SPEAKERS CONTENTS INSERTS
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63–846
2000
REAUTHORIZATION OF THE INDEPENDENT COUNSEL STATUTE, PART I
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
MARCH 2 AND 10, 1999
Serial No. 86
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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SPENCER BACHUS, Alabama
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
ED BRYANT, Tennessee
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LINDSEY O. GRAHAM, South Carolina
STEPHEN E. BUYER, Indiana
STEVE CHABOT, Ohio
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
MELVIN L. WATT, North Carolina
ANTHONY D. WEINER, New York
WILLIAM D. DELAHUNT, Massachusetts
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN JENSEN-CONKLIN, Counsel
JAMES W. HARPER, Counsel
C O N T E N T S
HEARING DATE
March 2, 1999
March 10, 1999
OPENING STATEMENT
Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law
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WITNESSES
Anderson, Philip S., President, American Bar Association
Barr, William P., former Attorney General
Civiletti, Benjamin R., Former Attorney General
Dickey, Hon. Jay, a Representative in Congress from the State of Arkansas
Flanigan, Timothy E., Warren E. Berger Biography Project
Hastings, Hon. Alcee L., a Representative in Congress from the State of Florida
Holder, Eric H., Jr., Deputy Attorney General, U.S. Department of Justice
O'Sullivan, Julie Rose, Professor, Georgetown University Law Center
Thompson, Hon. Bennie G., a Representative in Congress from the State of Mississippi
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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Anderson, Philip S., President, American Bar Association: Prepared statement
Barr, William P., former Attorney General: Prepared statement
Civiletti, Benjamin R., Former Attorney General: Prepared statement
Dickey, Hon. Jay, a Representative in Congress from the State of Arkansas: Prepared statement
Flanigan, Timothy E., Warren E. Berger Biography Project: Prepared statement
Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law: Prepared statement
Hastings, Hon. Alcee L., a Representative in Congress from the State of Florida: Prepared statement
Holder, Eric H., Jr., Deputy Attorney General, U.S. Department of Justice: Prepared statement
O'Sullivan, Julie Rose, Professor, Georgetown University Law Center: Prepared statement
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Thompson, Hon. Bennie G., a Representative in Congress from the State of Mississippi: Prepared statement
REAUTHORIZATION OF THE INDEPENDENT COUNSEL STATUTE, PART I
TUESDAY, MARCH 2, 1999
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., in Room 2141, Rayburn House Office Building, Hon. George Gekas [chairman of the subcommittee] presiding.
Present: Representatives George W. Gekas, Lindsey O. Graham, Steve Chabot, Asa Hutchinson, Jerrold Nadler, Tammy Baldwin, Melvin L. Watt, Anthony D. Weiner, and William D. Delahunt.
Also present: Representatives John Conyers, Jr., Maxine Waters, and Sheila Jackson Lee.
Staff present: Ray Smietanka, Chief Counsel; Jim Harper, Counsel; Susan Jensen-Conklin, Counsel; Audray Clement, Staff Assistant; Julian Epstein, Minority Chief Counsel and Staff Director; Perry Apelbaum, Minority General Counsel, and David Lachmann, Minority Professional Staff Member.
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OPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS [presiding]. The hour of 2 o'clock having arrived, the committee will come to order.
We have fulfilled the commitment that we undertook when we were granted the gavel for this important committee, of having started every single meeting in the two and one-half years that we have been in session, as the majority, on time. The problem is that we cannot continue without a hearing quorum, so even though I have fulfilled my obligation to start on time, I now declare a recess until the hearing quorum shall appear.
Mr. DICKEY. Mr. Gekas, it is obvious that you didn't tell your committee members that Mr. Hastings and I were going to be here.
Mr. GEKAS. That is why they are late. [Laughter.]
[Recess.]
Mr. GEKAS. The committee will come to order.
The Chair notes the presence and attendance of a hearing quorum on the part of the committee, and so we shall proceed with the first item of business, which is to hear the testimony of our colleagues in the House who have rather pointed views on the issue before us.
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Before we begin, by way of framing the day's events, we all know why we are here. The current Independent Counsel Statute will expire in June of this year, and this poses, for us, a set of difficult circumstances. One, because of the controversy that has been swirling around the issue for a long period of time, preceding even the advent of the last two independent counsel encumbrances. Nevertheless, we judiciously thought we were going to await the conclusion of the Starr investigation of the President before embarking on consideration of the possible renewal of the current statute or a modification thereof, et cetera.
It need not be said that we must have some kind of mechanism in place to deal with conflicts of interest. I insist that better Government, good Government, demands we have some sort of apparatus to deal with exactly that, and the apparent conflicts of interest that could lead to actual conflicts of interest.
And so Watergate occurred, and various proposals were made consistent with the outcome of those proceedings; the trouble with the special prosecutor or the assets of having a special prosecutor within the Department of Justice. Then that wasn't enough, so people proposed that in order to ensure independence of outcome, independence of approach, independence of investigation, the concept of the independent counsel grew to a finality in the form of the Independent Counsel Statute.
Ironically, those who opposed it at that time, and who consistently opposed it straight up to its reauthorization 5 years ago, offered amendments to try to modify it and suggestions on how to better implement it, all of which were rebuffed. Now the defenders of the Independent Counsel Statute of that time, against any move to amend it, are asking for a dissolution of the Independent Counsel Statute.
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Well, we are here to discover why and how all of this occurred and what, ultimately, is the position, very importantly, of the administration, the Justice Department, and its spokesmen—an important arena for our consideration in determining how this apparatus will be formed to deal with conflicts of interest.
I will defend the necessity for that, but in what final form, I cannot guess, nor will I commit myself to any conclusion.
There are only four possibilities it seems to me. One, to reauthorize the current statute. Two, to reauthorize it with modifications. Three, to revert to the pre-Watergate concept of having the Attorney General, on his or her own, conduct the investigations, even within executive offices of the same political party. And fourth, something in between; which would occur within the Attorney General's office and would bring about some measure of independent investigation and conclusion of such an investigation of conflicts of interest.
We don't know where we are headed in that regard, but we are eager to proceed—to hear the views of all those who are interested in this vital subject.
The Chair plans not to have any other opening remarks for the sake of proceeding with the plan at hand to hear our colleagues. Perhaps you will be able to make such opening statements in the context of the questions and answers. The Chair will allot extra time for addenda that you might have for those questions that you might want to pose to our witnesses.
So with that, we shall hear first from Representative Dickey, who has been trailing me for several years now, eager to bring about some testimony, some assertion of his views on independent counsel. And, today, he will have his day.
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We will begin with him, and his colleagues will be called upon in due order.
[The prepared statement of Mr. Gekas follows:]
PREPARED STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
This afternoon the Subcommittee on Commercial and Administrative Law will begin consideration of the reauthorization of the law providing for the appointment of independent counsel to investigate wrongdoing by high-ranking members of the executive branch and others who may present a conflict of interest, or the appearance of one, to the Attorney General. While we will certainly consider this matter deliberately, we must also act with some dispatch as the law is scheduled to expire on June 30th.
The law was originally enacted in 1978 to address an unusual situation, the firing of a special prosecutor investigating a major executive branch scandal known to everyone as ''Watergate''. While the appointment of that special prosecutor came in response to a public outcry after weeks and months of developing scandal, it was accomplished primarily because of the leverage held by the Senate during confirmation of Attorney General-designate Elliot Richardson...a situation which the Congress realized was serendipitous. Therefore, those recent Congressional veterans of Watergate—Congressmen Peter Rodino, Senators Kennedy and Ribicoff and others—set about to insure that the public would be guaranteed an impartial investigation when criminal allegations involved high ranking Administration officials.
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Twenty years and 20 independent counsel investigations later, some say: ''Enough is enough—let the law die! Let's start trusting the Attorney General to be fair and impartial again.'' Individuals and groups that were instrumental in creating this law now oppose its continuation—using the same arguments, if not the very words, of those opposed it from the outset.
Some might ascribe their changed attitude to their altered vantage point, but perhaps that would be as unfair as it was to have questioned the motives of those who originally opposed the bill. Suffice it to say that these 20 years of experience, during which the Congress voted to renew the statute no fewer than three times, may have brought us all to a much clearer understanding of the law's potentially inherent flaws and practical shortcomings. We all, Democrats and Republicans, have walked some miles in each other's shoes and now well understand his perspective.
I must say at the outset that I do not question the motives of anyone during those days who conscientiously sought to make law enforcement both be and seem as impartial when it came to the governors as was when it involved the governed. As President Carter stated in support of the original legislation: ''The American people must be assured that no one, regardless of position, is above the law.'' But, while we intend to indulge in no criticism of the men responsible for this law, we will certainly look critically at the law itself. Has it worked? Should it be reauthorized? How can it be improved?
At this our first hearing, we will hear from the Department of Justice to learn its view on these questions. No other official in federal government has been as affected during these 20 years as the individual who has served as Attorney General. The statute, after all, rested on what I view as a somewhat questionable assumption that the Attorney General could not be trusted—or people wouldn't trust him—to do justice in certain situations . . . an understandable bete noire.
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Notwithstanding, the current Department of Justice supported this statute when it was reauthorized in 1994 and again testified in its favor before our committee in 1996. As we live and learn, it may also and so I felt it was important to hear from the Deputy Attorney General who has to operate within the law. I am most eager to learn his answers to the three questions I asked earlier and I promise to work with him to address whatever concerns he raises with us today or in the future.
Our first panel will consist of three of our colleagues who have or, in the case of Mr. Thompson, will shortly introduce legislation that would effect this legislation. I must also note that our colleague from New York, Mr. King, also has introduced legislation but was unable to attend the afternoon's hearing because he is chairing a hearing of his own subcommittee at the same time. We would be happy to receive any statement that he cares to submit for the record.
STATEMENT OF HON. JAY DICKEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
Mr. DICKEY. Mr. Gekas, I want to thank you for relenting——
Mr. GEKAS. Five minutes.
Mr. DICKEY [continuing]. And finally let me speak before your committee. I appreciate it very much.
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I want to give a report of what the independent counsel has done to our State of Arkansas. It has been a devastation. It has been like a tornado has hit, like Sherman's march to the sea.
We have lived it. We have suffered, not only the Starr investigation, but Donald Smaltz's investigation. We have pitted friends against friends and family members against family members. We have pitted people against their own peace of mind, against their own bank accounts. Marriages have broken up. We have had people plead guilty when they just didn't have any more money; they couldn't afford to have any more attorneys' fees.
It has just been a horrible thing to watch. But we know, that for the country's sake, there has been some kind of motivation, and some kind of purpose has been served.
We go back to the Watergate days, not Whitewater, but Watergate, when we had the firing of the special prosecutor, and 450,000 telegrams came in saying that we can't have this.
We know also, that when we voted in the House and when the President proposed this, that he had done the polling. We know that for a fact. We can take judicial notice of that. He had done the polling, and he had found out that this issue was, in fact, something that we needed to take care of in 1994.
His wisdom in that respect was confirmed by the House vote of 317 to 105, and I must say I was one of those who voted against it. In the Senate, it was 76 to 21, so there is something out there that we have got to serve. There is some concern that people have, and conflict of interest as the chairman so adequately described, as one of those things that needs to be taken care of. However, we just can't let our country be taken down the course that we have done.
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I would like to just read from my statement, one part. ''If we continue the way we are going with the independent counsels, we risk losing the support of America and its earnest people in the fight against crime. We could end up with a cynical citizenry that concludes that crime prosecution is more about television lights, feeding our Nation's appetite for scandal and gossip, destroying reputations, seeking political results, and discouraging people, especially our young people, from participating in the political process, than it is in protecting our society and its everyday folks against crime.''
I have a bill that has been submitted in the last three Congresses. It sets out that we need to have some changes. The reason I am saying this is, if we have this desire on the part of the American people that we have some type of investigation or some type of independent investigation of crimes or alleged crimes, that we cannot go with what we have now, and that we need to have a change.
So the changes that we have that are in the bill is that, first of all, that the Attorney General is given subpoena power to make investigations so we don't have to appoint an independent counsel to find out exactly what is going on in the first place. Then, if the Attorney General allows it to go forward, that the scope be limited, be more narrowly set out, and adhered to.
Three. After 2 years, each independent counsel must submit to the appropriation process or have a budget approval. This is very central and key to this legislation. That we somehow have some constraints on the independent counsel's authority. Nowhere right now do we have anything like it in the statute. We don't have any election that is coming up that will affect them. We don't have any appointment that is coming up that will affect them. We don't have any money. We don't have any time. We don't have any limitation. We have seen what it has done, as far as our appropriations and the spending of money. One hundred and fifty million dollars has been spent. Now you can sit and say that the Starr investigation was better than any of them because of all the convictions, but I don't see how you can do that. Even at that, the convictions are over $1 million a piece if you gauge it that way.
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The independent counsel should not practice law. We have problems with the time constraints, and as long as we have somebody still practicing law, they are going to dip in and out of their practice of law, and we are going to have delays that are caused because they are trying to do two things at once. We should bring this in because of the 2-year limitation, at the start, because of appropriations, and we should also bring it in because that person is going to suffer from his private practice if he has to give it up. So this is not only a matter of conflict, but it is a matter of motivation.
We need a fair means of awarding attorneys' fees to innocent persons so that we actually in fact will pay for the mistakes of the independent counsel. When you have a platform like the independent counsels have, worldwide recognition, and you go in and you make press releases and that sort of thing, time and time again, you sometimes can get a momentum that goes, and you have to bring a charge against somebody, or you have to inconvenience them, or you have to bring them up. Well, if that is the case, then if we can't prove the case, we ought to have attorneys' fees. That will go on the appropriation process and will be a deterrent later on, and say, ''Well, you are spending too much money. You are doing too much.''
This is not money that we have that we identify as witness fees or anything else. It is not saying, ''What are you spending it for?'' It is how much you are spending, and it would be on a monthly basis, so that that person would say, ''This is how much I am spending.'' Then, when the appropriation process kicks in, they say, ''This is what we want to do, and this is how we want to go forward.'' The Congress at that point will then decide whether or not there has been enough progress to go forward. We will have, as compared to now, the first restriction.
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We also will have the information process handled in a different way. We will do it just like it is done in the Justice Department, and we will not have threats of leaks, or supposed leaks, or anything else. And we won't be trying these things in the media.
I think this bill deserves your attention. By voice vote it came out of this subcommittee, I think, two Congresses ago, and we just couldn't meet the schedule at the tail end. But it was not discussed. We have had three or four previous independent counsels come testify in front of you all, and it is the sort of thing that we have pretty much fleshed out.
I just will say in closing, that I hope that you will consider the conflicting interest we have. One is, the desire of people to have an independent investigation, an independent prosecutor, because we will have problems in the future, and perceive problems in the past, that we need to take care of that problem. The other problem is that once appointed, we need to have some constraints so that our Nation isn't devastated and isn't just torn apart, as a tornado would do and has done in our own home State of Arkansas.
Thank you for your time.
[The prepared statement of Mr. Dickey follows:]
PREPARED STATEMENT OF HON. JAY DICKEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS
Mr. Chairman and Members of the Subcommittee:
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Thank you for the opportunity to be here today to testify before your committee on my bill, H.R. 117, The Independent Counsel Reform and Accountability Act of 1999.
Much attention has been given to the subject of independent counsels in our country. When 105 of us in the House of Representatives voted against the reauthorization of this statute in 1994, we didn't realize that matters would get worse. However, after President Clinton signed into law the reauthorization of the Independent Counsel Statute, I began plans to draft into legislation and introduce a bill that brought more accountability to the independent counsels.
With the end of the Impeachment Trial of President Clinton, the debate has once again returned to whether or not the independent counsel statute should be re-authorized. The Senate Governmental Affairs Committee has opened hearings to debate this issue as well. While I am firmly against the current independent counsel statute, I believe that Congress should have the opportunity to at least vote on a reformed statute that brings some accountability to the current statute.
I have introduced my bill in the 104th, 105th and now the 106th Congress with no success in bringing this bill to the House floor for a vote. Hopefully, this bill and these hearings will help lead the discussion on how we can reign in the power, authority and spending of the independent counsels without losing the basic concept of the independent counsel.
It is my belief that the general concept of the independent counsel is necessary. The independent counsel statute was enacted in the wake of the Watergate scandal. Before this, the Department of Justice was responsible for investigating allegations against high ranking officials and their associates. The concept of the independent counsel statute was to ensure impartial prosecutorial decision-making in such cases and to eliminate any perceived conflict of interest arising when the Department of Justice investigates those figures in its own presidential administration.
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But look what is happening. We have unleashed into our country roving, search and destroy investigators, not to prosecute crime as much as to target an individual or company and set out to find fault, whether within the scope of the appointment or not.
How is this different than our existing prosecutorial infrastructure that is already in place? The answer is that our U.S. District Attorneys and the prosecuting attorneys of America: (a) don't have the time or capability to go exploring; (b) the court dockets couldn't stand for such even if actively done and (c) the elective system is a ''check'' for each of them in some form. Not so with independent counsels. Not one of these restraints is in place for them—because of the nature of the current independent counsel statute.
The Independent Counsel Reform and Accountability Act of 1999 attempts to correct the problem with the following provisions: (1) the Attorney General is given subpoena power to better investigate potential independent counsel fact situations; (2) the scope of the appointment is more narrowly set out and must be adhered to; (3) after two years each independent counsel must then submit to the appropriations process (have budget approval); (4) the independent counsel cannot privately practice law while serving; (5) information obtained in the process must be handled in the same way as prosecutors have been treating such for years; and (6) a fairer means of awarding attorneys fees to innocent persons is established.
If we continue the way we are going with independent counsels, we risk losing the support of America and its earnest people in the fight against crime. We could end up with a cynical citizenry that concludes that crime prosecution is more about television lights, feeding our nation's appetite for scandal and gossip, destroying reputations, seeking political results and discouraging people, especially our young people, from participating in the political process, than it is in protecting our society and its everyday folks against crime.
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If the necessary reforms aren't applied to the independent counsel statute, I will conclude just as I did in 1994 that this statute should not be re-authorized. However, I hope that reforms are made and Congress is given the option of voting for a statute that provides more accountability without doing away with the basic concept of the independent counsel.
Mr. Chairman, thank you again for the opportunity to testify today. I would also like to submit a copy of H.R. 117 for the record. Thank you and good luck with your task of evaluating the different options regarding the future of the independent counsel. I will be happy to assist you in any manner that you feel is appropriate.
106TH CONGRESS
1ST SESSION
H. R. 117
To reform the independent counsel statute, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 6, 1999
Mr. DICKEY (for himself, Mr. TAYLOR of North Carolina, Mr. DUNCAN, Ms. MCKINNEY, Mr. STUMP, Mr. NORWOOD, and Mr. HEFLEY) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To reform the independent counsel statute, and for other purposes.
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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Independent Counsel Accountability and Reform Act of 1999''.
SEC. 2. BASIS FOR INVESTIGATION.
(a) PRELIMINARY INVESTIGATION.—Section 591 of title 28, United States Code, is amended—
(1) in subsection (a)—
(A) by striking ''information'' and inserting ''specific information from a credible source that is''; and
(B) by striking ''may have'' and inserting ''has''; and
(2) in subsection (c)(1)—
(A) by striking ''information'' and inserting ''specific information from a credible source that is''; and
(B) by striking ''may have'' and inserting ''has''.
(b) FURTHER INVESTIGATION.—Section 592(c)(2) of title 28, United States Code, is amended by striking ''information'' and inserting ''specific information from a credible source that is''.
SEC. 3. SUBPOENA POWER.
Section 592(a)(2) of title 28, United States Code, is amended by striking ''grant immunity, or issue subpoenas'' and inserting ''or grant immunity, but may issue subpoenas duces tecum''.
SEC. 4. AUTHORITY OF ATTORNEY GENERAL.
Section 592(a)(2) of title 28, United States Code, is amended by striking subparagraph (B), by striking ''(A)'', and by running the text of subparagraph (A) into the paragraph heading.
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SEC. 5. PROSECUTORIAL JURISDICTION OF INDEPENDENT COUNSEL.
(a) PROSECUTORIAL JURISDICTION.—Section 593(b) of title 28, United States Code, is amended—
(1) in paragraph (1)—
(A) by striking ''define'' and inserting '', with specificity, define''; and
(B) by adding at the end the following: ''Such jurisdiction shall be limited to the alleged violations of criminal law with respect to which the Attorney General has requested the appointment of the independent counsel and matters directly related to such criminal violations.''; and
(2) by amending paragraph (3) to read as follows:
''(3) SCOPE OF PROSECUTORIAL JURISDICTION.—In defining the independent counsel's prosecutorial jurisdiction, the division of the court shall assure that the independent counsel has adequate authority to fully investigate and prosecute the alleged violations of criminal law with respect to which the Attorney General has requested the appointment of the independent counsel and matters directly related to such criminal violations, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.''.
(b) CONFORMING AMENDMENT.—Section 592(d) of title 28, United States Code, is amended by striking ''subject matter and all matters related to that subject matter'' and inserting ''the alleged violations of criminal law with respect to which the application is made and matters directly related to such criminal violations''.
SEC. 6. ATTORNEYS' FEES.
Section 593(f) of title 28, United States Code, is amended—
(1) in the first sentence of paragraph (1)—
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(A) by striking ''the court may'' and inserting ''the court shall'';
(B) by inserting after ''pursuant to that investigation,'' the following: ''if such individual is acquitted of all charges, or no conviction is obtained against such individual, at a trial brought pursuant to that investigation, or if the conviction of such individual at such a trial is overturned on appeal,''; and
(C) by inserting '', trial, and appeal (if any)'' after ''during that investigation''; and
(2) by striking paragraph (2) and striking ''(1) AWARD OF FEES.—'' and running the matter in paragraph (1) into the subsection heading.
SEC. 7. ADMINISTRATIVE SUPPORT.
(a) ADMINISTRATOR OF GENERAL SERVICES.—Section 594(l)(2) of title 28, United States Code, is amended—
(1) by striking ''Director of the Administrative Office of the United States Courts'' and inserting ''Administrator of General Services''; and
(2) by striking ''Administrative Office of the United States Courts'' and inserting ''General Services Administration''.
(b) OFFICE SPACE.—Section 594(l)(3) of title 28, United States Code, is amended to read as follows:
''(3) OFFICE SPACE.—The Administrator of General Services shall promptly provide appropriate office space for each independent counsel. Such office space shall be within a Federal building unless the Administrator of General Services determines that other arrangements would cost less.''.
SEC. 8. AUTHORITIES AND DUTIES OF INDEPENDENT COUNSEL.
(a) COMPLIANCE WITH POLICIES OF THE DEPARTMENT OF JUSTICE.—Section 594(f) of title 28, United States Code, is amended by striking ''enforcement of the criminal laws'' and inserting ''the enforcement of criminal laws and the release of information relating to criminal proceedings''.
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(b) LIMITATION ON EXPENDITURES.—Section 594 of title 28, United States Code is amended by adding at the end the following:
''(m) LIMITATION ON EXPENDITURES.—No funds may be expended for the operation of any office of independent counsel after the end of the 2-year period after its establishment, except to the extent that an appropriations Act enacted after such establishment specifically makes available funds for such office for use after the end of that 2-year period.''.
SEC. 9. TREATMENT OF CLASSIFIED INFORMATION.
Section 594(a) of title 28, United States Code, is amended by adding at the end the following: ''An independent counsel appointed under this chapter who gains access to classified information shall follow all procedures established by the United States Government regarding the maintenance, use, and disclosure of such information. The failure to follow such procedures shall be grounds for removal for good cause under section 596(a)(1), in addition to any penalty provided in section 798 of title 18 or any other law that may apply.''.
SEC. 10. OUTSIDE LEGAL WORK.
Section 594(j)(1) of title 28, United States Code, is amended by inserting before the period the following: ''and any such independent counsel may not during such period engage in any legal work which is additional to the legal work the counsel is engaged in as such a counsel''.
SEC. 11. ELIMINATION OF REPORTS.
(a) SECTION 594.—Section 594(h) of title 28, United States Code, is amended—
(1) by striking subparagraph (B) of paragraph (1), by striking the dash, and by striking ''(A)'' and running the text of subparagraph (A) after ''shall'';
(2) by striking everything after the first sentence in paragraph (2); and
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(3) by striking paragraph (3).
(b) SECTION 595.—Section 595(a) of title 28, United States Code, is amended—
(1) by striking paragraph (2); and
(2) by striking the heading for paragraph (1) and running the text of such paragraph into the heading for subsection (a).
(c) SECTION 596.—Section 596(b) of title 28, United States Code, is amended—
(1) in paragraph (1), by striking subparagraph (B) of paragraph (1), by striking the dash, and by striking ''(A)'' and running the text of subparagraph (A) after ''when''; and
(2) in paragraph (2), by striking the second sentence.
SEC. 12. REMOVAL, TERMINATION, AND PERIODIC REAPPOINTMENT OF INDEPENDENT COUNSEL.
(a) GROUNDS FOR REMOVAL.—Section 596(a)(1) of title 28, United States Code, is amended by adding at the end the following: ''Failure of the independent counsel to comply with—
''(A) the established policies of the Department of Justice as required by section 594(f), and
''(B) section 594(j),
may be grounds for removing that independent counsel from office for good cause under this subsection.''.
(b) TERMINATION.—Section 596(b)(2) of title 28, United States Code, is amended to read as follows:
''(2) TERMINATION BY DIVISION OF THE COURT.—The division of the court may terminate an office of independent counsel at any time—
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''(A) on its own motion, or
''(B) upon the request of the Attorney General,
on the ground that the investigation conducted by the independent counsel has been completed or substantially completed and that it would be appropriate for the Department of Justice to complete such investigation or to conduct any prosecution brought pursuant to such investigation, or on the ground that continuation of the investigation or prosecution conducted by the independent counsel is not in the public interest.''.
(c) QUARTERLY EXPENDITURES.—
(1) AMENDMENT.—Section 596(c) of title 28, United States Code, is amended by adding at the end the following:
''(3) On or before the end of March 31, June 30, September 30, and December 31 of each year, an independent counsel shall report to the committees listed in paragraph (2)(B) the aggregate amount expended in the previous quarter. The requirement to report such amount shall not be construed to require a disclosure of the investigation for which such amount was expended.''.
(2) EFFECTIVE DATE.—The amendment made by paragraph (1), shall take effect at the end of the 1st quarter beginning after the date of the enactment of this Act.
(d) PERIODIC REAPPOINTMENT.—Section 596 of title 28, United States Code, is amended by adding at the end the following:
''(d) PERIODIC REAPPOINTMENT OF INDEPENDENT COUNSEL.—If an office of independent counsel has not terminated before—
''(1) the date that is 2 years after the original appointment to that office, or
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''(2) the end of each succeeding 2-year period,
such counsel shall apply to the division of the court for reappointment. The court shall first determine whether the office of that independent counsel should be terminated under subsection (b)(2). If the court determines that such office will not be terminated under such subsection, the court shall reappoint the applicant if the court determines that such applicant remains the appropriate person to carry out the duties of the office. If not, the court shall appoint some other person whom it considers qualified under the standards set forth in section 593 of this title. If the court has not taken the actions required by this subsection within 90 days after the end of the applicable 2-year period, then that office of independent counsel shall terminate at the end of that 90-day period.''.
SEC. 13. EFFECTIVE DATE.
The amendments made by this Act shall not apply with respect to any investigation which is pending, before an independent counsel appointed under chapter 40 of title 28, United States Code, on the date of enactment of this Act.
Mr. GEKAS. We thank the gentleman, and we assure him that the bill that he has introduced will receive full consideration from this subcommittee and the full Judiciary Committee.
Before we turn to the next witness, I want to have the record indicate that in attendance for this hearing are the gentleman from Michigan, the ranking member of the full Judiciary Committee, Mr. Conyers; the gentleman from Massachusetts, Mr. Delahunt; the gentleman from New York, Mr. Weiner; the gentleman from North Carolina, Mr. Watt; and the gentleman from New York, Mr. Nadler; the gentleman from Arkansas, Mr. Hutchinson; and the gentleman from South Carolina, Mr. Graham; and the shadow of Mr. Chabot, the gentleman from Ohio, that was in and out here for a few moments; and the gentlelady from Wisconsin, Ms. Baldwin.
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Having set the record straight now, we will turn and—the gentlelady from Texas is not a member of the subcommittee, but she is auditing this hearing and will be granted a seat somewhere along the line.
With that, we will proceed with the recognition of the gentleman from Florida, our colleague, Representative Alcee Hastings.
STATEMENT OF HON. ALCEE L. HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. HASTINGS. Mr. Chairman, I thank you, and I thank the members of this committee for giving me an opportunity to appear before you and to support a measure that I offered, actually prepared, some time before the impeachment proceedings of President Clinton, but chose, as did the Chair, to not go forward in that matter in light of the fact that the reauthorization of the Independent Counsel Act would take place at some point during the course of this year.
Mr. Chairman, I appear today to ask of this committee to consider repealing the Independent Counsel Act within 60 days.
A colleague of ours that brings with her a great deal of wisdom and a lot of humor from time to time, when she was in the Florida legislature and she wanted a measure to conclude, and I am referring to Carrie Meek—she would say, ''We need to kill this sucker, Black Flag dead.'' I feel very strongly that in light of recent events surrounding the impeachment proceedings of President Clinton, it has become increasingly apparent that the Independent Counsel Act cannot be executed in the same spirit as it was formed. Rather than becoming a function of objectivity and fairness, it has descended into a tool of partisanship, and I cast no aspersions on either side of the aisle, by partisanship, I mean both sides of the aisle. In addition, personal interests, and, in the final analysis, unchecked authority.
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One of the things that I would ask you, as members that had the closeup experience during the course of this most recent impeachment of dealing with the Independent Counsel Statute, is how did you feel, as members, with reference to the constitutional mandate that you were given, as the sole tryers of impeachment, to have, for lack of a better expression, your authority, the authority that was inhered to you in the Constitution, aborted?
Some of us know that one of the reasons these outside measures, including in the Judiciary, 28 USC 372 and the Independent Counsel Statute came into existence, is because Congress seemed, because it is messy, time-consuming, politically risky business, to decide to pass on the responsibilities of this body to something outside. Thus the independent counsel law was supposed to be some kind of good Government reform that would instill confidence and fairness in the process of investigation of high Government officials. It seemed, however, in the more recent events, that that did not come to pass.
The inherent flaw as I perceive it, of the independent counsel, is that it narrows the focus of investigation to an isolated and specific outcome, while exponentially expanding the means to arrive at this conclusion. In effect, the special prosecutor becomes accountable to no one, while the task itself, encourages extremism. Ordinary prosecutors, and many of you have been prosecutors, largely have a broad range of goals and targets of investigations, and realize that there are degrees of criminality and consequently, punishment. In contrast, any special prosecutor is assigned to independently investigate a single person, and in some instances, a single event. If an independent counsel were to conclude that no crime was committed, it is logical that he or she would appear to have wasted not only their time but, more importantly, the taxpayers' hard-earned money.
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Mr. Chairman, this body investigated the Teapot Dome scandal under the aegis of the then-existing Justice Department. All the way up to, and including Watergate, we managed in this great Nation of ours, without an independent counsel.
I do agree with Mr. Dickey and I am certain my colleague Mr. Thompson, that at some point, dramatic emphasis needs to be made on what happens to the lives of individuals specifically dealing with attorneys' fees, if this kind of measure is to go forward. I feel that it has lost its perspective, and the resort to extremist methods of indicting the targets, no matter who it was, has come to the floor.
While there have been many abuses committed under this statute by counsel appointed by Democrats and counsel appointed by Republicans, extending all the way back to the Reagan Administration, independent counsel Kenneth Starr's investigation, with which this body is so familiar, provides us with the recent and clear example of the shortcomings of the act.
Primarily, with no affront meant to Judge Starr and the persons working with him who sometimes seemed to drop off the board, it became Starr's investigation, as if more than 100 lawyers of some renown and ability were not working with him. But primarily, their practices illustrate how an individual can usurp the powers assigned to each branch of Government when given unbridled authority. Within the Legislative Branch, just as an anecdotal reference, Mr. Starr submitted a report that made clear and decisive arguments to impeach the President, despite the fact that under the Independent Counsel Act, he was neither required nor authorized to analyze evidence. Moreover, he deliberately submitted the matter that we now know as the pornographic, one-sided report to Congress, and leaked its content and conclusion to the public in order to ensure that the House of Representatives did, in fact, vote to impeach the President.
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Now, let me make it clear. I have just said what Mr. Starr did. Those are allegations with reference to the leaking, but somehow or another, it got to the public. Clearly, he acted in a manner that undermined the authority of the Executive Branch and undermined the authority of the Judicial Branch and this body. That is what is particularly disturbing. I could go into details, but you all know them better than do I.
As a result of these transgressions, I introduce H.R. 794. This legislation repeals the Independent Counsel Statute within 60 days. It mandates the transfer of any ongoing investigations to the Attorney General, and orders the transfer of all records created or received by the independent counsel to the archivist of the United States.
While I realize, Mr. Chairman, that it may not be considered in the House of Representatives before the act expires on June 30, 1999, it is vital to bring to Congress' attention of both the kind of misconduct that has occurred under the aegis of the independent counsel, as well as the measures that I believe that we should take as a legislative body to prevent possibilities of any abuse by any independent counsel.
It is apparent that the Independent Counsel Act can no longer be effective and useful to our system of government. Indeed, it can and has threatened each branch of Government's ability to discharge its duties.
This law has not worked, Mr. Chairman. It is a cancer wreaking havoc within our democracy, and we must either pass the measure that I have offered and repeal this statute, or at the least, not reauthorize the law when it expires in June. Specifically, I would ask that matters pertaining to ongoing investigations, as I have brought them forward, be undertaken by this body.
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Thank you for your indulgence, Mr. Chairman, and members of this committee.
[The prepared statement of Mr. Hastings follows:]
PREPARED STATEMENT OF HON. ALCEE L. HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Thank you, Mr. Chairman. I appear today to urge you to support HR 794, legislation to repeal the Independent Counsel Act within 60 days.
In light of recent events surrounding the impeachment proceedings of President Clinton, it has become increasingly apparent that the Independent Counsel Act cannot be executed in the same spirit as it was formed; and rather than becoming a function of objectivity and fairness, it has descended into a tool of partisanship, personal interests and unchecked authority.
As you know, in 1978 Congress passed the Independent Counsel Act as ''good government reform'' that would instill confidence and fairness into the process of investigating high government officials. However, since its passage, this statute has largely become a political tool that has impeded good government practices at a significant price.
The inherent flaw of this provision is that it narrows the focus of the investigation to an isolated and specific outcome, while exponentially expanding the means to arrive at this conclusion. In effect, the special prosecutor becomes accountable to no one, while the task itself encourages extremism. Ordinary prosecutors largely have a broad range of goals and targets of investigations, and realize that there are degrees of criminality and consequently punishments. In contrast, a special prosecutor is assigned to independently investigate a single person, and in many instances a single event. If an independent counsel were to conclude that no crime was committed, he would appear to have wasted not only his own time, but more importantly the taxpayers' hard earned money. Therefore, special prosecutors often dramatically lose their perspective and resort to extremist methods of indicting their target.
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While there have been many such abuses committed under this statute, extending back to the Reagan administration, Special Prosector Kenneth Starr's investigation provides us with a recent and clear example of the Independent Counsel Act's shortcomings. Primarily, his practices as special prosecutor illustrate how an individual can usurp the powers assigned to each branch of government when given unbridled authority. Within the legislative branch, Mr. Starr submitted a report that made clear and decisive arguments to impeach the president, despite the fact that under the Independent Counsel Act, he was neither required nor authorized to analyze evidence. Moreover, he deliberately submitted a pornographic, one-sided report to Congress and leaked its content and conclusion to the public, in order to ensure that the House of Representatives did in fact vote to impeach the President.
Clearly, Mr. Starr acted to undermine the authority of the president and the Executive Branch by embarrassing and defaming him with unnecessarily salacious details of consensual sexual encounters. Yet, his investigation also undermined the authority and functions of our Judicial Branch. He approved and authorized the disclosure of grand jury materials, violating the Federal Rules of Criminal Procedure, and abused the powers of his office by intimidating and manipulating citizens who were called upon as witnesses before the grand jury. Finally, these abuses and transgressions came at a price of over $40 million to the U.S. government, without any evidence to merit or justify this expense.
As a result of Mr. Starr's transgressions, I have introduced HR 794. This legislation repeals the independent counsel statute within 60 days, mandates the transfer of any ongoing investigations to the Attorney General, and orders the transfer of all records created or received by the independent counsel to the Archivist of the United States. While I realize that it may not be considered in the House of Representatives before the act expires on June 30, 1999, it is vital to bring Congress' attention to both Mr. Starr's gross prosecutorial misconduct, as well as the measures that we must take as a legislative body to prevent future possibilities of abusing this position.
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It is apparent that the Independent Counsel Act can no longer be effective and useful to our system of government. Indeed, it can and has threatened each branch of government's ability to discharge its duties. This law has not worked. It is a cancer wreaking havoc with our democracy. We must either pass HR 794, and repeal this statute, or at the least, not reauthorize the law when it expires in June. Thank you Mr. Chairman.
Mr. GEKAS. We thank the gentleman.
Now we turn to our colleague from Mississippi, Representative Bennie Thompson.
STATEMENT OF HON. BENNIE G. THOMPSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSISSIPPI
Mr. THOMPSON. Thank you, Mr. Chairman. I appreciate the opportunity to share some of my views on the Independent Councel Statute with this subcommittee.
First of all, like my colleagues, I prefer that we not reauthorize the Independent Counsel Statute. However, if Congress does become determined to reauthorize it in some form, I have a simple suggestion for improvement.
