The American Prosecutor: Independence, Power, and the Threat of Tyranny

Iowa Law Review

Volumn 86, Issue 2, 2001, Pages 395-465

  Davis, Angela J ^a  

^a NONE

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EID: 0345775537     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (476)

1. Samuel Dash, Needed to Foil High Crimes, N.Y. TIMES, Feb. 21, 1999, available at 1999 WL 2739494.
2. Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended at 28 U.S.C. §§ 591-599 (1994 & Supp. V 1999)).
3. Id. § 599 (providing for expiration of the Independent Counsel Reauthorization Act of 1994 five years after its enactment).
4. See generally Ken Gormley, An Original Model of the Independent Counsel Statute, 97 MICH. L. REV. 601, 663 (1998) (discussing the expansion of the power and jurisdiction of the Independent Counsel under Kenneth Starr); William K. Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System, 83 MINN. L. REV. 1197 (1999) (discussing the constitutional implications of the Independent Counsel Act).
5. See generally Ken Gormley, An Original Model of the Independent Counsel Statute, 97 MICH. L. REV. 601, 663 (1998) (discussing the expansion of the power and jurisdiction of the Independent Counsel under Kenneth Starr); William K. Kelley, The Constitutional Dilemma of Litigation Under the Independent Counsel System, 83 MINN. L. REV. 1197 (1999) (discussing the constitutional implications of the Independent Counsel Act).
6. See, e.g., John Anderson, Our Prosecutors Tell Lies?, NAT'L L.J., May 10, 1999, at A25; Carl Cannon, Starr's Methods Provoke Outrage: Whitewater Counsel Rebuts Reports, Says Actions May Aid Probe, BALTIMORE SUN, June 26, 1997, at A1; John Head, Slobodan Starr: Ruthless Whitewater Cleanser Must Be Stopped, ATLANTA CONST., May 7, 1999, at A22; Nick Littlefield, Starr not Merely a Loose Cannon but an Errant Prosecutor, BOSTON GLOBE, Nov. 20, 1998, at C3; Starr Must Go, NATION, May 17, 1999, available at 1999 WL 9307066.
7. See, e.g., John Anderson, Our Prosecutors Tell Lies?, NAT'L L.J., May 10, 1999, at A25; Carl Cannon, Starr's Methods Provoke Outrage: Whitewater Counsel Rebuts Reports, Says Actions May Aid Probe, BALTIMORE SUN, June 26, 1997, at A1; John Head, Slobodan Starr: Ruthless Whitewater Cleanser Must Be Stopped, ATLANTA CONST., May 7, 1999, at A22; Nick Littlefield, Starr not Merely a Loose Cannon but an Errant Prosecutor, BOSTON GLOBE, Nov. 20, 1998, at C3; Starr Must Go, NATION, May 17, 1999, available at 1999 WL 9307066.
8. See, e.g., John Anderson, Our Prosecutors Tell Lies?, NAT'L L.J., May 10, 1999, at A25; Carl Cannon, Starr's Methods Provoke Outrage: Whitewater Counsel Rebuts Reports, Says Actions May Aid Probe, BALTIMORE SUN, June 26, 1997, at A1; John Head, Slobodan Starr: Ruthless Whitewater Cleanser Must Be Stopped, ATLANTA CONST., May 7, 1999, at A22; Nick Littlefield, Starr not Merely a Loose Cannon but an Errant Prosecutor, BOSTON GLOBE, Nov. 20, 1998, at C3; Starr Must Go, NATION, May 17, 1999, available at 1999 WL 9307066.
9. See, e.g., John Anderson, Our Prosecutors Tell Lies?, NAT'L L.J., May 10, 1999, at A25; Carl Cannon, Starr's Methods Provoke Outrage: Whitewater Counsel Rebuts Reports, Says Actions May Aid Probe, BALTIMORE SUN, June 26, 1997, at A1; John Head, Slobodan Starr: Ruthless Whitewater Cleanser Must Be Stopped, ATLANTA CONST., May 7, 1999, at A22; Nick Littlefield, Starr not Merely a Loose Cannon but an Errant Prosecutor, BOSTON GLOBE, Nov. 20, 1998, at C3; Starr Must Go, NATION, May 17, 1999, available at 1999 WL 9307066.
10. See, e.g., John Anderson, Our Prosecutors Tell Lies?, NAT'L L.J., May 10, 1999, at A25; Carl Cannon, Starr's Methods Provoke Outrage: Whitewater Counsel Rebuts Reports, Says Actions May Aid Probe, BALTIMORE SUN, June 26, 1997, at A1; John Head, Slobodan Starr: Ruthless Whitewater Cleanser Must Be Stopped, ATLANTA CONST., May 7, 1999, at A22; Nick Littlefield, Starr not Merely a Loose Cannon but an Errant Prosecutor, BOSTON GLOBE, Nov. 20, 1998, at C3; Starr Must Go, NATION, May 17, 1999, available at 1999 WL 9307066.
11. See, e.g., Press Release, Patrick Kennedy, Kennedy Calls for Immediate Investigation into Prosecutorial Misconduct of Independent Counsel Ken Starr (Oct. 8, 1998) (on file with author); Cynthia McKinney, Stop the Independent Counsel Madness, WASH. TIMES, Mar. 5, 1999, at A19; cf. Dan Morgan, Counsel Law Exhumed for Now; Despite a Forecast Demise, Some Back It Before Senate Panel, WASH. POST, Mar. 4, 1999, at A4; Walter Shapiro, As Law Dies of Abuse, One Hopes 'Rule of Law' Will Survive, USA TODAY, June 30, 1999, at A4.
12. See, e.g., Press Release, Patrick Kennedy, Kennedy Calls for Immediate Investigation into Prosecutorial Misconduct of Independent Counsel Ken Starr (Oct. 8, 1998) (on file with author); Cynthia McKinney, Stop the Independent Counsel Madness, WASH. TIMES, Mar. 5, 1999, at A19; cf. Dan Morgan, Counsel Law Exhumed for Now; Despite a Forecast Demise, Some Back It Before Senate Panel, WASH. POST, Mar. 4, 1999, at A4; Walter Shapiro, As Law Dies of Abuse, One Hopes 'Rule of Law' Will Survive, USA TODAY, June 30, 1999, at A4.
13. See, e.g., Press Release, Patrick Kennedy, Kennedy Calls for Immediate Investigation into Prosecutorial Misconduct of Independent Counsel Ken Starr (Oct. 8, 1998) (on file with author); Cynthia McKinney, Stop the Independent Counsel Madness, WASH. TIMES, Mar. 5, 1999, at A19; cf. Dan Morgan, Counsel Law Exhumed for Now; Despite a Forecast Demise, Some Back It Before Senate Panel, WASH. POST, Mar. 4, 1999, at A4; Walter Shapiro, As Law Dies of Abuse, One Hopes 'Rule of Law' Will Survive, USA TODAY, June 30, 1999, at A4.
14. See, e.g., Press Release, Patrick Kennedy, Kennedy Calls for Immediate Investigation into Prosecutorial Misconduct of Independent Counsel Ken Starr (Oct. 8, 1998) (on file with author); Cynthia McKinney, Stop the Independent Counsel Madness, WASH. TIMES, Mar. 5, 1999, at A19; cf. Dan Morgan, Counsel Law Exhumed for Now; Despite a Forecast Demise, Some Back It Before Senate Panel, WASH. POST, Mar. 4, 1999, at A4; Walter Shapiro, As Law Dies of Abuse, One Hopes 'Rule of Law' Will Survive, USA TODAY, June 30, 1999, at A4.
15. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
16. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
17. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
18. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
19. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
20. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
21. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
22. Kenneth Starr was not the first Independent Counsel to be criticized. Since the Ethics in Government Act was enacted in 1978, twenty independent counsels have been appointed to investigate allegations ranging from drug use to financial improprieties and abuse of power. Many of the investigations have been criticized for their cost, length, and scope. These investigations by independent counsels include: (1) David Barrett's investigation of former Housing and Urban Development (HUD) Secretary Henry Cisneros, (2) Donald Smaltz's investigation of former Secretary of Agriculture Mike Espy, (3) Daniel Pearson's investigation of the late Secretary of Commerce Ron Brown, (4) Ralph Lancaster's investigation of Labor Secretary Alexis Herman, and (5) Lawrence Walsh's investigation of the Iran-Contra Affair. See Jack Maskell, The Independent Counsel Law, 45-July FED. LAW. 28, 31 (1998) (providing a list of "Independent Counsel Investigations since 'Iran-Contra'"); see also Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 827 (1999) ("Many of the investigations have been criticized for their cost, length, scope, and for the zeal with which independent counsels pursued their target."); Joshua M. Perrtula, Essay, The Political Price of the Independent Counsel Law, 25 HASTINGS CONST. L.Q. 257, 268 (1998) ("Most of [the Independent Counsel] investigations have been expensive, time consuming and have resulted in no charges being filed."). See The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Judge Kenneth W. Starr, Independent Counsel); Robert L. Jackson & Eric Lichtblau, Starr Urges Scrapping of Independent Counsel Act, L.A. TIMES, Apr. 15, 1999, at A16 (quoting Starr as stating that "[n]o matter what the Congress decides . . . these problems will endure"); Donald Kaul, Starr Is a Little Tardy in Voicing His Reservations for a Guy Who Never Liked Independent Counsel Law, PORTLAND-OREGONIAN, Apr. 16, 1999, at B9 (providing a critical view of Starr and his attitude toward the Independent Counsel law); Walter Mears, Independent Counsel Law's Quiet Death Politics: Across-the-Board Consensus Is to Let the Measure Lapse June 30, L.A. TIMES, June 20, 1999, at A11 (noting Starr's support for expiration of Independent Counsel law); Pete Yost, Starr Denounces Counsel Law, ASSOCIATED PRESS ONLINE, Apr. 15, 1999, available at 1999 WL 16003284 (same).
23. See 28 U.S.C. § 599 (Supp. V 1999) (providing for expiration of the Independent Counsel Reauthorization Act of 1994 five years after its enactment); 145 CONG. REC. H5163-02 (daily ed. June 30, 1999) (statement of Rep. Burton).
24. See generally Benjamin J. Priester et al., The Independent Counsel Statute: A Legal History, 62 LAW & CONTEMP. PROBS. 5, 8-11 (1999) (discussing the history and purpose of the statute);
25. Thomas O. Sargentich, Debating the Future of the Independent Counsel Statute, 51 ADMIN. L. REV. 657, 658-59 (1999) (discussing the statute's underlying principles).
26. See Joseph S. Hall, Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 813 (1999) (describing the Iran-Contra investigation as "increasingly controversial"); Charles Tiefer, The Specially Investigated President, 5 U. CHI. L. REV. 143, 153 (1998) (noting the criticisms that Walsh faced for the amount of money and time he spent on the investigation).
27. See Joseph S. Hall, Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 813 (1999) (describing the Iran-Contra investigation as "increasingly controversial"); Charles Tiefer, The Specially Investigated President, 5 U. CHI. L. REV. 143, 153 (1998) (noting the criticisms that Walsh faced for the amount of money and time he spent on the investigation).
28. See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 20-25 (1998) (discussing prosecutors' vast discretion and power);
29. Robert Heller, Comment, Selective Prosecution and the Federalization of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion, 145 U. PA. L. REV. 1309, 1325-26 (1997) (arguing for more judicial review, despite typical rationales for prosecutorial discretion, including preventing delayed criminal proceedings, promoting maximum law enforcement and prosecutorial effectiveness, and avoiding judicial encroachment on law enforcement by the executive branch);
30. James Vorenberg, Comment, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1524-37 (1981) (discussing the breadth of prosecutorial discretion, especially in the charging decision).
31. See infra notes 65-68 and accompanying text (citing cases where prosecutors used questionable techniques).
32. See infra note 258 (discussing the lack of accountability of elected prosecutors).
33. See infra note 252 and accompanying text (discussing the selection process for federal prosecutors).
34. See generally Paul Butler, Starr Is to Clinton as Regular Prosecutors Are to Blacks, 40 B.C. L. REV. 705 (1999) (arguing that Kenneth Starr's investigation of President Clinton is analogous to federal and state prosecutors' treatment of African-American citizens with regard to three issues: selective prosecution, abuse of discretion, and zeal for punishment).
35. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
36. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
37. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
38. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
39. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
40. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
41. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
42. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 899-904 (1999) (arguing that in balancing the inherent budgetary, staffing, and time constraints, and in response to political oversight, public prosecutors necessarily develop discretion and judgment, while the nature of the Independent Counsel's office actually serves to dull an attorney's judgment and discretion). But see Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642-43 (1999) (discussing parallels between the power of the Independent Counsel and regular prosecutors). 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, 436 (1998) (noting that critics claim the Independent Counsel is more prone to the temptation to take steps that regular prosecutors would not take because of time, resource, and workload constraints); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 829-33 (1999) (providing proposals to cure several criticisms of Independent Counsel investigations, including one proposal that would make the Office of Independent Counsel permanent, in order to make it function more like a regular prosecutor's office, giving the investigations more perspective, increased accountability, and lower costs); Phillip B. Heymann, Four Unresolved Questions About the Responsibilities of an Independent Counsel, 86 GEO. L.J. 2119, 2120-21 (1998) (comparing the issues and constraints applied to typical prosecutors with the heightened discretion and autonomy enjoyed by the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 475 (1996) ("In most cases, DOJ prosecutors, who have a necessarily broader focus and are privy to a store of institutional knowledge and experience, are better positioned to exercise their discretion in a professional and equitable manner, and are accountable if they do not."); Sargentich, supra note 10, at 658-60 (discussing two possibilities for the Independent Counsel statute, including one that would let the statute lapse and return the responsibilities to the Justice Department, where professionalism, the rule of law, and political oversight would provide checks and balances that are lacking under the current statute); cf. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER UP 526 (1997) (arguing that there are a number of restraints against abuses of discretion by independent counsels); Samuel Dash, Independent Counsel: No More, No Less a Federal Prosecutor, 86 GEO. L.J. 2077, 2082 (1998) (criticizing the belief that the independent counsels are not accountable and noting that the statute places a heavy scheme of accountability on the Independent Counsel).
43. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (describing differences between independent counsels and regular prosecutors, but recognizing that existing controls do not always assure fairness); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the
44. See infra text accompanying notes 65-132 (suggesting that the conduct of prosecutors is similar to Starr's conduct during the investigation of President Clinton).
45. See Morrison v. Olsen, 487 U.S. 654, 697-734 (1988) (Scalia, J., dissenting) (discussing the Independent Counsel's discretion and separation of powers principles).
46. See generally THE FEDERALIST No. 51 (James Madison) (explaining separation of powers principles).
47. 28 U.S.C. § 530B (Supp. IV 1998); see also infra notes 354-73 and accompanying text (discussing the Citizens Protection Act of 1998).
48. See Dash, supra note 1; Ken Gormley, An Original Model of the Independent Counsel Statute, 97 MICH. L. REV. 601, 602-05 (1998) (discussing the historical events leading to the creation of the modern day Independent Counsel).
49. 5 U.S.C. App. 4 § 110 (1994).
50. 28 U.S.C. § 591(a) (1994).
51. Id. § 592(c)(1)(A). Persons covered by the statute include the President and Vice President, any individual working in the Executive Office of the President who is above a certain level of pay, any Assistant Attorney General and any individual working in the Justice Department over a certain level of pay, the Director and Deputy Director of the Central Intelligence Agency, the Commissioner of the Internal Revenue Service, and various other federal employees. Id. § 591(b).
52. Id. § 594(a). The Independent Counsel's authority included: (1) conducting proceedings before grand juries and other investigations; (2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that [the] Independent Counsel considers necessary; (3) appealing any decision of a court in any case or proceeding in which [the] independent counsel participates in an official capacity; (4) reviewing all documentary evidence available from any source; (5) determining whether to contest the assertion of any testimonial privilege; (6) receiving appropriate national security clearances and, if necessary, contesting in court . . . any claim of privilege or attempt to withhold evidence on grounds of national security; (7) making applications to any Federal court for a grant of immunity to any witness . . . or for warrants, subpoenas, or other court orders, and, for purposes of sections 6003, 6004, and 6005 of title 18, exercising the authority vested in a United States attorney or the Attorney General; (8) inspecting, obtaining, or using the original or a copy of any tax return . . . ; (9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States; and (10) consulting with the United States attorney for the district in which the violation . . . was alleged to have occurred. Id.
53. Id. § 594(c).
54. Id. § 594(i); see also 18 U.S.C. §§ 202-209 (1994) (defining Independent Counsel as a "special Government employee" and discussing various procedures affecting such employees). Sections 202-209 include definitions; compensation to members of Congress, officers, and others in matters affecting the government; practices in the U.S. Claims Court or the U.S. Court of Appeals for the Federal Circuit by members of Congress; activities of officers and employees in claims against and other matters affecting the government; the exemption of retired officers of the civil armed services; restrictions on former officers, employees, and elected officials of the executive and legislative branches; acts affecting personal financial interests; and the salary of government officials that are payable by the United States only. Id. 30. 28 U.S.C. § 594(f) (1994).
55. See United States v. Poindexter, 725 F. Supp. 13, 38 (D.D.C. 1989) (stating that dismissal for failure to follow policies of Department of Justice was not warranted as "[t]he very nature of independent counsel's responsibilities suggest that it may not always be possible for [the Independent Counsel] to follow those policies . . . . Moreover, much of defendant's argument rests on alleged departures from guidelines set forth in the U.S. Attorney's Manual -a document that, by its own language, creates no rights in any party." U.S. ATTORNEY'S MANUAL § 1-1.00 (1984)); see also United States v. Blackley, 986 F. Supp. 607, 614 (D.D.C. 1997) (upholding Independent Counsel prosecution even if it might be contrary to the general prosecution policies of the Department of Justice); In re Grand Jury Subpoena Am. Broad. Co., 947 F. Supp. 1314, 1322 n.9 (E.D. Ark. 1996) (citing S. REP. No. 101-103, at 32 (1993), and explaining that the legislative history supports the contention that "the Committee does not intend that independent counsels comply with Department policies which would undermine their independence or hinder their mission").
56. See Morrison v. Olsen, 487 U.S. 654, 707-08 (1988) (Scalia, J., dissenting): The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted - involve the balancing of innumerable legal and practical considerations . . . . In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. Id.; see also United States v. Busher, 817 F.2d 1409, 1411-12 (9th Cir. 1987) (holding that dismissal of indictment was not warranted where federal prosecutor disregarded Justice Department guidelines for bringing RICO prosecutions).
57. 28 U.S.C. § 596(a)(1) (1994).
58. Id. § 596(a)(2).
59. See supra notes 17-18 and accompanying text (citing scholarship arguing that the Independent Counsel functions very differently than an ordinary prosecutor).
60. Olsen, 487 U.S. at 654, rev'g838 F.2d 476 (D.C. Cir. 1988), rey'g665 F. Supp. 56 (D.D.C. 1987).
61. U.S. CONST, art. II, § 2, cl. 2.
62. Olsen, 487 U.S. at 671-72. The Court concluded that Morrison was an "inferior officer" because (1) she was subject to removal by a higher executive branch, (2) she was empowered by the Act to perform only certain limited duties, (3) her office was limited in jurisdiction, and (4) her office was limited in tenure. Id.
