Ethics, Politics and the Independent Counsel
Eastland, Terry
S ection VI of the 1978 Ethics in Government Act, familiarly known as the "special prosecutor" or "independent counsel" statute, has been described as a child of Watergate. And so it is. But its...
...Fasily the most objectionable featureof the "independent counsel" law is that it impairs the separation of powers principle, hence orderly administration, and not merely because the law inappropriately vests the appointment of these powerful executive officials in the courts of law...
...Certainly Eastland's substitute, if Congress adopted it, would be far better than what we have...
...He notes its unfairness to the special class of executive officers singled out for its inquiries (as when one special prosecutor declined to indict attorney general Edwin Meese yet branded him, by a sort of ipse dixit, as a functional criminal in his "final report...
...Thus in 1978, with the backing of the Carter Administration, congressional provision was made for their appointment of these officials, insulated by law from the political control which is normally the precondition of their accountability in law enforcement...
...Eastland finds a persuasive explanation in what amounts to a shift of political mood and fashion...
...Unless President Bush vetoes the law in an election year—an act of constitutional rectification requiring more boldness and imagination than we have learned to expect of him—we seem to be stuck with it...
...American government is beset everywhere by a tendency to substitute prolix legal codes (to recall a famous John Marshall phrase in McCulloch v. Maryland) for institutional dynamics...
...Given all that is wrong with this law, one would think the prospects for repeal excellent...
...Court of Appeals, which would also determine powers and terms of reference...
...This is no doubt the result of government oversupplied—infested might be a more appropriate term—with lawyers, 'who know far more of tort law than of the Federalist papers or Madisonian theory...
...This is the sort of error we usually look to the Supreme Court to correct...
...The framers assumed that when abuses of power and trust occurred, countervailing forces—various checks and balances, including the ultimate sanction of impeachment—would be mobilized by public indignation and would in time suffice to correct them...
...Eastland's treatment of the subject is largely historical, as such an institutional study must be...
...This radical proposal for an "independent" Justice Department was naively taken up by Jimmy Carter, though later quashed by his more astute attorney general, Griffin Bell...
...Court of Appeals and Justice Antonin Scalia's dissent in Edwin M Yoder Jr is a syndicated columnist for the Washington Post Writers Group...
...Immediately after the Cox uproar, as Eastland recounts, eight different bills proposing various forms of "independence" for special prosecutors appeared in the congressional hoppers...
...For those of us who believe the framers got it right, there can be only one tenable position...
...went so far as to propose the entire amputation of the Department of Justice from connection or accountability to the White House...
...That is not the case...
...10.95 paper Edwin M. Yoder, Jr...
...In the end, the drastic alternative of an "independent" Justice Department was not seriously considered...
...There really is no significant evidence that they were wrong—certainly not in the Watergate episode or its eventual remedies...
...Conceived with the aim of cleansing the higher reaches of the executive branch of ethical wrongdoing, this law is the by-blow of a confused era...
...He begins by tracing the history of "special prosecutors" in earlier episodes of scandal and distrust, ranging as far back as the Grant Administration...
...The framers of the Constitution sought with a craftsman's elegance to draw large dynamic effects from economical means...
...What it does not do, of course, is give the policing of ethical conduct precedence over the vastly more important requirements of energetic and accountable government...
...nor that Jaworski, a former American Bar Association president and a man of great integrity and intelligence, proceeded as energetically as Cox to push the Watergate investigation forward...
...Those who cannot grasp this central truth miss the "science" of American federal goverment...
...Among those means, the separation of powers principle and its associated institutional arrangements are paramount, an "essential precaution in favor of liberty" as James Madison said...
...T his traditional understanding of the role, powers, and function of special prosecutors was consumed by the "firestorm" of the Cox firing, though that fact took some time to register...
...its narrowing of the broad perspective in which prosecutorial discretion is ordinarily exercised, which encourages the pursuit of persons rather than crimes, and so warps good judgment that one special prosecutor even attempted, in violation of all diplomatic protocol, to subpoena the Canadian ambassador as a witness in the Mike Deaver case...
...T am sure that Eastland is right, but 1 other factors also figure...
...The impression of distrust was indelibly imprinted, and the faith of Congress and the public in the capacity of Presidents or their Departments of Justice to investigate themselves impartially had been fatally impaired...
...After half a century of uncritical faith in strong presidential government, Vietnam and Watergate brought great disillusionment...
...He then traces the evolution of the 1978 law to its origins in the Watergate crisis and shows how drastically, in mechanics and effects, it departs from custom and how completely it warps the principle of political accountability...
...The Constitution of the United States, as it came from the hands of the framers, provides ample structural insurance against the abuse of power...
...With two notable judicial decisions —Judge Larry Silberman's overturning the law in the U.S...
...Congress, with the limp acquiescence of the Supreme Court, has stood that essential priority of good government on its head...
...They always had been "independent," as Cox was, yet were understood to derive their franchises from the President and to remain fully accountable to him—for the same reason that Presidents are by specific constitutional command accountable for the faithful execution of the laws...
...Who remembers, though it may have been very important, why Congress and Theodore Olson came to blows over environmental policy...
...This is puzzling...
...It will again come up for renewal in 1992...