Mike Espy, former secretary of Agriculture, became a target and was ultimately indicted by Mr. Smaltz's independent counsel investigation. What happened to him was a travesty. Mr. Espy spent over $1.5 million defending himself and was found innocent by a Federal jury, but now he is having to spend the best years of his life trying to pay back these expenses. If he had just been a target of the independent counsel, he could have gotten his fees reimbursed. However, since he was indicted, though later found innocent, he has to pay his own fees.
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As a result, a lot of us are having to spend a lot of our time at fish dinners, spaghetti dinners, and soup dinners, trying to help Mr. Espy pay his legal bills, when obviously, when you have some independent counsels who push the button a little too far, like giving staff members watches engraved in the name of the person you are investigating, it is clear that the counsel has too much authority to ruin the lives of his or her subjects.
So my suggestion, in addition to associating myself to the statements of the other people here, is to say the least we can do is to make these individuals who are found innocent whole again by paying their attorney fees. Otherwise, you have not convicted these innocent victims, but you have condemned them to a life of involuntary servitude trying to pay their lawyers. Clearly, we have to move beyond that.
I am introducing a bill today to correct this oversight, so that people like former Secretary Espy won't have to defer marriage and other important public and private matters to pay their lawyers.
Again, if the opportunity presents itself, I plan to join my colleagues here and others to vote against the reauthorization of this act. However, if it must be reauthorized, I would like to join them and others in amending it to make it better.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Thompson follows:]
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PREPARED STATEMENT OF HON. BENNIE G. THOMPSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSISSIPPI
I would like to thank the Chairman and the Ranking Member for permitting me to testify here today.
I strongly feel the independent counsel statute should not be reauthorized. In recent years independent counsels have used their power to conduct investigations more indicative of inquisitions than the impartial investigations Congress expected to foster when it passed the statute after the Watergate Scandal. However, I am testifying today to discuss a specific oversight in the independent counsel statute which ruins the future of these investigation's innocent victims.
Under the existing provisions of the Ethics in Government Act governing independent counsels, the subject of an investigation may be awarded reimbursement for ''reasonable'' attorneys fees if he or she is not indicted. Officials from the Reagan, Bush, and Clinton administrations have all received reimbursement for their attorneys fees under this provision. Even former President George Bush was reimbursed for the attorneys fees he accrued during Independent Counsel Lawrence Walsh's investigation of the Iran Contra Affair.
Unfortunately, the subject of an independent counsel investigation who is indicted, but later acquitted of all charges, is not eligible for reimbursement of attorneys fees. Reimbursement for acquitted individuals was not placed in the original independent counsel statute because its drafters sought to follow the precedent of normal federal criminal law, which prevents reimbursement for acquitted individuals.
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As I am sure most of us here today would agree, in 1978 Congress did not realize the scope and cost of the independent counsel investigations which would later be conducted under the statute. The almost unlimited resources and authority of an independent counsel is unlike any possessed by other federal prosecutors. Therefore, the cost and damage done to the acquitted subject of an independent counsel investigation is considerably higher then what results from other federal investigations.
The toll is so heavy that acquitted subjects of independent counsel investigations have few chances to return to normal public or private lives. My own good friend Mike Espy, a former member of the House of Representatives from Mississippi and President Clinton's first Secretary of Agriculture, will likely spend numerous years trying to pay back the more than $1.5 million in attorneys fees he accumulated before being acquitted last December of all charges in an indictment brought by Independent Counsel Donald Smaltz. I can not express to you the outpouring of support and sympathy Mr. Espy has received in Mississippi over the last few months—even as he has had to put his plans for a new life on hold in order to attend $25 dollar a bowl soup rallies organized to help him raise legal defense funds.
Democrat or Republican, the events of recent years should leave us all wishing we had paid more attention to the haunting words spoken 11 years ago by Raymond Donovan, the Labor Secretary during the Reagan Administration, who asked ''Where do I go to get back my reputation?'' after being acquitted of all charges brought by an independent counsel. If Congress chooses to reauthorize the independent counsel statute in any form, there will be many future acquitted subjects of independent counsel investigations who ask the same questions as Secretary Donovan. Congress may not be capable of restoring the public's view of these innocent victims' reputations. However, we can at least ensure they can begin planning their new future without facing the shadow of the considerable attorneys fees they accrued while defending themselves from the seemingly endless power of the independent counsel.
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Today I will introduce legislation supported by a bipartisan group of 21 original co-cosponsors that will amend the independent counsel statute in order to reimburse reasonable attorneys fees amassed by the subjects of independent counsel investigations who are indicted but later acquitted of all charges. As under current law for subjects of independent counsel investigations who are not indicted, the amount of the reimbursement shall be determined by the courts overseeing the independent counsel.
I understand that my bill is unlikely to be passed before the independent counsel statute expires in June of this year. If Congress chooses to reauthorize a modified version of the independent counsel statute a that time, however, it is my hope the substance of my legislation will be included in any bill passed by Congress.
I would be pleased to answer any questions you might have.
Mr. GEKAS. We thank the gentleman.
Our colleagues are excused now from any further travail before this committee. We want to reassure you that your views, not only as a part of the record, but because of your personal testimony, will be taken into the fullest consideration. No doubt we will be consulting with you on a one-to-one basis prior to the final act of this drama.
We thank the gentlemen for appearing today.
The Chair is willing to recognize any member who wishes to make an opening statement prior to the testimony of our distinguished guest from the Justice Department.
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The gentleman from Michigan, Mr. Conyers, is recognized.
Mr. CONYERS. Thank you, Mr. Chairman.
I wanted to commend the three members who have testified, Mr. Hastings, Mr. Bennie Thompson, and Mr. Dickey. I think they have done an excellent job.
The Office of Independent Counsel Act is a poster child of the Watergate era of reform. It was designed as a check against an unaccountable chief executive, but what it appears to have created is an unaccountable independent counsel. Some would consider it ironic justice that Kenneth W. Starr may have been the person who singlehandedly killed a law that authorized his 5-year pursuit of a sitting President of the United States.
We have no record of any investigation using this amount of money, with this widespread authority, covering as many subjects in the history of the Department of Justice. One of the unfortunate legacies of the Starr investigation, which acted on a $40 million plus, federally-paid, sex-policeman role, is that we can no longer trust the independent prosecutor.
The American Bar Association has said his investigation proved to be a veritable textbook on prosecutorial misconduct and excess. His conflicts of interest. His incredible leaks. His alleged failure to disclose what could have been disqualifying contacts with the Paula Jones attorneys. Incidentally, all of these matters are still unresolved. His improper threats to prosecute witnesses like Susan McDougal, who refused to tailor her testimony to hurt the President in the way that Mr. Starr wanted. His attacks on the attorney-client privileged. His attacks on the rights to attorneys of targets of the investigations. His numerous ethical lapses that caused his own ethics advisor to resign.
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Ask Ms. Julie Hiatt Steele whether it was fair for Mr. Starr to target her adoption of a child in an attempt to intimidate her. Ask Ms. Marcia Lewis whether it was fair that Mr. Starr's prosecutors brought her to tears in a grand jury room. Ask Mr. Rob Hill whether it was fair for Mr. Starr's agents to try and subpoena his son at school.
But these criticisms are not just with Mr. Starr. It includes the problems within the Department of Justice that were, in some ways, prevented from preventing Mr. Starr's flights of misconduct.
I have exacted an agreement from the Deputy Attorney General to meet regarding, I lost count, about a dozen letters that were timely sent about matters involving the office of independent counsel, and we have agreed to do so. We have known, and the Department has known, about these alleged abuses of Mr. Starr for a considerable period of time. The ABA rebuked him. Republican Members of Congress said allegations against him warrant an investigation.
But by waiting until the very end of the process, the Department of Justice did not help, and now amazingly has entered into negotiations with Mr. Starr and other judges about how its investigation should be conducted. Well, the only reason that the act is constitutional is because the Attorney General has the removal and investigatory power over an independent counsel's misdeeds. In this case, justice delayed was justice denied.
So I think that there are plenty of reasons for us to review this matter. It is my intention to call for a special day for the minority to have hearings with their witnesses, Mr. Chairman, on this very important subject.
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I definitely do not want to leave out the Office of Independent Counsel, Donald Smaltz, who was the prosecutor in the Secretary Espy case. His matter deserves our great scrutiny.
I thank you very much.
Mr. GEKAS. Would that include consideration of Lawrence Walsh's incumbency as well?
Mr. CONYERS. Well, if you want to add him, I am——
Mr. GEKAS. Oh, I see.
Mr. CONYERS [continuing]. Willing to do it.
Mr. GEKAS. All right.
Mr. CONYERS. I did not name him.
Mr. GEKAS. I have the picture.
We have to recess now because of the votes pending on the floor, two of which have been already planned. So we will recess this hearing until 3:05 p.m.
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The committee stands in recess.
[Recess.]
Mr. GEKAS. The hour of 3:05 having arrived, the committee will come to order and promptly relapse into a recess until the gentleman from Massachusetts should appear, who has now ambled in. He is climbing the steps on the wrong side of the aisle, approaching the bench, nearing the Chair, and rapidly moving toward his assigned seat in the committee—[Laughter.]—and who will be entertained for any opening statement he wishes to render at this time.
We welcome Mr. Holder, and ask him to join us at the witness table so that he can hear, for the record, the opening statements of the members.
Mr. Delahunt is recognized for 5 minutes.
Mr. DELAHUNT. Welcome, Mr. Holder.
Mr. Chairman, as we begin this process, I want to echo the sentiments of former Senator Howard Baker, who suggested at last week's Senate hearing that the Nation would benefit from a cooling-off period with respect to the Independent Counsel Act. To quote from his testimony, ''The better part of legislative discretion would be to let this act expire, to let the tempers cool, and to address the issue of Federal prosecution in a broader, more detached, and objective way.''
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I strongly agree. It may be that given sufficient time, wisdom, and goodwill, we would be able to devise a better statute than the present one.
Well, whether or not this is the case, I see no chance whatsoever that we will be able to design a suitable replacement before the act expires, nor should we attempt to do so. The statute has lapsed before and the Republic has survived, and I dare say, it will do so again.
But before we can even embark on such an undertaking, we must understand what is wrong with the structure of the act as it currently exists. There are some who believe that the structure is essentially sound and its various deficiencies can be remedied through fine-tuning. In my view, the problems are far more fundamental than that.
The Independent Counsel Act is a legal and constitutional anomaly. It was enacted with a laudable purpose of insulating investigations of executive branch officials from political interference. But in doing so, it created an office whose most singular characteristic is that it is unrestrained by the checks and balances that operate within our constitutional system to curb abuses of authority. In fact, many believe that it has become a political weapon to secure partisan advantage. As one looks back, as one examines the history of its use, it is fair to say that it has been used in a bipartisan fashion as a political weapon. This is especially dangerous because of the enormous power that our legal system concentrates in the hands of all unelected prosecutors.
As Justice Scalia explained in his now famous dissent in Morrison v. Olson, the tendency toward prosecutorial abuse is held in check through the mechanism of political accountability. When Federal prosecutors overreach, ultimate responsibility rests with the President who appointed them. But the independent counsel is subject to no such restraints. He is appointed not by the President or any other elected official, but by a panel of judges with life tenure.
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In Scalia's view, if the judges select a prosecutor who is antagonistic to the administration, and now I am quoting, ''there is no remedy for that, not even a political one.'' The Supreme Court majority brushed aside those concerns, upholding the statute on the theory that there is a political remedy. The independent counsel is an inferior officer whom the Attorney General has the power to remove for good cause. Yet one has only to follow the events of the past few weeks to recognize how insubstantial that power really is.
The Attorney General initiated an internal ethics inquiry into whether Independent Counsel Starr abused his authority. First, according to newspaper reports, Mr. Starr challenged her inquiry and sought to negotiate the terms under which it would go forward. Then, the Special Division, responding to a request by a conservative legal foundation, intervened in the dispute, directing the Attorney General and Mr. Starr to file briefs on the question of whether the Justice Department has jurisdiction to investigate the conduct of the independent counsel.
It is difficult to conceive of a statute that would grant the Attorney General the authority to remove the independent counsel for cause without including the implied authority to determine whether cause exists. Moreover, if anyone lacks authority, it would seem to be the Special Division, which has no jurisdiction to discipline the independent counsel, particularly at the behest of a private organization which lacks standing to intercede in a Justice Department investigation.
This constitutional impasse is but the latest demonstration of the way in which the Independent Counsel Act has fulfilled Justice Scalia's prediction, encroaching upon the presidency and destabilizing the separation of powers among the three coordinate branches of Government.
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This experience found its ultimate expression in the recent impeachment exercise. For the first time and perhaps—and hopefully the last—an independent counsel invoked section 595(c) of the act which links his investigative function with the impeachment process in the House of Representatives.
I ask unanimous consent for an additional minute, Mr. Chairman.
Mr. GEKAS. Without objection.
Mr. DELAHUNT. This provision requires the independent counsel to advise the House, and again, I am quoting from the statute, ''of any substantial and credible information that may constitute grounds for an impeachment.'' The statute is silent as to what the House is to do once it receives this information.
But by approving an impeachment inquiry based solely on the independent counsel's allegations, we effectively transformed the referral provision into a warrant for impeachment. In so doing, it is my opinion that we delegated to the independent counsel a determination which article 2 of the Constitution reserves to the House of Representatives.
Whatever the authors of the statute may have intended, I do believe this was an unconstitutional delegation and an abdication of our responsibility.
As another noted conservative, Justice Bork, has written recently, and again I quote, ''it is time we abandon the myth of the need for an independent counsel and face the reality of what that institution has too often become. We must face another reality. A culture of irresponsibility has grown up around the independent counsel law. Congress, the press, and regular prosecutors have found it too easy to wait for the appointment of an independent counsel and then to rely upon him rather than pursue their own constitutional and ethical obligations.'' End of quote from Justice Bork.
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It is time for a change of that culture, Mr. Chairman. It is time for us to take responsibility, and I am sure we will do so. Thank you.
Mr. GEKAS. The Chair thanks the gentleman.
We turn to the gentleman from Ohio, Mr. Chabot, for an opening statement, not to exceed 5 minutes.
Mr. CHABOT. Thank you, Mr. Chairman.
In the interest of time, I will keep my opening statement brief. Also, I would like to get on to hear what Mr. Holder has to say about this. So, I will be brief.
I would like thank, first of all, Chairman Gekas, for holding this hearing today. I am looking forward to working with my colleagues on both sides of aisle on this very important issue.
One thing that I expect we will all agree on up front is the need for public confidence in our government. We need a process that ensures fair, impartial, and thorough investigations of criminal allegations against senior government officials, a process that should be free from political pressures. Some believe that the Independent Counsel Statute is well suited for this role. But I must admit that I have my doubts.
There are serious questions about an independent counsel's accountability, as well as the cost of these investigations to the taxpayers. I am concerned with any law that authorizes an open-ended appropriation as this one does.
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In 1988, Justice Scalia warned that the benefits of the independent counsel law are, and I quote, ''far outweighed by its harmful effects upon our system of justice.'' We know that the Reagan and Bush Administrations had serious concerns about the reauthorization of the independent counsel law as well.
The Clinton Justice Department, however, had taken a more favorable view of this law. In 1993, Janet Reno testified that, and I quote, ''The Department and the administration fully support reenactment of the act.'' She went on to testify that the administration supported an independent counsel with statutory independence because, quote, ''There is an inherent conflict whenever senior Executive Branch officials are to be investigated by the Department and its appointed head, the Attorney General. The Attorney General serves at the pleasure of the President.''
I understand that neither the Attorney General nor the administration still hold that view. Based on Ms. Reno's previous statements, I am particularly interested in learning how the Justice Department believes this inherent conflict can be addressed.
I look forward to working with my colleagues to craft a bipartisan solution that will ensure public confidence in our elected officials.
I yield back the balance of my time.
Mr. GEKAS. We thank the gentleman.
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We now turn to the gentleman from New York, who had appeared before this particular part of the session, and we recognize him for 5 minutes.
Mr. WEINER. Thank you, Mr. Chairman.
Mr. Chairman, there is substantial and credible evidence that the Independent Counsel Statute is beyond repair. After 20 independent counsels, three comprehensive revisions of the statute, and over $150 million of expended taxpayer funds, it is overwhelmingly clear that the statute's sound goal, enhancement of confidence in the rule of law by the American people, has not been achieved. Experience has taught us that these independent counsels are unaccountable, uncontrollable, and unavoidably expensive.
Current law allows the Attorney General to dismiss an independent counsel for good cause, but we are in the midst of seeing how difficult that is in practice. Indeed, Ken Starr is in the process of litigating whether the Justice Department can even investigate if there are grounds to think such good cause exists. No independent counsel has ever been removed. History and politics teach us that this is unlikely to change.
Twenty independent counsels have been appointed over the last twenty years, and recent experience tells us that Attorneys General are unlikely to restrict the jurisdiction of independent counsels, fearing the political consequences that would result if they are viewed as stifling investigations. That is something, as Mr. Delahunt pointed out, that the Supreme Court failed to understand when they ruled on the constitutionality of this statute.
There is no reason an outside investigator is needed to prove allegations that occurred before a subject held public office, nor is there good reason to apply the statute to more than the President, Vice President, and the Cabinet. Today's statute applies to dozens of people and can sweep in many more jurisdictions if it is expanded.
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All told, independent counsels have cost the taxpayers approximately $150 million. Prosecutors who target people and not crimes become immune to the fiscal and other limited resource pressures that every law enforcement officer is forced to consider. The Department of Justice must operate within a fixed budget and must prioritize how to use its limited prosecutorial resources. There is no reason special prosecutors should not have to function within such limits as well.
The changes Congress enacted in 1982, 1987, and 1993 were supposed to address these very same concerns, but clearly, those revisions have failed. It is time to agree that the Independent Counsel Act is fundamentally flawed, and no amount of tinkering will fix it. Let it die this June, and let's together explore measures so that the Justice Department has the tools it needs and the structure that is required to ensure a political investigation at every level of the Government.
With my remaining time, I would like to yield to Ms. Jackson Lee.
Ms. JACKSON LEE. I thank Mr. Weiner very much for his kindness.
Let me quickly say, and I thank the chairman for his indulgence——
Mr. GEKAS. May I ask what is happening here? The time of the gentleman has expired.
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Ms. JACKSON LEE. We were going by the light going out. He yielded to me, Mr. Chairman.
Mr. GEKAS. The time of the gentleman has expired. I have to prefer the members of the committee.
Ms. JACKSON LEE. Thank you, Mr. Chairman. I will wait on some other opportunity.
Mr. GEKAS. Yes.
Ms. JACKSON LEE. Thank you.
Mr. GEKAS. Thank you.
Does the gentleman from South Carolina wish to be heard for an opening statement?
Mr. GRAHAM. Thank you, Mr. Chairman, very briefly.
Mr. GEKAS. For 5 minutes.
Mr. GRAHAM. Thank you very much.
The dilemma that faces all of us here is unique but is fairly simple for me. We can use this hearing process to bemoan the problems that we have had with Mr. Starr. I would suggest that the success rate of the Independent Counsel Mr. Starr has been fairly astonishing in terms of successful prosecutions before lay juries that has been very divisive. It has been a lot of good, and it has been a lot of bad.
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This is the chance for the country to come together, Mr. Chairman, to find a way to put some boundaries around any future Independent Counsel Statute or any future initiative that will have some monetary oversight, that will give the people investigated more opportunity to have input. It will, I think, be an opportunity to be creative.
It is amazing that as we have tort reform initiatives called ''loser pays,'' that seems to divide the Congress. But one thing that Congress seems to agree upon is if you are the subject of an investigation and you are vindicated or nothing comes of it in terms of your conviction, then you ought to have your lawyer fees paid. I know a lot of people in the business community would agree with that concept. If you are sued and your business goes through the expense of a law suit, the person bringing the charges against you should have some financial incentive to think before they jump.
I associate myself with that concept across the board, and I would expect, Mr. Chairman, that when it is all said and done, that there will be a statute of some sort that will allow high public officials who wield a lot of power in a democracy to be accountable to elected officials that oversee them, and to the public in general.
Whatever problems we have had with Mr. Starr, we have found much that needed to be known about high public officials. One governor of Arkansas is no longer the governor because he chose to do some things in a land deal that would get the average person in trouble. It has been tough. The impeachment process has been tough for the Nation, but I would suggest that the next person that occupies the White House is going to look back on this process, and if they ever get sued, they are going to play differently.
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The amount of money that has been spent is large, but with a $1.7 trillion budget, I hope we will take the same attitude about the other aspects of the government as we had about the $50 million here. There has been some return for the rule of law. It needs to be reformed.
But, Mr. Chairman, the dilemma that we face is pretty simple for me, what will America have in place for the next century to regulate powerful people who need to have conduct scrutinized in a way that is credible, a way that is fair, cost-efficient, and the work product can be believed by the American people. That is my goal, and I imagine it is the goal of most people here. Let's work together instead of trying to beat each other up.
Thank you.
Mr. GEKAS. The gentleman yields back the balance of his time.
Now we recognize the gentleman from North Carolina, Mr. Watt, for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman.
I won't take 5 minutes. I really think that there are three questions that I am trying to get resolved. I suspect I have already answered two of them, so there may be only one question that I am trying to get resolved.
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The first question is, are there public policy or public confidence reasons for having an Independent Counsel Statute? I resolved that in 1994 by voting in favor of reauthorization of the Independent Counsel Statute. That obviously was before a lot of subsequent things took place. So I certainly want to revisit that and hear the arguments on both sides of that issue.
The second question is, could I vote for the current Independent Counsel Statute if I had to vote for it right now? I think the answer to that is no. So I have pretty much resolved that issue.
Then the third question is, can anybody draw an Independent Counsel Statute that serves the public policy, public confidence purposes, yet is not subject to the concerns that I have with the current Independent Counsel Statute? That is the one that my jury is still out on, and I think is the reason that we are beginning to have hearings on this issue.
So I look forward to the hearings and, hopefully, I will resolve that issue before we get to the end of the process.
I thank the chairman for having the hearing.
I understand Ms. Jackson Lee would like for me to yield the rest of my time to her. I was kind of hoping we would move on to Mr. Holder, but I am happy to yield to my colleague from Texas.
Ms. JACKSON LEE. Thank you very much, Mr. Watt. I hope to move on to Mr. Holder as well.
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But I do want to note, for the record, that as we discuss this matter, I hope that there is a sense that there is bipartisan concern about the Independent Counsel Statute.
I would hope, as well, that the expiration of this law, which I fully support, due and deliberate expiration on June 30, 1999, would not in any way suggest that Congress does not want to enhance the public trust of elected officials. But I do think it is important to note the abuses that seem to be non-remediable. Particularly I note Mike Espy spending $17 million in an Independent Counsel Statute for $33,000 in violations for an individual that was acquitted. Costs are without limits, length of time is without limits. Henry Cisneros, the independent counsel, David Barrick, was appointed May 24, 1995, and according to GAO reports, the cost of the investigation through March 31, 1998, has been $7.3 million, almost a $150 million spent.
So I would simply like to say we remain open, of course many of us remain open to your presentation, Mr. Holder. We may not remain open to the fact that it is good law, good news, for this statute to expire.
Might I say that we have remedies and options. The Public Integrity Section of the Department of Justice could be enhanced. I worked for Leon Jaworski, who was the special prosecutor for the Watergate. We have not heard one iota of criticism of his handling of the Watergate proceedings which drew partisan national support of the American people in the way it was handled.
I believe, in contrast, is Ken Starr, who for many of us did the ultimate in handling Ms. Lewinsky for more than 12 or so hours without lawyer or mother. So I think there is much room for improvement. That improvement can come with the expiration of the Independent Counsel Statute.
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I thank the gentleman from North Carolina, and I yield back to him.
Mr. WATT. I yield back, Mr. Chairman.
Mr. GEKAS. The time of the gentleman has expired.
We turn to the gentleman from Arkansas, Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
Mr. GEKAS. Five minutes.
Mr. HUTCHINSON. I want to first express my appreciation to Congressman Jay Dickey, who testified earlier in this hearing, outlining some of the impact of investigations on the State of Arkansas, for his leadership in past Congresses in addressing the issue of the independent counsel.
I think it is important, as we go through this process, that our consideration of the independent counsel law should be based upon the entire history of that law, and not based upon personalities, whether I have difficulty with Mr. Walsh and his handling of the independent counsel activities or whether my colleagues have difficulty with the way Mr. Starr has conducted his investigation. I think we have to set that aside. I think we have to look over the long history of this and make a determination as what is the right policy, a policy that is not based upon emotions, but based upon true reflection of what has happened.
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As I look at the need for investigations, there are three factors that I believe are important to consider. First of all, it is important that we have substantial independence of a prosecutor when a conflict arises. It is going to happen. There are going to be conflicts and whether a special prosecutor or an independent counsel is appointed, there needs to be that relative amount of independence to the extent that we can assure that.
Second, there has to be accountability. I think that is one of the difficulties of the independent counsel law, that whether you are speaking in terms of accountability on funding and how that is applied, or unending investigations with unlimited budgets there is a problem. But there should be accountability in which the special investigator or independent counsel has the ordinary pressures that apply to any prosecutor. As we know, every prosecutor is limited in terms of budget as to what they can do, and is limited in terms of public pressure on his time. I think those pressures should not be taken away from the independent counsel or a special prosecutor.
The third factor, I believe that is important to consider as we go through this, is that there should be an appropriate level of congressional consultation. Now, I don't think it should be to the extent that it is presently in the independent counsel law where there can be an intertwining almost of the responsibility of Congress and the responsibility of the independent counsel. I think that line, that demarkation, should be made very clear. But there should be a consultation requirement, where Congress, the Judiciary Committee, has a statutory responsibility and the authority to inquire with the Attorney General in the event we believe it is necessary for a special prosecutor to be appointed—very similar to the consultation role that is presently under the independent counsel law.
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So I think these three factors should be considered. Clearly I am hesitant to reauthorize the independent counsel law. I think as we go through this, we need to search for ways to strengthen the law. Authorizing a special counsel has worked well historically, although not perfectly. We should look at strengthening, perhaps, the special counsel law in line with those three objectives of independence, accountability, and congressional consultation.
So with that, I look forward to your testimony, Mr. Holder, and also the questioning time.
I yield back, Mr. Chairman.
Mr. GEKAS. The gentleman yields back the balance of his time.
We turn to the gentleman from New York, Mr. Nadler, for an opening statement, not to exceed 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman.
As I stated when the members of this subcommittee first gathered informally at the invitation of the chairman, I believe that perhaps for the first time since its enactment, Members of Congress have the opportunity to reconsider the Independent Counsel Act, free from the partisan strains that have often overshadowed our previous deliberations.
Forged in the fires of Watergate, with the fearsome memories of the ''Saturday Night massacre,'' used in ways our Republican colleagues found shocking and unreasonable during the Reagan and Bush years and consequently, not much liked by them since. I would point out that neither party has been totally consistent. Some of our Republican friends, while deriding the act, criticized the Attorney General, in effect, for not invoking what they regarded as the noxious law often enough, and used in ways that members of the Democratic side of the aisle have viewed with similar alarm in more recent years. This law has always ignited partisan emotions.
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Perhaps the only good news is that from these difficult experiences, a bipartisan consensus seems to be emerging about the law's defects. We might disagree over the merits of a particular case brought under the act or over the merits or demerits of a particular special prosecutor, but we seem to be moving toward similar overall conclusions. I view this as a positive development.
The question is no longer whether the statute should be reauthorized in its current form, but whether it ought to be reauthorized at all. If not, how we should go about dealing with the sort of concerns that gave rise to the Independent Counsel Act in the first place.
That last question which we may ultimately have to face is a difficult one. I am not sure that I, or perhaps any other Members of this House, knows the answer right now.
I would join some of my other colleagues in urging that we do not view June 30 as necessarily a deadline for action. No investigation will be halted by the sunset. That is an issue we would have to deal with separately.
Our experience also shows that the Attorney General has had the ability to appoint special counsels where she has deemed it necessary even in the absence of the statute.
I want to welcome our witnesses, and I look forward to hearing their analyses and any prescriptive advice they, or Mr. Holder, singular at this point, may have to offer.
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We are treading into difficult, but important grounds. As President Nixon's abuse of office demonstrated a quarter of a century ago, the problem we must consider is serious and far from hypothetical. As the abuses we all have witnessed by unaccountable independent counsels clearly demonstrate, the cure can sometimes be as dangerous, or even worse, than the disease.
One final observation, and I do not know whether our remaining witness today is prepared to address this today, but some of the abuses by independent counsels have been defended as being consistent with common prosecutorial practices. We have all heard Ken Starr say, ''That wasn't a terrible thing I did; that is common prosecutorial practices.'' I fear that, in at least some cases, these assertions are correct.
I believe that as we assess the Independent Counsel Statute, we ought to consider how widespread the practices that we find abhorrent really are, not just in offices of independent counsels, and whether judicial decisions and legislation emanating from this committee under both parties in previous Congresses may have made possible real threats to the civil liberties of all Americans that we may want to address, and that may have been brought to our attention by the actions of independent counsels being criticized for things that, in fact, other prosecutors subject to less publicity do on an all too-frequent basis.
So I hope we will look at these issues, and I hope that this hearing will inform our future actions in an intelligent way that can advance the public interest.
I thank you, Mr. Chairman.
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Mr. GEKAS. The gentleman yields back the balance of his time.
We now entertain the testimony of an individual who is well known to the members of this committee specifically, and to the Members of Congress generally, as an esteemed public servant who has served our society as a U.S. attorney, as a judge, and what I term in the best meaning of the phrase, a career Justice Department—I don't want to say ''employee,''—but employee is pretty good.
Mr. HOLDER. That is good.
Mr. GEKAS. In that fashion, this individual, our next witness, has the credentials for giving us an astute analysis of the current situation and the position of the administration on the independent counsel law.
I have to ask in advance, maybe you can gingerly walk though the fact that you and the Department of Justice have been on both sides of this issue, or on all sides of this issue, and maybe they can all converge into a new side of the issue?
We recognize Eric Holder.
STATEMENT OF HON. ERIC H. HOLDER, JR., DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. HOLDER. Thank you, Mr. Chairman.
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Mr. GEKAS. Ten minutes, more or less.
Mr. HOLDER. Thank you, Mr. Chairman.
If I get a little more, because some of my best stuff is toward the end.
Mr. GEKAS. All right. [Laughter.]
Mr. HOLDER. Mr. Chairman, Mr. Nadler, members of the subcommittee, I welcome this opportunity to discuss issues related to whether the Independent Counsel Act should be reauthorized. I request that my prepared statement be entered into the record, and I would like to just summarize my remarks for you.
At the outset, I want to state an important limitation regarding my testimony, a limitation that I know each of you understands. I am concerned that my comments not in any way interfere with ongoing investigations or litigation. Therefore, I will be unable to give specific examples or direct my remarks to a specific independent counsel or a specific investigation.
In the view of the Department of Justice, the Independent Counsel Act has failed to accomplish its primary goal: the enhancement of public confidence, and the fair and impartial administration of the criminal law.
Indeed, the Department has reluctantly concluded that decisions and actions under the act, both by independent counsels and by attorneys general, inevitably and unavoidably become such targets for attack, that public confidence in the administration of justice in these high-profile cases has been undermined rather than enhanced.
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I am not commenting on any particular inquiry or investigation, but rather on the fact that the types of decisions we are talking about here can be controversial and that a climate of controversy pervades the process, regardless of which way a specific decision comes out.
At the same time, the act has exacted a heavy price, both financially and by creating unintended consequences. You have seen much reported in the media and other hearings about the extraordinary expense of a number of independent counsel investigations. I believe that in part, such costs are inherent in a system that requires a prosecutor to set up an office from scratch, conduct an investigation in which it is expected that no stone will be left unturned, prepare a comprehensive final report, and then litigate the issue of attorneys' fees. This is a very expensive way to do business.
Moreover, in seeking to ensure independence, the statute removes many of the constraints that normally limit prosecutors, constraints that exist for good reason under our system of government. In so doing, the act's structure comes dangerously close to tipping the traditional balance of fairness in the conduct of criminal investigations and prosecutions.
Independent counsels are largely insulated from any meaningful budget process, competing public duties, time limits, accountability to superiors, and identification with the traditional long-term interests of the Department of Justice. This insulation contributes greatly to the independence of these prosecutors, but it also eliminates the incentive to show restraint in the exercise of prosecutorial power. As the old adage adapted from Mark Twain goes, ''To a man with a hammer, a lot of things look like nails that need pounding.'' [Laughter.]
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The type of restraint I am talking about, usually referred to as ''prosecutorial discretion,'' is essential to our system of justice and is a hallmark of fair prosecution.
It is for these reasons that the Justice Department has reluctantly come to the conclusion, and I must emphasize reluctantly, that there are fundamental structural flaws with the act. These flaws, we believe, pervade the entire statute. Therefore, the Department of Justice opposes the reauthorization of the Independent Counsel Act. We believe that the act does not serve the goals it was designed to serve, and that those goals can be served by utilizing the Attorney General's authority to appoint a special prosecutor whenever necessary.
Over the long course of American history, the Department has successfully prosecuted a number of high-level political officials. For example, the Department prosecuted Vice President Spiro Agnew while he held office and also prosecuted Bert Lance, the former director of the Office of Management and Budget, shortly after he left office. The Department has not refrained from appointing a special prosecutor in instances where it would be appropriate, such as Paul Curran, who investigated matters pertaining to a peanut warehouse owned by President Carter's family while he was still in office.
Unlike an independent counsel, the Attorney General has been appointed by the President and confirmed by the Senate, and is publicly accountable for the decisions that she makes. As all of us in this room know, the Attorney General must answer to Congress in the oversight and budgetary processes for any decisions that are taken. In our view, Congress' substantial oversight and funding powers, when coupled with the power of the press, constitute a structure of accountability. It was for this reason that the American system of government survived for almost 200 years without an Independent Counsel Act.
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Now apart from the major structural problems that I have discussed, the Department's experience has also persuaded us that other problems with the act further exacerbate its costs and also its burdens. I have discussed these other problems, problems that may have legislative solutions, in some detail in my prepared remarks, and today I would like to just highlight some of them.
Before doing so, I want to make very, very clear that the Department of Justice joins the many experts such as former Senator Howard Baker, former Attorneys General William Barr and Griffin Bell, and former United States Attorney and Independent Counsel, and my good friend, Joseph DiGenova, who have concluded that the fundamental flaws in the act will remain even if Congress addressed all of these other problems in the act. The Department therefore urges that Congress not reauthorize the Independent Counsel Act.
Let me turn to the scope of the act. First, we have concluded that the group of individuals who are automatically covered by the act's provisions is too broad. As you know, we do not believe that the act succeeds in meeting its goals. Even if the act did succeed, however, it presumes there to be a conflict of interest where none usually exists when it extends coverage to White House officials at a certain pay level, Cabinet officers, campaign officers, and others.
The Department of Justice can, in the majority of these cases, effectively and credibly investigate or prosecute any of these public officials. The inclusion of such a large group of individuals within the mandatory provisions is unnecessary, particularly when discretionary provisions allow the Attorney General to invoke the act if investigation of any individual would constitute a conflict of interest.
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A second area where the Department of Justice has encountered repeated difficulties involves the mechanisms and standards the act sets up to trigger its provisions. Having dealt with these concepts in actual application, I understand how difficult it is to articulate, by promulgating an abstract U.S. code provision, the kind of intricate standard that prosecutors develop after years of experience. I can only say that the statute, while making a very valiant attempt, does not succeed.
During an initial inquiry under the act, the Attorney General must decide, ''whether grounds to investigate exist not later than 30 days after the information that a covered person may have violated any Federal criminal law is first received.'' In making this decision, the act requires the Attorney General to decide whether the information supporting any such violation ''is specific and from a credible source.''
Now, as a prosecutor of public corruption cases for 12 years, as a judge here in Washington, DC, and as the United States attorney in this city, I have had a fair amount of experience with trying to assess the creditability of witnesses. From my various experiences, I can tell you that credible sources are sometimes mistaken. Similarly, less than credible sources are sometimes accurate. The statute seems to ignore these possibilities. The term ''may have violated'' a statute is very broad and subject to many interpretations. As a result, the act sometimes requires the Department to take action that it would never, and I mean never, take in an ordinary case against a non-covered person.
The most serious problem with the standards of the act at this phase of decisionmaking by the Attorney General, however, is its limitation on the consideration of a critical element in most of all offenses, criminal intent. During this initial period, the Attorney General may not consider the intent of the subject of the allegation, no matter what the evidence of his or her intent, or lack thereof. There seems to be no reason or need for this presumption, which requires us to treat our highest-ranking officials differently from every other citizen in our country.
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At the next stage of decisionmaking, following a preliminary investigation, an Attorney General must decide whether an independent counsel should be appointed. The standard that he or she must apply is whether there are reasonable grounds believed that further investigation is warranted, a standard that is also unclear and subject to differing interpretations. After all, many prosecutors believe that if they were unconstrained by time and resources, some further investigation would be warranted in virtually any case. Every prosecutor has doubts and additional things that he or she would like to verify, given the time and the money.
Should investigation be conducted even where there is no reasonable prospect of ever making a prosecutable case? The answer is not clear from the statutory language, and any effort to develop a reasonable interpretation of this standard in a particular case will be criticized in the highly-charged milieu in which these decisions must be made.
Another problem with the statute is the restrictions it places upon the Department in conducting a preliminary investigation. The absence of compulsory process, the subpoena power, greatly handicaps the search for the truth, and, when combined with these severe time limits of the act, could result in the unwarranted appointment of an independent counsel, simply because the Department was unable to complete a fact-finding process that would be quite simple with the availability of proper tools.
