Should We Ditch the Independent Prosecutor Law?

Dear Ken,

End it, don’t (a)mend it. I refer, of course, to the independent counsel statute, scheduled to sunset this summer. Your recent scholarship has suggested that we can fix the damn thing, tweaking it here and adjusting it there, but preserving its basic structure. Wrong. Its basic structure–involving judges picking and supervising prosecutors–is fundamentally unconstitutional and profoundly unwise.

Consider first its unconstitutionality. Prosecutors wield executive power, whereas judges should exercise only judicial power. Asking judges to pick prosecutors is like asking them to appoint generals or name ambassadors. The Constitution’s Appointment Clause allows judges to appoint “inferior” officers–but this means inferior judicial officers–magistrates, masters, law clerks, etc. This common-sense reading is supported by the great weight of text, history, and structure, as I show in an article in this month’s Harvard Law Review. You’ve cited other scholars suggesting otherwise–but Ken, none of them squarely even mentions, much less rebuts, this evidence and you yourself simply “assume” the problem away. Congress takes an oath to support the Constitution, and before you urge them to renew the statute, you must explain to them how this law squares with their oath. You can’t simply hide behind the Court–even if the Court thinks a statute passes muster, Congress and the president have their own independent obligations to review the matter.

What’s more, it’s doubtful that your statute would in fact pass Supreme Court muster today. Though the Court upheld an earlier version of the statute a decade ago, Court personnel has changed dramatically since then, and so has its Appointments Clause case law. (See my earlier SlateDialogue” with Larry Tribe.) And the experience of the last decade cuts strongly against you–the so-called “inferior” special prosecutors have proved “inferior” to no one. To whom is Starr inferior? How can someone who wields such awesome powers be called “inferior”?

Now, consider how unwise a statute is that sucks judges into partisan politics. Judges decide law in open court. But no law can say who should be the prosecutor in any given case–that’s a question of policy, personality, and politics. To decide this question, judges will need to act like politicos, talking secretly to politicians to figure out who will be an acceptable candidate to all sides. Judges may well pick a fellow judge lacking prosecutorial experience, who in turn may well make many rookie mistakes. (Sound familiar?) And judges in the nature of things can’t properly supervise prosecutors without themselves turning into superprosecutors. And when special prosecutors mess up, who is accountable?

In short, the Watergate model–where the White House picked prosecutors (Cox and Jaworski) under political pressure and in political consultation with critics–worked much better than the statutory model has. And Teapot Dome was handled better, too–here the president picked special prosecutors with the advice and consent of the Senate. The Watergate and Teapot Dome models are both far superior–constitutionally and practically–to the dreadful statute you are trying to salvage.