[Senate Hearing 106-131]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 106-131

 
                     THE FUTURE OF THE INDEPENDENT
                              COUNSEL ACT

=======================================================================


                                HEARINGS

                               BEFORE THE

                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

            FEBRUARY 24, MARCH 3, 17, 24, AND APRIL 14, 1999

                               __________

      Printed for the use of the Committee on Governmental Affairs


                                


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               THE FUTURE OF THE INDEPENDENT COUNSEL ACT
                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware       JOSEPH I. LIEBERMAN, Connecticut
TED STEVENS, Alaska                  CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine              DANIEL K. AKAKA, Hawaii
GEORGE V. VOINOVICH, Ohio            RICHARD J. DURBIN, Illinois
PETE V. DOMENICI, New Mexico         ROBERT G. TORRICELLI, New Jersey
THAD COCHRAN, Mississippi            MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania          JOHN EDWARDS, North Carolina
JUDD GREGG, New Hampshire
             Hannah S. Sistare, Staff Director and Counsel
                       Fred Ansell, Chief Counsel
                           Ash Jain, Counsel
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
                       Lynn L. Baker, Chief Clerk



                            C O N T E N T S

                                 ------                                
                                                                   Page
Opening statements:
    Senator Thompson..............................1, 141, 237, 325, 413
    Senator Lieberman.............................6, 142, 241, 326, 416
    Senator Stevens..............................................    10
    Senator Levin...............................................10, 346
    Senator Collins..............................................    16
    Senator Durbin..............................................17, 273
    Senator Domenici.............................................    19
    Senator Cleland..............................................    20
    Senator Cochran..............................................    21
    Senator Akaka..........................................21, 270, 350
    Senator Torricelli..........................................23, 276
    Senator Specter........................................42, 266, 344
    Senator Edwards.............................................44, 279

                               WITNESSES
                      Wednesday, February 24, 1999

Hon. Howard H. Baker, Jr., Former Senate Majority Leader.........    26
Hon. Griffin B. Bell, Former U.S. Attorney General...............    28
Joseph E. diGenova, Independent Counsel, Clinton Passport File 
  Investigation..................................................    56
Arthur H. Christy, Special Prosecutor, Hamilton Jordan 
  Investigation..................................................    64
Hon. Curtis Emery Von Kann, Independent Counsel, Eli Segal 
  Investigation, Americorps Chief................................    73

                        Wednesday, March 3, 1999

Robert S. Bennett, Skadden, Arps, Slate, Meagher and Flom........   144
Nathan Lewin, Miller, Cassidy, Larroca and Lewin.................   153
George Beall, Hogan and Hartson..................................   187
Henry Ruth, Former Special Prosecutor, Watergate Special 
  Prosecution Force..............................................   194
Robert B. Fiske, Jr., Davis, Polk and Wardwell...................   198

                       Wednesday, March 17, 1999

Hon. Janet Reno, Attorney General, U.S. Department of Justice....   242
John Q. Barrett, Assistant Professor of Law, St. John's 
  University, New York, New York, and Former Associate 
  Independent Counsel, Iran-Contra Investigation.................   283
Philip B. Heymann, James Barr Ames Professor of Law, Harvard 
  University, Cambridge, Massachusetts, and Former Deputy 
  Attorney General, U.S. Department of Justice, and Former 
  Watergate Special Prosecutor...................................   291
Charles G. La Bella, Former Supervising Attorney, Campaign 
  Financing Task Force...........................................   294

                       Wednesday, March 24, 1999

Lawrence E. Walsh, Former Independent Counsel, Iran-Contra 
  Investigation..................................................   329
Samuel Dash, Former Chief Counsel to the Senate Watergate 
  Committee and Former Ethics Advisor to Whitewater Independent 
  Counsel Kenneth Starr..........................................   355
Julie Rose O'Sullivan, Former Assistant Prosecutor, Whitewater 
  Investigation and Professor of Law at Georgetown University Law 
  Center.........................................................   364
Kenneth G. Gormley, Professor of Law, Duquesne University........   371

                       Wednesday, April 14, 1999

Hon. Kenneth W. Starr, Independent Counsel.......................   419
Hon. Richard D. Cudahy, Member, Special Division of the Court of 
  Appeals........................................................   473
Hon. David B. Sentelle, Presiding Judge, Special Division of the 
  Court of Appeals...............................................   474
Hon. Peter T. Fay, Member, Special Division of the Court of 
  Appeals........................................................   481

                     Alphabetical List of Witnesses

Baker, Hon. Howard H. Jr.:
    Testimony....................................................    26
    Prepared statement...........................................    28
Barrett, John Q.:................................................
    Testimony....................................................   283
    Prepared statement...........................................   286
Beall, George:...................................................
    Testimony....................................................   187
    Prepared statement...........................................   189
Bell, Hon. Griffin B.:...........................................
    Testimony....................................................    28
    Prepared statement...........................................    30
Bennett, Robert S.:
    Testimony....................................................   144
    Prepared statement...........................................   149
Christy, Arthur H.:
    Testimony....................................................    64
    Prepared statement with an attachment........................    65
Cudahy, Hon. Richard D.:
    Testimony....................................................   473
Dash, Samuel:
    Testimony....................................................   355
    Prepared statement...........................................   358
diGenova, Joseph E.:
    Testimony....................................................    56
    Georgetown Law Review Article submitted as prepared statement    59
Fay, Hon. Peter T.:
    Testimony....................................................   481
Fiske, Robert B. Jr.:
    Testimony....................................................   198
    Prepared statement...........................................   205
Gormley, Kenneth G.:
    Testimony....................................................   371
    Prepared statement...........................................   375
Heymann, Philip B.:
    Testimony....................................................   291
    Prepared statement...........................................   292
La Bella, Charles G.:
    Testimony....................................................   294
Lewin, Nathan:
    Testimony....................................................   153
    Prepared statement...........................................   160
O'Sullivan, Julie Rose:
    Testimony....................................................   364
    Prepared statement...........................................   367
Reno, Hon. Janet:
    Testimony....................................................   242
    Prepared statement...........................................   247
Ruth, Henry:
    Testimony....................................................   194
    Prepared statement...........................................   196
Sentelle, Hon. David B.:
    Testimony....................................................   474
    Prepared statement...........................................   479
Starr, Hon. Kenneth W.:
    Testimony....................................................   419
    Prepared statement...........................................   425
Von Kann, Curtis Emery:
    Testimony....................................................    73
    Prepared statement...........................................    78
Walsh, Lawrence E.:
    Testimony....................................................   329
    Prepared statement...........................................   335

                                APPENDIX
                      Wednesday, February 24, 1999

CRS Reports for Congress by Jack H. Maskell, Legislative 
  Attorney, American Law Division, dated June 30, 1988 (revised 
  February 5, 1992) and March 20, 1998...........................    99
Letter from Griffin B. Bell, dated February 26, 1999, to Senators 
  Thompson and Lieberman, with a press briefing from March 20, 
  1979, ``Appointing Paul Curran as Special Counsel to 
  Investigate the Carter Warehouse''.............................   113
``The Separation of Powers: The Roles of Independent Counsels, 
  Inspectors General, Executive Privilege and Executive Orders,'' 
  Final Report of the National Commission on the Separation of 
  Powers, Miller Center of Public Affairs, University of Virginia   120
Letter from Curtis E. von Kann, J.A.M.S Endispute, Just People, 
  Just Results, dated March 1, 1999..............................   125
Jay Dickey, U.S. Representative from Arkansas, prepared statement 
  and copy of H.R. 117...........................................   126
Questions and answers for Curtis Emery von Konn from Senator 
  Lieberman......................................................   138
Questions and answers for Judge Bell and Former Senator Baker 
  from Senator Cleland...........................................   139

                        Wednesday, March 3, 1999

Theodore B. Olson, partner, Gibson, Dunn and Crutcher, 
  Washington, DC, prepared statement.............................   229
Letter from Robert S. Bennett, dated April 6, 1999, to Senator 
  Thompson.......................................................   233
Letter from Robert B. Fiske, dated March 8, 1999, to Senator 
  Thompson.......................................................   235

                       Wednesday, March 17, 1999

Letter from John P. Jennings, Acting Assistant Attorney General, 
  dated May 4, 1999, to Senator Specter..........................   311
Letter from John P. Jennings, Acting Assistant Attorney General, 
  dated May 24, 1999, to Senator Thompson with enclosures........   314
Prepared statement from Common Cause, sent as a letter, dated 
  March 10, 1999, to Senator Thompson and Senator Lieberman......   322

                       Wednesday, March 24, 1999

Questions and answers for Samuel Dash from Senator Levin.........   407

                       Wednesday, April 14, 1999

Letter to David B. Sentelle, dated August 12, 1994, from Senator 
  Levin..........................................................   507
Letter from Kenneth W. Starr, dated April 15, 1999, to Senators 
  Thompson and Lieberman.........................................   509
Letter from GAO, dated June 4, 1999, to Senator Thompson.........   509
Letters submitted by Senator Levin:
    To Elise Bean from Stephen A. Kubiatowski, dated January 17, 
      1997.......................................................   510
    To Kenneth W. Starr from Senator Levin, dated October 20, 
      1997.......................................................   510
    To Senator Levin from Kenneth W. Starr, dated October 30, 
      1997.......................................................   511
    To David B. Sentelle from Senator John Glenn, dated February 
      6, 1998....................................................   512
    To David B. Sentelle from Senator Levin, dated February 10, 
      1998.......................................................   512
    To Senator Levin from David B. Sentelle, dated March 20, 1998   515
Questions and answers for Judge Sentelle from Senator Levin......   515
Seventeen Court Orders submitted by Senator Levin................   516
Chart entitled ``Who Appoints Independent Counsels: Special 
  Judges and Their Terms''.......................................   525
Public Citizen report entitled ``The Independent Counsel Act: 
  What Congress Should Consider in 1999,'' by David C. Vladeck 
  and Alan B. Morrison, February 1999............................   526



               THE FUTURE OF THE INDEPENDENT COUNSEL ACT

                              ----------                              


                      WEDNESDAY, FEBRUARY 24, 1999

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:25 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Fred 
Thompson, Chairman of the Committee, presiding.
    Present: Senators Thompson, Stevens, Collins, Domenici, 
Cochran, Specter, Gregg, Lieberman, Levin, Akaka, Durbin, 
Torricelli, Cleland, and Edwards.