My description of these jurisdictional disputes between the Department and the independent counsels causes me to return to the subject of checks and balances, or the lack thereof, provided by the act.
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It is difficult for the Department to litigate, or even express these quite legitimate views without being accused of improper interference with an independent counsel's work. I will not be surprised if my observations today are challenged by some on that ground. Though as I said at the outset of my testimony, my remarks address the structure of the act and the incentives that it creates, not the actions of any particular independent counsel. If even such generalized testimony can be the subject of criticism, I would ask you to think about how much more difficult it would be for an Attorney General to exercise the authority provided in a provision that the Supreme Court highlighted in its discussion of the constitutionality of the act, and that is the removal provision.
That part of the act allows the Attorney General to remove an independent counsel for enumerated causes. Implicit in the Attorney General's authority to remove, must be the authority to investigate serious allegations of misconduct that came to her attention. But how can the Department investigate an independent counsel without facing allegations of attempting to stifle his or her independence? It will always be extremely difficult for any Attorney General to exercise the authority to investigate, let alone to remove, any independent counsel.
I will conclude my remarks at this point, Mr. Chairman. I thank you for inviting me to testify, and I look forward to working with you on this matter.
I am now happy to respond to any questions that any members of the subcommittee might have.
[The prepared statement of Mr. Holder follows:]
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PREPARED STATEMENT OF HON. ERIC H. HOLDER, JR., DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman, Mr. Nadler and Members of the Subcommittee:
Thank you for inviting me to present the views of the Department of Justice on the Independent Counsel Act. The Justice Department has administered the Act since its inception, and we have developed some opinions about its operation since the last reenactment that I will share with you. But I want to state an important limitation regarding my testimony at the outset—a limitation that I know each of you understands: I am concerned that my comments not in any way interfere with ongoing investigations or litigation, and therefore I will be unable to give specific examples or direct my remarks to a specific Independent Counsel or a specific investigation.
THE ORIGINS OF THE ACT
Let me begin by addressing the reasons that gave rise to the present Independent Counsel Act. Congress passed the Act as a post-Watergate reform, intending to prevent the reoccurrence of the crisis in government that arose when President Nixon directed that Special Prosecutor Archibald Cox be fired. President Nixon's decision ultimately precipitated the resignation of the Attorney General and the Deputy Attorney General.
The Act was based upon the premise that the appearance of a conflict of interest may exist when the Justice Department of any particular Administration investigates the highest ranking officials of that Administration. Therefore, the Act set out to establish a prosecutorial entity to handle such cases that would be separate and apart from the Administration and the Department of Justice. Only in this way, the drafters reasoned, could the investigation have sufficient credibility to provide assurance to the American people that there had been no coverup and no undue political influence exerted in favor of the Administration.
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There can be no question that these goals are highly desirable. In fact, by seeking to prevent conflicts of interest, the Independent Counsel Act appeared to be consistent with the long-established practices of the Department of Justice and other prosecutorial offices, in that it provided an alternative prosecutor in those limited circumstances in which the prosecutor with original jurisdiction was forced to recuse himself or his office.
THE ACT HAS FAILED IN ITS GOAL OF REMOVING POLITICS FROM THE PROCESS
Despite those good intentions, the Act has failed to accomplish its primary goal: the enhancement of confidence in the rule of law by the American people. Indeed, I have reluctantly concluded that decisions and actions under the Act, both by Independent Counsels and by the Attorney General, inevitably and unavoidably become such targets for attack that public confidence in the administration of justice in these high-profile cases has been undermined rather than enhanced. The Act was supposed to increase trust in our government; unfortunately, it has diminished it.(see footnote 1) My point does not have to do with any particular inquiry or investigation, it has to do with the fact that the types of decisions we are talking about here can be controversial—and that a climate of politicization pervades the process regardless of which way a specific decision, investigation, or prosecution comes out.
In part, this is because the Independent Counsel Act does not, and constitutionally cannot, bar the participation of persons who have been nominated by the President and confirmed by the Senate from the difficult decision of whether to initiate the investigation and possible prosecution of a crime. The Supreme Court, in Morrison v. Olson, tethered its finding that the Act was constitutional to the fact that the Executive Branch—through the Attorney General—played a vital role in several key decisions under the Act, such as whether to seek appointment of an Independent Counsel, what limited jurisdiction to ask the court to confer on him, and whether to remove him.(see footnote 2) And yet, the fact that Attorneys General must remain key players in the process mean that they will be inevitably second-guessed, no matter what decision they make on the appointment and supervision of any particular independent counsel. An Attorney General is, after all, a member of the President's cabinet, and the Act does not remove that purported conflict of interest. Instead, it creates an artificial process that divides responsibility and fragments accountability.
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The Founders set up three branches of government: A Congress that would make the laws, an Executive that would enforce them, and a judiciary that would preside over the momentous decisions of whether a particular party had broken them. The Attorney General, who has been appointed by the President and confirmed by the Senate, is publicly accountable for the decisions she makes and—as all of us in this room know—must answer to Congress in the oversight and budgetary processes for her decisions. Congress' substantial oversight and funding powers, when coupled with the power of the press, constitute a structure of accountability.
It was for this reason that the American republic survived for over 200 years without an Independent Counsel Act.(see footnote 3) The Act, by contrast, vests this immense prosecutorial power in an inferior officer who is not subject to the ordinary controls of any branch of government; and this officer is someone who has not been confirmed by the Senate and who, as former Attorney General Barr stated, is not subject to the same sort of oversight or budgetary constraints that the publically accountable Department of Justice faces day in and day out.(see footnote 4) Under such a scheme of diffuse accountability, it can be no surprise that the politicos and pundits attack relentlessly every actor on the stage—the Attorney General, the Independent Counsel, the witnesses, the media, and at times even the public.
THE ACT HAS MAJOR FLAWS IN THAT ITS STRUCTURE REMOVES THE CONSTRAINTS OF PROSECUTORIAL DISCRETION
At the same time that the Act requires politically appointed officials to make decisions that will inevitably be criticized as political, it has exacted a heavy price—both financially and by creating unintended consequences. You have seen much reported in the media and other hearings about the extraordinary expense of a number of Independent Counsel investigations. I believe that, in part, such costs are inherent in a system that requires a prosecutor to set up an office from scratch (including hiring prosecutors, other attorneys, administrators, clerical staff, and consultants, and securing office space); conduct an investigation in which it is expected that no stone will be left unturned; prepare a comprehensive final report; and litigate attorneys' fees. This is a very expensive way to do business. As the body that passes the federal budget each year, you have the responsibility of deciding whether or not this cost is justified.
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With respect to the undesirable consequences of the Act, I begin with the general observation that in seeking to ensure independence the statute removes many of the constraints that normally limit prosecutors—constraints that exist for good reason under our system of government.(see footnote 5) In so doing, the Act's structure comes dangerously close to tipping the traditional balance of fairness in the conduct of criminal investigations and prosecutions. Independent counsel are largely insulated from any meaningful budget process, competing public duties, time limits, accountability to superiors and identification with the traditional long-term interests of the Department of Justice. This insulation contributes greatly to the independence of these prosecutors, but it also eliminates the incentive to show restraint in the exercise of prosecutorial power. Such restraint, usually referred to as prosecutorial discretion, is essential to our system of justice, and is a prosecutorial hallmark.(see footnote 6)
Moreover, there are other factors in Independent Counsel matters that minimize the ordinary constraints that underlie our system of prosecutorial discretion. Among other things, an Independent Counsel often faces: (1) a mandate to investigate a matter that the statute defines as warranting further investigation; (2) a charged climate in which public figures are demanding prosecution; (3) the reality that the success of his or her endeavor will be measured by whether indictments and convictions are obtained; and (4) the prospect of preparing a final report that will be reviewed by persons with some non-law enforcement interest in the investigation.
All of these provide an impetus to investigate the most trivial matter to an unwarranted extreme, and to resolve all doubt against the subjects of an investigation. These are not problems with individual Independent Counsels, they are simply the incentives that the statutory scheme creates. An independent counsel who does not indict faces criticism for wasting both his time and the taxpayers' good money.(see footnote 7) As the old adage, adapted from Mark Twain, goes: To a man with a hammer, a lot of things look like nails that need pounding.
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Senators McConnell and Dodd have recently discussed these structural problems in a joint Op-Ed. They write:
The Independent Counsel Act was passed in response to Watergate with the admirable goals of promoting good government, policing the executive branch, and restoring public faith in elected officials. Ultimately, however, the law tilted the constitutional balance of powers, squandered taxpayer dollars, and created public cynicism and distrust. The current independent counsel law is opposed by nearly every former living attorney general. . . . The law gives virtually unchecked power, virtually unlimited budgets and completely distorted incentives—all to one man or woman whose sole job is to investigate a public official.(see footnote 8)
It is for these reasons that the Justice Department has reluctantly come to the conclusion—and I must emphasize reluctantly—that there are fundamental structural flaws with the Act. These flaws, we believe, pervade the entire statute. Therefore, the Department opposes the reauthorization of the Independent Counsel Act. The Department believes that the Act does not serve the goals it was designed to serve, and that those goals can be served by utilizing the Attorney General's authority to appoint a special prosecutor whenever necessary. Over the long course of American history, the Department has successfully prosecuted a number of high-level political officials, and has not refrained from appointing a special prosecutor in instances where it would be appropriate.
In some cases, it was not necessary to appoint a special prosecutor. The Department prosecuted Vice President Spiro Agnew while he held office and prosecuted Bert Lance, the former Director of the Office of Management and Budget, soon after he left the Administration. When the Department has deemed it appropriate, it has effectively used its authority to appoint a special prosecutor. Paul Curran investigated matters pertaining to a peanut warehouse owned by President Carter's family while he was still in office. Leon Jaworski investigated President Nixon, some members of his cabinet, and others. Although the President ordered the firing of Mr. Jaworski's predecessor, Archibald Cox, the outstanding results Mr. Jaworski achieved present ample evidence that, in the rare cases that it is necessary, a non-statutory special prosecutor can effectively prosecute high-level members of an Administration even when the President attempts to end the investigation.
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Apart from the major structural problems I have discussed, our experience has also persuaded us that other problems with the Act further exacerbate its costs and burdens. These other problems exist in a different category from the ones I have been talking about, as they could be more easily remedied by changes in the wording of the statute if Congress decides to re-authorize it. But the Department of Justice joins the many experts who have concluded that the fundamental flaws in the Act will remain, even if Congress addressed all of the other problems in the Act. Those persons now opposed to reauthorization include two of the original proponents of the Act, former Attorney General Griffin Bell and former Senator Howard Baker, as well as former Attorney General William Barr and former United States Attorney and Independent Counsel Joseph DiGenova.(see footnote 9) Like the Justice Department, they have concluded that the Act should not be renewed.
THE SCOPE OF THE ACT
First, we have concluded that the group of individuals who are automatically covered by the Act's provisions is too broad. As you know, we do not believe that the Act should cover anyone because it does not succeed in meeting its goals. Even if the Act did succeed, however, it presumes there to be a conflict of interest where none usually exists when it extends coverage to White House officials at a certain pay level, Cabinet Officers, campaign officers, and others.
The Department of Justice can, in the majority of these cases, effectively and credibly investigate or prosecute any of these public officials. The inclusion of such a large group of individuals within the mandatory provisions is unnecessary, particularly when discretionary provisions allow the Attorney General to invoke the Act if investigation of any individual would constitute a conflict of interest.
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THE TRIGGERING MECHANISM
Another area where the Department of Justice has encountered repeated difficulties involves the mechanisms and standards the Act sets up to ''trigger'' its provisions. Having dealt with these concepts in actual application, I understand how difficult it is to articulate—by promulgating an abstract U.S. Code provision—the kind of intricate standards that prosecutors develop after years of experience. I can only say that the statute, while making a valiant attempt, does not succeed.
During an initial inquiry under the Act, the Attorney General must decide ''whether grounds to investigate exist not later than 30 days after the information'' that a covered person ''may have violated any Federal criminal law'' ''is first received.'' In making this decision, the Act requires the Attorney General to decide whether ''the information'' supporting any such violation ''is specific and from a credible source.''(see footnote 10) Now, as a prosecutor of public corruption cases for twelve years, as a judge on the Superior Court of the District of Columbia, and as the United States Attorney for this District, I've had a fair amount of experience with trying to assess the credibility of witnesses. From my various experiences, I can tell you that credible sources are sometimes mistaken. And, similarly, less than credible sources are sometimes accurate. The statute seems to ignore these possibilities. The term ''may have violated'' a statute is very broad and subject to many interpretations.(see footnote 11) As a result, the Act sometimes requires the Department to take action that it would never—and I mean never—take in an ordinary case against a non-covered person.
The most serious problem with the standards of the Act at this phase of decisionmaking by the Attorney General, however, is its limitation on the consideration of the issue of criminal intent. During this initial period, the Attorney General may not consider the intent of the subject of the allegation, no matter what the evidence of his or her intent—or lack thereof—is. There seems to be no reason or need for this presumption, which requires us to treat our highest ranking officials differently from every other citizen in our country. Forcing the Attorney General to a decision, almost always made publicly, that an allegation against a high government official is both specific and credible, when she has been artificially barred from even considering a critical element of the offense is grossly unfair to the subject and misleading to the public.(see footnote 12)
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THE DECISION OF WHETHER TO APPOINT AN INDEPENDENT COUNSEL
At the next stage of decisionmaking, following a preliminary investigation, an Attorney General must decide whether an Independent Counsel should be appointed. The standard he or she must apply is whether there are reasonable grounds to believe that further investigation is warranted, a standard that is also unclear and subject to differing interpretations. After all, many prosecutors believe that, if they were unconstrained by time and resources, ''some'' further investigation would be warranted in virtually any matter. Every prosecutor has doubts and additional things that he would like to verify given the time and money. Should investigation be conducted even where there is no reasonable prospect of making a prosecutable case? The answer is not plain from the statutory language, and any effort to develop a reasonable interpretation of this standard in a particular case will be criticized in the highly charged milieu in which these decisions must be made.
The problem of how to assess the evidence concerning the element of criminal intent continues at this phase of the process as well. In making that determination, the Act mandates that the Attorney General may not base a finding that no further investigation is warranted upon a lack of criminal intent, unless there is clear and convincing evidence of the lack of intent. A standard requiring proof of a negative by clear and convincing evidence is extraordinarily difficult to apply. This standard also stands traditional prosecutorial decisions on their head. In almost every criminal case, we require some positive evidence of intent before we proceed. Here, the opposite is demanded.
Another problem with the statute is the restrictions it places upon the Department in conducting a preliminary investigation. The absence of compulsory process—the subpoena power—greatly handicaps the search for truth, and, when combined with the severe time limits of the Act, could result in the unwarranted appointment of an Independent Counsel simply because the Department was unable to complete a fact finding process that would be quite simple with the availability of proper tools.
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THE SELECTION PROCESS FOR AN INDEPENDENT COUNSEL
After the Attorney General has decided to seek the appointment of an Independent Counsel under the Act, the next step involves the actual selection process by the three-judge panel known as the Special Division. However, the Act gives the judges no real standards or qualifications to look for in making their choice. It provides for no selection protocol, visible or otherwise. And, as Judge Butzner has stated, in some instances the Special Division has encountered great difficulty in finding someone available for appointment as an Independent Counsel, resulting in a significant delay of the investigation.(see footnote 13)
JURISDICTIONAL DISPUTES
Jurisdictional ambiguities inherent in the provisions of the Act have emerged as a serious problem, at times leading to disagreements between Independent Counsels and the Department and often demanding a great deal of time for resolution.(see footnote 14) While in most cases the disagreements have been resolved cooperatively between the Independent Counsel and the Department, there have been several conflicts between Independent Counsels and the Department over who should handle certain matters. At the heart of these disagreements seems to be a difference in views as to the appropriate role of the Independent Counsel. The Department of Justice views the Act as a limited solution to a particular problem: a conflict of interest with respect to a particular person causing the Department to be unable to perform its usual prosecutorial role in the handling of specific allegations that have been reviewed in the course of a preliminary investigation, and found to warrant further investigation. In our view, matters outside that narrow scope should be handled by the Department in the ordinary course.
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The ambiguities in the statute, however, have created a natural tendency for Counsels to view their institutional role as having all the authority that other prosecutors have, and to believe that they should be able to investigate and prosecute all avenues, wherever those avenues may lead. This is, again, a natural reaction created by the structure of the Act, which creates an incentive for independent counsels to expand their authority to increase the probability that one of their investigations will result in a conviction, and thereby justify their expenditures.
Some litigation over this issue has occurred. Rejecting the Department's position that the Attorney General's consent is required, the Special Division has held that it may refer to an Independent Counsel the jurisdiction to investigate matters that are ''related'' to the original grant of jurisdiction without first obtaining the consent of the Attorney General.(see footnote 15) In addition, the courts have applied what we view as an unduly expansive interpretation of what is a related matter, with the result that an Independent Counsel can be given jurisdiction to investigate the associates of a covered person for alleged crimes that have the most tangential relationship to the alleged crimes by the covered person.(see footnote 16) Thus, Independent Counsels may be able to investigate matters for which the Attorney General never contemplated seeking an Independent Counsel, and this may be done in some circumstances without her knowledge or participation. I suggest that this goes far beyond the goals envisioned by the statute's drafters, and I question the need for such an extreme solution to such a limited problem.
In addition to the need for limitation and clarification on the issue of relatedness, there is also confusion about what constitutes a matter ''arising out of'' an Independent Counsel's investigation. The Department has always taken the position, based on the examples in the Act and the legislative history, that this language refers to crimes intended to interfere with the investigation itself, like obstruction of justice or perjury. Some Independent Counsels and some courts interpret the language to mean any crime uncovered by the Independent Counsel during the course of his or her investigation, and have expanded their investigations accordingly.
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We also believe that the provision of the Act that has been interpreted to allow Independent Counsels to obtain jurisdiction over related matters from the Special Division without the knowledge or consent of the Attorney General interferes with executive branch responsibilities in a manner that raises serious separation of powers concerns, and brings with it serious practical consequences. The Act should not take from the Attorney General jurisdiction that she has not knowingly ceded to another, for to do so would trammel upon the Executive's core prosecution power. Indeed, the fact that the Act allows for such an ex parte process could result in dual investigations where prosecutors step all over each other, or wasted resources in investigations of matters already concluded.
Finally, there have been similar disagreements between the Department and Independent Counsels over the scope of the provision authorizing Counsels to handle civil matters that they consider necessary. The Department sees serious problems in the empowering of independent criminal prosecutors to bind the United States in civil suits and settlements. We believe that this provision was intended to be limited to those instances where the civil authority is essential to the successful completion of the criminal matter, such as handling a civil contempt case involving a witness, or intervening to request that a civil case be stayed pending resolution of the criminal matter.
REMOVAL
My description of these jurisdictional disputes between the Department and the Independent Counsels causes me to return to the subject of checks and balances, or the lack thereof, provided by the Act. It is difficult for the Department to litigate or even express these quite legitimate views without being accused of improper interference with an Independent Counsel's work—and I will not be surprised if my observations today are challenged by some on that ground—though, as I said at the outset of my testimony, my remarks address the structure of the Act and the incentives it creates, not the actions of any particular Independent Counsel. If even such generalized testimony can be the subject of criticism, I would ask you to think about how much more difficult it would be for an Attorney General to exercise the authority provided in a provision that the Supreme Court highlighted in its discussion of the constitutionality of the Act, the removal provision.(see footnote 17) That part of the Act allows the Attorney General to remove an Independent Counsel for enumerated causes. Implicit in the Attorney General's authority to remove must be the authority to investigate serious allegations of misconduct that come to her attention. But how can the Department investigate an Independent Counsel without facing allegations of attempting to stifle his or her independence? It will always be extremely difficult for any Attorney General to exercise the authority to investigate, let alone remove, an Independent Counsel.
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THE REPORTING REQUIREMENT
A final problem that I wish to address briefly is the Act's requirement that a final report be prepared by the Independent Counsel. Although there is a legitimate concern that the American people have a right to know the outcome of an investigation of their highest officials, the reporting requirement goes directly against most traditions and practices of law enforcement and American ideals. It is contrary to our concept of a presumption of innocence, our placing of high value on rights of privacy, and our Departmental tradition that we reveal offenses in the courtroom during a criminal trial, not by filing a document that is never filed when we decline to prosecute ordinary criminal cases and that may reveal information that subjects an individual to public embarrassment. These are all values that I tried to emphasize when I was a public corruption prosecutor and a United States Attorney. But worst of all, as I stated earlier, the reporting requirement provides an incentive for Independent Counsel to over-investigate every detail in order to avoid criticism that their final reports missed something.
CONCLUSION
The concerns of the original drafters of the Act are as valid today as they were in the post-Watergate era. There are a limited number of criminal matters that should be handled in a special way, in order to give the American people confidence that the outcome was not influenced by political considerations from either party.
The experience of the Department over these last five years has been enlightening. It takes a close-up view of the operation of the Independent Counsel Act to understand that it has serious flaws. The Department of Justice has reluctantly come to the conclusion that the structural flaws we have identified here cannot be fixed. Accordingly, we have been giving much thought in the Department of Justice to alternative ways to achieve this goal. We will be happy to work with the Congress in your efforts to accomplish this most difficult task.
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Mr. GEKAS. I thank Mr. Holder.
The Chair will allot himself 5 minutes to begin the questioning.
The strange part of all this is that some of the flaws that you have articulated here today were in existence the last time the reauthorization came by. Isn't that the case? For instance, when the Justice Department pleaded for reauthorization, it did so in the face of this too-broad language about which you complain today. Isn't that correct?
Mr. HOLDER. Well, I would say that the change in the position that we have taken is really as a result of our familiarity, increased familiarity, with the act, and the fact that I think we feel very confident now in saying that the act simply has not met its intended purpose.
Mr. GEKAS. So that the broad language of which you approved, or at least reluctantly approved in 1996, you now object to, had nothing to do with the Ken Starr investigation?
Mr. HOLDER. No. I think, as I said, we take into account a whole variety of things, the way in which we have been forced to interact with a variety of independent counsels.
Mr. GEKAS. Yes.
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Mr. HOLDER. The way in which the Justice Department has been criticized for taking what we feel to be very legitimate actions.
Mr. GEKAS. Yes. I am willing to adopt the overview that you started with, in which you stated that you were looking directly at the flaws of the operation of the Independent Counsel Statute as it exists, not at any particular investigation or investigator or special prosecutor or any individual who is involved. So that when you worry about the triggering device as being hard to manage, because of the difficulty in seeking credible information, that would apply to all the investigations that have occurred thus far.
Mr. HOLDER. Yes. I mean that is a concern. The act, as it is now constructed, sweeps into its ambit far too many people and with regard to crimes that are far too low in level, and that is the concern that we have.
Mr. GEKAS. The criminal intent criterion was also one which you found troublesome. That had to appear in all of the investigations or all of the acts that have been taken by the Attorneys General since the inception of the statute. Isn't that correct?
Mr. HOLDER. Well, actually the intent element was changed, I guess, I think at the last reauthorization.
Mr. GEKAS. Yes.
Mr. HOLDER. So that has been a matter of some controversy, as the act has been reauthorized.
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Mr. GEKAS. Well, we had at least three independent counsels appointed, have we not, since reauthorization? Is that correct?
Mr. HOLDER. This Attorney General has appointed seven.
Mr. GEKAS. Seven?
Mr. HOLDER. Yes.
Mr. GEKAS. Three are still ongoing, are they not?
Mr. HOLDER. I believe that is correct, yes.
Mr. GEKAS. And you comment worriedly about the subpoena power, or absence of subpoena power, or other ways to do fact-finding within the Attorney General's office. Well, if we went into a different apparatus in which we reassigned to the Attorney General the job of investigating wrong-doing on the part of high public officials, wouldn't you have these same problems? What would you seek from us to plug up the subpoena power question that you find as a flaw in the Independent Counsel Act?
Mr. HOLDER. Well, I think the easy solution is to simply treat these matters as we treat all other matters within the Justice Department. We are fully capable of investigating these matters. To leave to us the way in which we normally do them, which would give us the subpoena power, which would allow us to use grand juries, to have us treat these matters as we treat all other criminal investigations.
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If there is an extraordinary case, and I think they would have to be truly extraordinary, that would be very rare, where something outside the normal chain should be done, the Attorney General has the ability now to appoint somebody to do that.
I think that investigations of Cabinet-level officials can be done by the Justice Department. We don't need special acts in order to do them.
Mr. GEKAS. Do you believe that it can be done within a particular current budget year? Or do you believe that if such an occasion would come under the new apparatus or the reversion to the old apparatus, that if an investigation of a high public official is warranted, that it can be done within the then current budgetary allocations to the Department of Justice?
Mr. HOLDER. Well, I would never want to turn down the ability to come to Congress and ask for additional funds for an organization that I care for a great deal.
Mr. GEKAS. Yes.
Mr. HOLDER. But I actually think that we can handle these investigations within our budget.
Mr. GEKAS. If you are saying to me that you don't think we will incur new and higher costs from some investigation to be launched some time in the future without that Independent Counsel Statute, I think you are inadvertently hoping for the best.
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Mr. HOLDER. Well there would be increased costs. But again, they would not be costs comparable to those that an independent counsel incurs by having to start up an office, by leasing space, by having to hire prosecutors and support people. Those are the kinds of things we already have in place in various parts of the Department.
There would be increased costs. There is no question about that. But I don't think the cost would be as great as they are for independent counsel.
Mr. GEKAS. When did the Attorney General, with your consultation, come to the decision to oppose reauthorization?
Mr. HOLDER. Oh, I would say in the last few weeks. I had a group that has been looking at this question for some months, actually without the knowledge of the Attorney General, at least, initially. Then we shared the fact that we did exist, and I shared with her the recommendation, the unanimous recommendation, of my group. I would say that in the last few weeks it was her determination that we would oppose the reauthorization.
Mr. GEKAS. Was there any input from the President of the United States?
Mr. HOLDER. There was not, although I did contact Mr. Ruff, who is the White House counsel, either yesterday or the day before to indicate to him. Well actually, I guess late last week, to indicate to him what our position was going to be and to then run through the normal clearance processes that the Office of Management and Budget does.
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Mr. GEKAS. Did you consider your notification to Mr. Ruff and whatever his answer was, as full-speed ahead to you, to recommend the demise of the statute?
Mr. HOLDER. The——
Mr. GEKAS. You weren't rebuffed by Mr. Ruff?
Mr. HOLDER. That's correct. I mean he looked at the proposed testimony. We talked about what our position was going to be, and he indicated to us that we could proceed.
Mr. GEKAS. You have no indication that the President would override the decision made by the Justice Department after consultation with Mr. Ruff, do you?
Mr. HOLDER. No. I am here representing the administration's view.
Mr. GEKAS. The time of the Chair has expired.
We turn to the gentleman from New York, Mr. Nadler, for 5 minutes.
Mr. NADLER. I thank the Chair.
Mr. Holder, let me ask you the following. A necessary precondition of the constitutionality of the Independent Counsel Statute, as the Morrison case stated, is that the independent counsel be subject to the supervision of the Attorney General. Of course the statute says that the independent counsel can be dismissed by the Attorney General.
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Mr. HOLDER. Right.
Mr. NADLER. One would think means that before she can dismiss him, and for a cause, which one would think means that she has to establish cause, she has to have authority to investigate, and I understand that is currently under litigation.
Now, I understand that the D.C. Circuit Special Division, which appoints the special counsel, in response to a brief from a private group, the Landmark Legal Foundation, asked the Attorney General and the independent counsel to respond within 15 days as to who should conduct that investigation.
My first question is, under the law, do you think or did anyone argue in court, where does any private group such as Landmark Legal Foundation or anybody else, get standing to go to the Special Division and contest the Attorneys General's jurisdiction?
Mr. HOLDER. Well, we have not argued anything in court at this point. We have not yet filed our papers. I expect we will be doing so in the next few days. Quite frankly, I expect that would be one of the things that will be contained in the paper that we will file.
Mr. NADLER. You suspect that you will question their standing?
Mr. HOLDER. Yes.
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Mr. NADLER. You don't think they have standing?
Mr. HOLDER. No.
Mr. NADLER. Okay. [Laughter.]
Mr. NADLER. I was going to ask you where you think they got it from.
Let me ask you one other question.
If the court were to decide that the Attorney General could not do this investigation, would that, under the Morrison decision, bring into question the constitutionality of the statute?
Mr. HOLDER. If the Attorney General would not be able to conduct the——
Mr. NADLER. If the court were to hold that she didn't have that authority to investigate the independent counsel, would that then not trigger the point in the Morrison decision that said that that was the precondition for the constitutionality of the statute in the first place?
Mr. HOLDER. I certainly think there would be a tension between such a decision and the Morrison case. It seems to me to be quite obvious that if the Attorney General has the power to remove, there has to be a basis for that removal. In order to determine what that basis is, there has to be a basis for an investigation.
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Mr. NADLER. Let me ask one further question before changing the subject. There is a newspaper report that an agreement was reached between the Attorney General and the independent counsel as to how the DOJ could conduct an investigation. I am not going to ask you the content of that agreement because I don't know that it has been disclosed publicly. My question is, do you think it proper for the Attorney General, under the statute, to negotiate with the independent counsel on that question? Or shouldn't she simply assert her authority? If she has to negotiate with him, does that not bring into question his accountability?
Mr. HOLDER. Well, there is no agreement. There have been no negotiations. We have met with Mr. Starr to allow him to express the concerns that he has.
The decision as to how we will proceed in this matter will be done by the Justice Department.
Mr. NADLER. Okay.
Mr. HOLDER. By the Attorney General, and by the Attorney General, alone.
Mr. NADLER. Thank you.
Let me ask you on a different subject. A lot of people have been very disturbed by many acts by the independent counsel's office, Mr. Starr's office, that were characterized as improper or prosecutorial abuse. I think that other people thought that actions of various other special prosecutors were abusive. As I mentioned in my opening statement, independent counsel's office standard response to a lot of that criticism was, ''There is nothing wrong with this. This is standard prosecutorial practice.''
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Now, to what extent do you think that it is true? To what extent do U.S. attorneys in the normal course of their business, subpoena the mother of a target of an investigation to testify against, or with respect to a daughter? To what extent do U.S. attorneys in the normal course of their business, tell a suspect or a target of investigation that it wouldn't be a good idea if you called a counsellor you wanted to call because we don't think he is the right counsellor for you to call? To what extent is it normal business for a U.S. attorney to suggest that we might give you a plea bargain or give you immunity, but if you call that counsel, we wouldn't do so?
Are these normal practices?
Mr. HOLDER. Well, it is hard to say what a normal practice is. I don't know all the facts. I mean that obviously gets close to something that I would feel not very comfortable in commenting upon. I think that goes to some issues that have been raised with regard to the conduct of at least one of the independent counsels. It is hard to say what normal practice is. So much of this is fact-specific though.
Mr. NADLER. Well, let me ask you one further question.
Is it the position of the Department that all of the independent counsels are subject to the guidelines of the Department of Justice? Is it your position that they are subject to the ethical rules of local jurisdictions?
Mr. HOLDER. Yes.
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Mr. NADLER. Two separate questions.
Mr. HOLDER. Yes. Independent counsels are subject to the rules that govern other attorneys within the Department, and then prosecutors or lawyers who work for independent counsels are obviously governed by the rules of the States in which they are admitted.
Mr. NADLER. I thought that on the latter question, the Department thought that U.S. attorneys, in general, are not bound by the ethical guidelines of local jurisdictions. You are saying you believe they are?
Mr. HOLDER. Well, the Department has taken the view that with regard to certain rules, rules that would interfere with us doing our jobs as Federal prosecutors, that certain rules do not apply to us. We generally feel, however, that State rules, I am a member of the New York Bar, for instance, and the D.C. Bar, that rules that govern the conduct of attorneys in those two bars would be applicable to me.
Mr. NADLER. Subject to the exceptions where you think they would interfere?
Mr. HOLDER. Right. Subject to——
Mr. NADLER. Who makes that decision?
Mr. HOLDER. Excuse me?
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Mr. NADLER. Who makes that decision? The prosecutor, when he thinks it should be inapplicable because it would interfere with his ability to do his job?
Mr. HOLDER. Well, the Attorney General has delineated for Federal prosecutors who work within the Department, places where those rules would not apply.
Mr. NADLER. Thank you very much.
I yield back the balance of my time.
Mr. GEKAS. The gentleman yields back the balance of his time.
We recognize the gentleman from Arkansas, Mr. Hutchinson, for 5 minutes.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
Thank you, Mr. Holder, for your testimony today on this important subject.
Mr. Holder, before I go into your ideas on where we should go from here, I am interested in the past relationship between the Department of Justice and the various independent counsels. In particular, I am interested in a provision in 28 USC section 594(d)(1), that specifically requires the Department to provide assistance to the independent counsels, when requested.
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Are you aware of any instances in which the Department of Justice has refused a request for assistance under this provision by an independent counsel?
Mr. HOLDER. I would first say that I think we have had a very good relationship with independent counsels. Nothing comes immediately to mind about a request that was made to us that the Department has not, in some way, acceded to it. It is perhaps possible that a request was made to us for assistance in a specific form that we were unable to meet, but I think we have always attempted, in those instances, to come up with other ways in which we could have helped an independent counsel.
I don't have anything that comes immediately to mind though, where we have just refused a request.
Mr. HUTCHINSON. Would that request come through you or come to you?
Mr. HOLDER. Generally, that is true. Although with various independent counsels, we have relationships that exist at levels below me and below the level of an independent counsel so that we can facilitate communication.
Mr. HUTCHINSON. Well, the provision I am referring to, which I think you understand, but that if an independent counsel needed investigative resources in terms of FBI agents or other investigative agents, he would come and make that request to the Department of Justice, who would then review that, and under the obligation of the statute the department is to provide that assistance.
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Mr. HOLDER. Yes. I mean, with regard to lawyers, we certainly have made available prosecutors from within the Department. I think we have tried to facilitate the provision of investigative resources and of FBI agents.
Mr. HUTCHINSON. Do you recall any occasion in which the request was simply flat denied?
Mr. HOLDER. I am not aware of any such denials, certainly while I have been Deputy Attorney General, and I am not aware of any others either.
Mr. HUTCHINSON. Now, whenever the Department of Justice decides to investigate a prosecutor, whether it be an assistant United States attorney, United States attorney, or any other type of prosecutor within the purview of the Department of Justice, whenever a decision is made to investigate a prosecutor for any kind of misconduct in a particular case, what is your policy or practice with respect to when you would begin such an investigation?
Mr. HOLDER. Well, I mean it is hard to say. Again, one has to examine the case. A lot of these determinations are fact-specific. It depends on when the matter comes to our attention. We would refer these matters, obviously, to our Office of Professional Responsibility, to our inspector general, depending on the nature of the investigation.
Mr. HUTCHINSON. Is it not the practice of the Department of Justice to wait until a case is completed before you initiate a review of the prosecutor's conduct? Let me specifically refer you to the debate in last Congress over the McDade provisions in which the Department of Justice was justifiably exercised because a review board would be set up that could be used by defense attorneys to file a complaint against a prosecutor that would be ongoing during the course of the trial. One of the arguments that you all presented is that that should wait until the whole thing is concluded.
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Mr. HOLDER. Yes, that would be generally true. I understand your question now. That would be generally true. However, if during the grand jury phase of a case, during the investigatory phase of a case, an allegation were raised that we determined to be credible, we might get involved in that matter at an earlier stage. But I think that generally what you have said is true.
Mr. HUTCHINSON. Your recommendation today, the administration's recommendation, is not to reauthorize the independent counsel law?
Have you given any thought as to any additional changes or structural modifications that should be accomplished in order to assure the independence of a special prosecutor or to further outline the provisions for a special prosecutor?
Mr. HOLDER. Well, it is our strong view that we have attempted over the last 20 years to really tinker with this act, and that we have been unsuccessful in making it one that has met the conditions, has met the needs that were identified. It is our view that the act should simply not be reauthorized, and that we should go back to what we had before the——
Mr. HUTCHINSON. The answer is that you don't have any other specific recommendations coming from the administration?
Mr. HOLDER. No. We are willing to work with Members of Congress as we——
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Mr. HUTCHINSON. I didn't mean to cut you off, but let me take you through real quickly, the independent counsel law.
You have got the three-judge panel that appoints the independent counsel. If you go back to special prosecutor law, the Attorney General makes that appointment. I understand that distinction. In addition, there are some consultation requirements with Congress where Congress can initiate or request the Attorney General, in the event that we believe the statute has been triggered. Do you believe any of those mechanisms might have some merit for transfer to the special prosecutor's provision?
Then, there is some protection against the firing of the independent counsel, that it has to be done for good cause. Do you support that provision of the statute? Should that also apply to a special prosecutor?
Mr. HOLDER. Well, in regard to the last thing that you raised, yes. I think that even though I think we should not have an Independent Counsel Act, that there has to be some provision made for how independent counsels, special prosecutors, would be removed. It seems to me that something along the lines of good cause, though perhaps more specifically defined, would be something that we ought to retain.
Mr. HUTCHINSON. That is not currently in the law, is it?
Mr. HOLDER. In the regulations that we now have?
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Mr. HUTCHINSON. Well, if you appoint a special prosecutor, similar to the fact that you appointed Robert Fisk, if you do not put that in the specific appointment, that he can only be discharged for good cause, there is not any statutory provision that would provide that particular protection to a special prosecutor?
