Constitutional Opinions / I. Waters
Eastland, Terry
CONSTITUTIONAL OPINIONS .EQUAL JustIce UNDER L I.C. Waters by Terry Eastland More than a year has passed during which the nation has survived without an independent counsel law. That blessed...
...Opponents of the McCain amendment 74 The American Spectator February 1994 tried to justify the double standard by contending that the executive has at least a potential conflict of interest when it investigates one of its own, but not when it investigates a member of Congress...
...law or no I.C...
...Whereupon it could be the Clinton administration's fate to endure an independent counsel experience or two or three—or more...
...It is also possible for an independent counsel to be named to handle cases in which an investigation of a "non-covered" individual might result in a conflict of interest...
...There is every reason to think she will...
...attorney...
...The attorney general investigates the allegation...
...Speaking of which, in mid-January, Attorney General Reno grudgingly agreed to Clinton's request that she name a special counsel...
...Because he would have been a "covered" person against whom there had been a specific, credible charge (that he solicited $700,000 to lobby on behalf of Vietnam) requiring extended investigation, Brown unquestionably would have experienced the special labors of some independent counsel, and Clinton himself would have been forced to decide whether to ask Brown to resign or take administrative leave...
...No—the story will then concern the law's enforcement against members of the Clinton administration...
...The attorney general has no influence over the court's selection of counsel...
...It's hard to see how the Supreme Court—which sustained the I.C...
...McCain had it righi when he answered Cohen this way: "If using the independent counsel to investigate the Congress creates a separation of powers conflict, then it does so equally in the underlying legislation...
...C onsider what Clinton and his subordinates have missed by not having an I.C...
...Code the I.C...
...Is it too cynical to think that onceanti-executive House Democrats wanted to cut their ethics-troubled president a little slack...
...Scott Celley, an aide to GOP Sen...
...Their names: Bond, Chafee, Coats, Domenici, Gorton, Hatch, Nickles, Simpson, and Thurmond...
...law—is within the power of any attorney general, namely, to appoint a private attorney as a "special counsel" to take over the investigation...
...On the other hand, it would be interesting to see this great advocate of the independent counsel law file a brief in the Supreme Court claiming it is unconstitutional...
...John McCain, says, "There was a crush to get this done...
...Not to mention the Madison/Whitewater investigation...
...Doubtless that would have happened—had Bush still been president...
...And whoever is appointed is empowered as no other federal prosecutor...
...If Janet Reno remains attorney general for the next three years, I wouldn't bet against a few press conferences in which we hear the attorney general declare that the law compels her ("I must do my duty to the American people") to seek the appointment of an independent counsel to investigate administration figures...
...Since McCain's amendment did not pass, that won't happen...
...In 1992 Congressional Republicans fought to make sure the law, scheduled by its own terms to expire that December, was not Terry Eastland, a fellow at the Ethics and Public Policy Center, is editor of Forbes MediaCritic and author of Ethics, Politics and the Independent Counsel: Executive Power, Executive Vice 17891989...
...re-enacted, again arguing from principle...
...Walsh's prosecutorial excesses constituted the strongest practical objection against a new independent counsel law, and indeed the Senate bill would include cost-control and other "lessons-ofWalsh" provisions...
...On November 18 the Senate voted to approve legislation that would restore to the U.S...
...CI The American Spectator February 1994 75...
...The House should soon follow suit, and the president, whose own financial dealings are now being investigated by a special counsel (a cousin of the statutory independent counsel), will sign the bill into law...
...Mandatory coverage of members of Congress, he said, "runs very near, if not over, the line of the separation-of-powers clause...
...Here some basic information on the law is in order...
...While no Senate Democrats who previously supported independent counsel legislation changed their position, the House Democratic leadership—big advocates of I.C...
...While there have been proper independent counsels, there has also been Lawrence Walsh, who spent seven years and between $40 and $100 million investigating Iran-Contra, bringing dubious cases in courts of law, and, even today, trying others inappropriately in the court of public opinion...
...This position was represented to the public in terms of principle: Even if you appoint an outside lawyer, said her spokesman Carl Stern, you'll still be assailed over whom you picked and how you went about it—you'll still be accused of a conflict of interest...
...Of course, there is no such clause in the Constitution, but Cohen mentioned it more than once, and obviously he thinks mandatory coverage for Congress presents a serious separation-ofpowers problem...
