes meant, but the independent counsel will be able to suggest sinister implications. Caspar Weinberger would probably give the same advice. Officials will undoubtedly be less energetic in asserting the President’s interests and powers before Congress, even when they would be absolutely correct to do so. One wonders how resolute the next Theodore Olson will be.
Except for George Bush’s pardons, Presidents themselves have been loath to stand up to the independent-counsel system. Abrams felt he was abandoned by Ronald Reagan and his administration. The State Department’s lawyers may assist an official in an investigation of his official conduct until it is clear that he is targeted for indictment, but, at Walsh’s insistence, those lawyers were ordered not to assist Abrams in connection with the independent counsel’s inquiries even while Abrams was an Assistant Secretary and not targeted. It is not surprising that he speaks contemptuously of “Reagan-administration officials who had gone on to their glory and had left me and a few others out there on the beach to take the incoming fire.” It has been observed before that the Reagan administration demanded loyalty up but did not practice loyalty down. The question is not merely one of loyalty to subordinates and behaving honorably oneself; by cutting the lifelines to people like Abrams, the Reagan administration made it likely that future Presidents will get less loyalty up and more subordinates whose primary concern is their own skins.
The subtitle of Abrams’s book alleges that political differences were turned into crimes. It is difficult to disagree. The charges against him were for statements of a kind that had never before been made criminal. Abrams’s real offense was battling for Reagan’s policies against a Congress that kept changing its attitudes but often favored the Sandinistas over the contras. Worse, he was intelligent, tough, and self-confident—qualities which, though they annoy some Congressmen, are not usually regarded as criminal. As the Abrams, Olson, and Weinberger cases show, in operation the independent-counsel statute has criminalized political differences, but the only “criminals” it has turned up have been, as Congress intended, in the executive branch. If the law is reenacted, that will not be because Congress has not understood what it has seen; it will be because Congress likes what it has seen.
1 Ethics, Politics, and the Independent Counsel: Executive Power, Executive Vice 1789-1989, National Legal Center for the Public Interest (1989). This is the best scholarly analysis I know of concerning the great deficiencies of the independent-counsel system.