Independent Counsel

Under the Ethics Act, the process of appointing independent counsel began when the attorney general received information on criminal activity. The attorney general could investigate all violations of CRIMINAL LAW other than minor misdemeanors and minor violations. This permission included special ethics laws that applied to Executive Branch officials, such as laws that make it illegal for an Executive Branch official to receive money from a person if the official has arranged for that person to be employed by the federal government.

There had to be sufficient credible information of criminal activity to constitute grounds for an investigation, and the information had to pertain to the president, the vice president, a member of the president's cabinet, a high-level executive officer, a high-level Justice Department official, the director or deputy director of the CENTRAL INTELLIGENCE AGENCY, the commissioner of the Internal Revenue Service, any person with a personal or financial relationship with the attorney general or any other officer in the Department of Justice, or the president's campaign chair or treasurer.

Once the attorney general received credible inculpatory information, the attorney general had to decide within 30 days whether to investigate the matter. If the attorney general determined that the matter warranted an investigation, he had to begin an investigation. The attorney general could not conduct this initial investigation for more than 150 days. At the close of the investigation, the attorney general submitted a report to the Independent Counsel Division of the U.S. Court of Appeals for the District of Columbia Circuit. The members of this three-judge panel were appointed by the chief justice of the U.S. Supreme Court.

In the report, the attorney general requested or declined the appointment of independent counsel on the matter. A court could not review this decision. If the attorney general requested independent counsel, the panel appointed one and defined the scope of the investigation. Generally, the panel limited the counsel's investigation to certain persons or certain issues.

The appointment of independent counsel was unusual because the Department of Justice already is required to police the Executive Branch. In theory, the attorney general is an independent official. In practice, however, he usually is a political ally of the president. Like other Executive Branch officials, the attorney general is appointed by the president and reports to the president. Because the attorney general decided whether independent counsel should be appointed by the panel, an investigation could be influenced by the Executive Branch. An attorney general might have been reluctant to recommend the prosecution of a political ally. However, if enough sources exerted sufficient pressure, the attorney general could be forced to avoid the appearance of favoritism by requesting the appointment of independent counsel.

The appointment of independent counsel was often politically charged, in large part because independent counsel investigated Executive Branch officials and their political opera-tives. When politicians are investigated, an invariable response is that the investigation is politically motivated. Nevertheless, most politicians considered independent counsel to be crucial to conveying at least the appearance of propriety in the Executive Branch of government. The danger of independent counsel is that they may be called for on a regular basis by politicians who are opposed to the president, for the sole purpose of demoralizing the Executive Branch and gaining an electoral advantage.

Once appointed, independent counsel could proceed as any other prosecutor. Counsel filed criminal charges in the U.S. District Court for the District of Columbia and had the power to subpoena witnesses, and to grant IMMUNITY to witnesses.

Under the Ethics Act, only the attorney general could fire independent counsel. Independent counsel could be dismissed only for good cause or because a physical or mental condition prevents counsel from performing the position's duties. Dismissed independent counsel had the right to appeal to the U.S. District Court for the District of Columbia.

The first government officials investigated under the new Ethics Act were two officials in the administration of President JIMMY CARTER. After investigating allegations of drug use and conflict of interest, the independent counsel declined to file criminal charges.

In May 1986 an official in the administration of President RONALD REAGAN mounted a challenge to the Ethics Act. Theodore B. Olson, a former assistant attorney general in the administration (and now solicitor general), argued that the Executive Branch had the power to conduct all criminal investigations, and that it was unconstitutional for Congress to give the judiciary the power to appoint independent prosecutors. The U.S. Supreme Court disagreed, ruling that the Ethics Act was constitutional because the attorney general, an officer within the Executive Branch, had the power to remove independent counsel and therefore retained ultimate control (Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 [1988]).

