Accountability and Democracy
Policing Executive Wrongdoing
Can the executive branch police high-level wrongdoing in the executive branch? One of the received lessons from Watergate was that only a truly independent prosecutor—one not subject to dismissal by the President—could pursue wrongdoing at the highest levels of the executive branch. The legislative manifestation of that sentiment was the special prosecutor provisions of the 1978 Ethics in Government Act. The act provided a method for the appointment of a special prosecutor by a three-judge panel. The prosecutor could not, according to this law, be fired by the president without cause. In short, the law would prevent another “Saturday Night Massacre,” where the President Nixon ordered that Archibald Cox be fired. The office was later renamed Independent Counsel. The constitutionality of this arrangement was upheld by a 7-1 vote in Morrison v. Olson (1988). Justice Scalia wrote a famous dissent that many now consider prescient.
Lawrence Walsh was appointed to investigate the Iran-Contra Affairs in December 1986. He was the first Independent Counsel to draw significant criticism in the public realm. That criticism came largely from the Right. The investigation, which lasted six years and cost more than $30 million dollars, was chided as a witch-hunt. However, those who did not favor Ronald Reagan or his policies were likely to defend Lawrence Walsh’s efforts. Walsh’s defenders would argue that the investigation was delayed largely by actions of the Reagan administration. They would also point to the significant evidence of wrongdoing, including convictions in federal district court.
In 1992, when the Republicans controlled Congress, the independent counsel act was allowed to lapse. Democrats continued to push for renewal of the act. See Senator Levin’s remarks in 1993 arguing that Lawrence Walsh’s investigation had garnered public confidence and was not a whitewash. Levin acknowledged various problems with the existing arrangements and he proposed various methods for reform. The Act was reenacted in 1994. Five years later, after Kenneth Starr’s investigation resulted in the impeachment of President Bill Clinton, the act expired without support from either party, or from good government groups that initially supported it, including Common Cause.
- Should Congress give serious consideration to reinstituting some kind of arrangement for an Independent Counsel? If so, what executive offices should fall within its potential jurisdiction and what would be the mechanism for triggering the appointment of an Independent Counsel?
- In the absence of an Independent Counsel, how can the executive branch minimize the conflict-of-interest involved in the examination of high-level executive branch wrongdoing? Are there ways that Congress can better police executive wrongdoing?
- Lawrence Walsh, Firewall: The Iran-Contra Conspiracy and Cover-Up. (W. W. Norton & Company, 1998) (952 pp.)
- Katy J. Harriger, The Special Prosecutor in American Politics (University of Kansas Press, 2000)(Second edition, revised)
- U.S. v. I. Lewis Libby (2007). The successful prosecution of Scooter Libby, Vice-President Cheney’s Chief of Staff, was accomplished by Special Counsel, Patrick J. Fitzgerald. Some consider the Libby case evidence that Special Counsel Arrangements can work without an Independent Counsel system. Others considered the Libby prosecution as evidence of the same problems that existed with the Independent Counsel system. To wit, Fitzgerald was appointed to investigate leaks and he ended up prosecuting Libby for perjury, even though nobody was prosecuted for leaking. President Bush commuted Libby’s sentence, but declined to pardon him. The commutation was criticized by Rep. Wexler as an abuse of power. On the other hand, Vice President Cheney strongly disagreed with President Bush’s refusal to pardon Libby.