63. Id. at 673.
64. Id. at 675-76.
65. See generally Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison, Revisited, 38 WM. & MARY L. REV. 417 (1997) (suggesting that federal judges' appointment of independent counsels may compromise their independence).
66. Olsen, 487 U.S. at 681. "The Court can exercise no or at least virtually no oversight over the [Independent Counsel]." The Future of the Independent Counsel Act: Hearings Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (testimony of Judge Kenneth W. Starr, Independent Counsel).
67. Olsen, 487 U.S. at 692-93.
68. In addition to the Whitewater matter, Starr eventually investigated allegations of wrongdoing during the Clinton presidency. One matter, called "Travelgate," involved allegations that seven members of the White House Travel Office had been illegally fired. Another expansion of Starr's jurisdiction involved the investigation of the so-called "Filegate" matter, involving allegations that Clinton had illegally collected hundreds of confidential FBI files on prominent Republicans. See generally David J. Gottlieb, A Brief History of the Independent Counsel Law, 47 U. KAN. L. REV. 572 (1999) (explaining Starr's various investigations). However, Starr's predecessor, Robert Ray, closed both investigations for lack of direct evidence of criminal behavior. See Susan Milligan, No Charges Sought Against Mrs. Clinton in Travelgate Case, BOSTON GLOBE, June 23, 2000, at A3 (stating that while Independent Counsel Robert Ray asserted that he had collected substantial evidence that Mrs. Clinton played a role in the 1993 firing of White House travel employees, he chose not to bring criminal charges); Richard Cohen, So Much for Filegate, WASH. POST, Mar. 28, 2000, at A23 (discussing Independent Counsel Robert Ray's exoneration of Mrs. Clinton from Filegate charges despite earlier predictions of vast improprieties).
69. In addition to the Whitewater matter, Starr eventually investigated allegations of wrongdoing during the Clinton presidency. One matter, called "Travelgate," involved allegations that seven members of the White House Travel Office had been illegally fired. Another expansion of Starr's jurisdiction involved the investigation of the so-called "Filegate" matter, involving allegations that Clinton had illegally collected hundreds of confidential FBI files on prominent Republicans. See generally David J. Gottlieb, A Brief History of the Independent Counsel Law, 47 U. KAN. L. REV. 572 (1999) (explaining Starr's various investigations). However, Starr's predecessor, Robert Ray, closed both investigations for lack of direct evidence of criminal behavior. See Susan Milligan, No Charges Sought Against Mrs. Clinton in Travelgate Case, BOSTON GLOBE, June 23, 2000, at A3 (stating that while Independent Counsel Robert Ray asserted that he had collected substantial evidence that Mrs. Clinton played a role in the 1993 firing of White House travel employees, he chose not to bring criminal charges); Richard Cohen, So Much for Filegate, WASH. POST, Mar. 28, 2000, at A23 (discussing Independent Counsel Robert Ray's exoneration of Mrs. Clinton from Filegate charges despite earlier predictions of vast improprieties).
70. In addition to the Whitewater matter, Starr eventually investigated allegations of wrongdoing during the Clinton presidency. One matter, called "Travelgate," involved allegations that seven members of the White House Travel Office had been illegally fired. Another expansion of Starr's jurisdiction involved the investigation of the so-called "Filegate" matter, involving allegations that Clinton had illegally collected hundreds of confidential FBI files on prominent Republicans. See generally David J. Gottlieb, A Brief History of the Independent Counsel Law, 47 U. KAN. L. REV. 572 (1999) (explaining Starr's various investigations). However, Starr's predecessor, Robert Ray, closed both investigations for lack of direct evidence of criminal behavior. See Susan Milligan, No Charges Sought Against Mrs. Clinton in Travelgate Case, BOSTON GLOBE, June 23, 2000, at A3 (stating that while Independent Counsel Robert Ray asserted that he had collected substantial evidence that Mrs. Clinton played a role in the 1993 firing of White House travel employees, he chose not to bring criminal charges); Richard Cohen, So Much for Filegate, WASH. POST, Mar. 28, 2000, at A23 (discussing Independent Counsel Robert Ray's exoneration of Mrs. Clinton from Filegate charges despite earlier predictions of vast improprieties).
71. The House of Representatives approved two of the four articles of impeachment presented against President Clinton. Article one alleged that President Clinton "willfully provided perjurious, false, and misleading testimony to the grand jury" in Jones v. Clinton. The second article claimed that President Clinton: prevented, obstructed, and impeded the administration of justice, and . . . engaged personally and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover-up, and conceal the existence of evidence and testimony related to a federal civil rights action brought against him in a duly instituted judicial procedure. H.R. Res. 611, 106th Cong. (1999). See Randall K. Miller, Presidential Sanctuaries after the Clinton Sex Scandals, 22 HARV. J.L. & PUB. POL'Y 647, 731-34 (1999) (outlining the two articles of impeachment against President Clinton as provided by House Judiciary Committee Chairman Henry Hyde); infra text accompanying notes 181-83 (discussing Starr's role in the impeachment process).
72. The House of Representatives approved two of the four articles of impeachment presented against President Clinton. Article one alleged that President Clinton "willfully provided perjurious, false, and misleading testimony to the grand jury" in Jones v. Clinton. The second article claimed that President Clinton: prevented, obstructed, and impeded the administration of justice, and . . . engaged personally and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover-up, and conceal the existence of evidence and testimony related to a federal civil rights action brought against him in a duly instituted judicial procedure. H.R. Res. 611, 106th Cong. (1999). See Randall K. Miller, Presidential Sanctuaries after the Clinton Sex Scandals, 22 HARV. J.L. & PUB. POL'Y 647, 731-34 (1999) (outlining the two articles of impeachment against President Clinton as provided by House Judiciary Committee Chairman Henry Hyde); infra text accompanying notes 181-83 (discussing Starr's role in the impeachment process).
73. 990 F. Supp. 657 (E.D. Ark. 1998). In 1994, Paula Jones, a former Arkansas state employee, filed suit against President Clinton. The lawsuit alleged sexual harassment, denial of equal protection, intentional infliction of emotional distress, and defamation based on a 1991 incident in which Jones accused then Arkansas Governor Clinton of making an unwanted and crude sexual advance toward her in a Little Rock hotel suite. Id.; Miller, supra note 45, at 651-52. In January 1998, a special three-judge panel granted Attorney General Reno's request to expand Starr's investigation into "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law other than a Class B or C misdemeanor or infraction in dealing with witnesses, potential witnesses, attorneys or others concerning the civil case Jones v. Clinton." Id. at 685-86.
74. Miller, supra note 45, at 734 n.5. On February 12, 1999, the Senate rejected both articles of impeachment and acquitted President Clinton. The perjury article was defeated by a 55-45 vote, and the obstruction article was defeated by a 50-50 vote. Id.
75. Id. at 683-84. The OIC's investigation, triggered by privacy-invading surreptitious tape recordings, and including subpoenas for a list of the books Ms. Lewinsky might have been reading, reinforced the perception that the OIC was on a partisan mission to injure President Clinton politically rather than to rid the government of high-level public corruption. Id.
76. During the investigation of the Clintons, Starr was able to secure several major convictions, including that of former Arkansas governor Jim Guy Tucker, the Clintons' former Whitewater business partners, James and Susan McDougal, and former Associate Attorney General Webster L. Hubbell. The Independent Counsel also secured ten guilty pleas from lesser banking figures in Arkansas. Ruth Marcus, The Prosecutor: Following Leads or Digging Dirt?, WASH. POST, Jan. 30, 1998, at A1.
77. Morrison v. Olsen, 487 U.S. 654, 728 (1988) (Scalia, J., dissenting) (citing Robert Jackson, Address Delivered at the Second Annual Conference of U.S. Attorneys (Apr. 1, 1940)).
78. See infra text accompanying notes 231-58 (discussing the dissent in Morrison).
79. See infra text accompanying notes 65-95 (discussing prosecutorial misconduct).
80. See infra notes 319-28 and accompanying text (discussing early criticisms of prosecutorial discretion and power).
81. See Davis, supra note 12, at 23 (describing the effect of the charging decision on the outcome of a criminal case).
82. See id. at 21-22 (describing the prosecutor's discretion in making the charging decision); Charles P. Bubany & Frank F. Skillern, Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13 AM. CRIM. L. REV. 473, 476-77 (1976) (noting the lack of controls for prosecutorial decision-making); James Vorenberg, Narrowing the Discretion of Criminal Justice Officials, 1976 DUKE L.J. 651, 678 (describing the prosecutor's charging decision as the "broadest discretionary power in criminal administration").
83. See id. at 21-22 (describing the prosecutor's discretion in making the charging decision); Charles P. Bubany & Frank F. Skillern, Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13 AM. CRIM. L. REV. 473, 476-77 (1976) (noting the lack of controls for prosecutorial decision-making); James Vorenberg, Narrowing the Discretion of Criminal Justice Officials, 1976 DUKE L.J. 651, 678 (describing the prosecutor's charging decision as the "broadest discretionary power in criminal administration").
84. See Davis, supra note 12, at 25 ("[T]he plea bargaining process is controlled entirely by the prosecutor and decisions are entirely within her discretion."); see also 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE § 20.3(c) (1984) (describing the prosecutor's discretion to refuse plea bargains).
85. See Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentences, 101 YALE L.J. 1681, 1696-98 (1992) (describing how prosecutors' charging and plea bargaining powers determine the defendant's sentence); Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 CAL. L. REV. 61, 72-73 (1993) (describing how mandatory sentencing provisions give prosecutors more leverage in plea bargaining).
86. See Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentences, 101 YALE L.J. 1681, 1696-98 (1992) (describing how prosecutors' charging and plea bargaining powers determine the defendant's sentence); Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 CAL. L. REV. 61, 72-73 (1993) (describing how mandatory sentencing provisions give prosecutors more leverage in plea bargaining).
87. See Douglas D. Guidorizzi, Should We Really "Ban" Plea Bargaining?: The Core Concerns of Plea Bargaining Critics, 47 EMORY L.J. 753, 753 (1998) (citing BUREAU OF STATISTICS, DEP'T OF JUSTICE, FELONY DEFENDANTS IN LARGE URBAN COUNTIES 29 (1992)) (monitoring felony defendants over a one-year period and finding that ninety-two percent of cases ended with a plea bargain).
88. 4 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 15.1(g) (2d ed. 1999).
89. See Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 FORDHAM L. REV. 851, 861-72 (1995) (discussing the discretionary power of prosecutors and their ability to manipulate the plea bargaining process by "overcharging").
90. STANDARDS FOR CRIMINAL JUSTICE § 3-3.9(b)(ii), (v) (3d ed. 1993). (b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are: . . . (ii) the extent of the harm caused by the offense; . . . (v) reluctance of the victim to testify. Id.
91. These programs typically involve dismissal of the case after a period of time during which the defendant performs community service or pays restitution to the victim. For example, see Judge Gregory M. Bartlett, Alternative Sanctions and the Governor's Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. KY. L. REV. 283, 314-15 (2000) (describing amendments to Kentucky's criminal statutes that include diversion programs for certain criminal defendants).
92. See Davis, supra note 12, at 34-38 (describing how unconscious racism may permeate race-neutral prosecutorial decisions).
93. See Interstate Commerce Comm'n v. Bhd. of Locomotive Eng'rs, 482 U.S. 270, 283 (1987) (stating that the prosecutor's refusal to prosecute cannot be subjected to judicial review despite the court's qualification to review the decision).
94. See, e.g., United States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997) (threatening witness with loss of immunity from prosecution if he testified for defense at trial); United States v. LaFunente, 54 F.3d 457, 459, 461 (8th Cir. 1995) (threatening one witness with jail time if she spoke to defense counsel or press and promised to dismiss perjury and other felony charges against other key witnesses if their trial testimony helped the government in murder prosecution); United States v. MacCloskey, 682 F.2d 468, 475 (4th Cir. 1982) (warning witness's attorney that if the witness testified at defendant's murder trial, she could be reindicted if she incriminated herself during that testimony); United States v. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977) (requiring defendant to refrain from testifying on behalf of codefendant as part of plea bargain); United States v. Morrison, 535 F.2d 223, 226 (3d Cir. 1976) (intimidating defense witness during interview); United States v. Smith, 478 F.2d 976, 979 (D.C. Cir. 1973) (threatening to prosecute defense witness if his testimony contradicted the government's theory).
95. See, e.g., United States v. Armstrong, 517 U.S. 456, 470 (1996) (basing selective prosecution claim on study that showed the government failed to prosecute nonblack defendants for cocaine and crack-related offenses); United States v. Al Jibori, 90 F.3d 22, 23-24 (2d Cir. 1996) (bringing selective prosecution claim to determine whether the only established connection between defendant and known terrorist was the defendant's regional origin and whether this fact led the government to charge defendant under infrequently used statute for presenting false passport); United States v. Cyprian, 23 F.3d 1189, 1195 (7th Cir. 1994) (alleging that the government singled out defendants because of their Catholic faith); United States v. Redondo-Lemos, 955 F.2d 1296, 1300 (9th Cir. 1992) (alleging that the government offered plea bargains based on gender); United States v. Bayles, 923 F.2d 70, 71 (7th Cir. 1991) (stating that the prosecutor in the district court failed to move for sentence reduction despite defendant's assistance in another case); United States v. Steele, 461 F.2d 1148, 1150-51 (9th Cir. 1972) (alleging that the government exercised selective prosecution in a case involving defendants' alleged failure to answer census questions).
96. See, e.g., United States v. Holloway, 74 F.3d 249, 251 (11th Cir. 1996) (using defendant's deposition testimony as basis for criminal charges despite immunity agreement); United States v. Dudden, 65 F.3d 1461, 1466, 1472 (9th Cir. 1995) (indicting defendant in part to encourage her cooperation in another investigation, and breaching informal immunity agreement by using defendant's immunized statements against her); United States v. Digregorio, 795 F. Supp. 630, 635 (S.D.N.Y. 1992) (coercing defendants into signing statements and cooperating in ongoing investigation by failing to arraign defendants for five months, denying their requests to obtain counsel, and forbidding them from securing counsel after their release by threatening to withdraw immunity).
97. See, e.g., United States v. Chen, 933 F.2d 793, 796-97 (9th Cir. 1991) (using "perjury trap" whereby the government calls a witness before the grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury); Barry v. United States, 865 F.2d 1317, 1318-20 (D.C. Cir. 1989) (alleging violations of the grand jury secrecy rule where the U.S. Attorney issued a press release that unlawfully disclosed matters occurring before the federal grand jury that was investigating allegations of corruption in the District of Columbia Government); In re Grand Jury Investigation (Lance), 610 F.2d 202, 216 (5th Cir. 1980) (identifying government attorneys as source of leaks from grand jury proceedings); United States v. Samango, 607 F.2d 877, 884-85 (9th Cir. 1979) (dismissing indictment returned by the federal grand jury because prosecutors deliberately introduced perjured testimony); In re Grand Jury Matters, 593 F. Supp. 103, 107 (D.N.H.) (finding subpoenas invalid when they were used to uncover fee arrangements between attorneys and their clients while clients had cases pending for trial in state court and were under investigation by district court), aff'd, 751 F.2d 13 (1st Cir. 1984).
98. See, e.g., United States v. Benitez-Muaz, 161 F.3d 1163, 1166 (8th Cir. 1998) (holding that the prosecutor's comment in her opening statement that she believed the gun found during defendant's arrest was stolen was improper, although it did not rise to the level of prosecutorial misconduct); United States v. Chirinos, 112 F.3d 1089, 1098-99 (11th Cir. 1997) (concluding that prosecutor's opening remarks concerning evidence were not improper because prosecutor had a reasonable belief that the district court would admit evidence at the time he made such statement); United States v. Gabaldon, 91 F.3d 91, 94-95 (10th Cir. 1996) (holding that the opening statement in burglary and larceny case stating that the government believed witness would testify that he had no doubt in his mind who broke into the home did not create an unfair trial); United States v. Hernandez, 779 F.2d 456, 460 (8th Cir. 1985) (finding that improper remarks by prosecutor about coconspirator's inculpatory prior statements where trial court had not ruled on admissibility of those statements were not sufficiently prejudicial for reversal).
99. See, e.g., United States v. Cabrera, 201 F.3d 1243, 1247-48 (9th Cir. 2000) (cross-examining the defendant and asking whether he had any prior convictions after district court had previously ruled that such questions could not be asked); United States v. Sanchez, 176 F.3d 1214, 1219 (9th Cir. 1999) (forcing defendant to call the U.S. Marshal a liar and impeaching defendant with inadmissible hearsay testimony); United States v. Wilson, 149 F.3d 1298, 1300-01 (11th Cir. 1998) (characterizing defendant as a "major" drug dealer, notwithstanding single count charge, and making improper inquiries about defendant's prior convictions); United States v. Phillips, 914 F.2d 835, 841 (7th Cir. 1990) (switching exhibits to confuse defense witness into impeaching himself); United States v. Schwab, 886 F.2d 509, 513 (2d Cir. 1989) (cross-examining defendant about prior misconduct that resulted in acquittal).
100. See Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) (finding that prosecutor's attempt to suggest to the jury that defendant had unsuccessfully sought to plead guilty to lesser charge was not prejudicial); United States v. Francis, 170 F.3d 546, 552 (6th Cir. 1999) (finding that prosecutor's improper argument, together with improper bolstering of witnesses, collectively violated due process); United States v. Smith, 982 F.2d 681, 682-83 (1st Cir. 1993) (holding that closing argument in which prosecutor suggested that it was his personal opinion that justification evidence had been concocted and that defendant was guilty did not warrant new trial). But see United States v. Johnson, 968 F.2d 768, 770 (8th Cir. 1992) (holding that prosecutor's comments in closing argument urging jury to act as "bulwark" against continuation of drug dealing was improper and inflammatory).
101. See Brady v. Maryland, 373 U.S. 83, 87-88 (1963), in which the Court stated: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution . . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . . . Id. See generally EDWARD HUMES, MEAN JUSTICE AND A TOWN'S TERROR, A PROSECUTOR'S POWER, A BETRAYAL OF INNOCENCE (1999) (discussing prosecutorial misconduct in Kern County, California); Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987) (discussing innocent people convicted of capital murders, many of which involved prosecutors suppressing exculpatory evidence); see also Edward McGlynn Gaffney, Jr., Who Suffers When Prosecutors Blind Justice? A Case Study of a Convicted Murderer Raises Alarm About Aggressive Prosecutions, CHRISTIAN SCI. MONITOR, Mar. 4, 1999, at 20 (decrying the trend toward denying prisoners meaningful post-conviction appellate relief); Bill Moushey, Hiding the Facts, PITT. POST-GAZETTE, Nov. 24, 1998, at A1 (reviewing 1500 allegations and finding hundreds of cases in which prosecutors intentionally concealed exculpatory evidence); Maurice Possley & Ken Armstrong, Prosecution on Trial in Dupage, CHI. TRIB., Jan. 12, 1999, at 1 (covering the first case in American legal history in which prosecutors and police were indicted for concealing evidence and knowingly using false evidence).
