Unchecked and Unbalanced

T he institutional design of the Independent Counsel is designed to heighten, not to check, all of the institutional hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." Thus wrote Supreme Court Justice Antonin Scalia nearly a decade ago, echoing the warning of three attorneys general, two of them staunch Republicans. In his dissenting vote to hold the Independent Counsel Act unconstitutional, Scalia objected that the supposedly independent counsel is a novel and dangerous means of law enforcement: a prosecutor who is effectively accountable to no one and entirely focused on a single person.

Kenneth Starr was appointed to investigate possible illegality in connection with the Whitewater affair in Arkansas. Nearly four years and $30 million later, Starr authorized and obtained tape recordings of private conversations with Monica Lewinsky, the former White House aide. As of this writing he has also threatened criminal charges against Lewinsky, issued subpoenas to a large number of people who may have talked to Lewinsky about her sex life, forced Lewinsky's own mother through two days of testimony before a grand jury, and sought testimony from members of the Secret Service and from Lewinsky's original lawyer. Whatever may be the outcome of this investigation—whatever its fate or that of President Clinton—it cannot be doubted that Starr's behavior extends far beyond the usual practice of the criminal prosecutor. Prosecutors do not ordinarily authorize tape recordings designed to capture private accounts of alleged illicit sexual relations, and they rarely threaten to bring perjury charges as a result of affidavits in civil cases, especially when the affidavits involve such relations.

This article is not primarily about Starr's investigation. What is remarkable is that Starr's conduct has been paralleled by a large number of less publicized but drawn-out, expensive, and sometimes obsessive investigations by other independent prosecutors. The peculiar behavior is best understood as a product of the bizarre incentives created by the Independent Counsel Act, one of the most ill-conceived pieces of legislation in the last quarter century.

This is hardly a partisan issue. As Scalia foresaw and Republicans have long argued, the underlying problem is that the act eliminates the key safeguards built into the role of the prosecutor. Ordinary prosecutors have a large set of actual or potential targets of investigation. They also have limited budgets. They know that criminality of some sort or another is widespread and that not everyone suspected of a crime should be indicted. The safeguards that come from the combination of a limited budget and a wide focus are crucial contributors to human liberty under law—as crucial, perhaps, as any provision of the Bill of Rights. They discourage prosecutors from becoming single-mindedly preoccupied with one target of investigation and therefore tempted to abuse the powers of their office.

The Independent Counsel Act creates dangerous incentives not only for the independent counsel, but for members of Congress and the press as well. Investigations under the act deflect attention from serious public issues and focus the attention of Congress, the press, and citizens alike on scandals that are sometimes imaginary and that, even if real, may not deserve the prominence that the possible or actual appointment of an independent prosecutor gives them. Sensational anecdotes, eye-catching accusations, and the dehumanization of political opponents have come to occupy so large a portion of our public life in America that they now obstruct the main business of democracy: attending to our problems and how they might be solved. The principal effect of the Independent Counsel Act is to fortify the worst tendencies in contemporary democracy. The act does a great deal of harm and little good. It is scheduled to expire in 1999 and it should not be re-enacted; better yet, it should be repealed as soon as possible.

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One reason for the durability of the American Constitution is that the Framers had an acute understanding of the relationship of institutions to incentives. They sought to create a structure for the national government that would permit representatives to act in a reasoned fashion, above the fray of factions and misplaced passions. The institutional safeguards of the original Constitution, including both national representation and checks and balances, were designed to implement this deliberative ideal. The real problem with the independent prosecutor is not the individuals who occupy the office, but the unchecked discretionary power and unbalanced incentives of the institution itself.

The original goal of the Independent Counsel Act was simple, laudable, and entirely appealing: to ensure that the decision whether to prosecute high-level government officials would not be made by high-level government officials. In the aftermath of the Watergate scandal, which was a genuine constitutional crisis, the act seemed indispensable as a way of promoting public trust in government. The idea that no person should be the judge in his or her own cause is deeply rooted in American constitutional traditions; it seems only natural to think that those investigating high-level criminality should be insulated from control of the highest executive officers. In this way, the Independent Counsel Act might be seen as continuous with the Founders' effort to design institutions so as to respond to the incentive effects of different governmental arrangements.