             OPENING STATEMENT OF CHAIRMAN THOMPSON

    Chairman Thompson. The Committee will come to order, 
please. The Committee on Governmental Affairs today begins a 
series of hearings on the Independent Counsel Act. The statute 
is set to sunset on June 30. The Committee's hearings will 
undertake a comprehensive examination of the statute, which has 
now existed for more than 20 years.
    Today, our witnesses will describe the purposes that the 
Independent Counsel Act was designed to achieve and how well it 
has accomplished those purposes.
    The idea for the Independent Counsel Act can be traced back 
to the final report of the Senate Watergate Committee, although 
that report recommended the creation of a permanent office, 
rather than an incident-by-incident appointed individual.
    Former Senator Howard Baker, who, of course, was the vice 
chairman of that committee, is here, as is former Attorney 
General Griffin Bell, the first Attorney General who 
implemented the statute. Also with us today is a panel of 
former independent counsel who will offer their views of the 
statute and also to make recommendations.
    In future sessions, the Committee will hear--for the first 
time in reauthorization hearings of the act--from former 
targets of independent counsel and their lawyers. The Committee 
will not only hear proposals to amend the statute, but will 
consider testimony on alternatives to the statute from 
individuals who have been prosecuted in politically sensitive 
cases outside the framework of the Independent Counsel Act.
    We are also working to schedule testimony by former 
Independent Counsel Lawrence Walsh and current Independent 
Counsel Kenneth Starr. The appearance of these two witnesses 
will give Committee Members the opportunity to propose first 
hand their questions concerning these two investigations.
    As we all know, the Independent Counsel Act was born out of 
legitimate concern that when the Justice Department is 
investigating its own or a superior, or the President, there is 
an inherent conflict of interest. Therefore, the response was 
that perhaps we ought to appoint somebody who is independent.
    The only problem with that is that in our system of 
government, nobody is independent. If somebody truly is 
independent, they probably are a danger. So we have struggled 
with the act over the last 20 years, and I think many now are 
questioning the fundamental concept that the act has been based 
upon, and whether or not it sufficiently took into account such 
things as human nature, and the idea that when you create a 
statute, that which is allowable under the statute, whether 
harmful or not, eventually will happen.
    We have seen that played out. A lot of people think that 
the act worked just fine until recently and that Mr. Starr has 
caused all these problems, and they are shocked that there are 
tough, aggressive prosecutorial tactics that are going on this 
country, tactics that many people who understand our system 
know go on on a regular basis and have for some time at the 
Justice Department and their offices throughout the country.
    I trust this will not be a referent on any particular 
individual. We certainly are aware of the criticism of the 
current independent counsel. Hopefully, we will have him here, 
although I must say that some who have been most critical of 
Mr. Starr were not critical of the previous 6\1/2\-year, $47 
million investigation of another President of a different party 
who indicted people on the eve of the 1992 election and filed a 
report accusing people of criminal conduct and things of that 
nature. Civil libertarians were hard to find back in those 
days.
    But, of course, the Republicans were very critical in that 
time. So now that Capitol Hill is littered with the carcasses 
of gored oxen on both sides, perhaps we can sit down in a 
measured way and determine what we have and where we should go 
from here.
    I think it is clear that from the very beginning, we have 
seen that there were problems that needed to be worked out and 
we have attempted to tinker with the statute and fine-tune the 
statute and correct problems.
    One independent counsel would do something and we would 
react to it. Another one would do something else and we would 
react to that. It was passed in 1978, amended in 1983, again in 
1987, and again in 1994. We have made it easier for the 
Attorney General to request the appointment of an independent 
counsel. We have made it more difficult for the Attorney 
General to appoint the independent counsel.
    At various times, we have narrowed the covered persons, we 
have changed the time periods, we have changed reporting 
requirements, we have changed the relationships that the 
Independent Counsels have to the Attorney General. We have put 
in cost controls, we have tinkered with the duties of the 
special division, the court that appoints the independent 
counsel.
    We have done all of these things now for some 20-odd years 
and now we will examine the results. I think clearly, in some 
cases, the results of that have been good. We have three former 
independent counsel here with us today on our second panel who 
will point out that in some cases it has worked well and 
justice has been done. Those were lower profile cases than many 
of the others that we see.
    The problem, it seems to me, is that the higher the profile 
of the case, when you start dealing with the President, for 
example, whichever party is having their President attacked 
automatically attacks the independent counsel.
    The very purpose that the law was established for, and that 
is to increase and enhance people's confidence in their 
government, is being defeated. We are going in the opposite 
direction.
    So we have this political free-for-all where the 
independent counsel is attacked, and the independent counsel 
cannot respond. I suppose there has never been an investigation 
where mistakes have not been made somewhere along the way and 
public confidence probably suffers in the process.
    We set up these independent counsel, we give them all of 
the power that the Attorney General has without the controls, 
all the time, all the money. They only have one case to 
investigate many times and we put on top of that, on the high-
profile cases, the terribly increased media scrutiny, which 
creates pressures on normal human beings knowing that they are 
going to be judged in the media, usually according to how many 
scalps that they are able to put on the wall.
    Therefore, it causes them to turn over every single leaf, 
big leaves, small leaves, and everything in between, which 
would not be the case in a normal situation handled by normal 
prosecutors with a variety of cases, a variety of 
considerations who are able to work pretty much in anonymity, 
and they simply do not have the pressures either to bring 
prosecution in a case or to refrain from bringing prosecution 
in a case for fear that they might lose the case even though it 
is justified in its bringing.
    It can work. Depending on the individual, it can work in 
either way, but both ways are really adverse to our sense of 
justice. But I think the one thing that is always there is the 
feeling for the need to turn over every possible leaf, which 
results in more expensive investigations than you would have 
normally, although people should know that Justice Department 
investigations, in general, are often very expensive, white 
collar cases especially, and can go on for years.
    Mothers are called before grand juries. All these things 
that we are seeing now for the first time are not that unusual 
in most cases, so it is not strictly a black versus white 
situation.
    It seems to me what we have here is a case where you are 
more likely to have abuses of the system than you otherwise 
would have, causing a lot of additional expense in a very 
expensive process any way you cut it, additional expense from 
what you would have in a normal situation.
    You have a lot of criticism that there are too many 
independent counsel being appointed, that the Attorney General 
has a hair trigger, that it is almost automatic that she has 
got to refer matters to a three-judge panel and ask for an 
independent counsel.
    We have all this criticism on the one hand, and I think 
there is a good deal of validity to it, but on the other hand, 
you have a situation that is present today where the Attorney 
General refuses to request an independent counsel in what 
appears to be the classic case for which the Independent 
Counsel Law was set up and that is the campaign finance 
situation concerning the President.
    The President certified that he would take public money and 
would not take private money in his campaign. He signed a 
certification, took the public money, and then proceeded to run 
in millions of dollars of soft money, flew the National 
Democratic Committee, and the Attorney General decided that as 
long as they ran TV ads with that soft money, clearly for the 
benefit of the President's campaign and used the magic words or 
refrained from using the magic words, the mere fact that it 
went to benefit the President's campaign and the mere fact that 
it clearly went against the intent of the public financing law 
did not count and she would not refer it to an independent 
counsel even though the people who she relied upon and brought 
in to handle the investigation strongly recommended that she do 
so.
    In other words, soft money was taken off the table, which 
caused a Federal judge recently to rule that if soft money is 
now legal, that it is legal across the board, which means soft 
foreign money is now legal.
    So now, at least according to one Federal district judge, 
although I doubt if many Americans realize it, apparently 
foreign money from any foreign source can legally be brought 
into American campaigns, run through the DNC or the RNC in soft 
money contributions, and as long as they refrain from using the 
magic words, they can buy TV ads for their favorite political 
candidate.
    That is another strange result that has come from all this. 
So what do we do about it? That is why we are here today. Some 
people say, well, let us abolish it without even looking at it. 
Let us get on with it. But a knee-jerk reaction based upon 
recent circumstances might have been what caused us to start 
down this road to start with.
    We probably would be best served not to do that. We could 
tinker with it again. Hope springs eternal with regard to our 
ability to tinker and solve the problems. We have done that a 
lot. We still have a lot of problems. I think that most people 
are coming to the position that maybe it has more to do with 
the underlying concept than with the details of the statute 
itself.
    Another option is, after we have given it fair 
consideration, to see whether or not going back to the pre-
Watergate system that operated for about 200 years in this 
country might still, all in all, be better than what we have.
    The Attorney General has the statutory authority to appoint 
special counsel and we have with us today, General Bell, an 
individual who, of course, used that authority and that is one 
of the things that we can explore with him today.
    We will hear many options, many suggestions, good 
suggestions, things that we ought to take our time and go 
through and consider the ramifications of. We have tried to set 
these hearings, not stack these hearings all on one side or the 
other, but to have a balance in the hearings to really give a 
thorough examination of this.
    I want to express my appreciation for the cooperation of 
the Ranking Member, Senator Lieberman, who has worked very 
closely with me in setting up these hearings and is equally 
committed to addressing this reauthorization in a serious 
manner, and I hope he appreciates the fact that we were able to 
start these hearings on his birthday. It took a lot of effort, 
but we were able to do that. So congratulations, and any 
statement that you might have.
    [The prepared statement of Senator Thompson follows:]

                 PREPARED STATEMENT OF SENATOR THOMPSON
    WASHINGTON, D.C.--The following is the prepared opening statement 
of Senator Fred Thompson (R-TN) Chairman of the Governmental Affairs 
Committee, at a February 24 hearing on the reauthorization of the 
Independent Counsel Act:
    ``The Committee on Governmental Affairs Today begins a series of 
hearings into reauthorization of the Independent Counsel Act. That 
statute is set to sunset on June 30. The Committee's hearings will 
undertake a comprehensive examination of the statute, which has now 
existed for more than 20 years. Today, our witnesses will describe the 
purposes that the Independent Counsel Act was designed to achieve and 
how well it has accomplished those purposes.
    ``The idea for the Independent Counsel Act can be traced back to 
the final report of the Senate Watergate Committee, although that 
report recommended the creation of a permanent office, rather than an 
incident by incident appointed individual. Former Senator Howard Baker, 
who of course was the Vice Chairman of that committee, is here, as is 
former Attorney General Griffin Bell, the first attorney general who 
implemented the statute. Also with us today is a panel of former 
independent counsel to offer their views on the statute and to make 
recommendations.
    ``In future sessions, the Committee will hear--for the first time 
in reauthorization hearings of the act--from former targets of 
independent counsel and their lawyers. The Committee will not only hear 
proposals to amend the statute, but it will consider testimony on 
alternatives to the statute from individuals who have prosecuted 
politically sensitive cases outside the framework of the Independent 
Counsel Act. We are working to schedule testimony by former Independent 
Counsel Lawrence Walsh and current Independent Counsel Kenneth Starr. 
The appearance of these two witnesses will give Committee members the 
opportunity to propose first hand their questions concerning these two 
investigations.
    ``I have long had concerns about the operation of this law. I am 
not of the view expressed by some that the Independent Counsel Act was 
a smashing success until 1994, at which time unprecedented and 
unforeseeable problems arose. Many of the criticisms now raised about 
the statute are not new. Some of the criticisms, such as cost, were the 
subject of prior amendments to the statute that were made in earlier 
reauthorizations. Yet, despite those amendments, the same criticisms 
remain. The tinkering approach of earlier reauthorizations will not 
pass muster this time. Of course, the difference between tinkering and 
radical change is in the eye of the beholder. I have not made any final 
decisions whether to favor radical change to the existing statute, go 
back to the prior system that worked in Watergate, or consider a new 
alternative. All of these positions will be represented in these 
hearings. I do think that the burden of persuasion rests with those who 
desire to retain the statute, even with significant changes.
    ``Many people have complained that the statute has a hair trigger 
for requiring the appointment of an independent counsel. There may be 
validity to that view. But at the same time, the total discretion 
placed in the Attorney General means that no remedy can overturn a 
determined refusal to seek an independent counsel even when such an 
appointment is clearly required. The President's involvement in illegal 
campaign fundraising was in part what convinced Congress of the need to 
enact this law. Yet, when that situation recently arose, the Attorney 
General refused to seek that appointment, adopting an interpretation 
both of the election laws and the Independent Counsel Act that none of 
her predecessors had ever taken. As a result, the statute was turned 
from a sword to make sure high-level wrongdoing is addressed to a 
shield from the prosecution of wrongdoing.
    ``While this is a subject that can raise contentious issues, I 
appreciate the cooperation of the ranking member, Sen. Lieberman. We 
have worked in a bipartisan way to set up these hearings, and he and I 
are equally committed to addressing reauthorization in a serious and 
civil way.''

