Some observers have been shocked by Independent Counsel Kenneth Starr’s prosecutorial intrusion into the private life of President Clinton at a critical moment of our international affairs. They deplore his use of his powers in order to pursue possible misstatements in an ongoing private civil lawsuit. Such disapproving observers divide between those who blame Starr himself, those who blame the Independent Counsel Act, and those who blame both. How are we to assess such claims?
In the outrage following the “Saturday Night Massacre,” when Archibald Cox, in the middle of his investigation of President Nixon, was abruptly discharged by the acting attorney general on orders from the President, Congress passed the Independent Coun-sel Act to protect future independent counsels from arbitrary dismissal. While permitting removal of an independent counsel by an attorney general, the act required that the attorney general show appropriate cause for such removal and that the removal be subject to review by the United States District Court for the District of Columbia.
The statute went beyond this protection, however, and made it mandatory that the attorney general request the appointment of an independent counsel whenever he or she receives specific and credible evidence that the president (or other high-ranking officer in the executive branch of government) “may have violated any federal criminal law (other than certain misdemeanors).” This has been interpreted to apply to alleged misconduct by a high-ranking federal officer prior to his election or appointment and to misconduct unrelated to the discharge of the duties of his office—e.g., Whitewater, concerning a financial transaction several years before President Clinton’s first election. It has also been interpreted to apply to the investigation and prosecution of former Associate Attorney General Webster Hubbell for misconduct prior to his appointment to federal office, and to the investigation of President Carter’s chief of staff for alleged use of a forbidden drug.
The statute preserves the duty, which the attorney general has always had, to disqualify the Department of Justice from pursuing an investigation, and to substitute an independent counsel, if he or she perceives a conflict of interest. In any of these cases, if the attorney general concludes that there are “reasonable grounds to believe that further investigation is warranted,” he or she must request a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit to select the independent counsel. While the attorney general must supply the appointing court with information to assist it, the actual definition of the prosecutorial jurisdiction is left to the court.
If, after appointment, the independent counsel receives information about a federal criminal law violation not included within his original prosecutorial jurisdiction, he may submit this information to the attorney general, who is then required to conduct a preliminary investigation and determine whether to approve the extension of jurisdiction. In making this decision, the attorney general must accord “great weight” to the…
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