NCPA - National Center for Policy Analysis

Independent Counsel Statute Cannot Legislate Honest Leaders

August 21, 2000

There are no structural innovations or reforms that can substitute for basic honesty in government, says former federal Judge Kenneth W. Starr. Attempts to substitute reform for honesty in the ingenious constitutional structure created by the founders have done it a great disservice.

Specifically, in the independent counsel statute enacted in 1978, Congress wrongly subverted the constitutional structure by attempting to regulate and control the attorney general in performing the fundamentally executive function of investigating and prosecuting federal crimes.

The post-Watergate independent counsel statute had two major flaws:

  • It created only the illusion, not the reality, of legally enforceable controls over the attorney general's decision making. For example, an attorney general may ignore the statute's requirement to appoint an independent counsel as Attorney General Janet Reno has done in the investigation of Vice President Gore's campaign finance activities, despite strong recommendations to the contrary by the FBI director and the head of her own task force.
  • The statute stripped the attorney general of the actual power to appoint the independent counsel, and placed the appointment in the hands of a three federal judge panel. In doing so it placed the judiciary in the middle of a political controversy while creating perverse incentives for the attorney general to impede and undermine the investigation.

The second flaw was demonstrated most clearly in the differing interactions by Reno in the Whitewater investigation and the Waco investigation. In the Waco inquiry, Reno chose to appoint former Sen. Danforth as a special counsel, serving at her discretion. She therefore expressed great confidence in the probe, and defended its results.

However, during the so-called Whitewater investigation, the attorney general was in an adversarial position in legal proceedings with respect to the independent counsel appointed by and answerable to a three-judge panel, undermining the investigation.

Independent investigators have been appointed by previous attorneys general going back to the Grant administration because they, the Congress, the courts and the public recognized it to be their responsibility, and they were held politically accountable for fulfilling their duty.

Source: Kenneth W. Starr, "The Wisdom of the Founding Fathers: Separation of Powers and the Independent Counsel Experience," American Experiment Quarterly, Summer 2000, Center of the American Experiment, 1024 Plymouth Building, 12 South Sixth Street, Minneapolis, MN 55402.


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