Constitutional Opinions: Rule by Unaccountability
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin Rule by Unaccountability I n the mid-1980's, conservatives denounced the institution of the special prosecutor—or independent counsel, as it is now...
...Apart from those seeking to act on behalf of the government and those simply seeking reimbursement by the government's mandate, the "private attorney general" is often a plaintiff who wants to act as a supergovernment— telling the government what to do...
...How does one advocacy group have the power to force changes in the air pollution reduction program of a whole state...
...What, then, should we say about the village atheist—or local ACLU lawyer—who obsesses over the Christmas tree on city property or the closing benediction at the graduation ceremony at the local high school...
...Other plaintiffs who claim the status of "private attorney general" are seeking remuneration for bringing a successful lawsuit on a constitutional or civil rights issue...
...For instance, under the False Claims Act of 1986, whistle blowers who learn about fraud by government contractors or grant recipients may file charges against them, and if they win a conviction, may keep a portion of the fines that would otherwise go to the federal treasury...
...One might call the independent counsel a sort of "private attorney general...
...Current opponents of the independent counsel ignore the whole array of other extra-constitutional innovations that delegate basic policy decisions to unaccountable figures...
...A succession of congressional leaders has insisted that her failure to do so is a clear dereliction of her duty under the Ethics in Government Act...
...Prof...
...Environmental advocates thought the Clinton EPA was being too soft, so they got a federal court to demand tougher enforcement efforts...
...This spring, Anthony Lewis saluted Scalia's prescience in the New York Times...
...He can carry on endlessly, and so-called fee-shifting statutes give him not only the resources but the incentive to do so...
...The Ethics in Government Act is supposed to operate on automatic pilot, so when it miscarries, Congress stands around muttering helplessly...
...Sunstein published a long article urging Congress to respond by giving financial bounties to advocacy groups bringing such suits, to ensure that they could keep such litigation going forward...
...But you won't find Mr...
...Yet the private attorney general is a pervasive feature of liberal governance...
...They think the federal government needs a lot of back-up from unaccountable monitors acting through the courts—as long as they aren't monitoring crime in the Clinton administration...
...So if we are going to set about reforming unaccountable attorneys general, I am not sure I'd start with the independent counsel statute that now disturbs so many friends of the Clintons...
...Justice Scalia warned in his Morrison dissent that congressional clamors would effectively force the attorney general to initiate the appointment of an independent counsel at the first hint of scandal or impropriety and the process would then go clanking forward, relieving Congress of any need to play the partisan heavy, and leaving all the probing, prying, and bullying to the independent counsel...
...But since a succession of Reagan administration officials had recently been set upon by special prosecutors, liberals dismissed these constitutional arguments as partisan special pleading...
...By acting as a "private attorney general...
...He is supposed to be "independent," so Congress will not intervene...
...Yet a furious partisan campaign from the White House is hard to answer by "independence...
...Many of the claims are brought by disgruntled or recently terminated employees with a personal score (if no legal case) to settle...
...The underlying rationale for fee-shifting is that such plaintiffs are doing a public service, even if the harm they experience is not enough to justify any sizable damage award...
...Critics of the independent counsel complain that he can focus on one or other investigative obsession and keep billing the government for his costs...
...Critics of the independent counsel don't go far enough...
...Many are also brought by sheer bounty-hunters, who try to make a case out of technical mistakes in reports to the government...
...But as Congress hangs back and allows the "independent counsel" to proceed with his criminal investigations, we have effectively defined eligibility for continuance in office by the O.J...
...That is the ultimate constitutional perversion...
...the very term appears in over 300 cases decided by federal district courts in the past year alone —and not as a term of abuse...
...Paula Jones's lawyers have been scorned by much of the media for hying to make a federal case for "political reasons...
...Yet federal policy currently encourages just this practice by offering generous fee awards to plaintiff's who complain about harassment or some other constitutional or civil rights infringement...
...Most Americans would be apoplectic if the IRS allowed private bounty-hunters to search for flaws in individual tax filings and sue the delinquent taxpayers "on behalf of the government...
...None of this happens by accident...
...The Justice Department (which answers ultimately to the president and congressmen on oversight committees) need not endorse these private prosecutions...
...Most often, plaintiffs are eager to be recognized as a "private attorney general" because federal law now accords all sorts of special privileges to litigants who can claim this title...
...But Congress does not even consider such a step...
...But the majority of the Court held otherwise —and it was a majority of 8 to 1. Now quite a few men of the left say that, come to think of it, Scalia had a point...
