A BAD IDEA WHOSE TIME HAS COME
Heyman, Steven J.
A BADIDEAWHOSETIMEHASCOME STEVEN J. HEYMAN The Special Prosecutor Act of 1978 ,Responding to ,the threat of un,controlled presidential power which culminated in the Nixon...
...I.t is unlikely that congressional oversight could prevent him from abusing his authority...
...The special prosecutor could only be removed by the Attorney General for "extraordinary impropriety" or by impeachment...
...At that time Congress went ahead with its own investigations: it was the Senate Watergate Committee which first brokethe case open,andthe House Judiciary Committee which was able to bring about the Presiden, t's resignation.The prosecutor'soffice was only secondary...
...Firs.t, they assert, Watergateandits cover-up showed how farthe criminal process can be manipulated by the President for his own political ends...
...As James Bradley Thayer cautioned nearly a century ago, "Under no system can the power of courts go far to save a people from...
...My topic was purely literaryBthe importance of story in the lives of the students these people teach, and in the lives of the teachers themselves...
...The special prosecutor would have to commit "extraordinary impropriety" indeed before an Attorney General would dare remove him...
...Congress was given this function because it is the most representative institution, with both the political judgment and the power necessary to investigate great abuses and remove the offenders...
...There is and ought to be no active, prosecutorial power in the courts," warned the late Alexander Bickel...
...But Congress is now on the verge of effectively abdicating one of its most important responsibili, ties--the investigation of Executive misconduct and abuse of power...
...In this way the administration is held to account for the use of power...
...By relieving him of this responsibility and focusing attention on a spe:ial prosecutor instead, the bill would lessen the President's interest in restraining his aides' actions and make it easier for him to disclaim responsibility for their excesses...
...In order to re,tain enough support to be effective or to gain reelection, an officeholder must observe a certain standard of conduct...
...In a way I can understand the secular rejection and fear of the great Christian story because it makes demands on those who ac= cept it, terrifying demands...
...A special prosecutor thus could conduct an investigation, subpoena witnesses, and pleabargain with high officials without any public awareness of his actions...
...Its premise is that the President cannot be expected to enforce the law against subordinates...
...Later on at least three teachers told me how brave I was to have dared to mention God...
...We were a small group, . . . operating in a political vacuum," writes James Doyle, a top aide to Cox and Jaworski...
...it was the political process which was decisive...
...There are numerous political questions a court of appointment would have to face...
...The special prosecutor will be politically isolated...
...Public opinion sets the most basic limits on elective authority...
...The bill covers presidential campaign chairmen directly and applies to parties through the "conflict of interest" clause...
...Thus in some cases a special prosecutor would effectively have carte blanche to investigate the political parties, with access to all their records, activities and personnel...
...Does the work of the Watergate Special Prosecutor really support H.R...
...This view falls to understand the essential role of politics in restraining abuse of power...
...9705 capable of preventing abuses by the special prosecutor...
...There cannot be...
...But it took me by surprise that a charming Hasidic tale should evoke such comment...
...Should a member of the President's own party be appointed, on the other hand, in order to show that the inquiry is not a "witch hunt...
...Moreover, any interference by Congress vitiates the notion of a politically independent prosecutor...
...There are no safeguards in H.R...
...Rumors of the prosecutor's ac26 May 1978:330 tivities could be used as a devastating weapon against individuals---the very fact that a special prosecutor has been appointed, that an individual has been called before a grand jury, is enough to provoke suspicion...
...Precisely because such offenses are committed by the most powerful figures in government, they cannot be dealt with by the ordinary criminal proc~s...
...Misuse of the 7udiciary Requiring court appointment of a special prosecutor would also be a serious misuse of the judiciary...
...The President has an interest in maintaining confidence in the integrity of his administration...
...He may be weak, ineffective, or sympathetic with those he is to investigate...
...For all these reasons, there may easily be the appearance of a thorough and impartial investigation without the reality of one...
...MADELEINEL'ENGLE is the author of A Wrinkle in Time, A Circle of Quiet and numerous other books, most recently, The Irrational Season (Seabury Press).Has it really come to that...
...Story takes the fragments and "puts it all together" for us...
...In both the Bert Lance case and the South Korean scandal, for example, there were calls for a special prosecutormin the Korean affair, in fact, the Senate has voted in favor of appointing one...
...No reform bill will guarantee the ultimate integrity of our political order...
...ruin, our chief protection lies elsewhere...
...The bill is not likely to restore the American people's confidence in government, as its sponsors contend...
...The potential for abuse would be enormous...
...The political parties would face an equally serious threat...
...The result would be an institutionalized cover-up...
...The influence of politics in b~EVEN J. HEYMAH is studying government at Harvard.the administration of justice is illegitimate and should be eliminated to the extent possible...
...WE OFTHEBROKENBODY MADELEINE L'ENGLE Reflections on Anglo-Roman-Orthodox unity This past Thanksgiving week-end, during the annual convention of The National Council of Teachers of English, ,I was the speaker for one of the luncheon meetings...
...A "non-political"special prosecutor is no more competent to make the political judgments he would face...
...Not only would the special prosecutor bill undermine presidential and congressional accountability, it would also create a new source of irresponsible authority-for it provides no effective checks to the power of a special prosecutor...
...While they may trust in the rule of law, their trust in lawyers at this point is extremely low...
...Moreover, Congress has already shown a tendency to give a special prosecutor cases, like that of Lance, where the main question concernedfitness to hold office, a question a prosecutor cannot properly handle...
...Yet in Lance's case the main question was not whether he had committed a crime or not, which is unclear, but whether he had been involved in improper conduct which made him unfit to hold public ottice---a question for Congress and the public, not for a prosecutor...
