An original model of the independent counsel statute

Michigan Law Review

Volumn 97, Issue 3, 1998, Pages 601-694

  Gormley, Ken ^a  

^a NONE

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EID: 0042264091     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290319     Document Type: Article

References (484)

1. RICHARD NIXON, RN: THE MEMOIRS OF RICHARD NIXON 929 (1978).
2. Simon Lazarus & Jane E. Larson, The Constitutionality of the Independent Counsel Statute, 25 AM. CRIM. L. REV. 187, 187 (1987). Lazarus participated in drafting, and lobbying in favor of, the final independent counsel statute as a White House advisor to President Jimmy Carter. Id.
3. For a more detailed examination of these events, see KEN GORMLEY, ARCHIBALD COX: CONSCIENCE OF A NATION 318-58 (1997). The White House lawyer who was intended to assist Senator Stennis in verifying the tapes was J. Fred Buzhardt, a friend of Stennis. Id. at 332.
4. See Katy J. Harriger, Damned If She Does and Damned If She Doesn't: The Attorney General and the Independent Counsel Statute, 86 GEO. L.J. 2097, 2101-02 (1998). COX had been appointed Special Prosecutor by Attorney General Elliot Richardson, as part of a package by which the Senate insisted upon the selection of a neutral prosecutor for the Watergate case, before it approved the President's choice (Richardson) to replace Attorney General Richard Kleindienst, who had resigned due to allegations of impropriety in handling the Watergate prosecution. Cox was governed by a hastily-made charter that was drafted by Richardson's office and refined by Cox and Richardson even before Cox accepted the position. See GORMLEY, supra note 3, at 232-51. The charter was formalized pursuant to a regulation adopted by the Attorney General. See 38 Fed. Reg. 14,688 (1973). For a copy of Cox's charter, designated "Duties and Responsibilities of the Special Prosecutor," see also Hearings on H.J. Res. 784 and H.R. 10937 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong. 110 (1973) [hereinafter 1973 Hearings Before the Subcomm. on Criminal Justice], and WATERGATE SPECIAL PROSECUTION FORCE REPORT app. I, at 250-51 (1975) [hereinafter WATERGATE REPORT].
5. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 295.
6. Removing Politics From the Administration of Justice: Hearings on S. 2803 and S. 2978 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong. 200 (1974) [hereinafter Removing Politics From the Administration of Justice]. 7. 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 307.
7. See Ethics in Government Act of 1978, Pub. L. No. 95-521, § 601 (a), 92 Stat. 1824, 1867-73 (independent counsel provisions are codified as amended at 28 U.S.C. §§ 49, 591-99 (1994)).
8. See Ethics in Government Act of 1978: Remarks on Signing S. 555 Into Law, II PUB. PAPERS 1854-55 (Oct. 26, 1978).
9. See Francis X. Clines & Jeff Gerth, Subpoenas Sent as Clinton Denies Reports of an Affair with Aide at White House, N.Y. TIMES, Jan. 22, 1998, at A1; Jodi A. Enda & Angie Cannon, New Sex, Coverup Scandal Engulfs Clinton, MIAMI HERALD, Jan. 22, 1998, at A1.
10. See Francis X. Clines & Jeff Gerth, Subpoenas Sent as Clinton Denies Reports of an Affair with Aide at White House, N.Y. TIMES, Jan. 22, 1998, at A1; Jodi A. Enda & Angie Cannon, New Sex, Coverup Scandal Engulfs Clinton, MIAMI HERALD, Jan. 22, 1998, at A1.
11. See In re Madison Guar. Sav. & Loan Assn., No. 94-1. 1994 WL 913274 (D.C. Cir. Aug. 5, 1994) (order appointing Kenneth W. Starr as Independent Counsel).
12. See Starr's Galaxy of Investigations, NEWSWEEK, Feb. 2, 1998, at 52. Robert Fiske had originally expanded his investigation into the Vince Foster suicide, but uncovered no impropriety. See Peter Baker, One Death Altered Path of Presidency: Five Years Later, Clinton White House Still Facing Aftermath of Foster Suicide. WASH. POST, July 20, 1998, at A1. Kenneth Starr later revisited the Foster matter and issued a report that found no wrongdoing but left many mysteries. See In re Madison Guaranty, 1994 WL 913274 (Oct. 10, 1997), (report on the Death of Vincent Foster, Jr., by the Office of the Independent Counsel). For a lively discussion of the Foster matter, and some of its puzzles, see Richard Brookhiser, Body Politics, N.Y. TIMES, Sept. 28, 1997, § 7, at 13 (reviewing CHRISTOPHER RUDDY, THE STRANGE DEATH OF VINCENT FOSTER: AN INVESTIGATION (1997)).
13. See Starr's Galaxy of Investigations, NEWSWEEK, Feb. 2, 1998, at 52. Robert Fiske had originally expanded his investigation into the Vince Foster suicide, but uncovered no impropriety. See Peter Baker, One Death Altered Path of Presidency: Five Years Later, Clinton White House Still Facing Aftermath of Foster Suicide. WASH. POST, July 20, 1998, at A1. Kenneth Starr later revisited the Foster matter and issued a report that found no wrongdoing but left many mysteries. See In re Madison Guaranty, 1994 WL 913274 (Oct. 10, 1997), (report on the Death of Vincent Foster, Jr., by the Office of the Independent Counsel). For a lively discussion of the Foster matter, and some of its puzzles, see Richard Brookhiser, Body Politics, N.Y. TIMES, Sept. 28, 1997, § 7, at 13 (reviewing CHRISTOPHER RUDDY, THE STRANGE DEATH OF VINCENT FOSTER: AN INVESTIGATION (1997)).
14. See Starr's Galaxy of Investigations, NEWSWEEK, Feb. 2, 1998, at 52. Robert Fiske had originally expanded his investigation into the Vince Foster suicide, but uncovered no impropriety. See Peter Baker, One Death Altered Path of Presidency: Five Years Later, Clinton White House Still Facing Aftermath of Foster Suicide. WASH. POST, July 20, 1998, at A1. Kenneth Starr later revisited the Foster matter and issued a report that found no wrongdoing but left many mysteries. See In re Madison Guaranty, 1994 WL 913274 (Oct. 10, 1997), (report on the Death of Vincent Foster, Jr., by the Office of the Independent Counsel). For a lively discussion of the Foster matter, and some of its puzzles, see Richard Brookhiser, Body Politics, N.Y. TIMES, Sept. 28, 1997, § 7, at 13 (reviewing CHRISTOPHER RUDDY, THE STRANGE DEATH OF VINCENT FOSTER: AN INVESTIGATION (1997)).
15. See Starr's Galaxy of Investigations, NEWSWEEK, Feb. 2, 1998, at 52. Robert Fiske had originally expanded his investigation into the Vince Foster suicide, but uncovered no impropriety. See Peter Baker, One Death Altered Path of Presidency: Five Years Later, Clinton White House Still Facing Aftermath of Foster Suicide. WASH. POST, July 20, 1998, at A1. Kenneth Starr later revisited the Foster matter and issued a report that found no wrongdoing but left many mysteries. See In re Madison Guaranty, 1994 WL 913274 (Oct. 10, 1997), (report on the Death of Vincent Foster, Jr., by the Office of the Independent Counsel). For a lively discussion of the Foster matter, and some of its puzzles, see Richard Brookhiser, Body Politics, N.Y. TIMES, Sept. 28, 1997, § 7, at 13 (reviewing CHRISTOPHER RUDDY, THE STRANGE DEATH OF VINCENT FOSTER: AN INVESTIGATION (1997)).
16. The court's order expanding Starr's jurisdiction into the Travel Office matter can be found in In re Madison Guaranty, 1994 WL 913274 (Mar. 22, 1996) (order expanding authority of the Independent Counsel to the matter of William David Watkins).
17. The court's order expanding Starr's investigation into the Nussbaum matter can be found in In re Madison Guaranty, 1994 WL 913274 (Oct. 26, 1997) (order expanding authority of the Independent Counsel to the matter of Bernard Nussbaum).
18. The court's order expanding Starr's jurisdiction into the FBI files matter can be found in In re Madison Guaranty, 1994 WL 913274 (June 21, 1996) (order expanding authority of the Independent Counsel to the matter of Anthony Marceca).
19. The court's order expanding jurisdiction in the Monica Lewinsky matter can be found in In re Madison Guaranty, No. 94-1, 1998 WL 472444 (D.D.C. Jan. 16, 1998) (order expanding authority of the Independent Counsel to the matter of Monica Lewinsky). Starr also received permission, pursuant to the Attorney General's referral powers under 28 U.S.C. § 594(e) (1994), to explore whether former Deputy Attorney General (and Clinton friend) Webster Hubbell violated federal law in connection with his billing and expense practices while a member of the Rose Law Firm, of which Hillary Clinton was also a partner. See In re Madison Guar. Sav. and Loan Assn., 1994 U.S. App. LEXIS 34673, at *1 (D.C. Cir. Sept 1, 1994) (order expanding authority of the Independent Counsel to the matter of Webster L. Hubbell). For a discussion of how these spin-offs of the Whitewater case may affect future Presidents, see Deborah Zabarenko, Will Case Isolate Presidents? PITT. POST-GAZETTE, Aug. 11, 1998, at A5.
20. See Naftali Bendavid, Lewinsky's Mother Testifies: Starr's Subpoena Stirs Up Ethical and Legal Debates, CHI. TRIB., Feb. 11, 1998, at 1.
21. See Peter Baker & Bill Miller, 3 Secret Service Agents Testify, WASH. POST, July 18, 1998, at A1. The U.S. Court of Appeals ultimately upheld this power, and the Supreme Court denied certiorari on the issue. See In re Sealed Case, 148 F.3d 1079 (D.C. Cir. 1998), cert. denied sub nom. Rubin v. United States, No. 98-93, 1998 WL 407152 (Nov. 9, 1998).
22. See Stephen Labaton, Secret Session Led to Ruling on Privilege, N.Y. TIMES, May 28, 1998, at A24; Ruth Marcus, Court Rejects Privilege Claim: White House Loses Appeal on Shielding Attorney-Client Talks, WASH. POST, July 28, 1998, at A1; Roger Simon, Clinton's Lawyers Must Testify, Rehnquist Rules, CHI. TRIB., Aug. 5, 1998, at 1; Excerpts from Rules in Compelling Testimony of 3 in the Lewinsky Case, N.Y. TIMES, May 28, 1998, at A24. The U.S. Court of Appeals affirmed the power of Starr to compel testimony from from deputy White House Counsel Bruce Lindsey, and the Supreme Court denied certiorari on the issue. See In re Lindsey, 148 F.3d. 1100 (D.C. Cir. 1998), cert. denied sub nom. Office of President v. Office of Independent Counsel, No. 98-316, 1998 WL 541012 (Nov. 9, 1998).
23. See Stephen Labaton, Secret Session Led to Ruling on Privilege, N.Y. TIMES, May 28, 1998, at A24; Ruth Marcus, Court Rejects Privilege Claim: White House Loses Appeal on Shielding Attorney-Client Talks, WASH. POST, July 28, 1998, at A1; Roger Simon, Clinton's Lawyers Must Testify, Rehnquist Rules, CHI. TRIB., Aug. 5, 1998, at 1; Excerpts from Rules in Compelling Testimony of 3 in the Lewinsky Case, N.Y. TIMES, May 28, 1998, at A24. The U.S. Court of Appeals affirmed the power of Starr to compel testimony from from deputy White House Counsel Bruce Lindsey, and the Supreme Court denied certiorari on the issue. See In re Lindsey, 148 F.3d. 1100 (D.C. Cir. 1998), cert. denied sub nom. Office of President v. Office of Independent Counsel, No. 98-316, 1998 WL 541012 (Nov. 9, 1998).
24. See Stephen Labaton, Secret Session Led to Ruling on Privilege, N.Y. TIMES, May 28, 1998, at A24; Ruth Marcus, Court Rejects Privilege Claim: White House Loses Appeal on Shielding Attorney-Client Talks, WASH. POST, July 28, 1998, at A1; Roger Simon, Clinton's Lawyers Must Testify, Rehnquist Rules, CHI. TRIB., Aug. 5, 1998, at 1; Excerpts from Rules in Compelling Testimony of 3 in the Lewinsky Case, N.Y. TIMES, May 28, 1998, at A24. The U.S. Court of Appeals affirmed the power of Starr to compel testimony from from deputy White House Counsel Bruce Lindsey, and the Supreme Court denied certiorari on the issue. See In re Lindsey, 148 F.3d. 1100 (D.C. Cir. 1998), cert. denied sub nom. Office of President v. Office of Independent Counsel, No. 98-316, 1998 WL 541012 (Nov. 9, 1998).
25. See Stephen Labaton, Secret Session Led to Ruling on Privilege, N.Y. TIMES, May 28, 1998, at A24; Ruth Marcus, Court Rejects Privilege Claim: White House Loses Appeal on Shielding Attorney-Client Talks, WASH. POST, July 28, 1998, at A1; Roger Simon, Clinton's Lawyers Must Testify, Rehnquist Rules, CHI. TRIB., Aug. 5, 1998, at 1; Excerpts from Rules in Compelling Testimony of 3 in the Lewinsky Case, N.Y. TIMES, May 28, 1998, at A24. The U.S. Court of Appeals affirmed the power of Starr to compel testimony from from deputy White House Counsel Bruce Lindsey, and the Supreme Court denied certiorari on the issue. See In re Lindsey, 148 F.3d. 1100 (D.C. Cir. 1998), cert. denied sub nom. Office of President v. Office of Independent Counsel, No. 98-316, 1998 WL 541012 (Nov. 9, 1998).
26. See Susan Schmidt & Ruth Marcus, President Has Been Served Subpoena: Testimony Sought For This Week, Legal Source Says, WASH. POST, July 26, 1998, at A1. The White House worked out a deal by which the subpoena was withdrawn, and President Clinton reluctantly agreed to give his testimony by closed circuit television, to avoid the "indignity" of a personal appearance. See Peter Baker & Susan Schmidt, Clinton Agrees to Testify for Grand Jury, WASH. POST, July 30, 1998, at A1; Scott Turow, A Secret Proceeding With No Secrets, N.Y. TIMES, Aug. 2, 1998. § 4, at 15.
27. See Susan Schmidt & Ruth Marcus, President Has Been Served Subpoena: Testimony Sought For This Week, Legal Source Says, WASH. POST, July 26, 1998, at A1. The White House worked out a deal by which the subpoena was withdrawn, and President Clinton reluctantly agreed to give his testimony by closed circuit television, to avoid the "indignity" of a personal appearance. See Peter Baker & Susan Schmidt, Clinton Agrees to Testify for Grand Jury, WASH. POST, July 30, 1998, at A1; Scott Turow, A Secret Proceeding With No Secrets, N.Y. TIMES, Aug. 2, 1998. § 4, at 15.
28. See Susan Schmidt & Ruth Marcus, President Has Been Served Subpoena: Testimony Sought For This Week, Legal Source Says, WASH. POST, July 26, 1998, at A1. The White House worked out a deal by which the subpoena was withdrawn, and President Clinton reluctantly agreed to give his testimony by closed circuit television, to avoid the "indignity" of a personal appearance. See Peter Baker & Susan Schmidt, Clinton Agrees to Testify for Grand Jury, WASH. POST, July 30, 1998, at A1; Scott Turow, A Secret Proceeding With No Secrets, N.Y. TIMES, Aug. 2, 1998. § 4, at 15.
29. See infra note 160 and accompanying text.
30. 487 U.S. 654 (1988).
31. Two books do an excellent job of examining the early congressional debates and hearings surrounding the independent counsel law. See TERRY EASTLAND, ETHICS, POLITICS AND THE INDEPENDENT COUNSEL: EXECUTIVE POWER, EXECUTIVE VICE 1789-1989, at 31-65 (1989); KATY J. HARRIGER, INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS 40-72 (1992).
32. Two books do an excellent job of examining the early congressional debates and hearings surrounding the independent counsel law. See TERRY EASTLAND, ETHICS, POLITICS AND THE INDEPENDENT COUNSEL: EXECUTIVE POWER, EXECUTIVE VICE 1789-1989, at 31-65 (1989); KATY J. HARRIGER, INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS 40-72 (1992).
33. See HARRIGER, supra note 23, at 43. During the remainder of the 93d Congress alone, at least 57 bills providing for special prosecutors were introduced. See Constance O'Keefe & Peter Safirstein, Note, Fallen Angels, Separation of Powers, and the Saturday Night Massacre: An Examination of the Practical, Constitutional, and Political Tensions in the Special Prosecutor Provisions of the Ethics in Government Act, 49 BROOK. L. REV. 113, 118 n.29 (1982) (citing CONG. INDEX (CCH) 222 (1974)).
34. See HARRIGER, supra note 23, at 42-43.
35. See Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 98-100. The general concept embodied in the Bayh bill was debated extensively in the Senate. See also Special Prosecutor Hearings Before the Senate Comm. on the Judiciary, 93d Cong. (1973) [hereinafter Special Prosecutor Hearings]. S. 2611 was first introduced by Senator Bayh on October 26, 1973, and is reported in S. REP. NO. 93-596 (1973). In the House, H.R. 11401 took a similar approach. See EASTLAND, supra note 23, at 35-36. Although the original version of the Bayh bill provided for the District Court (i.e. Judge Sirica) to appoint the special prosecutor directly, later amendments to S. 2611 provided that the district court, sitting en banc, would designate a panel of three of its members to appoint the special prosecutor. See S. REP. NO. 93-596. This approach thus mirrored that embodied in House Bill 11401. See EASTLAND, supra note 23, at 35.
36. Senator Taft's bill, S. 2642, was introduced on November 2, 1973. See S. REP. NO. 93-596, (1973). For a discussion of this and other early bills, see EASTLAND, supra note 23, at 35-36; O'Keefe & Safirstein, supra note 24, at 118 n.29.
37. See Special Prosecutor Hearings, supra note 26, at III-IV.
38. Special Prosecutor Hearings, supra note 26, at 368. The "Statement by Law School Deans" endorsing such legislation is reprinted in Special Prosecutor Hearings, supra note 26, at 551.
39. See Special Prosecutor Hearings, supra note 26, at 319.
40. See Special Prosecutor Hearings, supra note 26, at 556-60.
41. For a brief exchange in the Senate hearings in which Cox spoke about proposed legislation, and suggested that a special prosecutor under the supervision of the courts was probably constitutional, see Special Prosecutor Hearings, supra note 26, at 29-31.
42. 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 295 (remarks of Archibald Cox).
43. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 304. In the event that Congress feared the constitutional uncertainties of placing this power in the judiciary, Cox suggested that an acceptable compromise might be to provide for the appointment of the special prosecutor by the President, with the advice and consent of the Senate. However, the District Court would remain in charge of appointments if Congress was in recess, to avoid manipulation of the process by the executive branch. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 304.
44. Special Prosecutor Hearings, supra note 26, at 352.
45. See Special Prosecutor Hearings, supra note 26, at 556.
46. Nader v. Bork, 366 F. Supp. 104, 109 (D.D.C. 1973) (quoting United States v. Marzano, 149 F.2d 923, 926 (2d Cir. 1945)). Judge Gesell (like Judge Sirica) was responding to suggestions that the judiciary should shoulder the task of appointing a new special prosecutor to replace Cox and finish the Watergate case. He wrote these words in ruling that Robert Bork's firing of Cox was illegal, in the context of a civil suit brought by citizen activist Ralph Nader. Cox himself never put much stock in Gesell's ruling, and took no steps to have himself reinstated. See GORMLEY, supra note 3, at 558 n.135.
47. Special Prosecutor Hearings, supra note 26, at 451.
48. Special Prosecutor Hearings, supra note 26, at 452.
49. Special Prosecutor Hearings, supra note 26, at 451.
50. Although the House hearings jumbled together debate on at least ten different bills, the focus was on a joint House-Senate resolution (H.R.J. Res. 784) and a House bill (H.R. 11401) that - like the Bayh bill in the Senate - sought to create a temporary special prosecutor supervised by the courts. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 98 (remarks of Senator Bayh). Technically, H.R.J. Res. 784 was designed to preserve the machinery of the existing Watergate Special Prosecution Force in the wake of Cox's firing. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 28. H.R. 11401 was a broader bill that would have allowed the courts to create future special prosecutors. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 487.
51. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 263 (remarks of Hon. Robert Bork). McCarthy, a Republican from Wisconsin, led controversial Senate hearings aimed at proving that Communists had infiltrated positions of trust in the U.S. government. The McCarthy hearings were later discredited as driven by political paranoia. See generally, ROBERT GRIFFITH, THE POLITICS OF FEAR: JOSEPH R. MCCARTHY AND THE SENATE (1970).
52. 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 263.
53. 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 188.
54. U.S. CONST. art. II, § 2, cl. 2 provides that the President, with the advice and consent of the Senate, shall have the power to "appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . . ." The section goes on to provide, however, that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. CONST, art. II. § 2, cl.2. Thus, early cases distinguished between "principal officers" (who could be appointed only by the President) and "inferior officers" (whom Congress had some discretion to appoint themselves or delegate power to others to do so). See, e.g., United States v. Germaine, 99 U.S. 508, 509-10 (1878).
55. 38 U.S. (13 Pet.) 230, 257-58 (1839) (upholding the ability of federal district courts to appoint their own clerks).
56. See Ex parte Siebold, 100 U.S. 371 (1879).
57. See Siebold, 100 U.S. at 397-98.
58. Siebold, 100 U.S. at 397.
59. The Court in Siebold concluded that the question in each case turned on whether the exercise of appointment power by the judiciary (or any other branch) created an "incongruity," because it was inconsistent with the powers of another branch. Siebold, 100 U.S. at 398. For a discussion of the Appointment Clause debate in Congress, see EASTLAND, supra note 23, at 36-38. Cf. O'Keefe & Safirstein, supra note 24, at 128-35; Robert G. Solloway, Note, The Institutionalized Wolf: An Analysis of the Unconstitutionally of the Independent Counsel Provisions of the Ethics in Government Act of 1978, 21 IND. L. REV. 955, 969-73 (1988).
60. Parsons v. United States, 167 U.S. 324, 343 (1897) (involving the removal of a U.S. Attorney by President Grover Cleveland).
61. 272 U.S. 52 (1926). Myers involved an attempt by Congress to require the Senate's assent before the President could remove certain postmasters. The Court took a "formalistic" approach, declaring that "[t]he power of removal is incident to the power of appointment." 272 U.S. at 122. The presidential power to appoint a postmaster thus implied the power of removal. Chief Justice Taft (formerly President Taft) expressed in dicta a broad view of the President's power. According to Taft, the Chief Executive could constitutionally remove "executive officers and members of executive tribunals," even those who had "duties of a quasi-judicial character." 272 U.S. at 135. This was so because the President possessed an independent duty to faithfully execute the law, as he saw fit. See 272 U.S. at 135.
62. 295 U.S. 602, 632 (1935). Humphrey's Executor acknowledged that the President could remove "purely executive officers" without cause. 295 U.S at 631-32. But the President had no inherent power to remove a member of the Federal Trade Commission (FTC), in Humphrey's, because this Commissioner exercised quasi-judicial and legislative functions and was not a "purely executive officer." 295 U.S. at 628-32. President Roosevelt had removed Humphrey from the FTC after only two years in the position, even though Congress had established a seven-year term for the Commissioners and stipulated that the President could only remove those officers for "inefficiency, neglect of duty, or malfeasance in office." The modern version of the relevant statute can be found at 15 U.S.C.A. § 41 (West 1997).
63. See 357 U.S. 349, 356 (1958). Wiener reaffirmed the Humphrey's Executor approach, concluding that the President could not remove a member of the War Claims Commission. That body was established to adjudicate claims of individuals who had suffered personal injury or property losses during World War II. Despite congressional silence as to removal power, the Court concluded that the Commission in question was designed to remain free of executive interference, and the Commissioners' duties were "quasi-judicial" in nature. Removal power thus did not attach to the President. See 357 U.S. at 356. For a discussion of the removal issue, see EASTLAND, supra note 23, at 38-40; Laura L. Cox, Case Note, Political Accountability and the Independent Counsel: A Sheep in Wolf's Clothing? 57 U. CIN. L. REV. 1471, 1483-85 (1989).
64. For a more complete discussion of the constitutional removal question, see Cox, supra note 54, at 1483-85; O'Keefe & Safirstein, supra note 24, at 135-39; Solloway, supra note 50, at 973-76.
