Independent Counsel Act

C

Iran-Contra Affair

In 1986 former prosecutor and lawyer Lawrence E. Walsh was appointed to investigate the role of the Reagan administration in illegal weapons sales to the government of Iran. Walsh’s investigation revealed that American agents diverted profits from the secret sales of weapons to rebel “contra” groups that were attempting to overthrow the Nicaraguan government. Walsh’s inquiry into the Iran-Contra Affair was controversial because it focused attention on covert U.S. policy in Central America and because Walsh investigated the involvement of President Ronald Reagan and Vice President George Bush in the scandal.

The investigation was also controversial because of its size, cost, and duration. Walsh’s inquiry lasted seven years and cost $48.5 million, by far the most expensive independent counsel investigation up to that time. Walsh argued that a lack of cooperation by Reagan administration officials contributed to the duration and expense of the investigation. The investigation resulted in 11 convictions, two of which were later overturned.

D

Constitutionality of the Act

The Walsh investigation led many people and political interest groups to criticize the independent counsel statute. Critics argued that the law created an unaccountable and unconstitutional “fourth branch” of government. The Constitution of the United States empowers the executive branch to investigate and prosecute crimes. Critics of the independent counsel law argued that it weakened executive authority by allowing a judicial panel to select a prosecutor. Although the attorney general is part of the executive branch, his or her ability to terminate independent counsel investigations was limited both by the provisions of the statute and political realities. According to the independent counsel statute, attorneys general had to cite “good cause” to end an investigation. Those who refused to appoint independent counsels in contentious cases were sometimes accused of political favoritism.

The Supreme Court of the United States ruled on the constitutionality of the independent counsel law in the 1988 case of Morrison v. Olson. The case stemmed from allegations that Assistant Attorney General Theodore Olson misled Congress in 1982 testimony about the Environmental Protection Agency’s Superfund program. Independent Counsel Alexia Morrison investigated the charges. Olson refused to respond to Morrison’s subpoenas and asked the courts to declare the independent counsel statute unconstitutional.

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By a 7-to-1 vote, the Supreme Court upheld the independent counsel statute by ruling that the law did not unconstitutionally expand the power of Congress or limit the authority of the executive branch. In his lone dissent, Supreme Court Justice Antonin Scalia argued that the independent counsel law violated the constitutional separation of powers between the executive and judicial branches of government. Scalia expressed fear that the independent counsel law would disrupt the “equilibrium” of the American political system and would be misused as a political weapon.

E

The Starr Investigations

Following the controversial Walsh investigation, Congress did not renew the Independent Counsel Act when it expired in 1992. With the support of President Bill Clinton, Congress reauthorized the law in 1994. Five weeks later, the three-judge Special Division appointed Kenneth Starr, a former federal judge and the solicitor general during the administration of President George Bush, to investigate Bill and Hillary Clinton’s investments in the Whitewater Development Corporation during the 1970s. The Special Division also authorized Starr to investigate related crimes and possible attempts to obstruct his investigation.

At Starr’s request and by orders from the attorney general, his initial mandate and jurisdiction were expanded. Starr investigated whether firings at the White House travel office were motivated by political concerns, examined the possible misuse of FBI files by the Clinton administration, and attempted to prove that Clinton was obstructing the investigations against him and his administration. In 1998 Attorney General Janet Reno and the three-judge Special Division expanded Starr’s jurisdiction. Starr investigated whether Clinton lied in grand jury testimony in which he denied having sexual relations with former White House intern Monica Lewinsky. Starr also tried to determine whether Clinton encouraged Lewinsky to lie under oath. In the fall of the same year, Starr released a 445-page report summarizing his investigation and referred 11 possible grounds for impeachment to the U.S. House of Representatives. The House voted to impeach Clinton on charges of perjury and obstruction of justice, and passed the two articles of impeachment to the U.S. Senate for a trial. In 1999 the Senate voted to acquit Clinton.

Critics charged that Starr’s inquiry was wasteful, excessive, and a partisan persecution of private behavior. In 1999 the General Accounting Office reported that Starr’s office had spent nearly $40 million in its investigations. Critics also objected to Starr’s use of surreptitious recording equipment to gather evidence about seemingly minor crimes, his office’s leaks to the media, and other alleged ethical infractions. In congressional testimony in 1998, Starr argued that his role was “difficult” and “unpleasant,” but that “the Constitution and the criminal law do not have exceptions for unseemly or unpleasant or difficult cases.” Starr argued that his contacts with the media were not illegal and were necessary to “engender confidence” in the work of the Office of the Independent Counsel.

By the end of the impeachment process, many lawmakers expressed serious reservations about the Independent Counsel Act. Many believed it granted too much power to one prosecutor and allowed unnecessary investigations that were too expensive and too long. Others argued that the intent of the law was sound and suggested that the law could be amended to limit the duration, scope, and expense of independent counsel investigations.

Even as Starr continued his independent counsel investigation, he called for an end to the law that had authorized his inquiry. During an April 1999 appearance before the Senate Governmental Affairs Committee, Starr testified that the independent counsel statute was “structurally unsound” and “constitutionally dubious.” Later that year Starr resigned. A top deputy to Starr, Robert W. Ray, was appointed to succeed Starr and complete his investigations.

Congress let the Independent Counsel Act expire on June 30, 1999. With the law no longer in effect, the Justice Department issued a set of rules to govern future investigations of officials in the executive and legislative branches. Under the rules, the attorney general has the power to decide when a “special counsel” needs to be appointed. In addition, the attorney general defines the investigation’s jurisdiction and may review and veto indictments and “other significant investigative steps” taken by the special counsel. The attorney general may also dismiss the special counsel for good cause, such as the violation of Justice Department policies.

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