The Constitution, of course, specifically provides for impeachment as the remedy for official misconduct at the highest level. But in the Watergate era, it seemed sensible to reply that impeachment is extremely difficult and unnecessarily strong medicine for many offenses and that it should be used very rarely. The act appeared far more precisely targeted. It would create an assurance that a disinterested person would investigate and if necessary prosecute high-level officials. But as sometimes happens, legislation driven by particular events may have created problems more serious than those that it was meant to prevent.

W hat sort of structure has emerged? Every year, of course, many complaints are made by people asserting that a high-level official has violated some law and that an independent counsel should be appointed. The Independent Counsel Act specifies a rigid procedure for handling these complaints. The attorney general must follow three steps. First, she must conduct a "preliminary investigation" whenever she receives "information sufficient to constitute grounds to investigate whether any" covered person may have violated the federal criminal law. Covered persons include the president and vice president, heads of the cabinet departments, assistant attorneys general, the director of the CIA, the deputy director of the CIA, the commissioner of the IRS and the chairs and treasurers of the principal national campaign committees seeking the election or re-election of the president. To consider whether a preliminary determination is warranted, the attorney general is allowed to consider only two factors: the specificity of the information received and the credibility of the source of information. She has 30 days to make the key decision.

If she decides that a preliminary investigation is warranted, the attorney general must decide within 90 days whether "there are reasonable grounds to believe that further investigation is warranted." During the preliminary investigation phase—and this is a crucial provision—the attorney general is not authorized to convene grand juries, plea bargain, grant immunity, or issue subpoenas. And she cannot decide against further investigation because the defendant lacked the necessary state of mind, "unless there is clear and convincing evidence" of that fact.

If the attorney general concludes that there are "reasonable grounds" for further investigation, she must apply to the court for the appointment of an independent counsel; this step is mandatory. The independent counsel, once appointed, has "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the attorney general, and any other officer or employee of the Department of Justice." Among the expressly enumerated authorities are the power to apply for grant of immunity for any witness, to obtain tax returns, and to bring indictments. The independent counsel is also authorized to hire any employees he considers necessary. The attorney general may remove the independent counsel "only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance" of his duties.

T his structure is remarkably rigid. How can the appointment of an independent counsel be stopped if it is undesirable? There are several methods. The first is via a preliminary determination that the charges are insufficiently credible and specific. But credibility may be hard to deny if, as is often the case, the allegation has been reported in the press and members of Congress think that there is reason for concern.

The second possible step is to conclude that there are no reasonable grounds for further investigation. Attorney General Janet Reno's decision not to seek appointment of an independent counsel for certain campaign-related activities by President Clinton and Vice President Gore attests to how controversial such decisions are likely to be. Judgments of law can stop the investigation at this stage. But under the act, any such judgment must be reached without convening grand juries, grant ing immunity, or issuing subpoenas, and without considering, in the normal fashion, the issue of intent. Often, of course, a prosecutor will drop a case at an early stage, after issuing subpoenas, considering the defendant's state of mind, or simply deciding, after an "all things considered" judgment, that this is not the kind of case that calls for a formal criminal investigation, even if there was a technical violation of law.

Such decisions not to investigate seriously or prosecute are a major safeguard of liberty under law. Not every technical violation of law should be subject to criminal prosecution, or even criminal investigation. If the law books were taken entirely seriously and every American were fully investigated with an unlimited budget for crimes committed within the last two decades, we could probably manage to put a high percentage of Americans behind bars and bring the economy to a grinding halt. High-level public officials are particularly good targets for investigation, if only because of the complex network of statutes that regulate their behavior. Criminal prosecutors have limited budgets and exercise common sense in deciding to which cases they should allocate their limited resources. This is an important protection against liberty-threatening intrusions on people whose human frailties produce criminality that should hardly be celebrated but that ought not to result in an actual jail sentence, or even in the realistic fear of a jail sentence.