65. The doctrine of separation of powers dates back at least as far as the writings of John Locke. See Malcolm P. Sharp, The Classical American Doctrine of "The Separation of Powers," 2 U. CHI. L. REV. 385, 387-88 (1935). James Madison was one of the earliest proponents of the doctrine in America. Writing in The Federalist No. 47, Madison explained that the doctrine was essential because "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." THE FEDERALIST NO. 47, at 325 (James Madison) (Jacob E. Cooke ed., 1961). Following the theory of Montesquieu, Madison maintained that absolute separation among the three branches was not required; rather, some overlap was both necessary and desirable. THE FEDERALIST No. 47, supra, at 327-31.
66. 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 339 (testimony of Dean Roger C. Cramton).
67. U.S. CONST. art. 2, § 3.
68. For a fuller discussion of the separation of powers issue, see EASTLAND, supra note 23, at 40-41; Cox, supra note 54, at 1478-83; Solloway, supra note 50, at 963-68.
69. A nice discussion of these issues as they were intertwined with the early special prosecutor law hearings can be found in EASTLAND, supra note 23, at 35-41. Some examples of the discussions of the appointment, removal, and separation of powers issues in the early congressional debates can be found in 1 Watergate Reorganization and Reform Act of 1975: Hearings on S. 495 Before the Senate Comm. on Govt. Operations, 94th Cong. 240-43 (1975) [hereinafter Hearings Before the Senate Comm. on Govt. Operations] (remarks of Erwin Griswold); 2 Hearings Before the Senate Comm. on Govt. Operations, supra (remarks of Michael L. Uhlmann); Special Prosecutor Hearings, supra note 26, at 28-32 (remarks of Archibald Cox); Special Prosecutor Hearings, supra note 26, at 479-86 (dissenting views of Representative McClory et al.).
70. This was accomplished pursuant to a carefully worded order of Acting Attorney General Bork that required consent of a Senate Committee before Jaworski could be terminated. See Atty. Gen. Order No. 551-73, 38 Fed. Reg. 30.738 (1973); GORMLEY, supra note 3, at 380-81, 547 & n.25. Technically, Jaworski was named by the White House to replace Cox on November 1st. See Remarks of Acting Attorney General Robert H. Bork Announcing His Appointment of Leon Jaworski, 9 WEEKLY COMP. PRES. Doc. 1303 (Nov. 1, 1973). Bork's formal order re-establishing the Watergate Special Prosecution Force, however, was not issued until several weeks later. See HARRIGER, supra note 23, at 43, 228 & nn.18-19.
71. See SAM ERVIN, FINAL REPORT OF THE SENATE SELECT COMMITIEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, S. REP. NO. 93-981, at 80-81 (1974) [hereinafter FINAL REPORT OF THE SENATE SELECT COMMITTEE). Senator Ervin also chaired a subcommittee of the Senate Judiciary Committee that Spring, which considered proposals to establish a permanent "special" or "public" prosecutor. See Removing Politics from Administration of Justice, supra note 6.
72. A copy of S. 495 can be found at S. REP. NO. 94-823, at 159 (1976).
73. See Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 2-3. See also S. REP. NO. 94-823, at 93-99 (1976).
74. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 207-08, There was a great deal of concern expressed in the hearings about conflicts of interest involving the Attorney General. One source of particular concern related to the practice of some modern Presidents to appoint their campaign managers and political advisors as Attorneys General, heightening the chance of partisan political influence upon those individuals. See Jack Maskell, Legislative History and Purposes of Enactment of the Independent Counsel (Special Prosecutor) Provisions of the Ethics in Government Act of 1978, at 3-6 (Mar. 4, 1987), microformed on Major Studies and Issue Briefs of the Congressional Research Service, 1987-88 Supplement, Reel 30784 (Univ. Publications of Am.).
75. See Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 90 (remarks of Sam Dash). Professor Dash, former Chief Counsel to the Senate Watergate Committee who helped draft an earlier version of the bill, did not view the purpose of the statute as creating a permanent special prosecutor, per se. "You do not have a public attorney running wild beginning any prosecution he wants and interfering with the Attorney General. Most often he acts as an ombudsman making inquiries. Only rarely, in a crisis, does he become a special prosecutor." Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 89.
76. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 21. The Watergate Special Prosecution Force mirrored Senator Baker's concerns, noting that a "special organization" rarely remains "special" for more than several years before turning into a rigid bureaucratic body. See WATERGATE REPORT, supra note 4, at 138. "Such rigidity is especially likely, and especially harmful, in an agency that is as unaccountable as a permanent special prosecutor would be." WATERGATE REPORT, SUPRA note 4, at 139.
77. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 204.
78. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 262.
79. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 270-71.
80. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 284-85.
81. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 418. The A.B.A. report appears in Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 342-430, and is entitled Removing Political Influence From Federal Law Enforcement Agencies. The A.B.A. position found support in the WATERGATE REPORT, supra note 4, published by the Cox-Jaworski prosecutors in October 1975. The Watergate Report took the unusual step of declaring the idea of a permanent special prosecutor unacceptable: Central to the question is the fact that such a public officer would be largely immune from the accountability that prosecutors and other public officials constantly face. Lack of accountability of an official on a permanent basis carries a potential for abuse of power that far exceeds any enforcement gains that might ensue. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 437.
82. Hearings Before the Senate Comm. on Govt Operations, supra note 60, at 84 n.75 (quoting JOHN C. HAMILTON, HISTORY OF THE REPUBLIC OF THE UNITED STATES 34 (1859)).
83. See EASTLAND, supra note 23, at 46, 50. Cox and former Attorney General Ramsey Clark had offered this proposal. Id. at 50.
84. See id. at 50-51; MASKELL supra note 65, at 7. This version of S. 495 included a mechanism by which the Attorney General was required to petition a three-judge division of the Court of Appeals for the District of Columbia for the appointment of a special prosecutor under certain circumstances. See generally S. REP. NO. 94-823 (1976).
85. See Watergate Reforms: Communication from the President of the United States, Transmitting Proposed Substitute Language to Correct Constitutional and Practical Problems Contained in S. 495, H.R. DOC. NO. 94-550, at 5 (1976) [hereinafter Watergate Reforms].
86. The White House proposal is set forth in Ford's transmission to the Senate. See Watergate Reforms, supra note 76.
87. See Provision for Special Prosecutor: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 94th Cong. 1-3 (1976) [hereinafter 1976 Hearings Before the Subcomm. on Criminal Justice]; EASTLAND, supra note 23, at 52-
88. For a discussion of the political concerns hovering over Congress before the 1976 elections, see HARRIGER, supra note 23, at 50-59.
89. 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 153-54.
90. 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 155.
91. 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 155-56.
92. See 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 157-58.
93. See 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 155-56, 158-59.
94. See 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 155-59.
95. 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 172.
96. See EASTLAND, supra note 23, at 55; HARRIGER, supra note 23, at 66.
97. HARRINGER, supra note 23, at 59.
98. See O'Keefe & Safirstein, supra note 24, at 119 n.29.
99. 123 CONG. REC. 20,956 (1977) (remarks of Sen. Ribicoff) (emphasis added).
100. See 123 CONG. REC. 20,970 (1977) (remarks of Sen. Scott); HARRIGER, supra note 23, at 59-60. For a detailed discussion of the A.B.A. recommendations concerning a temporary special prosecutor, see MASKELL, supra note 65, at 9-12.
101. See 123 CONG. REC. 20,996 (1977). Senator Baker's amendment would have created a Division of Government Crimes in the Justice Department, under the supervision of an Assistant Attorney General for Government Crimes, to be appointed by the President with the advice and consent of the Senate.
102. See 123 CONG. REC. 20,997 (1977).
103. See 123 CONG. REC. 21,007 (1977). See also New Senate Watergate Bill Allows Special Prosecutor, Sets Financial Disclosure, 35 CONG. Q. WKLY. REP. 1235 (predicting easy passage of bill).
104. See H.R. REP. NO. 95-1756, at 65, 77-78 (1978). For a discussion of these events, including the delays in the House, see EASTLAND, supra note 23, at 57; HARRIGER, supra note 23, at 60-62. For a look at the separate House and Senate bills, see H.R. 9705, 95th Cong. (1978), analyzed in H.R. REP. NO. 95-1307, at 6-12 (1978); S. 555, 95th Cong. (1978). analyzed in S. REP. NO. 95-170, at 51-160 (1978) reprinted in 1978 U.S.C.C.A.N. 4265-66.
105. See 124 CONG. REC. 34,526 (1978) (Senate vote on conference report); 124 CONG. REC. 36,469 (1978) (House vote on conference report).
106. See Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824, 1867-75 (codified at 28 U.S.C. §§ 49, 591-99 (1994)); HARRIGER, supra note 23, at 61-62. For a detailed chronology of the history of the Ethics in Government Act through 1977, see S. REP. NO. 95-170, at 1 (1978), reprinted in 1978 U.S.C.C.A.N. 4265-66.
107. Ethics in Government Act of 1978: Remarks on Signing S. 555 Into Law, II PUB. PAPERS 1854-55 (Oct. 26, 1978).
108. For a section-by-section analysis of the statute as originally adopted, see 1978 U.S.C.C.A.N. 4267, 4267-97.
109. See 28 U.S.C. § 591 (1994).
110. See 28 U.S.C. § 592(a) (1994).
111. See 28 U.S.C. § 592(c)(1).
112. See 28 U.S.C. § 49 (1994).
113. See 28 U.S.C. § 593(b), (c) (1994).
114. See 28 U.S.C. § 596(a)(1) (1994); GORMLEY, supra note 3, at 237.
115. 28 U.S.C. § 596(b)(2). For a fuller discussion of the mechanics of the statute as originally drafted, see EASTLAND, supra note 23, at 58-65; O'Keefe & Safirstein, supra note 24, at 119-26.
116. See HARRIGER, supra note 23, at 44.
117. Senator Joseph Biden, Jr. (D. Del.) would later write: "There are certain extraordinary moments of crisis when the people's faith in the integrity and independence of their elected officials is caused to waiver . . . . To restore the utmost public confidence in the investigation of criminal wrongdoing by high-ranking government officials, the appointment of a special prosecutor then becomes necessary." Joseph R. Biden, Jr., Shared Power Under the Constitution: The Independent Counsel, 65 N.C. L. REV. 881, 886 (1987).
118. As Peter Rodino, Jr., Chairman of the House Judiciary Committee, stated during debates: "I think the circumstances that are contemplated are unusual circumstances, which I think arise because of unusual events, and therefore would require us to act in an extraordinary manner." 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 153-54.
119. See, e.g., Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 155-56 (remarks of Archibald Cox). Cox also made reference to Teapot Dome and Watergate in his Senate testimony. In 1974, he told a Senate Subcommittee: Teapot Dome, Watergate, and all its associated wrongdoings have taught us the sad lesson that crime and the interference with the administration of justice can reach toward the top of the executive branch. Where there is reason to believe that this may have happened, investigation and prosecution cannot be left under the Attorney General or Assistant Attorney General or others in the Department of Justice appointed by the President and necessarily answerable to him. Removing Politics From the Administration of Justice, supra note 6, at 200; MASKELL, supra note 65, at 5. Former Attorney General Elliot Richardson likewise used these two major scandals as guideposts in commenting on the proposed legislation. See Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 284-85. Even Senator Ervin's select committee referred to Watergate and Teapot Dome in advocating the creation of a permanent special prosecutor. The Committee wrote: "In each of the Nation's two major scandals during the past half century, Teapot Dome and Watergate, the appointment of a special prosecutor was essential to preserve the integrity of the criminal justice system and public confidence in the rule of law. In both situations, the office was created after serious abuses had occurred." FINAL REPORT OF THE SENATE SELECT COMMITTEE, supra note 62, at 96. The Senate Government Operations Committee that reported favorably on S. 495 in the 94th Congress discussed the Watergate affair and the Teapot Dome scandal, in explaining the need for a statutorily created temporary special prosecutor. See S. REP. NO. 94-823, at 2-6 (1976). Finally, the legislative history at the time the Ethics in Government Act was adopted in 1978 also refers back to these scandals. See 1978 U.S.C.C.A.N. 4218, 4218-19.
120. See, e.g., O'Keefe & Safirstein, supra note 24, at 115-16 n.16.
121. See ROBERT K. MURRAY, THE HARDING ERA: WARREN G. HARDING AND HIS ADMINISTRATION 461-73 (1969); FRANCIS RUSSELL, THE SHADOW OF BLOOMING GROVE: WARREN G. HARDING AND HIS TIMES 488-532 (1968). Teapot Dome was named for a distinctive rock resembling a teapot that sat on the controversial oil-lands.
122. See ROBERT K. MURRAY, THE HARDING ERA: WARREN G. HARDING AND HIS ADMINISTRATION 461-73 (1969); FRANCIS RUSSELL, THE SHADOW OF BLOOMING GROVE: WARREN G. HARDING AND HIS TIMES 488-532 (1968). Teapot Dome was named for a distinctive rock resembling a teapot that sat on the controversial oil-lands.
123. See MURRAY, supra note 111, at 473-85. Daugherty's alleged improprieties, although not directly related to Teapot Dome, raised serious questions as to whether he could conduct that investigation in a neutral fashion. Id. at 474-82. In turn, these raised questions about the entire Harding administration. Id. at 482. Daugherty had been Harding's mentor from Ohio political days.
124. See S.J. Res. 54, 68th Cong., 43 Stat. 5 (1924) (resolution requesting special prosecutors); S. Res. 282, 67th Cong., 62 CONG. REC. 6097 (1922) (congressional investigation).
125. See Fall v. United States, 49 F.2d 506 (D.C. Cir. 1931); United States v. Fall, 10 F.2d 648 (D.C. Cir. 1925), cert. denied, 281 U.S. 757 (1930). Fall was the only cabinet officer ever convicted of a crime committed while in office. See Stephen A. Wolf, In the Pursuit of Power Without Accountability: How the Independent Counsel Statute is Designed and Used to Undermine the Energy and Independence of the Presidency, 35 S.D. L. REV. 1, 13 n.22 (1989).
126. See RUSSELL, supra note 111, at 488. At the early stages of the Teapot Dome scandal, Attorney General Daugherty had resigned in disgrace in 1924 (after the House attempted to impeach him). He was indicted twice and barely escaped conviction for attempting to defraud the government. (His alleged improprieties were only marginally related to Teapot Dome). Daugherty's account can be found in HARRY M. DAUGHERTY, THE INSIDE STORY OF THE HARDING TRAGEDY (1932).
127. See supra note 112.
128. FINAL REPORT OF THE SENATE SELECT COMMITTEE, supra note 62, at 80; see also GORMLEY, supra note 3, at 256-60, 368-71; MASKELL, supra note 65, at 1-3.
129. See Ponzi v. Fessenden, 258 U.S. 254, 262 (1922).
130. The "Whiskey Ring" was the name given to a network of Midwest distillers who bribed revenue officers and pocketed liquor taxes; some of the funds allegedly made their way into Grant's reelection campaign fund through his close friend and secretary, Orville E. Babcock. The Whiskey Ring investigation was mentioned in Senate Report 823, see S. REP. NO. 94-823, at 2-6 (1976), in reviewing past special prosecutors in American history. For a more detailed account of the Whiskey Ring investigation, see 7 JAMES FORD RHODES, HISTORY OF THE UNITED STATES 182-89 (1906).
131. See S. REP. NO. 94-823, at 2-6 (1976). During the Truman administration, Attorney General J. Howard McGrath appointed a "special assistant" to investigate alleged improprieties in granting government loans and engaging in "tax fixes," by high level executive officials (including President Truman's Appointment Secretary and high-ranking Justice Department lawyers). When Special Assistant Newbold Morris sought McGrath's files, McGrath fired him. Truman then fired McGrath for interfering in the investigation. Several convictions were ultimately obtained by the special assistant during the Eisenhower administration. See Connelly v. United States, 249 F.2d 576 (8th Cir. 1957), cert. denied, 356 U.S. 921 (1958). This episode is discussed in Wolf, supra note 114, at 13.
132. Archibald Cox advocated this sort of broad authority during the course of his House testimony. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 300-04, 317.
133. See 28 U.S.C. § 593(b) (1994). As Charles Ruff, one of the Watergate Special Prosecutors who succeeded Cox and Jaworski, stated: "One of the advantages of the temporary Special Prosecutor mechanism that has been proposed is that there would be limited jurisdiction in that temporary Special Prosecutor . . . ." 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 116.
134. The American Bar Association strongly pushed the requirement of a clearly delineated statement of jurisdiction, since this "would serve as a restricting influence on any temporary special prosecutor who might otherwise have notions of expanding an investigation beyond its proper limits." 2 Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 164-65.
135. OLIVER WENDELL HOLMES, Theory of Legal Interpretation, in COLLECTED LEGAL PAPERS 203, 207 (1920). Holmes also wrote, however, that "the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down." United States v. Whitridge, 197 U.S. 135, 143 (1905).
136. Judge Kenneth Starr, while on the federal bench, espoused such a narrow view of the value of legislative history. See Kenneth W. Starr, Observations About the Use of Legislative History, 1987 DUKE L.J. 371. See also Caminetti v. United States, 242 U.S. 470, 485 (1917) (Day, J.) (stating that when statutory language is plain, legislative history cannot be examined); Hirschey v. Federal Energy Regulatory Commn., 777 F.2d 1, 7 (D.C. Cir. 1985) (Scalia, J., concurring);
137. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994);
138. Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POLY. 59, 65-66 (1988).
139. For a statement of the related principle in the law of contracts, see JOHN EDWARD MURRAY, JR., MURRAY ON CONTRACTS §§ 105-07 (2d rev. ed. 1974).
140. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (Brewer. J.) (stating the "spirit" of a statute, evidenced in part by its legislative history, controls over seemingly clear statutory language); Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423 (1988); Felix Frankfurter. Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527 (1947); Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 DUKE L.J. 380.
141. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (Brewer. J.) (stating the "spirit" of a statute, evidenced in part by its legislative history, controls over seemingly clear statutory language); Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423 (1988); Felix Frankfurter. Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527 (1947); Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 DUKE L.J. 380.
142. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (Brewer. J.) (stating the "spirit" of a statute, evidenced in part by its legislative history, controls over seemingly clear statutory language); Daniel A. Farber & Philip P. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423 (1988); Felix Frankfurter. Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527 (1947); Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 DUKE L.J. 380.
143. See supra text accompanying notes 64-86.
144. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutman ed., 1997) (advancing a strong argument in favor of "textualism"); William N. Eskridge, Jr., Textualism, The Unknown Ideal? 96 MICH. L. REV. 1509, 1513 (1998) (listing critics of the "new textualism").
145. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutman ed., 1997) (advancing a strong argument in favor of "textualism"); William N. Eskridge, Jr., Textualism, The Unknown Ideal? 96 MICH. L. REV. 1509, 1513 (1998) (listing critics of the "new textualism").
146. See ANTONIN SCALIA, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in SCALIA, supra note 128, at 9-14.
147. 487 U.S. 654 (1988). Morrison involved a challenge to the independent counsel provisions of the Ethics in Government Act filed by Theodore B. Olson. Carol E. Dinkins, and Edward C. Schmults. These three former Justice Department lawyers were under investigation for providing false testimony and withholding evidence from the House Judiciary Committee, in connection with a congressional investigation into efforts by the Environmental Protection Agency and the Justice Department to enforce the so-called "Superfund Law." See Morrison, 487 U.S. at 665-68. After a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit held that Title VI of the Ethics Act was unconstitutional, see In re Sealed Case, 838 F.2d 476 (D.C. Cir. 1988), Independent Counsel Alexia Morrison took an appeal to the Supreme Court. For a copy of the briefs filed by the parties in the Court of Appeals, see Editor's Note, The Constitutional Validity of the Ethics in Government Act: Morrison v. Olson, 16 HOFSTRA L. REV. 65 (1987).
148. A slew of other interested parties submitted amicus briefs for and against the statute. These included the citizen watchdog group Common Cause (then chaired by Archibald Cox), who filed an amicus brief defending the constitutionality of the Ethics Act provisions.
149. MASS. CONST. OF 1780, pt. 1, art. XXX. Fried would later cite this paragraph in lamenting the Court's ruling in Morrison. See Charles Fried & Paul M. Bator, Debate: After the Independent Counsel Decision: Is Separation of Powers Dead? 26 AM. CRIM. L. REV. 1667, 1669 (1989). Justice Scalia also quoted this Massachusetts provision in his vigorous dissent. See Morrison, 487 U.S. at 697 (Scalia, J., dissenting).
150. See Morrison, 487 U.S. at 660. Justice Kennedy did not take part in the consideration or decision of the Morrison case.
151. In this regard, the Morrison Court considered and rejected an argument that the Act violated the "cases and controversies" provision of Article III. The Court concluded that the judiciary possessed ample power to perform the duties Congress delegated to the special court under the statute (including the appointment of the special prosecutor), even though they were not strictly judicial in nature. See Morrison, 487 U.S. at 677-85. For a further discussion of these issues, see notes 344-56 and accompanying text.
152. See Morrison, 487 U.S. at 670-77. The Court has interpreted the Appointments Clause to mean that: "Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary." Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam). For a detailed discussion of the Appointments Clause issue in Morrison, see Stephen L. Carter, The Independent Counsel Mess, 102 HARV. L. REV. 105, 111 (1988); Kenneth R. Feinburg. The Separation of Powers Issue in the Independent Counsel Debate, 25 AM. CRIM. L. REV. 171, 175-82 (1987); Eric R. Glitzenstein & Alan B. Morrison, The Supreme Court's Decision in Morrison v. Olson: A Common Sense Application of the Constitution to a Practical Problem, 38 AM. U. L. REV. 359, 362-66 (1989); Lazarus & Larson, supra note 2, at 191-92; Cox, supra note 54, at 1486-88; Solloway, supra note 50, at 969-73; Alexander I. Tachmes, Note, Independent Counsels Under the Ethics in Government Act of 1978: A Violation of the Separation of Powers Doctrine or an Essential Check on Executive Power? 42 U. MIAMI L. REV. 735, 743-54 (1988).
153. See Morrison, 487 U.S. at 670-77. The Court has interpreted the Appointments Clause to mean that: "Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary." Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam). For a detailed discussion of the Appointments Clause issue in Morrison, see Stephen L. Carter, The Independent Counsel Mess, 102 HARV. L. REV. 105, 111 (1988); Kenneth R. Feinburg. The Separation of Powers Issue in the Independent Counsel Debate, 25 AM. CRIM. L. REV. 171, 175-82 (1987); Eric R. Glitzenstein & Alan B. Morrison, The Supreme Court's Decision in Morrison v. Olson: A Common Sense Application of the Constitution to a Practical Problem, 38 AM. U. L. REV. 359, 362-66 (1989); Lazarus & Larson, supra note 2, at 191-92; Cox, supra note 54, at 1486-88; Solloway, supra note 50, at 969-73; Alexander I. Tachmes, Note, Independent Counsels Under the Ethics in Government Act of 1978: A Violation of the Separation of Powers Doctrine or an Essential Check on Executive Power? 42 U. MIAMI L. REV. 735, 743-54 (1988).
154. See Morrison, 487 U.S. at 670-77. The Court has interpreted the Appointments Clause to mean that: "Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary." Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam). For a detailed discussion of the Appointments Clause issue in Morrison, see Stephen L. Carter, The Independent Counsel Mess, 102 HARV. L. REV. 105, 111 (1988); Kenneth R. Feinburg. The Separation of Powers Issue in the Independent Counsel Debate, 25 AM. CRIM. L. REV. 171, 175-82 (1987); Eric R. Glitzenstein & Alan B. Morrison, The Supreme Court's Decision in Morrison v. Olson: A Common Sense Application of the Constitution to a Practical Problem, 38 AM. U. L. REV. 359, 362-66 (1989); Lazarus & Larson, supra note 2, at 191-92; Cox, supra note 54, at 1486-88; Solloway, supra note 50, at 969-73; Alexander I. Tachmes, Note, Independent Counsels Under the Ethics in Government Act of 1978: A Violation of the Separation of Powers Doctrine or an Essential Check on Executive Power? 42 U. MIAMI L. REV. 735, 743-54 (1988).
