The Future of the Independent Counsel Act
by Senator Fred Thompson
The Independent Counsel Act, first passed in 1978, was designed to deal with the inherent conflict of interest that an attorney general has in investigating or prosecuting high - ranking government officials. In an attempt to select someone outside the system, Congress set up a statutory framework of definitions, qualifications, and distinctions designed to require an attorney general to call for an independent counsel when appropriate and to establish his independence.
However, we have to come to realize that we can not practically or legally force the attorney general to call for an independent counsel even with regard to cases most obviously requiring one, such as the campaign finance scandal. In fact the Independent Counsel Act allows the attorney general to hide behind the complexities of the triggering mechanisms of the statute instead of having to face the only relevant question: "Will the American people have confidence in a Justice Department investigation if it results in a decision not to prosecute?"
Furthermore, the "independence" we have achieved for a counsel has been a mixed blessing at best. Power that is largely unchecked is dangerous and oftentimes the devoting of so much time and resources toward one person being investigated results in unfairness. The arrangement also sometimes results in unfairness to the independent counsel. Not having appointed the independent counsel, the Justice Department has no motivation to defend an independent counsel against the onslaught of accusations against him that have become routine. This in turn results in public cynicism toward the whole process.
I have concluded that we should go back to constitutional first principles.
The executive branch is charged with enforcing the laws. That’s where the authority is lodged and that is where direct and unambiguous accountability should be.
Accordingly, I will propose an alternative to the Independent Counsel Act, one that borrows somewhat from the proposals of former Attorney General Griffin Bell and former Senate Majority Leaders Dole and Mitchell, although it differs from proposals that have been offered thus far.
First, the attorney general would be given the authority to appoint an outside special counsel to investigate high-level wrongdoing whenever she thinks such a course is in the public interest. Such appointments would be wholly discretionary, avoiding the illusion of current law that an attorney general can be forced to act. Because the procedure is available at any time for any reason, statutory language could not be used as an excuse not to seek such an appointment. The public debate would then focus appropriately on whether the Justice Department can credibly conduct an investigation, not on whether statutory technicalities are satisfied. If the attorney general fails to appoint a needed special counsel, then the public, press, and Congress can see to it that political consequences befall an accountable individual. If the attorney general does seek the appointment, she would be responsible for the selection, set the jurisdiction, and demand that the Department’s policies be followed.
Second, the attorney general would be required to promulgate regulations governing a special counsel. Those regulations, however, should not be set by the Department alone. Congress should require that some level of independence be established for the investigation to inspire public confidence. Under my proposal, such regulations would be effective only if Congress agreed to them. In this way, the Justice Department and the Congress can work together to establish procedures governing such appointments outside the charged atmosphere surrounding a particular controversy needing investigation.
The Independent Counsel Act was a noble experiment that failed. The underlying issues it intended to address, however, remain. The best solution to those problems is to allow politically accountable actors to make the decisions to appoint a special counsel and to serve as special counsel. This approach will demand that Congress seriously scrutinize nominations for attorney general, that the press be vigilant, and that the people insist that their public officials perform their duties properly or pay at the ballot box.
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