Consider a few of the examples of investigations under the act. President Carter's chief of staff, Hamilton Jordan, was alleged to have used cocaine, and an independent counsel was appointed to investigate the allegation. The resulting investigation took several years and eventually cleared Jordan. President Reagan's assistant attorney general, Theodore Olson, was alleged to have lied before Congress in the context of a hotly disputed set of issues involving the behavior of Anne Gorsuch, the administrator of the Environmental Protection Agency. An independent counsel was appointed to investigate whether Olson should be indicted and sent to jail. Ultimately, Olson was "cleared." But is it reasonable for an assistant attorney general to have to fend off a criminal indictment because of the possibility that he has acted as an excessively zealous advocate in discussing constitutional issues relating to executive privilege? It is conceivable, though highly debatable, that Vice President Gore violated an old statute, the Pendleton Act, by making fundraising phone calls from the White House. But no reasonable criminal prosecutor would bring an indictment in such a case unless he were attempting to grandstand or to make a name for himself. It is not worth belaboring the point that in cases like this, calls for an independent counsel have nothing to do with a realistic claim that people should face criminal charges.

These suggestions raise an important question of law and fact: To what extent is the independent counsel within the technical control of the Department of Justice? As a matter of law, the question is not easy to answer. The counsel can be dismissed for "good cause," as the Supreme Court emphasized in Morrison v. Olson. It would be reasonable to think that the attorney general has considerable authority to discharge an independent counsel and perhaps also to control the counsel's performance. But however the legal issues might be resolved, the practical reality is that any attorney general will inevitably give a great deal of autonomy to the independent counsel. An attorney general who discharged a counsel, or attempted to control a counsel's operation, would face enormous political pressure, and any attorney general will know this. Thus while the law leaves room for dispute, the independent counsel is in practice an independent agent with an unlimited budget.


The Independent Counsel Act has probably served as a deterrent to crime by letting high-level officials know of the serious consequences of any illegal conduct. Moreover, some of the allegations pursued under the act are not trivial, and in some cases the use of an independent counsel has succeeded in bringing about convictions that might otherwise not have been obtained.

But these points hardly show that the act has made things better on balance. Many investigations have been a waste of taxpayer resources, in the process tarnishing the reputations of public officials and other possible defendants, not to mention imposing enormous legal costs on them. It is not clear that the 20 total convictions and 24 total guilty pleas offset these costs. But the most important harm to the nation is indirect and arises from the incentives created by the act for prosecutors, politicians, the media, and citizens themselves.

The independent counsel. By narrowing the prosecutor's focus to a single target of investigation and providing unlimited funds, the act eliminates the key safeguards built into the ordinary role of the prosecutor and creates an incentive for zealotry. After years in which your job is to investigate a single person or incident, all perspective is likely to be lost. An independent counsel who uncovers nothing will look as if he has wasted his time, not to mention millions of tax dollars. An announcement that no crime was committed, or that no crime can be proved, looks like a confession of failure. In contrast, an independent counsel who is able to bring a prosecution, or force the resignation of a top official, perhaps the president himself, may not just validate his work but perhaps even go down in history as another Archibald Cox, a true hero of democratic ideals. The act encourages independent prosecutors to do what, in a free society, no good prosecutor does: to take all imaginable steps to indict a single individual.

The contrast between the Framers' understanding of institutions and incentives and the office of the independent counsel could not be sharper. The system of checks and balances was designed to ensure deliberation, reflection, and accountability. Some of the most valuable developments in institutional reform—including the oversight role of the Office of Management and Budget with respect to both the budget and regulation—have also attempted to link incentives to institutions. The Independent Counsel Act, however, creates incentives for intense pursuit of a single target of investigation that dominates all other concerns.