155. See Morrison, 487 U.S. at 670-77. The Court has interpreted the Appointments Clause to mean that: "Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary." Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam). For a detailed discussion of the Appointments Clause issue in Morrison, see Stephen L. Carter, The Independent Counsel Mess, 102 HARV. L. REV. 105, 111 (1988); Kenneth R. Feinburg. The Separation of Powers Issue in the Independent Counsel Debate, 25 AM. CRIM. L. REV. 171, 175-82 (1987); Eric R. Glitzenstein & Alan B. Morrison, The Supreme Court's Decision in Morrison v. Olson: A Common Sense Application of the Constitution to a Practical Problem, 38 AM. U. L. REV. 359, 362-66 (1989); Lazarus & Larson, supra note 2, at 191-92; Cox, supra note 54, at 1486-88; Solloway, supra note 50, at 969-73; Alexander I. Tachmes, Note, Independent Counsels Under the Ethics in Government Act of 1978: A Violation of the Separation of Powers Doctrine or an Essential Check on Executive Power? 42 U. MIAMI L. REV. 735, 743-54 (1988).
156. 295 U.S. 602 (1935).
157. 357 U.S. 349 (1958).
158. See Morrison, 487 U.S. at 685-93. In essence, the Court in Morrison was distancing itself from the "formalistic" approach of Myers v. United States - which favored strict separation of powers and focused on whether the official was performing a "purely executive" function that belonged to the President - and embracing a less rigid "functional" approach that had its seed in Humphrey's Executor and Wiener, tolerating much more overlap among the branches of government so long as Congress was not invading the "core function" of the executive branch. For an in-depth examination of the formalist versus functional issue, see Peter B. Davidson, Note. Chipping Away at the President's Control Over His Administration: An Analysis of Morrison v. Olson and Beyond, 6 J.L. & POL. 205 (1989); William L. Weingard III, Comment, Morrison v. Olson: Renewed Acceptance for a Functional Approach to Separation of Powers, 16 HASTINGS CONST. L.Q. 603 (1989). For a more complete discussion of the removal issue, see Cox, supra note 54, at 1483-85; Michael L. McCoy, Note, The Office of Independent Counsel - A Constitutional Overview, 28 WASHBURN L.J. 150, 167-71 (1988); Solloway, supra note 50, at 973-78.
159. See Morrison, 487 U.S. at 685-93. In essence, the Court in Morrison was distancing itself from the "formalistic" approach of Myers v. United States - which favored strict separation of powers and focused on whether the official was performing a "purely executive" function that belonged to the President - and embracing a less rigid "functional" approach that had its seed in Humphrey's Executor and Wiener, tolerating much more overlap among the branches of government so long as Congress was not invading the "core function" of the executive branch. For an in-depth examination of the formalist versus functional issue, see Peter B. Davidson, Note. Chipping Away at the President's Control Over His Administration: An Analysis of Morrison v. Olson and Beyond, 6 J.L. & POL. 205 (1989); William L. Weingard III, Comment, Morrison v. Olson: Renewed Acceptance for a Functional Approach to Separation of Powers, 16 HASTINGS CONST. L.Q. 603 (1989). For a more complete discussion of the removal issue, see Cox, supra note 54, at 1483-85; Michael L. McCoy, Note, The Office of Independent Counsel - A Constitutional Overview, 28 WASHBURN L.J. 150, 167-71 (1988); Solloway, supra note 50, at 973-78.
160. See Morrison, 487 U.S. at 685-93. In essence, the Court in Morrison was distancing itself from the "formalistic" approach of Myers v. United States - which favored strict separation of powers and focused on whether the official was performing a "purely executive" function that belonged to the President - and embracing a less rigid "functional" approach that had its seed in Humphrey's Executor and Wiener, tolerating much more overlap among the branches of government so long as Congress was not invading the "core function" of the executive branch. For an in-depth examination of the formalist versus functional issue, see Peter B. Davidson, Note. Chipping Away at the President's Control Over His Administration: An Analysis of Morrison v. Olson and Beyond, 6 J.L. & POL. 205 (1989); William L. Weingard III, Comment, Morrison v. Olson: Renewed Acceptance for a Functional Approach to Separation of Powers, 16 HASTINGS CONST. L.Q. 603 (1989). For a more complete discussion of the removal issue, see Cox, supra note 54, at 1483-85; Michael L. McCoy, Note, The Office of Independent Counsel - A Constitutional Overview, 28 WASHBURN L.J. 150, 167-71 (1988); Solloway, supra note 50, at 973-78.
161. See Morrison, 487 U.S. at 693-96. For a fuller discussion of the separation of powers issue, see William C. Banks, When They Get Close to the Truth: Challenging the Special Prosecutors, 38 SYRACUSE L. REV. 623, 628-36 (1987); Feinburg, supra note 135, at 171-73; Glitzenstein & Morrison, supra note 135, at 369-82; Cox, supra note 54, at 1478-83; Solloway, supra note 50, at 963-68.
162. See David O. Stewart & Scott Nelson, Separation of Powers, Cont., A.B.A. J. Sept. 1, 1988, at 40, 44.
163. Morrison, 487 U.S. at 699 (Scalia, J., dissenting).
164. See, e.g., Carter, supra note 135; Donald A. Daugherty, Recent Case, The Separation of Powers and Abuses in Prosecutorial Discretion, 79 J. CRIM. L. & CRIMINOLOGY 953 (1988); Thomas S. Martin & David E. Zerhusen, Independent Counsel - Checks and Balances, 58 GEO. WASH. L. REV. 536 (1990); Beth Nolan, Removing Conflicts From the Administration of Justice: Conflicts of Interest and Independent Counsels Under the Ethics in Government Act, 79 GEO. L.J. 1 (1990); Independent Counsel Symposium 25 AM. CRIM. L. REV. 167 app. A at 279 (1987); Kevin R. Morrissey, Comment, Separation of Powers and the Individual: Morrison v. Olson, 55 BROOK. L. REV. 965 (1989).
165. See, e.g., Carter, supra note 135; Donald A. Daugherty, Recent Case, The Separation of Powers and Abuses in Prosecutorial Discretion, 79 J. CRIM. L. & CRIMINOLOGY 953 (1988); Thomas S. Martin & David E. Zerhusen, Independent Counsel - Checks and Balances, 58 GEO. WASH. L. REV. 536 (1990); Beth Nolan, Removing Conflicts From the Administration of Justice: Conflicts of Interest and Independent Counsels Under the Ethics in Government Act, 79 GEO. L.J. 1 (1990); Independent Counsel Symposium 25 AM. CRIM. L. REV. 167 app. A at 279 (1987); Kevin R. Morrissey, Comment, Separation of Powers and the Individual: Morrison v. Olson, 55 BROOK. L. REV. 965 (1989).
166. See, e.g., Carter, supra note 135; Donald A. Daugherty, Recent Case, The Separation of Powers and Abuses in Prosecutorial Discretion, 79 J. CRIM. L. & CRIMINOLOGY 953 (1988); Thomas S. Martin & David E. Zerhusen, Independent Counsel - Checks and Balances, 58 GEO. WASH. L. REV. 536 (1990); Beth Nolan, Removing Conflicts From the Administration of Justice: Conflicts of Interest and Independent Counsels Under the Ethics in Government Act, 79 GEO. L.J. 1 (1990); Independent Counsel Symposium 25 AM. CRIM. L. REV. 167 app. A at 279 (1987); Kevin R. Morrissey, Comment, Separation of Powers and the Individual: Morrison v. Olson, 55 BROOK. L. REV. 965 (1989).
167. See, e.g., Carter, supra note 135; Donald A. Daugherty, Recent Case, The Separation of Powers and Abuses in Prosecutorial Discretion, 79 J. CRIM. L. & CRIMINOLOGY 953 (1988); Thomas S. Martin & David E. Zerhusen, Independent Counsel - Checks and Balances, 58 GEO. WASH. L. REV. 536 (1990); Beth Nolan, Removing Conflicts From the Administration of Justice: Conflicts of Interest and Independent Counsels Under the Ethics in Government Act, 79 GEO. L.J. 1 (1990); Independent Counsel Symposium 25 AM. CRIM. L. REV. 167 app. A at 279 (1987); Kevin R. Morrissey, Comment, Separation of Powers and the Individual: Morrison v. Olson, 55 BROOK. L. REV. 965 (1989).
168. See, e.g., Carter, supra note 135; Donald A. Daugherty, Recent Case, The Separation of Powers and Abuses in Prosecutorial Discretion, 79 J. CRIM. L. & CRIMINOLOGY 953 (1988); Thomas S. Martin & David E. Zerhusen, Independent Counsel - Checks and Balances, 58 GEO. WASH. L. REV. 536 (1990); Beth Nolan, Removing Conflicts From the Administration of Justice: Conflicts of Interest and Independent Counsels Under the Ethics in Government Act, 79 GEO. L.J. 1 (1990); Independent Counsel Symposium 25 AM. CRIM. L. REV. 167 app. A at 279 (1987); Kevin R. Morrissey, Comment, Separation of Powers and the Individual: Morrison v. Olson, 55 BROOK. L. REV. 965 (1989).
169. See, e.g., Biden, supra note 107; Harold H. Bruff, Independent Counsel and the Constitution, 24 WILLAMETTE L. REV. 539 (1988); Earl C. Dudley, Jr., Morrison v. Olson: A Modest Assessment, 38 AM. U. L. REV. 255 (1989); Feinburg, supra note 135; Glitzenstein & Morrison, supra note 135; Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989); Richard J. Pierce, Morrison v. Olson, Separation of Powers, The Structure of Government, SUP. CT. REV. 1, 1 (1988); Donald J. Simon, A Constitutional Rationale for the Independent Counsel Law, 25 AM. CRIM. L. REV. 229 (1987); Frank Tuerkeimer, Prosecution of Criminal Cases: Where Executive and Judicial Power Meet, 25 AM. CRIM. L. REV. 251 (1987).
170. See, e.g., Biden, supra note 107; Harold H. Bruff, Independent Counsel and the Constitution, 24 WILLAMETTE L. REV. 539 (1988); Earl C. Dudley, Jr., Morrison v. Olson: A Modest Assessment, 38 AM. U. L. REV. 255 (1989); Feinburg, supra note 135; Glitzenstein & Morrison, supra note 135; Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989); Richard J. Pierce, Morrison v. Olson, Separation of Powers, The Structure of Government, SUP. CT. REV. 1, 1 (1988); Donald J. Simon, A Constitutional Rationale for the Independent Counsel Law, 25 AM. CRIM. L. REV. 229 (1987); Frank Tuerkeimer, Prosecution of Criminal Cases: Where Executive and Judicial Power Meet, 25 AM. CRIM. L. REV. 251 (1987).
171. See, e.g., Biden, supra note 107; Harold H. Bruff, Independent Counsel and the Constitution, 24 WILLAMETTE L. REV. 539 (1988); Earl C. Dudley, Jr., Morrison v. Olson: A Modest Assessment, 38 AM. U. L. REV. 255 (1989); Feinburg, supra note 135; Glitzenstein & Morrison, supra note 135; Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989); Richard J. Pierce, Morrison v. Olson, Separation of Powers, The Structure of Government, SUP. CT. REV. 1, 1 (1988); Donald J. Simon, A Constitutional Rationale for the Independent Counsel Law, 25 AM. CRIM. L. REV. 229 (1987); Frank Tuerkeimer, Prosecution of Criminal Cases: Where Executive and Judicial Power Meet, 25 AM. CRIM. L. REV. 251 (1987).
172. See, e.g., Biden, supra note 107; Harold H. Bruff, Independent Counsel and the Constitution, 24 WILLAMETTE L. REV. 539 (1988); Earl C. Dudley, Jr., Morrison v. Olson: A Modest Assessment, 38 AM. U. L. REV. 255 (1989); Feinburg, supra note 135; Glitzenstein & Morrison, supra note 135; Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989); Richard J. Pierce, Morrison v. Olson, Separation of Powers, The Structure of Government, SUP. CT. REV. 1, 1 (1988); Donald J. Simon, A Constitutional Rationale for the Independent Counsel Law, 25 AM. CRIM. L. REV. 229 (1987); Frank Tuerkeimer, Prosecution of Criminal Cases: Where Executive and Judicial Power Meet, 25 AM. CRIM. L. REV. 251 (1987).
173. See, e.g., Biden, supra note 107; Harold H. Bruff, Independent Counsel and the Constitution, 24 WILLAMETTE L. REV. 539 (1988); Earl C. Dudley, Jr., Morrison v. Olson: A Modest Assessment, 38 AM. U. L. REV. 255 (1989); Feinburg, supra note 135; Glitzenstein & Morrison, supra note 135; Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989); Richard J. Pierce, Morrison v. Olson, Separation of Powers, The Structure of Government, SUP. CT. REV. 1, 1 (1988); Donald J. Simon, A Constitutional Rationale for the Independent Counsel Law, 25 AM. CRIM. L. REV. 229 (1987); Frank Tuerkeimer, Prosecution of Criminal Cases: Where Executive and Judicial Power Meet, 25 AM. CRIM. L. REV. 251 (1987).
174. See, e.g., Biden, supra note 107; Harold H. Bruff, Independent Counsel and the Constitution, 24 WILLAMETTE L. REV. 539 (1988); Earl C. Dudley, Jr., Morrison v. Olson: A Modest Assessment, 38 AM. U. L. REV. 255 (1989); Feinburg, supra note 135; Glitzenstein & Morrison, supra note 135; Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989); Richard J. Pierce, Morrison v. Olson, Separation of Powers, The Structure of Government, SUP. CT. REV. 1, 1 (1988); Donald J. Simon, A Constitutional Rationale for the Independent Counsel Law, 25 AM. CRIM. L. REV. 229 (1987); Frank Tuerkeimer, Prosecution of Criminal Cases: Where Executive and Judicial Power Meet, 25 AM. CRIM. L. REV. 251 (1987).
175. See, e.g., Steven Breyer, Foreword to Independent Counsel Symposium, 25 AM. CRIM. L. REV. 167 (1987); Fried & Bator, supra note 132; Glitzenstein & Morrison, supra note 135; Lazarus & Larson, supra note 2; Alan B. Moore, Recent Development, Separation of Powers and the Independent Counsel Act - Morrison v. Olson, 12 HARV. J.L. & PUB. POLY. 259 (1989); Irvin B. Nathan & David P. Gersch, Strengthening the Independent Counsel Law Requires Judicial Review of the Attorney General's Decisions, 25 AM. CRIM. L. REV. 199 (1987); Stewart & Nelson, supra note 140; Carolyn M. Corry, Note, On the Constitutionality of the Independent Counsel Provisions of the Ethics in Government Act: Do They Comport with the Separation of Powers?, 26 DUQ. L. REV. 715 (1988); Davidson, supra note 138; Alton L. Lightney, Note, Constitutional Law: The Independent Counsel and the Supreme Court's Separation of Powers Jurisprudence, 40 FLA. L. REV. 563 (1988); McCoy, supra note 138; Solloway, supra note 50; Edward Susolik, Note, Separation of Power and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of Law, 63 S. CAL. L. REV. 1515 (1990); Weingard, supra note 138.
176. See, e.g., Steven Breyer, Foreword to Independent Counsel Symposium, 25 AM. CRIM. L. REV. 167 (1987); Fried & Bator, supra note 132; Glitzenstein & Morrison, supra note 135; Lazarus & Larson, supra note 2; Alan B. Moore, Recent Development, Separation of Powers and the Independent Counsel Act - Morrison v. Olson, 12 HARV. J.L. & PUB. POLY. 259 (1989); Irvin B. Nathan & David P. Gersch, Strengthening the Independent Counsel Law Requires Judicial Review of the Attorney General's Decisions, 25 AM. CRIM. L. REV. 199 (1987); Stewart & Nelson, supra note 140; Carolyn M. Corry, Note, On the Constitutionality of the Independent Counsel Provisions of the Ethics in Government Act: Do They Comport with the Separation of Powers?, 26 DUQ. L. REV. 715 (1988); Davidson, supra note 138; Alton L. Lightney, Note, Constitutional Law: The Independent Counsel and the Supreme Court's Separation of Powers Jurisprudence, 40 FLA. L. REV. 563 (1988); McCoy, supra note 138; Solloway, supra note 50; Edward Susolik, Note, Separation of Power and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of Law, 63 S. CAL. L. REV. 1515 (1990); Weingard, supra note 138.
177. See, e.g., Steven Breyer, Foreword to Independent Counsel Symposium, 25 AM. CRIM. L. REV. 167 (1987); Fried & Bator, supra note 132; Glitzenstein & Morrison, supra note 135; Lazarus & Larson, supra note 2; Alan B. Moore, Recent Development, Separation of Powers and the Independent Counsel Act - Morrison v. Olson, 12 HARV. J.L. & PUB. POLY. 259 (1989); Irvin B. Nathan & David P. Gersch, Strengthening the Independent Counsel Law Requires Judicial Review of the Attorney General's Decisions, 25 AM. CRIM. L. REV. 199 (1987); Stewart & Nelson, supra note 140; Carolyn M. Corry, Note, On the Constitutionality of the Independent Counsel Provisions of the Ethics in Government Act: Do They Comport with the Separation of Powers?, 26 DUQ. L. REV. 715 (1988); Davidson, supra note 138; Alton L. Lightney, Note, Constitutional Law: The Independent Counsel and the Supreme Court's Separation of Powers Jurisprudence, 40 FLA. L. REV. 563 (1988); McCoy, supra note 138; Solloway, supra note 50; Edward Susolik, Note, Separation of Power and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of Law, 63 S. CAL. L. REV. 1515 (1990); Weingard, supra note 138.
178. See, e.g., Steven Breyer, Foreword to Independent Counsel Symposium, 25 AM. CRIM. L. REV. 167 (1987); Fried & Bator, supra note 132; Glitzenstein & Morrison, supra note 135; Lazarus & Larson, supra note 2; Alan B. Moore, Recent Development, Separation of Powers and the Independent Counsel Act - Morrison v. Olson, 12 HARV. J.L. & PUB. POLY. 259 (1989); Irvin B. Nathan & David P. Gersch, Strengthening the Independent Counsel Law Requires Judicial Review of the Attorney General's Decisions, 25 AM. CRIM. L. REV. 199 (1987); Stewart & Nelson, supra note 140; Carolyn M. Corry, Note, On the Constitutionality of the Independent Counsel Provisions of the Ethics in Government Act: Do They Comport with the Separation of Powers?, 26 DUQ. L. REV. 715 (1988); Davidson, supra note 138; Alton L. Lightney, Note, Constitutional Law: The Independent Counsel and the Supreme Court's Separation of Powers Jurisprudence, 40 FLA. L. REV. 563 (1988); McCoy, supra note 138; Solloway, supra note 50; Edward Susolik, Note, Separation of Power and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of Law, 63 S. CAL. L. REV. 1515 (1990); Weingard, supra note 138.
179. See, e.g., Steven Breyer, Foreword to Independent Counsel Symposium, 25 AM. CRIM. L. REV. 167 (1987); Fried & Bator, supra note 132; Glitzenstein & Morrison, supra note 135; Lazarus & Larson, supra note 2; Alan B. Moore, Recent Development, Separation of Powers and the Independent Counsel Act - Morrison v. Olson, 12 HARV. J.L. & PUB. POLY. 259 (1989); Irvin B. Nathan & David P. Gersch, Strengthening the Independent Counsel Law Requires Judicial Review of the Attorney General's Decisions, 25 AM. CRIM. L. REV. 199 (1987); Stewart & Nelson, supra note 140; Carolyn M. Corry, Note, On the Constitutionality of the Independent Counsel Provisions of the Ethics in Government Act: Do They Comport with the Separation of Powers?, 26 DUQ. L. REV. 715 (1988); Davidson, supra note 138; Alton L. Lightney, Note, Constitutional Law: The Independent Counsel and the Supreme Court's Separation of Powers Jurisprudence, 40 FLA. L. REV. 563 (1988); McCoy, supra note 138; Solloway, supra note 50; Edward Susolik, Note, Separation of Power and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of Law, 63 S. CAL. L. REV. 1515 (1990); Weingard, supra note 138.
180. See, e.g., Steven Breyer, Foreword to Independent Counsel Symposium, 25 AM. CRIM. L. REV. 167 (1987); Fried & Bator, supra note 132; Glitzenstein & Morrison, supra note 135; Lazarus & Larson, supra note 2; Alan B. Moore, Recent Development, Separation of Powers and the Independent Counsel Act - Morrison v. Olson, 12 HARV. J.L. & PUB. POLY. 259 (1989); Irvin B. Nathan & David P. Gersch, Strengthening the Independent Counsel Law Requires Judicial Review of the Attorney General's Decisions, 25 AM. CRIM. L. REV. 199 (1987); Stewart & Nelson, supra note 140; Carolyn M. Corry, Note, On the Constitutionality of the Independent Counsel Provisions of the Ethics in Government Act: Do They Comport with the Separation of Powers?, 26 DUQ. L. REV. 715 (1988); Davidson, supra note 138; Alton L. Lightney, Note, Constitutional Law: The Independent Counsel and the Supreme Court's Separation of Powers Jurisprudence, 40 FLA. L. REV. 563 (1988); McCoy, supra note 138; Solloway, supra note 50; Edward Susolik, Note, Separation of Power and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of Law, 63 S. CAL. L. REV. 1515 (1990); Weingard, supra note 138.
181. See James A. Cohen, Self-Love and the Judicial Power to Appoint a Special Prosecutor, 16 HOFSTRA L. REV. 23 (1987); Lazarus & Larson, supra note 2, at 191-94. A number of states have similarly permitted the judicial branch to appoint special prosecutors. See People ex rel. Lindsley v. District Court, 66 P. 896 (Colo. 1901); State ex rel. Kelly v. Alcorn, 6 Conn. Supp. 210 (Conn. Super. Ct. 1938); Pelaez v. State, 144 So. 364 (Fla. 1932); Mach v. State, 135 S.E.2d 467 (Ga. 1964); State v. Bell, 370 P.2d 508 (Idaho 1962); People v. Sears, 273 N.E.2d 380 (Ill. 1971); Hendricks v. State, 196 N.E.2d 66 (Ind. 1964); White v. Polk County, 17 Iowa 413 (1864); Attorney General v. Flynn, 120 N.E.2d 296 (Mass. 1954); In re Investigation of Recount, 258 N.W. 776 (Mich. 1935); State v. Jones, 268 S.W. 83 (Mo. 1924); Lizar v. State, 166 P.2d 119 (Okla. Crim. App. 1946); State v. Bute, 234 N.W. 605 (S.D. 1931); State v. Gonzales, 26 Tex. 197 (1862). See also Janet Fairchild, Annotation, Validity, Under State Law, of Appointment of Independent Special Prosecutor to Handle Political or Controversial Prosecutions or Investigations of Persons Other Than Regular Prosecutor, 84 A.L.R. 3D 29 (1978).
182. See James A. Cohen, Self-Love and the Judicial Power to Appoint a Special Prosecutor, 16 HOFSTRA L. REV. 23 (1987); Lazarus & Larson, supra note 2, at 191-94. A number of states have similarly permitted the judicial branch to appoint special prosecutors. See People ex rel. Lindsley v. District Court, 66 P. 896 (Colo. 1901); State ex rel. Kelly v. Alcorn, 6 Conn. Supp. 210 (Conn. Super. Ct. 1938); Pelaez v. State, 144 So. 364 (Fla. 1932); Mach v. State, 135 S.E.2d 467 (Ga. 1964); State v. Bell, 370 P.2d 508 (Idaho 1962); People v. Sears, 273 N.E.2d 380 (Ill. 1971); Hendricks v. State, 196 N.E.2d 66 (Ind. 1964); White v. Polk County, 17 Iowa 413 (1864); Attorney General v. Flynn, 120 N.E.2d 296 (Mass. 1954); In re Investigation of Recount, 258 N.W. 776 (Mich. 1935); State v. Jones, 268 S.W. 83 (Mo. 1924); Lizar v. State, 166 P.2d 119 (Okla. Crim. App. 1946); State v. Bute, 234 N.W. 605 (S.D. 1931); State v. Gonzales, 26 Tex. 197 (1862). See also Janet Fairchild, Annotation, Validity, Under State Law, of Appointment of Independent Special Prosecutor to Handle Political or Controversial Prosecutions or Investigations of Persons Other Than Regular Prosecutor, 84 A.L.R. 3D 29 (1978).
183. One of the finest articles on this subject is Krent, supra note 143. See also Cohen, supra note 145; Feinburg, supra note 135; Lazarus & Larson, supra note 2; Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 GEO. WASH. L. REV. 596, 603-06 (1989). For a recent case holding that federal courts could appoint private counsel to prosecute criminal contempt charges, see Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787 (1987). Such cases frequently arose in the patent/counterfeit trademark area, where the court had little power to enforce its contempt orders without appointing a special prosecutor to do so. See Cohen, supra note 145, at 23-24.
