In the past, I have written a significant number of posts about how the independent counsel procedure might be improved and employed. See, e.g. here and here. Here is another one. One problem with the independent counsel is that it focuses on criminal violations. The IC focuses on whether an individual violated the criminal law, should be prosecuted, and imprisoned. Sure some people violate criminal statutes and should be punished. But it is often more important to determine whether laws were violated than to put a politician in jail. Yet, the IC does not investigate the former. There is a way that…
One of the most interesting aspects of the Trump candidacy is the way in which it involves a Republican (or, if you will, the Republican nominee) employing tactics or promoting programs that are related in some way to those used by the Democrats at times. This makes Trump much less attractive to those who favor limited government. But it raises the question whether he might be able—unintentionally of course—to raise the consciousness of the Democrats to the problems with their approach.
Start with strong executive power. President Obama and the Democrats embrace strong executive power. There are many reasons for this. One is that the Democrats want a government that can pass large numbers of regulations and is quick-acting. Another is that the Democrats do not want to be limited by the public opinion constraints of the legislature. But, of course, executive power is dangerous and is problematic, especially when one is on the receiving end of it.
While Republican Presidents have used executive power, they have not used it—especially in the domestic sphere—to the extent that Democrats have. And they have not played as fast and loose with the law as President Obama has.
Many people have the impression, not without reason, that a President Trump would be willing to aggressively use executive power. This concerns the Democrats, especially since much of Trump’s agenda is anathema to them. Could this persuade the Democrats that executive power is a dangerous thing that should be constrained? It is hard to say, but if Trumpian executive power doesn’t persuade them, what would?
In my last post, I noted how the Supreme Court worked hard to hold the Independent Counsel statute to be constitutional, presumably on the ground that it was essential good government, only to find the political system rejecting it as poor policy a decade later. In this post, I criticize some of the arguments the Supreme Court used to hold the statute constitutional.
One key feature involved the appointment of the Independent Counsel. The statute provided that the IC would be appointed by a court. This appointment method would be constitutional only if the IC were an inferior officer, since the Constitution requires that superior (or non-inferior) officers must be appointed by the President with the advice and consent of the Senate.
Thus, the Supreme Court argued that the IC was an inferior officer, claiming that four factors suggested the result. The argument here really was quite laughable. The IC is an extremely important position and the IC is not subject to the supervision of anyone in the government. The idea that the IC was an inferior officer, who was not important enough to require senatorial consent, was absurd. When Ken Starr was investigating Bill Clinton, he was arguably the second most important officer in the entire government (after the President). Yet, the Court treated his position as that of an inferior officer. If that is not bad enough, the Court actually argued that the conclusion that the IC was an inferior officer was clearly true and therefore it was unnecessary for the court to draw a more precise line.
Having addressed the constitutional issues, I now turn to the policy issues Would it be a good idea to have a new IC statute? This is a complicated issue and not one I have fully made my mind up about. But if Congress were to enact a new IC statute, I believe there is a reform that would significantly improve its operation as compared to the old statute.
The biggest problem with the old IC statute is the incentives it gave to the IC. If one is appointed to be an IC, there is a sense in which one is only successful if one hauls in a big fish – if one prosecutes and convicts someone for a significant crime. Moreover, the IC has only one task – to investigate a single target – in contrast to a normal prosecutor who has many other possible prosecutions to investigate. Consequently, the IC has more time and resources to devote to the one target. These considerations provide the IC with an excessive incentive to prosecute the person they are investigating.
There is a way to address this problem. There should be two ICs that undertake the task of investigating and prosecuting an official. The first IC’s job should be to investigate. At the conclusion of his investigation, he should issue a report which makes the following determinations: (1) whether there were any violations of federal law, and if so, (2) whether based on normal standards of prosecutorial discretion, those violations should be prosecuted. If the prosecutor concludes that violations should be prosecuted under (2), then he refers these violations to the second IC, who can only prosecute these violations.
Former Iran Contra Independent Counsel Lawrence Walsh recently passed away at the age of 102. While I know it is not the nicest thing to speak ill of those who have just died, I cannot let this occasion pass. I highly doubt that any of Walsh’s loved ones will read this and Walsh committed a genuinely heinous act for which he has borne very little negative publicity.
While I was not a big fan of the Independent Counsel statute, the problem with Walsh was how he behaved as independent counsel. Walsh may have committed one of the most consequential misdeeds in the history of criminal prosecutors, and the amazing thing is so few people remember or know about this. Walsh may very well have changed the result of the 1992 Presidential election between George Bush, Bill Clinton, and Ross Perot.
Walsh was investigating the Iran Contra scandal and he had spent six years with little to show for it. After this period, he was seeking to indict former Secretary of Defense Caspar Weinberger. Walsh initially indicted Weinberger in June of 1992, but the indictment was thrown out on technical grounds. (I base the following description on a book by Lanny Davis, a political associate of Bill Clinton.)