The Independent Counsel

Dear Akhil:

       So we agree: The independent counsel statute is unconstitutional. And we agree that the decision upholding it should be overruled: It’s hardly the sort of landmark that deserves to be retained right or wrong, and overturning it won’t cause the constitutional earth to move. Whether the Supreme Court as currently composed would agree isn’t worth lingering over; I’d be delighted if my pessimism on that score proved wrong, and it’s not a matter reason can really resolve anyway.
       More interesting is the question: What should the other branches do absent a turnabout by the Supreme Court? On that issue, you’re preaching to the choir when you say the political branches must take their constitutional duty seriously even when doing so means disagreeing with the Supreme Court. That’s a view I’ve defended ever since the first edition of my constitutional law treatise was published in 1978.
       It’s not easy to decide when an executive officer such as the attorney general should nonetheless feel bound, despite her oath to uphold the Constitution, to follow a judicial construction of the Constitution that she regards as erroneous, and when she should instead feel bound to follow the Constitution as she best understands it despite the central role of the Supreme Court in expounding the Constitution’s meaning and in preserving the rule of law. A segregationist president who refuses on constitutional grounds to enforce a federal law mandating racial integration of public schools after being told by the Supreme Court that the law is constitutional can hardly be compared with a president who invokes the First Amendment when refusing to prosecute those who criticize the government and thereby violate a resurrected Sedition Act upheld by the Supreme Court, or with a president who refuses to order the summary execution of a suspected terrorist, identified by name in an Act of Congress sentencing him to death, even if that federal enactment has received the highest court’s blessing.
       You seem to suggest that a refusal by the attorney general to cause the appointment of any more independent counsels would find support in the “unreviewable discretion” not to trigger an independent counsel’s appointment that the statute itself, as judicially construed, gives the attorney general. If the sole objective is to avoid executive/judicial friction, I suppose you’re right. But, from the perspective of preserving and protecting the Constitution, the very fact that a contemplated action won’t be reviewable in court underscores the seriousness of the actor’s obligation to keep faith with the Constitution and to give considerable although not decisive weight to the Supreme Court’s reading of that document. That said, I still conclude that an attorney general who has conscientiously come to regard the independent counsel law as unconstitutional should decline to trigger any further appointments of counsel under it.
       But, just as the nonreviewability of such a negative decision is no excuse for treating its constitutional underpinnings casually, so the nonreviewability of a decision by the House or Senate as to what constitutes an impeachable offense is no excuse for saying that such an offense is whatever Congress wants it to be. On the contrary, the Impeachment Clause of Article II, Section 4, in saying that federal officials may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” identifies a category of grave abuses of power that contrasts with “Treason, Felony and Breach of the Peace”–the offenses from which Article I, Section 6 withholds congressional arrest immunity–and with “Treason, Felony, or other Crime”–the offenses which give rise to a duty of interstate extradition under Article IV, Section 2.
       That little-noted textual contrast, and the history of the Impeachment Clause from its roots in 14th century England to its drafting by the Constitutional Convention and its discussion in the ratification debates, points strongly to the conclusion that, with the exception of crimes so heinous as to render the wrongdoer unfit to be at large, and with the further exception of serious criminality in the effort to retain or expand one’s official power, it is only the grossly abusive exploitation, whether criminal or not, of power held by virtue of one’s office that identifies misconduct as a high crime and misdemeanor. To impeach a president for anything less than this sort of assault on our constitutional system, and especially to do so on the grounds that the president has lost the confidence of Congress (or perhaps of the people), is to take a radical step in the direction of a parliamentary (or even a plebiscitary) system that the Constitution conspicuously rejected.
       For those who think the independent counsel’s charges against President Clinton fail to meet this standard but who also believe the president conducted himself so abominably that he should not be permitted to get off with mere personal humiliation, a diminished presidency, and the prospect of criminal prosecution after he leaves office, the compromise of congressional censure, cast so as to be truly punitive (perhaps with a fine to boot), has obvious appeal. Although the president might well lack standing to challenge such a censure in court if he were a party to the bargain that generated it, here as elsewhere the absence of a judicial accounting must not be equated with freedom to ignore the Constitution. And the Constitution’s ban on bills of attainder–punishments inflicted pursuant to trial by legislature–almost certainly rules out any punitive measure, imposed by Congress upon anyone other than one of its own members, that is not the result of the special procedures, coupled with the unique safeguards, of impeachment in the House and trial in the Senate. Because the Bill of Attainder Clause has long been recognized as a central expression of the separation of powers–a structural principle and not simply a personal privilege–not even the president’s plea that he be censured rather than impeached, convicted, and removed from office would cure the constitutional defect.
       But one compromise is available that both avoids this constitutional flaw and requires no cooperation from the independent counsel: Just as Congress may legislate private bills to immunize named individuals from deportation or other sanctions in the immigration context, so too may Congress enact a law immunizing a particular person–say, President Clinton–from criminal prosecution for any offense relating to an impending or ongoing impeachment inquiry. If Congress may enact such a “reverse bill of attainder,” then it may presumably provide that this presidential bailout kicks in only if the president publicly admits having committed the offenses in question and makes a congressionally specified payment to the Treasury. And it would be appropriate for the president, as part of this hard bargain, to expect the House to forswear the impeachment option and the Senate to terminate his trial if it is already underway–although of course neither action could bind a future House bent on proceeding anew with impeachment.
       I’d be curious to know what you think of this approach to impeachment–and of possible compromises. Whether those in power on Capitol Hill are yet open to such alternatives, it seems important to pave the way to their serious consideration if and when people grow exhausted from the bloodletting.