Politics by Independent Counsel

...President Reagan's sale of arms to Iran may have been reckless and foolish, but the Constitution does not require the President to make prudent decisions in foreign policy...

...Article II, Sec...

...The great innovation of the Constitution of 1787 was its provision for a strong, unified executive...

...Thus the New Republic, redeeming its reputation as a liberal journal, ran an article in the March 23 issue arguing for fundamental constitutional reform...

...The office of special prosecutor (or "independent counsel" as it was renamed in 1983) was established by the post-Watergate Ethics in Government Act...

...He isn'tresponsible for saying whether anyone in his Administration should be prosecuted...

...It is not automatic...

...Our inherited constitutional scheme of separated powers now prevents President Reagan's political enemies from dealing him a death blow in one vote...

...And, oh yes, the Attorney General may "for cause" seek to remove the "independent counsel," but the "independent counsel" is then expressly guaranteed by the statute the right to contest this attempted dismissal—before another judge...

...Congress to vest the appointment of any "inferior officer" in the judiciary, it could equally allow judges to appoint all the assistant secretaries of state, all the assistant secretaries of defense, and all the other officials of all the most sensitive agencies of government—except for their then ceremonial department heads and their then ceremonial chief executive...

...It can sustain a mood of deadly seriousness without bloodying its own hands with deadly weapons...

...For starters, the statute authorizes the independent counsel to investigate and prosecute "the President and Vice President" and all higher level officials in the executive Office of the President and the Director and Deputy Director of the Central Intelligence Agency and—just for completeness—the Commissioner of Internal Revenue...

...None of them would be a truly independent counsel answering to an independent judge...

...It is certainly a more flexible procedure than criminal prosecution...

...Either the President's claim to office will be at the mercy of the judicially appointed "special prosecutor' or the world will be...

...The Supreme Court has held that Congress may not, itself, appoint executive officials, because that is a presidential responsibility, and that Congress may not restrict the President's power to remove those executive officials he does appoint, because the President must be responsible for the conduct of executive officials...

...Reagan might save himself a lot of trouble if he just cut right through to the logical culmination of our current system and replaced his new chief of staff with a federal judge...

...Meanwhile, in a perverse way, the President, too, is off the hook...

...There was all along a clear-cut constitutional challenge in the background of the Iran-contra scandal which has now been pressed to the fore (with ironic aptness) by the much-maligned Lt...

...They have already inflicted .a thousand cuts, and congressional committees continue grinding their axes for new rounds of torment...

...The people who wrote this statute plainly could not conceive that anything could be more vital than ferreting out and fully prosecuting violations of the law by executive officials...

...He finally realized the person most likely to be confirmed as director of the CIA and successor to his intirnate adviser and confidant William Casey was . . . a federal judge...

...Commentators now routinely talk of the Administration's misdeeds as having involved a threat to constitutional integrity...

...It seems to me this sort of talk simply demonstrates again how readily people confuse the Constitution with their own policy preferences...

...And this, it has been argued, shows that Congress can vest the appointment of the special prosecutor in the "courts of law...

...Reagan seems to have gotten the message...

...The special prosecutor's "investigative and prosecutorial functions and powers shall include . . . receiving appropriate national security clearances and, if necessary, contesting in court (including, where appropriate, participating in in camera proceedings) any claim of privilege or attempt to withhold evidence on grounds of national security...

...It is called impeachment...

...At its outset last fall, there were many warnings, even on the editorial page of the New York Times, about the need to keep the matter in perspective and not let it be blown into a Watergate crisis that would cripple the presidency...

...C ome of the critics at least are candid enough to admit as much...

...What finally seems to gall many of the critics is that, with all the bruising condemnations he has received for his mistakes, Ronald Reagan continues to be President and continues to defend the main lines of his foreign policy...

...The main facts of the Administration's effort to aid the contras were public knowledge all along and have been the subject of ongoing public debate...

...States...

...Instead, we hear a lot about the Iran-contra scandal...

...But even in viewing constitutional arrangements in other countries, some people see only what they want to see...

...But the President never claimed the power to authorize violations of the law, and negligent management is not constitutional usurpation...

...The CIA director can't make this decision, nor can any other executive official because all of them might be suspected of remaining accountable to the President...

...I f that seems a bizarre fantasy, hardly worth taking seriously, consider the actual provisions of the Ethics in Government Act...

...Well, maybe this was true in mid-March...

...Colonel North...

...The gist of the constitutional argument against it can be stated this way...

...ut, of course, there is a way, one .1...

...The President may have been deplorably inattentive to the means his staff deployed in helping the Nicaraguan contras, and it may finally be proved that some members of his staff did violate some valid legal restrictions on such activity...

...Once the "independent counsel" is named by an independent judge, it seems, he must be given a security clearance and must personally be allowed to consider any documents the intelligence agencies want to keep secret...

...All executive officials are accountable to the President, and if he does not hold them accountable to the law, the Constitution offers a clear remedy...

...Now, after six months of breathless speculation in the press, six months of huffing pronouncements from a whole array of overlapping official investigations, the stigma has been fixed...

...Just because it does threaten to bring down the whole cabinet, a vote of confidence can put passing controversies in perspective and often therefore it is the sitting cabinet that demands such an up-or-down vote on its overall performance to rally its supporters andprove its strength...

...In the same era, the Supreme Court also held that Congress had plenary power to strip the Supreme Court's appellate jurisdiction over any subject it wanted to—a holding which contemporary legal scholars are usually quick to dismiss as a meaningless confession to the extreme political pressures of that era...

...The main facts of the Iran arms sale, which is what matters most for public judgment and accountability, were bound to become public knowledge, as they finally did...