184. The best pieces of scholarship on this subject are Krent, supra note 143 and Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069 (1990). See also Dudley, supra note 143. But see Solloway, supra note 50, at 964-68 (suggesting that prosecution is a core function of the executive).
185. One of the most impressive articles devoted to sorting out how to cure the statute's defects is Julie O'Sullivan. The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463 (1996). See also Judge Griffin B. Bell et al., A Roundtable Discussion on the Independent Counsel Statute, 49 MERCER L. REV. 457 (1998); Benjamin R. Civiletti, Post-Watergate Legislation in Retrospect: The Alfred P. Murrah Lecture on the Administration of Justice, 34 Sw. L.J. 1043 (1981).
186. One of the most impressive articles devoted to sorting out how to cure the statute's defects is Julie O'Sullivan. The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463 (1996). See also Judge Griffin B. Bell et al., A Roundtable Discussion on the Independent Counsel Statute, 49 MERCER L. REV. 457 (1998); Benjamin R. Civiletti, Post-Watergate Legislation in Retrospect: The Alfred P. Murrah Lecture on the Administration of Justice, 34 Sw. L.J. 1043 (1981).
187. One of the most impressive articles devoted to sorting out how to cure the statute's defects is Julie O'Sullivan. The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463 (1996). See also Judge Griffin B. Bell et al., A Roundtable Discussion on the Independent Counsel Statute, 49 MERCER L. REV. 457 (1998); Benjamin R. Civiletti, Post-Watergate Legislation in Retrospect: The Alfred P. Murrah Lecture on the Administration of Justice, 34 Sw. L.J. 1043 (1981).
188. See supra notes 142-44.
189. See supra notes 134-39 and accompanying text. But see Carter, supra note 135, at 136-41 (criticizing decision in Morrison as misguided); Independent Counsel Symposium, supra note 142, app. A at 279 (statement by former Attorney General Griffin Bell to House Judiciary Committee, calling legislation unconstitutional and unwise).
190. SR151. See, e.g., Glitzenstein & Morrison, supra note 135; Keith Werhan, Toward an Eclectic Approach to Separation of Powers: Morrison v. Olson Examined, 16 HASTINGS CONST. L.Q. 393 (1989); Morrissey, supra note 142. For an engaging debate between two prominent constitutional scholars on the separation of powers question presented in Morrison, see Fried & Bator, supra note 132. More recently, Professor Akhil Amar has sharply questioned the constitutionality of the independent counsel law. See Akhil Reed Amar, A Constitutional Nightmare, WASH. POST, Sept. 20, 1998, at C1. Amar's lively discussion with Professor Laurence Tribe about the constitutionality of the statute, in light of its recent application in the Lewinsky investigation, can be found in Akhil Reed Amar & Laurence Tribe. The Independent Counsel, SLATE (Sept. 10, Sept. 15, Sept. 29, Oct. 1, Oct. 12, 1998) 〈http://www.slate.com/ code/DDD/DDD.asp?file=IC&i:Msg=1〉. A masterful argument by Amar with respect to the unconstitutionality of the independent counsel law appears in Akhil Reed Amar, Intertextualism, 112 HARV. L. REV. (forthcoming Jan. 1999). However, this author remains unpersuaded.
191. See, e.g., Glitzenstein & Morrison, supra note 135; Keith Werhan, Toward an Eclectic Approach to Separation of Powers: Morrison v. Olson Examined, 16 HASTINGS CONST. L.Q. 393 (1989); Morrissey, supra note 142. For an engaging debate between two prominent constitutional scholars on the separation of powers question presented in Morrison, see Fried & Bator, supra note 132. More recently, Professor Akhil Amar has sharply questioned the constitutionality of the independent counsel law. See Akhil Reed Amar, A Constitutional Nightmare, WASH. POST, Sept. 20, 1998, at C1. Amar's lively discussion with Professor Laurence Tribe about the constitutionality of the statute, in light of its recent application in the Lewinsky investigation, can be found in Akhil Reed Amar & Laurence Tribe. The Independent Counsel, SLATE (Sept. 10, Sept. 15, Sept. 29, Oct. 1, Oct. 12, 1998) 〈http://www.slate.com/ code/DDD/DDD.asp?file=IC&i:Msg=1〉. A masterful argument by Amar with respect to the unconstitutionality of the independent counsel law appears in Akhil Reed Amar, Intertextualism, 112 HARV. L. REV. (forthcoming Jan. 1999). However, this author remains unpersuaded.
192. See, e.g., Glitzenstein & Morrison, supra note 135; Keith Werhan, Toward an Eclectic Approach to Separation of Powers: Morrison v. Olson Examined, 16 HASTINGS CONST. L.Q. 393 (1989); Morrissey, supra note 142. For an engaging debate between two prominent constitutional scholars on the separation of powers question presented in Morrison, see Fried & Bator, supra note 132. More recently, Professor Akhil Amar has sharply questioned the constitutionality of the independent counsel law. See Akhil Reed Amar, A Constitutional Nightmare, WASH. POST, Sept. 20, 1998, at C1. Amar's lively discussion with Professor Laurence Tribe about the constitutionality of the statute, in light of its recent application in the Lewinsky investigation, can be found in Akhil Reed Amar & Laurence Tribe. The Independent Counsel, SLATE (Sept. 10, Sept. 15, Sept. 29, Oct. 1, Oct. 12, 1998) 〈http://www.slate.com/ code/DDD/DDD.asp?file=IC&i:Msg=1〉. A masterful argument by Amar with respect to the unconstitutionality of the independent counsel law appears in Akhil Reed Amar, Intertextualism, 112 HARV. L. REV. (forthcoming Jan. 1999). However, this author remains unpersuaded.
193. Amar, supra note 151; Amar & Tribe, supra note 151. Professor Amar hinges his prediction upon the recent decision of Edmond v. United States, 520 U.S. 651 (1997), in which the Court (per Justice Scalia) discussed the concept of "inferior" and "principal" officers under the Appointment Clause of Article II, Section 2, in some detail. See also Nick Braven, Is Morrison v. Olson Still Good Law? The Court's New Appointment Clause Jurisprudence. 98 COLUM. L. REV. 1103 (1998). Yet, Edmond dealt with the unique subject of military law, and specifically avoided casting any stones at the Morrison decision. See 520 U.S. at 661-62. Thus, Professor Amar's conclusion that Edmond effectively repudiates the Court's decision in Morrison seems to be a stretch (however valiant). Professor Tribe, in his September 15th reply to Amar in the Internet publication Slate, above, apparently agrees. Amar & Tribe, supra note 151.
194. Justice Ginsburg, as a federal appeals judge, favored the position that the independent counsel law was constitutional. See In re Sealed Case, 838 F.2d 476, 518 (D.C. Cir. 1988) (Ginsburg, J., dissenting). Justice Breyer, as a First Circuit judge and former Harvard Law professor, participated in a Symposium for the American Criminal Law Review that was generally supportive of the independent counsel law, although Breyer himself remained neutral in his comments. See Breyer, supra note 144.
195. See infra note 156-58 and accompanying text.
196. 28 U.S.C. § 599 (1994).
197. See Ethics in Government Act, Amendments of 1982, Pub. L. No. 97-409, 96 Stat. 2039; Independent Counsel Reauthorization Act of 1987, Pub. L. No. 100-191, 101 Stat. 1293. For a discussion of the 1982 reauthorization and related amendments, see Thomas J. Satery, The Ethics in Government Act of 1978 and Subsequent Reforms: The Effect of Political and Practical Influences on the Creation of Public Policy, 13 SETON HALL LEGIS. J. 243, 251-59 (1990). For a discussion of the 1987 reauthorization and amendments, see Stanley I. Kutler, In the Shadow of Watergate: Legal, Political, and Cultural Implications, 18 NOVA L. REV. 1743, 1751-54 (1994); Satery, supra, at 260-67.
198. See Ethics in Government Act, Amendments of 1982, Pub. L. No. 97-409, 96 Stat. 2039; Independent Counsel Reauthorization Act of 1987, Pub. L. No. 100-191, 101 Stat. 1293. For a discussion of the 1982 reauthorization and related amendments, see Thomas J. Satery, The Ethics in Government Act of 1978 and Subsequent Reforms: The Effect of Political and Practical Influences on the Creation of Public Policy, 13 SETON HALL LEGIS. J. 243, 251-59 (1990). For a discussion of the 1987 reauthorization and amendments, see Stanley I. Kutler, In the Shadow of Watergate: Legal, Political, and Cultural Implications, 18 NOVA L. REV. 1743, 1751-54 (1994); Satery, supra, at 260-67.
199. See James P. Fleissner, The Future of the Independent Counsel Statute: Confronting the Dilemma of Allocating the Power of Prosecutorial Discretion, 49 MERCER L. REV. 427, 440 (1998); Kutler, supra note 156, at 1754.
200. See Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, 108 Stat. 732.
201. President's Statement on Signing the Independent Counsel Reauthorization Act, I PUB. PAPERS 1169 (June 30, 1994). President Clinton later had a change of heart about the statute, after being hounded by the Whitewater scandal. Following the 1996 election, he reportedly told his opponent, Senator Bob Dole, who had opposed reauthorization of the independent counsel law: "You were right and I was wrong on the independent counsel." BOB WOODWARD, THE CHOICE: HOW CLINTON WON 444 (1997).
202. See Paul T. Cappuccio, Scalia Was Right About the Independent Counsel Law, WALL ST. J., June 29, 1998, at A19 (stating that the "statute has utterly failed to achieve its overriding goal" and should be scrapped); Gerard E. Lynch, The Problem Isn't in the Starrs But in a Misguided Law, WASH. POST, Feb. 22, 1998, at C3; Julia Malone, Some Rethinking Suppon of 1978 Counsel Statute, AUSTIN AM.-STATESMAN, Feb. 12, 1998, at A10, available in ALLNEWS, 1998 WL 3627743; Jeremy Rabkin, Rule by Unaccountability: Critics of the Independent Counsel Don't Go Far Enough, AM. SPECTATOR, July 1998, at 52; David E. Rovella, Ken Starr: A Hard Man to Fire, NATL. L.J., Feb. 16, 1998, at A1; James Toedtman, Independent Counsel Law - Democrats Eating Humble Pie Now, SEATTLE TIMES, July 24, 1998, at A2.
203. See Paul T. Cappuccio, Scalia Was Right About the Independent Counsel Law, WALL ST. J., June 29, 1998, at A19 (stating that the "statute has utterly failed to achieve its overriding goal" and should be scrapped); Gerard E. Lynch, The Problem Isn't in the Starrs But in a Misguided Law, WASH. POST, Feb. 22, 1998, at C3; Julia Malone, Some Rethinking Suppon of 1978 Counsel Statute, AUSTIN AM.-STATESMAN, Feb. 12, 1998, at A10, available in ALLNEWS, 1998 WL 3627743; Jeremy Rabkin, Rule by Unaccountability: Critics of the Independent Counsel Don't Go Far Enough, AM. SPECTATOR, July 1998, at 52; David E. Rovella, Ken Starr: A Hard Man to Fire, NATL. L.J., Feb. 16, 1998, at A1; James Toedtman, Independent Counsel Law - Democrats Eating Humble Pie Now, SEATTLE TIMES, July 24, 1998, at A2.
204. See Paul T. Cappuccio, Scalia Was Right About the Independent Counsel Law, WALL ST. J., June 29, 1998, at A19 (stating that the "statute has utterly failed to achieve its overriding goal" and should be scrapped); Gerard E. Lynch, The Problem Isn't in the Starrs But in a Misguided Law, WASH. POST, Feb. 22, 1998, at C3; Julia Malone, Some Rethinking Suppon of 1978 Counsel Statute, AUSTIN AM.-STATESMAN, Feb. 12, 1998, at A10, available in ALLNEWS, 1998 WL 3627743; Jeremy Rabkin, Rule by Unaccountability: Critics of the Independent Counsel Don't Go Far Enough, AM. SPECTATOR, July 1998, at 52; David E. Rovella, Ken Starr: A Hard Man to Fire, NATL. L.J., Feb. 16, 1998, at A1; James Toedtman, Independent Counsel Law - Democrats Eating Humble Pie Now, SEATTLE TIMES, July 24, 1998, at A2.
205. See Paul T. Cappuccio, Scalia Was Right About the Independent Counsel Law, WALL ST. J., June 29, 1998, at A19 (stating that the "statute has utterly failed to achieve its overriding goal" and should be scrapped); Gerard E. Lynch, The Problem Isn't in the Starrs But in a Misguided Law, WASH. POST, Feb. 22, 1998, at C3; Julia Malone, Some Rethinking Suppon of 1978 Counsel Statute, AUSTIN AM.-STATESMAN, Feb. 12, 1998, at A10, available in ALLNEWS, 1998 WL 3627743; Jeremy Rabkin, Rule by Unaccountability: Critics of the Independent Counsel Don't Go Far Enough, AM. SPECTATOR, July 1998, at 52; David E. Rovella, Ken Starr: A Hard Man to Fire, NATL. L.J., Feb. 16, 1998, at A1; James Toedtman, Independent Counsel Law - Democrats Eating Humble Pie Now, SEATTLE TIMES, July 24, 1998, at A2.
206. See Paul T. Cappuccio, Scalia Was Right About the Independent Counsel Law, WALL ST. J., June 29, 1998, at A19 (stating that the "statute has utterly failed to achieve its overriding goal" and should be scrapped); Gerard E. Lynch, The Problem Isn't in the Starrs But in a Misguided Law, WASH. POST, Feb. 22, 1998, at C3; Julia Malone, Some Rethinking Suppon of 1978 Counsel Statute, AUSTIN AM.-STATESMAN, Feb. 12, 1998, at A10, available in ALLNEWS, 1998 WL 3627743; Jeremy Rabkin, Rule by Unaccountability: Critics of the Independent Counsel Don't Go Far Enough, AM. SPECTATOR, July 1998, at 52; David E. Rovella, Ken Starr: A Hard Man to Fire, NATL. L.J., Feb. 16, 1998, at A1; James Toedtman, Independent Counsel Law - Democrats Eating Humble Pie Now, SEATTLE TIMES, July 24, 1998, at A2.
207. See Paul T. Cappuccio, Scalia Was Right About the Independent Counsel Law, WALL ST. J., June 29, 1998, at A19 (stating that the "statute has utterly failed to achieve its overriding goal" and should be scrapped); Gerard E. Lynch, The Problem Isn't in the Starrs But in a Misguided Law, WASH. POST, Feb. 22, 1998, at C3; Julia Malone, Some Rethinking Suppon of 1978 Counsel Statute, AUSTIN AM.-STATESMAN, Feb. 12, 1998, at A10, available in ALLNEWS, 1998 WL 3627743; Jeremy Rabkin, Rule by Unaccountability: Critics of the Independent Counsel Don't Go Far Enough, AM. SPECTATOR, July 1998, at 52; David E. Rovella, Ken Starr: A Hard Man to Fire, NATL. L.J., Feb. 16, 1998, at A1; James Toedtman, Independent Counsel Law - Democrats Eating Humble Pie Now, SEATTLE TIMES, July 24, 1998, at A2.
208. See Brett M. Kavanaugh, The President and the Independent Counsel, 86 GEO. L.J. 2133, 2135-36 (1998).
209. See Bell et al., supra note 148, at 477-78; Fleissner, supra note 157, at 449.
210. See Michael R. Bromwich, Running Special Investigations: The Inspector General Model, 86 GEO. L.J. 2027 (1998); Kathleen Clark, Toward More Ethical Government: An Inspector General for the White House, 49 MERCER L. REV. 553 (1998). The Inspector General Act of 1978 is codified as amended at 5 U.S.C. app. 3 §§ 1-12 (1994).
211. See Michael R. Bromwich, Running Special Investigations: The Inspector General Model, 86 GEO. L.J. 2027 (1998); Kathleen Clark, Toward More Ethical Government: An Inspector General for the White House, 49 MERCER L. REV. 553 (1998). The Inspector General Act of 1978 is codified as amended at 5 U.S.C. app. 3 §§ 1-12 (1994).
212. See EASTLAND, supra note 23, at 134; see also Sixty-Seventh Judicial Conference of the Fourth Circuit: The Independent Counsel Process: Is It Broken and How Should it be Fixed?, 54 WASH. & LEE L. REV. 1515, 1590 (1997) [hereinafter Sixty-Seventh Judicial Conference] (remarks of Terry Eastland).
213. See Kenneth Jost, Independent Counsel Disconnect: Some Critics Suggest Limiting Lengths and Targets of Investigations, A.B.A. J., Apr. 1997, at 30, 30.
214. The twenty independent counsel investigations, and their subjects, are as follows, Carter Administration: Investigation of White House Chief of Staff Hamilton Jordan for cocaine use (Independent Counsel: Arthur H. Christy) (no charges filed); Campaign Manager Timothy Kraft for cocaine use (Independent Counsel: Gerald J. Gallinghouse) (no charges). Reagan Administration: Labor Secretary Raymond Donovan for larceny and fraud (Independent Counsel: Leon Silverman) (no charges); White House counsel Edwin Meese for financial improprieties (Independent Counsel: Jacob A. Stein) (no charges); Assistant Attorney General Theodore B. Olson for lying in congressional testimony (Independent Counsel: Alexia Morrison) (no charges); White House Aide Michael K. Deaver for lying about lobbying foreign clients (Independent Counsel: Whitney North Seymour, Jr.) (convicted of perjury); Various Reagan Administration officials for illegally selling arms to Iran and diverting funds to Nicaraguan Contras (Independent Counsel: Lawrence E. Walsh) (multiple indictments, convictions, and guilty pleas, some nullified by presidential pardon); Attorney General Edwin Meese and White House Aide Franklyn Nofziger for contracting scandal involving Wedtech Corp. (Independent Counsel: James C. McKay) (one acquittal, one conviction overturned on appeal); Assistant Attorney General W. Lawrence Wallace for finance- related abuses (Independent Counsels: James R. Harper; Carl Rauh) (no charges); White House aide James Cicconi for improper loan (under seal) (Independent Counsel: Dan Webb) (no charges); Housing and Urban Development Secretary Samuel Pierce for fraud and mismanagement (Independent Counsels: Arlin Adams; Larry D. Thompson) (multiple convictions and guilty pleas, one acquittal) (final report not yet filed). Bush Administration: Under seal (name of subject and independent counsel under seal) (no charges); Bush Administration officials for illegal search of Bill Clinton's passport file during campaign (Independent Counsels: Joseph E. DiGenova; Michael Zeldin) (no charges). Clinton Administration: Bill and Hillary Clinton regarding Whitewater land deal (Independent Counsels: Robert Fiske; Kenneth W. Starr) (multiple indictments, guilty pleas, acquittals, and convictions) (pending); Secretary of Agriculture Mike Espy for accepting improper gifts (Independent Counsel: Donald C. Smaltz) (multiple convictions, guilty pleas, and acquittals) (acquitted); HUD Secretary Henry G. Cisneros for lying to FBI about size of payments to mistress (Independent Counsel: David M. Barrett) (pending); Secretary of Commerce Ronald H. Brown for personal financial irregularities (Independent Counsel: Daniel S. Pearson) (case terminated and transferred to Justice Department upon Brown's death); AmeriCorps head and former campaign chief of staff Eli Segal for conflict of interest allegations (Independent Counsel: Curtis von Kann) (no charges); Secretary of Interior Bruce Babbitt for allegedly testifying falsely to Congress regarding rejection of Wisconsin Indian casino license (Independent Counsel: Carol Elder Bruce) (pending); Labor Secretary Alexis M. Herman for allegedly receiving kickbacks to steer contributions to the Democratic party as director of White House Office of Public Liaison (Independent Counsel: Ralph I. Lancaster, Jr.) (pending). See Jack Maskell, The Independent Counsel Law, FED. LAW., July 1998, at 28, 31; Donald E. Smaltz, The Independent Counsel, a View from Inside, 86 GEO. L.J. 2307, 2323-24 (1998); Susan Page, Independent Counsel Law: Parties Switch Sides, USA TODAY, Nov. 14, 1997, at 4A; Roberto Suro, Labor Secretary Under Investigation: Reno Seeks Independent Counsel, AUSTIN AM.-STATESMAN, May 12, 1998, at A1; Counsel Appointed for Babbitt Inquiry, N.Y. TIMES, Mar. 20, 1998, at A14; Independent Counsel Investigations, WASH. POST, Apr. 13, 1997, at A12; Investigator Chosen in Labor Secretary's Case, N.Y. TIMES, May 27, 1998, at A18.
215. The twenty independent counsel investigations, and their subjects, are as follows, Carter Administration: Investigation of White House Chief of Staff Hamilton Jordan for cocaine use (Independent Counsel: Arthur H. Christy) (no charges filed); Campaign Manager Timothy Kraft for cocaine use (Independent Counsel: Gerald J. Gallinghouse) (no charges). Reagan Administration: Labor Secretary Raymond Donovan for larceny and fraud (Independent Counsel: Leon Silverman) (no charges); White House counsel Edwin Meese for financial improprieties (Independent Counsel: Jacob A. Stein) (no charges); Assistant Attorney General Theodore B. Olson for lying in congressional testimony (Independent Counsel: Alexia Morrison) (no charges); White House Aide Michael K. Deaver for lying about lobbying foreign clients (Independent Counsel: Whitney North Seymour, Jr.) (convicted of perjury); Various Reagan Administration officials for illegally selling arms to Iran and diverting funds to Nicaraguan Contras (Independent Counsel: Lawrence E. Walsh) (multiple indictments, convictions, and guilty pleas, some nullified by presidential pardon); Attorney General Edwin Meese and White House Aide Franklyn Nofziger for contracting scandal involving Wedtech Corp. (Independent Counsel: James C. McKay) (one acquittal, one conviction overturned on appeal); Assistant Attorney General W. Lawrence Wallace for finance- related abuses (Independent Counsels: James R. Harper; Carl Rauh) (no charges); White House aide James Cicconi for improper loan (under seal) (Independent Counsel: Dan Webb) (no charges); Housing and Urban Development Secretary Samuel Pierce for fraud and mismanagement (Independent Counsels: Arlin Adams; Larry D. Thompson) (multiple convictions and guilty pleas, one acquittal) (final report not yet filed). Bush Administration: Under seal (name of subject and independent counsel under seal) (no charges); Bush Administration officials for illegal search of Bill Clinton's passport file during campaign (Independent Counsels: Joseph E. DiGenova; Michael Zeldin) (no charges). Clinton Administration: Bill and Hillary Clinton regarding Whitewater land deal (Independent Counsels: Robert Fiske; Kenneth W. Starr) (multiple indictments, guilty pleas, acquittals, and convictions) (pending); Secretary of Agriculture Mike Espy for accepting improper gifts (Independent Counsel: Donald C. Smaltz) (multiple convictions, guilty pleas, and acquittals) (acquitted); HUD Secretary Henry G. Cisneros for lying to FBI about size of payments to mistress (Independent Counsel: David M. Barrett) (pending); Secretary of Commerce Ronald H. Brown for personal financial irregularities (Independent Counsel: Daniel S. Pearson) (case terminated and transferred to Justice Department upon Brown's death); AmeriCorps head and former campaign chief of staff Eli Segal for conflict of interest allegations (Independent Counsel: Curtis von Kann) (no charges); Secretary of Interior Bruce Babbitt for allegedly testifying falsely to Congress regarding rejection of Wisconsin Indian casino license (Independent Counsel: Carol Elder Bruce) (pending); Labor Secretary Alexis M. Herman for allegedly receiving kickbacks to steer contributions to the Democratic party as director of White House Office of Public Liaison (Independent Counsel: Ralph I. Lancaster, Jr.) (pending). See Jack Maskell, The Independent Counsel Law, FED. LAW., July 1998, at 28, 31; Donald E. Smaltz, The Independent Counsel, a View from Inside, 86 GEO. L.J. 2307, 2323-24 (1998); Susan Page, Independent Counsel Law: Parties Switch Sides, USA TODAY, Nov. 14, 1997, at 4A; Roberto Suro, Labor Secretary Under Investigation: Reno Seeks Independent Counsel, AUSTIN AM.-STATESMAN, May 12, 1998, at A1; Counsel Appointed for Babbitt Inquiry, N.Y. TIMES, Mar. 20, 1998, at A14; Independent Counsel Investigations, WASH. POST, Apr. 13, 1997, at A12; Investigator Chosen in Labor Secretary's Case, N.Y. TIMES, May 27, 1998, at A18.