Mr. HOLDER. I am not sure. I believe that Mr. Fisk was appointed under, although not technically under, the act that had lapsed. The Attorney General indicated that those provisions would apply to him, and I believe that there was a good cause provision there.
I am not sure, however, with regard to our regulations as they presently exist, whether there would be a good cause provision.
Mr. HUTCHINSON. Do you think that would be a good idea?
Mr. HOLDER. It is something that we ought to consider to give people the feeling that there was a degree of independence for the prosecutor, even though that person should be, I think, more closely tethered to the Justice Department.
Mr. HUTCHINSON. May I ask one more question, Mr. Chairman?
Mr. GEKAS. Without objection.
Mr. HUTCHINSON. I was looking to see if there was any other redeeming qualities that you might find in the independent counsel law. Another one is the triggering mechanism for the appointment of an independent counsel. Do you see any merit in setting forth a triggering mechanism for the appointment of a special counsel if we revert to the old law?
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Mr. HOLDER. I think I would really leave that to the discretion of the Attorney General and allow the Attorney General to look at the facts as they are developed, and then decide whether or not it was appropriate, taking all the facts into consideration, whether it would be appropriate to appoint a special prosecutor.
Mr. HUTCHINSON. Thank you, Mr. Holder.
I thank the Chair.
Mr. GEKAS. We thank the gentleman.
Was Mr. Weiner recognized previously? Yes.
Does Mr. Conyers wish to be recognized?
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. GEKAS. The gentleman is recognized for 5 minutes.
Mr. CONYERS. First of all, Mr. Holder, I want to thank you for coming here today. I don't think that there needs to be elaborate explanations as to why the Department of Justice can't go through a change of mind or a review, like all of us here on the Hill do.
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I am happy about it, and want to point out quickly that I had nothing to do with influencing any of the decisions that may have come together to bring your statement to its present circumstance.
The problem of independent counsels that may already have been authorized, that continue after the law expires, could be troublesome. That is to say that all of these unfair incentives, the problems that surround it, we may want to try to circumscribe in some way. In the law itself, there will still be certain investigations still outstanding.
We have got Alexis Herman outstanding, Secretary Bruce Babbitt, Henry Cisneros, $3 million to date, since May 1995. And obviously Kenneth Starr is still ongoing.
Has there been any consideration of how we might approach the investigations that are left behind after the law expires?
Mr. HOLDER. That is not something that we have spent a good deal of time considering at the Department, given the fact that within the Independent Counsel Act now, there is a provision that would essentially grandfather any active investigations.
For the record, I previously said there were three. There are actually five active IC investigations, and three additional ones that are in the wind-down phase. So I would just like to correct the record in that regard.
Mr. CONYERS. Good.
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It has been reported that Mr. Starr is prosecuting Julie Hiatt Steele in Alexandria, Virginia, because he may want to avoid the jury pool in Washington, DC, which may be largely African-American citizens. Are there guidelines that prevent such jury-shopping by independent counsel?
Mr. HOLDER. Well, I wouldn't comment on the Julie Hiatt Steele matter. We expect the prosecutors within the Department to bring cases where they are appropriately venued.
Mr. CONYERS. Well, yes. But they can appropriately venue them—I mean that is the problem is that you end up somewhere in a flat out jury pool, jury shopping, situation.
By the way, what about the Department of Justice and U.S. attorneys with reference to the same practice? Abhorrent, isn't it?
Mr. HOLDER. Well, yes. I mean if any U.S. attorney, assistant United States attorney, artificially came up with a way to generate venue for the purpose that you have outlined, I think that would be inappropriate, something that we would look on with great disfavor. It is not something that I am aware of that is done by United State attorneys. I mean cases can be venued in a variety of places, and we always want to go to the place where it is most logical to bring the case.
Mr. CONYERS. Well, one of the problems that has been raised, I think Mr. Nadler raised it, is that the whole Office of Independent Counsel has spotlighted a number of practices, rightly or wrongly, that are claimed to be standard operating procedure for U.S. attorneys. We have been holding hearings on the grand jury and its problems, which are not new and which are many, for a considerable period of time.
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I am hoping that out of this experience, we take a renewed examination of the whole system of investigation, indictment, and prosecution inside the Department of Justice. I think that this may be something very important that comes out of the review of the OIC statute.
Mr. HOLDER. Well, Congressman, if that is something that is desired by the committee, we would be more than glad, obviously, to respond to any questions, inquiries that are put to us. I am quite confident that we can withstand any scrutiny in that regard.
Mr. CONYERS. Well, I don't want you to—I am sure you will, but the grand jury system has been under criticism. I remember when Mr. Gekas had no gray hairs, and we were going through the grand jury system. We had hearing after hearing on that long ago. [Laughter.]
We were working on very large problems. I don't think they have just gone away. I think this whole investigation suggests wider areas of inquiry on the part of this committee and on the concern of yourself, as the Deputy Attorney General.
Mr. HOLDER. If I could just say one thing. There is I think out there in our country this notion that we have runaway, out-of-control prosecutors. There was an article written in Pittsburgh, and any of you who have read that, I hope you saw the letter that I wrote in response to it. The vast majority, way more than the vast majority, of the prosecutors who work for the Justice Department do so honorably, do so appropriately. There are instances where we make mistakes, and where people act inappropriately, and we deal with those people. But there is not out there, as has been suggested, prosecutors who are doing their jobs in inappropriate ways. That is just not the case to the degree in which I think this is kind of getting out and in our country.
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Mr. CONYERS. I am sure of that. The large number of members of the police departments in the United States are honorable people doing their job, but that doesn't excuse, nor does it make any less significant, the violations that do occur. Those are the ones we are trying to get at. We are not trying to tar and feather every U.S. attorney's office in the several States. But there can be, and have been, problems. I would be happy to review them with you.
We have been on this subject for quite a while now, and there is quite a bit of testimony and a number of books written, articles reviewed, cases, that I think I would like to have the privilege of bringing to your attention as we examine this whole matter.
Mr. HOLDER. Sure.
Mr. CONYERS. Thank you very much, Mr. Chairman.
Mr. GEKAS. The time of the gentleman has expired.
The lady from Wisconsin is recognized for 5 minutes.
Ms. BALDWIN. Thank you, Mr. Chairman.
As a new Member of this House and this committee and this subcommittee, I recognize that I missed an opportunity to become quite intimately familiar with the workings of the Independent Counsel Statute. But while my colleagues were gaining that experience in the past couple of years, I was spending that same period of time hearing from a specific group of American citizens about their impressions of the Independent Counsel Statute, namely Wisconsinites, and I give them credit for seeing the forest sometimes when policymakers start looking at the trees.
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Two frustrations were echoed time and time again. One was the seemingly unbridled expenditures, the Starr investigation, the other, the sort of limitless jurisdiction and expansive jurisdiction.
If we are to let, as you propose, the Independent Counsel Statute lapse, what safeguards can the American people have that jurisdiction will be carefully defined and that expenditures will be appropriately limited at such times when the Department of Justice sees fits to appoint special prosecutors when they are needed?
Mr. HOLDER. Well, I mean I think if you had special prosecutors who operated within the framework, more clearly operated within the framework of the Justice Department, you would not have the kinds of concerns that some people have expressed about expenditures. They would be a part of the Department, part of the Department's budget.
With regard to jurisdiction, a person would be appointed for a specific purpose and would be more closely tethered, again, to the Attorney General, more directly supervised by the Attorney General. I think that would have a limiting effect on jurisdictional expansions. That prosecutor, I think, would act more like other Federal prosecutors do.
Ms. BALDWIN. I would appreciate it if you can sort of increase our confidence with that. Are we talking about this being limited solely by the budget of the Department and the supervisory framework of the Department? Or are there additional statutory and regulatory constraints that would assure the American public that these expenditures and the jurisdictional issues would be appropriately addressed and balanced?
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Mr. HOLDER. Yes. I am not sure there is a need for additional statutory or regulatory provisions. I am really quite confident that if we followed a procedure that I have suggested in my testimony that we would have special prosecutors who, though independent, and as I said we would have a much smaller number of them because we would only appoint them where they were truly needed, but that they would follow Justice Department regulations and would therefore, have jurisdictions more controlled by the Attorney General and expenditures controlled by the Attorney General, as well, acknowledging that there would have to be some degree of independence for them, though.
Ms. BALDWIN. So that we understand the consequences of our action or inaction, should we choose to follow your recommendations, I would be very interested in seeing as a follow-up to this hearing, the regulatory framework to which you refer. I don't know if you care to elaborate any more on it at this point.
Mr. HOLDER. Okay. Well, I would be more than glad to respond to any specific questions that you have. We have not put on paper anything with regard to what regulations might look like, other than in very draft form. I could certainly share with you that which exists in the Department already, and I would be more than glad to have that sent to you at the conclusion of the hearing.
Ms. BALDWIN. Thank you, Mr. Holder.
Mr. Chairman, I yield back any remaining time.
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Mr. GEKAS. We thank the lady, who yields back the balance of her time.
We turn to the gentleman from South Carolina, Mr. Graham, for a period not to exceed 5 minutes.
Mr. GRAHAM. Thank you, Mr. Chairman.
Mr. Holder, as I understand, you are speaking here today for the Department of Justice. Is that correct?
Mr. HOLDER. That is correct.
Mr. GRAHAM. The essence of your testimony is that this Independent Counsel Statute should not be reauthorized. Is that correct?
Mr. HOLDER. That is correct.
Mr. GRAHAM. Do you have a specific proposal in place from the Attorney General's office to submit to Congress as what we would do in the event it is not reauthorized?
Mr. HOLDER. No, we do not. If there is a desire to come up with something other than that which existed before 1978 when the act was first passed, we would be more than glad to work with Members of Congress to craft something. But I do not at this point have anything other than the expressed desire to let the statute lapse, let it not be reauthorized, and to go back to the pre-1978 era.
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Mr. GRAHAM. Could you get me a proposal in 30 days?
Mr. HOLDER. I would be more than glad to work with you on one. I am not sure that we would want to be, in essence, negotiating against ourselves.
Mr. GEKAS. Would the gentleman yield for a moment?
Mr. GRAHAM. Yes.
Mr. GEKAS. Because of the question that was posed by the gentleman from South Carolina, I would like to formally request the Justice Department, with the assent of the members of the committee, for a detailed plan on what would happen the day after the Independent Counsel Statute would die its natural death in June.
Mr. GRAHAM. Mr. Chairman?
Mr. GEKAS. I am worried sick about the prospect of its dying without a substitute mechanism in place. I am not ready to rely on the fallback to the Department of Justice without regulations, without new plans, without a possibility of regulating their conduct, or the independence of a prosecutor, the questions that the lady from Wisconsin asked and Mr. Graham has repeated.
I formally request such a plan to be submitted by the President, the administration, by the Department of Justice, within 30 days.
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Mr. HOLDER. All right. Well, we will get something to you, Mr. Chairman. You should understand——
Mr. GEKAS. Mr. Graham, this won't rob you of your time.
Mr. GRAHAM. That is fine.
Mr. HOLDER. [continuing]. When the act lapsed previously, we reverted to the Attorney General using the inherent authority that she had, and that is how Mr. Fisk was appointed. There have been regulatory independent counsels, special prosecutors appointed before 1978. So the Nation should not feel that we are somehow at risk if this Act is not reauthorized and that July 1 will be in any way some time that we need to fear.
Mr. DELAHUNT. Would my friend from South Carolina just give me 30 seconds?
Mr. GRAHAM. Absolutely.
Mr. GEKAS. I will extend the time of the gentleman from South Carolina.
Mr. DELAHUNT. I thank you, Mr. Graham.
I think it is very important, Mr. Holder, that you repeat that and be very clear, because I don't think we want the American people to think or to believe that if this statute lapses, there is no mechanism in place to deal with the issues of potential conflict of interest.
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Again, maybe I am just repeating what you just stated, but I think it is important for us all to understand that between 1992 and 1994, the statute that we are addressing here today to determine whether it should be renewed, in fact had lapsed.
So the American people have nothing to worry about in terms of appropriate cases being effectively addressed by the Department of Justice. Is that a fair statement?
Mr. HOLDER. Yes. I think that is absolutely right. If there were a case, an allegation, a credible allegation raised against a high Justice Department official, high administration official that the Attorney General determined required examination by a special prosecutor, she has the ability to do exactly that, that is, to appoint a special prosecutor and have that person conduct an investigation.
Mr. DELAHUNT. I thank my friend, Mr. Graham, for yielding.
Mr. GEKAS. I grant the gentleman, Mr. Graham, an additional 5 minutes now. Or a 5-minutes, with the thanks of the gentleman for hitting on the pulse of the basic question of what happens in June.
Mr. GRAHAM. Well, thank you, Mr. Chairman, and I thank Mr. Delahunt. I look forward to working with him.
The problem I have, and I am trying to be as direct as I know how to be with this. It expired in 1992, but the administration came in 1994 and said, we need to reauthorize it. So apparently the 1978 procedures didn't set well enough with you not to come up here and suggest we reauthorize the statute in 1994. Is that true?
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Mr. HOLDER. Clearly we have changed position.
Mr. GRAHAM. Well, right. Now that is the thing——[Laughter.]
Mr. HOLDER. We are not the only organization that has done so.
Mr. GRAHAM. Thank you.
Mr. HOLDER. The American Bar Association has done so as well.
Mr. GRAHAM. Well, what we need to figure out is why we are all changing positions here. You know, what is really on the table? We need to be honest with the American public. Is it because some people don't like Ken Starr, the person who was the independent counsel? Or is it a structural problem? What happened here? Why did everybody go from 300 and some votes to not wanting to do it this way any longer?
And if 1978 wasn't good enough in 1994, what I think we are all looking for is something that addresses the problem about closure, about funding, about boundaries, about trigger mechanisms.
I have been a defense lawyer, and I have been a prosecutor. I want an Independent Counsel Statute or mechanism, Mr. Holder, that makes sure whoever's job it is to look at the governor of whatever State, the President, the Vice President, regardless of party, can do their job without worrying about polls. That is the first thing I want to make sure happens, and I think we all want that. We want somebody who can do their job who doesn't have to worry about a political election cycle. Do you agree with that?
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Mr. HOLDER. Sure.
Mr. GRAHAM. All right. We want somebody that is accountable in terms of the money they spend and the time they spend. Do you agree with that?
Mr. HOLDER. Absolutely.
Mr. GRAHAM. And we want an Attorney General who says yes or no, accountable to the Congress and to the American people and a procedure where they have to look long and hard about saying yes or no.
Mr. HOLDER. And you have got one.
Mr. GRAHAM. Okay. Well, we are about to let this one go. We are all now saying, let's take a statute that was overwhelmingly reauthorized, and all of a sudden we now say we don't want it. It is not good enough for me to go back to a procedure that people rejected in 1994, which is the 1978 version of the law.
I would ask from you to help us, sincerely, because Mr. Delahunt and myself and some others, whatever differences we have had over impeachment, we are going to try to come up with a statute that addresses the real world problems in a democracy of high public officials needing to be looked at independently and the person doing the looking needing some accountability.
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So if you could, in 30 days, come up with a proposal. And if you say 1978 is good enough, I am going to have you back up here and want to know why. But something that addresses what I have talked about, what the Democratic members have talked about. I think you owe that to the country. You owe that to that Congress, and we want to want to you. I am not asking you to bid against yourself. I am asking you to help us fix a problem that is widely perceived, but the dilemma still faces this Nation.
What do you do with a high public official that needs to be looked at? You can't have the person doing the looking who is appointed by them. It is not good to investigate the boss because that doesn't have credibility.
I yield back the balance of my time.
Mr. GEKAS. We thank the gentleman.
We turn, for the last round of questioning, to the gentleman from New York, Mr. Weiner.
Mr. WEINER. Thank you, Mr. Chairman.
Mr. Holder, as I understand the statute, an independent counsel can only be removed for good cause. Is that right?
Mr. HOLDER. That is correct, and it is not really defined in the statute.
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Mr. WEINER. Right. Practically speaking, I think some of the concerns that my colleagues and I have is that it is really, although it sounds good in the reading of it, as a practical matter it is very difficult to remove someone for good cause without looking as if you are trying to hinder an investigation.
So, for example, when Donald Smaltz, who investigated the Mike Espy case, when he subpoenaed 2,000 Tyson Food workers simply because they had filed injury claims against the company. If you were to have observed that from the position of the Department of Justice, you might have well seen that as outrageous, and perhaps it is something that he ought not be doing. But as a practical matter, I would imagine it is very difficult to make the decision that he should be removed, that that is considered in and of itself good cause.
I mean is that a fair assessment of the situation?
Mr. HOLDER. I wouldn't want to comment specifically on the matter that you just referred to. But as I indicated in my testimony, it is under the present statute, a difficult thing for an Attorney General to investigate, even investigate, much less remove an independent counsel, where she determines that there is that need.
Mr. WEINER. The same would be true when Mr. Smaltz, not asking you to comment on the specific case, but if Mr. Smaltz or anyone else was subpoenaing a pilot for Tyson Foods who had not flown for the company as recently as 16 years before the investigation began, and subpoenas them to start having asking questions about bribes of foreign officials in the context of the investigation of Mr. Espy. I mean these are the kind of things that smack—I mean it seemed like this is good cause to get rid of this guy. The guy is so far afield at this point.
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But I think, practically speaking, the one check that exists is the good cause clause, seems to be without any real teeth. That is the problem, is that there is no real—if you can't use that hammer, then it really doesn't exist in reality, and there is no check on the independent counsel.
I mean I think that that is the concern. I mean with all of the attention being paid to the overall picture, the fact of the matter is, if you read the statute and it says you can move someone for good cause, well that seems reasonable enough. But it doesn't actually—it has never happened, and it is very difficult for it to happen at all. Isn't it?
Mr. HOLDER. Yes, it is difficult. It is not impossible however, and I am quite confident that this Attorney General, were she convinced that there were a basis for the removal of an independent counsel, would do so, and damn the consequences.
Mr. WEINER. But for something, for example, I think that all of us in this subcommittee agree, that profligately spending would be very difficult to—I mean even though Mr. Smaltz moved from one independent counsel office here on Capitol Hill to quarters in Alexandria, Virginia, California, Mississippi, and Louisiana during the course of his investigation, that would seem to many Americans and to I am sure many of my colleagues on this subcommittee, I mean that would probably be good cause just on a fiscal basis, but even that is difficult for you to use as a judgment.
I mean there is no real check, practically speaking, on the amount of money a prosecutor, an independent counsel spends, is there?
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Mr. HOLDER. Well, under the present structure there really is not, I think, an effective check. And again, you know it is hard to figure out exactly what is an appropriate amount of money for an independent counsel to spend, given the startup costs that they have. Again, I am not aware of what it is that they are looking at. So for me to comment intelligently about the expenditures of any one independent counsel is pretty difficult.
Mr. WEINER. Well, I think in retrospect, frankly, given the Espy case, I mean we can now take a look back at the sweep of the investigation and draw certain conclusions about whether something was or was not an appropriate. I mean if it was an investigation that was going on, perhaps it is more difficult.
I mean part of what I think troubles me is that this, and I think you alluded to this in your testimony, is that there is such extraordinary pressure to produce a product at the end of this thing that looks like it justifies what you got in for. And you know Mr. Smaltz, to hit him one more time, was quoted at the end of this investigation as saying, and I quote, and this is from the New Republic, ''The actual indictment of a public official may, in fact, be a great deterrent, as great a deterrent as a conviction as that official.'' Almost to say that he succeeded in what his task was because he brought the indictment, which was then obviously dealt with with great alacrity by an informed jury.
My concern is that too many independent counsels say, ''Well, I have gotten this position; I better hurry up and open some offices, and I better get copy machines, and I better hire staff, and I better travel around. And, oh, now that I have done this, I better darn well produce something, so maybe it is an indictment. All right. I have got an indictment, now I have reached that threshold.'' I think that is something that without the check, without a real check, not just this good cause clause, we have real problems.
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As my time is nearing expiration, let me just ask you a question. Is it possible for you, unilaterally, to say we are going to take the Public Integrity Section and make it a division, or make it higher than that, or make it some type of a sub-Cabinet position within the Justice Department? Is that something you can do without congressional authority?
Mr. HOLDER. No. I am not sure, but I don't believe so. We have looked at other parts of the Department, other entities within the Department, and thought about restructuring them. Almost in every instance there has to be some kind of congressional involvement, if not passage of a bill, at least some kind of signoff by the appropriate committees. I would be surprised—I am not sure we could do that.
Mr. WEINER. You are not sure that you can?
Mr. HOLDER. Yes. I mean the Public Integrity Section has to report to Congress, for instance, once a year. There are specific congressional mandates, and I would be very surprised if we could unilaterally change the position of the unit within the Department.
Mr. WEINER. Well, I would just say in conclusion that I would agree with the general conclusion of my colleague from South Carolina that I think it would be helpful, if not to produce a package of legislative reforms, just to give us some guidance as we go forward. Because it is important.
While I think that the Justice Department has an excellent track record investigating these things on their own, if it would be possible to make some change, even on a symbolic level, make it clear how seriously we take this matter, I think that would be helpful.
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Thank you, Mr. Chairman.
Mr. GEKAS. The time of the gentleman has expired.
We thank the gentleman for the testimony he has offered.
Mr. DELAHUNT. Mr. Chairman?
Mr. GEKAS. Oh.
Mr. DELAHUNT. I know you are not intentionally forgetting me.
Mr. GEKAS. We ask Mr. Delahunt if he wants to leave——[Laughter.]
Mr. Delahunt is recognized, with apologies from the Chair.
Mr. DELAHUNT. I would remind the Chair of that biblical admonition. ''The last shall be first,'' and that means I have indefinite time. Is that the case, Mr. Chairman? [Laughter.]
Mr. GEKAS. Five minutes.
Mr. DELAHUNT. Mr. Holder, thank you for your appearance here today. Let me state that I am inclined to agree with your conclusions, for many of the reasons I think that are obvious.
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Let me pick up on the point by my friend and colleague from South Carolina, Mr. Graham, who isn't here. In his absence, I will take it upon myself to amend his request.
My sense is that statutes and statutory constraints have created this problem that we find ourselves in. But I think it might allay the concerns of members and the public at large, if a written policy that would articulate guidelines to deal with the kind of situations envisioned in the Independent Counsel Act could be promulgated. I think that I could convince Mr. Graham that that might be the best approach to take, because there are some unanswered questions. I don't know if 30 days is sufficient time, but maybe we could work that out in due course.
I would also point out that concerns over whether independent counsel is breaching certain canons of ethics should have been resolved with the enactment of the Citizens Protection Act. Because I think it was Mr. Conyers, who also has left, when that particular proposal came before Congress, who offered the amendment that included the OIC in the Citizens Protection Act.
Am I making a fair statement in terms of clarifying some of those ethical concerns?
Mr. HOLDER. That might allay, I guess, the concerns that Mr. Conyers had. We still have big problems with the Citizens Protection Act and McDade——
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Mr. DELAHUNT. Well, I understand—I have heard that you have——
Mr. HOLDER. [continuing]. And would like to make it disappear.
Mr. DELAHUNT. No, I understand you have concerns with those particular acts. In fact, we have a respectful disagreement on that particular policy.
Mr. HOLDER. I am still hopeful I am going to win you over though.
Mr. DELAHUNT. Well, you know we can have more discussions, because I think Mr. Murtha and I intend to try to strengthen the act in a way that I hope suits the Department. In fact, I think what Mr. Nadler and Mr. Gekas and others on both sides have talked about as one benefit of the Office of Independent Counsel is that it has offered high-profile opportunities for the American people to appropriate the role of Federal prosecutors, and I dare say of all prosecutors in this country.
I have an interesting quote here from Sam Dash. It appeared recently in the New York Times, where he states, ''These strategies have been denounced as outrageous examples of misconduct. They are standard operating procedure for Federal prosecutors. If the public is offended, let's raise the standards for Federal prosecutors, generally.''
I don't disagree with your statement. You could defend the personnel in your Department. I think it is really a question of policy for Congress and the American people to make a determination as to whether we want your conduct to be at a different level. I speak, as you well know, as someone who spent 21 long years as a prosecutor. So I just wanted to make that particular point.
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Also, let me ask you this. Within the existing statute, there is a mandate for congressional oversight. Do you feel that Congress has exercised its oversight responsibilities to your satisfaction?
Mr. HOLDER. I am not sure. You know, I certainly think you always have to be wary of congressional oversight when it comes to examination of pending matters, and that would be one of the fears I would have. I wouldn't want independent counsels who are in the process of investigating specific matters to have to come up and while they were investigating, explain why they are doing certain things.
I do think that there is clearly an appropriate role for Congress to ask some tough questions, not only of the independent counsels, but of us as well.
Mr. DELAHUNT. I have served here for two and a half years, and I never have heard of, nor participated in, an exercise of oversight in this area. I, for one, would suggest, and this is not an assessment of blame, this is not Republican versus Democrats. I am saying we all have had that responsibility, and I suggest that we have been remiss in its exercise.
Mr. Chairman, I ask unanimous consent for an additional minute and a half.
I only have just one other area, Mr. Holder, that I would like to discuss with you.
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Mr. GEKAS. Without objection.
Mr. DELAHUNT. Thank you, Mr. Chairman.
I read, and again, I find it disturbing to have to quote newspaper stories, because I like to have information before me that is hard, has been examined, and has been evaluated, but that is not the case. I find it fascinating, these reports about negotiations between Mr. Starr and the Attorney General regarding the conduct of an investigation into certain allegations by Mr. Starr, allegations about his conduct or his office's conduct. I really do not intend, nor do I want this to be interpreted as in any way an attack on Mr. Starr. I am attempting to examine it in a structural sense.
I was particularly disturbed to hear—and again, I am gleaning this from newspaper reports—that Mr. Starr was negotiating about the appointment of a independent counsel, to conduct this investigation, and even suggested names. I think he named a former Attorney General, Griffin Bell.
I don't know if that is true, and maybe I shouldn't even be asking this question, but I am going to.
Mr. HOLDER. I will answer that one.
Mr. DELAHUNT. I found that particularly disturbing. As a prosecutor, I never in my entire experience sat down and negotiated with a subject of an investigation as to the parameters of the investigation. But beyond that, I really see a significant problem in terms of this murkiness and blending again of the separation of powers. Now that is one phase of the investigation.
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I was really taken aback with the intervention of the Special Division into this entire issue. I cannot for the life of me find any basis whatsoever for the Special Division, which has a very limited role in terms of appointment, to interject itself into this particular matter.
Again, I think what we are seeing with the statute is a dangerous erosion of the separation of powers.
It is why this statute should be allowed to lapse. If we are going to fix it, we have got a long way to go, and those who fix it really face a substantial burden.
Now that I have given you all that, could we give the Deputy Attorney General an opportunity to respond to my observations?
Mr. HOLDER. Well, with regard to the following of that lawsuit, we will be filing our response in the next few days and I think fully detail our view of it. As I indicated before, I don't think that the person or the organization that filed it has standing in which to raise those claims, but we will be more fulsome in our paper.
With regard to the question of our conversations with Mr. Starr, there have not been negotiations. There is not an agreement. There was a meeting with Mr. Starr. We had a number of meetings with Mr. Starr to talk about a variety of things. We have had a meeting here to talk about any of the concerns that he might have had with regard to anything that we might be doing in that regard. But I want to reiterate, if there is an investigation, the decision will be made by the Justice Department, by the Attorney General. We will decide the form that it will take, and we will also decide, without any kind of input from anybody else, who will conduct that investigation, be it the Justice Department or somebody who works at the behest of the Department.
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Mr. DELAHUNT. That is very reassuring, and I would hope—I don't know the details of the order issued by the Special Division, but I would hope that the Department of Justice will appeal that order, because from what I can gather from where I sit, that is an example of judicial encroachment upon the——
Mr. NADLER. Would the gentleman yield for second?
Mr. DELAHUNT. With the indulgence of the Chair.
Mr. NADLER. Just for a second.
Mr. GEKAS. Without objection.
Mr. NADLER. Thank you.
Mr. Deputy Attorney General, I asked you before and you said that you disagreed with the standing. You just reiterated that. Does the Department also question the jurisdiction of the Special Division in this respect?
Mr. HOLDER. Well, let me just say that I have maybe gone a little too far with regard to what we would be filing. But there will be other things contained in the paper that we file as to why we think we don't have to take very seriously that matter that was filed.
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Mr. NADLER. Thank you.
Ms. JACKSON LEE. Mr. Chairman? Mr. Chairman, may I ask a question to you?
As non-members of the committee——
Mr. GEKAS. The Chair does not recognize the lady. The time has expired.
Ms. JACKSON LEE. Well, I would like to ask a question to you about questions being submitted.
Mr. GEKAS. You may submit questions for——
Ms. JACKSON LEE. As non-members of this subcommittee, can I submit questions to be answered by Mr. Holder?
Mr. GEKAS. Through any member of the committee, you may submit questions or statements or anything that any member wishes to enter in your name.
Ms. JACKSON LEE. I thank you so very much, Mr. Chairman.
Mr. GEKAS. Okay.
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Ms. JACKSON LEE. This is an important issue. Thank you.
Mr. HOLDER. Mr. Chairman, if I could just have 45 seconds?
Mr. GEKAS. Yes.
Mr. HOLDER. Perhaps, 60.
We are willing to work with this committee as we move forward, but I would really want to make clear, and maybe my testimony was not as clear as it should have been. We have put forward a proposal. We are not simply saying, trash the act. We are also saying that, in going back to what we had in 1978, that is the proposal that this Justice Department, that this administration, is putting forward.
I would be more than glad to more fully describe it, perhaps to satisfy Mr. Graham.
Mr. GEKAS. We are not intimating that he didn't have something in mind. We need a formal presentation made to us, in letter form if necessary, to articulate exactly where we will be July 1. That is what we are talking about.
Mr. HOLDER. One other thing, if I might.
With regard to the change concerning the Public Integrity Section, one thing I think that people ought to keep in mind is that that is a section now that has career prosecutors in it.
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Mr. GEKAS. Yes.
Mr. HOLDER. It has a career prosecutor who heads it. If you made it a division or in other ways tampered with it, you would probably put at its head a political appointee, something that I think we ought to think long and hard about doing before we tamper with an organization that I have great respect for and that I think has worked very effectively since 1976 when it was created.
Mr. GEKAS. Well, then I take it your proposal will not include segregating the Department of Public Integrity from the Department of Justice?
Mr. HOLDER. No. I think that——
Mr. GEKAS. All right. Well, we will evaluate that. We may differ with you, but we understand that your proposal will include keeping it compactly within the Department of Justice.
Mr. HOLDER. All right.
Mr. GEKAS. With that, we want to thank you.
Mr. HOLDER. Thank you, Mr. Chairman.
Mr. GEKAS. You have been very patient, more so than I. But we thank you for your appearance and for your testimony which will go a long way toward resolution of this issue. Thank you very much.
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Mr. HOLDER. Thank you, Mr. Chairman, and members of the committee.
Mr. GEKAS. This meeting is adjourned.
[Whereupon, at 4:45 p.m., the subcommittee was adjourned.]
REAUTHORIZATION OF THE INDEPENDENT COUNSEL STATUTE, PART I
WEDNESDAY, MARCH 10, 1999
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. George W. Gekas [chairman of the subcommittee] presiding.
Present: Representatives George W. Gekas, Ed Bryant, Steve Chabot, Asa Hutchinson, Lindsey O. Graham, Jerrold Nadler, Tammy Baldwin, William D. Delahunt, Anthony D. Weiner, and Sheila Jackson Lee.
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Staff present: Tom Mooney, General Counsel-Chief of Staff; Subcommittee on Commercial and Administrative Law: Raymond Smietanka, Chief Counsel; Audray Clement, Staff Assistant; Susan Jensen-Conklin, Counsel; David Lachmann, Minority Professional Staff Member; Julian Epstein, Minority Chief Counsel and Staff Director; Perry Appelbaum, Minority General Counsel; Sam Garg, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS [presiding]. The hour of 10 a.m. having arrived the Subcommittee on Commercial and Administrative Law, subcommittee of the full Judiciary Committee, will come to order.
We have fulfilled our self-binding contract of beginning every hearing and every meeting on time since we attained a majority in 1995. So having banged the gavel at or near 10 a.m., we have fulfilled our destiny to try to start every meeting and every hearing on time. The rules of the House compel us to begin hearings only when a hearing quorum has taken its place. That hearing quorum, for the benefit of the audience, is two members.
In this particular case, we have two members here. Mr. Delahunt of Massachusetts and the Chair constitute that hearing quorum, but because of the subject matter involved here, and because of the stature of our guests, we hope that they will indulge us in waiting a few more moments until one or two other members might appear. Their failure to appear in the next 5 minutes will prompt another fall of the gavel, however, and therefore, we now recess to the call of the Chair, but we will begin very shortly.
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I have been informed that the Democrat members are engaged in a briefing caucus of their own in which the speaker is the Secretary of State. We have been requested, begging again the indulgence of our special guests, to even further delay the opening of this hearing until some of the Democrat members might appear. We will accord them that courtesy at this juncture, and hope that no one throws bricks at us. Thank you.
Mr. DELAHUNT. Mr. Chairman?
Mr. GEKAS. The gentleman from Massachusetts.
Mr. DELAHUNT. For the record, since I am here, I don't want anyone to misunderstand that I am a Democrat. I have already been briefed. I don't want any of the witnesses to think that I am just sitting on the wrong side of this aisle. [Laughter.]
Mr. GEKAS. If the gentleman yields, all it means is that you know everything there is to know about Kosovo. [Laughter.]
Mr. DELAHUNT. I will give you a briefing after this is over. [Laughter.]
Mr. GEKAS. Thank you. We will recess again until the appearance of the next member.
[Recess.]
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Mr. GEKAS [presiding]. The time of the recess having expired, with the presence now of the gentleman from Ohio, Mr. Chabot, we will begin a truncated form of this hearing by listening to opening statements by the members. Thus, when the time comes to hear from our witnesses, it may be that two or three others of the panel may have arrived. In either event, we now recognize the gentleman from Ohio, Mr. Chabot, for an opening statement.
Mr. CHABOT. Thank you, Mr. Chairman. I would like to thank Chairman Gekas for holding this hearing today. I am looking forward to working with my colleagues on both sides of the aisle on this very important issue.
The last time we met, we listened to the Deputy Attorney General Eric Holder describe the Clinton administration's newfound disdain for this statute, after they had fought hard to have it reauthorized back in 1994. It seems that many individuals and organizations have found themselves in the same position.
We will hear later this morning from Philip Anderson, president of the American Bar Association. The ABA was one of the principal proponents of the creation of the Office of the Independent Counsel back in 1978. Today they will call for the statute's expiration on June 30, or at the very least, request that Congress narrow the prosecutorial authority created by this law. Most share common concerns.
There are serious questions about an independent counsel's accountability, as well as the unlimited costs of these investigations, and the open-ended mandate created by the language of the statute. Today I am most interested in hearing recommendations as to where we go from here, what we should do next.
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Many, including the American Bar Association, have suggested that the special counsel provision, which was recently used in the Whitewater investigation with the appointment of Robert Fiske, is an acceptable alternative. This statute was also used during Watergate, and resulted in the conviction of two Attorneys General, Vice President, and numerous high-ranking executives. The consensus at that time was that the system had worked well. There seems to be no such agreement about the current Independent Counsel Statute.
I am eager to hear about how the special counsel provision would fill the void left if we allow this statute to expire. Is the current special counsel statute adequate, or will it need to be reworked to add additional safeguards? I am not, of course, saying that it is a foregone conclusion that the Independent Counsel Statute will die this summer. This subcommittee still needs to explore the possibility that the existing law may be revised by making significant changes.
I look forward to hearing the differing views on this issue over the course of these hearings. I yield back the balance of my time. Again, I want to commend the chairman for holding these hearings.
Mr. GEKAS. We thank the gentleman. The gentleman from Ohio has set the tone for the preparatory remarks to be made by most of the members in anticipation of this set of testimonies, and what is to follow in the search for a solution to the problem posed by independent counsel.
We now recognize the gentleman from Massachusetts, if he should care to make an opening statement.
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Mr. DELAHUNT. Well, I will make an opening statement, Mr. Chairman.
I really welcome these hearings. I would like to make an observation. I think that these hearings provide us, in addition to an examination and a review of the history, and our experience with the Independent Counsel Statute, an opportunity to examine the role and the function of the prosecutor within the justice system. So, for those who view the Independent Counsel Statute and our experience with it in a negative fashion, I think there is a silver lining—I would suggest to them that there is a silver lining in this cloud because it does present an opportunity to examine the prosecutorial practices which have caused so many so much concern.
And again, I am not referring simply to the investigation being conducted by Mr. Starr. During the course of the past 20 years, because of the high-profile nature of these cases, the American people have seen the justice system, I think, in a different light, and the role and the function of the prosecutor.
Many have said, and I think correctly so, that the techniques used by independent counsel, while disconcerting and upsetting to many, are not necessarily different from those used by all prosecutors. I guess part of the question for policymakers and Members of Congress is, do we want to change the standards that apply to prosecutors, specifically Federal prosecutors, since that is our jurisdiction? I would, respectfully, ask the witnesses to think about that when they make their own comments.
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Thank you, Mr. Chairman.
Mr. GEKAS. The gentleman yields back the balance of his time.
As we have noted, this hearing is the second that we have now conducted on this important issue. The Senate itself has already engaged in several of the same types of hearings, and more will follow, both in that chamber and in ours.
One thing that strikes me, and this concern that I am about to enunciate was one that I made clear to Eric Holder, the Deputy Attorney General, who testified last week as to the position of the Justice Department, was the end of the statute and its effectiveness as of June 30 of this year. The concern that we expressed at that time, one that still runs through my veins, is, what happens in July 1999?