102. See Brady v. Maryland, 373 U.S. 83, 87-88 (1963), in which the Court stated: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution . . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . . . Id. See generally EDWARD HUMES, MEAN JUSTICE AND A TOWN'S TERROR, A PROSECUTOR'S POWER, A BETRAYAL OF INNOCENCE (1999) (discussing prosecutorial misconduct in Kern County, California); Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987) (discussing innocent people convicted of capital murders, many of which involved prosecutors suppressing exculpatory evidence); see also Edward McGlynn Gaffney, Jr., Who Suffers When Prosecutors Blind Justice? A Case Study of a Convicted Murderer Raises Alarm About Aggressive Prosecutions, CHRISTIAN SCI. MONITOR, Mar. 4, 1999, at 20 (decrying the trend toward denying prisoners meaningful post-conviction appellate relief); Bill Moushey, Hiding the Facts, PITT. POST-GAZETTE, Nov. 24, 1998, at A1 (reviewing 1500 allegations and finding hundreds of cases in which prosecutors intentionally concealed exculpatory evidence); Maurice Possley & Ken Armstrong, Prosecution on Trial in Dupage, CHI. TRIB., Jan. 12, 1999, at 1 (covering the first case in American legal history in which prosecutors and police were indicted for concealing evidence and knowingly using false evidence).
103. See Brady v. Maryland, 373 U.S. 83, 87-88 (1963), in which the Court stated: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution . . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . . . Id. See generally EDWARD HUMES, MEAN JUSTICE AND A TOWN'S TERROR, A PROSECUTOR'S POWER, A BETRAYAL OF INNOCENCE (1999) (discussing prosecutorial misconduct in Kern County, California); Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987) (discussing innocent people convicted of capital murders, many of which involved prosecutors suppressing exculpatory evidence); see also Edward McGlynn Gaffney, Jr., Who Suffers When Prosecutors Blind Justice? A Case Study of a Convicted Murderer Raises Alarm About Aggressive Prosecutions, CHRISTIAN SCI. MONITOR, Mar. 4, 1999, at 20 (decrying the trend toward denying prisoners meaningful post-conviction appellate relief); Bill Moushey, Hiding the Facts, PITT. POST-GAZETTE, Nov. 24, 1998, at A1 (reviewing 1500 allegations and finding hundreds of cases in which prosecutors intentionally concealed exculpatory evidence); Maurice Possley & Ken Armstrong, Prosecution on Trial in Dupage, CHI. TRIB., Jan. 12, 1999, at 1 (covering the first case in American legal history in which prosecutors and police were indicted for concealing evidence and knowingly using false evidence).
104. See Brady v. Maryland, 373 U.S. 83, 87-88 (1963), in which the Court stated: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution . . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . . . Id. See generally EDWARD HUMES, MEAN JUSTICE AND A TOWN'S TERROR, A PROSECUTOR'S POWER, A BETRAYAL OF INNOCENCE (1999) (discussing prosecutorial misconduct in Kern County, California); Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987) (discussing innocent people convicted of capital murders, many of which involved prosecutors suppressing exculpatory evidence); see also Edward McGlynn Gaffney, Jr., Who Suffers When Prosecutors Blind Justice? A Case Study of a Convicted Murderer Raises Alarm About Aggressive Prosecutions, CHRISTIAN SCI. MONITOR, Mar. 4, 1999, at 20 (decrying the trend toward denying prisoners meaningful post-conviction appellate relief); Bill Moushey, Hiding the Facts, PITT. POST-GAZETTE, Nov. 24, 1998, at A1 (reviewing 1500 allegations and finding hundreds of cases in which prosecutors intentionally concealed exculpatory evidence); Maurice Possley & Ken Armstrong, Prosecution on Trial in Dupage, CHI. TRIB., Jan. 12, 1999, at 1 (covering the first case in American legal history in which prosecutors and police were indicted for concealing evidence and knowingly using false evidence).
105. See Brady v. Maryland, 373 U.S. 83, 87-88 (1963), in which the Court stated: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution . . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . . . Id. See generally EDWARD HUMES, MEAN JUSTICE AND A TOWN'S TERROR, A PROSECUTOR'S POWER, A BETRAYAL OF INNOCENCE (1999) (discussing prosecutorial misconduct in Kern County, California); Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987) (discussing innocent people convicted of capital murders, many of which involved prosecutors suppressing exculpatory evidence); see also Edward McGlynn Gaffney, Jr., Who Suffers When Prosecutors Blind Justice? A Case Study of a Convicted Murderer Raises Alarm About Aggressive Prosecutions, CHRISTIAN SCI. MONITOR, Mar. 4, 1999, at 20 (decrying the trend toward denying prisoners meaningful post-conviction appellate relief); Bill Moushey, Hiding the Facts, PITT. POST-GAZETTE, Nov. 24, 1998, at A1 (reviewing 1500 allegations and finding hundreds of cases in which prosecutors intentionally concealed exculpatory evidence); Maurice Possley & Ken Armstrong, Prosecution on Trial in Dupage, CHI. TRIB., Jan. 12, 1999, at 1 (covering the first case in American legal history in which prosecutors and police were indicted for concealing evidence and knowingly using false evidence).
106. See Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 ST. THOMAS L. REV. 69, 70 (1995) (noting that "evidence of prosecutorial misconduct, particularly in federal cases, may be difficult to obtain")
107. (citing Joseph F. Lawless & Kenneth E. North, Prosecutorial Misconduct, TRIAL, Oct. 1984, at 28).
108. But see generally Kenneth Armstrong & Maurice Possley, Trial and Error: How Prosecutors Sacrifice Justice to Win (pts. 1-5), CHI. TRIB., Jan. 10-14, 1999 (investigating hundreds of homicide cases where prosecutors concealed or fabricated evidence);
109. see also Bill Moushey, Out of Control Legal Rules Have Changed Allowing Federal Agents, Prosecutors to Bypass Basic Rights, PITT. POST-GAZETTE, Nov. 22, 1998, at A1 (investigating federal agents and prosecutors who fabricated evidence).
110. See Rose v. Clark, 478 U.S. 570, 580 (1986) (holding that harmless error standard dictates that court should not set aside conviction if error was harmless beyond a reasonable doubt).
111. See id. at 588-89 ("An automatic application of harmless-error review in case after case, and for error after error, can only encourage prosecutors to subordinate the interest in respecting the Constitution to the ever-present and always powerful interest in obtaining a conviction in a particular case."); Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 424-32 (1992) (describing how the harmless error rule encourages prosecutorial misconduct).
112. STANDARDS FOR CRIMINAL JUSTICE § 3-3.9(a) (3d ed. 1993). A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecution knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction. Id.
113. Meares, supra note 60, at 866-70 (1995) (illustrating prosecutors' tendency to overcharge defendants).
114. The decision to charge or inflate charges may be based on racial bias. A number of statistical studies have demonstrated the practice of prosecutors bringing more serious charges in cases involving white victims than in cases involving black victims. Davis, supra note 12, at 35.
115. JAMES B. HADDAD ET AL., CRIMINAL PROCEDURE CASES AND COMMENTS 652 (5th ed. 1998).
116. Id.
117. The plea bargaining process works quite differently for the wealthy white-collar defendant represented by well-paid counsel. These defense lawyers (frequently former prosecutors themselves) often communicate with prosecutors throughout their decision-making process and have access to more information. Their relationships with prosecutors and access to information often enable them to negotiate more favorable plea arrangements for their clients. See Gerald E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2125-26 (1998) (describing the plea bargaining process for white-collar defendants and stating that this context represents an "idealized version of the plea bargaining process").
118. See infra notes 88-95, 169-80 and accompanying text (discussing standards for judicial review of prosecutorial misconduct).
119. 318 U.S. 332 (1943).
120. Id. at 340.
121. United States v. Payner, 447 U.S. 727, 735-36 n.8 (1980).
122. McNabb, 318 U.S. at 341.
123. 411 U.S. 423 (1973).
124. Id. at 435. But see David S. Rudolf & Thomas K. Maher, Prosecutorial Misconduct Still Subject to Sanctions, 22 CHAMPION 57, 58 (1998) (discussing cases from the Hawaii Supreme Court involving dismissal of indictments as a sanction for prosecutorial misconduct).
125. 461 U.S. 499 (1983).
126. Id. at 500. In applying the harmless error standard, the court must determine whether, absent the prosecutor's misconduct, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict. Id. 92. 424 U.S. 409 (1976).
127. Id. at 430. See Lesley E. Williams, The Civil Regulation of Prosecutors, 67 FORDHAM L. REV. 3441, 3442-47 (1999) (discussing how professional norms and statutory and constitutional law fail to regulate prosecutorial behavior in light of prosecutorial immunity). But see Rudolf & Maher, supra note 89, at 57-58 (discussing successful § 1983 challenges to prosecutorial misconduct in grand juries).
128. Imbler, 424 U.S. at 426.
129. Id. at 429. See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 443-48 (1992), Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693, 703-08 (1987), and Williams, supra note 93, at 3473-76, for a discussion of the lack of professional discipline of prosecutors. See infra notes 356-62 and accompanying text for discussion of the "Thornburgh memorandum" (taking the position that federal prosecutors were not subject to state ethics rules) and the Citizens Protection Act of 1998, 28 U.S.C. § 530B (Supp. V 1998) (overturning the Thornburgh memorandum).
130. Id. at 429. See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 443- 48 (1992), Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693, 703-08 (1987), and Williams, supra note 93, at 3473-76, for a discussion of the lack of professional discipline of prosecutors. See infra notes 356-62 and accompanying text for discussion of the "Thornburgh memorandum" (taking the position that federal prosecutors were not subject to state ethics rules) and the Citizens Protection Act of 1998, 28 U.S.C. § 530B (Supp. V 1998) (overturning the Thornburgh memorandum).
131. Maryland prosecutors charged Linda Tripp with illegally taping telephone conversations with Monica Lewinsky. To convict Tripp, prosecutors needed to prove she recorded the calls without Lewinsky's knowledge. The trial court's ruling that Lewinsky's testimony was inadmissible left prosecutors without sufficient evidence to prove their case. Consequently, prosecutors asked the judge to dismiss charges against Tripp. Craig Gordon, Tripp Charges Dismissed/Prosecutor: No Case Without Lewinsky's Testimony, NEWSDAY, May 25, 2000, at A4; Mary Otto, Maryland Judge Dismisses Tripp Wiretap Case, WASH. POST, June 1, 2000, at A10.
132. Maryland prosecutors charged Linda Tripp with illegally taping telephone conversations with Monica Lewinsky. To convict Tripp, prosecutors needed to prove she recorded the calls without Lewinsky's knowledge. The trial court's ruling that Lewinsky's testimony was inadmissible left prosecutors without sufficient evidence to prove their case. Consequently, prosecutors asked the judge to dismiss charges against Tripp. Craig Gordon, Tripp Charges Dismissed/Prosecutor: No Case Without Lewinsky's Testimony, NEWSDAY, May 25, 2000, at A4; Mary Otto, Maryland Judge Dismisses Tripp Wiretap Case, WASH. POST, June 1, 2000, at A10.
133. See Nick Littlefield, Starr Not Merely a Loose Cannon but an Errant Prosecutor, BOSTON GLOBE, Oct. 25, 1998, at C3.
134. Starr presumably was referring to United States v. Lopez, 373 U.S. 427 (1963) (holding that the electronic recording of a conversation between defendant and a federal agent did not violate defendant's Fourth Amendment right to privacy).
135. The Future of the Independent Counsel: Hearing Before the S. Comm. on Gov't Aff., 106th Cong. 419-73 (Apr. 14, 1999) (testimony of Judge Kenneth W. Starr) (responding to suggestions from Senator John Edwards that Starr's discussions with Ms. Lewinsky in the absence of her attorney were in violation of 28 C.F.R. § 77 and that Starr did not have the jurisdiction to wire or give immunity to Linda Tripp).
136. See infra Part I.C.2 (explaining how Starr engaged in illegal acts).
137. See infra Part I.C.2.
138. See infra notes 169-80 and accompanying text (describing judicial review of grand jury abuse); infra notes 213-30 and accompanying text (describing judicial review of the charging decision).
139. See Judy Keen & Kevin Johnson, Tripp Testifies for a 4th Day, USA TODAY, July 10, 1998, at 1IA (citing poll showing that most Americans were against making tapes); Kathleen Parker, What Are Friends For? Why Did Tripp Tape Conversations with Intern?PEORIA J. STAR, Jan. 26, 1998 at A4 (editorializing that taping conversations was as bad as an adulterous affair).
140. See Judy Keen & Kevin Johnson, Tripp Testifies for a 4th Day, USA TODAY, July 10, 1998, at 1IA (citing poll showing that most Americans were against making tapes); Kathleen Parker, What Are Friends For? Why Did Tripp Tape Conversations with Intern?PEORIA J. STAR, Jan. 26, 1998 at A4 (editorializing that taping conversations was as bad as an adulterous affair).
141. Respondents were asked the following questions and responded in the following manner: Question: Linda Tripp gave these tapes to Whitewater Special Prosecutor Kenneth Starr. He obtained permission to put a hidden microphone on Linda Tripp and secretly record Monica Lewinsky discussing her alleged affair with President (Bill) Clinton. Do you think it was appropriate for Starr to do this? Response: appropriate, 25%; inappropriate, 66%; not sure, 9%. Question: As you may know, Linda Tripp, who is a friend of Ms. (Monica) Lewinsky, secretly taped Ms. Lewinsky discussing her alleged affair with President (Bill) Clinton. Do you think it was appropriate for Linda Tripp to secretly tape Ms. Lewinsky's remarks? Response: appropriate, 25%; inappropriate, 66%; not sure, 9%. Time/C.N.N./Yankelovich Partners Poll, Jan. 22, 1998 (surveying 618 adults). See also Gary Fields, Privacy Watchers Criticize Starr, Say Tactics Will Have Repercussions For Others, USA TODAY, Apr. 16, 1998, at 6A (noting that Starr's aggressive investigative tactics put the privacy issue in the spotlight); Ruth Marcus, To Some in the Law Starr's Tactics Show a Lack of Restraint, WASH. POST, Feb. 13, 1998, at A1 (questioning whether Starr's investigation was too aggressive).
142. Respondents were asked the following questions and responded in the following manner: Question: Linda Tripp gave these tapes to Whitewater Special Prosecutor Kenneth Starr. He obtained permission to put a hidden microphone on Linda Tripp and secretly record Monica Lewinsky discussing her alleged affair with President (Bill) Clinton. Do you think it was appropriate for Starr to do this? Response: appropriate, 25%; inappropriate, 66%; not sure, 9%. Question: As you may know, Linda Tripp, who is a friend of Ms. (Monica) Lewinsky, secretly taped Ms. Lewinsky discussing her alleged affair with President (Bill) Clinton. Do you think it was appropriate for Linda Tripp to secretly tape Ms. Lewinsky's remarks? Response: appropriate, 25%; inappropriate, 66%; not sure, 9%. Time/C.N.N./Yankelovich Partners Poll, Jan. 22, 1998 (surveying 618 adults). See also Gary Fields, Privacy Watchers Criticize Starr, Say Tactics Will Have Repercussions For Others, USA TODAY, Apr. 16, 1998, at 6A (noting that Starr's aggressive investigative tactics put the privacy issue in the spotlight); Ruth Marcus, To Some in the Law Starr's Tactics Show a Lack of Restraint, WASH. POST, Feb. 13, 1998, at A1 (questioning whether Starr's investigation was too aggressive).
143. 18 U.S.C. §§ 2510-2530 (1988).
144. Id. § 2518.
145. Id. § 2515.
146. See id. § 2511(1) (prohibiting nonconsensual wiretapping except through the specific procedures prescribed in § 2518).
147. See generally Daniel Chepaitis, Electronic Surveillance, 82 GEO. L.J. 698 (1994) (providing history of Title HI and the proper procedures law enforcement officials must follow before and after electronic surveillance); see also Kirsten Scheurer, The Clipper Chip: Cryptography Technology and the Constitution - The Government's Answer to Encryption "Chips" Away at Constitutional Rights, 21 RUTGERS COMPUTER & TECH. L.J. 263, 288-89 (1996) (discussing the effectiveness of federal wiretaps in prosecuting organized crime, gambling cases, and narcotics cases).
148. See generally Daniel Chepaitis, Electronic Surveillance, 82 GEO. L.J. 698 (1994) (providing history of Title HI and the proper procedures law enforcement
149. See Carol Bast, What's Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DEPAUL L. REV. 837, 868-71 (1998) (providing a comparative analysis of federal and state wiretapping statutes).
150. Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended at 47 U.S.C. §§ 1001-1010 (1994 & Supp. IV 1998)).
151. The law was passed to address concerns that law enforcement would not be able to intercept communications as the technology becomes more sophisticated. For a full discussion of CALEA and its potential effects of the privacy rights of ordinary citizens, see Lillian R. BeVier, The Communications Assistance for Law Enforcement Act of 1994: A Surprising Sequel to the Break Up of AT&T, 51 STAN. L. REV. 1049 (1999).
152. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, 110 Stat. 1214 (1996).
153. See Scheurer, supra note 109, at 287-91 (discussing the effectiveness of wiretaps); Anjali Singhal, The Piracy of Privacy? A Fourth Amendment Analysis of Key Escrow Cryptography, 7 STAN. L. & POL'Y REV., Summer 1996, at 189, 193 ("[W]iretapping is the tool most often and most successfully used in combating certain crimes [such as] [o]rganized crime, drug trafficking, terrorism, and governmental fraud and corruption . . . ."); Andrew W. Yung, Regulating the Genie: Effective Wiretaps in the Information Age, 101 DICK. L. REV. 95, 103 (1996) (stating that "[i]n the ten-year period ending in 1992, . . . 22,000 convictions have resulted from court-authorized surveillances," and arguing that electronic surveillance is an essential law enforcement tool to ensure public safety).
154. See Scheurer, supra note 109, at 287-91 (discussing the effectiveness of wiretaps); Anjali Singhal, The Piracy of Privacy? A Fourth Amendment Analysis of Key Escrow Cryptography, 7 STAN. L. & POL'Y REV., Summer 1996, at 189, 193 ("[W]iretapping is the tool most often and most successfully used in combating certain crimes [such as] [o]rganized crime, drug trafficking, terrorism, and governmental fraud and corruption . . . ."); Andrew W. Yung, Regulating the Genie: Effective Wiretaps in the Information Age, 101 DICK. L. REV. 95, 103 (1996) (stating that "[i]n the ten-year period ending in 1992, . . . 22,000 convictions have resulted from court-authorized surveillances," and arguing that electronic surveillance is an essential law enforcement tool to ensure public safety).