             OPENING STATEMENT OF SENATOR LIEBERMAN

    Senator Lieberman. Thank you, Mr. Chairman. Thank you for 
your openness to cooperation. Thank you for everything--
reminding me it was my birthday. It has been a pleasure to work 
with you in preparing this important set of hearings, which I 
believe will enable us to discuss in a fair, open, and 
meaningful way whether the Independent Counsel Law should be 
sustained and improved upon or whether we should let it die.
    Many commentators and many of our colleagues here in 
Congress as well have already written epitaphs for the 
Independent Counsel Law. In fact, epitaph may be too nice a 
word for what has been done.
    I, for one, feel strongly that the burial of the 
Independent Counsel Law would not serve the interests of the 
American people. I know that the law has become inextricably 
linked with recent political controversies whose partisan, 
pugilistic nature has tarred so much of what they have touched.
    This is not unusual. Perhaps it is inherent in the history 
of this law. In fact, the law was allowed to expire. Some 
thought it was a death. It turned out to be a temporary 
incapacitation in 1992 because of previous concern with a 
previous independent counsel, in that case Lawrence Walsh.
    But in considering whether to reauthorize the Independent 
Counsel Law, I hope that we can let go of the anger and the 
passions and some of the divisions that have consumed us in 
recent times, because the Independent Counsel Law is not about 
sex scandals and spin doctors and mud throwing.
    It is about a very well-intentioned effort to make the 
American Government more honest and worthy of the trust of our 
people. It is an attempt to ensure that our government is as 
clean and trustworthy as can be. It recognizes a dilemma that 
is at the heart of any political system which is, how do we 
police those who hold the reins of the police power, who have 
themselves been entrusted with the execution and enforcement of 
the Nation's laws?
    In 1978, in the aftermath of Watergate, although as the 
date indicates, after 5 years of congressional deliberation, 
Congress sought to address this problem without running afoul 
of the Constitution's doctrine of separation of powers.
    The result, I think, was a delicately crafted, often 
tinkered with, much debated law that has resulted in some very 
good criminal investigations, by my standards, and a few bad 
ones. I agree that the law needs to be changed to reflect our 
experiences with it in the past 20 years.
    I am even willing to consider ideas for replacing it 
altogether with some other statutory scheme that could achieve 
the same purposes, perhaps in a better way, but I do not think 
we should walk away from the noble goal that motivated our 
predecessors in Congress to pass the Independent Counsel 
Statute 20 years ago, namely, maintaining the public's trust in 
our government by providing that the rule of law reaches even 
to our most powerful leaders.
    The issue then as now arises at a time of public cynicism, 
a time of distrust between not only the people and their 
government, but between those of us in the Legislative Branch 
and those in the Executive Branch. We ask the question, which 
this statute asks, can the Executive Branch be trusted to 
investigate itself for potential criminal wrongdoing?
    The answer, hopefully, is often yes, but what do we do when 
the answer is no? And how can we discern those cases and how 
can we convince the public that the Executive Branch can be 
trusted to investigate itself? All too often the mere surfacing 
of allegations against an administration causes damage. Charges 
can be seized on by political opponents in Congress or outside 
of government. When the criminal justice system has been called 
into question in this way, the public may feel it has no sound 
basis for determining the truth, and in some cases, an 
administration may even be actively involved in covering up 
crimes or failing to prosecute them aggressively.
    Now, we have a troubling example that motivated the 
adoption of this law in the first place, which is Watergate, 
where the President, history now tells us, attempted to use his 
powers first to cover up the crimes of his aides, and then to 
fire the special prosecutor for investigating them and him too 
aggressively.
    Some will argue that Watergate proved the system can work 
without an independent counsel because the President's 
malfeasance was ultimately exposed and he was forced from 
office. But Watergate represented a profound constitutional 
crisis where the system very nearly did not work. Of course, it 
is also possible that other acts of high-level wrongdoing in 
other presidential administrations have gone uninvestigated and 
unpunished.
    Now it seems to many that the pendulum has swung in the 
opposite direction and that some independent counsels have gone 
too far afield. Whereas, the previous fear was that the 
President could arrogantly hold himself above the law, the 
present fear held by many is that the President and members of 
his administration are exposed to such dogged investigation in 
pursuit of allegedly minor allegations that they may, in fact, 
be held to a higher standard than are all other citizens of the 
country under the law.
    There are other complaints about the act that are familiar 
that I will mention very briefly, some of which have been 
touched on by the Chairman.
    First, it is said that the act leads to lengthy and 
expensive investigations that are unwarranted.
    Second, controls on the cost and duration of the 
investigations are said to be inadequate.
    Third, the process for selecting an independent counsel is 
said to be inscrutable. Some still say notwithstanding the 
Supreme Court decision in Morrison v. Olson, that it is 
unconstitutional. As a practical matter, they say no Attorney 
General could ever try to exercise his or her limited power to 
remove an independent counsel.
    Fourth, having only one subject to investigate, many 
allege, independent counsels lose their sense of perspective 
and pursue with too much zeal cases that would normally be 
declined by prosecutors who have a range of priorities before 
them.
    And fifth, the low threshold for appointing an independent 
counsel and the broad coverage of the act, that is the number 
of people in the Executive Branch covered, leads to far too 
many investigations, some critics allege, that would better be 
handled by the normal prosecutorial processes of the Department 
of Justice.
    Well, in the hearings we begin today, we have an 
opportunity to consider how serious these problems are; what 
has caused them; and what, if anything, can and should be done 
about them. As I said before, many commentators and 
organizations advocate letting the act expire without a 
replacement.
    They point out that attorneys general would still have the 
power to appoint special prosecutors when necessary. Others 
suggest not just letting it expire, but creating a whole new 
process in its place, for instance, an office within the 
Department of Justice to investigate top public officials, 
perhaps headed by a public prosecutor confirmed by the Senate 
and entrusted with some degree of autonomy for a longer term.
    I see a wry smile on the face of Senator Baker as I mention 
this because this was an idea that was trotted out in an 
earlier time here in the Senate. So these are all interesting 
ideas and there are many ways we could improve on the current 
law while retaining some kind of office of the independent 
counsel.
    I come to these hearings with an open mind on these 
suggestions, but I am committed to a goal, which is to sustain 
a statutory mechanism for honestly policing and investigating 
people at the highest levels of our government when they are 
suspected of committing a crime.
    I understand that the Independent Counsel Statute, as it is 
conceived today, can exact a toll when prosecutors wield their 
powers in irresponsible ways. As the Chairman said, the 
independent counsel is not the only prosecutor in America who 
is subject to such zeal.
    In these hearings, some critics of the statute will argue 
that those abuses are the inevitable result of the Independent 
Counsel Statute; that the statute cannot be fixed or even 
replaced with a sensible alternative; and that no statute is 
needed.
    Well, in the first place, the ultimate check on an over-
zealous independent counsel is the courts where the results of 
the counsel's work must ultimately reach judgment. But I would 
say more generally, a different sort of danger will face us if 
no statutory system exists to provide for the independent 
investigation of our top officials.
    A distinguished law professor has noted, ``The affirmative 
power to prosecute is enormous, but the negative power to 
withhold prosecution may even be greater because it is less 
protected against abuse.'' That power to prosecute will be 
severely limited without an Office of Independent Counsel.
    The conflicts of interest that arise when the Nation's top 
law enforcement officials are expected to investigate their 
colleagues, their superiors, and themselves will always raise 
the appearance of a conflict of interest even when they are 
trying their best to remain objective.
    So I believe our goal should be to find our way to a system 
that allows top officials to be investigated thoroughly but 
fairly while maintaining the public's confidence in the 
process. Through the Committee hearings that we begin today, I 
am confident that we can all begin to consider how better this 
goal might be accomplished.
    In other words, Mr. Chairman, we might actually learn 
something in these hearings that we would like to express in 
the law. This morning, we are fortunate indeed to have Senator 
Baker, General Bell, and a distinguished panel of former 
independent counsels to help us begin this process of 
education. I look forward to their testimony and I thank you 
again, Mr. Chairman, for your leadership and openness in this 
matter.
    [The prepared statement of Senator Lieberman follows:]

                PREPARED STATEMENT OF SENATOR LIEBERMAN
    Thank you Mr. Chairman, for initiating this series of hearings, 
which I believe will enable us to discuss in a meaningful way whether 
the Independent Counsel law should be sustained and improved upon, or 
whether we should let it die. Many commentators, and many of our 
colleagues as well, have already written epitaphs for the Independent 
Counsel law. In fact, epitaph may be too nice a word. The law has 
become inextricably linked with recent political controversies, whose 
partisan, pugilistic nature have tarred all that they touch. As a 
result the very purpose that the law was designed to realize, increased 
public confidence in our criminal justice system and our government 
generally, has instead been undermined.
    But in considering whether to reauthorize the Independent Counsel 
law I hope that we can let go of the anger and the passions that have 
consumed the Congress in recent times. The Independent Counsel law is 
not about sex scandals and spin doctors and mud throwing; it is about 
good government. It is a well intentioned attempt to ensure that our 
government is as clean and trustworthy as any can be. It recognizes a 
dilemma that is at the heart of any political system: how to police 
those who hold the reins of power, who have themselves been entrusted 
with the execution and enforcement of the nation's laws. In 1978, in 
the aftermath of Watergate, Congress sought to address this problem 
without running afoul of the Constitution's doctrine of Separation of 
Powers. The result was a delicately crafted, often tinkered with, much 
debated law that has resulted in some good criminal investigations, and 
a few bad ones. I agree that the law needs to be changed, to reflect 
our experiences with it in the past twenty years while preserving its 
purpose. And I am willing to consider ideas for replacing it altogether 
with some other statutory scheme that could achieve the same goals in a 
better way. But we should not simply walk away from the noble goal that 
motivated our predecessors in Congress to pass the Independent Counsel 
statute twenty years ago, namely, maintaining the public's trust in our 
government by providing that the rule of law reaches even to our most 
powerful leaders.
    The issue then, as now, arises at a time of public cynicism, a time 
of partisan distrust between the executive and legislative branches. 
Can the executive branch be trusted to investigate itself for potential 
criminal wrongdoing? The answer may often be ``yes'', but what do we do 
when the answer is ``no''? And how can we discern those cases? All too 
often, the mere surfacing of allegations against an administration 
causes damage: the charges can be seized upon by political opponents in 
Congress or outside of government. When the criminal justice system has 
been called into question in this way the public may feel it has no 
basis for determining the truth. And in some cases, an administration 
may even be actively involved in covering up crimes or failing to 
prosecute them aggressively.
    The obvious example from recent history is Watergate, where 
President Nixon attempted to use his powers first to cover up the 
crimes of his aides and then to fire the special prosecutor for 
investigating them and him too aggressively. Some will argue that 
Watergate proved the system can work without an Independent Counsel, 
because Richard Nixon's malfeasance was ultimately exposed and he was 
forced from office. But Watergate represented a profound constitutional 
crisis, where the system very nearly did not work. It is also possible 
that other acts of high level wrongdoing in other Presidential 
administrations have gone uninvestigated and unpunished.
    Now it seems to many that the pendulum has swung in the opposite 
direction, and some independent counsels have gone afield. Whereas 
before the fear was that the President could arrogantly hold himself 
above the law, now many members of an administration risk being exposed 
to dogged investigators in pursuit of minor allegations. As a result, 
one complaint we hear is that officials covered by the Independent 
Counsel are held to a much higher standard than are members of the 
public. Other complaints about the Act are familiar: 1) It is said the 
Act leads to lengthy and expensive investigations that are unwarranted. 
2) Controls on the cost and duration of the investigations are 
toothless. 3) The process for selecting an Independent Counsel is 
inscrutable--some still say unconstitutional--and as a practical matter 
no Attorney General could ever try to exercise her limited power to 
remove an Independent Counsel. 4) Having only one subject to 
investigate, Independent Counsels may lose their sense of perspective 
and pursue too energetically cases that would be declined by 
prosecutors with more pressing priorities. And 5) The low threshold for 
appointing an Independent Counsel, and the broad coverage of the Act, 
leads to far too many investigations that would be better handled by 
the Department of Justice.
    In the hearings we begin today, we will be considering how serious 
these problems are, what causes them, and what can be done about them. 
Many commentators and organizations advocate letting the Act expire, 
without a replacement. They point out that Attorneys General would 
still have the power to appoint special prosecutors when necessary. 
Others suggest creating a special office within the Department of 
Justice to investigate top public officials, perhaps headed by a Public 
Prosecutor confirmed by the Senate and entrusted with some degree of 
autonomy for a longer term. I am intrigued by this suggestion.
    There are many ways we could improve on the current law, while 
retaining some kind of office of the Independent Counsel. I come to 
these hearings with an open mind, but hopeful that we can agree on some 
statutory mechanism for honestly policing and investigating misconduct 
by top executive branch officials. I understand the Independent Counsel 
statute can exact a terrible toll when prosecutors wield their powers 
in irresponsible ways. In these hearings some critics of the statute 
will argue that those abuses are the inevitable result of the 
Independent Counsel statute, that the statute cannot be fixed or even 
replaced with a sensible alternative, and that no statute is needed.
    But a different sort of danger may surface when no statutory system 
exists to provide for the independent investigation of our top 
officials. A distinguished law professor has noted, ``the affirmative 
power to prosecute is enormous, but the negative power to withhold 
prosecution may be even greater, because it is less protected against 
abuse.'' The conflicts of interest that arise when the nation's top law 
enforcement officials are expected to investigate their colleagues, 
their bosses, and themselves, will always raise the appearance of a 
conflict of interest, even when they are trying their best to remain 
objective. Our goal should be a system that allows top officials to be 
investigated thoroughly but fairly while maintaining the public's 
confidence in the process. Through our Committee's hearings we can all 
begin to consider how this goal might best be accomplished.
    This morning we are lucky to have two distinguished panels of 
witnesses, and I am looking forward to hearing their testimony.

    Chairman Thompson. Thank you very much. Senator Stevens.