We will have no statute any longer to look to for the purpose of arranging a solution for conflicts of interest in the Executive branch. On the other hand, we do not have before us some concrete vision of what the Justice Department itself might do within its own mechanisms, be it within the Public Integrity Section or other specially created organs that might arise from within the Justice Department. I see a tremendous hiatus forming over the Capital with respect to dealing with allegations of wrongdoing on the part of high public officials. This is very worrisome to me.
Apropos to that, I want the members to know that we, as they will recall, have urged Mr. Holder to report to us within 30 days of a succinct and specific plan on: how reorganization within the Justice Department, or focus of existing mechanisms in the Justice Department, will deal with that concern that we have expressed; and how the country will know and have confidence that, once this statute is phased out, as most certainly it seems will happen from all indications, its replacement will ultimately gain and earn the confidence of the American people to deal with those problems.
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What we have done is an addition and addendum to the request we made of Mr. Holder to respond to a letter which we will be forwarding to the Attorney General reminding them of what we requested of Mr. Holder, and also to suggest that they would consider certain elements that we feel might be important in fashioning any new mechanisms that they foresee for the Justice Department.
I say these things to prepare our witnesses for consideration of these very same subjective themes, for the purpose of their deliberations as they give us their testimony, and for the question and answer period that will follow the presentation of their testimony. The letter that we have proposed to send and which will circulate to the members of the committee for their co-signature, if they feel it is cogent and worthwhile, has several key features. I will request that the response from the Justice Department should consider the following proposals which we feel should be considered by them:
No. 1, elevating the individual heading the Public Integrity Section to an Assistant Attorney General, subject to Senate confirmation. Now, that is just one idea. I see some trouble in my own mind on asking for a mechanism that would require the confirmation of the Senate.
Two, granting that individual a fixed term that would extend beyond the electoral cycle. Why? Because we want to try to guarantee as much as we can a sense of independence of action on the part of the chief of the next investigation of some high public official.
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Three, providing for the removal of such individual only for good cause.
And four, and this one I think is sort of the best of the lot, and one for which we should be able to use some creative legislation. The creation of an advisory body or commission whose task it would be to work within the Department of Justice to certify a pool of attorneys from whom special counsel would be chosen. I don't know exactly how that would work; this is just ephemeral in our minds; but if we had such a pool of individuals who could be drafted for these positions as allegations arose, it might further guarantee a sense of independence on the part of the work of the next special counsel, whatever name we applied to them, for allegations of wrongdoing in high places.
So, the work of this hearing and the work of this committee is not relegated to simply a set of rationales as to why we cannot continue as we are, but rather to be prepared to supplant it with something in which the American people believe, of course. Just as importantly, any solution must earn the support of Members of Congress representing the people because they are going to have to work with the next administration, every administration, and that relationship between the Executive branch and the legislative has to be one in which investigations of wrongdoing shall be carried on without the heavy hand of Congress, and without any sense of apparent or real conflict of interest that might appear on the other side of that ledger.
So, we are honored to have General Barr and General Civiletti with us. They know what we are talking about, and they also know when we don't know what we are talking about, and that is just as important. I hope that they will not fail to tell us that we are looking at this thing incorrectly, or that our proposed solutions are full of flaws, et cetera. But, I for one, am eager to hear the testimony.
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I yield to the gentleman from New York, who has now joined us, along with the gentleman from Arkansas, Mr. Hutchinson, and the lady from Wisconsin, Ms. Baldwin. We yield to the gentleman from New York for an opening statement.
[The prepared statement of Mr. Gekas follows:]
PREPARED STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
The Subcommittee this morning holds its second hearing on reauthorization of the Independent Counsel Act. At our first hearing, we received testimony from Deputy Attorney General Eric Holder on behalf of the Administration recommending that the current law be permitted to expire and no effort made to extend it when it ceases to be effective on June 30th.
Today, we will hear testimony from two distinguished former Attorneys General, one serving during a Democratic Administration, the other serving during a Republican Administration. Each conscientiously applied the law to situations that confronted them involving conflicts of interest, regardless of their personal attitudes as to the law's wisdom. I think that the experience they had with the law, as well as their conclusions based upon that experience, are representative of virtually every former Attorney General.
We will also hear testimony from the President of the American Bar Association, an organization that was one of the earliest and strongest supporters of the Act. The ABA has recently adopted a resolution modifying its historic position, which the President will explain.
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We will also hear from a distinguished professor of law at Georgetown University who has previously served as an assistant independent counsel and from a former distinguished Assistant Attorney General for the Office of Legal Counsel, each of whom has had unique experience in considering the statute from a scholarly perspective.
As we continue our examination of the statute, we must obviously bear in mind how conflicts of interest must be dealt with when accusations of wrongdoing arise against high executive branch officials. While the Administration has recently proposed that we simply, in effect, trust it when these situations arise, the caution often repeated by President Reagan comes to my mind—''Trust, but Verify!''
Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, let me simply first express my appreciation to you, not only for calling this obviously necessary hearing, but in view of the fact that the Democratic caucus was going a little longer than expected, that we have the Secretary of State there, that you delay the opening of the hearing, at least hearing from witnesses until the Democrats could get here, and I want to thank you publicly for that consideration. In consideration of that consideration, I will not indulge myself with an opening statement, except to say that I am going to be asking questions of the witnesses partially based on a column, an op-ed column in this morning's New York Times, on this subject by Archibald Cox, the former Watergate special prosecutor and by Philip Heymann, who is the Assistant Attorney General in charge of the Criminal Division during the Carter administration and Deputy Attorney General in the first 2 years of the Clinton administration. They make some interesting suggestions along the lines that the chairman was discussing a few minutes ago, and I will be asking some questions based on it. I hope you gentlemen have read this column this morning.
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I yield back the balance of my time.
Mr. GEKAS. The gentleman yields back the balance of his time. We recognize the gentleman from Arkansas, Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman, and likewise, I look forward to the testimony today, and extend greetings to Mr. Barr and Mr. Civiletti. This is an important subject. I think we all have our ideas out there, and I intend to ask some questions about different steps we can take to provide some independence for a special counsel who might have responsibility for investigation of an Executive branch personnel or individual. But I also want to listen to your ideas. So, I look forward to that. I also want to recognize Mr. Philip Anderson, a fellow Arkansan, who will be testifying in the second panel as president of the American Bar Association, and look forward to his presentation. I want to extend greetings to him today.
So, with that, Mr. Chairman, I yield back. I look forward to the testimony of the witnesses.
Mr. GEKAS. Can't you go on a little longer? [Laughter.]
Mr. GEKAS. I am trying to hold a caucus here of my Democrat members. I thank the gentleman. I yield to the lady from Wisconsin. Do you have an opening statement?
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Mr. NADLER. Why don't you go back to the Republican side——
Mr. GEKAS. We did have Mr. Chabot before.
Mr. CHABOT. I could give my opening statement again, Mr. Gekas. [Laughter.]
Mr. GEKAS. We will recess for 2 minutes so I can get this little caucus out of the way.
[Recess.]
Mr. GEKAS [presiding]. The time of the recess, having expired, we have now exhausted the supply of opening statements, except for Ms. Baldwin who will make an opening statement, and we so yield.
Ms. BALDWIN. Thank you, Mr. Chairman. Just briefly, I will share some of the reflections I did at our last hearing which is that I have, along with the gentleman from New York, Mr. Weiner, a different perspective than most of the members of the subcommittee and larger committee. I didn't sit through the last session and become intimately acquainted with the special counsel and Independent Counsel Act as other members did, but rather gained a perspective on the campaign trail, talking with citizens about their impressions, and about I think a very serious fear that our system was in jeopardy, both from the perspective of what seemed to be unbridled expenditures and from the perspective of an ever-expanding jurisdiction. It was communicated over and over and over to me during the last year that something had gone terribly awry.
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Now, there are many proposals, among them, that we allow this to lapse, and what I want is to be able to provide assurances that, if we do so, those concerns of injustice will be addressed with that course of action, too.
Mr. GEKAS. We thank the lady.
Now, we are prepared to, at long last, hear from our distinguished guests. So as not to ruffle any feathers, we will do it alphabetically—Barr and Civiletti—in that order. So, General Barr, please feel free to proceed.
The normal rule is for the written statements, of course, to be accepted, without objection, for the record. The oral statements will be limited, generally, to 5 minutes, subject to the heavy hand of the chairman.
So, we now recognize the gentleman, General Barr.
STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY GENERAL
Mr. WILLIAM BARR. Good morning, Mr. Chairman and members of the subcommittee. Thank you for inviting me today to provide my views on the reauthorization of the Independent Counsel Statute.
I have been a consistent opponent of that statute, and have continuously called for its non-renewal. In my view, the vices of the statute are inherent in the statute itself, the very enterprise of the statute itself, not in the way various independent counsels have handled their job.
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In that regard, I have my list of people who I think have done a good job and those who have done a bad job, and I am sure each member of this subcommittee has their list, and I think our lists may vary. But, in my view, the vice is inherent in the statute itself. I don't want to canvas them in detail today; they have been, I think, masterfully canvassed by Justice Scalia in his descent over 10 years ago. I think when you go back and read that dissent, all of us should be impressed with his impressions and his handling of that matter.
But, what in essence, happens under the independent counsel is you create what, as in the movie ''Dr. Strangelove,'' is really a doomsday weapon. The legal process, the criminal process is a juggernaut, let us make no mistake about it. Once you put that juggernaut on the track and start moving, it is very, very difficult to stop it.
What the statute essentially does is remove the discretion from people who should be in the position to supervise that process, and so it just carries forward a juggernaut to its logical end. It removes the perspective, the judgment, the discretion that should be built into prosecutorial decisions, questions of proportionality, questions of whether alternative sanctions exist. If a government official, an executive branch Cabinet Secretary, abuses his frequent flyer miles, you know, is that really something that—it may be a technical violation of Federal law, but is that something that we are going to prosecute the person over, or are we going to require reparations; and, if significant venality is resolved, perhaps resignation and just deal with it that way?
I have said publicly, you know, accidental technical violations of campaign finance law, making a call from an office, not contumaciously, but unknowingly violating the law, are we going to make a Federal case out of that and prosecute that? Normally, those judgments would be made by a politically accountable official, and the juggernaut would never get started, or if it had been started it would be turned off at the appropriate time.
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But I think that the fact that we have created this doomsday weapon in the IC has had a number of consequences. Not only is it very unfair to the people that are in the cross hair, but I think it has contributed largely to the criminalization of our political life. Instead of having clashes over policies and philosophy, politics, in large degree in this town, has become a question of whether or not you can cast the actions of your opponents in a way that can trigger the Independent Counsel Statute, and then you call the fire of the Independent Counsel Statute down on your political opponents. Now, I have my views of when this game started, and you know, who is responsible for it, but that is irrelevant.
The fact is that what is now happening in our political process, and it is an unhealthy sign when we have all these legal pundits instead of people discussing policy. We have editorial writers, you know, opining as armchair prosecutors as whether certain conduct could be viewed as a conspiracy or an obstruction of justice and things like that, because we have essentially used the criminal process as a political weapon. I think there are a lot of reasons behind that, but one of the reasons is we have this weapon at hand.
Now, another concern I have here is that there is—this is all unnecessary in my view. There is an alternative to having a statutory independent counsel, and it is what we had in this country for 200 years before Watergate, and it is what we had in Watergate. And that is, that the Attorney General does have the ability in appropriate cases to bring someone in from outside the Department, and that is an important point to recognize. The choice here isn't between business as usual, that is, letting a case be handled in the bowels of the Justice Department by nameless people in the Public Integrity Section on the one hand, and bringing in a statutory independent counsel on the other. There are many cases, and probably most cases, involving executive branch officials that are petty things that should be handled business as usual, you know, abuse of car or something like that, of your official car. But in those cases that the public does require some assurance that the matter is going to be handled professionally, without political influence, fairly, thoroughly, the Attorney General can bring somebody in that will provide the public with that assurance. The Attorney General is the person that is in the best position to make that choice because it is the Attorney General who is ultimately accountable, and pays the price if it is a bad choice; ultimately accountable for the selection of the individual and for the conduct of the investigation itself.
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Now, I would suggest that it is wrong to look for a foolproof method. Looking for a foolproof method, in my view, is foolhardy. We could extricate crime in our society, or at least go a long distance, if we put a process in place that will detect and prosecute every violation of law, but will people want to pay the price of such a mechanism? No. We have adequate law enforcement; we can tighten it up a bit, put more resources into it. But we are not trying to create a foolproof mechanism; an adequate mechanism will do just fine.
And I think it is the same with policing the executive branch. We shouldn't be looking for a foolproof mechanism that sacrifices all other values and interest, public interest, to ensuring that every potential violation is detected and tracked down and prosecuted to the nth degree. The price we pay is too high for it; it is unnecessary; we have gotten through as a Nation without it.
I shutter to think what Abraham Lincoln, how he could have managed the Civil War; or FDR manage the delicate process of moving our country into confrontation with the axes' powers if he had an independent counsel hanging over his shoulder.
We can get through this without a foolproof mechanism, and I think the price we pay in deterring good people from going into government service, we will end up with worse executive branch government because of this contraption, not better, because mediocrity will go into the system, people who need the jobs for some reason or another, or have nothing to lose.
Also I think, as Justice Scalia points out in the timidity of the executive branch, we are in a situation now where no one wants to, you know, use the lavatory without getting a legal opinion from somebody; that is how timid people are getting because they are gun-shy because of this statute. So, I think the price we pay for this contraption is far too high.
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The Attorney General can handle these things under existing authority, and there is, ultimately, the political sanction to be used if there is an abuse of the office. I would like to see the watchdog institutions we have in society step up and perform the primary role they are supposed to, not let the independent counsel handle everything, but take the time when you are confirming public officials like the Attorney General or, like, the head of the Criminal Division, and every executive branch official to really make sure we are putting people of integrity in those positions, and then continue vigorous oversight both by Congress and the press.
Thank you, Mr. Chairman.
[The prepared statement of Mr. William Barr follows:]
PREPARED STATEMENT OF WILLIAM P. BARR, FORMER ATTORNEY GENERAL
Mr. Chairman: Thank you for inviting me to provide my views on whether to reauthorize the Independent Counsel statute. I have consistently opposed that statute since its enactment. At the end of the Bush administration I urged the new Clinton administration and the Democratic leadership in Congress not to renew the statute.
It is my view that the vices of the statute do not arise from a failure in execution but are inherent in its very concept and necessary operation. The basic problem is not that particular counsel have abused their office; it is that the whole statute is inherently flawed.
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I do not want to detail today all the particular problems with the statute. Opponents have by now offered a sufficient litany of those evils, and in my view they were best set forth over a decade ago by Justice Scalia in his prescient and unanswerable dissent in Morrison v. Olson. Rather, I want to focus on why the very concept of trying to create a single-mission prosecutor outside supervision of the Attorney General to investigate and prosecute high Government officials is flawed and leads to both the criminalization of our political system and the politicization of our criminal justice system.
Decisions as to whether a particular matter should be treated, in the first instance, as potentially criminal, whether it should continue to be pursued as a criminal matter, and whether it should ultimately be charged as a crime all require the exercise of discretion and common-sense judgment. The statute's whole enterprise is to remove discretion so that no one can stop the train. As long as something can arguably be viewed as potentially criminal, then, under the statute, it must be pursued through the criminal process to the bitter end. Once you have given a government official one duty—and that is to pursue a particular matter through the criminal process—you have taken the discretion out of the system. Do not expect the Independent Counsel to conclude that he should not pursue the one matter he has been charged with pursuing as a criminal violation. In essence, just like in the movie Doctor Strangelove, we have created a criminal law Doomsday machine. Once triggered, no one can stop it, and everyone is trapped by it - the Attorney General, the Independent Counsel himself, the target, and indeed the whole body politic.
The creation of this Doomsday weapon has had several fundamental and pernicious consequences.
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First, it has contributed to criminalization of political disputes. Clashes over political philosophy and policies have been supplanted by the game of how to trigger this Doomsday machine against one's political opponents. Our political discourse has now been channeled into the concepts and categories of criminal law. Politicians and the media who cover politics spend their time conjuring up arguments why the actions of their opponents should be seen as potentially criminal.
Second, at the same time, in instances where-there is a legitimate role for the criminal law in policing Executive branch conduct, the statute has contributed to the politicization of that criminal process. At the same time that the Independent Counsel is too strong; it is also too weak. When the stakes actually become high, and the actual survival of an Administration may be at stake, and the Administration turns to its political weapons, the Independent is too weak to withstand political assault. Traditionally, a prosecutor who is within the ambit of the Justice Department is protected by the Attorney General and the institution itself For a President to take on a prosecutor, he has to take on the Attorney General and the Justice Department. A critical point in Watergate was that when the President turned on Archibald Cox, he had to take on the entire Justice Department, and that changed the entire dynamic.
Third, the existence of the Independent Counsel statute has tended to weaken the watchdog functions of those institutions that we should be primarily relying upon. Vigorous congressional oversight and media scrutiny of important matters play second fiddle to endless ongoing investigations into whether those concedingly serious matters happen to constitute a technical violation of criminal law. The robust oversight functions of congress and the media have essentially been preempted by the criminal process, and these institutions have been reduced to kibbitzers in the arcana of the legal system.
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I believe, there is an alternative way of dealing with those cases which require the Executive branch to investigate itself That alternative was adequate for two hundred years before the Independent Counsel statute was passed and is adequate today. Most allegations of wrongdoing by Executive branch officials involve minor matters and can be easily handled by the Public Integrity Section of the Department of Justice. When an exceptionally sensitive case does arise, the choice we have is not between the independent counsel, on the one hand, and a business-as-usual investigation by the Department of Justice on the other. The Attorney General can and should provide assurance to the public that the matter will be vigorously and properly pursued without political influence. This has been accomplished by the Attorney General bringing in from outside the Department someone who has sufficient stature, background and judgment, as well as reputation for independence, to provide that measure of assurance. The Attorney General has every incentive to appoint the right person for the job - someone who will be fair and yet completely thorough—because it is the Attorney General who pays the price- if the public does not perceive this to be the case. When I served as Attorney General, I used this traditional appointment authority on three occasions—Judge Lacey on the so-called ''Iraqgate'' matter, Judge Bua on the so-called ''Inslaw'' matter; and Judge Wilkey on the House Bank matter. These appointments did not wholly eliminate criticism - there was still sniping from some partisan quarters but, in the end, fair-minded people of both political parties recognized that these were good faith investigations and accepted their conclusions. Relying C)? on the Attorney General's appointment authority achieves all the goals of the Independent Counsel statute without all its vices.
Mr. GEKAS. We thank General Barr.
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We will now hear from General Civiletti, after which we will recess for the purpose of responding to the vote on the floor. General Civiletti.
STATEMENT OF BENJAMIN R. CIVILETTI, FORMER ATTORNEY GENERAL
Mr. CIVILETTI. Thank you, Mr. Chairman, Mr. Nadler, other members of the subcommittee. I thank you for the opportunity to appear before you, and give you my views on this important issue, and I commend the committee and the chairman for its serious consideration of something that is not at all easy.
I am a trial lawyer essentially. I have been a trial lawyer for 37 years, trying civil cases and criminal cases on both sides of the fence, plaintiff and defendant, prosecutor and defendant. I have conducted any number of independent or private investigations and some public investigations where I have been engaged by one form of government or another, one particularly, the House Judiciary Committee of the State of Rhode Island, and the impeachment process of the chief justice at that time of Rhode Island. So, my views are based and come, so that I have full disclosure, essentially, from my experience as a trial lawyer, and partly as my experience in 4 years in the Carter administration in the Justice Department, I have concluded, after myself experiencing appointment of independent counsel, and also examining the 20 or so independent counsels that have been appointed, that the act has structural flaws, inherent structural flaws which make it undesirable, that it should expire, certainly should expire in terms of its present provisions. Essentially what it does, it creates and was meant to create a special situation. But, what has occurred is that irregularity in the process, in the way in which the act is triggered, in the time for the initial inquiry, in the 90 days for the preliminary investigation, it has created unequal justice instead of its intent, which was to create equal justice regardless of high position, and to make sure and assure the American people that investigations of high government officials were conducted fairly and with determination, and they didn't get any biased kinds of breaks.
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But, instead, what has happened frequently, the process of inquiry reports determination of whether or not to appoint an independent counsel, or request the appointment of an independent counsel converts what would, in ordinary criminal proceedings, be an investigation with little publicity into a hubbub of publicity, painting the subject, creating a pre-bias before an investigation is even conducted, shifting issues to the nature, qualifications, basis of the independent counsel themselves rather than the issue, once charged, ''Is this person guilty of this crime or not?''
Another irregularity, as compared to the process of the criminal law, is target first then investigate. In the criminal process, regardless of how high officials are involved, the question is has a crime occurred, or is it likely that a crime has occurred, the investigation then goes about determining all of the circumstances of the crime and trying to find who the target is, or who the suspect is, or the best suspect, and to see if there is reasonable cause to indict, and then sufficient evidence to convict.
But, the Special Prosecutor Act or the Independent Counsel Act kind of reverses that process, and it picks a target, and then, essentially, says, ''Now, what crime did that target—can we find a crime that that target committed?''
Another problem with the act in a similar regard is that ordinarily in the criminal process, whether it is the Department of Justice or State Attorney General or State's attorney in State proceedings, the prosecutor has a balance, limited resources, time, people and money, and therefore, sets priorities and standards, so that the most serious crimes are pursued first, those that harm the people the greatest. Minor crimes, or lesser crimes are treated with plea bargains or non-prosecution or some other mechanism. Here we don't have that at all; there is no judgment, no predetermined judgment as a result of an office's or a national set of priorities, so that there is no safeguard with regard to, as compared to the regular criminal process, there is no safeguard of balance.
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Instead, to some extent and with some independent counsel, I guess, or the risk is, of course, that their success or failure depends upon their prosecuting any crime that can be found, of any nature. That is a concern. Of course, the act has worked reasonably well in a dozen circumstances, my guess is, where there have either been no prosecutions or successful prosecutions, and has worked more like the regular system. But in the other half dozen or more investigations, without regard to the quality or conduct of the independent counsel, the irregularity of the act has destroyed what otherwise has been known as due process.
Now, my suggestion is that there is an alternative, and that alternative is the one that Attorney General Barr referred to and that is the Attorney General's power under, I think, title 28, section 600 or so, to appoint a special counsel, as Judge Bell did in about 1977 for what was known as the peanutgate investigation, where he appointed Paul Curran. Curran, who was a Republican U.S. Attorney out of the southern district of New York, did a superb job, concluded his investigation within 6 months.
And that has occurred time after time going back historically to the 1920's and the 1950's in the Truman era when IRS investigations and scandals were prevalent all the way through Leon Jaworsky, and as you may recall and certainly strikes me because of its connection to Maryland, George Beall and the Attorney General's prosecution of Vice President Agnew at the time.
So, there is an alternative; it may have to be tinkered with; it has some of the same senses of irregularity, but not as many as the present statute, and it is far more or better subject to checks and balances and regularity than this statute.
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Thank you very much.
[The prepared statement of Mr. Civiletti follows:]
PREPARED STATEMENT OF BENJAMIN R. CIVILETTI, FORMER ATTORNEY GENERAL
Mr. Chairman, Congressman Nadler and Members of the Subcommittee:
Thank you for the opportunity to testify about the reauthorization of the Independent Counsel Act. Let me also congratulate this Subcommittee for undertaking this series of hearings to explore the operation of the statute in a thoughtful and non-partisan manner.
The most recent statute authorizing appointment of an independent counsel was enacted in 1994 (28 U.S.C. §591–599) and is due to expire on June 30th of this year. During the course of my service as Attorney General of the United States in the Carter Administration from 1979–1981, it was my duty to request the appointment of the first two independent counsels—then called special counsels—under the first authorization statute, the Ethics in Government Act of 1978.
In addition to my personal experience with one of the predecessor statutes, I have watched the operation of the Independent Counsel Act (hereinafter ''the Act'') closely over the past 20 years. Much has changed in the operation of the independent counsel since the first Special Counsel, Arthur Christy, was appointed in 1979 to investigate whether the President's chief of staff had used a controlled substance. That investigation took six months and cost $180,000 and resulted in a grand jury return of no true bill. Independent counsels, of which there have been 20, now routinely take many years and spend millions of dollars to complete their work often under intense media and public scrutiny. In the past five years alone, seven independent counsels have been appointed and some of them have seen their original mandates significantly expanded. In addition, there has been considerable clamor for appointment of several more independent counsels in recent years.
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Based on my experience and observations, I believe that the Act is hopelessly flawed and cannot be repaired. I, therefore, strongly recommend that it be allowed to expire as scheduled this year without reauthorization in any form. This view is based not on an assessment of the performance of any individual independent counsel or counsels, but instead is rooted firmly in what I believe are insurmountable inherent problems with the structure and operation of the Act. These flaws also lead to the development of a risk of misuse of the Act by fringe political extremists of every persuasion.
My opposition to the reauthorization of the Independent Counsel Act is rooted in five basic points:
1. The Act has failed to accomplish its intended goal to assure equal justice for all, regardless of position.
As originally conceived, the Ethics in Government Act of 1978 was intended to provide equal justice for everyone, regardless of one's high position in government or relationship to anyone in such a position. That statute (and its successors) established a system of investigation and prosecution whenever a conflict, or the appearance of a conflict, arose between the Attorney General and the President due to allegations against either of them or against other high-ranking members or friends of the Administration of which the Attorney General was a part. Supporters believed that this was the best way to assure the credibility of such an investigation while safeguarding the rights of the subjects of such investigations. Instead, the operation of the Act has resulted in just the opposite. For those individuals caught up in its operation, the Act has resulted in suspicion, taint and prejudice, in short, unequal justice. The operation of the independent counsel statute has become unfair and accords those subjected to it far less than the due process normally accorded in the criminal justice system.
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This deprivation of due process exists in the following five ways:
a.
The media and other public attention given to the issue of the appointment, or the request for an appointment, of an independent counsel itself taints the subject even before any investigation is commenced or charges filed. This publicity and accompanying allegations invariably damage the reputation of the subject, often beyond any repair, regardless of the ultimate result regarding appointment. This stands in stark contrast to the normal course of other criminal investigations in which there is usually no taint or bias against the subject at all, unless and until legitimate charges are brought and publicly filed.
b.
In the usual course of events, a crime occurs and then the criminal process is invoked to search for and identify the perpetrator of that crime by investigation and development of evidence. Under the operation of the statutory scheme of the Independent Counsel Act, this process is turned on its head. First the subject of suspected activity is identified and only then are the mechanisms of the Act invoked to search for the crime. This reversal raises the specter of the fate of Jean Valjean in Les Misérables in which Inspector Javert's obsessive pursuit is of the person rather than of justice.
c.
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Individuals involved in the regular criminal justice process (as well as the public) can rely on a certain level of predictability of professionalism, competence and judgment on the part of investigators and prosecutors. These decision-makers have years, and often entire careers, of training, standards and experience that make them suitable for performing their duties. Under the Independent Counsel Act, however, there is no reliable selection process that assures that only the most qualified individuals will be given this tremendous responsibility. The lack of any selection standards creates variable and uneven qualifications and, therefore, no reliable predictability of results.
d.
Ordinarily in the criminal justice system most crimes are pursued with the available and finite resources in accord with the priorities established through experience. Those well-tested priorities demand that those crimes that are most harmful to the public receive priority treatment and vigorous attention. On the other hand, those acts that are potentially criminal but may constitute insignificant conduct are given lower priority and fewer resources and often are not prosecuted at all. The Independent Counsel Act allows for no such prioritization as ordinarily required by the need to balance the nature of the conduct against limitations of resources and time by career professionals. Disparity in treatment, instead of being limited, is almost unchecked.
e.
Finally, even when an independent counsel does not bring charges, the Act requires that a report be filed with the court. This report requirement, and the attention it generates, frequently subjects those individuals mentioned in it to serious criticism and damage despite the fact that they are not being charged with any offense. This sort of prosecutorial behavior would never be tolerated in the course of the usual criminal process.
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Individually and collectively, these five points persuade me that the operation of the Independent Counsel Act denies those caught in its machinery with the due process of law to which every citizen is entitled and that this represents a failure of the Act to accomplish one of its principal intended purposes. It was intended to ensure that high-ranking officials did not get special treatment, not to subject them to unfair and unequal treatment.
2. The Act is subject to manipulation and abuse by irresponsible partisan politics.
The nature of the matters and individuals potentially subject to the Independent Counsel Act has made it vulnerable to abuse by the irresponsible. Partisan fringes of any and all political persuasion may use the Act to generate publicity and clamor intended to harass or embarrass political opponents by making allegations of criminality, often with little or no foundation. The effort to remove the politics from these investigations and prosecutions by appointment of someone ostensibly ''independent'' has failed. It has merely resulted in the shifting of the political pressure points to other places in the process such as to whether or not an independent counsel should be appointed as well as to the identity of the counsel and the conduct of his investigation. This politicization can do great mischief in a criminal process. By comparison, the ordinary criminal process is usually free of such routine attempts at politically-motivated manipulation
3. Use of the Act has expanded to conduct not originally intended to be covered.
Coming on the heels of the substantial corruption represented by Watergate, the Act was intended to provide a mechanism to address major crimes of corruption of government functions by high-ranking officials and those very close to them. Over the years the use of the Act has vastly exceeded its original purposes, both as to the kind of conduct and the type of individuals that have been the subject of independent counsel investigations. Clearly, the Act is no longer considered constrained to those purposes for which it was originally legislated.
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4. The Act provides for little or no accountability for Independent Counsels.
The Act provides for little or no accountability for the independent counsel as compared to the continual series of checks and balances to which actors in the rest of the criminal justice system are subject. Although technically subject to the Department of Justice policies, the independent counsel is not subject to any of the usual restraints or restrictions imposed upon federal or other investigators and prosecutors. There is very little meaningful limitation on an independent counsel in terms of scope of conduct that can be investigated or crimes that can be charged. There are no limits in terms of length of an investigation or available resources. Even the conclusions they reach are not subject to accountability or checks. The authority given the Attorney General to remove the independent counsel for ''good cause'' is too limited and too politically impractical. It provides for what, in effect, is a death sentence without acknowledging the reality that it would be almost impossible to impose, even if called for.
5. There is a better way to address conflicts of interest.
Finally, I believe that the Independent Counsel Act can be allowed to expire without fear that we will have no ability to deal credibly with allegations against high-ranking government officials because there is a reasonable alternative. When there is a conflict between the Attorney General and the subject of a criminal investigation, there can and should be appointment of a regulatory independent counsel in the Department of Justice by the Attorney General. Authority for this appointment exists under current Justice Department regulations (See 28 C.F.R. 600) and has been successfully invoked in recent years. Two examples include Attorney General Barr's appointment of a regulatory independent counsel to investigate matters related to BCCI and Attorney General Reno's appointment of Robert Fiske as regulatory independent counsel in Whitewater during the period in which the statute had lapsed. These are just two examples of the history of successful prosecutions under this model going back many decades to the Teapot Dome scandal in the 1920s, the investigation of the IRS in the 1950s, the Watergate investigation by Leon Jaworski and the investigation of the so-called ''peanut scandal'' by Paul Curran who was appointed special counsel by Attorney General Griffin Bell. Also, let us not forget that it was Attorney General Elliot Richardson's Justice Department that prosecuted Vice President Agnew before there was an independent counsel statute.
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In closing, let me say that in 1988 the United States Supreme Court, in the case of Morrison v. Olson, 487 U.S. 654 (1988) ruled that the independent counsel statute was constitutional. But we should all acknowledge that just being constitutional does not necessarily make a statute a good law or a wise policy. The Independent Counsel Act is a flawed law and an unsound policy. It cannot be saved by modification at the margins. It should be allowed to pass into the province of legal historians.
I would be happy to try to answer any of your questions.
Mr. GEKAS. We thank you, General Civiletti. We ask your indulgence to remain in the chamber until we return from the votes that we have to cast on the floor, because we do want to ask you for your advice and for some answers to questions that are fomenting in the minds of the members.
With that, we recess until 11:10 a.m.
[Recess.]
Mr. GEKAS. The hour of 11:10 a.m., having arrived, this hearing will return to full session, pending the arrival of another member to make it a hearing quorum.
[Recess.]
Mr. GEKAS. The time of the recess, having expired, and noting the attendance of the gentleman from Arkansas, Mr. Hutchinson, together with the Chair, the quorum having been established, we will proceed with a round of questions for our distinguished panelists.
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The Chair will indulge itself and allot itself the accustomed 5 minutes.
General Barr, I was struck by the fact that you feel that—you practically said that we ought to treat the allegations of wrongdoing almost on an ad hoc basis, not as soon as there is an allegation, immediately go to see what kind of prosecutorial mechanism we can establish, but rather to determine in kinds of discretionary ways the severity of the allegation, et cetera.
What was brought to mind immediately to me was the allegation against Hamilton Jordan of controlled substance misuse, or something like that, during the Carter administration. Of course, we should probably ask Mr. Civiletti on this. But, looking back on it and learning of the quick disposition of that, that was a teapot or one that didn't quite rise to the level of something that should have been investigated. Do you agree that that is the kind of discretion that ought to be applied as to whether a case like that should have ever been the subject?
Mr. WILLIAM BARR. I don't recall enough about the details of that, but that strikes me as the kind of case that could have been handled within the Department. As I see it, there are cases that can be handled by career prosecutors in the Public Integrity Section, but there are cases and the political system itself will be the judge of which those cases are, which cases fall into this category, where the Attorney General I think should bring someone in from the outside that has independent stature, experience, a broader perspective, and sort of an independent power base, if you will, to supervise a case. The political process will dictate when that is appropriate, and will also assure that appropriate people are appointed.
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So, when Janet Reno appointed Fiske from New York, I thought that was an appropriate decision. I did this three times during my own tenure on the so-called Iraqgate matter, which was a crock, and I didn't feel that it amounted to something that an independent counsel under the statute should look into. Nevertheless, I brought in Judge Lacey. I had asked Attorney General Civiletti, actually, to come in to do that, but he was tied up on a matter in private practice.
Mr. GEKAS. He was impeaching somebody. [Laughter.]
Mr. WILLIAM BARR. I also did it on the so-called Inslaw matter, which was even more of a crock because no one could ever understand what that one was about, but brought in Judge Buoa to do that. These were all people—and then on the House bank matter, Judge Wilkey. These were people who could come in and provide assurance that these matters were going to be handled without political influence. They conducted the investigations expeditiously, and carping did not disappear; there was still sniping, but basically, the job got done and we moved on.
Mr. GEKAS. You just reached out and found one of these individuals who was willing to serve?
Mr. WILLIAM BARR. Correct.
Mr. GEKAS. What do you think of the idea of having a kind of a board, perhaps, made up of American Bar Association membership or a special division of that organization to have a pool of people to whom the Attorney General can look for plucking one or two of them for these special tasks?
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Mr. WILLIAM BARR. I would be opposed to that. I think it is an unnecessary embellishment in the sense that—I think the Attorney General has to exercise their judgment, and discretion upfront as to who the appropriate person is. Frankly, someone who spent the time getting onto one of these boards, I wouldn't necessarily think is the right person to appoint for one of these things. But, the Attorney General, I think, has to be—ultimately is responsible for the decision that is made, and also for the ultimate conduct of the investigation. And therefore, I think the Attorney General should be able to pick whomever they feel is the proper person, someone who isn't going to be a headhunter but at the same time, someone who will be thorough, and fair.
Mr. GEKAS. How did you get to Judge Wilkey?
Mr. WILLIAM BARR. I knew Judge Wilkey; I knew General Civiletti; I knew—and when General Civiletti couldn't do it, I had heard about Judge Lacey. He had been supervising union issues up in New Jersey.
Mr. GEKAS. So, you believe the Attorney General can simply, within its own discretion of the office, look to the world of the bar, and select judicious individuals.
Mr. WILLIAM BARR. Correct. I think it is a mistake to go to people who have one agenda, or to create an office that has a narrow agenda. I believe the kind of person who should be supervising these cases is someone who has broad-gauged experience, experience in the Department, experience with the prosecutorial function, experience beyond that, and who comes in just for that assignment, and is still subject to the supervisory authority of the Attorney General, although perhaps, not removable except for cause.
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Mr. GEKAS. General Civiletti, what do you think of the proposition that we are contemplating of having, just as the Criminal Division head, an Assistant Attorney General, is subject to confirmation, the choice of the Attorney General to head a particular investigation as special counsel confirmable by the Senate?
Mr. CIVILETTI. I don't think it hurts much; I don't think it helps much, because the head of the Criminal Division—which I was the head of the Criminal Division for about a year and a half—really is the decisionmaker with regard to prosecutions and investigations. Ordinarily, he leaves it to the section chiefs, whether it is the Fraud Section or the Public Integrity Section, or whatever, but the Assistant Attorney General routinely and regularly has the authority to initiate, to insist on prosecutions, to reverse decisions, and that Assistant Attorney General is already a presidential appointee, and goes through the confirmatory process.
Mr. GEKAS. The time of the Chair has expired. We turn to the gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you.
I want to read some excerpts from today's op-ed piece by Archibald Cox and Phil Heymann, and ask you to comment on that first. It says, ''The current statute's faults are twofold. First, politicians belonging to the party not in control of the executive branch are prone to demand the appointment of independent counsels for political reasons, as bombs to toss into the ranks of their opponents. Second, the relentless investigation directed at individuals,'' which you talked about before. It talks about ''Similar dangers would arise if we relied upon special prosecutors appointed by the Attorney General.'' I would like your comment on that.