155. See generally BeVier, supra note 112 (discussing CALEA's effects on privacy rights); see also Larry Downes, Electronic Communications and the Plain View Exception: More "Bad Physics," 7 HARV. J.L. & TECH., Spring 1994, at 239, 273 (detailing the "growing number of environments where effective methods of government surveillance potentially infringe upon the privacy interests of many innocent partiesø); Benjamin M. Shieber, Electronic Surveillance, the Mafia, and Individual Freedom, 42 LA. L. REV. 1323, 1361 (1982) (ø[T]he principal basis for criticism of law enforcement electronic surveillance is not lack of effectiveness or cost, but that it invades individual privacy.ø).
156. See generally BeVier, supra note 112 (discussing CALEA's effects on privacy rights); see also Larry Downes, Electronic Communications and the Plain View Exception: More "Bad Physics," 7 HARV. J.L. & TECH., Spring 1994, at 239, 273 (detailing the "growing number of environments where effective methods of government surveillance potentially infringe upon the privacy interests of many innocent partiesø); Benjamin M. Shieber, Electronic Surveillance, the Mafia, and Individual Freedom, 42 LA. L. REV. 1323, 1361 (1982) (ø[T]he principal basis for criticism of law enforcement electronic surveillance is not lack of effectiveness or cost, but that it invades individual privacy.ø).
157. See supra notes 103-04 (discussing opinion polls).
158. See Michael Isikoff, Anatomy of a Scandal, The Dovetailing of 2 Bizarre D.C. Dramas: Paula Jones and Monica Lewinsky, PITT. POST-GAZETTE, Jan. 23, 1998, at A11.
159. A JUROR: Did they ever tell you that you could not call Mr. Carter? [Lewinsky:] No. What they told me was that if I called Mr. Carter, I wouldn't necessarily still be offered an immunity agreement. A JUROR: And did you feel threatened by that? [Lewinsky:] Yes. A JUROR: And you said they offered you a chance to call another attorney? [Lewinsky:] Yes. A JUROR: And did you take them up on that offer? [Lewinsky:] No. A JUROR: Why not? [Lewinsky:] Because I didn't trust them. Grand Jury Testimony of Monica Lewinsky, Aug. 20, 1998, available at http://www.time .com/time/daily/scandal/monica/aug206.html (last visited Oct. 9, 2000).
160. The transcript of Ms. Lewinsky's appearance before the grand jury documents this exchange: [Lewinsky:] I told them I wasn't speaking to them without my attorney. They told me that that was fine, but I should know I won't be given as much information and won't be able to help myself as much with my attorney there. So I agreed to go. I was so scared . . . . Well, the first time when I asked, that I said I wasn't going to talk to them without my lawyer, they told me that if my lawyer was there, they wouldn't give me as much information and I couldn't help myself as much, . . . . Id. 120. Again, the transcript from the grand jury hearing reflects this exchange: [Lewinsky:] I told them I wanted to talk to my attorney. [A Juror:] Okay. So what happened? [Lewinsky:] And they told me - Mike came out and introduced himself to me and told me that - that Janet Reno had sanctioned Ken Starr to investigate my actions in the Paula Jones case, that they - that they knew that I had signed a false affidavit, they had me on tape saying I had committed perjury . . . that I could go to jail for 27 years, they were going to charge me with perjury and obstruction of justice and subornation of perjury and witness tampering and something else. Id.
161. The Future of the Independent Counsel Act: Hearing Before the Senate Comm. on Government Affairs, 106th Cong. 419-73 (Apr. 14, 1999) (statement of Sen. Torricelli).
162. See supra notes 4-6 and accompanying text (listing scholars, columnists, and members of Congress who criticized the investigation).
163. See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that law enforcement officers must inform suspects of their rights to silence and counsel during custodial interrogation).
164. Prior to initiating a "custodial interrogation," government officials must inform the accused that: (1) he has the right to remain silent; (2) anything he says can be used against him at trial; (3) he has a right to have an attorney present during questioning; and (4) if he can not afford an attorney, one will be appointed prior to questioning. Id. at 479.
165. See Illinois v. Perkins, 496 U.S. 292, 300 (1990) (upholding defendant's murder conviction and concluding that an undercover police officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that could elicit an incriminating response); New York v. Quarles, 467 U.S. 649, 659 (1984) (dispensing with Miranda warnings during public safety emergencies); Michigan v. Mosley, 423 U.S. 96, 105-07 (1975) (finding that admission of incriminating statements did not violate Miranda because interrogation is not forever barred when defendant invokes his right to silence with regard to one crime and later decides to talk about a different crime).
166. 166 F.3d 667 (4th Cir. 1999).
167. Id. at 692.
168. Dickerson v. United States, 120 S. Ct. 2326, 2336 (2000).
169. Id. at 2335.
170. See supra notes 125-26 (discussing the erosion of the Miranda protections).
171. See infra note 354 and accompanying text (noting that Congress passed the Citizens Protection Act in 1998).
172. "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." MODEL RULES OF PROF'L CONDUCT R. 4.2 (Ctr. for Prof 1 Resp. 1995).
173. See infra note 358 and accompanying text (discussing Model Rules of Professional Conduct Rule 4.2).
174. See Reck v. Pate, 367 U.S. 433, 436 (1961) (subjecting suspect to six to seven hours of interrogation each day for four days); Fikes v. Alabama, 352 U.S. 191, 194 (1957) (questioning for several hours at a time over a five-day period); Turner v. Pennsylvania, 338 U.S. 62, 63 (1949) (questioning from four to six hours per day for five days); Ashcraft v. Tennessee, 322 U.S. 143, 149 (1944) (detailing thirty-six hours of relay questioning); see also Welsh S. White, What is an Involuntary Confession Now?, 50 RUTGERS L. REV. 2001, 2055 (1998) (noting that the Supreme Court has relaxed restrictions on police interrogations and analyzing the role of the "voluntariness test" in regulating the admissibility of untrustworthy confessions).
175. See United States v. Williams, 205 F.3d 23, 30 (2d Cir. 2000) (holding that the government's threat to prosecute defense witness for perjury if he did not return to the stand to recant his recent testimony did not deprive the defendant of his due process right to compulsory process, even if the government did not notify defense counsel, warn witness of his self-incrimination rights, or properly represent the strength of its evidence of perjury); Johnson v. Washington, 119 F.3d 513, 523 (7th Cir. 1997) (stating that inconsistent testimony of witness did not violate defendant's due process right to a fair trial where the trial court suggested that police coerced the witness's statements).
176. See Green v. Scully, 850 F.2d 894, 904 (2d Cir. 1988) (upholding murder conviction where police lied to suspect about finding his palm prints and blood at the crime scene).
177. U.S. CONST, amend. V.
178. Ex parte Wilson, 114 U.S. 417, 419 (1885).
179. See STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE 671 (4th ed. 1996) (citing Hurtado v. California, 110 U.S. 516 (1884)).
180. Id.
181. Id. at 673. For a description of the framers' conception of the grand jury, see Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1184-85 (1991).
182. See YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE 702 (1986); William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. & CRIMINOLOGY 174, 178 (1973) (arguing that although grand jurors have the power to subpoena witnesses, they rarely invoke this power).
183. See YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE 702 (1986); William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. & CRIMINOLOGY 174, 178 (1973) (arguing that although grand jurors have the power to subpoena witnesses, they rarely invoke this power).
184. See Andrew D. Leipold, Why Grand Juries Do Not (And Cannot) Protect the Accused, 80 CORNELL L. REV. 260, 315 (1995) (arguing that prosecutors control the subpoena process in grand jury investigations).
185. SALTZBURG & CAPRA, supra note 139; see also Amar, supra note 141, at 1184 ("By focusing public attention on otherwise low-visibility executive decisions, the grand jury could deter executive self-dealing and enhance executive accountability.").
186. See Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642 (1999) ("In theory, grand juries and judges provide formal restraints on prosecutorial abuses, but in practice these restraints have atrophied. Grand juries are now entirely creatures of the prosecutor's office."); Anne Bowen Poulin, Supervision of the Grand Jury: Who Watches the Guardian?, 68 WASH. U. L.Q. 885, 886 (1990) ("In fact, the grand jury has been criticized as having become nothing but a powerful and easily abused weapon of the prosecution.").
187. See Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 642 (1999) ("In theory, grand juries and judges provide formal restraints on prosecutorial abuses, but in practice these restraints have atrophied. Grand juries are now entirely creatures of the prosecutor's office."); Anne Bowen Poulin, Supervision of the Grand Jury: Who Watches the Guardian?, 68 WASH. U. L.Q. 885, 886 (1990) ("In fact, the grand jury has been criticized as having become nothing but a powerful and easily abused weapon of the prosecution.").
188. United States v. Procter & Gamble, 356 U.S. 677, 681 n.6 (1958) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954)).
189. FED. R. GRIM. P. 6(e). In relevant part, the rule reads as follows: (e) Recording and Disclosure of Proceedings. (1) Recording of Proceedings. All proceedings, except when the grand jury is deliberating or voting, shall be recorded stenographically or by an electronic recording device. An unintentional failure of any recording to reproduce all or any portion of a proceeding shall not affect the validity of the prosecution. The recording or reporter's notes or any transcript prepared therefrom shall remain in the custody or control of the attorney for the government unless otherwise ordered by the court in a particular case. (2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3) (A) (ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court. Id.
190. MODEL RULES OF PROF'L CONDUCT R. 3.6 (1997) provides: A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Id. See generally Edward A. Carr & Allan Van Fleet, Professional Responsibility Law in Multijurisdictional Litigation: Across the Country and Across the Street, 36 S. TEX. L. REV. 859 (1995) (explaining that most states follow the Model Rules). In addition, under the Citizens Protection Act of 1998, see infra note 354, federal prosecutors are bound by state ethical rules.
191. U.S. DEP'T OF JUSTICE, DEP'T OF JUSTICE MANUAL § 1-7.530(A) (1996) (prohibiting prosecutors and other Justice Department officials from commenting on ongoing investigations). However, there are exceptions to this regulation, and it, like other Justice Department regulations, is unenforceable in law and only serves as an internal guideline. See Daniel C. Richman, Grand Jury Secrecy: Plugging the Leaks in an Empty Bucket, 36 AM. CRIM. L. REV. 339, 349 (1999) (arguing that while there does not seem to be a problem with "leaks" in ordinary cases, leaks are far more common and remedies for identifying and stopping them are rarely, if ever, effective in high profile cases).
192. See Richman, supra note 149, at 339 (describing Starr's interview with Steven Brill, in which Starr acknowledged that he and his deputy regularly gave "background" interviews to news reporters). See generally Roma W. Theus II, "Leaks" in Federal Grand Jury Proceedings, 10 ST. THOMAS L. REV. 551 (1998) (discussing the negative and positive features of federal grand jury "leaks").
193. See Richard Ben-veniste, Comparisons Can Be Odious, Mr. Starr, NAT'L L.J., Dec. 21, 1998, at A21 ("[T]he aggressive and disproportionate tactics employed by Mr. Starr's office, often in violation of Department of Justice guidelines and bar association standards of professional responsibility, have left the public with the justifiable perception that Mr. Starr is conducting a crusade rather than an investigation . . . ."). But see Richman, supra note 149, at 340 (citing sources that defended Starr's behavior).
194. See Bill Miller, Starr Leaks Not Illegal, Appeals Court Rules; No Contempt Sanctions for Prosecutors, WASH. POST, Sept. 14, 1999, at A8, available at 1999 WL 23303409 (discussing appointment of special master and appellate court's ruling that U.S. District Court Chief Judge Norma Holloway Johnson had interpreted grand jury secrecy rules too strictly); Pete Yost, Starr Wins Appeals Court Ruling, ASSOCIATED PRESS, Sept. 14, 1999, at A8, available at 1999 WL 23303409 (reporting Starr's successful appeal of U.S. District Court Judge Norma Holloway Johnson's ruling that investigative matters not yet before a grand jury should be covered by secrecy rules that apply to the grand jury itself).
195. See Bill Miller, Starr Leaks Not Illegal, Appeals Court Rules; No Contempt Sanctions for Prosecutors, WASH. POST, Sept. 14, 1999, at A8, available at 1999 WL 23303409 (discussing appointment of special master and appellate court's ruling that U.S. District Court Chief Judge Norma Holloway Johnson had interpreted grand jury secrecy rules too strictly); Pete Yost, Starr Wins Appeals Court Ruling, ASSOCIATED PRESS, Sept. 14, 1999, at A8, available at 1999 WL 23303409 (reporting Starr's successful appeal of U.S. District Court Judge Norma Holloway Johnson's ruling that investigative matters not yet before a grand jury should be covered by secrecy rules that apply to the grand jury itself).
196. See Naftali Bendavid, Leaks, Rumors Dulled Revelations'Impact, CHI. TRIB., Sept. 27, 1998, at 1 (detailing the most notable leaks allegedly made by Starr); see also Howard Kurtz, Maryland Affidavit Suggests Role of Starr Staff in Tape Leak, WASH. POST, Dec. 15, 1999, at A06 (stating Starr may have organized a leak of a taped conversation between Linda Tripp and Monica Lewinsky); Roberto Suro, Judge Cites 24 Stories in Ordering Leak Probe, WASH. POST, Oct. 31, 1998, at A6 (stating Judge Norma Holloway Johnson linked twenty-four leaks of Monica Lewinsky's grand jury testimony to Starr's office).
197. See Naftali Bendavid, Leaks, Rumors Dulled Revelations'Impact, CHI. TRIB., Sept. 27, 1998, at 1 (detailing the most notable leaks allegedly made by Starr); see also Howard Kurtz, Maryland Affidavit Suggests Role of Starr Staff in Tape Leak, WASH. POST, Dec. 15, 1999, at A06 (stating Starr may have organized a leak of a taped conversation between Linda Tripp and Monica Lewinsky); Roberto Suro, Judge Cites 24 Stories in Ordering Leak Probe, WASH. POST, Oct. 31, 1998, at A6 (stating Judge Norma Holloway Johnson linked twenty-four leaks of Monica Lewinsky's grand jury testimony to Starr's office).
198. See Naftali Bendavid, Leaks, Rumors Dulled Revelations'Impact, CHI. TRIB., Sept. 27, 1998, at 1 (detailing the most notable leaks allegedly made by Starr); see also Howard Kurtz, Maryland Affidavit Suggests Role of Starr Staff in Tape Leak, WASH. POST, Dec. 15, 1999, at A06 (stating Starr may have organized a leak of a taped conversation between Linda Tripp and Monica Lewinsky); Roberto Suro, Judge Cites 24 Stories in Ordering Leak Probe, WASH. POST, Oct. 31, 1998, at A6 (stating Judge Norma Holloway Johnson linked twenty-four leaks of Monica Lewinsky's grand jury testimony to Starr's office).
199. Today Show: Ken Starr Admits to Having Spoken Privately to Media About Monica Lewinsky Matter (NBC television broadcast, June 14, 1998).
200. See Alan M. Dershowitz, SEXUAL MCCARTHYISM 172 (1998): Whether Starr's leaks did or did not violate federal law, what he and his office did is standard operating procedure for prosecutors - both federal and state - around the country. Every day, federal prosecutors - many appointed by President Clinton - leak negative information about ongoing investigations. They do so for a variety of reasons: self-aggrandizement; to put pressure on potential witnesses and defendants; to curry favor with the media; to attempt to influence the jury pool; to generate favorable public opinion for their office. They always justify what they are doing by claiming that there are "legitimate" law enforcement purposes behind their leaks. Id.; see also Theus, supra note 150, at 552.
201. Robert G. Morvillo & Robert J. Anello, Proposals for Grand Jury Reform, N.Y. L.J., Aug. 1, 2000, at 3, 3: Grand jury leaks are a pervasive problem that can cause damage to the reputation of an individual who even the prosecutor later determines is not properly the subject of criminal charges. In other cases, such leaks by law enforcement can cause prosecutors whose investigations have become public to pursue criminal charges in a controversial matter when they might otherwise use their discretion to decline charges. Id.
202. See Kevin Johnson & Edward Pound, 'Cool' Jordan Faces the Heat: Clinton Confidant is Scheduled for Round 2 Thursday, USA TODAY, Mar. 4, 1998, at A4 (recounting statements and demeanor of Vernon Jordan and Marcia Lewis after their grand jury appearances); Lewinsky Arrives for Grand Jury Testimony on Relationship with Clinton, ASSOCIATED PRESS POL. SERV., Aug. 6, 1998, available at 1998 WL 7435336 (discussing the swarm of journalists awaiting Monica Lewinsky before and after her grand jury appearance) .
203. See Kevin Johnson & Edward Pound, 'Cool' Jordan Faces the Heat: Clinton Confidant is Scheduled for Round 2 Thursday, USA TODAY, Mar. 4, 1998, at A4 (recounting statements and demeanor of Vernon Jordan and Marcia Lewis after their grand jury appearances); Lewinsky Arrives for Grand Jury Testimony on Relationship with Clinton, ASSOCIATED PRESS POL. SERV., Aug. 6, 1998, available at 1998 WL 7435336 (discussing the swarm of journalists awaiting Monica Lewinsky before and after her grand jury appearance) .
204. See Myriam Marquez, Editorial, How Would You Feel if Your Daughter Got Stuck in Starr's Web?, ORLANDO SENTINEL, Feb. 23, 1998, at A10 (describing Marcia Lewis's reaction and criticizing Starr's decision to subpoena her); Editorial, A Mother Testifies, INDIANAPOLIS STAR, Feb. 25, 1998, at A14 (reporting public objections to Starr's subpoena of Marcia Lewis).
205. See Myriam Marquez, Editorial, How Would You Feel if Your Daughter Got Stuck in Starr's Web?, ORLANDO SENTINEL, Feb. 23, 1998, at A10 (describing Marcia Lewis's reaction and criticizing Starr's decision to subpoena her); Editorial, A Mother Testifies, INDIANAPOLIS STAR, Feb. 25, 1998, at A14 (reporting public objections to Starr's subpoena of Marcia Lewis).
206. See Editorial, Calling Mother to Testify an Invasion of Privacy, PORTLAND OREGONIAN, Feb. 25, 1998, at E11 (describing matter as a disgusting invasion of privacy between parent and child); Editorial, Pushing the Envelope: Starr's Zeal May Undercut His Public Support, NEWSDAY, Feb. 15, 1998, at B1 (criticizing Starr's decision to subpoena Marcia Lewis to the grand jury).
207. See Editorial, Calling Mother to Testify an Invasion of Privacy, PORTLAND OREGONIAN, Feb. 25, 1998, at E11 (describing matter as a disgusting invasion of privacy between parent and child); Editorial, Pushing the Envelope: Starr's Zeal May Undercut His Public Support, NEWSDAY, Feb. 15, 1998, at B1 (criticizing Starr's decision to subpoena Marcia Lewis to the grand jury).
208. See FED. R. EVID. 801 (d) (2) (establishing that a statement of a party-opponent is not hearsay).
209. FED. R. EVID. 501 (advisory committee notes).
210. See Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. PA. L. REV. 1365, 1391 (1987) (citing United States v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964), cert. denied, 379 U.S. 845 (1964)); Cecilia M. Clarke, White-Collar Crime: Fourth Survey of Law, Grand Jury Subpoenas, 24 AM. CRIM. L. REV. 819, 832 (1987) (citing In re Grand Jury Subpoena Duces Tecum, 767 F.2d 26, 29-30 (2d Cir. 1985)).
