Over the past several years, I have given some thought to the old independent counsel statute. I have argued that the statute both had constitutional and policy defects. Here I want to elaborate a bit more on one of the alleged defects.
One of the problems with the independent counsel (IC) is that this official seemed to be too powerful. The IC would investigate, would usually find some type of violation, and then could prosecute. The defendant would then be faced with the risk of a criminal trial and a severe sanction or would be pressured into a plea bargain. Either way, it was extremely problematic and placed the defendant in a horrible situation.
This aspect of the system was seen as part of a system that criminalized policy differences. The IC was given the power to force many government officers into this horrible situation. And because the statute gave the IC an incentive to prosecute –the IC was judged as to whether he hauled in the big fish and had no other responsibilities, allowing him to focus entirely on the defendant – this made matters worse.
I have tried to address this problem by offering a fix that would divide the powers of the IC in two, so as to improve the incentives of the IC. But even if these incentives were improved, people might still regard the IC as problematic. While the IC would then have no worse incentives than any other federal prosecutor, he would still have the power to impose so much harm on these government officials, without it being clear that they really engaged in criminal activity.
But while the IC would have this power, it is not clear that this represents an important criticism of having an IC. The reason is that this is arguably the situation that faces all Americans every day. If for some reason a federal prosecutor decides to target you, then you are in an extremely problematic situation – the same one that these government officials are in. That is a very bad thing. Moreover, because high government officials are not normally targeted by federal prosecutors, these influential people are given no incentive to address the problems of this system.
In the end, it is not clear what to do. One does not want to extend an unfair system to cover more people, but that might be a step in the direction of reforming the system.