Should We Ditch the Independent Prosecutor Law?

Dear Akhil,

At last! After bursting out of the corral with guns blazing in the great shootout over citation ratios, you finally unveil your proposal in the last paragraph of our concluding exchange: You favor a permanent independent counsel. I’m nonplussed, Akhil. You certainly know that this is not a new idea. It was introduced–back in 1975–in the form of S. 495; and roundly rejected by both Democrats and Republicans in Congress. Sen. Howard Baker warned that it would “establish a virtually inviolate fourth branch of government.” Clark Clifford testified that it would lead to “petty prosecutions and harassments of persons in the executive branch.” Sound hauntingly familiar?

I’m convinced, myself, that the establishment of a permanent special prosecutor’s office is the worst of all options available to Congress, when the law sunsets this summer. It would institutionalize the position of independent counsel, and create a breed of professional bureaucrat-prosecutors whose sole mission in life (and justification for breathing) was to sniff out scandal and get an occasional politician convicted. I would rather see the independent counsel statute scrapped, entirely, than to trivialize it like this.

It is far wiser to overhaul the statute–in a fashion that reserves this extraordinary apparatus for extraordinary cases–and thus maintain a fail-safe mechanism that kicks into operation only when we approach a constitutional meltdown. The “milquetoast” reforms that I set out in my article in the December issue of the Michigan Law Review are really a synthesis and expansion upon proposals advanced by scholars, former special prosecutors, former attorneys general, and others who have observed the independent counsel statute working (and experiencing failure) over the past two decades. They all believe, like me, that the statute can be rehabilitated. It simply needs to be limited to crises, rather than be allowed to cover monkey business.

In my remaining 276 words–I will try not to go over this time (much)–let me explain what I consider to be the most essential reforms, and why. This is what I like about a Slate dialogue: You get the first word, but I get the last 500.

First, the single greatest design defect in the statute is this: It has no regulating device or shut-off button; it gobbles up every accusation in sight. In place of the hair trigger that sends the statute whirring into motion with the faintest puff of evidence, this unusual machine should see action only where “substantial evidence of a felony exists.” It should be limited to crimes committed in office (pre-presidential affairs like Whitewater would be out). Most important, there is no reason that 240 federal officials should be covered by the statute; the five or six top officials in the executive branch would be plenty.

Second, a tether must be attached to the special prosecutor. No more expansions of jurisdiction, except in rare cases: Stick to the original charter. No more forays into political impeachment exercises: Stick to the criminal case. No more part-time prosecutors: Take the job or leave it. No more final reports: Let the special prosecutor go home at the end of the day.

Third, the three-judge panel must be given a set of rules that can be applied evenhandedly to all participants. It should be provided a mechanism by which it can obtain input from the attorney general and the independent counsel–in the form of memoranda, in camera hearings, etc.–so that it can carry out its statutorily imposed duties intelligently.

Finally, Justice Department lawyers must be given some credit. They have been handling sensitive criminal investigations involving executive branch officials since 1789 and have conducted these matters fairly and competently. The special prosecutor law must be reserved for special (and rare) occasions.

I went over my limit by 215 words, Akhil–but only because you’re a friend, and it has been enjoyable talking to you about this important question of politics, policy, and constitutional law. With good minds pondering the topic–from good law schools including Harvard and Yale–Congress and the Supreme Court will ultimately reach a sensible result.

P.S.: Peter Shane (separation of powers) asked me to add his name to yesterday’s list. I am now prepared to throw down the gauntlet: My list will take on your list in arm-wrestling, any day of the week. To hell with citation counts.