216. The twenty independent counsel investigations, and their subjects, are as follows, Carter Administration: Investigation of White House Chief of Staff Hamilton Jordan for cocaine use (Independent Counsel: Arthur H. Christy) (no charges filed); Campaign Manager Timothy Kraft for cocaine use (Independent Counsel: Gerald J. Gallinghouse) (no charges). Reagan Administration: Labor Secretary Raymond Donovan for larceny and fraud (Independent Counsel: Leon Silverman) (no charges); White House counsel Edwin Meese for financial improprieties (Independent Counsel: Jacob A. Stein) (no charges); Assistant Attorney General Theodore B. Olson for lying in congressional testimony (Independent Counsel: Alexia Morrison) (no charges); White House Aide Michael K. Deaver for lying about lobbying foreign clients (Independent Counsel: Whitney North Seymour, Jr.) (convicted of perjury); Various Reagan Administration officials for illegally selling arms to Iran and diverting funds to Nicaraguan Contras (Independent Counsel: Lawrence E. Walsh) (multiple indictments, convictions, and guilty pleas, some nullified by presidential pardon); Attorney General Edwin Meese and White House Aide Franklyn Nofziger for contracting scandal involving Wedtech Corp. (Independent Counsel: James C. McKay) (one acquittal, one conviction overturned on appeal); Assistant Attorney General W. Lawrence Wallace for finance- related abuses (Independent Counsels: James R. Harper; Carl Rauh) (no charges); White House aide James Cicconi for improper loan (under seal) (Independent Counsel: Dan Webb) (no charges); Housing and Urban Development Secretary Samuel Pierce for fraud and mismanagement (Independent Counsels: Arlin Adams; Larry D. Thompson) (multiple convictions and guilty pleas, one acquittal) (final report not yet filed). Bush Administration: Under seal (name of subject and independent counsel under seal) (no charges); Bush Administration officials for illegal search of Bill Clinton's passport file during campaign (Independent Counsels: Joseph E. DiGenova; Michael Zeldin) (no charges). Clinton Administration: Bill and Hillary Clinton regarding Whitewater land deal (Independent Counsels: Robert Fiske; Kenneth W. Starr) (multiple indictments, guilty pleas, acquittals, and convictions) (pending); Secretary of Agriculture Mike Espy for accepting improper gifts (Independent Counsel: Donald C. Smaltz) (multiple convictions, guilty pleas, and acquittals) (acquitted); HUD Secretary Henry G. Cisneros for lying to FBI about size of payments to mistress (Independent Counsel: David M. Barrett) (pending); Secretary of Commerce Ronald H. Brown for personal financial irregularities (Independent Counsel: Daniel S. Pearson) (case terminated and transferred to Justice Department upon Brown's death); AmeriCorps head and former campaign chief of staff Eli Segal for conflict of interest allegations (Independent Counsel: Curtis von Kann) (no charges); Secretary of Interior Bruce Babbitt for allegedly testifying falsely to Congress regarding rejection of Wisconsin Indian casino license (Independent Counsel: Carol Elder Bruce) (pending); Labor Secretary Alexis M. Herman for allegedly receiving kickbacks to steer contributions to the Democratic party as director of White House Office of Public Liaison (Independent Counsel: Ralph I. Lancaster, Jr.) (pending). See Jack Maskell, The Independent Counsel Law, FED. LAW., July 1998, at 28, 31; Donald E. Smaltz, The Independent Counsel, a View from Inside, 86 GEO. L.J. 2307, 2323-24 (1998); Susan Page, Independent Counsel Law: Parties Switch Sides, USA TODAY, Nov. 14, 1997, at 4A; Roberto Suro, Labor Secretary Under Investigation: Reno Seeks Independent Counsel, AUSTIN AM.-STATESMAN, May 12, 1998, at A1; Counsel Appointed for Babbitt Inquiry, N.Y. TIMES, Mar. 20, 1998, at A14; Independent Counsel Investigations, WASH. POST, Apr. 13, 1997, at A12; Investigator Chosen in Labor Secretary's Case, N.Y. TIMES, May 27, 1998, at A18.
217. The twenty independent counsel investigations, and their subjects, are as follows, Carter Administration: Investigation of White House Chief of Staff Hamilton Jordan for cocaine use (Independent Counsel: Arthur H. Christy) (no charges filed); Campaign Manager Timothy Kraft for cocaine use (Independent Counsel: Gerald J. Gallinghouse) (no charges). Reagan Administration: Labor Secretary Raymond Donovan for larceny and fraud (Independent Counsel: Leon Silverman) (no charges); White House counsel Edwin Meese for financial improprieties (Independent Counsel: Jacob A. Stein) (no charges); Assistant Attorney General Theodore B. Olson for lying in congressional testimony (Independent Counsel: Alexia Morrison) (no charges); White House Aide Michael K. Deaver for lying about lobbying foreign clients (Independent Counsel: Whitney North Seymour, Jr.) (convicted of perjury); Various Reagan Administration officials for illegally selling arms to Iran and diverting funds to Nicaraguan Contras (Independent Counsel: Lawrence E. Walsh) (multiple indictments, convictions, and guilty pleas, some nullified by presidential pardon); Attorney General Edwin Meese and White House Aide Franklyn Nofziger for contracting scandal involving Wedtech Corp. (Independent Counsel: James C. McKay) (one acquittal, one conviction overturned on appeal); Assistant Attorney General W. Lawrence Wallace for finance- related abuses (Independent Counsels: James R. Harper; Carl Rauh) (no charges); White House aide James Cicconi for improper loan (under seal) (Independent Counsel: Dan Webb) (no charges); Housing and Urban Development Secretary Samuel Pierce for fraud and mismanagement (Independent Counsels: Arlin Adams; Larry D. Thompson) (multiple convictions and guilty pleas, one acquittal) (final report not yet filed). Bush Administration: Under seal (name of subject and independent counsel under seal) (no charges); Bush Administration officials for illegal search of Bill Clinton's passport file during campaign (Independent Counsels: Joseph E. DiGenova; Michael Zeldin) (no charges). Clinton Administration: Bill and Hillary Clinton regarding Whitewater land deal (Independent Counsels: Robert Fiske; Kenneth W. Starr) (multiple indictments, guilty pleas, acquittals, and convictions) (pending); Secretary of Agriculture Mike Espy for accepting improper gifts (Independent Counsel: Donald C. Smaltz) (multiple convictions, guilty pleas, and acquittals) (acquitted); HUD Secretary Henry G. Cisneros for lying to FBI about size of payments to mistress (Independent Counsel: David M. Barrett) (pending); Secretary of Commerce Ronald H. Brown for personal financial irregularities (Independent Counsel: Daniel S. Pearson) (case terminated and transferred to Justice Department upon Brown's death); AmeriCorps head and former campaign chief of staff Eli Segal for conflict of interest allegations (Independent Counsel: Curtis von Kann) (no charges); Secretary of Interior Bruce Babbitt for allegedly testifying falsely to Congress regarding rejection of Wisconsin Indian casino license (Independent Counsel: Carol Elder Bruce) (pending); Labor Secretary Alexis M. Herman for allegedly receiving kickbacks to steer contributions to the Democratic party as director of White House Office of Public Liaison (Independent Counsel: Ralph I. Lancaster, Jr.) (pending). See Jack Maskell, The Independent Counsel Law, FED. LAW., July 1998, at 28, 31; Donald E. Smaltz, The Independent Counsel, a View from Inside, 86 GEO. L.J. 2307, 2323-24 (1998); Susan Page, Independent Counsel Law: Parties Switch Sides, USA TODAY, Nov. 14, 1997, at 4A; Roberto Suro, Labor Secretary Under Investigation: Reno Seeks Independent Counsel, AUSTIN AM.-STATESMAN, May 12, 1998, at A1; Counsel Appointed for Babbitt Inquiry, N.Y. TIMES, Mar. 20, 1998, at A14; Independent Counsel Investigations, WASH. POST, Apr. 13, 1997, at A12; Investigator Chosen in Labor Secretary's Case, N.Y. TIMES, May 27, 1998, at A18.
218. The twenty independent counsel investigations, and their subjects, are as follows, Carter Administration: Investigation of White House Chief of Staff Hamilton Jordan for cocaine use (Independent Counsel: Arthur H. Christy) (no charges filed); Campaign Manager Timothy Kraft for cocaine use (Independent Counsel: Gerald J. Gallinghouse) (no charges). Reagan Administration: Labor Secretary Raymond Donovan for larceny and fraud (Independent Counsel: Leon Silverman) (no charges); White House counsel Edwin Meese for financial improprieties (Independent Counsel: Jacob A. Stein) (no charges); Assistant Attorney General Theodore B. Olson for lying in congressional testimony (Independent Counsel: Alexia Morrison) (no charges); White House Aide Michael K. Deaver for lying about lobbying foreign clients (Independent Counsel: Whitney North Seymour, Jr.) (convicted of perjury); Various Reagan Administration officials for illegally selling arms to Iran and diverting funds to Nicaraguan Contras (Independent Counsel: Lawrence E. Walsh) (multiple indictments, convictions, and guilty pleas, some nullified by presidential pardon); Attorney General Edwin Meese and White House Aide Franklyn Nofziger for contracting scandal involving Wedtech Corp. (Independent Counsel: James C. McKay) (one acquittal, one conviction overturned on appeal); Assistant Attorney General W. Lawrence Wallace for finance- related abuses (Independent Counsels: James R. Harper; Carl Rauh) (no charges); White House aide James Cicconi for improper loan (under seal) (Independent Counsel: Dan Webb) (no charges); Housing and Urban Development Secretary Samuel Pierce for fraud and mismanagement (Independent Counsels: Arlin Adams; Larry D. Thompson) (multiple convictions and guilty pleas, one acquittal) (final report not yet filed). Bush Administration: Under seal (name of subject and independent counsel under seal) (no charges); Bush Administration officials for illegal search of Bill Clinton's passport file during campaign (Independent Counsels: Joseph E. DiGenova; Michael Zeldin) (no charges). Clinton Administration: Bill and Hillary Clinton regarding Whitewater land deal (Independent Counsels: Robert Fiske; Kenneth W. Starr) (multiple indictments, guilty pleas, acquittals, and convictions) (pending); Secretary of Agriculture Mike Espy for accepting improper gifts (Independent Counsel: Donald C. Smaltz) (multiple convictions, guilty pleas, and acquittals) (acquitted); HUD Secretary Henry G. Cisneros for lying to FBI about size of payments to mistress (Independent Counsel: David M. Barrett) (pending); Secretary of Commerce Ronald H. Brown for personal financial irregularities (Independent Counsel: Daniel S. Pearson) (case terminated and transferred to Justice Department upon Brown's death); AmeriCorps head and former campaign chief of staff Eli Segal for
219. The twenty independent counsel investigations, and their subjects, are as follows, Carter Administration: Investigation of White House Chief of Staff Hamilton Jordan for cocaine use (Independent Counsel: Arthur H. Christy) (no charges filed); Campaign Manager Timothy Kraft for cocaine use (Independent Counsel: Gerald J. Gallinghouse) (no charges). Reagan Administration: Labor Secretary Raymond Donovan for larceny and fraud (Independent Counsel: Leon Silverman) (no charges); White House counsel Edwin Meese for financial improprieties (Independent Counsel: Jacob A. Stein) (no charges); Assistant Attorney General Theodore B. Olson for lying in congressional testimony (Independent Counsel: Alexia Morrison) (no charges); White House Aide Michael K. Deaver for lying about lobbying foreign clients (Independent Counsel: Whitney North Seymour, Jr.) (convicted of perjury); Various Reagan Administration officials for illegally selling arms to Iran and diverting funds to Nicaraguan Contras (Independent Counsel: Lawrence E. Walsh) (multiple indictments, convictions, and guilty pleas, some nullified by presidential pardon); Attorney General Edwin Meese and White House Aide Franklyn Nofziger for contracting scandal involving Wedtech Corp. (Independent Counsel: James C. McKay) (one acquittal, one conviction overturned on appeal); Assistant Attorney General W. Lawrence Wallace for finance- related abuses (Independent Counsels: James R. Harper; Carl Rauh) (no charges); White House aide James Cicconi for improper loan (under seal) (Independent Counsel: Dan Webb) (no charges); Housing and Urban Development Secretary Samuel Pierce for fraud and mismanagement (Independent Counsels: Arlin Adams; Larry D. Thompson) (multiple convictions and guilty pleas, one acquittal) (final report not yet filed). Bush Administration: Under seal (name of subject and independent counsel under seal) (no charges); Bush Administration officials for illegal search of Bill Clinton's passport file during campaign (Independent Counsels: Joseph E. DiGenova; Michael Zeldin) (no charges). Clinton Administration: Bill and Hillary Clinton regarding Whitewater land deal (Independent Counsels: Robert Fiske; Kenneth W. Starr) (multiple indictments, guilty pleas, acquittals, and convictions) (pending); Secretary of Agriculture Mike Espy for accepting improper gifts (Independent Counsel: Donald C. Smaltz) (multiple convictions, guilty pleas, and acquittals) (acquitted); HUD Secretary Henry G. Cisneros for lying to FBI about size of payments to mistress (Independent Counsel: David M. Barrett) (pending); Secretary of Commerce Ronald H. Brown for personal financial irregularities (Independent Counsel: Daniel S. Pearson) (case terminated and transferred to Justice Department upon Brown's death); AmeriCorps head and former campaign chief of staff Eli Segal for conflict of interest allegations (Independent Counsel: Curtis von Kann) (no charges); Secretary of Interior Bruce Babbitt for allegedly testifying falsely to Congress regarding rejection of Wisconsin Indian casino license (Independent Counsel: Carol Elder Bruce) (pending); Labor Secretary Alexis M. Herman for allegedly receiving kickbacks to steer contributions to the Democratic party as director of White House Office of Public Liaison (Independent Counsel: Ralph I. Lancaster, Jr.) (pending). See Jack Maskell, The Independent Counsel Law, FED. LAW., July 1998, at 28, 31; Donald E. Smaltz, The Independent Counsel, a View from Inside, 86 GEO. L.J. 2307, 2323-24 (1998); Susan Page, Independent Counsel Law: Parties Switch Sides, USA TODAY, Nov. 14, 1997, at 4A; Roberto Suro, Labor Secretary Under Investigation: Reno Seeks Independent Counsel, AUSTIN AM.-STATESMAN, May 12, 1998, at A1; Counsel Appointed for Babbitt Inquiry, N.Y. TIMES, Mar. 20, 1998, at A14; Independent Counsel Investigations, WASH. POST, Apr. 13, 1997, at A12; Investigator Chosen in Labor Secretary's Case, N.Y. TIMES, May 27, 1998, at A18.
220. The twenty independent counsel investigations, and their subjects, are as follows, Carter Administration: Investigation of White House Chief of Staff Hamilton Jordan for cocaine use (Independent Counsel: Arthur H. Christy) (no charges filed); Campaign Manager Timothy Kraft for cocaine use (Independent Counsel: Gerald J. Gallinghouse) (no charges). Reagan Administration: Labor Secretary Raymond Donovan for larceny and fraud (Independent Counsel: Leon Silverman) (no charges); White House counsel Edwin Meese for financial improprieties (Independent Counsel: Jacob A. Stein) (no charges); Assistant Attorney General Theodore B. Olson for lying in congressional testimony (Independent Counsel: Alexia Morrison) (no charges); White House Aide Michael K. Deaver for lying about lobbying foreign clients (Independent Counsel: Whitney North Seymour, Jr.) (convicted of perjury); Various Reagan Administration officials for illegally selling arms to Iran and diverting funds to Nicaraguan Contras (Independent Counsel: Lawrence E. Walsh) (multiple indictments, convictions, and guilty pleas, some nullified by presidential pardon); Attorney General Edwin Meese and White House Aide Franklyn Nofziger for contracting scandal involving Wedtech Corp. (Independent Counsel: James C. McKay) (one acquittal, one conviction overturned on appeal); Assistant Attorney General W. Lawrence Wallace for finance- related abuses (Independent Counsels: James R. Harper; Carl Rauh) (no charges); White House aide James Cicconi for improper loan (under seal) (Independent Counsel: Dan Webb) (no charges); Housing and Urban Development Secretary Samuel Pierce for fraud and mismanagement (Independent Counsels: Arlin Adams; Larry D. Thompson) (multiple convictions and guilty pleas, one acquittal) (final report not yet filed). Bush Administration: Under seal (name of subject and independent counsel under seal) (no charges); Bush Administration officials for illegal search of Bill Clinton's passport file during campaign (Independent Counsels: Joseph E. DiGenova; Michael Zeldin) (no charges). Clinton Administration: Bill and Hillary Clinton regarding Whitewater land deal (Independent Counsels: Robert Fiske; Kenneth W. Starr) (multiple indictments, guilty pleas, acquittals, and convictions) (pending); Secretary of Agriculture Mike Espy for accepting improper gifts (Independent Counsel: Donald C. Smaltz) (multiple convictions, guilty pleas, and acquittals) (acquitted); HUD Secretary Henry G. Cisneros for lying to FBI about size of payments to mistress (Independent Counsel: David M. Barrett) (pending); Secretary of Commerce Ronald H. Brown for personal financial irregularities (Independent Counsel: Daniel S. Pearson) (case terminated and transferred to Justice Department upon Brown's death); AmeriCorps head and former campaign chief of staff Eli Segal for conflict of interest allegations (Independent Counsel: Curtis von Kann) (no charges); Secretary of Interior Bruce Babbitt for allegedly testifying falsely to Congress regarding rejection of Wisconsin Indian casino license (Independent Counsel: Carol Elder Bruce) (pending); Labor Secretary Alexis M. Herman for allegedly receiving kickbacks to steer contributions to the Democratic party as director of White House Office of Public Liaison (Independent Counsel: Ralph I. Lancaster, Jr.) (pending). See Jack Maskell, The Independent Counsel Law, FED. LAW., July 1998, at 28, 31; Donald E. Smaltz, The Independent Counsel, a View from Inside, 86 GEO. L.J. 2307, 2323-24 (1998); Susan Page, Independent Counsel Law: Parties Switch Sides, USA TODAY, Nov. 14, 1997, at 4A; Roberto Suro, Labor Secretary Under Investigation: Reno Seeks Independent Counsel, AUSTIN AM.-STATESMAN, May 12, 1998, at A1; Counsel Appointed for Babbitt Inquiry, N.Y. TIMES, Mar. 20, 1998, at A14; Independent Counsel Investigations, WASH. POST, Apr. 13, 1997, at A12; Investigator Chosen in Labor Secretary's Case, N.Y. TIMES, May 27, 1998, at A18.
221. Besides the multiple investigations of Kenneth Starr, discussed supra at notes 12-16 and accompanying text, Independent Counsel Donald C. Smalz has broadened his investigation of Mike Espy through a "referral" by the special court. See In re Espy, 80 F.3d 501 (D.C. Cir 1996). See discussion infra note 268.
222. The pending investigations are those involving Samuel Pierce (Reagan administration); and Bill and Hillary Clinton, Henry Cisneros, Bruce Babbitt, and Alexis Herman (Clinton administration). See supra note 166.
223. 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 263.
224. See Ken Gormley, When prosecutors aren't so special, BOSTON GLOBE, Dec. 7, 1997, at C7. For an excellent discussion of the harmful politicizing of the statute, see Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 GEO. L.J. 2267 (1998).
225. See Ken Gormley, When prosecutors aren't so special, BOSTON GLOBE, Dec. 7, 1997, at C7. For an excellent discussion of the harmful politicizing of the statute, see Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 GEO. L.J. 2267 (1998).
226. See Sixty-Seventh Judicial Conference, supra note 164, at 1579-80 (remarks of Archibald Cox). The two matters were the first investigation of Attorney General Edwin Meese by special prosecutor Jacob Stein that involved serious allegations against the Attorney General himself, and the Iran-Contra affair of the Reagan administration. The latter raised weighty questions whether the President, Vice President, Attorney General, and other high-level executive officials had abused their offices in conspiring to sell arms to Iran in violation of the federal Arms Control Export law; diverting those funds to freedom-fighting Contras (rebels) in Nicaragua after Congress had forbidden such action; and conspiring to cover up this activity. See LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER-UP (1997); Bell et al., supra note 148, at 466-67 (containing Lawrence Walsh's own defense of his investigation); Sandra D. Jordan, Classified Information and Conflicts in Independent Counsel Prosecutions: Balancing the Scales of Justice After Iran-Contra, 91 COLUM. L. REV. 1651, 1667 n.82 (1991); Christopher Drew & Christopher J. McNulty, 7- Year Tale of Intrigue Concludes: Iran-Contra Inquiry Faults Reagan, Bush, CHI. TRIB., Jan. 19, 1994, at A1.
227. See Sixty-Seventh Judicial Conference, supra note 164, at 1579-80 (remarks of Archibald Cox). The two matters were the first investigation of Attorney General Edwin Meese by special prosecutor Jacob Stein that involved serious allegations against the Attorney General himself, and the Iran-Contra affair of the Reagan administration. The latter raised weighty questions whether the President, Vice President, Attorney General, and other high-level executive officials had abused their offices in conspiring to sell arms to Iran in violation of the federal Arms Control Export law; diverting those funds to freedom-fighting Contras (rebels) in Nicaragua after Congress had forbidden such action; and conspiring to cover up this activity. See LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER-UP (1997); Bell et al., supra note 148, at 466-67 (containing Lawrence Walsh's own defense of his investigation); Sandra D. Jordan, Classified Information and Conflicts in Independent Counsel Prosecutions: Balancing the Scales of Justice After Iran-Contra, 91 COLUM. L. REV. 1651, 1667 n.82 (1991); Christopher Drew & Christopher J. McNulty, 7- Year Tale of Intrigue Concludes: Iran-Contra Inquiry Faults Reagan, Bush, CHI. TRIB., Jan. 19, 1994, at A1.
228. See Sixty-Seventh Judicial Conference, supra note 164, at 1579-80 (remarks of Archibald Cox). The two matters were the first investigation of Attorney General Edwin Meese by special prosecutor Jacob Stein that involved serious allegations against the Attorney General himself, and the Iran-Contra affair of the Reagan administration. The latter raised weighty questions whether the President, Vice President, Attorney General, and other high-level executive officials had abused their offices in conspiring to sell arms to Iran in violation of the federal Arms Control Export law; diverting those funds to freedom-fighting Contras (rebels) in Nicaragua after Congress had forbidden such action; and conspiring to cover up this activity. See LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER-UP (1997); Bell et al., supra note 148, at 466-67 (containing Lawrence Walsh's own defense of his investigation); Sandra D. Jordan, Classified Information and Conflicts in Independent Counsel Prosecutions: Balancing the Scales of Justice After Iran-Contra, 91 COLUM. L. REV. 1651, 1667 n.82 (1991); Christopher Drew & Christopher J. McNulty, 7-Year Tale of Intrigue Concludes: Iran-Contra Inquiry Faults Reagan, Bush, CHI. TRIB., Jan. 19, 1994, at A1.
229. 28 U.S.C. § 592(c)(1)(A) (1994).
230. Bell et al., supra note 148, at 470.
231. Martin & Zerhusen, supra note 142, at 544.
232. Stephen Labaton, Rethinking a Law: Time and Targets Alter Capitol Views on the Independent Counsel Statute, N.Y. TIMES, Dec. 13, 1997, at A10. Out of the 19 independent counsel investigations to date, indictments have been handed down in only seven of those investigations. See Maskell, supra note 166, at 39. Even after cases go to trial, juries are not necessarily impressed. In the recent trial of former Secretary of Agriculture Mike Espy, by independent counsel Donal D. Smaltz, the federal jury acquitted Espy of all thirty criminal counts. Espy's acquittal came after a four-year, $17 million investigation related to charges that he had accepted gifts, including sports tickets and other favors, from companies with whom he had dealt as Agriculture Secretary. See Neil A. Lewis, Espy is Acquitted on Gifts Received While in Cabinet, N.Y. TIMES, Dec. 3, 1998, at A1.
233. Stephen Labaton, Rethinking a Law: Time and Targets Alter Capitol Views on the Independent Counsel Statute, N.Y. TIMES, Dec. 13, 1997, at A10. Out of the 19 independent counsel investigations to date, indictments have been handed down in only seven of those investigations. See Maskell, supra note 166, at 39. Even after cases go to trial, juries are not necessarily impressed. In the recent trial of former Secretary of Agriculture Mike Espy, by independent counsel Donal D. Smaltz, the federal jury acquitted Espy of all thirty criminal counts. Espy's acquittal came after a four-year, $17 million investigation related to charges that he had accepted gifts, including sports tickets and other favors, from companies with whom he had dealt as Agriculture Secretary. See Neil A. Lewis, Espy is Acquitted on Gifts Received While in Cabinet, N.Y. TIMES, Dec. 3, 1998, at A1.