The list of federal government officials investigated or prosecuted by independent counsel under the Ethics Act is long and ever growing. In December 1987, Michael Deaver, former aide to President Reagan, was convicted of perjury after prosecution by independent counsel. In February 1988, Lyn Nofziger, another presidential aide, was convicted of ethical violations. Nofziger's conviction was later overturned on appeal. President Reagan's attorney general EDWIN MEESE III resigned in July 1988 after an investigation by independent counsel James McKay. Although Meese was not prosecuted, McKay stated in his report to the panel that he believed that Meese had broken the law by helping a company in which Meese owned stock, Wedtech Corporation, to solicit contracts with the U.S. military.

In December 1986, before he resigned, Meese appointed Lawrence E. Walsh as independent counsel to investigate and prosecute wrongdoing in the burgeoning IRAN-CONTRA SCANDAL, which involved trading arms to Iranians and diverting the proceeds to fund a covert war in Nicaragua. Walsh was able to obtain several convictions of high-level Reagan administration officials, but some of those were overturned on appeal.

The administration of President BILL CLINTON was heavily investigated by independent counsel. In 1994, Donald C. Smaltz was appointed as independent counsel to investigate Clinton's secretary of agriculture Mike Espy. The independent counsel was directed to investigate whether Espy had accepted gifts from organizations and individuals with business pending before the AGRICULTURE DEPARTMENT and whether Espy had committed any crimes connected to, or arising out of, the investigation, such as OBSTRUCTION OF JUSTICE and false testimony or statements.

In October 1994, just a few months after Smaltz began work, Espy resigned his office. Nevertheless, the investigation of Espy and several associates continued. Over the next four years, Smaltz spent more than $17 million to bring 30 counts of corruption against Espy. At Espy's 1998 trial, Smaltz produced 70 prosecution witnesses, yet a jury took just nine hours to acquit Espy on all 30 counts.

In January 1994, Robert Fiske Jr. was appointed as independent counsel to investigate the death of White House counsel Vincent Foster and alleged financial misconduct by Clinton and the first lady, HILLARY RODHAM CLINTON. Because the Ethics Act had lapsed, Attorney General JANET RENO herself chose Fiske. When Congress reauthorized the Ethics Act, Reno submitted the matter to the panel, which appointed a new independent counsel, KENNETH W. STARR.

Starr, a former U.S. solicitor general and U.S. district court judge, worked on the Clinton investigation until 1999. He obtained convictions against a number of Clinton associates, but it was not until 1998 that he ensnared President Clinton. Allegations of a sexual affair with a White House intern shifted Starr's work. In January 1998, Clinton was deposed for the SEXUAL HARASSMENT lawsuit filed by Paula Jones. At the deposition, Clinton denied that there had been a sexual relationship with intern Monica Lewinsky. In August 1998, he changed his story when

Independent Counsel Ken Starr's report to the House of Representatives in 1998 led to the impeachment of President Clinton.
AP/WIDE WORLD PHOTOS

called before Starr's GRAND JURY, but he still would not give details. In the fall, Starr sent his report to the House of Representatives and testified before a House panel. Starr accused the president of having had a sexual affair with the intern. The report, which contained graphic sexual descriptions from Lewinsky, claimed that Clinton had committed perjury and obstruction of justice, and that he had abused his PRESIDENTIAL POWER in an effort to keep the affair from coming to light. This report led to the House passing ARTICLES OF IMPEACHMENT in December 1998. Clinton was acquitted of the charges by the Senate in February 1999.

By the end of Starr's investigation, very few people in Congress or the White House had positive feelings about the Ethics in Government Act. The 1980s and 1990s had seen independent counsel spend years and millions of dollars on seemingly open-ended investigations of official misconduct, usually with little to show for it. Even Starr agreed that the law should expire, testifying to that effect before Congress in April 1999. With no congressional support for its continuation, the act was allowed to expire on June 30, 1999. Although bills have been introduced seeking to curtail the powers of future independent counsel while requiring greater accountability, Congress has not acted.