211. See Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. PA. L. REV. 1365, 1391 (1987) (citing United States v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964), cert. denied, 379 U.S. 845 (1964)); Cecilia M. Clarke, White-Collar Crime: Fourth Survey of Law, Grand Jury Subpoenas, 24 AM. CRIM. L. REV. 819, 832 (1987) (citing In re Grand Jury Subpoena Duces Tecum, 767 F.2d 26, 29-30 (2d Cir. 1985)).
212. FED. R. GRIM. P. 17(a), (c).
213. Branzburg v. Hayes, 408 U.S. 665, 686-88 (1972); Costello v. United States, 350 U.S. 359, 362 (1956); Blair v. United States, 250 U.S. 273, 282 (1919); 3 LAFAVE ET AL., supra note 59, § 8.1(c); 8 J. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 6.04[1] (3d ed. 1998); Reiss, supra note 162, at 1458 (citing United States v. Zarattini, 552 F.2d 753, 756 (7th Cir.), cert. denied, 431 U.S. 942 (1977)).
214. See 3 U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL § 9-23.211 (2d ed. 2000) (justifying such inquiry only where there are "overriding prosecutorial concerns"); Gerald E. Lynch, Panel Discussion: The Expanding Prosecutorial Role from Trial Counsel to Investigator and Administrator, 26 FORDHAM URB. L.J. 679, 684 (1999) (suggesting that some prosecutors would not subpoena a mother to the grand jury to testify against a child, even though they may do so legally).
215. A prosecutor may not use the grand jury's subpoena power to gather evidence solely for use in the trial of a pending indictment. In re Grand Jury Proceedings, 896 F.2d 1267, 1278 (11th Cir. 1990); STANDARDS FOR CRIMINAL JUSTICE § 3-3.1(e) (1980); 8 J. MOORE, MOORE'S FEDERAL PRACTICE ¶ 6.04 [5] (1989).
216. See Lynch, supra note 165, at 684 (citing In re Pantojas, 639 F.2d 822, 824 (1st Cir. 1980)).
217. See Reiss, supra note 162, at 1460 (citing 3 LAFAVE ET AL., supra note 59, § 8.8(f)).
218. See generally Aversa v. United States, 99 F.3d 1200 (1st Cir. 1996) (upholding qualified immunity of prosecutor who made misleading and unprofessional statements to the press about grand jury target).
219. For a thorough discussion of this issue and the Supreme Court's jurisprudence on grand jury abuse, see Poulin, supra note 145, at 888-96.
220. 475 U.S. 66 (1986).
221. FED. R. CRIM. P. 6(d).
222. Mechanik, 475 U.S. at 72-73.
223. 487 U.S. 250 (1988).
224. Id. at 253.
225. Id. at 256.
226. Id. at 259-60.
227. 489 U.S. 794 (1989).
228. Id. at 798.
229. Poulin, supra note 145, at 890.
230. Starr's "summary" was written on documents that filled the thirty-six boxes that were delivered to Congress. Jon Sawyer, Washington Soap Opera Opera No Plot Twist Unturned, ST. LOUIS POST-DISPATCH, Feb. 14, 1999, at A7, available at 1999 WL 3011034.
231. Sam Dash, Starr's ethics advisor, resigned when Starr declined his advice and accepted an invitation to appear before the House Judiciary Committee where the Independent Counsel served as an "aggressive advocate" for impeachment of President Clinton. Dash argued that Starr had no right or authority under law, as an Independent Counsel, to advocate for a particular position or argue that the evidence is sufficient to warrant impeachment, a right granted only to the House of Representatives. Sam Dash, 'No Other Choice but to Resign': Letter of Resignation from Sam Dash, NEWSDAY, Nov. 21, 1998, at A14.
232. See Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 712 (1999) (discussing the ambiguities and gaps in proof and the potentially exculpatory inferences presented by the President's lawyers during the Senate trial); Miller, supra note 45, at 694 ("President Clinton's attorneys argued that the release of the [report] to the public without affording the President an advance opportunity to review it and prepare an explanation or rebuttal was unfair because the [report] was an accusatory document written in advocacy style, which lacked all exculpatory material."); Deborah L. Rhode, Conflicts of Commitment: Legal Ethics in the Impeachment Context, 52 STAN. L. REV. 269, 342-43 (2000) (noting that although ample space was allotted to each and every sexual interaction between Clinton and Lewinsky, much of the exculpatory material was never mentioned).
233. See Robert W. Gordon, Imprudence and Partisanship: Starr's OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 712 (1999) (discussing the ambiguities and gaps in proof and the potentially exculpatory inferences presented by the President's lawyers during the Senate trial); Miller, supra note 45, at 694 ("President Clinton's attorneys argued that the release of the [report] to the public without affording the President an advance opportunity to review it and prepare an explanation or rebuttal was unfair because the [report] was an accusatory document written in advocacy style, which lacked all exculpatory material."); Deborah L. Rhode, Conflicts of Commitment: Legal Ethics in the Impeachment Context, 52 STAN. L. REV. 269, 342-43 (2000) (noting that although ample space was allotted to each and every sexual interaction between Clinton and Lewinsky, much of the exculpatory material was never mentioned).
234. Of course, since an impeachment is not a criminal proceeding, Starr's omission of exculpatory material in his report to Congress, although arguably unfair, was not a constitutional violation. For a general discussion of the procedures and requirements for the Independent Counsel in impeachment cases, see Hugh Brown, Comment, A Plague on Both Your Houses: Challenges to the Role of the Independent Counsel in a Presidential Impeachment, 34 TULSA L.J. 579 (1999).
235. 373 U.S. 83 (1963).
236. 427 U.S. 97, 110-11 (1976).
237. But see Rosen, supra note 95, at 730 (arguing that despite widespread Brady violations, disciplinary charges and sanctions against prosecutors are rarely brought).
238. See Ghita Harris & Erin Rosenberg, Twenty-Seventh Annual Review of Criminal Procedure, Preliminary Proceedings, Discovery, 86 GEO. L.J. 1461, 1461-62 (1998) (stating that courts have fashioned rules providing for the disclosure of certain types of evidence when necessary to safeguard a defendant's due process rights).
239. Id. at 1466 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).
240. See Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 OKLA. CITY U. L. REV. 833, 869 (1997) ("For every one of these cases, we have every reason to suspect that there are many more in which the prosecutor's refusal to disclose the exculpatory evidence was never discovered by the defendant or his attorney."); see also Barbara A. Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 STAN. L. REV. 1133, 1142-46 (1982) (explaining Brady's potential for changing the adversary system); Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L.Q. 713, 759-71 (1999) (discussing Brady violations).
241. See Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 OKLA. CITY U. L. REV. 833, 869 (1997) ("For every one of these cases, we have every reason to suspect that there are many more in which the prosecutor's refusal to disclose the exculpatory evidence was never discovered by the defendant or his attorney."); see also Barbara A. Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 STAN. L. REV. 1133, 1142-46 (1982) (explaining Brady's potential for changing the adversary system); Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L.Q. 713, 759-71 (1999) (discussing Brady violations).
242. See Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 OKLA. CITY U. L. REV. 833, 869 (1997) ("For every one of these cases, we have every reason to suspect that there are many more in which the prosecutor's refusal to disclose the exculpatory evidence was never discovered by the defendant or his attorney."); see also Barbara A. Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 STAN. L. REV. 1133, 1142-46 (1982) (explaining Brady's potential for changing the adversary system); Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L.Q. 713, 759-71 (1999) (discussing Brady violations).
243. See Brady, 373 U.S. at 84 (explaining that statements which exculpated Brady from the murder were withheld by the prosecution and did not come to petitioner's notice until after he had been tried, convicted, and sentenced to death, and after his conviction had been affirmed); see generally Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potential Capital Cases, 40 STAN. L. REV. 21, 56 (1987) (noting hundreds of capital cases, many of which involved the prosecutor suppressing exculpatory evidence, where the defendant was subsequently shown to have been innocent of the offense of which he was convicted); Weeks, supra note 190, at 848-70 (documenting a number of cases in Oklahoma and other jurisdictions where prosecutors withheld exculpatory evidence).
244. Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., Jan. 10, 1999, at A1 (detailing the authors' method of selecting and reviewing cases).
245. Id.
246. Id.
247. Id.
248. Id.
249. Armstrong & Possley, supra note 192, at A1.
250. Series Grew out of 'Protected Witness' Series: Win at All Costs, PITT. POST-GAZETTE, Nov. 22, 1999, at A10.
251. Bill Moushey, Out of Control Legal Rules Have Changes, Allowing Federal Agents, Prosecutors to Bypass Basic Rights, PITT. POST-GAZETTE, Nov. 22, 1998, at A1.
252. Id.
253. See Michael Haddigan, Lawyer Says McDougal Feared Being 'Pawn' Against Clinton, WASH. POST, Mar. 11, 1999, at A11. Susan McDougal was imprisoned for refusing to answer questions about President Clinton. Id. Starr sought her testimony even after she explained that she did not know about any criminal activities of President Clinton. McDougal also claimed that her husband was "an inveterate liar" willing to do anything in exchange for Starr's leniency. See Harvey A. Silvergate & Andrew Good, Starr Teachers, REASON, May 1, 1999, at 2633. After going to prison for civil contempt, she still refused to cooperate with Starr. Haddigan, supra, at A11. Starr then prosecuted McDougal for criminal contempt and related charges. Id. She was acquitted of obstruction of justice, and the jury failed to reach a verdict on the remaining charges. Paul Duggan, Jury Acquits McDougal of Obstruction, WASH. POST, Apr. 13, 1999, at A1. Starr decided not to retry the case. Jerry Seper, Starr Decides Not to Retry Two Women: Steele Jury Hung; McDougal Let Off, WASH. TIMES, May 26, 1999, at A4. McDougal later testified before Congress regarding the abuses she faced in dealing with the Independent Counsel. See Abuses of Individual Rights by Independent Counsels Before the House Comm. on the Judiciary, 106th Cong. (Sept. 23, 1999) (statement of Susan McDougal), available at 1999 WL 27594751. In her testimony before Congress, McDougal accused Starr of threatening her with indictment if she failed to offer damaging information about the Clintons. Id.
254. See Michael Haddigan, Lawyer Says McDougal Feared Being 'Pawn' Against Clinton, WASH. POST, Mar. 11, 1999, at A11. Susan McDougal was imprisoned for refusing to answer questions about President Clinton. Id. Starr sought her testimony even after she explained that she did not know about any criminal activities of President Clinton. McDougal also claimed that her husband was "an inveterate liar" willing to do anything in exchange for Starr's leniency. See Harvey A. Silvergate & Andrew Good, Starr Teachers, REASON, May 1, 1999, at 2633. After going to prison for civil contempt, she still refused to cooperate with Starr. Haddigan, supra, at A11. Starr then prosecuted McDougal for criminal contempt and related charges. Id. She was acquitted of obstruction of justice, and the jury failed to reach a verdict on the remaining charges. Paul Duggan, Jury Acquits McDougal of Obstruction, WASH. POST, Apr. 13, 1999, at A1. Starr decided not to retry the case. Jerry Seper, Starr Decides Not to Retry Two Women: Steele Jury Hung; McDougal Let Off, WASH. TIMES, May 26, 1999, at A4. McDougal later testified before Congress regarding the abuses she faced in dealing with the Independent Counsel. See Abuses of Individual Rights by Independent Counsels Before the House Comm. on the Judiciary, 106th Cong. (Sept. 23, 1999) (statement of Susan McDougal), available at 1999 WL 27594751. In her testimony before Congress, McDougal accused Starr of threatening her with indictment if she failed to offer damaging information about the Clintons. Id.
255. See Michael Haddigan, Lawyer Says McDougal Feared Being 'Pawn' Against Clinton, WASH. POST, Mar. 11, 1999, at A11. Susan McDougal was imprisoned for refusing to answer questions about President Clinton. Id. Starr sought her testimony even after she explained that she did not know about any criminal activities of President Clinton. McDougal also claimed that her husband was "an inveterate liar" willing to do anything in exchange for Starr's leniency. See Harvey A. Silvergate & Andrew Good, Starr Teachers, REASON, May 1, 1999, at 2633. After going to prison for civil contempt, she still refused to cooperate with Starr. Haddigan, supra, at A11. Starr then prosecuted McDougal for criminal contempt and related charges. Id. She was acquitted of obstruction of justice, and the jury failed to reach a verdict on the remaining charges. Paul Duggan, Jury Acquits McDougal of Obstruction, WASH. POST, Apr. 13, 1999, at A1. Starr decided not to retry the case. Jerry Seper, Starr Decides Not to Retry Two Women: Steele Jury Hung; McDougal Let Off, WASH. TIMES, May 26, 1999, at A4. McDougal later testified before Congress regarding the abuses she faced in dealing with the Independent Counsel. See Abuses of Individual Rights by Independent Counsels Before the House Comm. on the Judiciary, 106th Cong. (Sept. 23, 1999) (statement of Susan McDougal), available at 1999 WL 27594751. In her testimony before Congress, McDougal accused Starr of threatening her with indictment if she failed to offer damaging information about the Clintons. Id.
256. See Michael Haddigan, Lawyer Says McDougal Feared Being 'Pawn' Against Clinton, WASH. POST, Mar. 11, 1999, at A11. Susan McDougal was imprisoned for refusing to answer questions about President Clinton. Id. Starr sought her testimony even after she explained that she did not know about any criminal activities of President Clinton. McDougal also claimed that her husband was "an inveterate liar" willing to do anything in exchange for Starr's leniency. See Harvey A. Silvergate & Andrew Good, Starr Teachers, REASON, May 1, 1999, at 2633. After going to prison for civil contempt, she still refused to cooperate with Starr. Haddigan, supra, at A11. Starr then prosecuted McDougal for criminal contempt and related charges. Id. She was acquitted of obstruction of justice, and the jury failed to reach a verdict on the remaining charges. Paul Duggan, Jury Acquits McDougal of Obstruction, WASH. POST, Apr. 13, 1999, at A1. Starr decided not to retry the case. Jerry Seper, Starr Decides Not to Retry Two Women: Steele Jury Hung; McDougal Let Off, WASH. TIMES, May 26, 1999, at A4. McDougal later testified before Congress regarding the abuses she faced in dealing with the Independent Counsel. See Abuses of Individual Rights by Independent Counsels Before the House Comm. on the Judiciary, 106th Cong. (Sept. 23, 1999) (statement of Susan McDougal), available at 1999 WL 27594751. In her testimony before Congress, McDougal accused Starr of threatening her with indictment if she failed to offer damaging information about the Clintons. Id.
257. See Michael Haddigan, Lawyer Says McDougal Feared Being 'Pawn' Against Clinton, WASH. POST, Mar. 11, 1999, at A11. Susan McDougal was imprisoned for refusing to answer questions about President Clinton. Id. Starr sought her testimony even after she explained that she did not know about any criminal activities of President Clinton. McDougal also claimed that her husband was "an inveterate liar" willing to do anything in exchange for Starr's leniency. See Harvey A. Silvergate & Andrew Good, Starr Teachers, REASON, May 1, 1999, at 2633. After going to prison for civil contempt, she still refused to cooperate with Starr. Haddigan, supra, at A11. Starr then prosecuted McDougal for criminal contempt and related charges. Id. She was acquitted of obstruction of justice, and the jury failed to reach a verdict on the remaining charges. Paul Duggan, Jury Acquits McDougal of Obstruction, WASH. POST, Apr. 13, 1999, at A1. Starr decided not to retry the case. Jerry Seper, Starr Decides Not to Retry Two Women: Steele Jury Hung; McDougal Let Off, WASH. TIMES, May 26, 1999, at A4. McDougal later testified before Congress regarding the abuses she faced in dealing with the Independent Counsel. See Abuses of Individual Rights by Independent Counsels Before the House Comm. on the Judiciary, 106th Cong. (Sept. 23, 1999) (statement of Susan McDougal), available at 1999 WL 27594751. In her testimony before Congress, McDougal accused Starr of threatening her with indictment if she failed to offer damaging information about the Clintons. Id.
258. Mr. Hubbell served twenty-one months in prison after pleading guilty to tax charges stemming from the overbilling of clients at the Rose Law Firm in Little Rock. As part of a plea agreement, Mr. Hubbell agreed to cooperate with the Independent Counsel in his investigation of President Clinton. When Mr. Hubbell's cooperation did not consist of corroboration of wrongdoing by President and Mrs. Clinton, he was repeatedly pressured and eventually prosecuted for additional offenses. Roberto Suro & Bill Miller, Hubbell to Plead Guilty as Starr Wraps Up, WASH. POST, June 29, 1999, at A1. Starr eventually offered Hubbell a plea bargain allowing him to avoid serving additional time in prison. He pled guilty to one felony count of lying to banking regulators about his firm's work for the savings and loan at the center of the Whitewater investigation and one misdemeanor count of income-tax evasion. Jerry Seper, Starr Explains Hubbell Decision Finding Fair Jury Complicated Case, WASH. TIMES, July 1, 1999, at A1. Additionally, the Independent Counsel agreed to refrain from further criminally prosecuting or investigating Hubbell, and Starr also dropped tax charges against Hubbell's wife Suzanna and his two advisers. Id.
259. Mr. Hubbell served twenty-one months in prison after pleading guilty to tax charges stemming from the overbilling of clients at the Rose Law Firm in Little Rock. As part of a plea agreement, Mr. Hubbell agreed to cooperate with the Independent Counsel in his investigation of President Clinton. When Mr. Hubbell's cooperation did not consist of corroboration of wrongdoing by President and Mrs. Clinton, he was repeatedly pressured and eventually prosecuted for additional offenses. Roberto Suro & Bill Miller, Hubbell to Plead Guilty as Starr Wraps Up, WASH. POST, June 29, 1999, at A1. Starr eventually offered Hubbell a plea bargain allowing him to avoid serving additional time in prison. He pled guilty to one felony count of lying to banking regulators about his firm's work for the savings and loan at the center of the Whitewater investigation and one misdemeanor count of income-tax evasion. Jerry Seper, Starr Explains Hubbell Decision Finding Fair Jury Complicated Case, WASH. TIMES, July 1, 1999, at A1. Additionally, the Independent Counsel agreed to refrain from further criminally prosecuting or investigating Hubbell, and Starr also dropped tax charges against Hubbell's wife Suzanna and his two advisers. Id.
260. Julie Hiatt Steele was charged with obstruction of justice when prosecutors accused her of lying to them about President Clinton allegedly groping a woman named Kathleen Willey. Steele claimed Willey asked her to lie about the incident and that prosecutors told her she could avoid criminal charges if she changed her story. Florence Graves, Starr and Willey: The Untold Story, NATION, May 17, 1999, available at 1999 WL 9307055. A mistrial was declared after the jury failed to reach a verdict after eight hours of deliberation. If convicted, Steele could have faced up to thirty-five years in prison. Seper, supra note 201, at A4.