234. Bell et al., supra note 148, at 470.
235. See Jost, supra note 165, at 30. Probable cause, in the context of an arrest, exists when an officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe the suspect has committed, or is committing a crime. See Beck v. Ohio, 379 U.S. 89, 91 (1964).
236. For criticism of the probable cause standard in this context, see Martin & Zerhusen, supra note 142, at 544. See also Bell et al., supra note 148, at 471-72. A well-known case that supports the proposition that grand juries are governed by a probable cause standard is United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) ("The role of the grand jury is restricted to a finding as to whether or not there is probable cause to believe that an offense has been committed.") See also United States v. Calandra, 414 U.S. 338, 343 (1974) ("The grand jury's responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.").
237. The "substantial grounds" language is similar to the "substantial evidence" test that is frequently used in agency law. See, e.g., Gouveia v. Immigration & Naturalization Serv., 980 F.2d 814, 818 (1st Cir. 1992); Silwany-Rodriquez v. Immigration & Naturalization Serv., 975 F.2d 1157, 1160 (5th Cir. 1992).
238. For a similar argument that the Attorney General must be vested with more discretion when it comes to triggering the statute, see Harriger, supra note 4, at 2115-16. Former Attorney General Benjamin Civiletti also would limit the statute to federal felonies, eliminating all misdemeanors. See Civiletti, supra note 148, at 1054.
239. Cf. Civilette, supra note 148, at 1044-45. One example of a case that most likely would not have been brought pursuant to ordinary Department of Justice policy was the case against Henry Cisneros, involving "a false statement under oath where the only falsity is in the size of the payment that is acknowledged by the possible defendant." See Bell et al., supra note 148, at 472.
240. 28 U.S.C. § 592(a)(2)(A) (1994).
241. See Bell et al., supra note 148, at 470. As Lawrence Walsh explained: If you are going to investigate and prosecute someone, you do not want somebody else getting in there first and getting the documents and giving everybody time to think up what their defense is going to be and tell other people what it is going to be so they can accommodate it. Id.
242. Sixty-Seventh Judicial Conference, supra note 164, at 1529-30 (remarks of William P. Barr).
243. See 28 U.S.C. § 591(a) (1994).
244. See 28 U.S.C. § 591(d)(1)(A), (B).
245. As one commentator joked, it might be necessary for the informant to display mental instability by asserting that "the CIA requires them to wear a colander on their head to avoid getting [gamma] rays, or something like that," before his or her credibility could be questioned. See Sixty-Seventh Judicial Conference, supra note 164, at 1529 (remarks of William P. Barr).
246. For a disturbing description of how the statute "compelled" the dubious Olson investigation, despite the fact that the vast majority of prosecutors would have declined to prosecute it, see EASTLAND, supra note 23, at 132-33. For a similar discussion of how the weak statute allowed the media to propel forward the Bruce Babbitt inquiry, see Robert Worth, How The New York Times, The Washington Post, and the Independent Counsel Law Screwed Bruce Babbitt, WASH. MONTHLY, Apr. 1, 1998, at 14. For an excellent look at investigations that take up an enormous amount of time by the Justice Department, but do not trigger a formal preliminary investigation, see Wolf, supra note 114, at 26-27.
247. For a disturbing description of how the statute "compelled" the dubious Olson investigation, despite the fact that the vast majority of prosecutors would have declined to prosecute it, see EASTLAND, supra note 23, at 132-33. For a similar discussion of how the weak statute allowed the media to propel forward the Bruce Babbitt inquiry, see Robert Worth, How The New York Times, The Washington Post, and the Independent Counsel Law Screwed Bruce Babbitt, WASH. MONTHLY, Apr. 1, 1998, at 14. For an excellent look at investigations that take up an enormous amount of time by the Justice Department, but do not trigger a formal preliminary investigation, see Wolf, supra note 114, at 26-27.
248. See 28 U.S.C. § 592(a)(2)(A) (1994).
249. One recent exception where Attorney General Reno refused to request the appointment of an independent counsel related to her decision not to ask the special court to name a special prosecutor to investigate whether Vice President Al Gore lied to Justice Department officials during their inquiry into fund raising phone calls Gore placed from the White House during the 1996 campaign. See Robert Suro, Probe of Gore on Lying Ruled Out: Reno Rejects One Investigation Involving Fund-Raising, WASH. POST, Nov, 25, 1998, at A1. Under the weak statutory standard, this matter most likely could have prompted the appointment of a special prosecutor. However, given the controversial nature of the Lewinsky investigation, the Attorney General most likely has decided to guard against the appointment of new special prosecutors, except where absolutely necessary, thus rebelling against the statute.
250. Sixty-Seventh Judicial Conference, supra note 164, at 1530 (remarks of William P. Barr); see also Martin & Zerhusen, supra note 142, at 544 (suggesting the difficulty in estab- lishing lack of reasonable grounds absent the Attorney General's investigative tools). A similar point was made by former White House Counsel Lloyd Cutler. See Bell et al., supra note 148, at 469.
251. See Bell et al., supra note 148, at 470-71.
252. Even Lawrence Walsh, who has expressed concern about allowing the Attorney General to wade too far into a case before the independent counsel is appointed, agrees that the subpoena power is essential. See id.; Lawrence E. Walsh, The Need fur Renewal of the Independent Counsel Act, 86 GEO. L.J. 2379, 2385 (1998).
253. It is true that a grand jury was convened in the Whitewater case, by Attorney General Janet Reno, before the independent counsel statute was triggered. But this was an unusual case. The first Whitewater independent counsel, Robert Fiske, was appointed by the Attorney General in 1994, during a period in which the statute had lapsed. See O'Sullivan, supra note 148, at 471-72. Thus the original grand jury was attached to a more traditional investigation under the control of the Justice Department.
254. Many administrative agencies (including the Internal Revenue Service, the Securities Exchange Commission, the Federal Trade Commission and others) possess subpoena power to interrogate witnesses, compel production of documents, and gather information in an investigation, even though they cannot convene a grand jury. See Donald R.C. Pongrace, Comment, Requirement of Notice of Third-Party Subpoenas Issued In SEC Investigations: A New Limitation On the Administrative Subpoena Power, 33 AM. U. L. REV. 701, 708-19 (1984).
255. See 28 U.S.C. § 592(a)(2)(B)(ii) (1994).
256. See O'Sullivan, supra note 148, at 480; Sixty-Seventh Judicial Conference, supra note 164, at 1531-33 (remarks of Jamie Gorelick and William Barr).
257. See infra note 207.
258. The statute encompasses "any individual serving in a position listed in section 5312 of title 5." This provision, in turn, sets forth 17 different cabinet officers, namely: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, United States Trade Representative, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Director of the Office of Management and Budget, and Commissioner of Social Security of the Social Security Administration. See 28 U.S.C. § 591(b)(2) (1994); 5 U.S.C. § 5312 (1994).
259. See 28 U.S.C. § 591(b)(3). The level of compensation is that set forth in 5 U.S.C. § 5313 (1994) for certain sub-cabinet officials.
260. See 28 U.S.C. § 591(b)(4). The level of compensation is that set forth for various administrative heads and other officials enumerated in 5 U.S.C. § 5314 (1994).
261. See 28 U.S.C. § 591(b)(5).
262. See 28 U.S.C. § 591(b)(6), (7).
263. See 28 U.S.C. § 591(b)(6).
264. Civiletti, supra note 148, at 1054.
265. O'Sullivan, supra note 148, at 464. Specifically, Professor O'Sullivan referred to the Theodore Olson and Timothy Kraft investigations as low-profile matters unsuited for a special prosecutor. Id. 207. Some commentators suggest limiting the field to the President and cabinet officers. See, e.g., Martin & Zerhusen, supra note 142, at 541. An ABA subcommittee has also made that recommendation. See id. Archibald Cox would limit the statute to covering the President, Vice-President, and "maybe the three most important Cabinet officers." See Bell et al., supra note 148, at 473. Jacob Stein, the first independent counsel assigned to investigate Attorney General Edwin Meese during the Reagan Administration, would limit coverage to the "highest people in the government." See Sixty-Seventh Judicial Conference, supra note 164, at 1549 (remarks of Jacob Stein). Lawrence Walsh, the Iran-Contra independent counsel, would restrict the statute to the same categories as Cox. See Bell et al., supra note 148, at 473-74. Joseph DiGenova, the independent counsel appointed to investigate the Bush Administration's search of Bill Clinton's passport file, would limit the statute's reach to the President, Vice-President, Attorney General, and top Justice Department officials. See Jost, supra note 165, at 30. Robert Fiske, the first Whitewater independent counsel, would limit the coverage to the President, Vice-President, Attorney General, and perhaps the Deputy Attorney General and head of the F.B.I. See Sixty-Seventh Judicial Conference, supra note 164, at 1533, 1564 (remarks of Robert Fiske). Leon Silverman, however, who led the investigation of President Reagan's first labor secretary, Raymond Donovan, would continue fairly broad coverage under the statute, allowing it to encompass all cabinet officers and White House staff members. Silverman has stated "[t]he attorney general ought not be put in the position of pursuing an investigation against a political friend." Jost, supra note 165, at 30.
266. Significant issues arise, however, when the President is the subject of an independent counsel investigation. Because there exists a serious question whether a sitting President can be indicted and/or prosecuted while in office, issues arise as to the proper function of an independent counsel when the primary target of an investigation is the President. Related issues also arise concerning whether Congress can permit the independent counsel to take over the role of the legislature in gathering evidence for the purposes of impeachment proceedings (as opposed to gathering evidence for an actual criminal prosecution). For the author's detailed views on these fascinating but distinct subjects, see Ken Gormley, Impeachment and the Independent Counsel: A Dysfunctional Union, 51 STAN. L. REV. _ (1999).
267. Section 591(c) of the independent counsel statute already creates a sort of "optional" category, under which the Attorney General may trigger the machinery of the independent counsel if she believes that a particular investigation "may result in a personal, financial, or political conflict of interest." 28 U.S.C. § 591(c)(1). Thus, there is already a mechanism in place by which the Attorney General may trigger the statute with respect to any lower-level executive official, if she believes that such a course is appropriate. See also 28 U.S.C. § 592(g)(1) (1994), which allows members of the Judiciary Committee of the House or Senate to request appointment of an independent counsel.
268. See 28 U.S.C. § 591(a). The petty offenses are those listed as Class B or C misdemeanors in the federal criminal code. See 18 U.S.C. § 3559(a) (1994).
269. Sixty-Seventh Judicial Conference, supra note 164, at 1549 (remarks of Jacob Stein). Not only would this approach "limit the type of crime" that was covered by the statute, but it would also - as a practical matter - limit "how far back you went." Bell et al., supra note 148, at 474 (comments of Archibald Cox). Lawrence Walsh concurs that the statute should be limited to crimes committed while in office, and those involving significant misuse of that office. See Sixty-Seventh Judicial Conference, supra note 164, at 1563-64 (remarks of Lawrence Walsh); Walsh, supra note 193, at 2384.
270. See Sixty-Seventh Judicial Conference, supra note 164, at 1594 (remarks of Archibald Cox); see also S. REP. NO. 103-101, at 11 (1993) (remarks of former Attorney General Nicholas deB. Katzenbach) (stating that the law "has served to destroy rather than preserve public confidence in the integrity of government").
271. See David Johnston, Agriculture Chief Faces New Inquiry on Business Gifts, N.Y. TIMES, Aug. 10, 1994. at A1.
272. See David Johnston, Concluding that Cisneros Lied, Reno Urges a Special Prosecutor, N.Y. TIMES, Mar. 15, 1995, at A1.
273. See The Ron Brown Problem, N.Y. TIMES, May 19, 1995, at A30.
274. See Counsel Appointed for Babbitt Inquiry, supra note 166, at A14. For a fascinating discussion of how the Babbitt inquiry was driven by the media, see Worth, supra note 188.
275. See Investigator Chosen in Labor Secretary's Case, supra note 166, at A18.
276. But see Reno's Decision Activates a Sixth Investigation of Clinton's White House, MINN. STAR TRIB., Feb. 12, 1998, at A19 (describing the recent investigation relating to Clinton campaign chief of staff Eli Segal (who later served as director of AmeriCorps)). This case still might have fallen within the statute pursuant to 28 U.S.C. § 591(b)(8) relating to campaign officials. For more information concerning these investigations during the Clinton Administration, see supra note 166.
277. This matter involved alleged improprieties in an Arkansas land deal relating to Bill and Hillary Clinton in the 1980s, long before Clinton was elected President. For a good discussion of the original Whitewater matter, see, for example, JAMES B. STEWART, BLOOD SPORT: THE PRESIDENT AND HIS ADVERSARIES (1996); Michael Isikoff & Howard Schneider, Clintons' Former Real Estate Firm Probed, WASH. POST, Nov. 2, 1993, at A1; Michael Isikoff & Howard Schneider, The Unfolding of Whitewater, WASH. POST, Jan. 21, 1994, at A20.
278. This matter involved alleged improprieties in an Arkansas land deal relating to Bill and Hillary Clinton in the 1980s, long before Clinton was elected President. For a good discussion of the original Whitewater matter, see, for example, JAMES B. STEWART, BLOOD SPORT: THE PRESIDENT AND HIS ADVERSARIES (1996); Michael Isikoff & Howard Schneider, Clintons' Former Real Estate Firm Probed, WASH. POST, Nov. 2, 1993, at A1; Michael Isikoff & Howard Schneider, The Unfolding of Whitewater, WASH. POST, Jan. 21, 1994, at A20.
279. This matter involved alleged improprieties in an Arkansas land deal relating to Bill and Hillary Clinton in the 1980s, long before Clinton was elected President. For a good discussion of the original Whitewater matter, see, for example, JAMES B. STEWART, BLOOD SPORT: THE PRESIDENT AND HIS ADVERSARIES (1996); Michael Isikoff & Howard Schneider, Clintons' Former Real Estate Firm Probed, WASH. POST, Nov. 2, 1993, at A1; Michael Isikoff & Howard Schneider, The Unfolding of Whitewater, WASH. POST, Jan. 21, 1994, at A20.
280. For a review of the §add-ons§ appended to Kenneth Starr's Whitewater investigation, see Adam Cohen, Is the Prosecutor Running a Starr Chamber?, TIME, Feb. 2, 1998, at 58; Ken Gormley, Starr Should Give Case to the House, NEWSDAY, Apr. 3, 1998, at A55 ; Starr's Galaxy of Investigations, supra note 12, at 52.
281. For a review of the §add-ons§ appended to Kenneth Starr's Whitewater investigation, see Adam Cohen, Is the Prosecutor Running a Starr Chamber?, TIME, Feb. 2, 1998, at 58; Ken Gormley, Starr Should Give Case to the House, NEWSDAY, Apr. 3, 1998, at A55 ; Starr's Galaxy of Investigations, supra note 12, at 52.
282. Although there have been 20 independent counsels appointed, several of them (most prominently Kenneth Starr) have branched out into multiple investigations. See supra notes 12-16, 167, and accompanying text.
283. The Monica Lewinsky investigation, because it is appended to the Whitewater probe, presumably would not have been authorized either. However, to the extent the Lewinsky case involves alleged criminal wrongdoing by the President - perjury in a civil deposition and suborning perjury - it still could have (independently) triggered the mandatory appointment of an independent counsel under the proposed amendments to the statute set forth above. Of course this also depends on whether a sitting President can be the direct target of an independent counsel investigation, which in turn depends on whether a sitting President can be indicted or prosecuted. See supra note 208.
284. See Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 261 (remarks of Philip A. Lacovara). The Judiciary Act of 1789 created the office of the Attorney General, but the Department of Justice was not established until 1870. See Biden, supra note 107, at 883-84.
285. During the Garfield Administration, the Justice Department investigated the "Star Route Frauds," which involved alleged fraud in contracting for mail delivery, and implicated the secretary of the Republican National Committee (who had also been Garfield's campaign manager). In the Kennedy Administration, the Justice Department investigated conflict-of- interest charges against President Kennedy's Secretary of Navy. President Nixon's Attorney General investigated allegations of extortion and bribery against Vice-President Spiro T. Agnew, that led to Agnew's resignation. See EASTLAND, supra note 23, at 8.
286. Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 284-85. Archibald Cox similarly testified that it was not "desirable to start off with the presumption that our Attorneys General cannot be trusted. The presumption should be the other way, and they should be held responsible when they were proved incompetent or unfaithful." See Removing Politics from the Administration of Justice, supra note 6, at 211 (remarks of Archibald Cox); see also Martin & Zerhusen, supra note 142, at 541 (arguing that the Department of Justice generally should be permitted to use its normal investigative process unless there is an actual conflict of interest); O'Sullivan, supra note 148, at 475 (suggesting that Justice Department lawyers "are privy to a store of institutional knowledge and experience" that makes them particularly suited for even the most sensitive investigations).
287. See Gormley, supra note 170, at C7.
288. O'Sullivan, supra note 148, at 477.
289. Sixty-Seventh Judicial Conference, supra note 164, at 1533 (remarks of Jamie Gorelick). For a suggestion that the independent counsel statute has adversely affected the morale of Justice Department lawyers, see Feinburg, supra note 135, at 184.
290. See Alison Frankel, Blame the Law, Not the Lawyer, AM. LAW., Mar. 1998, at 58 (describing Attorney General Reno's hasty use of the statute); Ken Gormley, Starr's Three Silent Chaperons, N.Y. TIMES, Mar. 7, 1998, at A25 (criticizing the court's passive role under the statute).
291. See Alison Frankel, Blame the Law, Not the Lawyer, AM. LAW., Mar. 1998, at 58 (describing Attorney General Reno's hasty use of the statute); Ken Gormley, Starr's Three Silent Chaperons, N.Y. TIMES, Mar. 7, 1998, at A25 (criticizing the court's passive role under the statute).
292. See 28 U.S.C. § 591(e) (1994) (providing for mandatory recusal of the Attorney General in specified cases).
293. President Grant appointed a special counsel to help prosecute the "Whiskey Ring," in which his personal secretary was allegedly involved. See EASTLAND, supra note 23, at 8. President Theodore Roosevelt's Attorney General appointed a special prosecutor to investigate a land fraud ring, allegedly involving the Commissioner of the General Land Office. See id. President Roosevelt himself named a special prosecutor to investigate alleged corruption by Post Office officials. See id. President Coolidge appointed (and the Senate confirmed) two special prosecutors in the Teapot Dome scandal. See id. President Truman appointed a commission to investigate tax-fixing in his administration. See HARRIGER, supra note 23, at 15-16. Attorney General Robert Kennedy appointed Leon Jaworski as special counsel to handle the prosecution of Governor Ross Barnett of Mississippi for contempt, relating to his defiance of federal civil rights laws, where the danger existed that the public might perceive the Kennedy Administration as too soft on Barnett. See 1976 Hearings Before the Subcomm. on Criminal Justice, supra note 78, at 175 (remarks of John Doar). For a discussion of the appointment of such ad hoc special prosecutors, generally, see EASTLAND, supra note 23, at 7-16; HARRIGER, supra note 23, at 13-39; Kavanaugh, supra note 161, at 2143; Smaltz, supra note 166, at 2311-20.
294. See Fleissner, supra note 157, at 464-65; see also S. REP. NO. 97-496, at 5 (1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3541 (noting success of this investigation). The special prosecutor appointed by Attorney General Bell was Paul Curran.
295. Sixty-Seventh Judicial Conference, supra note 164, at 1533 (remarks of William P. Barr). In the "Inslaw" scandal, Barr appointed Senior U.S. District Judge Nicholas Bua of Illinois. In the "Iraqgate" matter, he appointed retired Judge Frederick Lacey of the U.S. District Court for New Jersey. In the House bank controversy, Barr appointed former U.S. Court of Appeals Judge Malcolm Wilkey of the D.C. Circuit to investigate the matter. For a discussion of the "Inslaw" scandal, see Mary Fricker & Stephen Pizzo, Outlaws at Justice, S.F. CHRON., June 14, 1992, § 7, at 11. The "Iraqgate" scandal is reviewed in Peter Mantius, Cover-up on BNL? The Idea is Absurd, Investigator Claims, ATLANTA JOURN. & CONST., Dec. 10, 1992, at A5. The House bank scandal is discussed in David Johnson, Ex-Manager of House Bank Accepts Plea Deal and Admits Embezzlement, N.Y. TIMES, Oct. 6, 1993, at A18.
296. Sixty-Seventh Judicial Conference, supra note 164, at 1533 (remarks of William P. Barr). In the "Inslaw" scandal, Barr appointed Senior U.S. District Judge Nicholas Bua of Illinois. In the "Iraqgate" matter, he appointed retired Judge Frederick Lacey of the U.S. District Court for New Jersey. In the House bank controversy, Barr appointed former U.S. Court of Appeals Judge Malcolm Wilkey of the D.C. Circuit to investigate the matter. For a discussion of the "Inslaw" scandal, see Mary Fricker & Stephen Pizzo, Outlaws at Justice, S.F. CHRON., June 14, 1992, § 7, at 11. The "Iraqgate" scandal is reviewed in Peter Mantius, Cover-up on BNL? The Idea is Absurd, Investigator Claims, ATLANTA JOURN. & CONST., Dec. 10, 1992, at A5. The House bank scandal is discussed in David Johnson, Ex-Manager of House Bank Accepts Plea Deal and Admits Embezzlement, N.Y. TIMES, Oct. 6, 1993, at A18.
297. Sixty-Seventh Judicial Conference, supra note 164, at 1533 (remarks of William P. Barr). In the "Inslaw" scandal, Barr appointed Senior U.S. District Judge Nicholas Bua of Illinois. In the "Iraqgate" matter, he appointed retired Judge Frederick Lacey of the U.S. District Court for New Jersey. In the House bank controversy, Barr appointed former U.S. Court of Appeals Judge Malcolm Wilkey of the D.C. Circuit to investigate the matter. For a discussion of the "Inslaw" scandal, see Mary Fricker & Stephen Pizzo, Outlaws at Justice, S.F. CHRON., June 14, 1992, § 7, at 11. The "Iraqgate" scandal is reviewed in Peter Mantius, Cover-up on BNL? The Idea is Absurd, Investigator Claims, ATLANTA JOURN. & CONST., Dec. 10, 1992, at A5. The House bank scandal is discussed in David Johnson, Ex-Manager of House Bank Accepts Plea Deal and Admits Embezzlement, N.Y. TIMES, Oct. 6, 1993, at A18.
298. See O'Sullivan, supra note 148, at 471-72.
299. See 28 U.S.C. § 592(g) (1994). This section provides: "The Committee on the Judiciary of either House of the Congress, or a majority of majority party members or a majority of all nonmajority party members of either such committee, may request in writing that the Attorney General apply for the appointment of an independent counsel." 28 U.S.C. § 592(g)(1). That provision goes on to require the Attorney General to provide a written report to the congressional committee, within 30 days, explaining whether a preliminary investigation will be conducted and why. See 28 U.S.C § 592(g)(2). After the preliminary investigation is completed, the statute requires a report to the committee notifying it whether an application for an independent counsel has been made and why. See 28 U.S.C. § 592(g)(3).
300. See GORMLEY, supra note 3, at 241-45.
301. See 28 U.S.C. § 592(g)(1).
302. For a discussion of Congress's own ability to conduct investigations, see Harriger, supra note 180, at 2116-17.
303. See Ken Gormley, Starr is Overstepping His Mandate, NEWSDAY, Jan. 30, 1998, at A43.
304. See supra discussion at notes 121-23 and related text. For another example of the general concern about allowing overly-broad jurisdiction in creating the special prosecutor, see the remarks of Henry S. Ruth, Jr., who succeeded Leon Jaworski as Watergate Special Prosecutor, in Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 121.
305. See 28 U.S.C. § 593(b)(1) (1994).
306. 28 U.S.C. § 593(b)(3).
307. 28 U.S.C. § 593(b)(3). The statute provides that jurisdiction should include the authority to investigate and prosecute other federal crimes - excluding certain petty offenses - "that may arise out of the investigation or prosecution of the matter with respect to which the Attorney General's request was made, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." 28 U.S.C. § 593(b)(3). Section 593(b)(3) authorizes the court - and the court alone - to make public the written statement of jurisdiction (i.e. the special prosecutor's charter). This may occur only upon the request of the Attorney General or after the court reaches its own determination "that disclosure of the identity and prosecutorial jurisdiction of such independent counsel would be in the best interests of justice." 28 U.S.C. § 593(b)(4).
