Saturday, June 09, 2007

More about the Independent Counsel Act

In yesterday’s post, I asked, “Why not restore the Independent Counsel Act?” Here’s a thumbnail sketch of the previous Independent Counsel Act, how it can be improved, and what procedure currently exists that can be used to hold our elected officials to account and its limitations.

I’m relying on this report, published by before the Act expired in 1999, using a “FAQ” to highlight the important points.

Q: Why was it enacted?
A: In response to the Watergate scandal, specifically to President Nixon’s (photo) firing of Watergate Special Prosecutor Archibald Cox.

Q: Why was Cox fired?
A. Because he insisted Nixon comply with subpoenas after Nixon unsuccessfully exhausted avenues of judicial review challenging his claim that he didn’t have to comply.

Q. How did the Independent Counsel Act (ICA) take away the President’s and other federal officials’ right to fire prosecutors who are investigating them?
A. By insulating future independent counsel charged with investigating criminal conduct by high-level federal officials from White House and Department of Justice (DoJ) pressure.

Q. What procedure currently exists when high-level federal officials appear to be acting criminally?
A. The Attorney General can designate a Special Prosecutor or Counsel, someone inside or outside the DoJ’s office. [Sidebar: See below for attorney Janie Sheppard’s e-mail to me regarding the limitations of this procedure.]

Q. Were there flaws in the ICA that expired in 1999 that should be corrected if the Act is reinstated?
A. Yes, according to the Public Citizen report, “structural flaws in the statute” became evident when Independent Counsel [hereafter “IC”] Kenneth Starr launched the Whitewater investigation, which involved President Clinton.

Q. How can these flaws be corrected?
A. 1. No one who is serving as IC should be permitted to engage in any private work involving the US during the time in he or she is serving as Independent Counsel.
2. The IC should have relevant experience in criminal law.
3. Persons who are clearly identified with a political party, i.e., have served in an elective office or as a Presidential appointee in the recent past (say, five years), should not be appointed.

Q. How can the IC be held accountable?
A. The Clinton case made it evident that a strict standard should be used for initial referrals and evaluations of requests by IC, particularly when it comes to expanding the jurisdiction of the investigation.

Q. How does the investigation of an IC relate to impeachment proceedings?
A. The expired Act mandated that IC “advise the House of Representatives of any substantial or credible information…that may constitute grounds for impeachment.” The problems that arose regarding IC Starr’s investigation of Clinton revealed that the report to the House needs to be made in a timely fashion and not in an accusatory form.

[Sidebar: For those who are truly fascinated with this subject, here’s Janie’s e-mail. The Special Counsel Regulations are, in essence, the US Attorneys' manual, which Janie researched earlier this week.]

Applying the procedures in the Special Counsel Regulations, 28 CFR Part 600, to an investigation and prosecution of Cheney, Rove, and Gonzales, for starters, would involve:

1. The AG makes a determination that a criminal investigation is warranted AND that such investigation by the US Attorney's Office or litigating division of DOJ would pose a conflict of interest for the Department [e.g., the AG being investigated] or other extraordinary circumstance [such as Rove directing the activities of the DOJ] AND "that under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter." In practical terms, Gonzales would have to make a determination about himself, his boss (Rove) and the VP--not something he would be likely to do. But, even if you get past those hurdles there are more. 28 CFR 600.1

2. The Special Counsel is required to notify the AG of events, using the guidelines for "Urgent Reports" that are contained in the manual for the US Attorneys. Thus, the Special Counsel would be required to keep the AG informed of his or her progress. 28 CFR 600.8(b)

3. In terms of Congressional involvement (or oversight for that matter) the regulations provide for Congressional notification only upon appointment, removal of a Special Counsel, or conclusion of an investigation, including "instances that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued." 28 CFR 600.9

4. The regulation purports to create no rights, meaning, in part, that no one can sue over the non-appointment of a Special Counsel. 28 CFR 600.10

(photo –


Barb Temple said...

This piece offers a meaningful way to hold our elected officials accountable. With Gail's permission, I think it should be sent to our local newspapers around the nation. I would guess that the average person isn't aware of the ICA and would be well served to be able to read this information.

John in Cincinnati said...

Yes, Gail, perhaps the ICA was good law and should be reconsidered. I admit I confused Independent Counsel with Special Counsel even though I received my political science degree and served as a U.S. Senator's intern during the post-Watergate/Vietnam era when the ICA was enacted.

John Dean addresses the independent and special counsel issues here. Perhaps now that Congress is considering the restoration of the Great Writ (habeas corpus) they will go a step further and reautorize the ICA. God knows any thinking -- and honest -- person must be outraged by the abuses of the legal system by the current administration.

The only point on which we disagree, Gail, is on the firing of U.S. Attorneys for not being "loyal Bushies." Since they serve at the pleasure of the President I believe they could have been fired solely on that basis. My sense is the firings were wrong and likely illegal because they were intended in some instances to obstruct justice, and in others to violate the National Voting Rights Act (NVRA).

On your main point we absolutely agree. The ICA should be reconsidered.

Gail Jonas said...

Barbara, of course anyone can use what I write in any way that they consider useful.

Gail Jonas said...

Thanks for your thoughtful comment and link to the Dean article.

Regarding my comment about "loyal Bushies," it is understood that each President has unlimited discretion to fire all the attorneys from the previous administration and start fresh.

However, once they are appointed, I believe the US Attorneys are to remain free from White House pressure to conduct investigations for political reasons, or to refrain from conducting investigations for polticial reasons, which has happened under Bush.

Gail Jonas said...

Addendum to my comment in response to John of Cincinnati's re loyal Bushies: It appears we actually agree on when US Attorneys can be fired, though I have a lower threshold for what constitutes improper firings, i.e., that they have to be illegal.