              OPENING STATEMENT OF SENATOR STEVENS

    Senator Stevens. Mr. Chairman, I am constrained to say that 
I came here to listen to my two great friends that are sitting 
at the witness table. I respectfully say that the Chairman and 
Ranking Member have consumed now 20 minutes and I have a 
meeting at 11:30. So if each Member takes even half the time as 
the Chairman and Ranking Member, I shall be long departed. So I 
want to say good-bye to my friends.
    Chairman Thompson. Thank you. Senator Levin.

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. I am afraid I am going to be the first 
offender, so good-bye, Senator Stevens.
    Senator Stevens. I think we should change the rules. I do 
not think the Senators has the right to take the time of the 
witnesses, but that is the way it goes.
    Senator Levin. I would be happy to follow whatever rule the 
Chair wants to set on this.
    Chairman Thompson. You are following them.
    Senator Levin. First I want to thank the Chairman and the 
Ranking Member for scheduling this comprehensive set of 
hearings. I want to thank our witnesses not only for coming, 
but for patiently or otherwise listening to our statements.
    This is the fourth time in 20 years that the Independent 
Counsel Law is being reauthorized or being considered for 
reauthorization. At each of these turning points, when we could 
have terminated the law rather than continue it, Congress 
concluded that the Independent Counsel Law performed an 
important function.
    But at reauthorization time, coterminous with support for a 
mechanism for independent investigations of high-level 
officials, was our concern with ensuring that the individuals 
who conduct such investigations also be subject to restraints 
and limits on their authority like everyone else in our system 
of government that has a check and balance built in for all of 
us.
    In 1978 when Congress first enacted what was then called 
the Special Prosecutor Law, we did it to promote public 
confidence in the impartial investigation of alleged 
wrongdoings by high-level government officials. At the same 
time in the original law, we established what we thought were 
important checks on this new power.
    Congress required, for instance, the special prosecutor to 
comply with Justice Department guidelines. Congress gave the 
Attorney General the authority to terminate the special 
prosecutor for cause. And Congress limited the jurisdiction of 
the special prosecutor to the subjects proscribed by the 
special court based on information provided by the Attorney 
General.
    In 1982, we faced the first reauthorization of the law and 
this Committee found that the special prosecutor provision 
should be retained. But we found that significant amendments 
were required. During that reauthorization, we made a number of 
changes to the statute.
    For instance, we reduced the number of persons mandatorily 
covered by the statute. We increased the threshold for seeking 
the appointment of an independent counsel. We allowed for the 
reimbursement of attorney fees for subjects of investigations 
who were never indicted.
    During the second reauthorization in 1987, the Committee 
concluded in our report that, ``The independent counsel 
provides an effective and essential procedure to investigate 
persons close to the President.'' At the same time, we 
reorganized the statute, made adjustments in the procedures for 
preliminary investigations, and to address cost concerns, 
required the GAO to audit the expenditures of each independent 
counsel office.
    By the time the third reauthorization came around in 1993, 
the Supreme Court had upheld the constitutionality of the law, 
and during this review, the Committee concluded that the law 
had achieved, ``remarkable public acceptance in terms of 
restoring public confidence in criminal investigations of top 
Executive Branch officials,'' but we found that additional 
fiscal and administrative controls on independent counsel 
proceedings were needed.
    Concerns about the statute at that time centered on 
establishing stronger cost controls and greater accountability 
and we imposed limits on staff salaries, office space and 
travel. We gave special court authority to terminate an 
independent counsel's office if it found the independent 
counsel had substantially completed his or her 
responsibilities.
    So at each step of the way, we have reviewed the advantages 
and disadvantages of the independent counsel system and each 
time we concluded that it was a worthwhile law. But each time, 
we also tried to put in limits on the powers of the independent 
counsel.
    We face that same decision today, 20 years after this law 
was enacted, but this time the issue and concerns are 
different. This time we have had an independent counsel, 
Kenneth Starr, who has spent 4\1/2\ years and over $40 million 
investigating the President, but only 25 percent of the 
American people have confidence in his investigation.
    And many of the people, including this particular citizen, 
believe that he has pushed the envelope of his prosecutorial 
powers to the extreme and beyond, time and time again. But he 
is not the only independent counsel who has raised public 
concerns.
    We have had, for instance, an independent counsel who was 
appointed in 1990 to investigate President Reagan's secretary 
of HUD and who is still in office almost 9 years later, having 
spent almost $30 million and who announced 4 years ago there 
would be no indictment of the secretary who was his target.
    And this time, on this reauthorization, we have had an 
independent counsel who was appointed to investigate gifts to a 
secretary of agriculture who spent $17 million doing so, went 
through a 7-week trial, called 70 witnesses, and his charges 
were resoundingly rejected.
    Now, these recent developments have shaken the foundations 
of the Independent Counsel Law. What they tell us is that the 
effectiveness of the Independent Counsel Law depends not only 
on its provisions, but at its core, on the good judgment of the 
individuals who are appointed to serve.
    The question that these recent investigations and 
indictments raise is whether or not it is possible to amend the 
statute to place effective limits on the excessive power which 
has been wielded by some independent counsels, and if not, what 
would take its place.
    If we were to let the law expire, we would be left with a 
Justice Department's inherent authority to appoint a special 
prosecutor at the discretion of the Attorney General, but the 
independence and the credibility of that process has been 
challenged and, indeed, was rejected by a special court which 
terminated Robert Fiske's service and appointed Mr. Starr in 
his place.
    Other alternatives to the Independent Counsel Law have been 
considered over the years. One alternative which I find 
attractive, if the current law cannot be repaired, would be to 
place these investigations with the public integrity section of 
the Department of Justice, but to make some changes: To make 
the head of that section subject to Senate confirmation, to 
make the head of that section appointed for a fixed term, and 
to give responsibilities to the head of that section to report 
to Congress as well as to the Attorney General.
    This alternative, as has been pointed out by Senator 
Lieberman, is similar to the one that Senator Baker has 
previously proposed to us with some real foresight. Over the 
next few months, we will first, though, be determining whether 
or not the current law can be repaired.
    I believe that we should consider keeping it only if major 
changes are made such as the following: One, requiring the 
selection of independent counsels with significant 
prosecutorial experience who have had little or no partisan 
political involvement and no real or apparent conflicts of 
interest.
    Two, applying the statute only to crimes that are allegedly 
committed while the person is in office. Three, limiting an 
independent counsel's office to 3 years, after which time any 
ongoing investigation would revert to the Justice Department 
unless the Attorney General determined that extending the 
independent counsel office was essential to the public 
interest.
    Four, providing practical mechanisms to enforce effectively 
the statutory requirement that independent counsels comply with 
established Justice Department policies.
    So my support for the Independent Counsel Law has been 
based on a premise that high-ranking Federal officials should 
be investigated and prosecuted in a manner no different than a 
private citizen under the same circumstances. No better, no 
worse, and unless we can achieve that in the amendments to the 
current Independent Counsel Law, we should provide another 
mechanism.
    But the alternative, no mechanism, is not acceptable to me. 
We either should amend this law significantly or put in place 
another mechanism which has and will instill public confidence 
that investigations of allegations of criminal behavior by 
high-level officials will be investigated and prosecuted in the 
same way that those prosecutions and investigations would be 
performed against a private citizen.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Senator Levin follows:]

                  PREPARED STATEMENT OF SENATOR LEVIN
    This is the fourth time in the 20 year history of the independent 
counsel law that we have considered its reauthorization. Although I was 
not in the Senate at the time the law was initially enacted, I have 
been involved in each of the reauthorizations. And at each of these 
turning points--when we could have terminated the law rather than 
continue it--Congress concluded that the independent counsel law 
performed an important function. But at reauthorization time, 
coterminus with support for a mechanism for independent investigations 
of high level officials, was our concern with ensuring that the 
individuals who conduct such investigations also be subject to 
restraints and limits on their authority like everyone else in our 
system of government with its checks and balances.
    In 1978 when Congress first enacted what was then called the 
``special prosecutor'' law, we did it to promote public confidence in 
the impartial investigation of alleged wrongdoings by high-level 
government officials. At the same time, we established important checks 
on this new power. Congress required the special prosecutor to comply 
with Justice Department guidelines; Congress gave the Attorney General 
the authority to terminate the special prosecutor for cause; and 
Congress limited the jurisdiction of the special prosecutor to the 
subjects prescribed by the Special Court based upon information 
provided by the Attorney General.
    In 1982, we faced the first reauthorization of the law. This 
Committee, in its report recommending reauthorization, stated:

        Prompted by the events of Watergate, Congress recognized that 
        actual or perceived conflicts of interest may exist when the 
        Attorney General is called on to investigated alleged criminal 
        activities by high-level government officials. When conflicts 
        exist, or when the public believes there are conflicts, public 
        confidence in the prosecutorial decisions is eroded, if not 
        totally lost. Thus, a statutory mechanism providing for a 
        temporary special prosecutor is necessary to insulate the 
        Attorney General from making decisions in these instances.

    The Committee went on to conclude, that ``the special prosecutor 
provisions must be retained.'' The Committee also concluded, however, 
that ``the special prosecutor provisions require significant 
amendment.''
    During that reauthorization we made a number of changes to the 
statute. For example, we reduced the number of persons mandatorily 
covered by the statute; we increased the threshold for seeking the 
appointment of an independent counsel, restricting the number of times 
the Attorney General would need to invoke the statute; we changed the 
name of the officer from ``special prosecutor'' to ``independent 
counsel;'' and we allowed for the reimbursement of attorney fees for 
subjects of investigations who were never indicted.
    During the second reauthorization in 1987, this Committee concluded 
in its report, that ``[T]he independent counsel provides an effective 
and essential procedure to investigate persons close to the 
President.'' At the same time, we made changes to the statute based 
upon our observation of its implementation over the preceding 5 year 
period. We reorganized the statute, made adjustments in the procedures 
for preliminary investigations, and to address cost concerns, required 
GAO to audit the expenditures of each independent counsel office.
    By the time of the third reauthorization in 1993, the U.S. Supreme 
Court had upheld the constitutionality of the law. During this review 
of the statute, the Committee concluded that the law had achieved 
``remarkable public acceptance in terms of restoring public confidence 
in criminal investigations of top executive branch officials, but that 
additional fiscal and administrative controls on independent counsel 
proceedings were needed.'' In its 1993 report, the Committee 
determined:

        [T]he statute should be reauthorized, because it meets a 
        critical need public trust in government. In 15 years of 
        operation, the independent counsel law has gained the public's 
        trust as establishing a system that provides fair and impartial 
        criminal investigations and prosecutions. It has proven to be 
        both constitutional and a trusted means of handling the rare 
        case in which an Administration is asked to investigate and 
        prosecute its own top officials. While not perfect, it is a law 
        that has met the test of time and the bitter lessons of 
        Watergate.