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Then he says, ''The best way to avoid these pitfalls is to assign the investigation, and prosecution against high officials to pre-existent, permanent unit of government, and to couple them with strong safeguards against outside influence. The most suitable unit is the Criminal Division,'' and then they suggest the following safeguards: ''one, that the decision of the Assistant Attorney General, whether they involve starting an investigation, or ending one—must, with narrow exceptions, be final. Indeed, under Mr. Bell and Mr. Civiletti, all decisions concerning the prosecution of a particular case were ordinarily free from review, even by the Attorney General himself. Second, if the Attorney General believes the prosecution's decision is plainly wrong, he or she should be able to reverse that decision, but only in the form of a public statement, giving the reasons.''
He then says, ''Mr. Bell strengthened the wall against influence by forbidding any communication about specific cases between prosecutors and Members of Congress, congressional staff members or White House officials. Any critical information could be communicated only through the AG, or to one of the most senior deputies. This rule should be expanded in any case involving the President, Vice President or Cabinet member, to bar even communications from the Attorney General, Deputy AG, or Associate AG, except to convey information like the involvement of sensitive, international relations. The rule would exclude from any role in prosecution virtually all Justice Department officials who might be personally or politically close to the President or other high-level officials under investigation.''
One further safeguard for high level cases, they suggest, ''Whenever the Assistant AG begins seriously to consider terminating an active investigation, he should be required to consult the panel of three of his predecessors, including at least one who was appointed by a President of the opposing political party. After that consultation, the Assistant AG should decide, but if he decides to discontinue the investigation without further action, he should be publicly required to state his or her reasons.''
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Could you comment—do you think it would be a good idea to leave this situation to the Criminal Division with or without these safeguards; what do you think of these safeguards; and, what do you think of the comment that a special prosecutor appointed by the Attorney General has the same basic problems as an independent counsel appointed now? In other words, maybe we should get rid of this special prosecutor appointed under section 28–2, under section 28, leave it to the Attorney, to the Assistant, to the Criminal Division with the safeguards outlined here, and perhaps some others. Could you just comment on both of them, Mr. Barr, first?
Mr. WILLIAM BARR. I am opposed to those recommendations, both elements. First, I think the supervision of cases should be done by someone who is not, does not have a narrow focus, but is broad-gauged, and not necessarily and exclusively coming from it from a position as prosecutor. All prosecutors have to be supervised, in my opinion.
Mr. NADLER. This doesn't leave it, then, supervised by the Assistant Attorney General in charge of the Criminal Division?
Mr. WILLIAM BARR. I think the Assistant Attorney General is a prosecutor, too, but requiring a unit with narrow focus, and giving them ultimate responsibility, in my view, is not the way to go.
And also, I think there are cases where you cannot count on the people in the Department of Justice, you know, the line people, or even the Assistant Attorney Generals to provide a level of assurance that this case is going to be thoroughly handled. You sometimes get offices that go after people; prosecutors are known—can sometimes become sort of head hunters; they get very focused, and are very vigorous and zealous. At the same time, I have seen cases where I think career prosecutors are trying to please their supervisors, maybe by not bringing a case, or maybe by bring a case.
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I think, ultimately, they have to be supervised, and I think they have to be supervised, ultimately, by someone who has a broader agenda, and is broader-gauged than just someone in charge of public integrity.
I think the idea of isolating, and providing insulation, for that reason, is bad. In my own experience, I have seen line career prosecutors go after political officials of the other party, in my case going after high level Democratic officials. I thought they were—had lost perspective and were on a vendetta, and I shut the case off. I would shut the case off for a Republican if people objected to it and thought it was partisan, let the chips fall where they may. There is a political process that imposes a check, but I would not say that just because a career prosecutor thinks something should pursue, we all should, you know, take that as gospel.
Look at Attorney General Reno's situation in the campaign financing. She didn't bring a big wig from the outside in; she brought in LaBella, a career prosecutor from California, very highly regarded in-house guy. Now, she ultimately disagreed with his conclusion. He said, ''You need an independent counsel.'' She disagreed with that conclusion, and overrode him. Now, under this approach, in this editorial, whatever LaBella said would be gospel. Attorney General——
Mr. NADLER. No, she would be able to override him, but there would be another board—and she would have to publicly state her reasons. Cox and Heymann say that appointing a special prosecutor, even under the existing statute, is still subject to the fact that politicians belonging to the other party are, then, prone for political reasons, to ask for a special prosecutor to be appointed just as a bomb throwing, and, ''second, the appointment itself, and the formation of a special staff dedicated to a single investigation encourages the relentless pursuit of every avenue, however far afield that might lead to the conviction of the high official. This almost irresistible tendency is encouraged by the fact that independent counsels have no way to demonstrate success or even to justify their existence, except for indictment, impeachment and conviction, and similar dangers would arise if we relied upon special prosecutors appointed by the Attorney General.'' Would you comment on that?
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Mr. WILLIAM BARR. Well, first that hasn't been my—first, the divisive Attorney General appointment goes back in history. It is what we used up until Watergate; it was used in Watergate. So, it is not as if we haven't had experience with it, and yes, there are times where issues become politicized, but it is not the automatic doomsday weapon that we see with the IC Statute.
My own experience with direct deployments, I didn't have that problem. Did Bill Safire and other pundits attack me for doing it? Yes, but life went on; I survived the attacks. You know, you are never going to satisfy everybody. Basically, fair-minded people on both sides of the aisle said, ''Yes, we are satisfied, this was a good investigation.''
Mr. NADLER. Mr. Chairman, could I extend for just one further question?
Mr. GEKAS. Without objection.
Mr. NADLER. Thank you. Mr. Barr again, is it your testimony, then, that going back to the previous system, just getting rid of this statute, and do nothing other than what we had in the previous system, or is it your testimony that we should make some changes to the previous system?
Mr. WILLIAM BARR. I think there are a couple of changes that could be made to fortify the current Attorney General, the Attorney General's power.
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I know Congressman Hutchinson was working on some proposals that would allow people to formally request the appointment of someone by the Attorney General, and have the Attorney General explain why that was not appropriate. Statutory protection in terms of not being able to be removed by the Attorney General, except for cause, and also other issues of conflict of interest.
When I went out to try to find people to bring in like General Civiletti to investigate cases, or supervise their investigation, you run into conflict—the general conflict of interest statute makes it virtually impossible for someone to come in from practice. That is why the current law deals with that in sections 594(i) and (j), and I think that those provisions should be adopted to give the Attorney General more flexibility in going out, and bringing somebody in.
I think, also, you have to address the issue of attorneys' fees. When the Justice Department investigates someone, generally they don't get their attorneys' fees. Under the statute, there is a provision for paying people their attorneys' fees if they are not indicted. I think the committee should take a look at that issue, particularly where the thing being investigated relates to public duties, the allegation relates to public duties. Like in any corporation, if you are investigated and charged, the corporation will indemnify you for your official acts, as long as they turn out to be criminal.
Mr. NADLER. Thank you very much.
Mr. GEKAS. The gentleman's time has expired and expired and expired. We turn to the gentleman from Arkansas, Mr. Hutchinson, but we want to acknowledge the attendance of the gentleman from Tennessee, Mr. Bryant; the gentleman from South Carolina, Mr. Graham; the gentleman from New York, Mr. Weiner. With that, we allot the customary 5 minutes to Mr. Hutchinson.
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Mr. HUTCHINSON. Thank you, Mr. Chairman. I am grateful for the testimony of both Mr. Barr and Mr. Civiletti. I am in agreement with your testimony today regarding the difficulties of the current independent counsel law.
I want to focus on what we can do to strengthen the inherent powers of the Attorney General to appoint a special prosecutor. Mr. Barr, I think you outlined some suggestions that you had, primarily, to free up the conflict of interest provision so it is easier to bring on someone in a special prosecutor role. You cited 594(i) and (j), was that 28 USC or what——
Mr. WILLIAM BARR. I believe so, wherever the statute is codified. I think it is 594(i) and (j) are the provisions that provide a specialized conflict of interest provision relating to independent counsels, and I think they should be carried over for whoever the Attorney General appoints. Otherwise, they are special Justice Department employees, and they are subject to all the conflict of interest and post-employment restrictions and so forth that a Government employee would be.
Mr. HUTCHINSON. Mr. Civiletti, you made a point that I have made, and I think what is very important is that whoever the prosecutor is in a conflict of interest circumstance, whether it is an independent counsel or a special prosecutor, that they have the ordinary and usual pressures upon them that serve as checks and balances in our system. Or that they have other cases that they are handling; that they have other priorities; and they have to decide what the priority for prosecutions are. Also, our natural pressure is not to extend an investigation too long. I think you phrased it in a different way, but I think we are speaking of the same thing.
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Mr. CIVILETTI. Yes.
Mr. HUTCHINSON. If you have the old special prosecutor law, how do you encourage those type of natural pressures if you appoint a special prosecutor?
Mr. CIVILETTI. If you are appointing an independent counsel under the statute, the only way to get something like a regular prosecutor's pressures and considerations is to appoint someone who has that kind of experience and knowledge and professionalism so that you would hope that they would transfer that to the operation of the independent counsel's office.
If you are appointing a special—if the Attorney General is appointing, under 28–600, a special counsel because of a conflict of interest that doesn't fall within the act or if the act expires, then you can have a little more regularity because there is, although modest, a supervisory role of the Department of Justice over that special counsel, and you would hope, since it is an officer of the Department of Justice, that the person would become, if not already familiar, would become very familiar with the prosecutorial priorities, the resource questions.
Mr. HUTCHINSON. Let me ask it in a different way. Do you believe that you are better off having a special prosecutor, such as Mr. LaBella, who has other prosecutorial responsibilities (I guess you could pull him off and say, ''This is your sole responsibility now to be a special prosecutor in this particular case'') or do you think he should have other responsibilities, like pulling the United States attorney out who has other responsibilities, but he also has this particular case. Which one is a better direction to go?
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Mr. CIVILETTI. It is a matter of balance. As Mr. Barr was saying, I think that it depends on the time, the nature of the case, the circumstances, whether you are better off with—for example, I appointed Dick Blumenthal, out of Connecticut, as the special counsel for an investigation of leaks in the Abscam case. He was outside the Department of Justice proper, and had a lot of integrity and was a former newspaper reporter so he was ideal for that kind of assignment.
On the other hand, Judge Bell appointed Paul Curran, who was in the opposite party, and for the peanutgate investigation.
So, it depends on all the circumstances.
Mr. HUTCHINSON. If you look at the current special counsel provisions, and the inherent power of the Attorney General, I have suggested that there be a consultation provision for Congress where Congress can ask the Attorney General that if there is a conflict, and we believe there is a conflict, that the Attorney General respond within 30 days as to why there is not a special prosecutor appointed in a particular circumstance.
The second thing that I have suggested is that, in the event a special prosecutor is appointed, that that special prosecutor not be discharged except for cause. This would assure some level of independence.
One, do you agree with those, and two, are there any other tweakings that you think should be done for the special prosecutor provision that could strengthen it, but still stick within that system?
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Mr. CIVILETTI. I agree with the second point that you made with regard to the special counsel.
The first point about, if I understand it correctly, about requesting the special counsel be appointed by the Attorney General, and then if the Attorney General resists, reporting to Congress as to the reasons for the resistance and so forth, I am not much in favor of that because, by nature, that becomes public, and the reasons for non-prosecution damage the individual anyway.
Congress does not have prosecutorial authority. If Congress wants the Attorney General to, under certain circumstances, to appoint a special counsel, then don't request it or request a report, say, ''You shall appoint a special counsel under these circumstances, where there is a conflict of interest.'' In effect, take title 28–600 and make it a mandatory statute that the Attorney General has to operate under law, or something similar to that.
Mr. HUTCHINSON. Then you get into what triggers it, and what level of proof. I mean, I would——
Mr. CIVILETTI. Well, what triggers it now is simply, essentially conflict of interest that either pervades the Attorney General's office or pervades the Department of Justice.
Mr. HUTCHINSON [continuing]. Which makes the Attorney General politically accountable for whatever decision she makes. Mr. Barr, do you have a comment on that?
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Mr. WILLIAM BARR. Well, I agree with General Civiletti that, I guess, theoretically and in principle, I am opposed to the provision that sort of insinuates Congress into that role. However, as a practical matter, it is going to happen anyway. Committees, the Judiciary Committee particularly, will sign letters and petition for the appointment. That is going to happen, and——
Mr. CIVILETTI. They don't need the law.
Mr. WILLIAM BARR [continuing]. They don't need the law to do that. Basically, they hold their press conference, demand the Attorney General do it, and the Attorney General then has to offer an explanation to the extent they can. To the extent the explanation is controlled by the political situation and the rights of the person, you know, the potential target.
So, I think in the real world, this happens and will continue to happen, and therefore, if Congress puts this in a statute, I am not going to, you know, have a tantrum over it.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
Mr. GEKAS. The time of the gentleman has expired. We recognize the gentleman from New York or from Massachusetts, Mr. Delahunt, in order of their appearance at this hearing.
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Mr. DELAHUNT. Thank you, Mr. Chairman. Let me, just at the outset, say that I tend to agree with both of your testimonies, I think particularly that of Attorney General Barr.
In response to the questions posed by my friend from Arkansas, and your comments regarding the insinuation of Congress into this process, this goes to the very heart of your statement earlier about the inherent flaws in the Independent Counsel Statute creating a criminalization of public discourse in this country, and I think, to some extent, this happens in any event. I think to create a mechanism that puts Congress into the mix is a mistake.
I also think, and I would be interested in both of your opinions about the role of congressional oversight upon the conclusion of investigations. Might it not be beneficial in serving as a check on independent counsels potentially abusing their authority, or not doing an adequate job? I don't know if you would agree with me but that, in my opinion, is the role of Congress—to hold oversight hearings into the conduct of the investigation, once it has concluded, so as not to interfere. That serves, if you will, as check on potential abuse as well as assurance to the public that the investigation itself will be conducted in a fair but vigorous and exhaustive fashion.
Just a suggestion, and again, I have to disagree with my friend from Arkansas about putting in the statute congressional involvement along the lines that he suggested. Mr. Barr, Mr. Civiletti?
Mr. WILLIAM BARR. I feel that one of the casualties of this over-reliance on an independent counsel mechanism, and what I think is the criminalization of the political process, is that the institutions that should be our primary watchdogs have somewhat atrophied in that role. I think a vigorous congressional role in the appointment process, when they advise and consent on officials, and also in the continuing oversight function and, to some extent, the media watchdog function—somewhat atrophied, and everyone sort of stands back and kibitzes as to whether a particular conduct actually happens to meet a technical legal definition instead of whether or not conduct—you know, the impact of that conduct on our policies and on the polity.
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Now, in terms of the oversight after the fact, I certainly don't have any objection to Congress exercising that vigorous oversight after.
Mr. DELAHUNT. My sense is that, if we did it, and if this statute should lapse and Congress exercised—this committee exercised its oversight responsibility, the special prosecutor or independent counsel, whoever was conducting the investigation, would have that in mind. It would serve to subliminally raise the awareness of those who accepted these very unenviable tasks that, at some point in time, they would have to answer.
Mr. CIVILETTI. When I was an assistant U.S. attorney in the early 1960's in the United States District for the District of Maryland, we prosecuted successfully two Congressmen for obstruction of justice for interfering with the investigation and criminal process. That probably tainted me at an earlier time to the view that the American people want a criminal justice system where politics do not determine whether somebody is prosecuted or not prosecuted.
Mr. DELAHUNT. Right.
Mr. CIVILETTI. They want it on the merits, fair and square. So that it seems to me the role of the Congress is to set the laws and say, ''Here is what we think ought to be prosecuted, and investigated and oversight: if your priorities are right or not right; what are your priorities? What is your success rate? Why isn't it greater?'' But to avoid going into depth in individual cases out of the Department of Justice and putting career prosecutors at risk of their decisions by being second-guessed publicly in the forum. So I think you can accomplish the oversight—I would prefer it to be on a regular basis rather than oversight of independent counsel.
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Mr. DELAHUNT. Uh-huh.
Mr. CIVILETTI. Because I think it doesn't matter much.
Mr. DELAHUNT. Well, I guess I have a little bit of time left. I think that Attorney General Barr stated it really well. You indicated that you shut down an investigation of an individual because you reached that decision.
In the end, I think really what we are talking about is restoring confidence in the Attorney General to make those decisions based upon the tradition of sound, ethical, prosecutorial discretion, and taking the heat, and that is really what it is about.
I am concerned about possible tinkering if this statute should lapse with the statutory independent counsel, and creating the same problems; in other words, politicizing it. Because, over a period of time, as you gentlemen both well know, you in your previous lives as Attorney General, are going to be measured during the course of time, in terms of your integrity, your competence, and your ethics, and I think that that system worked and worked well.
Mr. WILLIAM BARR. Right. I think the important difference here is what are the consequences with the statutory versus an Attorney General-appointed prosecutor. And you put your finger on it in this sense, where political pressure builds on the Attorney General, and the appointment isn't dictated by the statute, the Attorney General can either take the heat directly because there is no automatic trigger that takes it out of the Attorney General's hand—just say, ''This is nonsense, I am not going to prosecute someone for this, impeachment,'' okay, and take the heat.
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Or, if it is something like Iraqgate where a lot of political pressure built up because it was an election year, then I felt that if I said ''no,'' it was unfair to everyone involved because it would just continue to fester, and so I would look to someone like General Civiletti to come in because he and I together could take the heat. And maybe enough people over here would say they are satisfied.
But with the Independent Counsel Statute, it is a juggernaught and the consequences are—no one can stop it and take the heat; the thing is launched. That is the consequence of having the IC there.
So, Congress will always interfere and the price you pay, though, with an IC Statute is a juggernaught. The price you pay with the Attorney General doing it on their own is judgment, as long as you can take the heat. Whether or not you put it in a statute that Congress can kibitz doesn't bother me very much. I prefer it not to happen, but it is a little bit like saying, ''I wish it didn't rain.''
Mr. DELAHUNT. Right, or snow. [Laughter.]
Mr. GEKAS. The time of the gentleman has expired. We turn to the gentleman from Tennessee, Mr. Bryant, for 5 minutes.
Mr. BRYANT. I thank the chairman for continuation of this very good hearing. I thank the two distinguished gentlemen including my former boss, Attorney General Bill Barr.
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I have looked back at this law and back at the, I guess, the origins and the context of the day, and I think that I agree with you this day that, perhaps, this statute is helplessly flawed.
But looking back years ago, in that day, it was, I guess, the best thing since sliced bread. We had the administration, the President, the public interest groups like the American Bar Association, all types of people saying that we needed this. And then, even as recently, I guess, as 1994 we had this Attorney General Janet Reno and this President saying that we needed it and we reauthorized it.
Something has happened, obviously, in the last several years that has, at least, given the perception that this IC law is helplessly flawed. I would suggest that what we have seen over the last few years, especially the last couple of years, through a combination, perhaps, of media and just the unparalleled scrutiny that we have today, particularly with television 24 hours a day almost, analyzing, critiquing, together with different people with different agendas, is, for instance, a different level where the independent counsel has been attacked, personally attacked. Without that counsel being able to appropriately and adequately respond to these attacks over a period of time, a sustained attack not only on the work that the independent counsel did, but the independent counsel himself. I understand all of this is politics; I understand people have to keep their TV shows on; I understand people have to sell their products and things like that.
There are people who actually don't like being prosecuted by an independent counsel, but I guess we all agree that, perhaps, we can look back at the preexisting law, and to me, that seems to provide some protection, some insulation from some of this. Because, as I think General Barr mentioned, it comes down to that particular Attorney General being able to stand in the kitchen and take the heat in these types of situations because you are always going to have the political power, political muscle, attempting to take advantage of a situation.
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But now today, we have the added scrutiny of just unbelievable media attention to these kinds of things. But, if we were to go back, I think we have the power, the credibility of the Department of Justice and that particular Attorney General as a shield, again, as some type of insulation that might could stand up a little bit better, and to be able to handle that attack. Because I just think the situation as it exists now is probably unacceptable.
I am not inclined to want to reauthorize the law. I thought about different ways, and I know my chairman is sending a letter forward to the Attorney General suggesting, perhaps, some further explanation of their testimony here. But it just seems to me, once you have got someone who does not want to be prosecuted and who, perhaps, some of these ideas of term limits or limited scope or, perhaps, keeping the independent counsel in full-time position versus allowing them to go back and practice would, somehow, move this process along, but yet we face the possibility of stonewalling and other issues.
I know I am rambling here, but I am expressing my thoughts, and I think, perhaps in many ways, agree with your testimony. I think you are both saying you have looked at it and the current independent counsel law cannot be remedied sufficiently; is that correct, General Civiletti?
Mr. CIVILETTI. Yes.
Mr. BRYANT. General Barr?
Mr. WILLIAM BARR. That is my view, too.
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Mr. BRYANT. Is there anything, and I know you have alluded to this and I am in another committee, in and out, trying to cover both of these. But, is there anything we can do to enhance the Department of Justice, the Attorney General's ability to handle these types of investigations to, again, protect it, the Department of Justice, from these attacks of, perhaps, lack of trust that is growing in society, and that there is a conflict of interest there and the Attorney General cannot handle this, are there any other mechanisms we can put into law that would—perhaps you could submit something later if you think of it, but have you covered some of these ways we can make these prior existing situations stronger?
Mr. CIVILETTI. I think that Bill mentioned that the removal of the ordinary disabilities that apply to an officer of the Department of Justice for the special counsel enhances the opportunity of getting the right person to take those jobs if the disabilities are not so horrendous in terms of conflicts of interest or having to give up practice or whatever it happens to be.
Mr. NADLER. Excuse me, that is 594(i) and (j) you referred to before?
Mr. CIVILETTI. I'm sorry?
Mr. NADLER. That is 594(i) and (j) you referred to before?
Mr. CIVILETTI. Yes, right. If there are any other disabilities that they don't address, they could be expanded.
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Mr. WILLIAM BARR. I would just say, in terms of strengthening the institution of the Department of Justice, you are never going to get away from occasional perceptions that it is inappropriate to let the Department handle a particular case on a business-as-usual basis. In terms of building up the institutional capital of the Department, I think Congress should be paying attention, a lot of attention, to who is confirmed for PAS positions and ensuring that quality prosecutors are being hired throughout the Department on a non-partisan basis.
I also think, and I mentioned this in my statement, one of the reasons I am opposed to the Independent Counsel Statute is because on those few cases that are very serious and should be handled criminally, and the dogs are on the trail and it could be the political fate of an administration, I think the independent counsel separated out of the Department is too weak. They can be, then, attacked. They don't have the institutional basis to defend themselves.
Think of what would happen in the Watergate case if Archie Cox was totally isolated, had not been selected by the Attorney General and was under attack by Nixon. You know, Nixon may have been able to take the guy out. As it was, he had to decimate his own Department of Justice to take him out, with big consequences for them.
And so, I think the appointment and the bringing into the Department on a temporary basis, someone to supervise, actually—you know, from the standpoint in a good case, or a case that should be pursued, strengthens the office of independent counsel and ensures it will be pursued.
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Mr. BRYANT. I think if I might make one quick comment to your last statement, ''Think about what would have happened,'' I know there are some that would, in this room, that would disagree with me.
But I think we have a perfect example of how it did work in this particular case in the unprecedented attack on Independent Counsel Ken Starr. Thank you.
Mr. GEKAS. The time of the gentleman has expired. We turn to the gentleman from New York, Mr. Weiner, for 5 minutes.
Mr. WEINER. Thank you, Mr. Chairman, and I would just say to my good friend from Tennessee, you don't have to look far to find someone who has changed their views on this issue, and part of that is because there has been—this is not the first time we have encountered the same problems that we are seeing today. In fact, if you look at some of the transcripts from the hearings of the past times that we have reauthorized the act and tried to fix it, very, very similar debates kind of run through all of our consideration of this matter, and that kind of leads some of us to believe that it is fundamentally flawed.
I was interested in hearing, General Barr, you discuss the op-ed by Mr. Cox in today's paper. It seems like under the contraption that was created under his envisionment, would need almost Rube Goldberg to kind of negotiate the way through the maze, and I am not sure that that deals with the problems either.
Could you gentlemen respond to one thing that—it is not clear that doing away with the Independent Counsel Statute will actually fix, and that is this notion that has frequently concerned many of us that the direction of the investigations under the IC Statute is upside down, that you are investigating a person rather than a specific act. And what wound up happening in the Starr investigation, to a lesser extent than the Espey investigation, you started in one direction and wound up at the end of the investigation with an entirely different set of charges that were being brought. Would that be different under a special prosecutor if the Attorney General were left to his or her own devices? I mean, couldn't the same thing conceivably happen, that someone starts looking into something, and then they lead off into another path? Why would there be less of a problem if we do away with the Independent Counsel Statute in terms of that direction changing in an investigation as it went along?
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Mr. WILLIAM BARR. I think there are two reasons: one, the initial selection; and two, the continuing supervision.
The initial selection, and that is why I think General Civiletti is absolutely right, in an individual case, the Attorney General is the one who has the incentive, the ultimate accountability of making sure the right person is handling that case. And that is why I say it shouldn't be a narrow-gauged prosecutor, but someone who can bring general perspective to bear, to say, ''Wait a minute, this is nonsense,'' or ''Don't get off onto that bunny trail.'' Because, you know, the basset hound following the rabbit has his nose down in the track. You need to have someone who has a little bit more perspective sometimes, don't forget it. So you have to pick the right person. And with all due respect, the panel, the judicial panel, has no accountability. If people are not happy with what happens, they don't pay a price. And frankly, I don't think they necessarily have the experience to pick the right person, the right prosecutor, enough experience supervising prosecutors.
So, as Attorney General, my feeling was it is my obligation, and I am not going to be happy with anyone taking that decision out of my hands. I will pay the price if people don't like who I pick.
And then, the other reason is you have continuing supervision. If the Attorney General ultimately is willing to take the heat and say, ''you are not going to go down that bunny trail,'' they can make that call.
Under the current system, no one is there to make the call. It is an automatic doomsday weapon; it just sort of goes along. And in fact, there are many elements in the law that encourage a product to come out at the other end, so if anything, the Independent Counsel Statute now puts such a premium on getting something at the end of the day that, I guess, it encourages that kind of deviation from the original path if that first path seems to be dry.
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Mr. CIVILETTI. There are two reasons why the Attorney General-appointed special counsel is different in this regard than the Independent Counsel Act appointed by the court.
First, the Attorney General sets the scope, and sets the scope for the serious, necessary investigation where he had to recuse the Department of Justice, in effect, from doing it. Under the Independent Counsel Statute, the scope is subject to the three judge panel, and often the mistake if it is made, is to err on the side of breadth rather than narrowness.
Secondly, as the investigation is pursued, and suppose it is for bribery in the Department of State, and the investigator comes back and says, ''We didn't find any bribery,'' or ''We are still on the trail of bribery, but there were two assistant attorney generals, two assistant secretaries of state, who committed adultery.'' You know, that is a crime in the particular—and so the Attorney General, then, or the Assistant Attorney General of the Criminal Division says, ''We have never prosecuted adultery in the Department of Justice, it is not a Federal crime, what are you talking about? No, we are not giving you that authority.'' So, as the suggestion is, the control mechanism initiating and then subsequently are there, and there is the power, of course, for the Attorney General to expand the investigation by referring second matters or third matters that come up to the same special counsel.
Mr. WEINER. I see. General Civiletti, can you just respond to one other element of this? It often goes without notice but you did mention in your testimony, and that is the way this thing takes on, even, a third life. After the charges have been brought, it has been deemed to be not warranted for their investigation or prosecution. Then there is this post report that needs to be produced, which in many cases, is a place where, frankly, damaging information gets dumped to Congress and gets dumped into the public domain. That is, that it is frequently not discussed in this context since there are many other flaws with it. But is that something that is usually done in prosecutions, that if a prosecutor says, ''We are not going to bring this action,'' they would then submit a report saying, ''Here is all the stuff we dug up in the interim.'' And why was it that Congress included that post report, if you have any insight into that? I mean, that seems like something you would only want if you wanted to support a further prosecution.
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Mr. CIVILETTI. It is not done in any regular investigatory, prosecutorial process. My guess is that it was suggested and then adopted by the Congress in order to have accountability, oversight and a prophylactic effect if the independent counsel knew that they had to file a report, that the care they took in investigating and justifying their actions would be greater.
But, it has the unintended consequence, most dramatically—I think most people would cite the Meece case, the second Meece case and the McKay report as being terribly damaging, terribly unfair, no opportunity to respond, and terribly troublesome.
Mr. WEINER. Thank you, Mr. Chairman.
Mr. GEKAS. The time of the gentleman has expired. We turn to the gentleman from South Carolina for a period of 5 minutes.
Mr. GRAHAM. Thank you, Mr. Chairman. A common theme here is the politicizing of potential criminal matters. When you are dealing with high public officials, I don't really know how to avoid that much, but I guess we can do a better job, at least try to.
The appointing authority, what is more political? The Attorney General making an appointment of investigating, picking the person to investigate their potential boss or colleagues or three Federal judges? What is more political?
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Mr. WILLIAM BARR. You could say that the Attorney General is political, but political in a good sense, because the only kind of accountability that is important here is ultimate political accountability. That is what the framers believed when they talked about accountability, that the public has the ability to punish the person directly. And therefore, I believe appointments should be made by people who are accountable, and ultimately someone who is accountable to the people, who through the political process should be supervising investigations, and the judges aren't, plain and simple.
Mr. GRAHAM. Why wouldn't you want Congress more involved then, because we are politically accountable also?
Mr. WILLIAM BARR. Because of the separation of powers. They are accountable for the legislative function, making the law; the executive is accountable for the execution of the law.
Mr. CIVILETTI. Well, my response would be slightly different in that you can't isolate appointment by the Attorney General of a special counsel and appointment by the court of independent counsel, because prior to the appointment by the court, you may have 3 months, 6 months, 9 months of hubbub and publicity and accusations and charges as to whether or not even there should be a request for the appointment of an independent counsel. Whereas with the appointment by the Attorney General, there may never be any discussion or public disparagement, and the Attorney General can simply appoint.
Mr. GRAHAM. Well, Mr. Civiletti, in your problems with due process is that the media and other public attention given to the issue of appointment or the request for appointment of an independent counsel self-taints the subject even before an investigation is commenced or charges filed. I don't see how in the world you avoid that, I don't care who does the appointing. If somebody's job it is to look at a person in high government office, why do you expect the media not to follow that?
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Mr. CIVILETTI. Well, there are enumerable examples of the Department of Justice conducting investigations with grand juries of high public officials, not necessarily those under the act, but high public officials, about which there is no public debate, no public discussion until the charge is filed.
Now, that should be the rule, there will always be exceptions. But that should be the rule and the standard that we are trying to achieve, rather than the reverse.
Mr. GRAHAM. How much of the problems involved in this case flow from the fact that the person being investigated is the President?
Mr. CIVILETTI. I think a lot of them do, but——
Mr. GRAHAM. Would it be fair to say if a grand jury was investigating the President, regardless of how the appointment was had, that would be a significant media event?
Mr. CIVILETTI. Yes.
Mr. GRAHAM. Is it fair to say, Mr. Barr, that Congress consistently oversees the executive branch in its role of being a check and balance on the executive branch through oversight hearings.
Mr. WILLIAM BARR. That is a fair—I am not sure what the point is, though.
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Mr. GRAHAM. Well, the point is, that to me, if you want to take politics out of the statute, whoever thought of three judges made some sense to me. We are about to abandon that. I know you have been consistently against this process and I admire you for that, but there is a lot of this that has to do with the fact that the subject of the investigation is the President. We have got to understand that the defects in——
Mr. DELAHUNT. Will my friend yield for just a moment?
Mr. GRAHAM. Sure.
Mr. DELAHUNT. I mean, is the gentleman yielding?
Mr. GRAHAM. Yes, absolutely.
Mr. GEKAS. Let us try to observe the request for yielding.
Mr. DELAHUNT. No, I did, I made the request and I saw the gentleman nod his head.
Mr. GRAHAM. I gladly yield.
Mr. DELAHUNT. But, I would just expand the question. I mean, the statute clearly covers more than just the President, as I think what we have seen in the past, whether it was Iran-contra or any of the other independent counsels also have been appointed. So, to focus just on an investigation of the President doesn't give our witnesses a full opportunity to respond to the structure of the statute itself.
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Mr. GRAHAM. I am reclaiming my time, if I may. The point I am trying to make is that the administration, the American Bar Association and many people in the country came up here in 1994 and said, ''We need this thing.'' The only thing that has happened since then is the investigation of the President.
The reason that we have the statute to begin with is because of what Richard Nixon did. When Richard Nixon was being investigated, he fired the folks, and we said, ''that can't work.'' Then we had an island of time of 2 years from 1992 to 1994, and people felt uncomfortable not having this statute reauthorized.
One of your criticisms, Mr. Civiletti, is that there is no qualification criteria about appointment in the statute. You don't believe it is sufficient enough in terms of having qualifications placed upon the people doing the investigating; is that correct?
Mr. CIVILETTI. Yes.
Mr. GRAHAM. Can you give me one example of a person you thought wasn't qualified who was appointed under the statute?
Mr. CIVILETTI. No, because I haven't based it on individual performances. None of my testimony is based on individual performances. It is based on comparison between career prosecutors and the requirements of the statute.
Mr. GRAHAM. In the Starr investigation, how many career prosecutors were on his staff?
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Mr. CIVILETTI. I would guess half a dozen.
Mr. GRAHAM. Would it be fair to say that most of the people who did the work were career prosecutors?
Mr. CIVILETTI. I would say they did 95 percent of the work, is my guess.
Mr. GRAHAM. Let us talk about scope for a moment. You start out with a land deal, and somebody gives you a tip that some of the characters involved in this case are about to commit perjury or obstruct justice in a lawsuit. Under your revision of this statute, would there be a mechanism to allow the independent counsel or special counsel to request to continue or to change the scope of the investigation?
Mr. CIVILETTI. Yes.
Mr. GRAHAM. Under the facts of this case, do you think that was wise?
Mr. CIVILETTI. Yes.
Mr. GRAHAM. Mr. Barr?
Mr. WILLIAM BARR. Yes, I do.
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Mr. GRAHAM. I think my time is expired.
Mr. WILLIAM BARR. Could I just follow up on that?
Mr. GRAHAM. Yes, please
Mr. WILLIAM BARR. I personally have the perspective; I share your perspective that Ken Starr has done an admirable job. But, that is not the issue here. The issue, it seems to me, is that——
Mr. GRAHAM. Well, I am not so sure that is all true. But, I am just saying that the problems seem to be with the focus of the investigation, the person investigated more than the statute, to me. But you have been consistent, both of you have, about criticizing the statute. I admire that, but there seems to be a tremendous change.
When you look at the statute, the criticisms are real, but they are not penetrating to me, Mr. Civiletti. I think you are never going to avoid media involvement, regardless of how the appointment is had if it is a high public official. That the criteria for selection, the reason that we haven't had anybody you can point to is because the people in charge of selecting have done a pretty good job.
The three judges, to me, are less political than the Attorney General. I do want to make it better, but I want us to be honest with the Nation as to why we are having this debate now, not by you all too, but by the Congress and make sure we don't over emphasize.
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Mr. WILLIAM BARR. But, Congressman, I believe as I said, there are a couple aspects of what is political. Part of politics is a good part, which is accountability. I don't think having an investigation going on by someone who is not accountable and not selected by accountable people is a good thing.
Second, under the IC Statute, the politics in the bad sense, make the fundamental intervention right at the beginning, and that is, that you are heading down a criminal track right from the beginning, and that is where politics comes into play under the IC.
Mr. GRAHAM. Now, tell me how is that so?
Mr. WILLIAM BARR. It is the hair trigger, it is the hair trigger. Yes, there are Presidents that are investigated, but there are a lot of other people who are investigated for nonsense. It goes on two or 3 years when the thing could have been just dealt with in a few days right up front. They are not receiving the same kind of justice as other Americans, and that is because of politics.
Mr. GRAHAM. But, you are talking about stopping an investigation once somebody has determined, ''Yes, we need to look.'' You are talking about the politics of stopping, and the politics of starting. Now, tell me how the politics of stopping can be improved upon.
Mr. WILLIAM BARR. I am not sure I really understand what you are saying. What I am saying is the decisive intervention of politics occurs under the IC Statute when you start the juggernaut moving down the track, where that would not happen with Tom, Dick, or Harry. That is where politics comes into play under the IC Statute, and that is why people are treated unfairly.
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Mr. GRAHAM. Well, I don't mean to belabor the point, but no matter how you start an investigation of a high public official, somebody somewhere is going to stop it, is what you are saying. You don't see a stopping mechanism in this statute?
Mr. WILLIAM BARR. No, there is an automatic start, and there is no stopping mechanism.
Mr. GRAHAM. Okay. You are saying the Attorney General should be able to say, ''that is enough,'' and accept the political consequences?
Mr. WILLIAM BARR. I think, first, the Attorney General can make a decision whether something should even be handled as a criminal matter.
Mr. GRAHAM. Well, how does it work under our current statute?
Mr. WILLIAM BARR. Well, for example, if a Cabinet Secretary is accused of abusing something, you know, $200 worth of government property, it is a Federal crime, even though the guy can make reparations and in an appropriate case, resign. That is nonsense.
Mr. GRAHAM. How many nonsense cases have you been aware of under the——
Mr. WILLIAM BARR. The majority of cases that come up under this statute are of that type.
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Mr. GRAHAM [continuing]. Are nonsense?