308. Senator Levin served as Chairman of the Subcommittee on Oversight of Government Management, which has legislative jurisdiction in the Senate over the independent counsel statute. See Carl Levin & Elise J. Bean, The Independent Counsel Statute: A Matter of Public Confidence and Constitutional Balance, 16 HOFSTRA L. REV. 11 (1987).
309. 144 CONG. REC. S11, 952, at S11, 953 (daily ed. Oct. 8. 1998) (statement of Sen. Levin). See also Levin & Bean, supra note 244, at 20-21 ("Authorizing the court to describe the scope of the counsel's inquiry is an inherent part of the appointment power since the court appoints the independent counsel to a temporary office whose tenure must be defined by the completion of a particular task.").
310. Morrison v. Olson, 487 U.S. 654, 671-72 (1988). The Court made this point in connection with its analysis under the Appointments Clause. The Court concluded that independent counsels are "inferior officers" rather than "principal officers," and thus subject to appointment by the judiciary (rather than exclusively by the President), in part because the independent counsel "is empowered by the Act to perform only certain, limited duties," and his or her office "is limited in jurisdiction." Morrison, 487 U.S. at 671-72.
311. See Morrison, 487 U.S. at 670-72; Buckley v. Valeo, 424 U.S. 1, 132 (1976).
312. For a discussion of the dangers of creating an unaccountable fourth branch of government, see discussion infra note 330 and accompanying text. For a spirited argument that it is "empty" to contend that modern independent counsels are "unaccountable," since they are bound by the same policies as the Justice Department and can be removed for misconduct, see Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2081-83 (1998).
313. 28 U.S.C. § 593(c)(1) (1994).
314. See 28 U.S.C. § 593(c)(2)(A).
315. See 28 U.S.C. § 592(a)(1) (1994).
316. See 28 U.S.C. § 593(c)(2)(A).
317. 28 U.S.C. § 593(c)(2)(A) (emphasis added).
318. See 28 U.S.C. § 593(c)(2)(B).
319. See 28 U.S.C. § 593(c)(2)(C). It is unclear from the language of the statute whether the special court has the power, unilaterally, to appoint a different independent counsel to investigate the matter (rather than expanding the jurisdiction of the existing special prosecutor), or whether this can only occur at the request of the Attorney General.
320. See Dan Balz, Washington's Extraordinary Week: How the Events Unfolded, From Jones to Lewinsky, WASH. POST, Jan. 25, 1998, at A1. One criticism of Starr, at the time these events took place, was that he authorized the placement of a wire on Linda Tripp to obtain further inculpatory statements from Monica Lewinsky before he requested expansion of jurisdiction from the Attorney General or received approval to expand jurisdiction into the Lewinsky matter by the three-judge panel. See, e.g., Gormley, supra note 239, at A43. For an excellent summary of the events leading to the expansion of Starr's jurisdiction into the Lewinsky matter, and criticism thereof, see the statement of Senator Levin in the Congressional Record, supra note 245, at S11, 954-56.
321. These events are discussed in numerous sources. See Balz, supra note 256; Ronald Brownstein & Kenneth T. Walsh, Starr Struck, U.S. NEWS & WORLD REPORT, Feb. 2, 1998, at 14, 16-17; Nancy Gibbs, Clinton's Crisis, TIME, Feb. 2, 1998, at 21; Gormley, supra note 229, at A25; Michael Isikoff & Evan Thomas, Clinton and the Intern, NEWSWEEK, Feb. 2, 1998, at 31, 41-43.
322. These events are discussed in numerous sources. See Balz, supra note 256; Ronald Brownstein & Kenneth T. Walsh, Starr Struck, U.S. NEWS & WORLD REPORT, Feb. 2, 1998, at 14, 16-17; Nancy Gibbs, Clinton's Crisis, TIME, Feb. 2, 1998, at 21; Gormley, supra note 229, at A25; Michael Isikoff & Evan Thomas, Clinton and the Intern, NEWSWEEK, Feb. 2, 1998, at 31, 41-43.
323. These events are discussed in numerous sources. See Balz, supra note 256; Ronald Brownstein & Kenneth T. Walsh, Starr Struck, U.S. NEWS & WORLD REPORT, Feb. 2, 1998, at 14, 16-17; Nancy Gibbs, Clinton's Crisis, TIME, Feb. 2, 1998, at 21; Gormley, supra note 229, at A25; Michael Isikoff & Evan Thomas, Clinton and the Intern, NEWSWEEK, Feb. 2, 1998, at 31, 41-43.
324. Brownstein & Walsh, supra note 257, at 16-17; Isikoff & Thomas, supra note 257, at 41-42.
325. Attorney General Reno's order stated: "It would be appropriate for Independent Counsel Starr to handle this matter because he is currently investigating similar allegations involving possible efforts to influence witnesses in his own investigation. Some potential subjects and witnesses in this matter overlap with those in his ongoing investigation." See Notification to the Court of the Initiation of a Preliminary Investigation and Application to the Court for the Expansion of the Jurisdiction of the Independent Counsel [hereinafter Application for Expansion of Jurisdiction] at 2, In re Madison Guaranty Savings & Loan Assn., No. 97-1, 1998 WL 472444 (D.D.C. Jan. 16, 1998).
326. See Ken Gormley, Court Must Do Its Duty in Starr Case, NEWSDAY, July 9, 1998, at A45. Kenneth Starr did discuss the putative connection between the Lewinsky matter and Whitewater during his House Judiciary Committee testimony in November of 1998. See Independent Counsel Kenneth Starr's Prepared Testimony Before the House Judiciary Committee, 1998 WL 801023 (F.D.H.C.) (Nov. 19, 1998); see also Alison Mitchell, Rancorous House Panel Hears Starr's Case for Impeachment, N.Y. TIMES, Nov. 20, 1998, at A1.
327. See Ken Gormley, Court Must Do Its Duty in Starr Case, NEWSDAY, July 9, 1998, at A45. Kenneth Starr did discuss the putative connection between the Lewinsky matter and Whitewater during his House Judiciary Committee testimony in November of 1998. See Independent Counsel Kenneth Starr's Prepared Testimony Before the House Judiciary Committee, 1998 WL 801023 (F.D.H.C.) (Nov. 19, 1998); see also Alison Mitchell, Rancorous House Panel Hears Starr's Case for Impeachment, N.Y. TIMES, Nov. 20, 1998, at A1.
328. See 28 U.S.C. § 593(c)(2)(A) (1994). For a discussion of how Attorney General Reno may have contributed to the general over-use of the jurisdictional provisions, however, see Frankel, supra note 229.
329. See Application for Expansion of Jurisdiction, In re Madison Guaranty, 1998 WL 472444, at 2.
330. In re Madison Guaranty, 1998 WL 472444, at 1 (order granting expansion of prosecutorial jusrisdiction, unsealed by order filed Jan. 29, 1998).
331. See 28 U.S.C. § 593(c)(2)(C). The court also presumably has the power to appoint a different independent counsel to investigate the same matter, rather than expanding jurisdiction. However, it is unclear whether the court is bound by the request of the Attorney General, or can make an independent judgment on the matter. See 28 U.S.C. § 593(c)(2)(C).
332. See, e.g., Alison Mitchell, Judiciary Panel, In Party Vote, Urges Impeachment Hearings; House Will Decide, N.Y. TIMES, Oct. 6, 1998, at A1 (Rep. Howard L. Berman (D. Cal.), stated that "it was Mr. Clinton's Attorney Genera), Janet Reno, who approved Mr. Starr's inquiry into the Lewinsky matter."). See also Michael Hedges, Starr Says More to Come, PGH. POST-GAZ., Oct. 10, 1998, at A1 (Charles Bakaly, a spokesman for Starr's office, stated: "We are committed to discharging our duties to investigate the matters that the attorney general requested we investigate, and that the special division gave us jurisdiction over.").
333. See, e.g., Alison Mitchell, Judiciary Panel, In Party Vote, Urges Impeachment Hearings; House Will Decide, N.Y. TIMES, Oct. 6, 1998, at A1 (Rep. Howard L. Berman (D. Cal.), stated that "it was Mr. Clinton's Attorney Genera), Janet Reno, who approved Mr. Starr's inquiry into the Lewinsky matter."). See also Michael Hedges, Starr Says More to Come, PGH. POST-GAZ., Oct. 10, 1998, at A1 (Charles Bakaly, a spokesman for Starr's office, stated: "We are committed to discharging our duties to investigate the matters that the attorney general requested we investigate, and that the special division gave us jurisdiction over.").
334. See David E. Rosenbaum, Some Experts are Faulting Counsel Law, N.Y. TIMES, Jan. 26, 1998, at A14.
335. See Morrison v. Olson, 487 U.S. 654, 672 (1988). Another problem with the flimsy jurisdictional standard is that an independent counsel can circumvent an Attorney General's decision to reject expansion of his or her jurisdiction, by requesting the court to rule that the new subject matter is implicit in the original grant of jurisdiction. Since Section 593 has considerable play in the joints, and allows the court to define jurisdiction to cover "all matters related to that [primary] subject matter," 28 U.S.C. § 593(b)(3), an independent counsel can use this as an end-run if the attorney general refuses to expand jurisdiction. See Morrissey, supra note 142, at 990-91; O'Sullivan, supra note 148, at 485-88. This is precisely what the independent counsel in Morrison v. Olson succeeded in doing, in seeking to pursue conspiracy charges against two targets after other allegations evaporated. See In re Sealed Case, 838 F.2d 476, 480 (D.C. Cir. 1988); Morrissey, supra note 142, at 990-91. If Congress amended the statute to create a presumption against expanding jurisdiction of the independent counsel directly, it would simultaneously curtail the independent counsel's ability to indirectly expand his authority through this "related matter" approach.
336. For an excellent discussion of how the independent counsel accomplished his desired result in the Espy case, see Maskell, supra note 166, at 36-37; O'Sullivan, supra note 148, at 485-88. The "related matter" provision of the independent counsel statute is contained in 28 U.S.C. § 593(b)(3). The Supreme Court in Morrison held that such matters must be "demonstrably related to the factual circumstances that gave rise to the Attorney General's investigation and request for the appointment of the independent counsel in the particular case." Morrison, 487 U.S. at 679. The Eighth Circuit has interpreted this to mean that the "related matter" provision is "exceedingly broad." See United states v. Tucker, 78 F.3d 1313, 1316-19 (8th Cir. 1996). At the same time, that circuit has ruled that the determination of the Attorney General as to the independent counsel's jurisdiction is final and non-reviewable. See Tucker, 78 F.3d at 1316-19 holding that it was exclusively within the power of the Attorney General to make determinations as to relatedness, and that this decision was not subject to judicial review). However, the special court apparently has not embraced the latter position. See In re Espy, 80 F.3d 501 (D.C. Cir. 1996) (rejecting the Attorney General's determination that a matter was not "related"). But see In re Espy, 145 F.3d 1365 (D.C. Cir 1998) (agreeing with the Attorney General that a matter was not "related" to independent counsel's original jurisdiction charge.)
337. Sixty-Seventh Judicial Conference, supra note 164, at 1546 (remarks of Robert Fiske).
338. Sixty-Seventh Judicial Conference, supra note 164, at 1549 (remarks of Jacob Stein). Attorney General (later Justice) Robert Jackson once described the danger inherent in over- broad prosecutorial power as follows: The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . . . . . . . . . With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm . . . that the greatest danger of abuse of prosecuting power lies. Robert H. Jackson, The Federal Prosecutor, Address Before the Second Annual Conference of United States Attorneys (April 1, 1940), in 24 AM. JUDICATURE SOCY. 18, 18-19 (1940).
339. O'Sullivan, supra note 148, at 490.
340. The perception of a large segment of the American public that Kenneth Starr was "out to get the President" in the Whitewater investigation - even before the Lewinsky matter arose - is well documented. See Donald Kaul, Special Counsels Spend Millions Working as Hatchet Men for GOP, ARIZ. REPUBLIC, Dec. 15, 1997, at B7;
341. Richard Reeves, Witch Hunt, DALLAS MORNING NEWS, June 27, 1997, at 29A;
342. Angie Cannon, Independent Counsel Starr Losing Reputation For
343. 28 U.S.C. § 593(c)(2)(A) (1994).
344. 28 U.S.C. § 593(c)(2)(B) also would have to be amended to eliminate the "reasonable grounds" threshold for triggering the appointment of an independent counsel. A higher threshold should be inserted consistent with revisions to Section 592(c)(1)(A), discussed supra at notes 176-81 and accompanying text.
345. See Ethics In Government Act of 1978, Pub. L. No. 95-521, 1978 U.S.C.C.A.N. 4281 (103 Stat. 1724).
346. See Drew & McNulty, supra note 171, at 1. See also LAWRENCE E. WALSH, FINAL REPORT OF THE INDEPENDENT COUNSEL FOR IRAN-CONTRA MATTERS (1993).
347. See Tom Hamburger, Latitude Given to Special Prosecutors Draws Fire; Sprawling Investigations Into Reagan, Clinton Cases Trigger Demands for Change, MINN. STAR TRIB., May 10, 1998, at 17A.
348. See, e.g., Howard Fineman & Karen Breslau, What Will He Say? NEWSWEEK, Aug. 10, 1998, at 22.
349. See Bell et al., supra note 148, at 474; Sixty-Seventh Judicial Conference, supra note 164, at 587 (remarks of Archibald Cox). Cox envisioned that the request for extension of time would be made to the court "in camera, if necessary" and could be renewed each year for good cause shown. See Bell et al., supra note 148, at 474. Lloyd Cutler also would impose a one-year time limit, but would allow the Attorney General some say over whether such an extension was appropriate. See id. at 475-76.
350. See Jost, supra note 165, at 30.
351. Bell et al., supra note 148, at 475. Larry Thompson, one of two independent counsels investigating fraud and mismanagement in the Reagan Administration Department of Housing and Urban Development, raised similar concerns about placing "artificial limits" upon the length of an investigation. See Sixty-Seventh Judicial Conference, supra note 164, at 1550-51 (remarks of Larry Thompson).
352. See MURRAY, supra note 111, at 471-73.
353. See WATERGATE REPORT, supra note 4.
354. See 28 U.S.C. § 596(b)(2) (1994).
355. See discussion infra notes 368-75 and accompanying text.
356. See Naftali Bendavid, Starr Takes Leave From Chicago Firm, CHI. TRIB., Aug. 1, 1998, at 8; Timothy Burger, Starr Still Stalling on 1997 Take, N.Y. DAILY NEWS, July 2, 1998, at 8; Robert Scheer, Setting Fire to Tobacco Legislation; Kenneth Starr Lives in a Glass House When it Comes to Conflicting Duties, L.A. TIMES, July 28, 1998, at B7. Starr was also criticized for representing tobacco interests in challenging anti-tobacco legislation, a high priority of the Clinton Administration. See Scheer, supra. Even after he expanded his Whitewater inquiry to encompass the Monica Lewinsky matter, Starr argued a major appeal for Meineke Discount Mufflers. See Burger, supra. In response to increased criticism about his outside legal work, Starr took a leave from his law practice in August of 1998, just as the controversial Lewinsky investigation reached a crescendo. See Bendavid, supra note 286.
357. See Naftali Bendavid, Starr Takes Leave From Chicago Firm, CHI. TRIB., Aug. 1, 1998, at 8; Timothy Burger, Starr Still Stalling on 1997 Take, N.Y. DAILY NEWS, July 2, 1998, at 8; Robert Scheer, Setting Fire to Tobacco Legislation; Kenneth Starr Lives in a Glass House When it Comes to Conflicting Duties, L.A. TIMES, July 28, 1998, at B7. Starr was also criticized for representing tobacco interests in challenging anti-tobacco legislation, a high priority of the Clinton Administration. See Scheer, supra. Even after he expanded his Whitewater inquiry to encompass the Monica Lewinsky matter, Starr argued a major appeal for Meineke Discount Mufflers. See Burger, supra. In response to increased criticism about his outside legal work, Starr took a leave from his law practice in August of 1998, just as the controversial Lewinsky investigation reached a crescendo. See Bendavid, supra note 286.
358. See Naftali Bendavid, Starr Takes Leave From Chicago Firm, CHI. TRIB., Aug. 1, 1998, at 8; Timothy Burger, Starr Still Stalling on 1997 Take, N.Y. DAILY NEWS, July 2, 1998, at 8; Robert Scheer, Setting Fire to Tobacco Legislation; Kenneth Starr Lives in a Glass House When it Comes to Conflicting Duties, L.A. TIMES, July 28, 1998, at B7. Starr was also criticized for representing tobacco interests in challenging anti-tobacco legislation, a high priority of the Clinton Administration. See Scheer, supra. Even after he expanded his Whitewater inquiry to encompass the Monica Lewinsky matter, Starr argued a major appeal for Meineke Discount Mufflers. See Burger, supra. In response to increased criticism about his outside legal work, Starr took a leave from his law practice in August of 1998, just as the controversial Lewinsky investigation reached a crescendo. See Bendavid, supra note 286.
359. Sixty-Seventh Judicial Conference, supra note 164, at 1540 (remarks of David B. Sentelle).
360. See H.R. CONF. REP. NO. 100-452, at 26-27 (1987).
361. See Sixty-Seventh Judicial Conference, supra note 164, at 1540 (remarks of John D. Butzner). After Judge Butzner made his comments, the statutory maximum for Starr's salary was raised to $118,000. See Chris Caldwell, The All Starr Team, GEORGE, Apr. 1998, at 126. The salary is that established pursuant to 5 U.S.C. § 5315, level IV of the Executive Schedule. See 28 U.S.C. § 594(b) (1994).
362. For a review of those special prosecutors who have worked part-time, in the years prior to the appointment of Kenneth Starr, see Nolan, supra note 142, at 22 n.96.
363. See Bell et al., supra note 148, at 476-77; See Jost, supra note 165, at 30; Sixty-Seventh Judicial Conference, supra note 164, at 1587.
364. Sixty-Seventh Judicial Conference, supra note 164, at 1587 (remarks of Archibald Cox).
365. Id. at 1587.
366. Bell et al., supra note 148, at 476-77. This sentiment was also expressed by Michael Zeldin, independent counsel in the investigation involving the Bush Administration search of Bill Clinton's passport records. See Jost, supra note 165, at 30.
367. See 5 C.F.R. § 3801.106 (1998); 61 Fed. Reg. 59811-01, 1996 WL 675232 (F.R.) (Nov. 25, 1996).
368. A similar point was made in O'Sullivan, supra note 148, at 482.
369. Id. at 482.
370. See GORMLEY, supra note 3, at 240-41.
371. See JAMES DOYLE, NOT ABOVE THE LAW: THE BATTLES OF WATERGATE PROSECUTORS COX AND JAWORSKI 237-39 (1997).
372. Jaworski returned to Texas as soon as the Watergate case was in a position for trial by his litigation team. See id. at 349, 374-76.
373. For an argument that independent counsels really do not have unlimited time to conduct their investigations, since the special court can terminate them pursuant to 28 U.S.C. § 596(b)(2) (1994) if it determines that their work is "substantially completed," see Dash, supra note 248, at 2083-84.
374. See GORMLEY, supra note 3, at 233-34.
375. GORMLEY, supra note 3, at 240.
376. Even federal judge and cabinet official in the nation presumably has to make such financial trade-offs in deciding whether or not to engage in public service.
377. See, e.g., Paul Delaney, Losing Faith in the Independent Counsel Act, BALT. SUN, July 5, 1998, at 17A, available in ALLNEWS, 1998 WL 4974596; Anthony Lewis, Abroad at Home: After Kenneth Starr, N.Y. TIMES, Mar. 9, 1998, at A19; Relax, It's Just Money, GEORGE, Apr. 1998, at 130. In the first four years of existence of the independent counsel statute, the median length of an investigation was seven months and the median cost was less than $200,000. In the last four years, the median length of an investigation was two and a half years, and the median cost was nearly four million dollars. See Kathleen Clark, Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 STAN. L. REV. 65, 127 (1997). For a detailed list of costs by investigation, see Kathy Kiely, $54M For Independent Counsels, N.Y. DAILY NEWS, May 12, 1998, at 2, available in ALLNEWS, 1998 WL 11032723 (covering Clinton Administration); Investigations, by Administration, USA TODAY, Nov. 14, 1997, at A4 (covering entire span of the statute).
378. See, e.g., Paul Delaney, Losing Faith in the Independent Counsel Act, BALT. SUN, July 5, 1998, at 17A, available in ALLNEWS, 1998 WL 4974596; Anthony Lewis, Abroad at Home: After Kenneth Starr, N.Y. TIMES, Mar. 9, 1998, at A19; Relax, It's Just Money, GEORGE, Apr. 1998, at 130. In the first four years of existence of the independent counsel statute, the median length of an investigation was seven months and the median cost was less than $200,000. In the last four years, the median length of an investigation was two and a half years, and the median cost was nearly four million dollars. See Kathleen Clark, Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 STAN. L. REV. 65, 127 (1997). For a detailed list of costs by investigation, see Kathy Kiely, $54M For Independent Counsels, N.Y. DAILY NEWS, May 12, 1998, at 2, available in ALLNEWS, 1998 WL 11032723 (covering Clinton Administration); Investigations, by Administration, USA TODAY, Nov. 14, 1997, at A4 (covering entire span of the statute).
379. See, e.g., Paul Delaney, Losing Faith in the Independent Counsel Act, BALT. SUN, July 5, 1998, at 17A, available in ALLNEWS, 1998 WL 4974596; Anthony Lewis, Abroad at Home: After Kenneth Starr, N.Y. TIMES, Mar. 9, 1998, at A19; Relax, It's Just Money, GEORGE, Apr. 1998, at 130. In the first four years of existence of the independent counsel statute, the median length of an investigation was seven months and the median cost was less than $200,000. In the last four years, the median length of an investigation was two and a half years, and the median cost was nearly four million dollars. See Kathleen Clark, Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 STAN. L. REV. 65, 127 (1997). For a detailed list of costs by investigation, see Kathy Kiely, $54M For Independent Counsels, N.Y. DAILY NEWS, May 12, 1998, at 2, available in ALLNEWS, 1998 WL 11032723 (covering Clinton Administration); Investigations, by Administration, USA TODAY, Nov. 14, 1997, at A4 (covering entire span of the statute).
380. See, e.g., Paul Delaney, Losing Faith in the Independent Counsel Act, BALT. SUN, July 5, 1998, at 17A, available in ALLNEWS, 1998 WL 4974596; Anthony Lewis, Abroad at Home: After Kenneth Starr, N.Y. TIMES, Mar. 9, 1998, at A19; Relax, It's Just Money, GEORGE, Apr. 1998, at 130. In the first four years of existence of the independent counsel statute, the median length of an investigation was seven months and the median cost was less than $200,000. In the last four years, the median length of an investigation was two and a half years, and the median cost was nearly four million dollars. See Kathleen Clark, Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 STAN. L. REV. 65, 127 (1997). For a detailed list of costs by investigation, see Kathy Kiely, $54M For Independent Counsels, N.Y. DAILY NEWS, May 12, 1998, at 2, available in ALLNEWS, 1998 WL 11032723 (covering Clinton Administration); Investigations, by Administration, USA TODAY, Nov. 14, 1997, at A4 (covering entire span of the statute).
381. See, e.g., Paul Delaney, Losing Faith in the Independent Counsel Act, BALT. SUN, July 5, 1998, at 17A, available in ALLNEWS, 1998 WL 4974596; Anthony Lewis, Abroad at Home: After Kenneth Starr, N.Y. TIMES, Mar. 9, 1998, at A19; Relax, It's Just Money, GEORGE, Apr. 1998, at 130. In the first four years of existence of the independent counsel statute, the median length of an investigation was seven months and the median cost was less than $200,000. In the last four years, the median length of an investigation was two and a half years, and the median cost was nearly four million dollars. See Kathleen Clark, Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 STAN. L. REV. 65, 127 (1997). For a detailed list of costs by investigation, see Kathy Kiely, $54M For Independent Counsels, N.Y. DAILY NEWS, May 12, 1998, at 2, available in ALLNEWS, 1998 WL 11032723 (covering Clinton Administration); Investigations, by Administration, USA TODAY, Nov. 14, 1997, at A4 (covering entire span of the statute).