    Concerns about the statute at that time centered on establishing 
stronger cost controls and greater accountability. We imposed limits on 
staff salaries, office space, and travel. We gave the special court 
authority to terminate an independent counsel office if it found the 
independent counsel had substantially completed their responsibilities; 
and we made it clear that the independent counsel process could be used 
to investigate Members of Congress.
    At each step of the way, we reviewed the advantages and 
disadvantages of the independent counsel system, and each time we 
concluded that it was a worthwhile law. But each time we also tried to 
improve it and fix it.
    We face the same decision today, 20 years after the law was first 
enacted, but this time the issues and concerns are different. This time 
we have an independent counsel, Kenneth Starr, who has spent 4\1/2\ 
years and over $40 million investigating the President and only 25 
percent of the American people have any confidence in him. And no 
wonder. Mr. Starr pushed the envelope of his prosecutorial powers to 
the extreme time and time again--challenging the attorney-client 
relationship after the death of a client (his argument was handily 
rejected by the Supreme Court), jeopardizing the relationship between 
the Secret Service and the President of the United States, subpoenaing 
lists of book purchases, wiring an informant for a matter in which his 
office had no jurisdiction, and discussing immunity with a target 
without her attorney present, indeed, threatening to withhold immunity 
if she called her attorney.
    But he's not the only independent counsel who has raised public 
concerns. This time we also have an independent counsel who was 
appointed in 1990 to investigate President Reagan's Secretary of HUD 
and who is still in office almost 9 years later, having spent almost 
$30 million and having announced over 4 years ago there would be no 
indictment of the Secretary. And this time we have an independent 
counsel who was appointed to investigate gifts to the Secretary of 
Agriculture and who has spent over $17 million to do so. He put the 
Secretary through a 7-week trial, calling more than 70 witnesses, and 
his charges were resoundingly rejected with a verdict of ``not guilty'' 
by the jury.
    These recent developments have shaken the foundations of the 
independent counsel law. What they tell us is that the integrity and 
effectiveness of the independent counsel law depends at its core on the 
good judgment and common sense of the individuals appointed to serve. 
Several independent counsels in the last number of years have exhibited 
neither good judgment nor common sense, and their investigations have 
caused many to lose faith in the independent counsel system. The 
question is whether we should end the independent counsel law over the 
troubling behavior of a handful of recent independent counsels. The 
answer to that question is another question--is it possible to amend 
the statute to place effective limits on the excessive power wielded by 
some independent counsels? If not, what would take its place?
    If we were to let the law expire, we would be left with the Justice 
Department's inherent authority to appoint a special prosecutor at the 
discretion of the Attorney General. The Attorney General used this 
inherent authority when she appointed Robert Fiske to investigate 
Whitewater because the independent counsel law had lapsed. In that 
case, once the independent counsel law was reenacted, the Special Court 
terminated Mr. Fiske's service and appointed Mr. Starr in his place, 
contending that the appointment of Mr. risks by Ms. Reno had tainted 
his independence. We have no reason to believe that similar arguments 
would not be made in future cases were the Justice Department to rely, 
again, on its own authority to appoint independent counsels.
    Other alternatives to the independent counsel law have also been 
considered over the years. One alternative, which I find attractive, 
would be to place these investigations with the Public Integrity 
Section of the Department of Justice and make the head of that section 
subject to Senate confirmation, appointed for a fixed term, and given 
responsibilities to report to Congress as well as to the Attorney 
General. This alternative is similar to one that I understand Senator 
Baker has proposed.
    Over the next few months we will be determining whether the current 
law can be repaired. I believe we should consider keeping it only if 
major changes are made, including:

        -- Lrequiring selection of independent counsels with 
        significant prosecutorial experience, little or no political 
        involvement and no real or apparent conflicts of interest, from 
        a list of candidates consisting of 2 or 3 persons proposed by 
        each federal judicial circuit; applying the statute only to 
        crimes allegedly committed while in office;
        -- Llimiting an independent counsel's office to 3 years, after 
        which time any ongoing investigation would revert to the 
        Justice Department unless the Attorney General determined that 
        extending the independent counsel office were essential to the 
        public interest;
        -- Lproviding practical mechanisms to enforce effectively the 
        statutory requirement that independent counsels comply with 
        established Justice Department policies;
        -- Lrequiring a stronger showing for the Attorney General to 
        seek appointment of an independent counsel by permitting such 
        appointment only if the Attorney General finds reasonable 
        evidence to believe that a covered official committed a covered 
        crime; and
        -- Lreducing the coverage of the statute to the President and 
        Vice President and members of the Cabinet.

    My support for the independent counsel law has been based on the 
premise that high ranking federal officials should be investigated and 
prosecuted in a manner certainly no better than a private citizen, but 
equally important, in a manner no worse than a private citizen. We 
should not forget that in 20 years of operation, we have had 20 
independent counsels, half of whom never brought an indictment and the 
majority of whom spent less than $1 million and operated for less than 
3 years. In return, the American people had the reassurance that 
criminal allegations against our very top officials were being 
investigated by persons independent from the political appointees in 
the Executive Branch.
    But, our system of government is based on the premise that no 
official has unlimited power; we are all supposed to be subject to 
effective checks in how we exercise our authority. That premise has 
been repeatedly challenged by some independent counsels who seem to 
interpret reasonable oversight as a violation of their independence. We 
will have to decide whether the current law can be amended to include 
appropriate checks and balances.
    Another problem is the politicization of the independent counsel 
process. Instead of insulating the investigation of top officials from 
politics as the law was meant to do, the law has too often become a 
political weapon offering repeated political flashpoints. For example, 
in addition to political criticism of independent counsels, the 
Attorney General has been subjected to severe attacks for either 
appointing independent counsels too readily or for failing to appoint 
them in particular cases. Since the Supreme Court has held that the 
Attorney General's authority to request appointment of independent 
counsels is a constitutional necessity, I don't see any way to cure 
that aspect of this statute by amendment, even if cures can be found in 
other areas. If this statute is renewed, that's a problem we would just 
have to live with.
    In the next few months, this Committee and the Congress will decide 
whether to amend the current law or whether a different approach is 
required. I'm open to both solutions. However, I am not supportive of 
simply letting the independent counsel law expire and leaving to chance 
or fate how we handle the future criminal investigations against our 
very top federal officials.

    Chairman Thompson. Thank you. Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you, Mr. Chairman, and good morning 
and welcome to our distinguished witnesses. I want to applaud 
your leadership, Mr. Chairman, and that of Senator Lieberman 
for convening what is sure to be a highly informative and 
important series of hearings on the future of the Independent 
Counsel Act.
    While we can agree that the Independent Counsel Law has led 
a controversial existence since its passage in 1978, I think we 
can also agree that the act was born from the noblest of 
intentions. The national cynicism which engulfed the Nation in 
the aftermath of Watergate led Congress to craft a process 
designed to provide an independent counsel to investigate 
allegations against high-ranking government officials in a 
manner that would promote public confidence in the results of 
the investigation.
    Despite such noble intentions, the implementation of the 
act has raised serious concerns about the unfettered powers of 
independent counsels and the impact of this law on the due 
process rights of those investigated.
    But, Mr. Chairman, it is also important that we recognize 
that some independent counsels have conducted their 
investigations exactly as Congress contemplated under the law. 
For example, Ralph Lancaster, a highly regarded private 
practitioner from Portland, Maine, took a leave from his law 
firm to conduct the ongoing investigation into allegations 
involving the secretary of labor.
    He has done so capably, fairly, and quietly. I am not ready 
to abandon the Independent Counsel Law altogether for the 
Attorney General will always have conflicts of interest, 
whether perceived or actual, in investigating his or her boss, 
the President, the Vice President, as well as colleagues in the 
cabinet.
    At the same time, it is evident that this law needs 
fundamental reforms in its scope and its reach. I look forward 
to hearing from the wide range of witnesses who are scheduled 
to present their views before the Committee, and I hope that 
they can shed lights on the ways that Congress can strike the 
right balance, can develop a system that preserves the 
important safeguards in our criminal justice system while 
ensuring public trust in the outcome of investigations of high-
ranking public officials.
    Again, thank you, Mr. Chairman.
    [The prepared statement of Senator Collins follows:]

                 PREPARED STATEMENT OF SENATOR COLLINS
 Senator Susan Collins Weighs Merits of Independent Counsel Statute at 
                 Governmental Affairs Committee Hearing
Senators consider future of Independent Counsel statute, set to expire 
                             June 30, 1999
    WASHINGTON, D.C.--Senator Susan Collins (R-ME), of the United 
States Senate Committee on Governmental Affairs, heard testimony today 
from various experts on the Independent Counsel statute, including 
former Senate Majority Leader Howard Baker and former U.S. Attorney 
General Griffin Bell.
    The current Independent Counsel statute expires June 30, 1999, and 
Congress must decide whether to reauthorize it, reauthorize it with 
amendments, devise a new system of handling cases currently under the 
jurisdiction of the Independent Counsel statute, or return to a 
reliance on pre-independent counsel law.
    ``I am not ready to abandon the Independent Counsel law altogether, 
for the Attorney General will always have conflicts of interest, 
whether perceived or actual, in investigating his or her boss the 
President and the Vice President, as well as colleagues in the Cabinet. 
At the same time, it is evident that this law needs fundamental reforms 
in its scope and reach,'' said Senator Collins.
    ``We need to look at the law and any alternatives carefully. We 
shouldn't allow the frustrations that many have felt over the length 
and expense of various Independent Counsel investigations force us into 
a hasty decision. It is important that we recognize that some 
Independent Counsels have conducted their investigations exactly as 
Congress contemplated under the law. Ralph Lancaster, for example, a 
highly regarded, private practitioner from Maine, took a leave from his 
law firm, to conduct the investigation into allegations against the 
Secretary of Labor. He has done so capably, fairly--and quietly,'' the 
Senator added. ``I will be considering all possibilities in addressing 
this issue, but I am especially interested in proposals to limit the 
scope and reach of investigations, as well as to reduce the number of 
individuals subject to the statute.''
    Other witnesses at today's hearing include Arthur Christy, Special 
Prosecutor in the Hamilton Jordan investigation and Joseph diGenova, 
Independent Counsel in the Clinton passport file investigation.
    The Governmental Affairs Committee is chaired by Sen. Fred Thompson 
(R-TN).

    Chairman Thompson. Thank you. Senator Durbin.

              OPENING STATEMENT OF SENATOR DURBIN

    Senator Durbin. Thank you very much, Mr. Chairman, and let 
me say at the outset that I made a mistake. Four years ago, I 
voted to reauthorize this law. A number of my Republican 
colleagues came to me and said that there had been excessive 
efforts made under this law that cannot be justified.
    I thought they overstated the case. They did not. I sit 
here today readily acknowledging to the Chairman and other 
Members of the panel that I made a mistake in that vote. I hope 
that we can rectify that mistake in the actions that we are 
about to take in this Committee.
    Our form of government is grounded on the premise that 
unchecked power is tyranny. The independent counsel is 
unchecked, unbridled, unrestrained, and unaccountable. Our 
system of justice is grounded on the presumption of innocence 
and the belief that it is better for a wrongdoer to go 
unpunished than an innocent man be wrongly convicted.
    Statements by the Independent Counsel Smaltz in the Espy 
case, the actions of other independent counsels make it clear 
that this basic rule of law in America has too often been 
ignored. Let me read to you the words of Archibald Cox when he 
wrote, ``Independent counsels must see their function not as 
pursuit of a target to be wounded or destroyed, but as an 
impartial inquiry with as much concern for public exoneration 
of the innocent as for indictment.''
    Unfortunately, this message has been lost. Our experience 
with this statute has been tainted by some prosecutors who have 
let their ambition cloud their judgment. Recall last December 
right after a jury acquitted former Agriculture Secretary Mike 
Espy of 30 corruption counts lodged against him after a 4-year, 
$17 million investigation.
    Independent Counsel Don Smaltz remarked, ``The actual 
indictment of a public official may be as great a deterrent as 
a conviction of that official.'' That outrageous statement led 
the Attorney General of the United States, a week later, to 
say, ``I will say that in terms of what I do at the Justice 
Department, a person is innocent until proven guilty and that 
it is a conviction that speaks.'' I am glad the Attorney 
General made that statement.
    Let me talk about the accountability under the law, because 
as you see, as it is written, the independent counsel is 
accountable to the Attorney General. Those who open the morning 
paper had a chance to note that even that very premise of the 
law is being questioned in court today.
    This morning we learned that Attorney General Reno's 
authority to hold Independent Counsel Starr accountable is 
being challenged by a three-judge panel at the behest of a 
politically conservative advocacy group, the Landmark Legal 
Foundation.
    I hope you will note for the record that Mr. Starr is 
suggesting that the only way he can be properly investigated is 
by the appointment of an independent counsel. Where does this 
end?
    I think, frankly, that we have a responsibility here to 
look beyond the abuses and excesses of Kenneth Starr to the 
clear abuses by Lawrence Walsh, by Donald Smaltz, and by 
others. I hope that if the issue is prosecutorial abuse, that 
we are not naive enough to believe that this abuse is isolated 
solely to the actions of an independent counsel.
    As I discuss the strategy and tactics of Kenneth Starr in 
this latest case with other prosecutors, they think I am naive 
to believe that is not happening in a lot of different places 
across America every day. All of us want crime under control, 
but at what cost.
    I would hope that we would be as sensitive to the rights of 
ordinary Americans as we are to high-profile Americans who 
become the targets of independent counsels in Washington, DC. 
Given this record, what are we to do? I will vote to end this 
law and seek a mechanism to guarantee future prosecutors in 
this area are both independent and accountable. I do not 
believe it is possible to fix this flawed statute.
    Last year I introduced legislation to impose term limits on 
the three judges who select independent counsels so that judges 
do not become entrenched or invested in a particular 
investigation or a special prosecutor.
    Of the ten judges who have served on the special panel, all 
but one have served much longer than a 2-year term. In fact, 
the members of the first panel served 6, 7, and 10 years, 
respectively. This daisy chain of judges does not create 
independent counsels.
    Following the role played by the independent counsel in the 
impeachment trial of President Clinton, I think Congress should 
do what many people are asking, simply let the law expire.
    And as for the impact on pending investigations, I would 
like to say to Judge Starr and all other counsels, your days 
are numbered. You have got to come before Congress, justify 
your actions, justify your expenses, and justify your 
existence. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you. Senator Domenici.