Politicians. Consider how the incentives of politicians are affected by the act. It is hard to imagine any presidential administration in which there will not be at least a colorable claim of official illegality by someone covered by the act—a proposition supported by the fact that every administration has been subject to at least one independent counsel since the act's passage. Among political opponents of any administration, a number are likely to find it in their political interest to call for an independent counsel to investigate some real, possible, or even wholly imagined wrongdoing.

Any call for criminal investigation has the appearance of neutrality and statesmanship. How can a mere investigation do any real harm? From the standpoint of political self-interest, such a call will usually have the happy effect of attracting the attention of the press and the public. And if eventually some politician is likely to call for an independent counsel, might there not be special advantage in being among the first to do so? Once one or two politicians have called for an investigation, those who do not favor an independent counsel in the particular case, especially if they belong to the opposing party, may seem timid or unduly allied to the interests of the current administration.

Thus members of an opposition party may well find themselves in the position of publicly favoring—and by significant numbers— no less than a sustained criminal investigation and a possible jail sentence for their political opponents. Political disagreements turn into criminal charges. What is especially important is that everyone knows this before any scandal begins, and this knowledge will make the unfortunate scenario all the more likely.

In this light it should not be at all surprising that the act is used in a partisan manner. The problem is that it enlists the criminal justice system in partisan maneuvering. Criminal charges are easy to make and hard to rebut. The process is easy to start and hard to stop. And the stain on an official's name is easy to make and difficult to wash out.

Media. Newspapers and broadcasters already have strong economic incentives to focus on scandals, and the growing competition in the media in recent years has increased the preoccupation with scandals as a way of building circulation and ratings. It is far easier to attract readers and viewers by playing up a call for an independent counsel to investigate a high-level official than by running an exploration of, say, the effects of minimum-wage legislation. Thus there is a vicious circle, in which politicians and reporters follow their self-interest to the detriment of public discussion. Even before the recent events involving Monica Lewinsky, the preoccupation with independent counsel investigations had been growing. Front-page stories in the New York Times and Washington Post referring to such investigations have grown over time. There were just three such stories in the final years of the Carter administration; then 50 in the first four Reagan years; 225 in Reagan's second term; 63 under Bush; 220 during Clinton's first four years; and already 120 in Clinton's second term up to November 6, 1997. (Computer-equipped readers are invited to do their own search between November 6, 1997, and the present; needless to say, the number increases just about daily.)

Editorial writers also find it easy to assume a statesman-like posture favoring appointment of an independent counsel on the grounds that otherwise there can be no assurance that justice will be done. This is, for example, the typical stance of the New York Times editorial page, which is often focused, with all imaginable seriousness, on the legitimate concerns raised by new allegations and the need for "the air to be cleared." (The utter predictability of these editorials, admittedly, can make them appear a bit hilarious to longtime readers.) No one loses from a call for an independent counsel. Thus a kind of cycle is likely to build, in which political and media incentives fortify the interest in scandal-mongering.

Prospective public servants. In light of the experience of recent years, one prediction is pretty safe: so long as the law remains on the books, every future presidency will be faced with independent counsel investigations. It would be astonishing if "specific and credible" charges could not, over the course of four years, be made against at least a few members of any administration. Indeed, it would be astonishing if specific and credible charges could not be made against most Americans, based on their conduct over any four-year period, let alone their entire lives! But thankfully, most ordinary Americans will not face a prosecutor dedicated to investigating them alone, for prosecutors don't have the time and must pay attention only to the most serious crimes. For public service, the consequences of this asymmetry can be devastating. Prospective public officials know that by accepting a high-level appointment, they run the risk that someone, someday, will make a credible charge against them, that an independent counsel will be appointed with no time or budgetary limit on the investigation, and that they will have to defend themselves against allegations that could put them in jail. Nor is an investigation by itself harmless; even without an indictment, defending yourself can cost millions of dollars, and thus even the innocent (and their families) face financial and other hardships. Why accept the job?