Mr. WILLIAM BARR. Yes, in my opinion, should not be handled under the Independent Counsel Statute.
Mr. GRAHAM. Why?
Mr. WILLIAM BARR. Because they can be handled up front with common sense and judgment. They do not merit 2 to 3 years of investigation.
Mr. GRAHAM. Can you give me a list of those cases?
Mr. WILLIAM BARR. I can't give you a list of——
Mr. GRAHAM. Not now, but just give me a letter about the cases you think were not——
Mr. WILLIAM BARR. I will say a lot of them occurred on my watch where—you know, I was in an election year, and I was told I received more requests for independent counsels than all my predecessors combined, and they were against Republicans, okay. But, I think some of the cases that are going on now are nonsense.
Mr. GRAHAM. Okay, I would like some examples.
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Mr. WILLIAM BARR. Well, I think the agriculture thing is way out, went way beyond common sense, although the prosecution of Durenburger, or the threatened prosecution of Durenburger was excessive, in my view, as well. I think, you know, spend 2 or 3 years to decide whether Cisneros, you know—he obviously didn't tell the whole truth in the interview. Why spend 3 years on that? He has resigned. Those are two examples.
Mr. GEKAS. The time of the gentleman has expired and the time of the committee has expired with respect to the votes that are pending on the floor.
We are very, very gratified at your willingness to appear before us and to give your testimony. It will go a long way in the final decision made by this committee. As a matter of fact, in a side bar conference held by the Chair and the ranking member, we have already started to cogitate some of the proposals or comments that you have made, so we want you to leave this table knowing that you have made an impact on the process. We thank you very much.
This committee stands in recess until 12:30 p.m., at which time I ask the members to please come back; Mr. Graham, to please come back, because the next panel contains one witness who has to be back in her classroom at 1 p.m. At the request of the ranking member, 12:35 p.m., until which we stand in recess.
[Whereupon, the subcommittee recessed, to reconvene at 12:35 p.m., the same day.]
Mr. GEKAS. The time of the recess having expired and noting the attendance of a hearing quorum, we shall proceed with the business at hand.
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The second panel is now taking its place at the witness table, and it is made up of distinguished individuals who, in years past, have contributed in one way or another to our congressional life and to society in general. Julie Rose O'Sullivan has been a professor of law at the Georgetown University Law Center since 1994. Previously, she has served as an associate counsel to Robert Fiske, investigating the Whitewater matter. She continued for a period under Kenneth Starr when he was made independent counsel under the then recently reauthorized Independent Counsel Act.
Ms. O'Sullivan was a Phi Beta Kappa graduate with distinction from Stanford University and a Summa Cum Laude graduate of Cornell Law School. After law school, she clerked for the Honorable Levin Campbell, Chief Justice of the United States Court of Appeals for the First Circuit and United States Supreme Court Justice Sandra Day O'Connor. She was associated with the New York law firm of Davis Polk and Wardwell from 1986 to 1991, and then worked as an Assistant U.S. Attorney in the Southern District of New York until 1994.
Philip Anderson, who joins us in the middle of the group, is a partner in the Little Rock, Arkansas law firm of Williams and Anderson. He is the third lawyer from Arkansas to serve as President in the 120-year history of the American Bar Association, and is married to the daughter of one of them. That reminds me that there was a man in American history in the State of Ohio, whose father was the President of the United States and whose son was the President of the United States. The name of the individual is Harrison. His father was William J. Harrison, President of the United States, and his son was Benjamin Harrison, President of the United States. You are following some kind of precedent there.
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At any rate, a graduate of the University of Arkansas law school in 1959, where he was editor of the law review, Mr. Anderson has been active in the ABA for several decades. He chaired the ABA's coalition for justice from 1994 to 1997, served as Chair of the House of Delegates, of which he has been a member since 1979, and is past chair of the section of legal education and admissions for the Bar. Mr. Anderson is a member of the Council of the American Law Institute, and is fellow and past Chair of the Arkansas Bar Foundation.
Timothy Flanigan served as the Assistant Attorney General, Office of Legal Counsel in the Department of Justice from 1990 to 1993, and in that capacity, testified before this subcommittee on the reauthorization of the Independent Counsel Act when I happened to be the ranking minority member. Mr. Flanigan received his undergraduate degree from Brigham Young University and his law degree from the University of Virginia. After law school, Mr. Flanigan clerked for Chief Justice Warren Burger, and went on to practice law with the firm of Millbank, Tweed, Hadley and McCoy from 1988 to 1990. After leaving the Department of Justice, he joined the firm of Jones, Day, Revis and Pogue, and then Mayor, Brown and Platthere in Washington. Since 1997, he has been writing the authorized biography of the late Chief Justice for whom he had clerked, Warren Burger, which should be completed later this fall.
With that, we recognize the time problems of Professor O'Sullivan and that of Mr. Anderson. I am just going to assume that Mr. Flanigan has the same kind of problems, but we will begin with Professor O'Sullivan, and say to each of the panelists, when you have to go, you have to go, and if you must depart early, we will understand. We have your written statements which will be made a part of the record, and we will ask you to abide by the 5 minute rule. We will begin with Professor O'Sullivan.
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STATEMENT OF JULIE ROSE O'SULLIVAN, PROFESSOR, GEORGETOWN UNIVERSITY LAW CENTER
Ms. O'SULLIVAN. Thank you. Chairman Gekas and members of the Subcommittee on Commercial and Administrative Law, first I would like to apologize to you. I didn't budget my time appropriately. I feel terrible telling Congress that I have to leave, and I wouldn't do it for anyone else but my students, but I truly do have to leave at 1 p.m. So, let me be brief.
I appreciate the opportunity to appear before you and to express my view that Congress should permit the Independent Counsel Statute to lapse, or should substantially revise that statute. In my view, the statute as it stands now is incapable of achieving its purpose, that is, ensuring the appearance and reality of the even-handed administration of justice in cases where high-ranking executive branch officials are under investigation.
First, with respect to the appearance issue. The statute's premise is that the public will not accept as fair and credible the Department of Justice's determination in criminal cases involving high-ranking executive branch officials. It seems to me that this assumption is vastly overblown. In the majority of cases covered by the act, the person subject to investigation could credibly be investigated, and if necessary, prosecuted by the Department of Justice.
The act basically stands as an indictment of the Department of Justice, and I think that is very unfortunate. Also, the statute, and the politics and press coverage attending the statute, create a situation where the people who are subjected to its scrutiny are subjected to investigations that are longer, more intensive, more invasive, more expensive, and more public than that which the average person would suffer, and for no purpose.
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The over-breadth of the statute, then, is not only unnecessary to guard against the appearance of injustice, it is also unfair and wasteful in terms of Governmental resources. As to high-ranking persons subject to the act, I agree with General Barr. The political importance of the act seems to compel partisans to attack the independent judgment or ability of independent counsels where the actions of those independent counsels may interfere with partisan interests, either with the interest of the administration under investigation or its political foes. The object and the predictable consequence of this political dynamic is to undermine that which the statute seeks to ensure, that is, the appearance of equal justice.
The statute also does not ensure the reality of even-handed justice. It, and the political dynamic underlying it, create unique incentives for independent counsels to employ their vast, unchecked powers to impose a harsher and potentially inferior brand of justice on those persons subject to the act. In my view, the statute is not worth its cost in human, financial and systemic terms.
So, the question becomes, if not the statute, then what? It seems to me that the choice is pretty clear. Do you have a truncated statute that deals only with very few persons, or do you rely upon the Department of Justice to make ad hoc appointments of regulatory independent counsels in appropriate cases. And it seems to me that the latter option is clearly the best. It holds out, at least, the possibility of political accountability for the selection and conduct of an independent counsel, and the advantages of such accountability clearly outweigh, in my mind, whatever price needs to be paid in perceived independence.
I think I will abbreviate my remarks so that Mr. Anderson can also advise the committee and still leave on time.
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[The prepared statement of Ms. O'Sullivan follows:]
PREPARED STATEMENT OF JULIE ROSE O'SULLIVAN, PROFESSOR, GEORGETOWN UNIVERSITY LAW CENTER
Chairman Gekas and members of the Subcommittee on Commercial and Administrative Law, my name is Julie Rose O'Sullivan, and I am a professor of law at Georgetown University Law Center. I appreciate the opportunity to appear before you to express my view that Congress should allow the Independent Counsel (''IC'') statute to lapse, or should at least substantially revise that statute. My view is shaped by my experiences as an Assistant United States Attorney in the Southern District of New York from 1991–1994, and as an Associate Counsel in the office of the regulatory Whitewater Independent Counsel, Robert B. Fiske, Jr., and in the office of the statutory Whitewater Independent Counsel, Kenneth Starr, in 1994. In my incarnation as a law professor, I have studied this issue and published two law review articles on the subject of the independent counsel mechanism.(see footnote 18) I have appended to this statement one of those articles, which sets out at some length the full basis for the opinions I express in summary form today. A few preliminary points seem to me clear:
First, the statute, as presently constituted, is not achieving its intended purpose: ensuring the appearance and the reality of equal justice in cases where allegations of wrongdoing have been lodged against public officials of importance to the executive branch. The IC statute is overused; it is invoked to displace the Department of Justice (''DOJ'') in many cases where the likelihood is low that political pressure will derail the appearance of prosecutorial fairness. Thus, the statute guards against the appearance of a DOJ conflict in lower profile cases where no such problem exists. In the higher profile cases at the heart of the statute, and particularly where the President is the subject of the investigation, the statute creates political incentives for partisans to attack the appearance of integrity and impartiality the statute is intended to safeguard. Given the visibility of the statute, and press and public interest in its workings, the political consequences of a referral and either an indictment or declination in a high-profile case are too serious for political actors to leave the process unattended. Politics today seem to demand that doubt be cast on the independence, judgment, or ability of an IC where the actions of that IC may interfere with partisan interests, either of the administration or its political foes. The object—and predictable consequence—is to undermine what the statute seeks to promote: public confidence in the integrity of the results of an IC investigation in politically sensitive cases.
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Even if the statute does not effectively cure ''appearance'' problems, one could argue that it is necessary to ensure the ''reality'' of the equitable administration of the criminal laws. The statute has increasingly come under attack because of perceived inequities and excesses in IC functioning. It is my impression that the IC statute, while deeply flawed, is not as pernicious as is presently perceived. It seems to me that at least some of the allegations of abuse which have been laid at the doors of various independent counsel will not be proved or will, in retrospect, be thought to be problems endemic to the vast powers and discretion vested in federal prosecutors in general and not to ICs in particular. However, for all the reasons set forth in the attached article, I do believe that in the final analysis the statute, and the political dynamic it generates, creates unique incentives for ICs to employ their vast, unchecked powers to impose a harsher and potentially inferior brand of justice upon those subject to IC investigations. On balance, it seems to me that the IC statute is not worth its high cost in human, financial, and systemic terms.
Second, there is no magic solution to the problem sought to be addressed through the statute. Any proposed solution—whether it be a substantially revised statutory independent counsel regime or regulatory treatment by the Department of Justice—will be subject to criticism and will ultimately depend upon the good faith, ability, and perceived honesty of future Attorneys General and investigating attorneys.
Third, despite this, we cannot simply abandon the effort to arrive at the best possible solution. A critical part of that solution is narrowing the scope of the problem by separating those potential targets that require the extraordinary intervention of an IC from those that do not. In presumptively covering persons by reference to their office, and not distinguishing among subjects by reference to their actual importance to the President, the heavy artillery of the IC statute is often brought to bear on persons and cases that do not warrant it in terms of any realistic likelihood of the actual or perceived subversion of law enforcement. We all know that the operation of the statute—and the operation of politics and the press on the statute—mean that IC targets will be subjected to scrutiny that is longer, more intensive, more invasive, and more public than that which the average citizen would suffer. If such burdens are imposed where there is no reason to suppose that they are necessary to ensure the appearance or reality of equal justice, it seems to me very unfair and very wasteful. Overuse also needlessly undermines public confidence in the integrity of the DOJ—a systemic consequence that should be of major concern to all involved in criminal law enforcement.
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Fourth, as even the most vocal critics (myself included) of the IC statute concede, there must be some mechanism through which serious charges of criminal misconduct by the President or those closest to him can credibly be investigated and resolved. The challenge is selecting the approach that has the best chance—given institutional, political, and partisan realities—of providing the appearance and reality of justice in these extraordinary cases. The choice, it seems to me, comes down to whether Congress should enact a truncated statute that requires the Attorney General (or her delegee in situations of conflict) to appoint an Independent Counsel when allegations of qualifying criminal misconduct have been lodged against the President, and perhaps the Vice President and Attorney General, or whether the appointment of independent counsel should be effected through Department of Justice regulations in appropriate cases. I believe the latter option is the better one principally because it holds out at least the possibility of political accountability for the selection and conduct of an IC, and the advantages of such accountability outweigh whatever price may be paid in perceived independence.
Three cardinal features of the IC statute are designed to ensure that the public can have confidence in an independent investigation of executive wrongdoing. An examination of each reveals that regulations probably would be equally effective in furthering this congressional objective while increasing the potential for political accountability.
1. ''Forced'' Attorney General Referrals. The statute purports to restrict the Attorney General's discretion in appointing an IC. By having allegedly mandatory triggers with respect to certain ''covered persons,'' the statute attempts to ensure that the executive will not simply sweep wrongdoing under the carpet when allegations of wrongdoing are leveled against the executive branch officials presumed to be closest to the President and Attorney General. The problem is, of course, that Congress constitutionally cannot divest the Attorney General of authority regarding the initiation of criminal investigations. As a consequence, the Attorney General can read and apply the language of the triggering mechanism as he will, and his decision whether to go forward is unreviewable.
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Perhaps more important than the statute's inability to achieve its aim is the fact that the highly technical statutory triggering mechanism may in fact provide a sort of shield against political accountability. If complete discretion for the appointment of an IC were returned to the Attorney General, he would be subject to pressure to appoint an IC without respect to the technical requisites of the statute. An Attorney General, then, would have to take responsibility for a failure to appoint an IC when, in public perception, it is necessary. The focus of the debate would not be technical arguments about whether certain evidentiary standards have been met but rather whether the interests of justice require an IC appointment under the circumstances.
A regulatory regime in which the Attorney General is solely responsible for its invocation potentially would have another benefit: ensuring that (what should be) the extraordinary invocation of an IC is only done in instances where the DOJ truly has an appearance of a disabling conflict. A statute that presumes that the DOJ will be conflicted with respect to office, rather than the perceived importance or connection of a particular person to the Attorney General or President, will necessarily be both under- and over-inclusive.
2. Selection of the IC by the Special Division. The statute attempts to ensure the appointment of someone not beholden to the administration by vesting appointment powers in the U.S. Court of Appeals for the District of Columbia Circuit, Special Division for Appointing Independent Counsels (''Special Division''). The theory is that if an IC appointed by the Attorney General declines a case, that declination will always be suspect because the public can never be entirely certain that the failure to go forward was not influenced by the source of the IC's power. Certainly, the fact that an IC was chosen by the Attorney General will provide hostile partisans with additional ammunition with which to attempt to impeach the eventual result of an investigation if that result is a declination. But experience has demonstrated that the converse problem is equally true. Thus, in a high-profile case in which, for example, the President is under investigation, and where the Special Division appoints the IC, those under investigation or their political allies have every incentive to impugn the integrity and impartiality of any statutory IC who uncovers wrongdoing. Selection by the Special Division, far from providing an IC cover against political attack, may actually aggravate the problem because partisans may call into question the political impartiality of that body.
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In the end, given the political incentives created by the existence of any independent counsel investigation where the President or those closest to him are under investigation, it may well be that no statutory or regulatory IC will emerge entirely unscathed, but certainly partisans will make every effort to discredit any statutory IC who finds evidence of wrongdoing and any regulatory IC who declines to bring a case. Where a declination is the eventual result of the investigation, it will be most credible if rendered by a statutory IC; if, however, a criminal prosecution is instituted, it will probably be most credible if initiated by the administration's own regulatory counsel. The difficulty is, of course, that we cannot forecast the result of any investigation in advance and use the appointing mechanism that will likely generate the most credible result. Further, to some extent the degree to which politically motivated attacks may be successful in undermining the public confidence necessary to a successful IC investigation—whether under statute or regulation—may depend on the credentials, vulnerabilities, and conduct of the IC at issue and not on the person who actually performed the selection. We simply cannot today forecast how future regulatory or statutory ICs will fare.
That said, we know that the statutory selection mechanism probably will not achieve its desired end in many cases. It also may have serious collateral consequences in that the incentive it creates for partisans to attack sitting federal judges as politically motivated may impair the confidence of the American public in the impartiality of the federal judiciary generally. It is time, then, to consider the advantages inherent in Attorney General selection under DOJ regulations.
The principal virtue of this approach would be to return the entire responsibility for the fair and effective administration of justice in these difficult cases to the Attorney General. Even where a regulatory counsel is under the regulations ''independent,'' the Attorney General would likely suffer at least some of the fallout if the IC proves to be dishonest, ineffective, or abuses the powers of his office. No longer will politically unaccountable and publicly invisible actors—the Special Division—be the sole persons standing behind an IC. The Attorney General—a politically accountable actor—will be responsible for his choice. At the very least, it will be much more difficult for political partisans to undermine the perceived result of a criminal prosecution by creating a perception that an IC is operating out of personal or political animus. I think it fair to say that an administration under investigation will have greater difficulty calling into question the integrity of an IC selected by that administration and thereby undermining public confidence in a determination of executive wrongdoing. Finally, an Attorney General may be able to blunt (although likely not eliminate) criticism of any eventual declination decision by making a wise and bipartisan selection of the regulatory IC. Serious consideration should also be given to submitting the name of proposed ICs to the Senate for its advice and consent, as was done once in the past.(see footnote 19) Such a procedure presumably would provide additional bipartisan credibility to regulatory ICs.
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3. ''Good Cause'' Removal. The statute attempts to ensure true independence by making an independent counsel removable by the Attorney General only upon a determination of ''good cause,'' which determination is reviewable in court. Removal of any IC in a high-profile case will, except in extraordinary circumstances where it is obvious that such removal is justified, be politically untenable (and in today's environment, even politically counterproductive). The ''good cause'' requirement, then, is unnecessary. Further, it is my belief that the ''good cause'' requirement is also unsound because it affirmatively shields both ICs and Attorneys General from responsibility. If this requirement were removed, it ''not only would make the special counsel accountable, but it would also force the President and his surrogates to put up or shut up,'' that is, to fire an IC who the administration alleges is demonstrably and unfairly '' 'out to get' '' the President.(see footnote 20) Finally, even were this safeguard deemed necessary and desirable, DOJ regulations have, and can in future, contain the same ''good cause'' removal standard.
If Congress rejects the above thesis and determines to reenact the IC statute,(see footnote 21) I respectfully submit that the following amendments are critically important:
1. The list of ''covered persons'' under §591(b) should be reduced to one individual: the President. The discretionary referral standards of §591( c) should be retained.
2. The Attorney General should be given full powers to investigate allegations of wrongdoing (§592(a)(2)(A)); she should be able to decline a case upon satisfying herself by a preponderance of the evidence that no criminal intent is present (§592(a)(2)(B)( I), (ii)); and she should only have to make a referral if she discovers substantial evidence of a federal criminal violation (§592(b)(1), (c)(1)(A)).
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3. Some mechanism should be put in place for pre-qualifying persons subject to appointment by the Special Division (§593(a)(2)). All such persons should have some experience in federal criminal law enforcement and should agree to undertake the appointment on a full-time basis.
4. The Attorney General, not the Special Division, should define the jurisdiction of the IC at the inception of the investigation and throughout its course (§593(b), (c); §594(e)). Should the IC decide that he wishes to pursue other matters not obviously within his or her mandate, the IC should work out the appropriate allocation of jurisdiction with the DOJ.
5. The statute should make clear that the Special Division's responsibilities are limited to selection of an IC from the pre-qualified list and adjudicating attorneys fees provisions (§593).
6. The present statute provides that ''[a]n independent counsel shall, except to the extent that to do so would be inconsistent with the purposes of this chapter, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws.'' (§594(f)) This italicized exception is sufficiently vague to render the primary prohibition meaningless. DOJ policies are rarely worded as categorical rules. Because they permit sufficient room for the exercise of discretion in particular cases, this imprecise exception is not needed. Further, it being unclear what, if any, remedy there is for IC violations of section 594(f), the entire provision is virtually unenforceable. The statute should make absolutely clear that ICs shall follow DOJ policy, except with respect to securing approvals from the Attorney General for anything except wiretap authority, and that failure to adhere to DOJ policy may constitute good cause for removal.
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7. The reporting requirement should be amended to require (and permit) ICs only to concisely state the result reached at the conclusion of their investigation (§594(h)).
8. The impeachment referral provision should be eliminated (§595(c)). This omission would not alter Congress's ability to gather relevant raw evidence, from an IC and other sources, by subpoena.
XXXX
Note: The law review article included with Ms. O'Sullivan's statement is not printed here. The citation for the article is:
Julie R. O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 Am. Crim. L. Rev. 463 (1996).
Mr. GEKAS. We thank the lady, and we turn to Mr. Anderson.
STATEMENT OF PHILIP S. ANDERSON, PRESIDENT, AMERICAN BAR ASSOCIATION
Mr. ANDERSON. Thank you, Mr. Chairman. Members of the committee, thank you for the opportunity to appear before you today on behalf of the American Bar Association to discuss the Independent Counsel Statute.
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The American Bar Association has been involved with the independent statute since its inception. It recommended the statute in a report in 1976; it has supported every reauthorization and has made recommendations with regard to the statute in 1982, 1987 and again in 1993. Each time the American Bar Association has recommended reauthorization of the act. We have recommended changes; we have recommended a total, by my count, of 16 amendments to the act over the period of time that we have been submitting our reports with recommendations to Congress. The changes were recommended because of a perceived inability of the act to meet the purposes for which it was enacted. It was enacted to assure the citizens of this country that our system of justice could operate efficiently when high administration officials were accused of wrongdoing. The purpose was to restore trust and confidence in our system of justice; the purpose was to eliminate politics from the process. We made the recommendations to meet criticisms with regard to the structure of the act.
With 20 years of experience, we now have to ask ourselves if, indeed, the purposes of the act have been served. Has public confidence in the ability of our system of justice to investigate high administration officials been enhanced; has politics been removed from the process? The answer to both questions has to be, ''no.''
The American Bar Association's House of Delegates, which is our policy-making body, met in Los Angeles last month. I wish to point out to the committee that the majority of the House of Delegates are from State and local bar associations. Your bar associations are represented in the House of Delegates. The House looked at the full experience over the 20 years and saw that there were the same problems coming up year after year without regard to the person who was serving as independent counsel, which suggests to us that the problem is not with the people who were appointed to serve in this capacity, but the problem is with the act.
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And so the American Bar Association has, most respectfully, recommended to Congress that: one, it permit the act to expire under its own terms on June 30; or two, if Congress does not elect to let the act expire, but wishes to reauthorize the act, that it consider six amendments that we have recommended in order to strengthen the act. The vote on this matter before the House is instructive. As I said, the majority of the members are from State and local bar associations, representing every State in the United States and the District of Columbia. The vote in favor of the proposal we have put before you was 384 to 49. The two votes that were taken before that are instructive. The first motion was to amend the proposal by eliminating the first resolve clause, which was that this matter be permitted to expire. That failed. The second vote was on a motion to amend by eliminating the second resolve clause, which consists of the recommendations for amendments that we have most respectfully made to Congress if you should decide to reauthorize the act. That failed, too.
It is the wish of the American Bar Association to be heard in this matter, in the event that Congress wishes to reauthorize the act, but we believe the act should be permitted to expire. We believe that the founders had it right the first time. Thank you, Mr. Chairman.
[The prepared statement of Mr. Anderson follows:]
PREPARED STATEMENT OF PHILIP S. ANDERSON, PRESIDENT, AMERICAN BAR ASSOCIATION
Mr. Chairman and Members of the Subcommittee:
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I am Philip S. Anderson, President of the American Bar Association. I am pleased to appear before you today to express the views of our Association with respect to the Independent Counsel statute.
In the wake of Watergate, we created a high-level committee to study how to insulate federal law enforcement processes from improper influences. In 1976 the committee issued its findings, including a set of 20 recommendations for preventing improper influences on the Department of Justice, the Federal Bureau of Investigation, and the Internal Revenue Service. Included among the 20 recommendations was one opposing a permanent office of special prosecutor but recommending a mechanism by which a special prosecutor could be appointed when conflicts of interest or appearances of impropriety would make it inappropriate for the Attorney General and the prosecutors within the Department of Justice to handle a particular matter. The Association's recommendation of this triggering mechanism played a significant role in the enactment in 1978 of the special prosecutor (now independent counsel) provisions of the Ethics in Government Act.
Last month at our Midyear Meeting, our House of Delegates, by a vote of 384 to 49, adopted the following resolutions on this subject:
RESOLVED, that the American Bar Association opposes reauthorization of the Independent Counsel provisions of the Ethics in Government Act (hereinafter called ''Independent Counsel Act'') in any form.
FURTHER RESOLVED, That if Congress should determine that there is a need for reauthorization of the Independent Counsel Act, that reauthorization should adhere to appropriate safeguards such as the following principles:
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A.
All persons subject to the operation of the Independent Counsel Act should receive the same treatment as if the matter were being handled by the Department of Justice.
B.
The operation of the Independent Counsel Act should be mandatory in regard to the President, the Vice-President and the Attorney General. Although the Attorney General should be able to seek appointment of an Independent Counsel in regard to any other currently covered person the decision to seek such an appointment should be left to the discretion of the Attorney General.
C.
When the Attorney General requests the appointment of an Independent Counsel, the Attorney General should have the role of recommending to the Special Division of the Court appropriate candidates to serve in that position. Any Independent Counsel should possess the kind of broad experience in criminal justice matters that one would expect of an Attorney General or other high official in the Department of Justice.
D.
The decision to seek the appointment of an Independent Counsel should be based on a determination that, given the nature of the alleged criminal activity and the quality of the evidence, the Department of Justice would decide there was reasonable cause to pursue the matter if the subject of the investigation were not a person covered by the provisions of the Independent Counsel Act.
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E.
There should be no arbitrary time frames imposed upon the Attorney General, and there should be no provision requiring the Attorney General to respond to Congressional demands or requests for appointment of an Independent Counsel.
F.
The Independent Counsel should make no public disclosure, other than by formal charge, of the decision to begin or to end an investigation, unless the Special Division authorizes a public disclosure. The Independent Counsel should be required neither to continue an investigation beyond where a typical criminal investigation would extend in order to prepare and file a report, nor to file any report with the Special Division upon the completion of an investigation. The Independent Counsel should be permitted to file a report with the Special Division when the Independent Counsel believes such a report is necessary to serve the interests of justice. The Special Division should be required to deliver the final report to the Archivist of the United States who will make the report public after 50 years. The Special Division should be permitted to disclose any portion of the report at an earlier time upon a determination that disclosure is required in the interests of justice. In this instance, the Special Division should be permitted to make any portion of a report available to any individual named in the report for the purpose of receiving comment and factual information, all of which shall be included in the report, but only the Special Division should be permitted to disclose the contents of the report or any response to it.
Why has the Association now abandoned its original view of the need for such a statute and recommended its demise? The central motivation of our 1976 policy was to address concerns about public confidence in the justice system in cases involving high-level Executive Branch officials. As stated in the report which accompanied the 1976 recommendations, ''. . . the public must be assured that crimes committed in high places will be investigated and prosecuted fearlessly and with integrity.''
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It has become all too clear that, since its 1978 enactment, the statute no longer assures such public confidence. The public clearly believes that, rather than ensuring that all people are treated equally before the law, the statute has caused those subject to its purview to be treated in a far more hostile and unbalanced way.
The Association did not come to its present view suddenly or lightly. On three prior occasions (1982, 1987 and 1993), our House of Delegates adopted recommendations for significant amendments to the statute to address notable problems and defects which had become evident. For example, our 1982 policy—adopted barely four years after the statute's enactment—recommended ten separate amendments to the statute. Among them were recommendations to limit the crimes which could trigger the appointment of a special prosecutor to a specified few; to limit the high officials covered by the statute; and to require the special prosecutor to adhere to the formal prosecutorial guidelines of the Department of Justice. I attach copies of these earlier policies to my statement.
By this year, however, those who had studied the operation of the statute concluded it was so seriously flawed that it should be allowed to die. Among the defects in the statute which have been identified are the following:
1. The Act fails to insure meaningful accountability of an Independent Counsel to the electorate or any other effective supervisory authority.
2. The Act results in the investigation and sometimes in the prosecution of matters that are trivial or innocuous and that would not have resulted in action by the Department of Justice but for the rigid requirements of the Act. Ironically, the Act was intended to assure that ''covered persons'' were treated like ordinary citizens in terms of investigation and prosecution, but the mandatory nature of the statue results in covered persons being denied basic protections—e.g., secrecy that an investigation is underway—that other citizens routinely rely upon.
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3. The Act poses a grave danger that an Independent Counsel, assigned with the task of investigating one person, will lose perspective and will view any instance of alleged misconduct as requiring the attention of federal law enforcement, even if such misconduct would be ignored were it called to the attention of a typical federal prosecutor.
4. The Act poses a danger that open-ended investigations, with neither time nor budgetary limitations, will result in expenditures of vast sums of taxpayer money to investigate minor matters, and that targets of an Independent Counsel's investigation will be required to mortgage their lives in response.
5. The Act creates dual responsibilities for an Independent Counsel—to do what an ordinary prosecutor is expected to do, and to complete a report explaining all events investigated which no ordinary prosecutor ever does. The conflict between investigating and prosecuting, on the one hand, and creating an historical record, on the other hand, is real and in some instances is sufficient to guarantee that investigations of minor matters will be lengthy, expensive, and disruptive.
Noble in concept, and grounded in the principle of equal justice under law, the statute has, sadly, failed to live up to the ideals which caused its creation. The problem is not that the men and women appointed to serve as Independent Counsels lack talent or judgment; the problem is that they are given an assignment that too often appears to be the investigation of an individual rather than a crime.
You will note that our most recent policy provides a series of recommended safeguards in the event that Congress determines there is a need to reauthorize the statute. I will not discuss those here unless there is a request to do so. I would note, however, that in addition to the six recommended amendments in this most recent policy, there are several other recommendations in our earlier resolutions which Congress might consider if it does undertake to reauthorize the statute.
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If Congress concludes, as we have, that the statute is so flawed it should not be reauthorized, the question remains of how allegations against high-ranking officials should be handled. Other existing laws and Department of Justice regulations permit the Attorney General to appoint a Special Counsel to act in matters where the public confidence will be materially benefited by having an independent person in charge of the investigation. This procedure was used for the engagement of Archibald Cox and his successor, Leon Jaworski; it was used to appoint Paul Curran to investigate the allegations regarding President Carter's peanut warehouse; it was used to appoint Robert Fiske, who was the first person appointed to look into the Whitewater matter. It has also been used for matters that would not have been covered by the Independent Counsel act, such as the investigation of the allegations concerning misuse of the bank at the U.S. House of Representatives by some members of Congress. In each instance, the Special Counsel conducted successful investigations in a responsible manner that preserved public confidence.
We thank you for the opportunity to appear before you this morning on this important topic.
ABA POLICY
APPROVED MIDYEAR MEETING 1976
The establishment of a permanent office of special prosecutor is opposed. Congress should enact legislation authorizing the appointment of a temporary special prosecutor by the Attorney General or by a special Court of Appointment under carefully defined circumstances and standards. The special Court should consist of three retired senior federal circuit court judges appointed by the Chief Justice for a two year term. The temporary special prosecutor would, under such legislation, be appointed and removed in the following manner:
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1) The Attorney General would be required to inform the Court of Appointment of action taken in any matter where appointment of a temporary special prosecutor was considered by the Attorney General in accordance with the standards. A memorandum to the court would include a statement of facts, legal conclusions, and the decision. The Attorney General could either appoint the special prosecutor, find that an appointment was not required, or request the Court to make an appointment. After a review of the memorandum the Court could take whatever action it deemed necessary, including the appointment of a different individual as temporary special prosecutor if in the Court's view the individual appointed by the Attorney General does not meet the standards. In such instances the special prosecutor appointed by the Court would supersede the one appointed by the Attorney General.
2) The Court could act on its own authority when in its judgment the standards require appointment of a temporary special prosecutor.
3) When the Attorney General appoints a temporary special prosecutor the memorandum to the Court would delineate the jurisdiction of the special prosecutor. This statement of jurisdiction would be reviewed by the Court and modified where necessary. When the Court makes the appointment it should delineate the jurisdiction.
4) The temporary special prosecutor should be subject to removal by the Attorney General for cause. A statutory guideline of ''extraordinary improprieties'' or a similar standard should be provided for removal decisions. This decision should be subject to immediate review by the Court.
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A temporary special prosecutor appointed by the Attorney General or by the Court should have the same powers as the Attorney General or a U.S. Attorney in prosecuting a case.
Circumstances and standards to guide the appointing authority should include the following: 1) Conflicts of interest, implications of partiality, or alleged misconduct as delineated in the ABA Standards Relating to the Prosecution and Defense Function; 2) Appearance of professional impropriety as delineated in Canon 9 of the ABA Code of Professional Responsibility; and 3) Improper influence or obstruction of justice as defined in 18 U.S.C. 1501–1510.
ABA POLICY
APPROVED ANNUAL MEETING 1982
BE IT RESOLVED, That the American Bar Association supports amendments to the special prosecutor provisions of the Ethics in Government Act of 1978, 5 U.S.C. §591 et seq., which would accomplish the following goals:
1. retain the essence and general format of the special prosecutor provisions so that serious criminal charges against individuals who are closely aligned with the President can be fully investigated by an independent counsel free from any actual or perceived conflict of interest;
2. refine the provisions of the statute to eliminate unwarranted and costly investigations of petty matters and to insure that covered officials are treated under the law neither more favorably nor more harshly than private citizens;
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3. limit the crimes which can trigger the appointment of a special prosecutor to those involving moral turpitude, conflict of interest or violations of federal election laws except that all federal crimes other than petty offenses would be still covered with respect to the President, Vice President and Attorney General;
4. limit the persons covered to the President, Vice President, cabinet officers, senior White House aides, high Department of Justice officials, members of the President's immediate family and the highest officials of the President's principal National Campaign Committee;
5. limit the period of coverage to the incumbency of the President by whom the person was appointed plus one year if that President is succeeded by one from the same political party;
6. permit the Attorney General to decline to conduct a preliminary investigation of a public official if the nature of the charge is such that under similar circumstances as a matter of federal policy a private citizen would not be investigated;
7. require the appointment of a special prosecutor by a three-judge court where the Attorney General finds, after a preliminary investigation, that there is ''reasonable ground'' to conduct further investigation;
8. permit the Attorney General to use compulsory process during a preliminary investigation and permit the three-judge court, for good cause shown, to extend the preliminary investigation beyond ninety days;
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9. require that the special prosecutor, during the course of his appointment, adhere to the formal guideline of the Department of Justice existing at the time of his appointment, and permit the court to terminate him for persistent or egregious failure to follow the policies of the Department of Justice;
10. require the Attorney General to report to the appropriate state or local prosecutor any allegation against a covered official of acts which do not justify, under the standards of the statute, the appointment of a special prosecutor, but which appear to violate state or local law; and
11. permit the three-judge court to appoint a special prosecutor whenever the Attorney General represents to it that, although the statute is not otherwise triggered, in his judgment the interests of justice and the appearance of fairness in the administration of justice require the appointment of a special prosecutor.
ABA POLICY
APPROVED ANNUAL MEETING 1987
BE IT RESOLVED, That the American Bar Association supports reauthorization of the independent counsel provisions of the Ethics in Government Act of 1978, 5 U.S.C. section 591 et seq., without a sunset provision, and urges that the Act be amended to:
1. Provide limited judicial review by the special division of the U.S. Court of Appeals for the District of Columbia, of a decision by the Attorney General not to seek the appointment of an independent counsel; and 2. Clarify the Act to provide that, upon the request of an independent counsel, the special court has the power to expand the scope of the independent counsel's jurisdiction to include additional persons or offenses related to matters within the original grant of jurisdiction.
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ABA POLICY
APPROVED ANNUAL MEETING 1993
BE IT RESOLVED, That the American Bar Association urges adoption of amendments to the Independent Counsel provisions of the Ethics in Government Act as follows:
1. Allowing the Attorney General to decline cases involving technical, yet benign, violations of the law, subject to the review of an independent counsel;
2. Allowing the Department of Justice the use of subpoenas duces tecurn during the preliminary investigation;
3. Increasing the time allowed for the initial review of allegations from 15 days to 30 days;
4. Imposing initial pre-indictment tenure limitations of eighteen months and initial pre-indictment budgetary limitations of $1,500,000 on an independent counsel, subject to court authorized extensions of equal terms and/or amounts under the standard of 28 U.S.C. Section 596(b) (2).
5. Expanding the eligibility for service on the Special Division of the Court and requiring the establishment of rules of procedure and avenues of appellate review relating to actions of the Special Division.
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Mr. GEKAS. We thank you, Mr. Anderson.
Mr. Flanigan for a period of 5 minutes.
STATEMENT OF TIMOTHY E. FLANIGAN, WARREN E. BERGER BIOGRAPHY PROJECT
Mr. FLANIGAN. Thank you, Mr. Chairman. I will try to be briefer than that in consideration of my co-panelists.
And let me just focus on one point. One could say that when all else fails, read the instructions. In this case, the instructions for how you address the conundrum, which is unescapable, of the political influences of the appointment process of someone to investigate high level wrongdoing; the instructions in this case were the Constitution. The part of the structure of the Constitution teaches us a lot about how to deal with situations where one branch or another might go astray.