...Kenneth Starr has been furiously attacked by Clinton surrogates while the Republican Congress has offered him scant defense...
...The experience of the past few months suggests, moreover, that the White House has much greater resources to defend itself—both in securing legal assistance and in turning public opinion against its tormentors—than the typical private or local institution set upon by a private attorney general...
...Environmental statutes enacted in the 1970's authorize "any citizen" to file suit against federal environmental officials to remedy any failure of these officials to perform their statutory duties...
...Yet typically, after the Justice Department reviews the claims and declines to act on its own, the claims go forward...
...In 1988, federal appeals judge Richard Posner protested the way in which fee-shifting turns even "a simple case into two or even more cases—the case on the merits, the case for fees, the case for fees on appeal, the case for fees providing fees, and so on ad infinitum or at least ad nauseam...
...If the attorney general stubbornly refuses to do her duty under the law, she ought to be impeached...
...But that is, in effect, what defense contractors and grant recipients at universities are now subject to...
...Cass Sunstein of the University of Chicago Law School wrote to the same effect in the American Prospect...
...Meanwhile, the standard of acceptable behavior for the president has sunk to what can be proved in a court of law where jurors must find guilt "beyond a reasonable doubt...
...S till, conservatives have no grounds for satisfaction in the way the independent counsel statute has operated...
...Lewis or Prof...
...Thus, an environmental advocacy group recently waged a successful court battle to force the Environmental Protection Agency to reject—against its own policy—the state implementation plan by which Arizona proposed to reduce air pollution emissions over the next few years...
...The American Spectator • July 1998 53...
...So did Jeffrey Toobin, formerly on the staff of Independent Counsel Lawrence Walsh, in the New Yorker...
...CONSTITUTIONAL OPINIONS by Jeremy Rabkin Rule by Unaccountability I n the mid-1980's, conservatives denounced the institution of the special prosecutor—or independent counsel, as it is now called—as a constitutional perversion...
...We have these arrangements because, since the Nixon years, Congress has enacted a whole series of laws that seek to compensate for the supposed delinquencies of the federal executive in enforcing federal law...
...Even the New York Times agrees...
...tion of public policy decisions to unaccountable private hands in any of these areas...
...When a test case reached the Supreme Court in 1987, Justice Antonin Scalia voiced the constitutional objections to this institution...
...The gravamen of the case against the independent counsel is that he is wielding the powers of the attorney general without the political accountability of that office...
...52 July 19 9 8 • The American Spectator And thereafter defendants are readily bullied into settling "at as early a date as possible [to] avoid the possibility of a $200 judgment accompanied by a $20,000 petition for fees...
...Echoing Scalia's dissent in Morrison v. Olson, these new critics call the independent counsel a constitutional monstrosity because he has no accountability to the president or to any elected official, an effectively unlimited budget, no competing responsibilities, and every incentive to pursue his case with obsessive zeal...
...The same theory is used to justify the institution of the independent counsel...
...The theory is that such claimants act on behalf of the United States and therefore need not show personal harm or injury from the wrongs that they bring to light...
...In 1992, Justice Scalia wrote an opinion for the Court asserting procedural limitations on the standing of environmental advocacy groups challenging government policy...
...Of course, the minimally acceptable conduct for the chief executive is a disputable political judgment...
...My personal opinion is that criminality in the White House has a much more urgent claim on legal action than faulty paperwork by an academic grant recipient, or offensive language in the workplace, or a religious display at a town hall that transgresses some court's understanding of the First Amendment...
...JEREMY RABKIN is a professor of government at Cornell University...
...In fact, in the one area where the abuses of the Clinton administration seem most pervasive and disturbing—the shilling for campaign contributions from foreign governments and their agents—Attorney General Janet Reno has refused to appoint an independent counsel, despite two years of prodding by Congress...
...Sunstein —both longtime advocates of judicial activism — complaining about delega44 The private attorney general is a pervasive feature of liberal governance...
...Simpson standard —anything that can't be proven for absolute certain to a skeptical jury...
...Prof...
...I don't know about Justice Scalia, but having published such a criticism of my own in these pages in 1986, I can't say that recent liberal endorsements of this argument give me much satisfaction...
...Even in cases where independent counsel investigations have been authorized, the congressional passivity which the statute encourages has had real costs...
...More recently, a federal judge in Illinois, ruling on a case against the Bishop of Chicago, protested the system that provides "little or no incentive for lawyers to resolve a case before rushing to the courthouse" since with fee-shifting, "the sooner the meter begins to run the better...
Vol. 31 • July 1998 • No. 7