382. See, e.g., Paul Delaney, Losing Faith in the Independent Counsel Act, BALT. SUN, July 5, 1998, at 17A, available in ALLNEWS, 1998 WL 4974596; Anthony Lewis, Abroad at Home: After Kenneth Starr, N.Y. TIMES, Mar. 9, 1998, at A19; Relax, It's Just Money, GEORGE, Apr. 1998, at 130. In the first four years of existence of the independent counsel statute, the median length of an investigation was seven months and the median cost was less than $200,000. In the last four years, the median length of an investigation was two and a half years, and the median cost was nearly four million dollars. See Kathleen Clark, Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 STAN. L. REV. 65, 127 (1997). For a detailed list of costs by investigation, see Kathy Kiely, $54M For Independent Counsels, N.Y. DAILY NEWS, May 12, 1998, at 2, available in ALLNEWS, 1998 WL 11032723 (covering Clinton Administration); Investigations, by Administration, USA TODAY, Nov. 14, 1997, at A4 (covering entire span of the statute).
383. 28 U.S.C. § 594(d)(2) (1994).
384. See Philip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998).
385. See Malone, supra note 160, at A10; Maskell, supra note 166, at 31; Page, supra note 166, at A4;.
386. See Relax, It's Just Money, supra note 305, at 130; Page, supra note 166, at A4; Kiely, supra note 305, at 2; Gormley, supra note 170, at C7; Gormley, supra note 260.
387. See EASTLAND, supra note 23, at 124.
388. See Investigations, by Administration, supra note 305, at A4.
389. See 1997 ATTY. GEN. ANN. REP. 1, available at 〈http://www.usdoj.gov/ag/ar97/ doj1997.pdf〉.
390. See Martin & Zerhusen, supra note 142, at 542-43 (arguing that the independent counsel should be required to seek enlargements of time and money from the court).
391. See supra discussion at notes 172-238 and accompanying text.
392. O'Sullivan, supra note 148, at 500.
393. 28 U.S.C. § 594(h)(1)(A) (1994).
394. 28 U.S.C. § 594(H)(1)(B).
395. See 28 U.S.C. § 594(h)(1)(B).
396. See Sixty-Seventh Judicial Conference, supra note 164, at 1559.
397. See O'Sullivan, supra note 148, at 484-85.
398. See Sixty-Seventh Judicial Conference, supra note 164, at 1558.
399. See Drew & McNulty, supra note 171, at 1; Carl P. Leubsdorf, Report Says Reagan Fostered Iran-Contra; He Denies Creating Climate For Aides' Efforts, DALLAS MORNING NEWS, Jan. 19, 1994, at 1A.
400. Sixty-Seventh Judicial Conference, supra note 164, at 1556.
401. Id. at 1558.
402. Id.
403. See Martin & Zerhusen, supra note 142, at 547.
404. See Heymann, supra note 307, at 2128-30; Kavanaugh, supra note 161, at 2155-57.
405. See Martin & Zerhusen, supra note 142, at 547; O'Sullivan, supra note 148, at 484-85.
406. One significant injustice decried by commentators is that an individual against whom criminal charges are not brought can still be "publicly branded a criminal or wrongdoer" in the final report. See Martin & Zerhusen, supra note 142, at 546-47. This occurred, most notably, in the second investigation of Attorney General Edwin Meese by independent counsel James McKay. See EASTLAND, supra note 23, at 123; Martin & Zerhusen, supra note 142, at 547 n.39. See also OFFICE OF INDEPENDENT COUNSEL, REPORT OF INDEPENDENT COUNSEL IN RE EDWIN MEESE III 73-76, 95-99 (1988) (suggesting that evidence "probably" existed to convict Meese for certain offenses, although criminal charges were not brought).
407. See Morrison v. Olson 487 U.S. 654, 681 (1988).
408. Sixty-Seventh Judicial Conference, supra note 164, at 1556 (remarks of Larry D. Thompson).
409. See HARRIGER, supra note 23, at 47 & 229 n.35. Sirica had won public respect because his refusal to believe that the Watergate burglars were telling the whole truth - and his questioning of the sufficiency of the Justice Department's prosecution in the original Watergate trial - led to the unraveling of the White House cover-up. See generally JOHN SIRICA, TO SET THE RECORD STRAIGHT (1979).
410. See e.g., Roe v. Wade, 410 U.S. 113 (1973).
411. See e.g., Craig v. Boren, 429 U.S. 190 (1976); Frontiero v. Richardson, 411 U.S. 677 (1973).
412. See e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).
413. It is noteworthy that the first major "special prosecutor" bill introduced by Senator Birch Bayh in Congress, in the week following Archibald Cox's firing in the Saturday Night Massacre, placed the power to appoint and oversee the special prosecutor in the federal District Court. See S. REP. NO. 93-595, at 2 (1973).
414. For an account of the legal debate over whether President Nixon had the power to fire Cox, see GORMLEY, supra note 3, at 323, 383, 420 & 558 n.135.
415. For a discussion of the conflicts of interest that abounded in the Watergate investigation prior to Cox's appointment, see id. note 3, at 257-61, 282 & 368-71.
416. The relationship between Cox and Richardson, that was essential to Cox's effective performance as special prosecutor, is summarized in id. at 294-99, 318-22. Professor John Barrett thoroughly discusses the importance of a healthy relationship between the Attorney General and independent counsels in John Q. Barrett, All Or Nothing, Or Maybe Cooperation: Attorney General Power, Conduct, and Judgment in Relation to the Work of an Independent Counsel, 49 MERCER L. REV. 519, 549-50 (1998).
417. For an expression of Congress's concern that the special prosecutor legislation should not be permitted to create a "fourth branch of Government," see Hearings Before the Senate Comm. on Govt. Operations, supra note 60, at 23 (remarks of Sen. Baker).
418. 28 U.S.C. § 593 (1994).
419. See Gormley, supra note 229, at A25; Gormley, supra note 260.
420. Sixty-Seventh Judicial Conference, supra note 164, at 1541 (remarks of John D. Butzner).
421. See Morrison v. Olson, 487 U.S. 654, 681 (1988) (footnote omitted). The Special Division itself has likewise written: "The Independent Counsel does not operate under our supervision and his acts . . . do not bear our aegis." In re North, 16 F.3d 1234, 1239 (D.C. Cir. 1994).
422. These functions included the ability of the special court to determine whether the Attorney General had shown "good cause" for extending a preliminary investigation beyond the time limit; deciding whether to make public the various reports of the Attorney General and the independent counsel; and deciding whether to award attorneys fees. See Morrison, 487 U.S. at 681 n.19.
423. See Morrison, 487 U.S. at 682, 28 U.S.C. § 596(b)(2) (1994) allows the special court to terminate the office of the independent counsel when, based upon a request from the Attorney General or upon its own motion, it determines that an investigation is "so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions."
424. Morrison, 487 U.S. at 681. The examples that Chief Justice Rehnquist gave included (a) the ability of federal judges to decide whether to allow the disclosure of matters occurring before a grand jury pursuant to Fed. Rule Crim. Proc. 6(e); (b) the ability of federal judges to extend a grand jury investigation pursuant to Rule 6(g); and (c) the ability of federal judges to award attorneys fees in civil rights cases pursuant to 42 U.S.C. § 1988. See Morrison, 487 U.S. at 681.
425. See Tuerkeimer, supra note 143, at 251-52.
426. For a discussion of some of the specific dangers inherent in permitting the independent counsel to become an unaccountable "fourth branch" of government, see Daugherty, supra note 142, at 984-90, and Feinburg, supra note 135, at 183-84. Senator Howard Baker also warned against creating a "virtually inviolate fourth branch of Government" that "would substantially diminish the accountability of law-enforcement officials to the President, the Congress, and the American people." See Hearings Before the Senate Comm. on Government Operations, supra note 60, at 23.
427. I take this to be the underlying message of Professor Tribe, in his recent dialogue with Professor Amar. Tribe laments that the independent counsel statute as it has evolved destroys the notion of separation of powers, since the special prosecutor is "inferior" to no one. See Amar & Tribe, supra note 151.
428. See 28 U.S.C. § 593(b)(1) (1994).
429. See 28 U.S.C. § 593(b)(1).
430. See 28 U.S.C. § 593(b)(2).
431. See Morrison v. Olson, 487 U.S. 654, 680 (1988).
432. See 28 U.S.C. § 49(c) (1994).
433. These points are discussed in Morrison, 487 U.S. at 681 n. 20. The provision of the independent counsel statute that mandates that the special court shall not decide the merits of a case is 28 U.S.C. § 49(f).
434. See, e.g., Amar, supra note 151, at C1.
435. See id. at C2.
436. In part, criticism relating to the manner of Starr's appointment turned upon the fact that Judge Sentelle's wife worked in Senator Faircloth's office, and reportedly arranged the lunchtime meeting to discuss the replacement of Fiske with someone who would be more aggressive, in order to satisfy anti-Clinton Republicans. See Bell et al., supra note 148, at 477-78; Joan Biskupic, Choosing the Independent Counsel; Power of Three-Judge Panel Breeds Questions of Partisanship, WASH. POST, Apr. 13, 1997, at A12; Sen. Robert Torricell, It's Time to Reconsider Independent Counsel Statute's Effectiveness, ROLL CALL, Mar. 20, 1997, at Guest Observer section. For a response to these criticisms involving the controversial lunch, see O'Sullivan, supra note 148, at 471-73.
437. In part, criticism relating to the manner of Starr's appointment turned upon the fact that Judge Sentelle's wife worked in Senator Faircloth's office, and reportedly arranged the lunchtime meeting to discuss the replacement of Fiske with someone who would be more aggressive, in order to satisfy anti-Clinton Republicans. See Bell et al., supra note 148, at 477-78; Joan Biskupic, Choosing the Independent Counsel; Power of Three-Judge Panel Breeds Questions of Partisanship, WASH. POST, Apr. 13, 1997, at A12; Sen. Robert Torricell, It's Time to Reconsider Independent Counsel Statute's Effectiveness, ROLL CALL, Mar. 20, 1997, at Guest Observer section. For a response to these criticisms involving the controversial lunch, see O'Sullivan, supra note 148, at 471-73.
438. See Bell et al., supra note 148, at 477-78.
439. See Watergate Reforms, supra note 76 at 5, and discussion supra text accompanying notes 76-78. For a similar proposal that the President appoint a special prosecutor at the beginning of each term, to be confirmed by the Senate and operate within the Justice Department, see Victor H. Kramer & Louis P. Smith, The Special Prosecutor Act: Proposals For 1983, 66 MINN. L. REV. 963 (1982).
440. Before Attorney General Elliot Richardson asked Archibald Cox to serve as Watergate Special Prosecutor, for instance, seven prominent lawyers and judges turned Richardson down. See GORMLEY, supra note 3, at 233-34. Given the controversial nature of such investigations, few prominent attorneys will become involved rashly.
441. The statute provides only that the court shall seek to appoint "an individual who has appropriate experience and who will conduct the investigation and any prosecution in a prompt, responsible, and cost-effective manner," and an individual "who will serve to the extent necessary to complete the investigation and any prosecution without undue delay." 28 U.S.C. § 593(b)(2) (1994).
442. See Sixty-Seventh Judicial Conference, supra note 164, at 1537.
443. Thus, for instance, it might have been useful if Attorney General Reno had the opportunity to inform the court that the White House perceived Kenneth Starr to be an inappropriate selection, because he purportedly had taken steps to file an amicus brief in the Paula Jones case taking a position against the President. See Sara Fritz, Fiske Ousted in Whitewater Case; Move is Surprise, L.A. TIMES, Aug. 6, 1994, at A1; Rovella, supra note 160, at A1; Gary Wills, Cabal and Courtiers, AUSTIN AM.-STATESMAN, July 27, 1998, at A9, available in ALLNEWS, 1998 WL 3619483. Instead, this anti-Starr sentiment in the White House festered and led to an increasingly hostile relationship between the two camps.
444. Thus, for instance, it might have been useful if Attorney General Reno had the opportunity to inform the court that the White House perceived Kenneth Starr to be an inappropriate selection, because he purportedly had taken steps to file an amicus brief in the Paula Jones case taking a position against the President. See Sara Fritz, Fiske Ousted in Whitewater Case; Move is Surprise, L.A. TIMES, Aug. 6, 1994, at A1; Rovella, supra note 160, at A1; Gary Wills, Cabal and Courtiers, AUSTIN AM.-STATESMAN, July 27, 1998, at A9, available in ALLNEWS, 1998 WL 3619483. Instead, this anti-Starr sentiment in the White House festered and led to an increasingly hostile relationship between the two camps.
445. See Barrett, supra note 339, at 548-51.
446. For a criticism of the special court's ill-defined role under the statute, see Martin & Zerhusen, supra note 142, at 539.
447. See 28 U.S.C. § 596(b)(2) (1994).
448. Section 596(b)(2) also permits the Attorney General to request such termination. However, the special court must automatically make such a determination every two years (and then every year), even if the Attorney General takes no action. See U.S.C. § 596(b)(2). Prior to the adoption of the present language in Section 596(b)(2), the original statute permitted the special court to terminate a special prosecutor if his work was "substantially completed," but did not mandate a periodic review by the court.
449. See 28 U.S.C. § 596(a).
450. H.R. CONF. REP. NO. 103-511, at 23 (1994), reprinted in 1994 U.S.C.C.A.N. 748, 806.
451. See 487 U.S. 654, 682-83 (1988).
452. See H.R. CONF. REP. NO. 103-511, at 23, reprinted in 1994 U.S.C.C.A.N. 748, 806.
453. See Order, In Re Madison Guaranty Savings & Loan Associates, Aug. 4, 1998; Gormley, supra note 260. The special court had done the same thing two years earlier, at the time of its first mandatory review. See Order, In Re Madison Guaranty Savings & Loan Association, Aug. 5, 1996. The only reported instance in which the special court took more than pro forma action to determine if an investigation was "substantially completed" occurred towards the end of the Iran-Contra case. There, President Ronald Reagan filed a document entitled "Suggestion that the Court Exercise its Power to Terminate the Office of Independent Counsel," requesting that the special court terminate the special prosecutor's office except for the "ministerial" function of completing his Final Report. The Court entered an order directing Independent Counsel Lawrence Walsh to "show cause" why his office should not be terminated in this fashion, and allowed the independent counsel to file a response thereto. Ultimately, the special court granted the President's request. See In re Oliver L. North, 10 F.3d 831 (D.C. Cir. 1993). Judge Butzner dissented in part, arguing that the court should not use its termination power to exercise "control" over the independent counsel in this fashion. See In re North, 10 F.3d at 61-63.
454. This was particularly true since Starr's original charter limited him to the Whitewater matter. To the extent that the Attorney General authorized the expansion of jurisdiction into the Lewinsky case in the first place, based upon conversations with Starr about its potential link to Whitewater, the court would have benefitted from hearing from both the Attorney General and the independent counsel in rehearsing their conversations and determining how far the extension of jurisdiction was meant to go.
455. In other settings, the judicial branch has been given oversight functions to ensure that criminal prosecutions are being conducted fairly and even-handedly. See supra note 356 and accompanying text. In the Third Circuit, for instance, if a grand jury subpoena is challenged, the federal courts require that government prosecutors supply them with "some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose." See In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973); In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 966 (3d Cir.), cert. denied sub nom. Schofield v. United States, 421 U.S. 1015 (1975). Such a minimal intrusion by the judicial branch upon the prosecutorial function, in order to responsibly monitor criminal cases, is deemed appropriate.
456. See 28 U.S.C. § 1291 (1994).
457. For one example of an ex parte motion by Starr, that raised some concern in the White House, see Stephen Labaton, Starr Accused of Misleading Appeals Court, N. Y. TIMES, Oct. 6, 1998, at A20 (discussing Starr's ex parte petition to send impeachment material to Congress).
458. Martin & Zerhusen, supra note 142, at 546. The authors represented Theodore Olson, an Assistant Attorney General in the Reagan Administration who was alleged to have provided false information in congressional testimony. Olson was cleared of the charges.
459. See 28 U.S.C. § 2071 (1994).
460. The special court has been routinely criticized for establishing ambiguous ground rules for litigants who are the subject of investigations. See, e.g., Martin & Zerhusen, supra note 142, at 539. There is also much confusion as to whether certain decisions should be made by the special court, or the federal district court. For instance, it is far from clear whether the special court should have considered and granted Kenneth Starr's request to release the Starr Report to Congress, pursuant to Rule 6(e) of the Rules of Evidence, or whether this decision appropriately rested with the district court.
461. See supra note 234 and accompanying text.
462. See O'Sullivan, supra note 148, at 471-72.
463. At least one state, Indiana, has statutorily required the courts to relieve a prosecutor from duty and appoint a replacement prosecutor where the former exhibits "bias, prejudice" or hostility toward the state's interest. See Hendricks v. Indiana ex rel. Northwest Ind. Crime Commn., Inc., 196 N.E.2d 66, 67 (Ind. 1964). A court in New York has specifically authorized the replacement of one special prosecutor with another, where the initial appointment was deemed a poor selection for the particular case. See People v. Gallagher, 143 A.D. 2d 929, 533 N.Y.S. 2d 554 (1988).
464. See 1973 Hearings Before the Subcomm. on Criminal Justice, supra note 4, at 101 (remarks of Sen. Bayh). Senator Joseph R. Biden, Jr. (D. Del.), then-Chairman of the Senate Judiciary Committee, wrote in 1987: "There are certain extraordinary moments of crisis when the people's faith in the integrity and independence of their elected officials is caused to waiver . . . . To restore the utmost public confidence in the investigation of criminal wrongdoing by high-ranking government officials, the appointment of a special prosecutor then becomes necessary." Biden, supra note 107, at 886.
465. In Watergate, President Nixon and his advisors vehemently asserted that Cox was a biased "Kennedyite" who was out to bring down the President. See GORMLEY, supra note 3, at 265-68. In the Iran-Contra affair, Lawrence Walsh was routinely accused of being bent on disrupting or destroying the Reagan and Bush Administrations. See, e.g., Robert H. Bork, Against the Independent Counsel, COMMENTARY, Feb. 1993, at 24-25; Can't Beat 'Em?' Indict 'Em!', DAILY OKLAHOMAN, July 30, 1992, at 4.
466. In Watergate, President Nixon and his advisors vehemently asserted that Cox was a biased "Kennedyite" who was out to bring down the President. See GORMLEY, supra note 3, at 265-68. In the Iran-Contra affair, Lawrence Walsh was routinely accused of being bent on disrupting or destroying the Reagan and Bush Administrations. See, e.g., Robert H. Bork, Against the Independent Counsel, COMMENTARY, Feb. 1993, at 24-25; Can't Beat 'Em?' Indict 'Em!', DAILY OKLAHOMAN, July 30, 1992, at 4.
467. See, e.g., Richard Cohen, Starr Crosses the Line, WASH. POST, June 26, 1997, at A19; Mark Hosenball & Evan Thomas, The Man Behind the Curtain, NEWSWEEK, May 18, 1998, at 32; Gene Lyons, Kenneth Starr's Clear Partisanship, ARK. DEM.-GAZETTE, Aug. 13, 1997, at B9; Robert Parry, Was Hillary Right? Right-Wing Conspiracies & Hardball Politics, IN THESE TIMES, June 14, 1998, at 17.
468. See, e.g., Richard Cohen, Starr Crosses the Line, WASH. POST, June 26, 1997, at A19; Mark Hosenball & Evan Thomas, The Man Behind the Curtain, NEWSWEEK, May 18, 1998, at 32; Gene Lyons, Kenneth Starr's Clear Partisanship, ARK. DEM.-GAZETTE, Aug. 13, 1997, at B9; Robert Parry, Was Hillary Right? Right-Wing Conspiracies & Hardball Politics, IN THESE TIMES, June 14, 1998, at 17.
469. See, e.g., Richard Cohen, Starr Crosses the Line, WASH. POST, June 26, 1997, at A19; Mark Hosenball & Evan Thomas, The Man Behind the Curtain, NEWSWEEK, May 18, 1998, at 32; Gene Lyons, Kenneth Starr's Clear Partisanship, ARK. DEM.-GAZETTE, Aug. 13, 1997, at B9; Robert Parry, Was Hillary Right? Right-Wing Conspiracies & Hardball Politics, IN THESE TIMES, June 14, 1998, at 17.
470. See, e.g., Richard Cohen, Starr Crosses the Line, WASH. POST, June 26, 1997, at A19; Mark Hosenball & Evan Thomas, The Man Behind the Curtain, NEWSWEEK, May 18, 1998, at 32; Gene Lyons, Kenneth Starr's Clear Partisanship, ARK. DEM.-GAZETTE, Aug. 13, 1997, at B9; Robert Parry, Was Hillary Right? Right-Wing Conspiracies & Hardball Politics, IN THESE TIMES, June 14, 1998, at 17.
471. See, e.g., Jane Fullerton, First Lady Sees "Conspiracy:" "Nonsense," Starr Says As President's Secretary Testifies, ARK. DEM.-GAZETTE, Jan. 28, 1998, at A1.
472. In 1994, Senator Carl Levin (D. Mich.) raised questions about Starr's ability to fairly conduct the Whitewater investigation. The special court "brushed aside" this challenge, indicating that the statute did not authorize it to render opinions concerning a special prosecutor's fitness to remain in that post, once appointed. See David Johnston, Three Judges Spurn Protest on Whitewater Prosecutor, N.Y. TIMES, Aug. 19, 1994, at A16; see also Statement of Senator Levin in the Congressional Record, supra note 245, at S11,957.
473. See Ken Gormley, Bring On the Impeachment Inquiry, CHI. TRIB., Apr. 26, 1998, § 1 at 21; Interview with Archibald Cox by Phillip Heymann et al., Feb. 19, 1974, Archibald Cox Papers, Box 24, folder 1, Harvard Law School Library, at 16.
474. See Interview with Archibald Cox, supra note 390; see also GORMLEY, supra note 3, at 295-96; WATERGATE REPORT, supra note 4, at 195. Cox also declined to investigate charges that General A1 Haig, President Nixon's Chief of Staff, might be improperly receiving two salaries, one from the military and one from the White House. See Interview with Archibald Cox, supra note 390, at 16.
475. The statute was amended by Ethics in Government Act Amendments of 1982, Pub. L. No. 97-409, § 2(a)(1)(A), (B), 96 Stat. 2039 (1983).
476. S. REP. NO. 97-496, at 18 (1982), reprinted in 1982 U.S.C.C.A.N. 3537, 3554. Professor Beth Nolan called the new name "a benign-sounding title that suggests neutrality." Nolan, supra note 142, at 18. A later House report explained: "This change was made to remove any implication that the subject of an investigation under the provisions of this stat" ute had been already determined to have committed the alleged crime." H.R. REP. NO. 100-316, at 10 n.2 (1987).
477. See Gormley, supra note 170.
478. For a profile of the principal prosecutors employed by Whitewater independent counsel Kenneth Starr, see Caldwell, supra note 289, at 129-31, 146.
479. Sixty-Seventh Judicial Conference, supra note 164, at 1586 (remarks of Archibald Cox); see also Walsh, supra note 193, at 2389 (arguing that Act will prevent another "Saturday Night Massacre"). For an argument, however, that a special prosecutor law is not necessary because such crises will work themselves out politically, as they did in Watergate, see Joseph E. DiGenova. The Independent Counsel Act: A Good Time to End a Bad Idea, 86 GEO. L.J. 2299, 2305 (1998).
480. For a discussion of how close President Nixon came to succeeding in his plan to abolish the special prosecutor and derailing the Watergate investigation, see GORMLEY, supra note 3, at 371-77.
481. For a discussion of ad hoc appointments, see supra discussion at notes 231-34 and accompanying text.
482. For other scholars and commentators who have supported the preservation of the independent counsel statute, albeit with certain reforms, see Dash, supra note 248, at 2094-95; Harriger, supra note 180, at 2116-17; Walsh, supra note 193, at 2381-82, 2389; Archibald Cox, Curbing Special Counsels, N.Y. TIMES Dec 12 1996, at A1.
483. See Dash, supra note 248, at 2094-95; Norman J. Ornstein, Doing Congress's Dirty Work, 86 GEO. L.J. 2179, 2189-90; Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 GEO L.J. 2267, 2269-71, 2277-79 (1998).
484. See Dash, supra note 248, at 2094-95; Norman J. Ornstein, Doing Congress's Dirty Work, 86 GEO. L.J. 2179, 2189-90; Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 GEO L.J. 2267, 2269-71, 2277-79 (1998).