...What if the CIA director thinks this is a dangerous mistake in a particular case...

...The same sort of arguments for respecting the internal integrity of the -separated powers in our system would indicate that prosecutors, of all officials, must be under the President's direct or at least indirect control...

...It requires judgment: before commencing an impeachment procedure, Congress must ask itself, is this really worth the incredible turmoil and disruption it will impose on the government of the United...

...2 does say that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments...

...It was a national Congress that de- clared independence for the United States in 1776—and its subsequent mismanagement of the war for independence made many patriots despair for America's future...

...There is no office or function that seems closer to the core function of the executive, no office or function that touches more directly on the President's constitutional duty to "take care that the laws be faithfully executed," than the office or function of initiating criminal prosecutions...

...National security, domestic tranquility, and presidential authority were secondary concerns to them at best...

...Just ask Judge Garrity in Boston...

...The judges may not be too good on policy but they are tiptop in escaping responsibility for their decisions...

...You would almost think there was no other way of dealing with wrong-doing in high places...

...And this, after all, is not really a complaint against the President's conduct,so much as a complaint against our current constitutional order...

...Not even his own appointees at the Justice Department are responsible for this hard call...

...If the clause allows 'The subsequent decision in Ex Parte Siebold (1879), upholding judicial appointment of federal election monitors, did seem to say that Congress could vest the appointment of "inferior" executive officers anywhere it wanted...

...If the United States were a parliamentary democracy," smirked the magazines correspondent Mickey Kaus, "the Reagan government would have already collapsed in a 'no confidence' vote...

...With the Ethics in Government Act, Congress can investigate and fulminate to its heart's content and leave the real dirty work to the judges and their creature, the "independent counsel...

...But the President doesn't have to decide because it's all in the hands of the judicious judicial prosecutor and even to comment on the matter—let alone grant immunity or conditional pardon to get the facts out—would mean interfering with a criminal investigation...

...that is expressly provided in the Constitution...

...First things first...

...But the drafters of the statute really did try to think about lots of possibilities...

...But the most sensible reading of this provision, as the Supreme Court noted in 1839, was that it "intended" these appointment powers "to be exercised by the department of the government to which the officer to be appointed most appropriately belonged...

...So too there is less than meets the eye Jeremy Rabkin, whose column "Constitutional Opinions" appears frequently in these pages, is assistant professor of government at Cornell University...

...Still, if the Constitution cannot shield the President from investigation and attack in Congress—nor force him to adopt the foreign policy that major congressional factions might prefer—it is not quite true that the Constitution has received its due on all sides in this struggle...

...And the people who were the loudest in denouncing Reagan's "hands-off" management style in the Iran affair seem to have been the quickest to defend this system that invites—if it does not absolutely require—the President to be equally "hands-off" regarding his constitutional duty to "take Care that the Laws be faithfully executed...

...For one thing, most constitutional scholars agree that when the Constitution authorizes impeachment for "high crimes and misdemeanors" it allows Congress to impeach for gross abuses that may not, technically, be felonies under the ordinary criminal law...

...In all the celebrations of the Constitution in this bicentennial season, we don't hear much about that fact...

...Maybe, as the President initially said, Colonel North was essentially a "hero" even if he did technically break the law at some stage...

...If last November or December, when the Iran arms sales and then the diversion of arms sale proceeds to the contras first came to light, President Reagan had been able to demand an up-or-down vote of confidence on his overall conduct of foreign and domestic policy—does anyone seriously doubt he would have received an overwhelming vote of confidence...

...in charges that the Reagan White House conducted a secret foreign policy, undermining democratic accountability...

...Under no other system would those now baiting the President have been able to bring him so low over so little...

...Perhaps the new Democratic majority in the Senate would have wanted to vote "no confidence" when the new senators took office in January...

...But this decision was handed down in a period of extreme congressional assertiveness, barely a decade after the impeachment of President Andrew Johnson—for defying a congressional enactment purporting to prohibit the President from removing any member of his own cabinet without congressional approval...

...The argument against this traditional view of the Constitution rests on an absurdly literal reading of the text...

...North has objected that the special prosecutor investigating him is an unconstitutional creature because 14 THE AMERICAN SPECTATOR MAY 1987 accountable to judges rather than the President...

...But the flexibility of the procedure is its main drawback for Congress...

...Presidents since George Washington have asserted the power to withhold sensitive information about foreign negotiations, and the Supreme Court acknowledged the constitutional grounding of executive privilege in the Nixon tapes case...

...Or maybe North was deceiving and betraying his President while defying the law in the same wild escapade...

...This is in fact a powerful constitutional argument and one that highlights the truly disturbing aspects of the constitutional climate in which the present scandals developed...

...But would the country have elected so many Democrats in November if it understood that the congressional elections would actually decide whether Reagan-,-still overwhelmingly popular at the time—could continue in office...

...In Britain, where the practice originated, only two governments have actually lost their parliamentary referenda in the last sixty years...

...THE AMERICAN SPECTATOR MAY 1987 15...

...But it is surely ungrateful of them to complain of this...

...Under no other system would those now baiting the President have been able to bring him so low over so little...

...The possibilities don't bear too much thinking about, after all...

...Especially, is it worth the risk that the President might fight the charges and not be tonvicted?Even more, is it worth the risk that the voters may view the whole thing as a partisan frame-up against the President...

...They wanted to put prosecution policy, as nearly as possible, on automatic pilot, freed from all exercise of discretion and all burden of accountability...

...Think about it and try—if you can—not to let your imagination run off too wildly: the President is flying off to a summit with the Soviet leader or the leaders of the Western Alliance, when suddenly the independent counsel demands that he return to Washington-to testify in his own defense at the trial—or plead the Fifth Amendment...