...The independent counsel statute, originally enacted in 1978 as the special prosecutor law, is a product of Watergate (the firing of Special Prosecutor Archibald Cox being the proximate cause) and has been used mainly against Republican executives, as a Democrat (Jimmy Carter) held the White House during just three years of the statute's fourteen-year existence...
...Reno's position will change once the I.C...
...statute against a separation-of-powers challenge in Morrison v. Olson(1988)—could agree with Cohen...
...A good place to start is with Republican hypocrisy...
...How, except for the change of guard at the White House, had such an "ill-advised" law become okay...
...Will she use it...
...Instead, she will keep them within the main Justice Department, with career attorneys handling them and reporting to her...
...As in the Brown case, Reno had steadfastly refused to do what—I.C...
...But sixty-seven senators rejected an amendment, offered by McCain, that would have "covered" members of Congress...
...legislation and investigations in years past—have been notably slow to press for action on an I.C...
...House Speaker Tom Foley's spokesman told me last fall that the leadership would seek a vote before the end of the session...
...statute, which lapsed on December 15, 1992...
...For Cohen, apparently, it's constitutionally okay for Congress to restrict the authority of the executive to investigate itself, but not to restrict its authority to investigate Congress...
...So long as there is not an independent counsel law, said Stern before Reno's about-face in the Madison/Whitewater case, the attorney general will not export exceptional cases to outside lawyers...
...Nine of those senators, however, voted for the law on November 18, 1993...
...W hat neither Democrats nor many Republicans in Congress want is an independent counsel system for their branch of the government, and the Senate'sfloor debate showcased congressional attachment to this double standard...
...Opponents also said that mandatory coverage for members of Congress would result in (as the committee report put it) "an increase in the number and expense of independent counsel proceedings...
...It works this way: There is a specific charge that a "covered" person has violated a federal criminal law, and the charge is a credible one...
...On September 23, 1992, some twenty-eight GOP Senators, in fact, declared in a letter to President Bush that the law was "contentious" and "ill-advised," and expressed their "vehement opposition" to it...
...The underlying assumption was that the bill would move through the House in four or five days and get to the president's desk immediately...
...But because any president might need a 50th vote in the Senate or a 218th in the House, the potential for a political conflict of interest is glaring...
...Commerce Secretary Ron Brown surely must go to bed every night grateful for the law's absence...
...The debate on the McCain amendment also produced some fatuous constitutional argument, courtesy of Republican William Cohen of Maine, Senate cosponsor of every piece of independent counsel legislation since the original law was passed...
...Twice (in 1982 and 1987) Congress voted to reauthorize the law, and both times more Republicans than Democrats opposed it, typically invoking high principle...
...legislation is signed by the president...
...A reasonable argument can be made that independent counsels might have been ordered up for aspects of "Travelgate" and the alleged privacy-act violations by Clinton's State Department...
...If he can't end the inquiry within ninety days, it must be passed to a special division of the federal court of appeals in the District of Columbia, which then appoints an independent counsel...
...This still seemed likely when the Senate voted on November 18...
...As McCain said during the floor debate: "Some in this body want a separate, lesser standard for Congress...
...no previous attorney general has been so outspokenly supportive of the independent-counsel concept, and it seems likely that she would have invoked the law in both the Brown and the Madison/Whitewater cases...
...She testified in the House in favor of the legislation...
...Until Clinton asked her to change course in his own case, Reno was the first attorney general since well before Watergate to insist that exceptional cases—investigations of top executive officers or investigations of others that might result in conflicts of interest—be handled within main Justice, and not by a special counsel chosen by the attorney general, or even a U.S...
...measure approved by the House Judiciary Committee last March...
...Seeking clarification, I phoned his office and was told: "His basic point is that it would be unconstitutional for Congress to restrict the authority of the attorney general to investigate and prosecute any member of another branch of government...
...Both as written in years past and now proposed by the Senate, the statute establishes a special process for handling criminal charges made against several dozen high-ranking executive officers, known as "covered" persons, including the president and the vice president...
...statute in force...
...In a spirit of bipartisanship, one must not forget Democratic hypocrisy...
...They were right, but it is surely the political and financial costs of mandatory coverage that are most alarming to members...
...But before I gaze into that crystal ball, some matters involving the still-in-progress resurrection of the independent counsel law deserve notice...
...Nor, once the new law is on the books, is there likely to be any litigation over its constitutionality...
...That blessed respite soon will end...
Vol. 27 • February 1994 • No. 2