...9705 would grant vast powers to an isolated and unaccountable official, and would subject the political parties to irresponsible government authority...
...Cox and Jaworski, both Democrats, were appointed in part for that reason...
...Rather than risk that an indictment would force the President's resignation without a trial, Jaworski decided to send the evidence to the House Judiciary Committee...
...As Henry Ruth, Jaworski's successor, warned the Senate committee, an unscrupulous special prosecutor could ruin a man's political career and reputation without ever filing charges...
...We could not depend, in Hamilton's phrase, on 'the restraints of public opinion.' In my opinion, we were in danger of becoming like the Nixon White House, an .island whose inhabitants acted without relation to the world around them...
...The House of Representatives will soon consider H.R...
...Congress was forced to face its own responsibilities...
...Thus the power of a special proscutor is left unguarded against...
...it deliberately gives them an interest in the outcome...
...Congress might use it as an excuse not to conduct an investigation of its own...
...In addition, H.R...
...In the Korean scandal what is primarily involved is not Executive misconduct but Congress' duty to keep its own house in order...
...H.R...
...It lies with a strong public sense of the need for accountability, and with the structure of our institutions, designed to limit all power by political restraints...
...They may in no way take responsibility for prosecution--least of all in political cases---without endangering their own independence...
...At the same time, the bill would undermine congressional responsibility, by transferring much of its investigative function to a special prosecutor...
...Congress wQuld often prefer to avoid political risks, acting only when forced to by public pressure...
...9705 specifically allows the appointment of a special prosecutor to be kept secret (and most of his work would have to be done in secret in any event...
...His situation was essentially different from that of a special prosecutor appointed under this bill...
...The courts sit in judgment...
...The court would also haveto decide whether or not a special prosecutor's appointment should be made public "in the best interests of justice"--an especially difficult question when an election is approaching~ Each of these decisions requires a political judgment which a court cannot properly make...
...This problem arose acutely when the Watergate Special Prosecutor had .to Consider indicting President Nixon, an act that in itself would have had grave political consequences...
...Lastly, the public must be reassured that the rule of law treats high and low alike...
...But the effectiveness of this process depends, as Madison stressed to the First Congress, on the President's having complete personal responsibility for his subordinates---only then can he be held acCommonweal: 329 countable, both by Congress and the public, for their aotions...
...A BADIDEAWHOSETIMEHASCOME STEVEN J. HEYMAN The Special Prosecutor Act of 1978 ,Responding to ,the threat of un,controlled presidential power which culminated in the Nixon administration, Congress has reasserted many of its prerogatives, especially in the areas of war powers and federal spending...
...Nor can it be maintained merely by court proceedings...
...The Constitution intends, then, to make the President and Attorney General responsible for enforcing the law against subordinates...
...The bill's supporters advance several arguments for a "non-political" special prosecutor...
...9705, "The Special Prosecutor Act of 1978," which the Senate has passed in a similar form...
...9705...
...The Constitution gives Congress the duty ,to expose offenses by high officials through the power of inquiry and impeachment...
...I began with a Hasidic tale which ends, "God made man because he loves stories...
...But the greatest danger of all may come not from abuse of the prosecutor's power, but from his inability to perform the function which the bill assigns him...
...These are the symptoms of Watergate, not the cure...
...When the limits set by public opinion are transgressed, the answer lies in checks and balances--these, wrote James Madison in The Federalist, give to the members of each branch "the necessary constitutional means and personal motives to resist encroaohments of others...
...H:R...
...9705, however, treats this constitutional connection of duties with "personal motives" as a conflict of interest...
...Nor would confidence be restored by a bill which would perpetuate the assumption that the President and his highest aides are potential defendants in a criminal case...
...They would only aggravate the problem...
...for any such safeguard would have to be, as the Constitution intends, a poh'tical oneBand the whole conception of a special prosecutor is to free such matters from the restraints of politics...
...In neither case was a special prosecutor appointed...
...His appointment would not be made public unless .the Attorney General or the court determined otherwise...
...9705...
...One of the many ways in which Christians have managed to avoid the demands is a way that strikes me as more frightening than the demands themselves: it Commonweah 331...
...I already knew that Christianity is rapidly becoming taboo in the literary world, replacing sex as the unmentionable...
...If he fails to do so, he loses moral authority, risks impeachment, and opens the way for countervailing congressional and judicial power...
...Second, allowing the President to retain authority for prosecuting himself and his olosest aides gives him an improper conflict of interest...
...A special prosecutor must also be appointed whenevermin the Attorney General's view-the President, the President's political party, or the Attorney General has such an interest in a case that it is inappropriateforthe Justice Departmentto handle it...
...9705 provides that whenever the Attorney General has evidence that the President, Vi~e President, certain present and former Executive officials, or the chairman of a presidential campaign has committed a crime involving abuse of federal office, election violations, obstruction of justice, or perjury, he must ask a special three-judge court to appoint a special prosecutor...
...The President might then cite the special prosecutor's failure to prosecute as proof of his aide's innocence...
...The ~danger of abuse of power would be aggravated by secrecy...
...Should a Democrat be appointed to investigate a Republican administration, in order to convince everyone of the completeness of the inquiry...
...Story is one of the great healing elements in a world that is broken...
...Fhe Watergate prosecutor's office was only part of a much broader congressional effort to investigate the scandal--not a substitute for it, as Congress has shown it regards the provisions of H.R...
...Gre~tt abuses of power threaten the political order itself, and they require a political response...
Vol. 105 • May 1978 • No. 11