             OPENING STATEMENT OF SENATOR DOMENICI

    Senator Domenici. I join with Senator Stevens in wanting 
very much to hear the witnesses, but obviously having heard 
such eloquence, I must at least contribute a couple of very 
mundane observations.
    I do not think there is any question that in our great 
system of government, we have a big problem regarding whether 
we should trust the Executive Branch of government to 
investigate itself.
    Essentially, that is a residual effect of the way we have 
structured our government. When crimes are committed by 
somebody in the Executive Branch or by the President, they 
often are uniquely Federal. Thus, they must be investigated by 
an Attorney General or no one if we do not have some other 
process.
    So from my standpoint, while I think the special prosecutor 
can truly exceed the bounds of reason and perhaps be too 
dedicated and diligent about trying to obtain convictions, from 
my standpoint, we still have to answer the question of what are 
we going to do.
    Are we truly going to just trust the Executive Branch of 
government to investigate itself? If we are going to do that, 
then I think we will be saying that in the history of the 
special prosecutor, there have been no real incidents when the 
Executive Branch was at fault and special prosecutors found 
them guilty.
    I believe every one of us will find that some special 
prosecutors' activities were worthwhile, were good, and 
accomplished something very significant for the country. So I 
merely ask the question, if that is the case, do we want now to 
say we will have nothing in its place and leave it up to the 
Attorney General of the United States to decide whether or not 
there will be an investigation of the President?
    Often, the issue is whether there is a conflict of 
interest. Every investigation by an Attorney General of a 
President faces that conflict. I think it is almost implied 
that there is a conflict of interest. That person is appointed, 
can be removed by the President, and obviously there is a 
conflict of interest.
    So, Mr. Chairman and Ranking Member, I laud you for the 
hearings. I hope we will do something constructive. I do not 
like the way the special prosecutor statute has worked, but I 
do believe we ought to have something in its place if we are 
going to totally abandon and abolish it in its current form.
    I regret to say I do not have any ideas yet, but that does 
not mean that we are not going to do something very, very good. 
I will have some ideas before we are finished. I have another 
little chore around here that keeps me from the work of this 
Committee with such diligence and dedication as each of you. 
But, I will commit to the Chairman, who worries about some of 
us giving enough time to this Committee, that I will give as 
much as is necessary to express my views and be part of trying 
to make something come out of this Committee that will work. 
Thank you very much.
    Chairman Thompson. Thank you very much. Senator Cleland.

              OPENING STATEMENT OF SENATOR CLELAND

    Senator Cleland. Thank you very much, Mr. Chairman, and I 
applaud you and Senator Lieberman for holding these hearings 
and for leading off the hearings with such a distinguished 
group of American citizens, Senator Howard Baker and my dear 
friend, Judge Griffin Bell.
    I do not think we could have two better Americans to 
address this sticky wicket in American Government. I have 
watched it, the Independent Counsel Law, function over the last 
20 years and I feel much like the drunk on the Titanic. I 
ordered ice, but this is ridiculous. [Laughter.]
    I think it is time to let the Independent Counsel Statute 
die the ignominious death it so richly deserves. I think 
questions have been raised, though, by the distinguished panel, 
which Senator Baker and Judge Bell chaired, about how do you 
deal with potential abuses of the President, the Vice 
President, and the Attorney General.
    I found it interesting that your panel recommended that the 
Attorney General, in effect, recuse him or herself, step aside 
and maybe appoint a special counsel or someone else in the 
Justice Department to investigate.
    I think that is a much better way to go than the way we 
have proceeded the last 20-some-odd years in terms of the 
Independent Counsel Statute Law. I am pleased that we have 
Judge Griffin Bell with us today, a distinguished American and 
a great Georgian. I appreciate Judge Bell's willingness to be 
here.
    As many of you know, Judge Bell is a graduate of the law 
school at Mercer University and practiced in Savannah, Georgia 
and Rome, Georgia before joining the prestigious law firm in 
Atlanta, King and Spaulding. In 1961, Judge Griffin Bell was 
appointed by President John F. Kennedy to serve as judge on the 
5th Circuit Court of Appeals.
    He returned to private practice in Georgia shortly before 
he was appointed by President Carter to be Attorney General of 
the United States in 1977. We served together under President 
Carter there for 4 years. Griffin Bell is uniquely qualified to 
advise us on the question of an independent counsel and the 
question of a special counsel.
    He served as Attorney General when the first independent 
counsel provisions were passed by the Congress and signed into 
law by President Carter in 1978 as part of the Ethics in 
Government Act.
    Furthermore, in November of 1979, Judge Bell was the first 
Attorney General to actually appoint an independent counsel, 
Arthur Christy, who will be testifying on the second panel. He 
also actually appointed a special counsel before the 
independent counsel.
    I would appreciate, in my question time, Mr. Attorney 
General, getting into your understanding of the distinction 
between the two and some options available to us as we proceed.
    Your experience as Attorney General at this pivotal time 
provides us, I think, with some valuable insight and I am 
pleased to welcome you today. Again, Senator Baker, welcome. 
Mr. Chairman, Senator Lieberman, we are delighted to be with 
you on this hearing and look forward to our panelists' 
comments. Thank you.
    Chairman Thompson. Thank you very much. Senator Cochran.

              OPENING STATEMENT OF SENATOR COCHRAN

    Senator Cochran. Mr. Chairman, thank you. It is a 
temptation to say I told you so and I am not going to say it, 
but when we had this bill up for reauthorization last time, 
some of us made a very strong effort to amend and to reform and 
change the proposed bill, but we failed. Twenty-nine votes were 
cast on the floor of the Senate in favor of an amendment I 
authored.
    I am not saying we ought to go back and resurrect that 
amendment and pass it because I am not sure it goes far enough. 
We were trying to seek a way to improve the accountability of 
the independent counsel, however that counsel would be 
appointed under the statute, and also to have some limitations 
on budget and other restraints we thought might be an 
improvement.
    But we failed. Here we are again and I am leaning toward 
the position that some have already taken publicly and that is 
to just let the thing die and let us go back to where we were 
before we adopted an Independent Counsel Statute. That is where 
I lean today.
    But I am going to do like my good friend from New Mexico, 
Senator Domenici, and reserve judgment on that right now and 
listen to the witnesses and try to keep an open mind, to 
explore all the options, and try to carefully come to a 
decision that serves the public interest in this area.
    I do not think, Mr. Chairman, you could have started the 
hearings any better than selecting these two witnesses to 
appear before us today. No one is better qualified or better 
suited to talk on this subject than Senator Baker and former 
Attorney General Griffin Bell. Thank you very much.
    Chairman Thompson. Thank you very much. Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. I wish to 
express my appreciation to you and Senator Lieberman for your 
efforts in bringing about these hearings on the Independent 
Counsel Act. I also want to thank Senator Levin for his 
remarks. As the coauthor of the legislation, his perspective 
and counsel greatly enhanced our deliberations.
    I want to welcome our expert panelists and thank you for 
bringing your unique perspectives to the table. Without 
question, you have made a huge impact on the history of our 
country and particularly on the Independent Counsel Act.
    As my colleagues have outlined and as we have heard from 
others outside of this Committee, the act should be reformed to 
the point of even terminating it.
    Since the enactment of the Ethics in Government Act of 
1978, which included provisions for the appointment of an 
independent counsel to investigate wrongdoings by high-level 
Executive Branch officials, there have been three 
reauthorizations, each of which resulted in changes influenced 
by actions of preceding independent counsels.
    I do not need to recount the modifications the law has 
undergone, but rather suggest the reading of a recent Mercer 
Law Review article, ``The History of the Independent Counsel 
Provisions,'' by Katy Harriger, one of the leading historians 
on the act.
    Our series of hearings offer a good opportunity to review 
thoroughly the successes and failures of the act through the 
experiences of those who have served as independent counsels, 
from individuals who have been the targets of the 
investigations, and legal experts who have examined the law.
    We will see if the act has lived up to its promise of 
providing a mechanism to ensure impartial justice in dealing 
with high-level officers. By bringing together these witnesses, 
we will be better able to analyze the weaknesses and strengths 
of the current statute.
    Obviously, there are flaws in the act which are propelling 
it towards extinction. Given the acrimonious history of the 
statute, there are many with a strong distaste for the law who 
look forward to its expiration this June.
    We wish to find a workable solution to fixing the act. 
These hearings provide an opportunity to do so. There is strong 
public opinion against the statute at the present time. Even 
organizations such as the American Bar Association, which was 
instrumental in the creation of the statute, are now coming out 
against it.
    Because there are sharply divided views on the 
reauthorization of the act, I am confident that this Committee 
will provide a fair and bipartisan platform for the ensuing 
debate. I am open to seeing if reauthorization is a viable 
option. Mr. Chairman, I ask that the rest of my remarks be 
printed in the record.
    I would like to close with saying that I would like to 
quote Professor Ken Gormley, the author of two recent law 
review articles who said, ``The days of turmoil and 
governmental crisis are the worst times to make sweeping 
decisions to abandon entire legislative schemes.'' I agree with 
Professor Gormley and I ask that we all keep open minds on this 
statute so we may fairly judge its viability. Thank you very 
much.
    Chairman Thompson. Thank you very much. Your statement will 
be made a part of the record.
    [The prepared statement of Senator Akaka follows:]

                  PREPARED STATEMENT OF SENATOR AKAKA
    Thank you Mr. Chairman. I wish to express my appreciation to you 
and Senator Lieberman for your efforts in bringing about these hearings 
on the Independent Counsel Act. I also want to thank Senator Levin for 
his remarks. As the coauthor of the legislation, his perspective and 
counsel greatly enhance our deliberations. And to our expert panelists, 
thank you for bringing your unique perspectives to the table.
    As my colleagues have outlined in their statements, we are now 20 
years into the Independent Counsel Act. Since the enactment of the 
Ethics in Government Act of 1978, which included provisions for the 
appointment of an independent counsel to investigate wrongdoings by 
high level executive branch officials, there have been three 
reauthorizations each of which resulted in changes influenced by 
actions of preceding independent counsels. I do not need to recount the 
modifications the law has undergone, but rather, suggest the reading of 
a recent Mercer Law Review article, ``The History of the Independent 
Counsel Provisions,'' by Katy Harriger, one of the leading historians 
on the Act.
    Our series of hearings offer a good opportunity to review 
thoroughly the successes and failures of the Act through the 
experiences of those who have served as independent counsels, from 
individuals who have been the targets of their investigations, and 
legal experts who have examined the law. We will see if the Act has 
lived up to its promise of providing a mechanism to ensure impartial 
justice in dealing with high level federal officers. By bringing 
together these witnesses, we will be better able to analyze the 
weaknesses and strengths of the current statute.
    Obviously, there are flaws in the Act that are propelling it 
towards extinction. Given the acrimonious history of the statute, there 
are many with a strong distaste for the law who look forward to its 
expiration this June. If we wish to find a workable solution to fixing 
the Act, these hearings provide an opportunity to do so.
    There is strong public opinion against the statute at the present 
time. Even organizations such as the American Bar Association, which 
was instrumental in the creation of the statute, are now coming out 
against it. Because there are sharply divided views on the 
reauthorization of the Act, I am confident that this Committee will 
provide a fair and bipartisan platform for the ensuing debate.
    I am open to seeing if reauthorization is a viable option. However, 
without significant changes, I understand why there is such an outcry 
against the statute as it currently operates. In reviewing the many 
papers written on the law, I have been particularly struck by the 
scholarship that has been accorded to reauthorization and the breadth 
to which the legal community has debated the issue. I expect that our 
hearings will produce the same vigorous discussions that have occurred 
outside the halls of Congress.
    I am also looking forward to hearing from Attorney General Reno, 
who is scheduled to testify next month. I know that the Attorney 
General, in her 1993 testimony before this Committee on the Act's 
reauthorization, said, ``that the statute has served the country 
well.'' I will also be interested to learn if the Administration 
supports reauthorization as it did in 1993. Last week, Deputy Attorney 
General Eric Holder, Jr., who heads a Justice Department task force 
reviewing the Independent Counsel Act, said he expects the 
Administration to have a formal recommendation prior to either his 
testimony before the House this week or before Ms. Reno appears before 
this panel.
    I understand that Kenneth Starr has been invited to testify before 
the Committee to add his views on the Act, and I am hopeful that he 
will accept the invitation.
    In closing, I would like to quote Professor Ken Gormley, the author 
of two recent law review articles, who said, the ``. . . days of 
turmoil and governmental crisis are the worst times to make sweeping 
decisions to abandon entire legislative schemes.'' I agree with 
Professor Gormley, and I ask that we all keep open minds on this 
statute so we may fairly judge its viability.

