The Independent Counsel: What's Next?

Administrative Law Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

August 1, 1999

From the Editors: 

The Independent Counsel law expired on June 1 amidst much debate on what, if anything, should replace it. The law had expired on previous occasions, but reauthorized by congressional Democrats.

In the past 21 years, 20 independent counsels have been named publicly (the law provided for the possibility the appointments could be made under seal, and some may be still). Seven of these were appointed to investigate officials in the Clinton Administration, including the President himself. With the Investigation of President Clinton has come a more bi-partisan appreciation of the Independent Counsel's shortcomings. Even Judge Kenneth Starr, the Independent Counsel who investigated President Clinton, urged Congress not to renew the Independent Counsel law.

Although Congress has held several hearings on the statute's future, no action has been taken. Several Senators including Joseph Leiberman (D-Connecticut), Carl Levin (D-Michigan), Arlen Specter (R-Pennsylvania) and Susan Collins (R-Maine) have crafted a bi-partisan proposal that would retain much of the current statute. The number and scope of officials subject to investigation would be minimized and it would be more difficult for an independent counsel to expand the investigation's scope. On the other hand, Senator Fred Thompson (R-Tennessee) has proposed essentially returning to the special counsel mode, under which the Justice Department would retain control over an investigation, bringing in an outsider to head it up.

While congressional inaction might signal that both parties' oxen have now been gored, it might be a continuation of another trend—the delegalization of politics that started when the House reformed its own ethics procedures after numerous charges were filed against top leaders on both sides of the aisle. Since the reforms, only one new investigation has been commenced.

In the absence of congressional action, the Justice Department will draft guidelines that will govern the appointment and operations of special counsels. Thompson's proposal would require that Congress approve such guidelines prior to taking effect. According to a recent article in Congressional Quarterly, this is "more in line" with the Judiciary Committee's views.

Three of the Federalist Society's members who have studied the independent counsel statute offer their insights into what actions Congress should undertake to handle future investigations of the executive branch of the sort the independent counsel was designed to handle. Professor Tom Merrill of Northwestern University suggests the creation of a special civil service division within the Department of Justice; former Assistant Attorney General Timothy Flanigan and University of San Diego Law School Professor Mike Rappaport argue for Congress to uphold its constitutional role to check the executive through its investigatory powers. Flanigan lays out the constitutional imperative for such a scheme and Rappaport outlines how it could be made to work in practice.