261. See Gordon, supra note 17, at 643 (citing RICHARD A. POSNER, AN AFFAIR OF STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON 88-89 (1999)): Prosecution task forces sweep down into the lives of targets and incidental witnesses, pore over their credit and bank records and their phone bills, interrogate their friends and neighbors and parents and children, peer into their sex lives, reading habits and intimate associations, cultivate informants and plant undercover agents in their clubs and workplaces - often looking less for actual evidence than for leverage to extort information or testimony. Id.
262. See Michael B. Rappaport, Replacing Independent Counsels with Congressional Investigations, 148 U. PA. L. REV. 1595, 1629 (2000) ("Criminal prosecutors . . . would be able to secure more cooperation because they have both the stick threatening to prosecute someone who does not cooperate as well as the carrot of providing immunity to someone who does.").
263. The author was a public defender in the District of Columbia during these years and represented the client in this case. The client's name used in this Article is fictitious.
264. D.C. CODE ANN. § 16-2322 (1981).
265. Juvenile Case Records; Confidentiality; Inspection and Disclosure, D.C. CODE ANN. § 16-2331 (1998).
266. Facilities for Treatment and Rehabilitation, D.C. CODE ANN. § 24-802 (Michie 1998).
267. See D.C. CODE ANN. § 16-2307(a) (1) (1998): [T]he Corporation Counsel may file a motion, supported by a statement of facts, requesting transfer of the child for criminal prosecution, if: (1) the child was fifteen or more years of age at the time of the conduct charged, and is alleged to have
268. See Davis, supra note 12, at 13-16, for other examples of abuse of the charging power.
269. If the defense attorney has evidence that a witness has been coerced, the usual method for challenging such behavior is through cross-examination of the witness at the client's trial in an attempt to damage the witness's credibility and undermine his testimony.
270. 417 U.S. 21 (1974).
271. Id. at 29 n.7.
272. 457 U.S. 368 (1982).
273. Id. at 381.
274. See Developments in the Law: Race and the Criminal Process, 101 HARV. L. REV. 1472, 1520 (1988), for a detailed discussion of selective prosecution claims. See also Davis, supra note 12, at 31-33 (discussing selective prosecution).
275. 368 U.S. 448 (1962).
276. Id. at 456.
277. 470 U.S. 598 (1985).
278. The Court relied on its earlier ruling in Washington v. Davis that established the requirement that plaintiffs show discriminatory purpose independent of disproportionate impact to prove a violation of the Equal Protection Clause. Id. at 608-09 (citing Washington v. Davis, 426 U.S. 229 (1976)).
279. 517 U.S. 456 (1996).
280. Id. at 468-70.
281. Id. at 465 (citing Wayte, 470 U.S. at 598).
282. Id. at 463-64.
283. 481 U.S. 279 (1987).
284. Id. In McCleskey, the Court upheld the constitutionality of Georgia's death penalty system, despite evidence that it was administered in a racially discriminatory manner. Id. at 319.
285. See id. at 311-12 ("Similarly, the capacity of prosecutorial discretion to provide individualized justice is 'firmly entrenched in American law.'") (citing 2 LAFAVE & ISRAEL, supra note 56, § 13.2(a) (1984)).
286. Wayte, 470 U.S. at 607.
287. See Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (discussing judicial review of the constitutionality of an Act of Congress).
288. See Morrison v. Olsen, 487 U.S. 654, 730-32 (1988) (Scalia, J., dissenting) (discussing the autonomy of the Independent Counsel); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 GEO. L.J. 2299, 2301 (1998) ("What a dangerous creature we have now loosed upon our system of checks and balances: an Independent Counsel, removable only for cause, who in a real sense does not answer to Congress, the executive, or the judiciary, and, worst of all, is in no way accountable to the people."); Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the Current Debate, 49 MERCER L. REV. 489, 515 (1998) ("The independence of the prosecutor cannot be guaranteed without risking the creation of an unaccountable and dangerous law enforcement agent."); Thomas W. Merrill, Beyond the Independent Counsel: Evaluating the Options, 43 ST. LOUIS U. L.J. 1047, 1067-68 (1999) (discussing the need to balance independence and accountability when designing an Independent Counsel office); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 902-03 (1999) (discussing the tension between independence and accountability for prosecutors).
289. See Morrison v. Olsen, 487 U.S. 654, 730-32 (1988) (Scalia, J., dissenting) (discussing the autonomy of the Independent Counsel); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 GEO. L.J. 2299, 2301 (1998) ("What a dangerous creature we have now loosed upon our system of checks and balances: an Independent Counsel, removable only for cause, who in a real sense does not answer to Congress, the executive, or the judiciary, and, worst of all, is in no way accountable to the people."); Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the Current Debate, 49 MERCER L. REV. 489, 515 (1998) ("The independence of the prosecutor cannot be guaranteed without risking the creation of an unaccountable and dangerous law enforcement agent."); Thomas W. Merrill, Beyond the Independent Counsel: Evaluating the Options, 43 ST. LOUIS U. L.J. 1047, 1067-68 (1999) (discussing the need to balance independence and accountability when designing an Independent Counsel office); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 902-03 (1999) (discussing the tension between independence and accountability for prosecutors).
290. See Morrison v. Olsen, 487 U.S. 654, 730-32 (1988) (Scalia, J., dissenting) (discussing the autonomy of the Independent Counsel); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 GEO. L.J. 2299, 2301 (1998) ("What a dangerous creature we have now loosed upon our system of checks and balances: an Independent Counsel, removable only for cause, who in a real sense does not answer to Congress, the executive, or the judiciary, and, worst of all, is in no way accountable to the people."); Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the Current Debate, 49 MERCER L. REV. 489, 515 (1998) ("The independence of the prosecutor cannot be guaranteed without risking the creation of an unaccountable and dangerous law enforcement agent."); Thomas W. Merrill, Beyond the Independent Counsel: Evaluating the Options, 43 ST. LOUIS U. L.J. 1047, 1067-68 (1999) (discussing the need to balance independence and accountability when designing an Independent Counsel office); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 902-03 (1999) (discussing the tension between independence and accountability for prosecutors).
291. See Morrison v. Olsen, 487 U.S. 654, 730-32 (1988) (Scalia, J., dissenting) (discussing the autonomy of the Independent Counsel); Joseph E. DiGenova, The Independent Counsel Act: A Good Time to End a Bad Idea, 86 GEO. L.J. 2299, 2301 (1998) ("What a dangerous creature we have now loosed upon our system of checks and balances: an Independent Counsel, removable only for cause, who in a real sense does not answer to Congress, the executive, or the judiciary, and, worst of all, is in no way accountable to the people."); Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the Current Debate, 49 MERCER L. REV. 489, 515 (1998) ("The independence of the prosecutor cannot be guaranteed without risking the creation of an unaccountable and dangerous law enforcement agent."); Thomas W. Merrill, Beyond the Independent Counsel: Evaluating the Options, 43 ST. LOUIS U. L.J. 1047, 1067-68 (1999) (discussing the need to balance independence and accountability when designing an Independent Counsel office); H. Richard Uviller, Poorer but Wiser: The Bar Looks Back at its Contribution to the Impeachment Spectacle, 68 FORDHAM L. REV. 897, 902-03 (1999) (discussing the tension between independence and accountability for prosecutors).
292. 487 U.S. 654, 732 (1988) (Scalia, J., dissenting).
293. See supra note 50 and accompanying text (quoting Justice Scalia's dissent).
294. Olsen, 487 U.S. at 728-29.
295. Id. at 729.
296. See Davis, supra note 12, at 18 n.13 (explaining that these prosecutorial decisions give the prosecutors more power than any other official in the criminal system).
297. Young v. United States ex rel. Vuitton Et Fils, 481 U.S. 787, 813 (1987).
298. At least one scholar argues that a prosecutor has an obligation to communicate regularly with her constituents through the press. See Scott M. Matheson, Jr., The Prosecutor, the Press, and Free Speech, 58 FORDHAM L. REV. 865, 888 (1990) ("Prosecutors are publicly accountable; their accountability is measured in part through public information about the prosecutor's office, and about particular cases. Indeed, it is generally accepted that elected prosecutors have an obligation to inform the community about the functioning of their offices.")
299. (citing David H. Hugel, Improving Prosecutor-Media Relations: The Key to Effectively Communicating Your Message to the Public, 20 PROSECUTOR, Summer 1986, at 37, 41).
300. U.S. Presidents may not serve more than two terms. U.S. CONST. amend. XXII, § 1.
301. Because the District of Columbia is not a state, local and federal crimes are prosecuted by the U.S. Attorney for the District of Columbia. D.C. CODE ANN. § 23-101 (1998).
302. Christopher Drew & Steve Daley, Washington Mayor Arrested in Videotaped Cocaine Sting, L.A. DAILY NEWS, Jan. 19, 1990, at N1, available at 1990 WL 5589890.
303. Barry was charged with fourteen counts of drug possession, conspiracy, and lying about drug activity to a grand jury. After a two-month trial, a federal jury convicted Barry of one count of cocaine possession, acquitted him of another count of possession and deadlocked on the remaining twelve drug and perjury counts. Mike Folks & Matt Neufeld, Mistrial: Jurors Falter on 12 of 14 Counts, WASH. TIMES, Aug. 11, 1990, at A1, available at LEXIS, News Library.
304. See, e.g., Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7; Jill Nelson, Backlash over Barry Case; Many Blacks Wrestling with Ambivalence, WASH. POST, June 9, 1990, at A1; Tracy Thompson & Saundra Torry, Barry Arrest Tosses Stephens into the Perils of Politics; Public Interest, Need to Protect Case Clash, WASH. POST, Jan. 26, 1990, at A1.
305. See, e.g., Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7; Jill Nelson, Backlash over Barry Case; Many Blacks Wrestling with Ambivalence, WASH. POST, June 9, 1990, at A1; Tracy Thompson & Saundra Torry, Barry Arrest Tosses Stephens into the Perils of Politics; Public Interest, Need to Protect Case Clash, WASH. POST, Jan. 26, 1990, at A1.
306. See, e.g., Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7; Jill Nelson, Backlash over Barry Case; Many Blacks Wrestling with Ambivalence, WASH. POST, June 9, 1990, at A1; Tracy Thompson & Saundra Torry, Barry Arrest Tosses Stephens into the Perils of Politics; Public Interest, Need to Protect Case Clash, WASH. POST, Jan. 26, 1990, at A1.
307. D.C. CODE ANN. § 23-101 (1998). The District of Columbia is unique in its status as a city that is not part of any state government and has no local or state prosecutor. Thus, the U.S. Attorney for the District of Columbia prosecutes local and federal crimes. Had the case been prosecuted by a locally elected prosecutor, there may have been more responsiveness to the public disapproval.
308. Morrison v. Olsen, 487 U.S. 654, 729 (1988) (Scalia, J., dissenting).
309. See Tom Raum, Bush, 'Bill, You're Not Going to Win This,' He Declares, ARIZ. REPUBLIC, Nov. 3, 1992, at A1 (describing Bush's major campaign themes); David Shribman & Jill Abramson, Winds of Change: Clinton Wins Handily as Democrats Reclaim Broad-Based Coalition, WALL ST. J., Nov. 4, 1992, at A1 (noting former President Bush's campaign themes of experience and honesty).
310. See Tom Raum, Bush, 'Bill, You're Not Going to Win This,' He Declares, ARIZ. REPUBLIC, Nov. 3, 1992, at A1 (describing Bush's major campaign themes); David Shribman & Jill Abramson, Winds of Change: Clinton Wins Handily as Democrats Reclaim Broad-Based Coalition, WALL ST. J., Nov. 4, 1992, at A1 (noting former President Bush's campaign themes of experience and honesty).
311. One can only speculate about whether the outcome would have been different with an unpopular prosecution in a jurisdiction other than the District of Columbia - where the residents always vote for the Democratic presidential candidate and have no voting representation in the U.S. Congress. See generally Jamin Raskin, Is This America? The District of Columbia and the Right to Vote, 34 HARV. C.R.-C.L. L. REV. 39 (1999) (arguing that District of Columbia residents have a constitutional right to voting representation in Congress).
312. 248. 28 U.S.C. § 503 (1994).
313. Id. § 541(a).
314. Id. § 542(a).
315. Id. § 541(c).
316. See supra notes 73-74 and accompanying text (describing how the most damaging forms of prosecutorial misconduct occur in private).
317. See supra text accompanying notes 169-80, 217-28 (describing the Supreme Court's failure to provide a remedy for prosecutorial misconduct).
318. See supra notes 12-15 and accompanying text (describing the unlimited nature of prosecutorial discretion).
319. At the county and municipal levels, more than ninety-five percent of the chief prosecutors are elected. Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY 717, 734 (1996).
320. See Davis, supra note 12, at 58 ("[T]he people's ability to hold the prosecutor accountable was quite limited. Nonetheless, the ballot box was seen as the most democratic and effective mechanism for achieving this goal.") (citing JOAN E. JACOBY, THE AMERICAN PROSECUTOR: A SEARCH OF IDENTITY (1980)).
321. "The prosecutor is often an elected official without clear accountability to any superior or any institution." Graham Hughes, Agreements for Cooperation in Criminal Cases, 45 VAND. L. REV. 1, 65 (1992) (discussing the problems with cooperation agreements and suggesting standards and supervision for prosecutors).
322. See Kenneth Gulp Davis, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 207-08 (1969): The reality is that nearly all [the prosecutor's] decisions to prosecute or not to prosecute. . . and nearly all his reasons for decisions are carefully kept secret, so that review by the electorate is nonexistent except for the occasional case that happens to be publicized. The plain fact is that more than nine-tenths of local prosecutors' decisions are supervised or reviewed by no one. Id.; see also Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?, 83 VA. L. REV. 939, 956-75 (1997) (discussing the ineffectiveness of the electoral process as a mechanism of prosecutorial accountability).
323. See Kenneth Gulp Davis, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 207-08 (1969): The reality is that nearly all [the prosecutor's] decisions to prosecute or not to prosecute. . . and nearly all his reasons for decisions are carefully kept secret, so that review by the electorate is nonexistent except for the occasional case that happens to be publicized. The plain fact is that more than nine-tenths of local prosecutors' decisions are supervised or reviewed by no one. Id.; see also Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?, 83 VA. L. REV. 939, 956-75 (1997) (discussing the ineffectiveness of the electoral process as a mechanism of prosecutorial accountability).
324. Ethics in Government Act, 28 U.S.C. § 594(c) (1994) ("For the purposes of carrying out the duties of an office of independent counsel, such independent counsel may appoint, fix the compensation, and assign the duties of such employees as such independent counsel considers necessary (including investigators, attorneys, and part-time consultants).").
325. Lorraine Adams, $52 Million Starr Probe Costliest Ever, WASH. POST, Apr. 1, 2000 at A2.
326. James B. Stewart, No One Won the Whitewater Case, N.Y. TIMES, Sept. 22, 2000, at A27.
327. See Naftali Bendavid, White House Probes Near Final Stages; No Charges from '93 Firings, CHI. TRIB., June 21, 2000, at 1 (listing Robert Ray, Kenneth Starr, Robert Friske, and Donald Smaltz as independent counsels who have investigated Clinton administration officials). These investigations targeted Labor Secretary Alexis M. Herman, Interior Secretary Bruce Babbitt, former Housing Secretary Henry Cisneros, and former Agriculture Secretary Mike Espy. Cisneros pled guilty to a misdemeanor charge of lying to the FBI, and Espy was acquitted of all charges after a jury trial. The Babbitt and Herman investigations cleared the targets of all criminal allegations.
328. David Vise, Independent Counsel Clears Labor Secretary, AUSTIN-AM. STATESMEN, Apr. 6, 2000, at A1.
329. H.R. CONF. REP. No. 103-511, at 18-19 (1994), reprinted in 1994 U.S.C.C.A.N. 792, 801-02.
330. See Morrison v. Olsen, 487 U.S. 654, 732 (1988) (Scalia, J., dissenting): How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile - with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it. Id.
331. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (asserting that U.S. Attorneys have significant discretion and often spend a disproportionate amount of time and money on cases involving celebrities or notorious conduct); Brett M. Kavanaugh, The President and the Independent Counsel, 86 GEO. L.J. 2133, 2142 n.27 (1998) (describing high profile public corruption cases in which the Justice Department has devoted extraordinary resources).
332. See Roscoe C. Howard, Jr., Wearing A Bull's Eye: Observations an the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 STETSON L. REV. 95, 141 (1999) (asserting that U.S. Attorneys have significant discretion and often spend a disproportionate amount of time and money on cases involving celebrities or notorious conduct); Brett M. Kavanaugh, The President and the Independent Counsel, 86 GEO. L.J. 2133, 2142 n.27 (1998) (describing high profile public corruption cases in which the Justice Department has devoted extraordinary resources).
333. See supra notes 240-42 (describing Barry prosecution).
334. Not everyone thought the charges were trivial. Tracy Thompson & Michael York, U.S. Won't Seek Second Barry Trial, Stephens Says He'll Push for Tougher Sentence, WASH. POST, Sept. 18, 1990, at A1. U.S. Attorney Stephens noted that the jury "in rendering a guilty verdict on one count, has held Mr. Barry responsible for his criminal conduct. He must now accept responsibility for that criminal conduct." Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7. Stephens went on to say that "Mr. Barry was held accountable for abusing the public trust as a public official." Id. See also Linda P. Campbell, Marion Barry Gets 6 Months on Drug Conviction, CHI. TRIB., Oct. 27, 1990, at 1. Judge PenfieldJackson in handing down Barry's sentence noted that, "his breach of public trust alone warrants an enhanced sentence" and that Barry's mayoral position was "of greatest significance" when he determined the severity of his sentence. Id. Then-Attorney General Richard Thornburgh refused to provide an estimated cost of the investigation. "I don't think we put a pricetag on justice," he said. Michael Isikoff, Thornburgh Denies Justice Department Singles Out Black Officials for Prosecution, WASH. POST, July 12, 1990, at A16. Other law enforcement officials estimate that cost at between $2 million and $3 million. Id. Barry claimed the cost was $50 million. Steve Twomey, Barry's $50 Million Question; Mayor's Claim Would Make His Case the Costliest in Recent History, WASH. POST, Aug. 7, 1990, at B1.
