Should We Ditch the Independent Prosecutor Law?

Dear Akhil,

Thanks for the news flash. Here’s one for you: It is 1999, and the Monica Lewinsky affair has obliterated the public trust in our institutions of government, no less than the Watergate affair did in the 1970s. Cab drivers and schoolteachers now distrust legislators, presidents, attorneys general, and special prosecutors. You would send us rocketing back to the flawed pre-Watergate method of ad hoc appointment of special prosecutors, which caused so much public distrust in the first place. I would try to turn 20 years’ worth of legislative effort into a productive, rehabilitated statute.

Yes, I avoided a full-blown discussion of the “appointment” and “removal” clause issues surrounding the independent counsel law, in yesterday’s e-mail. You can find that debate in a thousand stale law review articles. I believe that scholars have spent far too much time over the past 20 years quibbling over whether the statute is constitutional (the Supreme Court and Congress both declared that it was) and far too little time figuring out how to make the law work.

So call me an intellectual wimp. But I am a practical one.

Many of the problems you have alluded to–the fact that Ken Starr is inferior to no superior, the fact that special prosecutors who “mess up” are accountable to no one–are problems with the way the statute has played out in practice. Reading between the lines, that is how I interpret Larry Tribe’s “confession” in your SlateDialogue.” The statute as it has evolved is a disgrace. If you take the time to read the legislative history of the special prosecutor law, Akhil, you will see that Congress never meant to unleash an unaccountable fourth branch of government–it warned against creating “roving Frankenstein monsters.” My own sense is that Congress envisioned a special prosecutor who exercised far more self-restraint than many of the recent appointees. It also envisioned a special three-judge panel that would play a more meaningful role in keeping the investigation on track, rather than burying its head in the sand.

Yes, I knew that would elevate your blood pressure. I do not agree that judges should vanish from the equation, when it comes to appointing and monitoring special prosecutors. Admittedly, it is a sensitive matter any time members of the judicial branch perform quasi-executive “ministerial” functions (as the Supreme Court in Morrison described them). But this really is not so uncommon. As you must know, federal courts supervise grand juries, and appoint grand jury foremen. For years they appointed federal marshals and interim U.S. Attorneys (executive branch members). They appoint private lawyers to prosecute contempt charges in patent/trademark cases. When it comes to criminal prosecutions, federal judges participate in the issuance of search warrants and review applications for wiretaps. Congress has authorized such judicial participation in “executive” functions for the past 200 years. Nothing is inherently wrong with allowing interplay among the three branches of government. (See Madison in Federalist No. 47.) An independent counsel statute that operated smoothly, within narrow confines, would be much less a constitutional punching bag for hostile scholars than the one we have.

Why salvage this “dreadful” statute, as you call it? We have grown accustomed to and dependent upon it. There have been 20 independent counsels in the same number of years, with the list growing steadily. Some of this reflects a statute run amok, true enough. But it also reflects a perceived need by Congress, the Justice Department, and the American public to ensure fairness in high-level investigations involving the executive branch.

You can eliminate the statute, but you can’t eliminate the need for it. In the year 2003, when a hue and cry rises up to investigate some new scandal involving the vice-president or the attorney general, and “political pressure” leads to the appointment of a neutral outside prosecutor, what rules will govern him or her?

None. You would have us return to the old wing-and-a-prayer method of ad hoc appointment–wait for a crisis, and leave the investigation to the whim of each attorney general, even if she is investigating the president or vice-president whose election led to her appointment, or if she is tainted by the scandal herself (Watergate and Teapot Dome both presented such unhappy scenarios). I vote for pouring our efforts back into the statute, so that it works.

And I have plenty of ideas about how to accomplish that goal, as you have doubtless seen in my recent Michigan Law Review piece. Thus far, you have scrupulously avoided looking beyond your assumption that the statute is unconstitutional, and addressing how to make it work productively if Congress and the Supreme Court outvote you. So here is my question for tomorrow, Akhil: If you were forced to live in a democratic republic with some form of the present independent counsel law in place (as has been your fate for the past two decades), how would you restructure it to make it more efficient and effective?

I will refrain from burdening you with my ideas, until I hear yours.

P.S.: Here’s my list in response to your name game: Gerald Gunther, John Barrett, Eric Freedman, Sam Dash, James Fleissner. Reminder: Harvard and Yale are not the only two law schools in the country.