...A Court which noisily gagged on the delegation of minor and ministerial "trigger" powers of budgetary sequestration (in the Gramm-Rudman act) to a congressional creature proceeded to swallow, with a smile, the assignment of vast executive and inquisitorial powers to a creature of the judiciary...
...It is the full and uncompromising repeal of this bad law and a return to uncluttered constitutional government as, before 1978, we had known it for 190 years...
...And as Eastland shrewdly notes, the fact that the Republicans have lately "owned" the White House, while the Democrats seem to have a permanent lock on Congress, means that generally it is Republican administrations which suffer the delays, inconveniences, inefficiencies, and inequities put in the way of orderly government by proliferating and meddlesome special prosecutors...
...Congress had become obsessed with the notion—really, the idêe fbce—that the presidency cannot police itself...
...It comes down, apparently, to a limp exercise in necessitarianism...
...Whatever Congress wants badly enough, Congress gets, so long as it doesn't do immediate and palpable violence to the Constitution...
...Eastland also examines the collateral effects of the law—its tendency to trivialize issues by "criminalizing" policy disputes...
...As Eastland observes, the independent counsel law marked a historic abdication of both "the politics of ethics" and "the politics of malfeasance...
...Terry Eastland certainly grasps that essence, and his new book Ethics Politics and the Independent Counsel accordingly comes as a breath of fresh air...
...42 THE AMERICAN SPECTATOR FEBRUARY 1990 vested in a special branch of the U.S...
...But its lineage is longer...
...So one is driven to ask, as Eastland does, what larger currents could explain this extraordinary departure from constitutional tradition...
...and their appointment was ETHICS, POLITICS AND THE INDEPENDENT COUNSEL: EXECUTIVE POWER, EXECUTIVE VICE 1789-1989 Terry Eastland/National Legal Center for the Public Interest (1000 16th St., NW Washington, DC 20036)/187 pp...
...The elegant functionalism of the framers' original plan is in danger of evolving into a misshapen Rube Goldberg-like encumbrance with a fifth (and even a sixth, seventh, and eighth) wheel...
...But as Eastland notes, Congress seems to want more, not less, activity under the law, morenot fewer special prosecutors...
...It is a considerate and politic proposal, perhaps...
...The story of the law really begins with the firing of Watergate Special Prosecutor Archibald Cox on October 20, 1973, in a dispute over the judicially ordered release of the telltale White House tapes...
...They would, moreover, be routinely appointed at any breath of scandal unless the attorney general, in effect, found the triggering charges against some high official frivolous...
...The law has now been twice renewed, in both instances with the signature of Ronald Reagan...
...But Eastland's withering analysis of the Court's opinion in Morrison v. Olson reinforces the impression that this 1988 decision was one of the Court's stranger abdications of constitutional rigor, not less strange for coming after a string of pronouncements in which the same Court had taken a near fundamentalist approach to the separation of powers...
...Even if it could, it would not be believed by the public to be doing so—according to the new way of thinking...
...But any concession of the usefulness of special prosecutors as a continuing presence on the political scene tends to undermine the really compelling argument against themwhich is that no such animal is needed...
...In the ultimate flight of whiggery, the usually sensible Sen...
...In the age of media politics, "appearances" now matter as much as, perhaps more than, truth...
...Its imperialistic tendencies assumed, any devices for restraining Caesar became, by definition, a good thing, no matter what violence they might do—or redundancy add—to the framers' design...
...It reflects a shift in the philosophy of American government from structural to legalistic safeguards of the public interest...
...Morrison v. Olson (the case in which the Supreme Court in 1988 upheld the law) —this superb monograph is virtually our only mature and searching dissection of an ignoble experiment with American liberties...
...Politics and the Independent Counsel is a fine and even magisterial piece of work...
...The framers' answer to the - unavoidable blight of occasional misbehavior and corruption in high office was structural and political, not legalistic...
...Sam J. Ervin, Jr...
...The presidency, once uncritically revered, was redesignated—in some instances by those who had been its most worshipful exponents—as "imperial" and threatening...
...But I must register mild consternation that Eastland, having so persuasively demolished the present law, proposes at the end a less irregular alternative that would keep institutionalized special prosecutors with us...
...No matter that Robert Bork, as acting attorney general, moved swiftly to see to the appointment of a new special prosecutor, Leon Jaworski...
...Eastland is smack on the point when he writes that "under the traditional politics of malfeasance, the most important question does not concern accused individuals and their legal fate but accountable presidents and their political fate...
...One searches the Court's opinion in vain for any rigorous discussion of the deeper constitutional issues...
...Eastland shows, moreover, that the Morrison Court made nonsense of the "inferior officers" clause of Article III and a hash of its traditional removal-powers jurisprudence...
...Until then, special prosecutors had been an abnormal but useful adjunct—but adjunct only—to the self-policing capacities of the executive branch...
...Nonetheless, it was the common denominator of nearly all the proposals for legislative action after the Cox sacking that there must be some mechanism whereby special prosecutors, when needed (and the assumption was that they would be needed more and more), would be independently appointed (preferably by judges) and removable only for gross impropriety or, in the domesticated parlance of the current statute, "good cause...
Vol. 23 • February 1990 • No. 2