335. Not everyone thought the charges were trivial. Tracy Thompson & Michael York, U.S. Won't Seek Second Barry Trial, Stephens Says He'll Push for Tougher Sentence, WASH. POST, Sept. 18, 1990, at A1. U.S. Attorney Stephens noted that the jury "in rendering a guilty verdict on one count, has held Mr. Barry responsible for his criminal conduct. He must now accept responsibility for that criminal conduct." Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7. Stephens went on to say that "Mr. Barry was held accountable for abusing the public trust as a public official." Id. See also Linda P. Campbell, Marion Barry Gets 6 Months on Drug Conviction, CHI. TRIB., Oct. 27, 1990, at 1. Judge PenfieldJackson in handing down Barry's sentence noted that, "his breach of public trust alone warrants an enhanced sentence" and that Barry's mayoral position was "of greatest significance" when he determined the severity of his sentence. Id. Then-Attorney General Richard Thornburgh refused to provide an estimated cost of the investigation. "I don't think we put a pricetag on justice," he said. Michael Isikoff, Thornburgh Denies Justice Department Singles Out Black Officials for Prosecution, WASH. POST, July 12, 1990, at A16. Other law enforcement officials estimate that cost at between $2 million and $3 million. Id. Barry claimed the cost was $50 million. Steve Twomey, Barry's $50 Million Question; Mayor's Claim Would Make His Case the Costliest in Recent History, WASH. POST, Aug. 7, 1990, at B1.
336. Not everyone thought the charges were trivial. Tracy Thompson & Michael York, U.S. Won't Seek Second Barry Trial, Stephens Says He'll Push for Tougher Sentence, WASH. POST, Sept. 18, 1990, at A1. U.S. Attorney Stephens noted that the jury "in rendering a guilty verdict on one count, has held Mr. Barry responsible for his criminal conduct. He must now accept responsibility for that criminal conduct." Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7. Stephens went on to say that "Mr. Barry was held accountable for abusing the public trust as a public official." Id. See also Linda P. Campbell, Marion Barry Gets 6 Months on Drug Conviction, CHI. TRIB., Oct. 27, 1990, at 1. Judge PenfieldJackson in handing down Barry's sentence noted that, "his breach of public trust alone warrants an enhanced sentence" and that Barry's mayoral position was "of greatest significance" when he determined the severity of his sentence. Id. Then-Attorney General Richard Thornburgh refused to provide an estimated cost of the investigation. "I don't think we put a pricetag on justice," he said. Michael Isikoff, Thornburgh Denies Justice Department Singles Out Black Officials for Prosecution, WASH. POST, July 12, 1990, at A16. Other law enforcement officials estimate that cost at between $2 million and $3 million. Id. Barry claimed the cost was $50 million. Steve Twomey, Barry's $50 Million Question; Mayor's Claim Would Make His Case the Costliest in Recent History, WASH. POST, Aug. 7, 1990, at B1.
337. Not everyone thought the charges were trivial. Tracy Thompson & Michael York, U.S. Won't Seek Second Barry Trial, Stephens Says He'll Push for Tougher Sentence, WASH. POST, Sept. 18, 1990, at A1. U.S. Attorney Stephens noted that the jury "in rendering a guilty verdict on one count, has held Mr. Barry responsible for his criminal conduct. He must now accept responsibility for that criminal conduct." Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7. Stephens went on to say that "Mr. Barry was held accountable for abusing the public trust as a public official." Id. See also Linda P. Campbell, Marion Barry Gets 6 Months on Drug Conviction, CHI. TRIB., Oct. 27, 1990, at 1. Judge PenfieldJackson in handing down Barry's sentence noted that, "his breach of public trust alone warrants an enhanced sentence" and that Barry's mayoral position was "of greatest significance" when he determined the severity of his sentence. Id. Then-Attorney General Richard Thornburgh refused to provide an estimated cost of the investigation. "I don't think we put a pricetag on justice," he said. Michael Isikoff, Thornburgh Denies Justice Department Singles Out Black Officials for Prosecution, WASH. POST, July 12, 1990, at A16. Other law enforcement officials estimate that cost at between $2 million and $3 million. Id. Barry claimed the cost was $50 million. Steve Twomey, Barry's $50 Million Question; Mayor's Claim Would Make His Case the Costliest in Recent History, WASH. POST, Aug. 7, 1990, at B1.
338. Not everyone thought the charges were trivial. Tracy Thompson & Michael York, U.S. Won't Seek Second Barry Trial, Stephens Says He'll Push for Tougher Sentence, WASH. POST, Sept. 18, 1990, at A1. U.S. Attorney Stephens noted that the jury "in rendering a guilty verdict on one count, has held Mr. Barry responsible for his criminal conduct. He must now accept responsibility for that criminal conduct." Barton Gellman, For the U.S. Attorney, Life Goes On; Stephens Finds Himself Locally Loathed, Federally Respected, WASH. POST, Aug. 14, 1990, at A7. Stephens went on to say that "Mr. Barry was held accountable for abusing the public trust as a public official." Id. See also Linda P. Campbell, Marion Barry Gets 6 Months on Drug Conviction, CHI. TRIB., Oct. 27, 1990, at 1. Judge PenfieldJackson in handing down Barry's sentence noted that, "his breach of public trust alone warrants an enhanced sentence" and that Barry's mayoral position was "of greatest significance" when he determined the severity of his sentence. Id. Then-Attorney General Richard Thornburgh refused to provide an estimated cost of the investigation. "I don't think we put a pricetag on justice," he said. Michael Isikoff, Thornburgh Denies Justice Department Singles Out Black Officials for Prosecution, WASH. POST, July 12, 1990, at A16. Other law enforcement officials estimate that cost at between $2 million and $3 million. Id. Barry claimed the cost was $50 million. Steve Twomey, Barry's $50 Million Question; Mayor's Claim Would Make His Case the Costliest in Recent History, WASH. POST, Aug. 7, 1990, at B1.
339. Barry was convicted of one misdemeanor charge of cocaine possession, found not guilty of a second charge of cocaine possession, and acquitted of all other charges, including the cocaine offense that was recorded on videotape. Mike Folks & Matt Neufeld, Mistrial: Jurors Falter on 12 of 14 Counts, WASH. TIMES, Aug. 11, 1990, at A1.
340. The budgets for each U.S. Attorney's Office are allocated by the Department of Justice, whose budget is approved by the U.S. Congress. 28 U.S.C. § 548 (1994). Citizens of a particular U.S. Attorney's district would ordinarily express disapproval of budgetary expenditures to their senators or other congressional representatives. Since citizens of the District of Columbia have no voting representation in Congress, one might speculate that the result may have been different in another jurisdiction. However, one is hard pressed to discover examples of citizens expressing disapproval of the budgetary allocations in a particular U.S. Attorney's office.
341. See Kavanaugh, supra note 265, at 2142 n.27 (noting examples of costly cases involving well-known figures).
342. See David L. Cook et al., Criminal Caseload In U.S. District Courts: More Than Meets the Eye, 44 AM. U. L. REV. 1579, 1594-95 (1995) (asserting that increasing federal budgets allow agencies to conduct more investigations and initiate an increasing number of prosecutions).
343. See supra Part II.A (describing the failure of the electoral process mechanism of accountability). The public may or may not approve of such expenditures. The O.J. Simpson prosecution is one example of a local prosecutor devoting immense resources to one case. See Pricey Proceedings: Tallying the Trial Tab, 81 A.B.A. J. 34 (1995) (providing a breakdown of the costs in prosecuting the O.J. Simpson criminal trial, according to the Associated Press Human Resources Group, as the following: prosecutorial and investigative expense, $3.6 million; cost of food, security, and shelter for jury, $3 million; sheriffs department expenses, $2.7 million; superior and municipal court costs, $1.9 million; autopsies, $100,000). The public was undoubtedly aware of this fact due to the extraordinary national and international media coverage. It would be difficult to measure the public reaction to the prosecutor's allocation of resources to this case in light of the wide divergence of views about the case. See generally KATHERYN K. RUSSELL, THE COLOR OF CRIME 47-68 (1998).
344. See supra Part II.A (describing the failure of the electoral process mechanism of accountability). The public may or may not approve of such expenditures. The O.J. Simpson prosecution is one example of a local prosecutor devoting immense resources to one case. See Pricey Proceedings: Tallying the Trial Tab, 81 A.B.A. J. 34 (1995) (providing a breakdown of the costs in prosecuting the O.J. Simpson criminal trial, according to the Associated Press Human Resources Group, as the following: prosecutorial and investigative expense, $3.6 million; cost of food, security, and shelter for jury, $3 million; sheriffs department expenses, $2.7 million; superior and municipal court costs, $1.9 million; autopsies, $100,000). The public was undoubtedly aware of this fact due to the extraordinary national and international media coverage. It would be difficult to measure the public reaction to the prosecutor's allocation of resources to this case in light of the wide divergence of views about the case. See generally KATHERYN K. RUSSELL, THE COLOR OF CRIME 47-68 (1998).
345. See 28 U.S.C. § 593(b)(3) (1994) (establishing the scope of the Independent Counsel's prosecutorial jurisdiction); id. § 596(a)(1), (b)(1) (noting that independent counsels are to be removed from office only for good cause or when the investigation is complete); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 818-21, 829 (1999) (noting a number of criticisms of the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 484 (1996) (criticizing the unlimited time that Independent Counsel investigation is allowed to take). But see Donald Smaltz, Do Independent Counsel Probes Take Too Long?, WALL ST. J., Oct. 20, 1997, at A23 (justifying the length of Independent Counsel investigations).
346. See 28 U.S.C. § 593(b)(3) (1994) (establishing the scope of the Independent Counsel's prosecutorial jurisdiction); id. § 596(a)(1), (b)(1) (noting that independent counsels are to be removed from office only for good cause or when the investigation is complete); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 818-21, 829 (1999) (noting a number of criticisms of the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 484 (1996) (criticizing the unlimited time that Independent Counsel investigation is allowed to take). But see Donald Smaltz, Do Independent Counsel Probes Take Too Long?, WALL ST. J., Oct. 20, 1997, at A23 (justifying the length of Independent Counsel investigations).
347. See 28 U.S.C. § 593(b)(3) (1994) (establishing the scope of the Independent Counsel's prosecutorial jurisdiction); id. § 596(a)(1), (b)(1) (noting that independent counsels are to be removed from office only for good cause or when the investigation is complete); Joseph S. Hall et al., Independent Counsel Investigations, 36 AM. CRIM. L. REV. 809, 818-21, 829 (1999) (noting a number of criticisms of the Independent Counsel); Julie O'Sullivan, The Independent Counsel Statute: Bad Law, Bad Policy, 33 AM. CRIM. L. REV. 463, 484 (1996) (criticizing the unlimited time that Independent Counsel investigation is allowed to take). But see Donald Smaltz, Do Independent Counsel Probes Take Too Long?, WALL ST. J., Oct. 20, 1997, at A23 (justifying the length of Independent Counsel investigations).
348. 275. 28 U.S.C. § 593(c) (1994).
349. See supra notes 46-49 and accompanying text (explaining how the Whitewater investigation quickly grew to encompass unrelated matters).
350. See 28 U.S.C. §§ 596(b)(1)-(2) (1994) (stating rules governing termination).
351. Id. § 541(c). With the approval of President Clinton, Janet Reno removed all ninety-three U.S. Attorneys at the beginning of her tenure as Attorney General. See Jerry Seper, Reno Demands Resignations of U.S. Attorneys, WASH. TIMES, Mar. 24, 1993, at A8 (noting that most of the nation's U.S. attorneys were appointed by Presidents Reagan and Bush and that the call for their resignations was standard partisan politics); Michael York & Donald P. Baker, Washington Area to Lose 2 High Profile Prosecutors; All U.S. Attorneys Told to Tender Resignations, WASH. POST, Mar. 24, 1993, at A1 (depicting the removal of the U.S. Attorneys as routine for a new administration, while others claimed it could create turmoil within the U.S. Attorneys' offices).
352. Id. § 541(c). With the approval of President Clinton, Janet Reno removed all ninety- three U.S. Attorneys at the beginning of her tenure as Attorney General. See Jerry Seper, Reno Demands Resignations of U.S. Attorneys, WASH. TIMES, Mar. 24, 1993, at A8 (noting that most of the nation's U.S. attorneys were appointed by Presidents Reagan and Bush and that the call for their resignations was standard partisan politics); Michael York & Donald P. Baker, Washington Area to Lose 2 High Profile Prosecutors; All U.S. Attorneys Told to Tender Resignations, WASH. POST, Mar. 24, 1993, at A1 (depicting the removal of the U.S. Attorneys as routine for a new administration, while others claimed it could create turmoil within the U.S. Attorneys' offices).
353. See, e.g., CAL. CONST, art. V, § 11 (term of four years); Mo. CONST, art. V, § 7 (four years); VA. CONST, art. V, § 15 (four years).
354. See, e.g., Gerald G. Ashdown, Federalism, Federalization, and the Politics of Crime, 98 W. VA. L. REV. 789, 789-90 (1996) (discussing the history of criminal law and its federalization); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 981 n.11 (1995) (acknowledging that only a small number of federal offenses existed prior to the Civil War); Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135, 1138 (1995) (discussing the history of criminal law); see also Sara Sun Beale, Reporter's Draft for the Working Group on Principles to Use When Considering the Federalization of Criminal Law, 46 HASTINGS L.J. 1277, 1278-82 (1995) (tracing the historical evolution and expansion of the federal criminal jurisdiction).
355. See, e.g., Gerald G. Ashdown, Federalism, Federalization, and the Politics of Crime, 98 W. VA. L. REV. 789, 789-90 (1996) (discussing the history of criminal law and its federalization); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 981 n.11 (1995) (acknowledging that only a small number of federal offenses existed prior to the Civil War); Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135, 1138 (1995) (discussing the history of criminal law); see also Sara Sun Beale, Reporter's Draft for the Working Group on Principles to Use When Considering the Federalization of Criminal Law, 46 HASTINGS L.J. 1277, 1278-82 (1995) (tracing the historical evolution and expansion of the federal criminal jurisdiction).
356. See, e.g., Gerald G. Ashdown, Federalism, Federalization, and the Politics of Crime, 98 W. VA. L. REV. 789, 789-90 (1996) (discussing the history of criminal law and its federalization); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 981 n.11 (1995) (acknowledging that only a small number of federal offenses existed prior to the Civil War); Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135, 1138 (1995) (discussing the history of criminal law); see also Sara Sun Beale, Reporter's Draft for the Working Group on Principles to Use When Considering the Federalization of Criminal Law, 46 HASTINGS L.J. 1277, 1278-82 (1995) (tracing the historical evolution and expansion of the federal criminal jurisdiction).
357. See, e.g., Gerald G. Ashdown, Federalism, Federalization, and the Politics of Crime, 98 W. VA. L. REV. 789, 789-90 (1996) (discussing the history of criminal law and its federalization); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 981 n.11 (1995) (acknowledging that only a small number of federal offenses existed prior to the Civil War); Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135, 1138 (1995) (discussing the history of criminal law); see also Sara Sun Beale, Reporter's Draft for the Working Group on Principles to Use When Considering the Federalization of Criminal Law, 46 HASTINGS L.J. 1277, 1278-82 (1995) (tracing the historical evolution and expansion of the federal criminal jurisdiction).
358. See supra Part I.B.2 (discussing the breadth of prosecutorial discretion).
359. See SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND ,THE HISTORY OF ENGLISH LAW 476 (2d ed. 1923) ("To pursue the outlaw and knock him on the head as though he were a wild beast is the right and duty of every law abiding man.").
360. Id.
361. Mario M. Cuomo, The Crime Victim in a System of Criminal Justice, 8 ST. JOHN'S J. LEGAL COMMENT. 1, 4 (1992).
362. JACOBY, supra note 256, at 8.
363. Id.
364. Id.
365. See id. at 3-39 (discussing the origins and development of American prosecution); cf. POLICING & PROSECUTION IN BRITAIN, 1750-1850 (Douglas Hay & Francis Snyder eds., 1989) (containing essays debating the extent to which the system of private prosecutions served the wealthy over the poor). One justification for private prosecutions was that "[s]tate prosecutions were associated with autocratic regimes and abuses of power, while private prosecutions were seen as important safeguards of English freedom." Randall McGowen, New Directions and Old Debates in the History of English Criminal Law, 43 STAN. L. REV. 799, 799 (1991) (reviewing POLICING AND PROSECUTION IN BRITAIN, 1750-1850 (Douglas Hay & Francis Snyder, eds.).
366. See id. at 3-39 (discussing the origins and development of American prosecution); cf. POLICING & PROSECUTION IN BRITAIN, 1750-1850 (Douglas Hay & Francis Snyder eds., 1989) (containing essays debating the extent to which the system of private prosecutions served the wealthy over the poor). One justification for private prosecutions was that "[s]tate prosecutions were associated with autocratic regimes and abuses of power, while private prosecutions were seen as important safeguards of English freedom." Randall McGowen, New Directions and Old Debates in the History of English Criminal Law, 43 STAN. L. REV. 799, 799 (1991) (reviewing POLICING AND PROSECUTION IN BRITAIN, 1750-1850 (Douglas Hay & Francis Snyder, eds.).
367. See id. at 3-39 (discussing the origins and development of American prosecution); cf. POLICING & PROSECUTION IN BRITAIN, 1750-1850 (Douglas Hay & Francis Snyder eds., 1989) (containing essays debating the extent to which the system of private prosecutions served the wealthy over the poor). One justification for private prosecutions was that "[s]tate prosecutions were associated with autocratic regimes and abuses of power, while private prosecutions were seen as important safeguards of English freedom." Randall McGowen, New Directions and Old Debates in the History of English Criminal Law, 43 STAN. L. REV. 799, 799 (1991) (reviewing POLICING AND PROSECUTION IN BRITAIN, 1750-1850 (Douglas Hay & Francis Snyder, eds.).
368. JACOBY, supra note 256, at 7.
369. Id.
370. See generally Juan Cardenas, The Crime Victim in the Prosecutarial Process, 9 HARV. J.L. & PUB. POL'Y 357, 359-66 (1986) (tracing the history of the conviction in the legal process).
371. JACOBY, supra note 256, at 9.
372. Id. at 8.
373. Police officers frequently initiate prosecutorial proceedings in simple criminal cases, often presenting the charges, examining witnesses and addressing the magistrates. If the case is particularly complex, the police will hire a solicitor or barrister. The growing trend in modern England is public funding of solicitors' offices within police departments. Cardenas, supra note 291, at 363.
374. Id. at 366.
375. Id. at 367.
376. Id.
377. Id.
378. Cardenas, supra note 291, at 367-68.
379. Id. at 368-69.
380. JACOBY, supra note 256, at 18.
381. Cardenas, supra note 291, at 368.
382. Id. at 369.
383. Id. (noting that the Attorney General only initiated prosecution in cases of special importance to the Crown).
384. The Dutch system of using a schaut (a combination of a sheriff and a prosecutor) was adopted in the Dutch settlements of Connecticut, Delaware, Pennsylvania, New Jersey, and New York, while some southern colonies borrowed the Scottish practice of using a public prosecutor. Id. at 370-71; JACOBY, supra note 256, at 11-15; Abraham S. Goldstein, Prosecution: History of the Public Prosecutor, in ENCYCLOPEDIA OF CRIME AND JUSTICE 1286-87 (Sanford H. Kadish ed., 1983).
385. JACOBY, supra note 256, at 21.
386. Id.
387. JACOBY, supra note 256, at 22; Goldstein, supra note 305, at 1287.
388. Goldstein, supra note 305, at 1287 (reviewing the emergence of elected prosecutors in states).
389. See supra note 244 (explaining that because the District of Columbia is not a state, the U.S. Attorney's Office prosecutes both local and federal crimes).