    Chairman Thompson. Senator Torricelli.

            OPENING STATEMENT OF SENATOR TORRICELLI

    Senator Torricelli. Thank you, Mr. Chairman, very much. 
While I had some intention to be brief, I notice with Senator 
Stevens' absence, now I can lose all restraint whatsoever.
    I feel some responsibility to speak just for a moment on 
this issue. Having been a member of the House of 
Representatives and remained relatively silent during previous 
debates, and indeed, on each occasion having lent my own vote 
for the Independent Counsel Statute, I feel some responsibility 
and want to revisit some of the comments made during those 
years that either I did not hear or I did not find sufficiently 
persuasive, but led me to the wrong conclusion.
    Senator Baker, having said during a previous debate on this 
issue, ``The Independent Counsel Statute would establish a 
virtual fourth branch of government and would substantially 
diminish the accountability of law enforcement.''
    Republican Lawrence Hogan of Maryland said, ``My question 
is, do you think that maybe we are creating a Frankenstein 
monster, creating someone who does not have to answer to 
anyone, has unfettered power?'' Robert Bork, an individual that 
I do not quote often, said, ``What you are doing is building an 
office whose sole function is to attack the Executive Branch 
throughout its tenure. It is an institutionalized wolf hanging 
on the flank of the elk which does not seem to me to be the way 
to run a government.''
    Henry Hyde, who warned of McCarthyism, unaccountable and 
awesome power to ruin people's lives. Or the prescient and now 
famous dissent by Justice Scalia in Morrison v. Olson.
    It is time for all of us who participated in those debates 
and cast votes through the years to admit we were wrong. 
Indeed, as I think Senator Collins noted, our intentions were 
sound. We were guided by the example of Watergate, but history 
cannot be guided by a single example. You cannot be bound by a 
single mistake.
    So Senator Cochran may not be here to remind us that he was 
right or to say I told you so, but he is entitled. Most 
Americans will reach this conclusion because of the abuses of 
Kenneth Starr, the violations of fundamental due process, the 
leaking of grand jury information, the failure to follow 
Justice Department guidelines.
    But that is not the entire case. There is, as Senator 
Durbin has noted, the Smaltz investigation of $7 million of 
Mike Espy. There is the Barrett investigation of $7 million of 
Secretary Cisneros, the indictment of his ex-mistress. But it 
is also bipartisan.
    The investigation led by Mr. Walsh for $40 million of 7 
years, reaching its conclusions conveniently during the 1992 
elections, may have been helpful to the Democratic Party, but 
it was wrong, it was inexcusable, and it is another reason why 
I believe this Congress, on a bipartisan basis, cannot believe 
that this law can be repaired.
    It is fundamentally, institutionally flawed. It is 
remarkable that at this late date in the life of this republic 
that we are reminded of so basic a lesson that liberty in our 
Nation is dependent upon a balance of powers. It is, as Madison 
wrote in Federalist 51, ``That ambition must be made to 
counteract ambition.''
    It is a fundamental principle of our Nation. We have 
violated it in this generation at our peril. We do not seem to 
remember that which the founding fathers considered to be so 
basic. What we may have argued in previous debates provided for 
a balance of ambitions do not work. The Attorney General's 
power to remove the independent counsel is theoretical. It does 
not safeguard.
    The Congress' ability to provide oversight responsibilities 
has no real power at all. The Independent Counsel Statute was 
created by many of us because we lived with the example of the 
Saturday Night Massacre. It does not provide sufficient balance 
against these abuses as an historic experience.
    I take from these experiences this single lesson. If the 
Congress of the United States does not basically have 
confidence in the integrity of an Attorney General of the 
United States not to interfere with professional prosecutors or 
to provide protection against people who are violating the laws 
of our country, then the Congress of the United States, and 
particularly this Senate, is not using its power of advice and 
consent with sufficient authority, it is our fault. Then get a 
better Attorney General. Do not approve the people who are 
being nominated.
    I believe that there are answers to assure accountability 
without reauthorizing this statute. I believe basically 
Presidents, Democrats and Republicans, have appointed Attorney 
Generals with sufficient integrity.
    But if we believe we must convince the public of the basic 
independence of prosecutors of the Justice Department by doing 
something else, then extend the term of the assistant Attorney 
General responsible for public integrity to 6, 7, or 8 years. 
Make that individual subject to the appointment by the powers 
of the U.S. Senate.
    We can do something else to assure this integrity within 
the Justice Department without creating this office of no 
accountability. Let me simply then finally say to my colleagues 
in the Senate who believe that this law should be reauthorized.
    I think you have a very heavy burden. The practical 
politics of this matter, I believe, and I will participate in a 
bipartisan effort requiring cloture. You do not count your 
votes to 50 in what will be required to reauthorize the 
Independent Counsel Statute.
    Nor do I believe that we are simply dealing with future 
independent counsels. There is a continuing and ongoing problem 
that must be addressed within the appropriations process. If 
Mr. Starr or other independent counsels want to continue in 
their responsibilities beyond the termination of the 
Independent Counsel Statute, they must seek appropriations.
    I believe it is fair and just for this Congress to give 
current independent counsels 90 days or as long as 6 months to 
conclude their investigations or transfer them to professional 
prosecutors within the Justice Department and then restore the 
basic balance of powers, systems of accountabilities that 
governed this country for 200 years before this brief absence 
of responsibility.
    I regret the votes that I have cast in the past, but I am 
willing to learn by them and be held accountable for them. Mr. 
Chairman, I suspect that ends any suspense about how I will 
vote on the Independent Counsel Statute. I welcome our 
witnesses and I thank you, Mr. Chairman, for calling these 
hearings.
    Chairman Thompson. Thank you very much. Although we all 
regret having to keep our distinguished guests waiting, I think 
the statements have been excellent and have clarified the 
issues and hopefully, even for the benefit of the witnesses 
today, expressed the concerns and ideas that perhaps we can get 
some feedback on.
    We have a very distinguished first panel. Senator Howard 
Baker, former majority leader and White House chief of staff; 
and the Hon. Griffin Bell, former Attorney General of the 
United States. Thank you for coming.
    Senator Baker, is a distinguished Tennessean, and was vice 
chairman of the Watergate Committee. I had the opportunity to 
sit at his right hand over in the caucus building back many, 
many years ago and learned a great many things, perhaps not 
enough, but perhaps I am still learning from the senator and I 
am sure I will again today. Thank you very much for being here 
and, Senator Baker, we will start with you.
    I might also point out that our two guests, witnesses, are 
co-chairmen of the Miller Center Commission on Separation of 
Powers that address this very issue that we are dealing with 
today. So we are indeed fortunate and honored to have you here 
today. Senator Baker, do you have any opening comments?

TESTIMONY OF HON. HOWARD H. BAKER, JR., FORMER SENATE MAJORITY 
                             LEADER

    Senator Baker. Mr. Chairman, thank you very much. Senator 
Lieberman and Members of the Committee, it is a pleasure to be 
here. This is only the second time, I believe, that I have ever 
appeared on this side of the podium and I am pleased to have 
the opportunity to sit here. I now feel fully informed on the 
subject.
    I appreciate you, Mr. Chairman, mentioning our service 
together on the Senate Watergate Committee. Indeed, you were 
minority counsel on that committee when I was vice chairman. We 
were both young men then, a condition from which I have now 
fully recovered.
    As you have already mentioned, former Attorney General 
Griffin Bell and I served as co-chairmen of the Miller Center 
Commission on Separation of Powers. The Miller Center of Public 
Affairs at the University of Virginia was established in 1975 
as a non-partisan research institute that supports scholarship 
on the national and international policies of the United 
States.
    The report on the separation of powers, which included a 
section on the Independent Counsel Statute, was released by the 
commission on December 7 of last year. Judge Bell, of course, a 
distinguished lawyer, a distinguished Federal judge, and former 
U.S. Attorney General, was a major contributor to the 
deliberations of the commission, but particularly on the 
Independent Counsel Statute and indeed, the commission based 
its findings and recommendations largely on the paper prepared 
by Griffin Bell on that subject.
    Both Judge Bell and I have lived through in the wake of the 
chaos surrounding Watergate, and I remember vividly the Senate 
debates on the enactment of the first Independent Counsel 
Statute in 1978. Forgive me for saying it, but I also recall, 
in the recollection of these distant years, that we also passed 
the Campaign Finance Reform Act, the Ethics in Government Act, 
and sometimes I am tempted to think that none of them worked 
very well.
    But that is not a condemnation, Mr. Chairman and Senator 
Lieberman and Members of the Committee, of the effort. Indeed, 
it is a commentary on the very essence of our system that we 
try, we learn, and we try again.
    I watched that while I was in the Senate. I watched it not 
only in the first effort to create this act, but in subsequent 
debate. As Senator Torricelli remarked, I have had something to 
say on this subject on more than one occasion.
    But it is my firm view now, Mr. Chairman, that the time has 
come to make mid-course corrections. My own view, to summarize 
the statement that I prepared in the interest of time, my own 
view is that the act ought to expire. We ought to write on a 
clean slate. We ought to cool off, let some time go by so we 
can consider the relative merit of the proposals that no doubt 
will be presented or may already have been presented for 
addressing this issue.
    It is an issue of major importance, ladies and gentlemen of 
the Committee, because what we are dealing with is no less than 
a fundamental structural conflict in our system. On the one 
hand, we have vested of the Constitution the entire executive 
authority, including the authority to execute the law and to 
see that it is faithfully performed in the President and the 
President's administration.
    On the other hand, we are dealing with how we at least 
diminish that. We use words like isolate the Attorney General 
from the possibility of conflict or separate the President's 
responsibilities by doing, and then you can fill in the blanks 
with dozens of things.
    The fact of the matter is, whatever we do with an 
Independent Counsel Statute or with a special prosecutor 
statute is at least a dilution of, perhaps even a diminution of 
the inherent constitutional authority. Indeed, the sole 
constitutional authority of the President proceeds with the 
execution of the laws and the faithful performance of public 
officials.
    But notwithstanding that, I could not honestly sit here and 
tell you that my 20 years of experience in government, which 
spanned a time when I participated in the investigation of one 
President and perhaps the defense of another one, that I have 
not come to the conclusion that there needs to be some address 
to these issues.
    Indeed, I think there must. I have thought long and hard 
about how to do that. I have looked at a lot of proposals, many 
of them with great merit. I have tried to weigh and balance the 
value and merit of the several proposals I have seen with the 
danger of the inherent conflict and the diminution or dilution 
of presidential authority. So far, I have been unable to come 
to a conclusion.
    So, Mr. Chairman, Senator Lieberman, and Members of the 
Committee, I have reluctantly concluded at this time that I am 
not capable of making a recommendation on what ought to happen. 
So instead, I recommend to the Senate, to this Committee, that 
we cool it and think about it for a while. We let the temper of 
these times subside.
    There is no absolute urgency in passing anything and 
indeed, come June 1999 when the act expires, there is no 
national cataclysm. There is no problem that cannot be 
addressed in the ordinary constitutional form. That does not 
mean that we cannot continue to address this issue and come up 
with our best judgment, your best judgment on what ought to 
happen.
    I agree with those who say that it is a serious issue, it 
is one that should be addressed. I agree with those who say 
that we are treading on dangerous ground when we truncate the 
authority of the Attorney General or the President. The truth 
of the matter is, Mr. Chairman, I agree with every argument 
that has been put forth by this Committee today.
    But in good conscience, I cannot say that I know what the 
answer is, but I do commend you, as Members of this Committee, 
as you as Chairman and the Ranking Member, for going forward 
with these hearings. I have high confidence that you will find 
these mid-course corrections.
    The U.S. Government does not do everything well, but it 
does that well. It does learn from its mistakes and we do 
adjust policy to change circumstance and circumstances have 
changed. So I counsel for caution and care. I think the act 
should simply be permitted to expire in June.
    I think perhaps before this session is over, that you will 
have a better idea of what you ought to do after you have had 
time to think about it coolly, carefully, and calmly. That is 
my position, Mr. Chairman.
    [The prepared statement of Senator Baker follows:]