The primary guarantee of our liberty under the Constitution is the separation of powers provided for in the Constitution. And so, my first point, and I would be content to make it my last, is that Congress has a very important role in supervising the conduct of prosecutions. As long as Congress is vigorous in its oversight, vigorous in its—as long as the Senate is vigorous in the use of confirmation power, as long as both houses are vigorous in the use of the power of the purse, I believe that you can have the checks and balances in place that will be necessary to ensure that the Attorney General will conduct these investigations, either using the career staff, or as General Barr said, using an outsider of distinction as the case may require.
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Now, it could be responded to that Congress is too much of a political body for these concerns, and my rejoinder is that that may well be, but that is the way the Constitution enjoins us to proceed. That is the duty and obligation of Congress, and Congress shouldn't cede that power to a statutory independent counsel hoping that the issues will never come up. You certainly wouldn't cede your legislative authority to someone who might take over simply because a particular issue is thorny. I would be happy to end my remarks there. I am, unfortunately, not under time constraints.
[The prepared statement of Mr. Flanigan follows:]
PREPARED STATEMENT OF TIMOTHY E. FLANIGAN, WARREN E. BERGER BIOGRAPHY PROJECT
Mr. Chairman and Members of the Subcommittee:
I am grateful for the opportunity to appear before you today to express my views regarding the future of the Independent Counsel Act (the IC Act or the Act). I was similarly honored to appear before this subcommittee in 1992 at a hearing at which the reauthorization of the IC Act was debated. The result at that time was that the Act was not reauthorized. Of course, the Act was reauthorized in 1994.
Speaking then on behalf of the Bush Administration I opposed reauthorization of the Act. Speaking on my own behalf today, I reiterate that opposition. The Act should be allowed to expire as it currently provides at the end of June of this year.
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I will not burden this hearing with an repetition of my reasons for opposing the reauthorization of the IC Act. These can be found in the attached copy of my 1992 testimony. Other witnesses have already enumerated the principal failings of the Act: the concentration of prosecutorial authority without appropriate accountability or effective review and the cost and duplication of prosecutorial resources.
I will instead focus my brief remarks on some first principles under the Constitution. I will address what I might refer to as the ''big picture'' issues: How does our Constitution contemplate that wrongdoing by high level officials will be investigated and punished?
At the outset let me make clear that my remarks should in no way be construed as a criticism of the investigation currently being conducted by Judge Ken Starr. I have the highest respect for Judge Starr and the manner in which he has discharged his most difficult assignment. That which some would interpret as manifestations of a desire to ''get'' the President, I can view only as legitimate exercises of the prosecutorial role. Indeed, I would say that Judge Starrs response to the orchestrated crescendo of abuse directed against him personally and his office is all the testimony that is needed to ensure that Ken Starr will be remembered as an Independent Counsel who discharged his office in a moderate and appropriate fashion. The nation is fortunate to have had a man of his unwavering integrity in charge of the investigation into what is coming to be known as the ''Recent Unpleasantness.'' Nor do I wish to criticize the actions of any other Independent Counsel appointed under the Act or any special prosecutor appointed by the Attorney General under her statutory powers of delegation.
IF NOT THE INDEPENDENT COUNSEL ACT, THEN WHAT?
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The difficulty in obtaining witnesses to appear before this Subcommittee to support the reauthorization of the IC Act is a reflection of the widespread public and academic support for the demise of the Act. Of course, the sunset of the Act will not remove the problem which the Act was designed to address: How do we avoid the real and apparent conflicts which arise when a high level official—the President is the most telling example—is accused of criminal wrongdoing. Our societys dedication to the rule of law demands that the President and his top level officers must be accountable for such wrongdoing. But the Attorney General is herself one of those top-level officers and is closely associated politically and even personally with the President. Under those circumstances, it is not surprising that decisions of the Attorney General or her subordinates to investigate or not, to prosecute or not, will be viewed with some suspicion.
The answer to the conundrum lies in the first instance in the Constitution. The real safeguard against high level wrongdoing is not in an ''independent'' anything. Trying to solve a problem as thorny as how to examine such criminal behavior by bringing in an ''outsider'' who is ''independent'' is a bit like the old Greek city-state solution of bringing in a dictator when the process of democracy failed. It may at times yield a fair result, but the cost in terms of lost liberties may become unendurable.
The Founding Fathers recognized that the principal safeguard of liberty under our Constitution was not the Bill of Rights, but the separation of powers. By dividing the business of government along natural lines into the power to make law (Legislative), the power to enforce law (Executive), and the power to resolve disputes arising under law (Judicial), the Framers merely echoed other governmental systems. The genius of their undertaking lies in the carefully crafted balance of power they established between those branches. Each branch is given the means and the incentive to jealously guard its own rightful sphere and to counter the abuses of the other two.
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Applying this observation to the question of how to address misconduct by Executive Branch officials, the Framers would certainly have said that the cure for such misconduct is vigilance on the part of the Legislative Branch and appropriate use by Congress of its investigative and, yes, even its impeachment powers. In exercising its power to oversee the implementation of the laws, Congress has the power to call to account officers of the United States. Congress can demand explanations, obtain testimony, require the production of documents. Committees of Congress can even appoint and supervise special counsels and provide them with staff to conduct investigations.
I am aware that there are at least two types of practical objections to relying on Congress as the primary means of investigating high level official misconduct. The first is that Congress itself is viewed with suspicion in such matters. This is true regardless of whether one or both houses are dominated by the same political party as that of the sitting President. The recent party line votes in both the House and the Senate have done little to dispel the impression that party political considerations will predominate whenever an issue of executive branch wrongdoing arises.
I can think of only one response to this objection. Regardless of recent events or even experience from the distant political past, Congress is obligated, as one of its most fundamental duties under the Constitution, to provide an effective check and balance to Executive power, and most particularly abuses of that power. If that basic responsibility has been submerged in party contention, then it is time that it reemerges. If Congress is unable to rise above party loyalties and make reasoned judgments regarding the conduct of the President and his officers, the main bastion erected by the Founding Fathers to protect our liberty has been seriously breached.
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Consider for a moment the alternatives. Congress can either shoulder its constitutional burden, or it can attempt to pass it off to an ''independent'' (i.e. unaccountable) entity whose judgment would replace that of Congress. Would any of you be willing to make the same delegation of your power to make the laws?
The second objection is that, because Congress lacks some tools available to federal prosecutors to conduct investigations (such as the power to take grand jury testimony), there will be no one to effectively carry out a thorough investigation of the President and his senior officers.
My response to this second objection is the twin of my response to the first: The separation of powers reposes in the Executive Branch the powers of prosecution. Just as the Legislative Branch cannot escape its duty to investigate abuses, so the Attorney General cannot escape her duty to prosecute violations of law. Her oath and the oaths of the other officers of the Justice Department are not to the President as some expression of personal loyalty, but to the Constitution. If the power of the Attorney General to effectively enforce the law in cases of high level criminal conduct has been submerged in suspicions of partisan motivations, then it is time that this power reemerges.
If the Attorney General fails to live up to her responsibilities by declining to investigate thorough credible allegations of wrongdoing, what then is the remedy? Once again the answer lies in the genius of the Framers. Congress must step up to its role as a coordinate branch and second-guess the Attorney Generals decision. She can be called to testify in open or closed committee hearings. She can be required to answer written questions regarding the status of an investigation.
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It may be said with considerable justification that the separation of powers does not create an ideal system to address instances of wrongdoing by high level executive branch officials. It relies on men and women who are deeply involved in the political passions of their times to engage in a process that may have far reaching political implications. It is a process fraught with danger that the guilty may escape punishment.
Indeed, about the only thing that can be said in favor of reliance on the separation of powers in cases such as these is that it is better than any other system. Since 1976 we have experimented with a system that was designed to remove responsibility from both the Executive and the Legislative Branches by creating an ''independent'' entity, an uncommitted wise man who would ''do the right thing'' even when the constitutionally appointed legislators and officers would not. That experiment has failed as many predicted it would. There is no more satisfaction with the results of ''independent'' investigations than there was with investigations carried out by Congress and the Department of Justice. Indeed, there is far less satisfaction with the current system and its functioning in current matters than there was, for example, in the Watergate affair. In that case recall that the consensus was that the ''system had worked.''
I thank the Subcommittee and would be pleased to try to answer any questions you may have.
XXXX
Note: The testimony before the Committee on the Judiciary's Subcommittee on Administrative Law and Governmental Relations in 1992 referenced in Mr. Flanigan's statement is not printed here. The citation for the hearing is:
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Reauthorization of the Independent Counsel Statute, 1992: Hearing on H.R. 5840 before the Subcomm. On Admin. Law and Gov't. Relations of the House Comm. on the Judiciary, 102nd Cong. 11 (1992) (statement of Timothy E. Flanigan, Assistant Attorney General, Office of Legal Counsel).
Mr. GEKAS. You are staying until midnight. I am thunder struck by the notion that all of this has come about, this 180-degree change in the opinions of the very same people who supported the institution of independent counsel, as a result of the investigation of the President that just concluded.
For instance, the Bar Association was our fulsome partner, the Congress' partner in the germination of and in the substantial endorsement of the independent counsel. The minority, then majority, was winsome in its support of the reauthorization with the institution of the institution and the reauthorization. The White House and the administration, this one, the Attorney General were magnanimous in their concern for the reauthorization. As many times as you can criticize to me that the statute didn't work because of this or because of that, that criticism didn't occur during the Walsh independent counsel incumbency.
It only happened with the investigation of the President. So, the very same fear that you all, in one way or another, enunciate about politics would be entering into it. I have a counter—didn't politics somehow play a part in the current attack on the Independent Counsel Statute? Maybe that can never be answered, but for the ABA, for instance, when did the turnabout come, except with the investigation of the President?
Mr. ANDERSON. Let me say, Mr. Chairman, that the American Bar Association is still your fulsome partner in this matter, and we are trying to work through it just as Congress is.
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There was not a turnaround. There was a change in position and there was a change in position with the experience of 20 years of this Act. We are fully aware of the concerns and criticisms of the act that were expressed during Judge Walsh's investigation; we are familiar with other criticisms that have occurred during other investigations. Judge Walsh and the other independent counsels, we have concluded, are not the problem: they each did not have the same flawed approach. We have concluded that the act itself is flawed. We recommended the act when it was adopted; we have supported reauthorization of it. We must come to the conclusion, however, that it has not done what it was designed to do, which is to restore trust and confidence in the American public when the investigation of high public officials is involved. If anything, it has encouraged cynicism of the process.
Mr. GEKAS. But that is my point. Both of you, Professor O'Sullivan and you, stressed the public confidence factor in all of this. But, didn't that come into play after the Walsh investigation?
Ms. O'SULLIVAN. Actually, Chairman, I believe it did. I do think that, over time, the publicization of the criminal process has actually increased.
With respect to Mr. Starr, I think what usually is the focus of discussions about the statute is the tension between independence and accountability. A lot of people taking issue with sitting independent counsel, say, ''Well, the trade-off of accountability for independence isn't worth it because these are out-of-control independent counsel.'' I, frankly, don't necessarily agree with all the criticisms of existing independent counsel—I think they are overblown. But I do think that during the tenure of Judge Starr, another problem with the statute, another tension has emerged, and that is the tension between independence and a total lack of support.
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Kavanaugh, I think, had an op-ed in the Post the other day about this. If the independent counsel has no political connection, and he is appointed by the special provision, he stands out there by himself. Basically, there is no one to back him up, no one to support him when he is making the tough calls.
So, for example, in this case, if you have someone appointed by the special division, and he wants to go forward, we all know that the political dynamic is such that all the people who are under investigation have an impetus to trash the independent counsel, and that is happening, but there is no one to stand behind him. If you had a regulatory independent counsel appointed by the Attorney General, it would be a lot harder for an administration under attack to trash its own creature.
Mr. ANDERSON. To attack its own creature?
Ms. O'SULLIVAN. To attack its own regulatory counsel. So I think the answer is that, yes, the political dynamic has increased in recent time, but I think also, this whole process has revealed a new fault line in the statute to be fixed.
Mr. GEKAS. Then, I still come to the clouded conclusion that the lack of public confidence, which could have existed, or you say did exist during the Walsh investigation, apparently was not strong enough. That is, there was not enough of a public confidence to do anything but to reauthorize the act. Now, the cry comes that the lack of public confidence requires us to destroy the Independent Counsel Statute. That is what we are hearing, generally.
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Ms. O'SULLIVAN. Well, all these political attacks are designed to impair the public's confidence in the independent counsel. For example, the public opinion polls indicated the American public had an overwhelmingly negative impression of Judge Starr and did not believe him to be apolitical.
That says a lot about whether the statute is making any sense; whether the cost of the statute to the subject and to the American public in terms of the dollars spent, is worth it if it is not capable of achieving its purpose of ensuring the appearance of equal justice. With that, Chairman, and with great apologies, I am going to have to leave.
Mr. GEKAS. With the thanks of the committee, you are excused. Send us a note verifying that you had to leave. We thank the witness for coming. The time of the Chair has expired. The gentleman from New York is recognized for 5 minutes.
Mr. NADLER. Thank you. Attorney General Barr and Attorney General Civiletti essentially said that, along with you, that we should not reauthorize the statute. Attorney General Barr suggested that there are three things from the statute that we should put into the existing law, the preexisting law with respect to the old article or section 28, the special prosecutor, namely that the special prosecutor, once appointed by the AG, not be removable by her except for cause. Secondly, that the various conflict of interest provisions in section 594(i) and (j) that restrict the ability of getting people to consent to be a special prosecutor, that those provisions which allegedly solve that problem be carried over and put into the law. That there be attorneys' fees, the attorneys' fees provision of the independent counsel law that gives attorneys' fees to investigatees or subject of the independent counsel law who are eventually not charged or found innocent, that this be put into the special prosecutor law.
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Three questions for you: number one, would you approve of these amendments, assuming we got rid of the independent counsel, would you approve of these suggestions? Number two, would you have any other suggestions as to how we should amend the existing law? And number three, on the attorneys' fees suggestion, should that be only for the presumed subject of the investigation, in this case let us say, the President if he is found innocent and not charged? Or should it be also for witnesses who may have incurred large legal bills but were never the subject of the investigation?
Mr. ANDERSON. Let me say that the American Bar Association doesn't have policy on any of these except the last one, which is attorneys' fees, and our position on that is that there should be no special rule for attorneys' fees in the special counsel law, and that any attorneys' fees provision should apply equally to other people who are also investigated by United States attorneys. That is our policy on that.
We don't have policy on the conflicts but that certainly makes sense. It would be entirely in order, and removal for cause is the same.
Mr. NADLER. Do you have any other suggestions?
Mr. ANDERSON. No, sir.
Mr. NADLER. Mr. Flanigan, same question.
Mr. FLANIGAN. Well, working backwards, no other suggestions. Commenting on the witness fees, I would be inclined to disfavor simply compensating witnesses. The tradition in our society, generally, is that witnesses bear their own cost.
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Mr. NADLER. What about the subject of the investigation?
Mr. FLANIGAN. Subjects, certainly, yes.
Mr. NADLER. Should or should not be?
Mr. FLANIGAN. Should be compensated.
Mr. NADLER. Why not witnesses?
Mr. FLANIGAN. In most cases, the burden on witnesses is fairly low. I, myself would——
Mr. NADLER. That certainly wasn't the case in the Starr investigation. Some witnesses incurred hundreds of thousands of dollars of legal fees.
Mr. FLANIGAN. I think it is going to be a small amount of money, relatively speaking, in any event, but for most witnesses—I have been a witness in an independent counsel investigation, and my witness fees were not paid. I managed to—I have a fool as a client, and represent myself. It was not that big a deal.
Mr. NADLER. What you say is you managed to have a former client?
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Mr. FLANIGAN. A fool as a client.
Mr. NADLER. Oh, you represented——[Laughter.]
Mr. FLANIGAN. Let me just comment, if I could, on the removal idea. I guess my concern is, who would enforce that? If removal must be for cause, what is the enforcement mechanism?
Mr. NADLER. What is the enforcement mechanism in the independent counsel law? Let me just suggest the following. First of all, if you say someone is removable, serves at the pleasure of the Attorney General which would normally be the case, that is obvious. If you say someone is removable for cause, I mean, you have to define the cause a little. I assume the statute does that, I don't know really. But then, at least, she has got to make a showing, and subject to criticism if it is obviously—at the very least, it is subject to criticism if the showing is somewhat weak, shall we say.
Mr. GEKAS. Would the gentleman yield on this?
Mr. NADLER. Yes.
Mr. GEKAS. Perhaps, judicial review is the anecdote for removal for cause——
Mr. NADLER. I reclaim my time. Judicial review is very cumbersome, and the standard for judicial review, not the statute, the standard for judicial review, and for most administrative actions, is abuse of discretion, which is almost no standard at all. It is rare that you would overturn that. I don't think that would have any real impact.
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Mr. FLANIGAN. I guess we, conceivably, have an action by a regulatory special counsel for his back pay, accrued since the Attorney General——
Mr. NADLER. What is the standard in the current law for the independent counsel?
Mr. FLANIGAN. It is ''for cause removal.''
Mr. NADLER. It is for cause. What is the enforcement of that?
Mr. FLANIGAN. Well, I have never understood what the enforcement of that would be either unless it is an action for back pay.
Mr. ANDERSON. It is my understanding that the Attorney General can dismiss for cause and that that dismissal is appealable to the special panel.
Mr. NADLER. Well, no, I think it——
Mr. ANDERSON. It is subject to review.
Mr. NADLER. It is subject to judicial review?
Mr. ANDERSON. By the special panel.
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Mr. NADLER. Which wouldn't exist if we got rid of the current statute. You couldn't just make plain judicial review, normal judicial review?
Mr. FLANIGAN. In any event, I think ''for cause removal,'' exists as a practical matter, because an Attorney General in a matter of notoriety, as many of these——
Mr. NADLER. Going to be reluctant, as we saw in the Nixon case?
Mr. FLANIGAN. Of course. It is the point that, I think, General Barr made very effectively.
Mr. ANDERSON. That is that good politics will regulate that, and the good politics that he talked about is what regulates the relationship between the separate branches of Government.
Mr. FLANIGAN. But I would be very reluctant to have a court insert itself into that process of the Attorney General guiding the basset hound, as General Barr put it, to get him back on track. If the basset hound refused to get back on track, then——
Mr. NADLER. So, you would be opposed to judicial review?
Mr. FLANIGAN. I would be opposed to judicial review of removal, yes.
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Mr. NADLER. You would say we should spell out cause in the statute, and leave it to the political process to cut her head off if she violated that?
Mr. FLANIGAN. I would say it really doesn't matter if you specify cause or not. It is going to be—as a practical matter, you will have removal only for cause unless the Attorney General is feeling especially lucky.
Mr. NADLER. I see. Thank you very much.
Mr. GEKAS. The time of the gentleman has expired. We turn to the gentleman from Arkansas for a 5-minute question period.
Mr. HUTCHINSON. This has been an interesting discussion, Mr. Chairman. Just a couple of comments on what has been expressed.
Mr. Flanigan indicated that judicial review is somewhat cumbersome, but that is the remedy of every American in the event they are fired in violation of a contractual relationship. It might be cumbersome, but the remedy is to go into court and enforce that protection. I really don't see any problem with when Mr. Fiske was appointed as a special prosecutor it was written into the regulation that he could only be discharged for cause. The Attorney General has already said that if they violate that, then the remedy is for Mr. Fiske or whoever the special prosecutor is, to go into court to protect that. I think that a court would review that, and it might be cumbersome but it is a workable remedy. So, there are political considerations, but there is also independence for the special prosecutor.
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In reference to the attorneys' fees, and I would ask your comment on that—my good friend from New York talked about the witnesses. I think historically in our country, if witnesses have no reason to think they are a target, they simply go in and tell the truth. I don't see any need to incur hundreds of thousands of dollars in legal fees. All of a sudden, we set up this environment in Washington that every witness has to have two or three attorneys to be involved in a case. Now, if they are, in fact, worried about incrimination or being a target, then they are exposed to legal fees if they make the decision to hire lawyers.
Finally, in reference to the question of whether we should have a provision for reimbursement of attorneys' fees, I think the current law under an independent counsel is that if you are investigated but not indicted, then you can have recovery of attorneys' fees. But, I think the ABA's position would be based upon the principle of equal justice. As you said, all of the United States Attorneys indict folks every day. I have represented folks who have been acquitted, and there wasn't anybody providing a recovery of attorneys' fees. I am really studying and thinking through this issue because, obviously, there are some hardships out there. But, we have a special provision for an independent counsel law that sets up some uniqueness, and the uniqueness of that law may justify a recovery of attorneys' fees. You might want to comment on that. I have thrown out a couple of things. I would invite both of you to comment, and I hope I have time for a couple more questions. Mr. Flanigan.
Mr. FLANIGAN. Well, Congressman Hutchinson, just for a moment on the removal issue. Sure, everyone in private employment situations who are fired, under our system, has some colorable judicial recourse. In the independent counsel situation, though, you can imagine many different situations of ''for cause'' removal. On the one hand, you might have an independent counsel or special regulatory counsel, whatever, who had misbehaved in some egregious fashion, requiring, or in the opinion of the Attorney General, requiring removal of that independent counsel. The misbehavior might not even be directly related to the discharge of the functions of the prosecutorial decisions. On the other hand, you can imagine cases in which there is a bona fide disagreement over whether or not a case should be carried further, whether we have reached the adultery example that General Barr gave.
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Mr. HUTCHINSON. Discretionary function of the prosecutor.
Mr. FLANIGAN. Exactly. Under those circumstances, let us posit for a moment that we have ''for cause'' removal and judicial review. Is the court, then, going to make a decision based on—who is the court going to be deferring to, the independent counsel chosen to prosecute a matter or the Attorney General who conducted the employment review and the termination of the independent counsel?
Mr. HUTCHINSON. I think the court would have to make a determination whether that is a legitimate discretionary function of the prosecutor or whether it was an abuse of that discretion.
Mr. FLANIGAN. And that is precisely my point, Congressman, I think that, under those circumstances, you would have the court substituting its judgment for that of the Attorney General as to how far the case may go. I don't think courts are trained in that, and I don't think they should be in that business, with respect.
Mr. HUTCHINSON. Mr. Anderson.
Mr. ANDERSON. Congressman, as I said, the American Bar Association does not have policy on judicial review of removal for cause, and I can't speak for the American Bar Association on that.
I can give you my personal view that I think it should be left to the discretion of the Attorney General. I think removal for cause is a good idea; I think judicial review is interfering with the function of the Attorney General.
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With regard to witness fees, the American Bar Association does have policy on that, and that is if there is going to be a special rule for targets of the Independent Counsel Statute, that same rule should apply to other people in this country who are caught up in investigations.
I understand the distinction that former Attorney General Barr made that these were claims of violation of official duty, and that corporations will indemnify their officers and directors in the event the claims against them are shown to be improper in suits against directors and officers. I understand that, but by the same token, if other claims are brought against other people not under the Independent Counsel Statute, but for dereliction of some official duty, they should be entitled to indemnification, as well.
Mr. HUTCHINSON. Mr. Anderson, I just wanted to thank you for your testimony, as well as Mr. Flanigan.
I am very proud of the work you are doing, Phil, as president of the ABA, and representing Arkansas and all lawyers in that regard. Thank you for appearing before this panel today.
Mr. ANDERSON. Thank you, Congressman, it is an honor to appear before you.
Mr. GEKAS. The time of the gentleman has expired. We turn to the gentleman from Massachusetts.
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Mr. DELAHUNT. I thank you, Mr. Chairman, and this might be, really, directed to the Chair, in terms of the issue of witness fees that has been raised.
I have a memory of, I think it was, the first special investigation into Hamilton Jordan, and I think I remember reading where the cost to him was $200,000. I think it was General Barr who made a comment about deterrence in terms of public service.
I think the committee itself has a responsibility here to contact witnesses in many of these investigations, and make a determination as to the monetary impact on these people as individuals, as human beings, with family responsibilities. I appreciate what you are saying in terms of equality, if you will, as far as the application of reimbursement issues, but I really do think this is different. Mr. Hutchinson referred to the culture here in Washington—you know, if you simply go forward and tell the truth, you shouldn't be too concerned. Mr. Flanigan referred to your own representation of yourself. You are, obviously, skilled and talented, but for most Americans, the reality is that it is a very, very intimidating experience. They are going to seek counsel, and in most cases, they are going to have to incur large legal fees. I think it is something that we have to address, no matter what we do with the Independent Counsel Act itself.
I would also like to talk about the issue of judicial review. The argument put forth by my friend, Mr. Hutchinson, I think has merit. Yet, at the same time, I am more inclined to agree with General Barr that in the end it is good politics, it is political accountability where an Attorney General has to end up in a litigation over the discharge of a regulatory special counsel, prosecutor, or whatever. Again, we get back into the morass, and I agree, we end up with this blending and merging of responsibilities between the branches that I don't think are healthy under our concept of the separation of powers.
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I would also—and maybe this is a response to the chairman's issue regarding the change of position—I would have had real difficulty if I had been here to support reauthorization when the act was last reauthorized. I think that we have seen some bad politics, not just because of the Starr investigation, and it is a mistake to say this is all about the investigation of the President. There are other investigations that I think we have learned from. One being the investigation in the Iran-contra affair. I am not commenting on the performance of Mr. Walsh, but clearly the timing of the return of indictment days before a presidential election would conjure up on the part of many Americans, a concern as to whether there was politics involved. I think that was, indeed, unfortunate, and probably was the genesis of the American public's awareness that maybe this really wasn't working.
You know, we have had other investigations. Mr. Barr, this morning, very clearly said in regard to the question of the current investigation into the former Secretary of HUD, Mr. Cisneros, what are we doing? We are learning from that as I think we also learned from the results of the prosecution of the former Secretary of Agriculture, Mr. Espy, when he was acquitted, and then we had a statement by an independent counsel to the effect that, ''Well, an indictment, at least, has some therapeutic effect, and maybe in some respects, is as good as a conviction in terms of its deterrent impact.'' These are the problems that are inherent, I dare say, in the act itself.
Since I only have a few moments left, you are welcome to comment on my observations.
Mr. ANDERSON. My comment is that the problems with the act manifested themselves before the investigation of the President, and have been seen in other investigations, as well. And that says to us that the issue is structural, and it is not because of the person occupying the office.
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Mr. FLANIGAN. I would just comment briefly, Congressman Delahunt, that you alluded to the separation of powers, as I did. Your role in Congress is very important in this process, both in terms of investigating allegations of misconduct on the part of executive branch officials, as well as overseeing the Attorney General's discharge of her responsibilities.
Mr. DELAHUNT. If I can have an additional minute, Mr. Chairman?
Mr. GEKAS. Without objection.
Mr. DELAHUNT. In terms of the Starr investigation, I mean, the appointment by a three judge panel at the beginning became controversial because it was reported in the news that Judge Sentelle had a relationship with two senators who opposed many of the policies of the Clinton administration. They were critical of the President, and as General Barr again suggested, it was the beginning, if you will, of a legal juggernaught that was just a run-away train, and that is what happened.
And now, after we go through this painful process, we have a situation where we have the Attorney General investigating the independent counsel with the third branch of government, the three judge panel, that at least my reading of the statute, has only appointing authority, saying, ''Well, we don't know if you can do that or not.''
Again, this whole blending and merging is making a muck of the constitutional separation of powers. And as you said, Mr. Flanigan, I think we forgot to read the instructions.
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Mr. GEKAS. The time of the gentleman has expired. The entire hearing has expired, except for the Chair's willingness to grant one question to the gentleman from New York.
Mr. NADLER. I thank you, Chairman, for that indulgence.
I want to ask, first Mr. Anderson and then Mr. Flanigan, for your comment on the following question: We had a little colloquy a few minutes ago on the question of judicial review of the removal by the Attorney General of a special prosecutor. That is to say that the provision of the law that said the special prosecutor should not be removable except for cause, and whether that should be judicially reviewable.
Let us assume that we had such a provision and could not remove the special prosecutor except for cause, and that subject is judicial review. Can you comment on the constitutionality of that under the Morrison versus Olson decision? I understood that decision to say that the whole scheme of a special prosecutor is only constitutional as long as the politically accountable branch that appointed the Attorney General retains control, and if you had judicial review of a provision that said, once you appointed a special prosecutor, he is removable only for cause. Does that raise constitutional red flags under the Morrison decision or not?
Mr. ANDERSON. It does raise constitutional red flags. It does raise the question of whether it is a violation of the separation of powers. That case held that the fact that the Attorney General had the power to fire was the hook that prevented the measure from being a violation of the separation of powers.
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Mr. NADLER. But under the Independent Counsel Statute that is judicially reviewable. Did they say that provision was unconstitutional?
Mr. ANDERSON. No.
Mr. NADLER. They didn't get to it?
Mr. ANDERSON. No, sir, they did not. Under the case that you mentioned, Morrison against Olson, the court found the thread as being with the Attorney General, and the Attorney General's role of being able to fire the independent counsel, and that prevented it from being a violation of the separation of powers. There is a provision for a review of that under the Independent Counsel Statute, as it stands, by the special panel. But, anything that you do with regard to judicial review is going to have to be done within the four corners of Morrison against Olson.
Mr. NADLER. But within the four corners of Morrison versus Olson, if we allow judicial review of the power to remove for cause, in your judgment, would that make the statute unconstitutional or not?
Mr. ANDERSON. It would make it suspect, Congressman.
Mr. NADLER. Mr. Flanigan.
Mr. FLANIGAN. I think the holding in Morrison was based on the fact that the Attorney General clearly had removable authority. Sitting here, I don't believe that authority is reviewable by the special panel.
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Mr. NADLER. It is, not by the special panel, by the D.C. Circuit by the terms of the legislation.
Mr. FLANIGAN. Uh-huh.
Mr. NADLER. District Court, not——
Mr. FLANIGAN. I think that in Morrison, you have the situation where an independent counsel was appointed pursuant to the statute by the three judge panel. If we were in a regulatory independent counsel scheme, the Attorney General would be the appointing authority, and would be the removing authority, with removal—if Congress so determined that it should be removable only for cause, then removal only for cause. I don't think that that is constitutionally invalid.
Mr. NADLER. But if you had—if that constitutional removal for cause were subject to judicial review, would that or would that not, in your judgment, make it a constitutional problem?
Mr. FLANIGAN. I don't think it would be a constitutional problem. But, my concerns about it are rooted in the policy of having a court become involved in second-guessing a decision of that nature.
Mr. NADLER. Thank you.
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Mr. GEKAS. The time of the gentleman has expired.
Just as a final entry into the record, I want to reiterate that, under the current law, there is judicial review upon an action by the Attorney General to remove for cause. It obtains in the District Court, not in the original appointing court, which brings up the subsequent question in the context of all of this colloquy that we had. It seems to me that if you have the Attorney General able to dismiss, at will, without stating cause or for stating removal for cause without judicial review, that there is no difference between whim and cause. And therefore, judicial review is a proper inserted remedy for removal for cause. That is how I view the matter. I will allow some comment on my commentary on my own commentary.
Mr. ANDERSON. I have no comment, Mr. Chairman.
Mr. FLANIGAN. I have none either.
Mr. ANDERSON. I have no further comment, Mr. Chairman.
Mr. GEKAS. I think I will keep this hearing open until I get a comment.
We thank the witnesses. They have been extremely helpful, as the previous panel was. What you have done, whether you realize it or not, is, shall we say, foment further deliberations on our part.
Thank you very much. The panel is excused.
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Mr. DELAHUNT. Mr. Chairman, have we scheduled the next date? Just a housekeeping item, have we scheduled a date for the next hearing?
Mr. GEKAS. No, not yet. We do expect a hearing. Thank you.
We now stand adjourned.
[Whereupon, at 1:35 p.m., the subcommittee was adjourned.]
(Footnote 1 return)
Robert Bork, Dubious Counsel: Independent Counsel Law Should Be Allowed to Lapse, National Review, Mar. 8, 1999, at 18 (''Given the intense partisanship that too often infects the independent counsel's office, the law is as likely to produce spectacular injustice as it is to achieve justice.'').
(Footnote 2 return)
Morrison v. Olson, 487 U.S. 654, 671, 686, 695–96 (1988).
(Footnote 3 return)
See Remarks of Theodore Olson, 54 Wash. & Lee L. Rev. 1515, 1584 (1997) (''We got along in this country for almost 200 years without an independent counsel statute, and I want to make the point . . . that there is nothing wrong with the idea of going outside the Department of Justice to pick someone special to pursue an investigation if public confidence requires it. Bill Barr, when he was Attorney General, did that three times. . . . I think the thing that is bad about the independent counsel statute is that it is mandatory in so many respects. It has so many opportunities for use for political purposes . . .''); Terry Eastland, Ethics, Politics, and the Independent Counsel (1982).
(Footnote 4 return)
See Remarks of Former Attorney General William P. Barr, 54 Wash. & Lee L. Rev. 1515, 1534–35 (1997) (''[W]hat the statute does is it takes [discretion] away from executive branch officials and an institution that is making those judgments every day, and has a track record of making those judgments, and puts it outside and gives it to somebody else to make, someone who I don't feel has enough accountability, someone who has too narrow a scope and loses perspective as to where they are going and to drive against an individual.'').
(Footnote 5 return)
See Gerald E. Lynch, The Independent Counsel: The Problem Isn't in the Starrs but in a Misguided Law, Wash. Post, Feb. 22, 1998, at C2 (''Independent counsels are not accountable to anyone. Their judgments float free of resource constraints, of the constant comparison of varied cases and of electoral checks. Given the full investigative power of the state, a broad statute book and unlimited resources, a prosecutor can develop at least the suspicion of a criminal case against just about anyone. And the isolated and politicized context of an independent counsel investigation provides an incentive to do just that.''); Akhil Reed Amar, The Unimperial Presidency, New Republic, March 8, 1999, at 28.
(Footnote 6 return)
See Cass R. Sunstein, Unchecked and Unbalanced: Why the Independent Counsel Act Must Go, American Prospect, June 1998, at 22 (''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.''); Morrison, 487 U.S., at 732 (Scalia, J., dissenting) (''How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile—with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.'').
(Footnote 7 return)
See Cass R. Sunstein, Repeal the Independent Counsel Act, Wash. Post, Feb. 1, 1998, at C9.
(Footnote 8 return)
Mitch McConnell & Christopher Dodd, No More Independent Counsels, W.S.J., Feb. 23, 1999, at A22.
(Footnote 9 return)
''The statute is compromised at its very core. It cannot be nit-picked and amended into a satisfactory form. The statute's mere presence in any form politicizes the entire process by which we accuse people, investigate them, and eventually charge them with crimes or exonerate them. The initiation process under this statute invites all the elements that should not be involved when deciding to initiate a criminal investigation of any person, namely personal and political motivations.'' Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 Geo. L. J. 2299, 2303 (1998). See also Howard Baker, The Separation of Powers: The Roles of Independent Counsels, Inspectors General, Executive Privilege and Executive Orders, Final Report of the National Commission on the Separation of Powers, December 7, 1998; Griffin Bell, Prepared Testimony on the Independent Counsel Statute for the Senate Governmental Affairs Committee, February 24, 1999.
(Footnote 10 return)
28 U.S.C. §591(a),(d)(2).
(Footnote 11 return)
See Remarks of Former Attorney General Barr, supra, at 1529 (''The standard for commencing a preliminary investigation is very low. It is not evidence of a crime. . . . And it is very hard to knock out an allegation on the grounds of lack of credibility because 90% of these things come from the newspapers; there are some facts set forth; congressmen then push it to get an independent counsel named.'').
(Footnote 12 return)
See Remarks of Former Attorney General Barr, supra, at 1531 (''That is an area of great mischief, because I would say most of these cases turn on intent and it sort of reverses the burden to say that the Attorney General can't dispose of this unless he has clear and convincing evidence'').
(Footnote 13 return)
How Independent Counsels are Chosen: The Inside View, Wash. Post, Aug. 11, 1997, at A15.
(Footnote 14 return)
Donald C. Smaltz, The Independent Counsel: A View From Inside, 86 Geo. L. J. 2307, 2336 (1998) (''The independent counsel's limited jurisdiction quickly becomes a breeding ground for jurisdictional challenges. . . . These delay the investigation. Often, in peeling the investigatory onion, new crimes are revealed by the investigation that may, in turn, spawn new jurisdictional issues. Jurisdictional disputes sometimes occur between the independent counsel, who naturally desires to fully explore the facts as is his statutory obligation, and the DOJ, which sometimes takes a more limited view of the independent counsel's mandate. When this occurs—more delay.'').
(Footnote 15 return)
In re Espy, 80 F.3d 501, 504–06 (D.C. Cir. 1996).
(Footnote 16 return)
See, e.g., United States v. Blackley,XXF.3dXX,XX, 1999 WL 26877, *3–6 (D.C. Cir. 1999).
(Footnote 17 return)
Morrison, 487 U.S., at 671, 686, 695–96.
(Footnote 18 return)
Julie R. O'Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 Geo. L.J. 2193 (1998); Julie R. O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 Am. Crim. L. Rev. 463 (1996).
(Footnote 19 return)
For an excellent discussion of the advantages of such a procedure, see Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2133, 2146–2152 (1998).
(Footnote 20 return)
See Kavanaugh, supra note 2, at 2151.
(Footnote 21 return)
Many of these suggestions would be equally applicable to a revision of the DOJ regulations governing the appointment of regulatory ICs. See 28 C.F.R. §600.1 et seq.