390. See Goldstein, supra note 305, at 1287 (describing the history and current state of elected prosecutors).
391. Id. at 1288 (illustrating lessons learned from the electoral process).
392. Judiciary Act of 1789, ch. 20, 1 Stat. 73, 92-93.
393. "And there shall . . . be appointed . . . a meet person learned in the law to act as attorney for the United States . . . who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute [cases, except in state supreme courts]." Id. at 92. The Act also described the role of the meet person assigned as Attorney General, who shall: conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any departments, touching any matters that may concern their departments, and shall receive such compensation for his services as shall by law be provided. Id. at 93.
394. See Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 16 (1994) (discussing the framers' perception of the executive branch and arguing that they did not support a unitary, hierarchical executive).
395. Id. at 16-17 (describing the transition in supervisory roles accounting for prosecutorial oversight).
396. See id. at 17 n.65 (citing LEONARD D. WHITE, THE JEFFERSONIANS: A STUDY IN ADMINISTRATIVE HISTORY, 1801-1829, at 340 (1951)) (describing the overlapping oversight roles among three federal agencies).
397. See id. at 18-20 (detailing citizen-initiated prosecutions).
398. See JACOBY, supra note 256, at 30 (describing postwar crime and emergent state investigative roles).
399. Id. at 28 (quoting the NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT, REPORT ON PROSECUTION 11 (1931)).
400. Id. at 30.
401. Id. at 31.
402. Id.
403. JACOBY, supra note 256, at 31.
404. Id.
405. Id.
406. Id.
407. See generally James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521 (1981) (criticizing the acceptance of broad prosecutorial discretion and suggesting specific proposals for reform).
408. "[T]he colonists transmuted the British system of mixed government based on social classes to a government in which three branches, the legislative, executive, and judicial, would check each other, regardless of the social class from which the officials were drawn." Abner S. Greene, Check and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 139-40 (1994) (discussing the framers' overwhelming concern with either branch of government attaining power without sufficient checks).
409. The separation of powers is a means for "[a]mbition . . . to counteract ambition." THE FEDERALIST NO. 51, at 356 (James Madison) (Howard M. Jones ed., 1961).
410. See generally William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 484-94 (1989) (discussing federal courts' acceptance of criminal prosecution as part of the executive branch, but arguing that the framers did not intend prosecution to be an executive power); Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, 379 (1996): Thus Congress has explicitly authorized the President to appoint, by and with the Senate's advice and consent, 'an Attorney General of the United States . . . [as] the head of the Department of Justice.' The department of Justice was established by Congress in 1870 as 'an executive department of the United States. Id. (citing 28 U.S.C. §§ 501, 503 (1994)).
411. See generally William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 484-94 (1989) (discussing federal courts' acceptance of criminal prosecution as part of the executive branch, but arguing that the framers did not intend prosecution to be an executive power); Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, 379 (1996): Thus Congress has explicitly authorized the President to appoint, by and with the Senate's advice and consent, 'an Attorney General of the United States . . . [as] the head of the Department of Justice.' The department of Justice was established by Congress in 1870 as 'an executive department of the United States. Id. (citing 28 U.S.C. §§ 501, 503 (1994)).
412. See supra Part II (discussing the inadequacy of current methods of accountability). But see infra Part IV.A (discussing the Citizens Protection Act of 1998).
413. But see Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olsen and the Framers' Intent, 99 YALE L.J. 1069 (1990) (arguing that the framers may have viewed prosecution as a statutory rather than constitutional matter).
414. Lessig & Sunstein, supra note 315, at 14-22. See also Gwyn, supra note 331, at 484-94 (arguing that the framers did not view prosecution as an executive function); Harold J. Krent, Executive Control over Criminal Law
415. Lessig & Sunstein, supra note 315, at 14-22. See also Gwyn, supra note 331, at 484-94 (arguing that the framers did not view prosecution as an executive function); Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 280-81 (1989) (arguing that, from an historical perspective, criminal law enforcement cannot be considered an exclusive power of the executive branch); Peter M. Shane, The Separation of Powers and the Rule of Law: The Virtues of "Seeing the Trees," 30 WM. & MARY L. REV. 375, 379 (1989) ("That the founding generation conceptualized criminal prosecution as an inherently executive function necessarily encompassed by the vesting clause of article II is extremely unlikely.").
416. Lessig & Sunstein, supra note 315, at 15-16.
417. Id. at 22.
418. Id.
419. 338. Id. at 108-09.
420. Id. at 93-96. Originalist constitutional scholars first look to the original text of the Constitution and then to the practices of the framers to determine the meaning of a constitutional issue or doctrine. Pure originalists consider the framers the exclusive source of constitutional authority. Others examine whether changes over time might affect the framers' intent and commitments, examining both the text and the context of the Constitution. Id. at 86-87.
421. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 659 (1994) ("Contrary to Lessig and Sunstein's assertion, then, Thomas Jefferson was not the first President to assert control over prosecutors. Presidential superintendence of federal prosecution was asserted from the very beginning.") (citations omitted).
422. President George Washington's Attorney General, Edmund Randolph, lamented his lack of power over the federal prosecutors: "[T]he want of a fixed relation between the attorneys of the districts and the Attorney General[] has rendered it impossible for me to take charge of matters on which I was not authorized to give instructions." Id. at 658 (quoting LEONARD D. WHITE, THE FEDERALISTS 167 (1948)). See also Susan Low Bloch, The Early Role of the Attorney in our Constitutional Scheme: In the Beginning there was Pragmatism, 1989 DUKE L.J. 561, 585-86 (1989) (discussing Randolph's efforts to obtain more power over the federal prosecutors (then called district attorneys)).
423. President George Washington's Attorney General, Edmund Randolph, lamented his lack of power over the federal prosecutors: "[T]he want of a fixed relation between the attorneys of the districts and the Attorney General[] has rendered it impossible for me to take charge of matters on which I was not authorized to give instructions." Id. at 658 (quoting LEONARD D. WHITE, THE FEDERALISTS 167 (1948)). See also Susan Low Bloch, The Early Role of the Attorney in our Constitutional Scheme: In the Beginning there was Pragmatism, 1989 DUKE L.J. 561, 585-86 (1989) (discussing Randolph's efforts to obtain more power over the federal prosecutors (then called district attorneys)).
424. Calabresi & Prakash, supra note 340, at 659.
425. Id. at 661.
426. "Prosecution is not among the list of enumerated executive powers." Lessig & Sunstein, supra note 315, at 70.
427. Id. at 94.
428. THE FEDERALIST No. 74 (Alexander Hamilton). But see Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1166 (1992) (describing a theory of the unitary executive that allows the chief executive to maintain control through the power to veto the discretionary decisions of his subordinates). The framers' support for a strong unitary executive must be viewed in light of the limited powers they gave to the executive. Greene, supra note 329, at 125. Those limited powers are worlds apart from the modern prosecutor's broad powers and exercise of vast prosecutorial discretion unchecked by either the courts or the legislature.
429. THE FEDERALIST No. 74 (Alexander Hamilton). But see Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1166 (1992) (describing a theory of the unitary executive that allows the chief executive to maintain control through the power to veto the discretionary decisions of his subordinates). The framers' support for a strong unitary executive must be viewed in light of the limited powers they gave to the executive. Greene, supra note 329, at 125. Those limited powers are worlds apart from the modern prosecutor's broad powers and exercise of vast prosecutorial discretion unchecked by either the courts or the legislature.
430. See supra note 294 (describing police procedure in England); Krent, supra note 334, at 310 (same).
431. See John S. Baker, State Police Powers and the Federalization of Local Crime, 72 TEMP. L. REV. 673 (1999) (discussing how the founders would have been surprised to learn of the extensive and complex role the federal government has undertaken in the area of criminal law).
432. But see Krent, supra note 334, at 311 (citing L.B. Schwarz, Federal Criminal Jurisdiction and Prosecutorial Discretion, 13 LAW & CONTEMP. PROBS. 64, 64-66 (1948), and arguing that the expansion of federal criminal laws calls for greater exercise of prosecutorial discretion).
433. Id.
434. The framers clearly opposed unrestrained executive power, associating it with the tyrannical power of the King. See Lessig & Sunstein, supra note 315, at 13 (citing GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 521 (1969)) (discussing the hierarchy of the federal government).
435. See supra notes 340-44 and accompanying text (discussing the change in the role the federal prosecutor has played in criminal law). Professor Abner Greene argues that the principle behind the checks and balances structure conflicts with the norm of accountability. Greene, supra note 329, at 177. That is, the strong unitary executive is the paradigm of accountability because the people will know exactly who to blame if they are dissatisfied. On the other hand, the division of power between the three branches of government epitomizes the checks and balances structure and spreads accountability among many. Professor Greene argues that the framers sacrificed accountability to ensure against the dominance of any one branch. Id. Of course, one could view the division of powers as a form of accountability, with each branch checking overreaching by the others.
436. The Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 2017-2034 (codified at 28 U.S.C. § 991 (1994)), established the federal sentencing guidelines. These guidelines eliminated judicial discretion at the sentencing stage, effectively causing the prosecutor's charging and plea bargaining decisions to be the determinants of the outcome in many criminal cases. Davis, supra note 12, at 23-24; see also Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. REV. 105, 149 (1994) (discussing the immense discretion of prosecutors in determining whether a defendant will be sentenced to a mandatory minimum sentence under the guidelines).
437. 28 U.S. C. § 530B (Supp. IV 1998).
438. Id.
439. Memorandum from Richard Thornburgh (June 8, 1989), reprinted in In re Doe, 801 F. Supp. 478, 489 (D.N.M. 1992).
440. Id. at 493; see generally Elkan Abramowitz, Ex Parte Contacts from the Justice Department, N.Y.L.J. at 3 (Mar. 3, 1998) (describing the Thornburgh memo and various cases in which courts rejected the government's arguments in support of the memo).
441. MODEL RULES OF PROF'L CONDUCT R. 4.2 (1983); MODEL CODE OF PROF'L RESPONSIBILITY DR 7-102 (1969).
442. MODEL RULES OF PROF'L CONDUCT R. 4.2 (1983); MODEL CODE OF PROF'L RESPONSIBILITY DR 7-102 (1969).
443. Allan Van Fleet, How Government Lawyers Tilt the Ethical Playing Field, 13 FALL ANTITRUST 13, 13 (1998).
444. See, e.g., United States v. Hammad, 846 F.2d 854 (2d Cir.), modified, 858 F.2d 834 (2d Cir. 1988), aff'd on reh'g, 902 F.2d 1062 (2d Cir. 1990), cert. denied, 498 U.S. 871 (1990); United States v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff'd, 54 F.3d 825 (D.C. Cir. 1995); United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991), vacated and remanded, 989 F.2d 1032 (9th Cir. 1993), superseded, 4 F.3d 1455 (9th Cir. 1993).
445. See Communications with Represented Persons, 28 C.F.R. Pt. 77 (1995) (superseded by 28 U.S.C. § 530B (Supp. IV 1998) (Citizens Protection Act)).
446. See id. at 39929. Except as provided in this part or as otherwise authorized by law, an attorney for the government may not communicate, or cause another to communicate, with a represented party who the attorney for the government knows is represented by an attorney concerning the subject matter of the representation without the consent of the lawyer representing such party. Id. The regulation then goes on to describe numerous exceptions permitting communications with represented individuals. Id. at 39929-30. For a discussion of the Justice Department's justifications for this rule, see Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, 369-75 (1996) (discussing the difficulties faced by federal prosecutors with cases in numerous states in light of the nonuniformity of state ethical rules and federal court applications of these rules).
447. See United States v. McDade, No. 92-249, 1992 WL 187036 (E.D. Pa. July 30, 1992) (denying the motion to dismiss). During the pendency of his case, Congressman McDade filed a motion to dismiss the indictment, claiming that the prosecutor had a conflict of interest that amounted to prosecutorial misconduct. Specifically, he claimed that the prosecutor in his case previously had worked for Senator Arlen Specter and that this relationship caused him to ignore similar allegations against Senator Specter and focus on Congressman McDade. Ethical Standards for Federal Prosecutors Act of 1996: Hearing on H.R. 3386 Before the Subcomm. on Courts and Intellectual Prop. of the House Comm. on the Judiciary, 104th Cong. 8-10 (1996) (statement of Rep. McDade).
448. Act of Oct. 21, 1998, Pub. L. No. 105-277, § 801, 112 Stat. 2681-118 (providing ethical standards for federal prosecutors). An earlier version of the law included a list of ten acts of punishable prosecutorial misconduct, sanctions for prosecutorial misconduct, and a provision to create a "Misconduct Review Board" appointed by the President of the United States and leaders of both the House and Senate. See Fred C. Zacharias & Bruce A. Green, The Uniqueness of Federal Prosecutors, 88 GEO. L.J. 207, 214-15 n.47 (2000) (discussing the legislative history of the bill).
449. 112 Stat. at 2681-118.
450. The Justice Department's opposition to the law mirrored its justification for the Thornburgh memo and the Reno Rule, namely that the law would "handcuff federal prosecutors by requiring them to follow contradictory state laws, instead of federal guidelines, especially in multistate investigations. The department also claimed that the law would impede legitimate undercover investigations such as court-authorized electronic surveillance and wiretapping. See Jerry Seper, Justice Wants New Law Changed Says it Will Hinder Prosecutor's Work, WASH. TIMES, Feb. 5, 1999, at A11.
451. But see Chitra Ragavan, Federally Speaking, a Fine Kettle of Fish, U.S. NEWS & WORLD REF., Oct. 16, 2000, at 32 (discussing Oregon U.S. Attorney's concern that she can no longer authorize undercover activities by federal law enforcement agents in light of the Oregon Supreme Court ruling forbidding all lawyers from urging or encouraging others to lie or misrepresent themselves).
452. State prosecutors handle the bulk of criminal cases, with federal prosecutors handling less than six percent of all criminal litigation. See Rory K. Little, Myths and Principles of Federalization, 46 HASTINGS L.J. 1029, 1031 n.5 (1995) (discussing the history and development of the federalization of crime and supporting a rebuttable presumption against it).
453. See supra notes 356-61 and accompanying text (discussing the Thornburg memo); see also Rosen, supra note 95, at 703-08 (arguing that disciplinary action against prosecutors who commit Brady violations is virtually nonexistent).
454. See supra note 238 and accompanying text (suggesting that it is often up to the prosecutors themselves to reveal information to the public).
455. See Zacharias & Green, supra note 364, at 217-19 (discussing the lack of clarity on whether the Act applies only to state ethical rules).
456. See United States v. Lowery, 166 F.3d 1119 (11th Cir.), reh'g en banc denied, 180 F.3d 276 (11th Cir. 1999), cert. denied, 120 S. Ct. 212 (1999) (holding that the Act does not require exclusion of otherwise admissible evidence in federal court even if it is obtained in violation of state professional conduct rules).
457. See supra Part I.B (noting the vast opportunity for the exercise of discretion in a prosecution).
458. See generally Davis, supra note 12, at 18-19 (proposing the implementation and publication of racial impact studies to discover the existence of racial disparities in prosecution offices).
459. When Philadelphia District Attorney Lynn Abraham released information about her opponent Jack McMahon's use of racially offensive tactics in a training video, McMahon was highly criticized and ultimately defeated. Linda Loyd, D. A. Defends Her Release of Videotape, PHILA. INQUIRER, Apr. 4, 1997, at A1.
460. See supra notes 217-23 and accompanying text (noting the court's hesitation in examining the decision of whether to prosecute).
461. See Vorenberg, supra note 12, at 1562-64 (explaining that many prosecution offices do not have written policies governing the implementation of their responsibilities); supra note 217 and accompanying text (discussing selective prosecution).
462. See generally MICHAEL TONRY, MALIGN NEGLECT - RACE, CRIME AND PUNISHMENT IN AMERICA (1995) (arguing that politicians dishonestly use the issue of crime for political gain).
463. See Howard Pankratz, Bomb Trial Cost $82.5 Million, DENVER POST, Nov. 3, 1998, at B3, available at http://www.denverpost.com/bomb/bomb1103.htm (noting that the costs to defend McVeigh and Nichols approached $15 million).
464. Id.
465. Andrew Cohen, Bomb Cases Were Worth It, DENVER POST, Nov. 8, 1998, at H2.
466. Pankratz, supra note 379, at B3 (noting that the federal government spent roughly $82.5 million prosecuting Timothy McVeigh and Terry Nichols).
467. For a discussion of the role and function of community prosecution, see Norma Mancini Stevens, Defining Community Prosecution, 28 PROSECUTOR, Mar.-Apr. 1994, at 13. See also Douglas F. Gansler, Implementing Community Prosecution in Montgomery County, Maryland, 34 PROSECUTOR, July-Aug. 2000, at 30; Eric H. Holder, Jr., Community Prosecution, 34 PROSECUTOR, May-June 2000, at 31.
468. For a discussion of the role and function of community prosecution, see Norma Mancini Stevens, Defining Community Prosecution, 28 PROSECUTOR, Mar.-Apr. 1994, at 13. See also Douglas F. Gansler, Implementing Community Prosecution in Montgomery County, Maryland, 34 PROSECUTOR, July-Aug. 2000, at 30; Eric H. Holder, Jr., Community Prosecution, 34 PROSECUTOR, May-June 2000, at 31.
469. For a discussion of the role and function of community prosecution, see Norma Mancini Stevens, Defining Community Prosecution, 28 PROSECUTOR, Mar.-Apr. 1994, at 13. See also Douglas F. Gansler, Implementing Community Prosecution in Montgomery County, Maryland, 34 PROSECUTOR, July-Aug. 2000, at 30; Eric H. Holder, Jr., Community Prosecution, 34 PROSECUTOR, May-June 2000, at 31.
470. Gansler, supra note 383, at 32.
471. H.R. 3396, 105th Cong. (1998).
472. The ten specified acts of misconduct were the following: (1) in the absence of probable cause seek the indictment of any person; (2) fail promptly to release information that would exonerate a person under indictment; (3) intentionally mislead a court as to the guilt of any person; (4) intentionally or knowingly misstate evidence; (5) intentionally or knowingly alter evidence; (6) attempt to influence or color a witness' testimony; (7) act to frustrate or impede a defendant's right to discovery; (8) offer or provide sexual activities to any government witness or potential witness; (9) leak or otherwise improperly disseminate information to any person during an investigation; (10) engage in conduct that discredits the Department. Id. § 201(a).
473. Id. § 201(b).
474. See generally STANDARDS FOR CRIMINAL JUSTICE (3d ed. 1993) (delineating such standards).
475. See MARC MAUER, RACE TO INCARCERATE 19 (1999) (describing the United States as the second leading country in the world in its rate of incarceration).
476. See Trial & Error, CHI. TRIB. INTERNET EDITION, at http://wellengaged.com/engaged/ discussion.cgi?c=nation&f=0&t=192 (last visited Mar. 6, 2000) (listing Tribune reader responses to the Chicago Tribune's five-part series on prosecutorial misconduct on a bulletin board at the newspaper's website).