Independent counsel

The Independent Counsel Act was inspired by the investigation of the Watergate scandal. Lawmakers, reflecting on the experience of Archibald Cox, Jr., and the memory of the Saturday Night Massacre, believed that a law creating a special prosecutor, not subject to the whims of the president, was necessary. A president should not have the power to fire the person investigating him or his administration.

The Independent Counsel Statute was originally enacted as Title VI of the Ethics in Government Act of 1978 and was reauthorized for five years in 1983 and 1988, before expiring in December 1992. It was reauthorized in June 1994 at the behest of President William J. Clinton. Under the terms of the act, the independent counsel can be called by Congress or the attorney general. Once appointed, the counsel can investigate allegations of any misconduct, with an unlimited budget and no deadline. Also, the counsel can only be dismissed by the attorney general or a panel of three federal judges.

The first independent counsel appointed under the new law was Arthur Christy in 1979. Christy was appointed to investigate President James Earl Carter, Jr.’s chief of staff, Hamilton Jordan, for suspected cocaine use. This investigation resulted in no indictments. This would not be unusual; of the 20 independent counsels, 10 did not indict. Broken down by administration, there were two investigations of the Carter administration, eight of the Reagan administration, three of the Bush administration, and seven of the Clinton administration. The two highest-profile investigations were the Iran-CONTRA AEEAIR under Reagan and Whitewater under Clinton.

In a 1988 U. S. Supreme Court decision, Justice Antonin Scalia argued that the statute was a potential tool of partisan politics, and his words ring true. Both political parties have used the independent counsel, with limited success, to undermine the other party. Lawrence E. Walsh, the independent counsel for the Iran-Contra investigation, is credited with having led a successful investigation. Lasting six years and costing $52 million, none of the high-level suspects were indicted. Of the 14 indictments, eleven led to convictions, but two convictions were overturned on appeal. Robert B. Fiske and then Kenneth Starr were appointed to investigate Whitewater, which dragged on nearly as long as Iran-Contra. This investigation resulted in a number of related indictments and convictions. President Clinton was impeached, on other charges related to a sexual scandal that was included in the Starr investigation, but was not removed from office.

The questionable results and uses of the independent counsel have raised questions about its value. While reforms have been suggested, the Clinton administration and leaders from both the Republican and Democratic parties opposed renewal of the Independent Counsel Act, and it was allowed to expire on June 30, 1999. The appointment of special counsels to investigate allegations of executive branch misconduct reverted to the attorney general as it was prior to 1978, with added regulations. The attorney general is now allowed to fire a special counsel only for good cause and must file a report detailing the cause. The lapse of the Independent Counsel Act did not end the politicization of investigations of misconduct any more than the creation of an independent counsel ensured impartiality.

In 1999 Attorney General Janet Reno appointed the first special counsel under the new regulations when she selected former senator John Danforth to investigate the 1993 assault on the Branch Davidian compound near Waco, Texas. In July 2000 federal agents were cleared of wrongdoing. In September 2003 Democrats in Congress called for the first independent counsel investigation of the Bush administration based on allegations that administration officials had revealed the name of a covert CIA agent. The leak was alleged to have occurred against Valerie Plame Wilson, a CIA employee who earlier had been a covert operative, in retaliation for a report that her husband, Joseph W. Wilson, had issued, denying that there was evidence of an attempt to purchase enriched plutonium by Iraqi agents in Niger—a charge that President George W. Bush made in launching the Iraq War. The leak became a political battle because it was viewed as retaliation against someone who had opposed the administration’s position on the Iraq War. The Justice Department was investigating the leak, but Democrats were not confident of Attorney General John Ashcroft’s impartiality. In December Ashcroft recused himself from the case, and Deputy Attorney General James Comey, Jr., oversaw the investigation. He appointed a U. S. attorney from Chicago, Patrick Fitzgerald, as special counsel. The trial began on January 16, 2007. In March 2007 Irving Lewis “Scooter” Libby, chief of staff to Vice President Richard B. Cheney, was convicted of four felony counts, including two counts of perjury, one count of obstruction of justice, and one count of making a false statement to federal investigators. Special Prosecutor Fitzgerald stated that no further charges in the investigation were to be issued.

—John Korasick and Cynthia Stachecki