No doubt, in many particular cases, those who approve of the current law or call for investigations by independent prosecutors have in mind the best interests of the country. But the general impact of such investigations—undertaken often for relatively trivial cases—is grave harm to American democracy as a whole. Scandals and sensationalism crowd out discussion of other issues. Instead of focusing on problems that deeply affect us, the nation becomes preoccupied with often impossibly technical questions about the violation of a statute that has marginal relevance to the national interest.

The result of all this is a disaster for the public: a belief that all politicians are crooks participating in cover-ups, a deflection of attention from substantive issues, a situation in which anyone contemplating public office faces a serious risk of being investigated. The Independent Counsel Act is not the prime source of public cynicism, but it contributes to distrust of government grounded not on an assessment of what policies do, but instead on a perception of pervasive corruption. This distrust can easily be exploited by conspiracy-mongers and political freelancers such as Ross Perot, who may themselves be subject to character assassination but nonetheless draw ordinary officials into a skeptical cloud.


How should we handle high-level criminality? If not the Independent Counsel Act, then what? For most of the nation's history—in fact, for more than 180 years—corruption in high places was addressed without any special procedures. Special procedures can hardly be indispensable if the nation managed well for nearly two centuries without them. The vigilance of opposing parties and the press are formidable obstacles to official wrongdoing and corruption. Before the Independent Counsel Act, political checks worked reasonably well. Scandals were occasionally handled by the appointment of an investigator in the Justice Department known to be relatively impartial and free from partisan control.

Usually invoked as a counterexample, the Watergate scandal is actually a case in point. Archibald Cox was made independent by Department of Justice rules, as was Leon Jaworski. After Robert Bork fired Cox, Jaworski was appointed and did his job well, and President Nixon had to resign. The system worked. And there was no independent counsel act. The lesson of the Watergate scandal is that political safeguards and ordinary procedures are perfectly sufficient.

In a highly politicized, two-party system filled with incentives to ferret out corruption, the possibilities of disgrace and impeachment are likely to do most of what needs to be done. If the choice is between the continued use of the Independent Counsel Act and its repeal, the better course is repeal. Scaling back the act—limiting the number of people covered or the power of the counsel—would be a bit better than the status quo but would leave untouched the basic problems of the office. The best approach would be to allow the act to die a peaceful death in 1999 or to repeal it even sooner.

If a sensible intermediate step is to be ventured, one possibility would be to create a highly professionalized institution, with a degree of independence, one of whose functions is to explore high-level illegality. This might be an office within the Department of Justice, perhaps modeled on the FBI and entrusted with several sensitive jobs, including that of investigating reports of illegality involving the president, the vice president, and the attorney general. People in such an office would have a history to draw on and a basis for reasonable comparisons. They would also have a menu of cases, and as career officials—not one-shot special appointees—they would have no special tendency toward zealotry. With a broader focus of work, they would have no reason to become obsessed with a single prosecution or think they would be judged a public disgrace for failing to secure an indictment. This proposal is hardly exotic. Among the analogs are not only the FBI but other Justice Department offices dealing with ethical issues and Freedom of Information requests.

The principal problem with the Independent Counsel Act is that by creating the wrong incentives, it makes our institutions work less well. It was supposed to increase trust in government; instead, it has diminished trust in government. It deflects public and congressional attention from substantive issues and turns disputes about policy into allegations of criminality. The Independent Counsel Act is thus a kind of parody of the achievement of the Framers, who merged an understanding of incentives and an understanding of institutional design.

The concern about favoritism in the criminal prosecution of high-level wrongdoing is legitimate, and in many countries it is a fundamental problem. It is not, however, one of the most serious issues facing American government. Our serious problems involve the effects of policies on people's actual lives. Official wrongdoing can and should be handled through means that are less destructive of public life. Whatever happens with Kenneth Starr's investigation of President Clinton, the Independent Counsel Act is itself a disastrous failure. On the merits there is little serious question. The only serious question is whether the Congress is prepared to do something about it.
—March 5, 1998

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