               PREPARED STATEMENT OF HOWARD H. BAKER, JR.
    Former Attorney General Griffin Bell and I served as co-chairmen of 
the Miller Center Commission on the Separation of Powers. The Miller 
Center of Public Affairs at the University of Virginia was established 
in 1975 as a non-partisan research institute that supports scholarship 
on the national and international policies of the United States. The 
report on the Separation of Powers, which included a section on the 
Independent Counsel Statute, was released on December 7, 1998. Judge 
Bell, a distinguished lawyer, judge and U.S. Attorney General in the 
Carter Administration, was a major contributor to the deliberation of 
the Commission, but particularly on the Independent Counsel Statute. 
The Commission based its findings and recommendations largely on his 
paper on this subject.
    Both Judge Bell and I lived through, and in the wake of, the chaos 
surrounding Watergate. I remember vividly the Senate debates on the 
enactment of the first Independent Counsel Act in 1978. At that time, 
there was a general consensus that something had to be done to separate 
from the Justice Department the responsibility to investigate and 
prosecute alleged crimes by named individuals, including the President, 
the Vice President and the Attorney General. At the same time, I and 
many others had serious doubt about the constitutionality of a proposal 
that would diminish or displace the authority of the President and, 
through him, the Department of Justice for faithful execution of the 
laws of the land. However, subsequently, the Supreme Court in Morrison 
v. Olson (1988) held the act to be constitutional.
    But the Independent Counsel Act was one of a series of measures 
enacted after Watergate which, if not unconstitutional, have been 
proved by experience to be unwise. These measures, bearing virtuous-
sounding titles such as ``campaign finance reform'' and ``ethics in 
government,'' have in practice had pernicious effects on campaigns and 
on the operation of the government. This disappointing and frustrating 
result only confirms that the mind of man is incapable of anticipating 
for very long the practical effects of sweeping public policy 
legislation.
    It seems clear to me that, with respect to the Independent Counsel 
Statute, the time has long since come for mid-course corrections. Our 
system is good at that. We recognize that our legislative and policy 
ideas and proposals are never perfect and that the public policy arena 
is one of continuing readjustment.
    It was the conclusion of the Miller Center report that the 
Independent Counsel Statute should be permitted to expire by its terms 
in June of this year. We believe that some sort of policy is necessary 
to insulate the President, the Attorney General and others in high 
office from the possibility of conflict, but that the complexities and 
deficiencies of the Independent Counsel Statute are such that it seems 
to us better to start by writing on a clean slate.
    As pointed out by Professor Sam Dash, who was Counsel for the 
Majority in the Senate Watergate Committee, in a recent column 
appearing in The New York Times, the problems and difficulties 
involving the Independent Counsel Statute really are a commentary on 
how Federal prosecution routinely operates. If that is so, as it may 
well be, then I would commend to the Committee a broader inquiry than 
just the renewal of the Independent Counsel Statute.
    I have no doubt that the Congress, through this Committee and 
others, can draft a statute appropriate to the challenge and minimize 
the difficulties with the present law. I am also convinced that the 
better part of legislative discretion would be to let this act expire, 
to let tempers cool and to address the issue of Federal prosecution in 
a broader, more detached and objective way.

    Chairman Thompson. Thank you very much, Senator. As usual, 
wise words. General Bell.

TESTIMONY OF HON. GRIFFIN B. BELL, FORMER U.S. ATTORNEY GENERAL

    Judge Bell. Mr. Chairman, Senator Lieberman, and Members of 
the Committee, I am opposed to renewing the statute. I have had 
experience under the statute as Attorney General and later as 
counsel for President Bush in the Iran-Contra investigation. I 
long ago concluded that this statute is unworkable for a number 
of reasons and represents very poor governmental policy.
    I am aware that the Supreme Court upheld the 
constitutionality of the statute in Morrison v. Olson, but the 
mere fact that it is constitutional does not mean that it 
represents good policy.
    The statute is badly flawed from the standpoint of fairness 
and efficiency. There are a lot of other things I could say 
that are wrong about the statute. It reminds me of my late 
partner, Charles Kirbo, who was describing a person he did not 
care for in south Georgia. He said he was an SOB and had some 
other faults as well. [Laughter.]
    This is about the best description I can give this statute. 
We prepared this paper for the University of Virginia study 
group.\1\ There were 14 people on that commission, most of whom 
had had government experience, and we had a unanimous vote that 
we ought to let the statute expire.
---------------------------------------------------------------------------
    \1\ The paper from Miller Center of Public Affairs, University of 
Virginia entitled ``The Separation of Powers: The Roles of Independent 
Counsels, Inspectors General, Executive Privilege and Executive Orders 
submitted by Howard H. Baker, Jr. appears on page 120.
---------------------------------------------------------------------------
    Indeed, I was hoping the day would really begin with a 
funeral, but it would take too long. But the question arises, 
Senator Lieberman put his view on just what the issue is, what 
would be substituted for the statute if it were to expire?
    Our response is that we would go back to the system that we 
have always had and under which the Watergate prosecution was 
conducted, the Teapot Dome oil scandal was handled, the Carter 
peanut warehouse was investigated, and even Whitewater was 
being investigated by Bob Fiske, all appointed by Attorney 
General. That was the system we had.
    It lasted for about 200 years and nothing terrible ever 
happened in the country. Every problem we had was dealt with. 
So I think the Department of Justice is perfectly adequate to 
handle any investigation, particularly if we hold the Attorney 
General and the Department of Justice to a standard of being a 
neutral zone in the government.
    That was President Carter's favorite description of the 
Department of Justice. He told me that he wanted me to go over 
there and make this Department of Justice into a neutral zone 
in the government, that all law to be adequate had to be 
neutral and to operate on neutral principles.
    That is what we have to point to. That is what we have to 
demand. There should be no politics in the Department of 
Justice and the Attorney General should take care not to get 
involved in political decisions.
    It is the recommendation of the Miller Center study group 
that the law of recusal, which applies to Federal judges, be 
also applied to the Attorney General except that the Attorney 
General will appoint someone to act for the Attorney General in 
the case of a pending investigation of a high governmental 
official such as the President or Vice President or the 
Attorney General.
    It seems odd that the Attorney General would be recused but 
would appoint someone to act either outside the department or 
inside the department, but that is the kind of country we have. 
Somebody has to be accountable, but we would still hold the 
Attorney General accountable, but someone else would be 
selected about whom there was no question of impropriety to do 
that.
    Now, when I was Attorney General, the statute had been 
passed, but it did not apply retroactively and there was a lot 
of views about President Carter having obtained funds from a 
bank in Atlanta and laundered the funds through his peanut 
warehouse.
    So I appointed Paul Curran, who had been a United States 
attorney in the Southern District of New York who was a 
Republican, to do the investigation. I made a public 
announcement that I had selected him, given him all the power 
of the Attorney General, and he took that assignment on.
    He did not do anything else except that for 6 months. He 
never had a press conference, he never had a leak, and he 
finished it in 6 months, and he said he had accounted for every 
peanut and every nickel and there was nothing wrong. That is 
the way it ought to be done and that is the way it can be done 
in a good system.
    We can go back to that system and I think we would be well-
served. Now, that can be a substitute for the present statute, 
but we require some changing in the law. Somebody in 1987 took 
out one word in the statute, political, in the Section (e), 
591(e), I think it is.
    Somebody took out the word. If I knew who that was, I would 
make a public announcement as to who took out that word. That 
enabled the Attorney General not to be disqualified now. There 
is another part of the statute, 591(c), when she reaches out 
and gets the Governor of Arkansas and other various and sundry 
people because she has a conflict, the word political is in 
there. She had a political conflict. That is, she was appointed 
by the person being investigated. But they took it out of 
another place.
    But there is another statute that somebody called to my 
attention this morning, staff counsel. It was passed as part of 
the Reform Act of 1978, which does apply the Federal judge 
recusal standard to everyone in the Department of Justice.
    Now, that would operate except for the fact that somebody 
has changed this other statute, took the word political out. If 
you do that, that is a substitute, but everybody then would 
know what the system is and people, I think, would be well-
satisfied to go back to the old system.
    Most people trust our government, most people I know, and 
they think it has worked well and they think there is very 
little we can do to improve on what the founding fathers came 
up with and I am of that view. I am pretty well-satisfied with 
the system we have and we do not gain anything by tinkering 
with the system.
    We have tinkered and tinkered about long enough, I think, 
in this particular statute. I have got some other statutes that 
I would like to remove, also, while we are about it. 
[Laughter.]
    Chairman Thompson. We will have another hearing.
    Judge Bell. We will take questions, I am sure, Senator 
Baker and I.
    [The prepared statement of Judge Bell follows:]

                 PREPARED STATEMENT OF GRIFFIN B. BELL
    I served as Attorney General of the United States during the period 
when the original Independent Counsel Act was enacted in 1978 as a part 
of the Watergate reform. The statute had been reenacted several times, 
but always with a sunset provision. The statute was allowed to expire 
in 1992, but was reenacted in 1994 and will be expiring this year 
unless renewed.
    I am opposed to renewing the statute. I have had experience under 
the statute as Attorney General and later as counsel for President Bush 
in the Iran-Contra investigation. I long ago concluded that this 
statute is unworkable for a number of reasons and represents very poor 
governmental policy. I am aware that the Supreme Court upheld the 
constitutionality of the statute in Morrison v. Olson, 487 U.S. 654 
(1988). The mere fact that it is constitutional does not mean that it 
represents good policy.
    The statute is badly flawed from the standpoint of fairness and 
efficiency. It received the consideration of a 14-person commission of 
experienced public officials in a study recently sponsored by the 
Miller Center at the University of Virginia. I was co-chair of that 
Commission on Separation of Powers with Senator Howard Baker. It was 
the unanimous view of our Commission that the statute should be allowed 
to expire.
    I attach a paper which was prepared in connection with that study, 
which sets out some of the problems associated with the Independent 
Counsel Statute and includes sound reasons for a decision not to renew 
it.
    The question arises as to what would be substituted for the statute 
if it were to expire. Our response is that we would go back to the 
system that we have always had and under which the Watergate 
prosecution was conducted, the Teapot Dome oil scandal was handled, and 
the Carter Peanut Warehouse was investigated. Even Whitewater started 
under a special counsel appointed by the Attorney General when there 
was no Independent Counsel Statute; I refer to Mr. Robert Fiske.
    The Department of Justice is perfectly adequate to handle any 
investigation; particularly if we hold the Attorney General and the 
Department of Justice to a standard of being a neutral zone in the 
government. There should be no politics in the Department of Justice 
and the Attorney General should take care not to become involved in 
political decisions.
    Hence, the recommendation of the Miller Center study group that the 
law of recusal which applies to Federal judges be also applied to the 
Attorney General except that the Attorney General would appoint someone 
to act for the Attorney General in the case of the pending 
investigation of those high in government position. This would hold the 
Attorney General accountable to see that the investigations take place 
but by someone who is not subject to questions as to propriety.
    I will be glad to answer any questions.

                               __________
                      INDEPENDENT COUNSEL STATUTE
    The independent counsel era began by statute in 1978 as the special 
prosecutor statute. This was an idea promoted by the American Bar 
Association, and born of the distrust of government created by 
Watergate.
    The statute, with a 5-year sunset provision, has been reenacted a 
number of times and has been amended from time to time. It was last 
reenacted in 1994 after having lapsed in 1992. It expires in 1999. One 
amendment substituted ``independent counsel'' for ``special 
prosecutor.'' Other amendments had to do with persons covered under the 
act and the duties of the Attorney General under the act. An outline of 
the statute is attached.
    Regardless of the amendments, the import of the statute continues 
to be that the Attorney General and the Department of Justice are not 
to investigate allegations of crime against the President and Vice 
President and most of the top people in the Executive Branch as well as 
certain political party officials.
    With respect to the allegations of crimes involving covered 
persons, the Attorney General has limited investigative authority and 
must decide whether to seek independent counsel without convening a 
grand jury, engaging in plea bargaining, granting immunity or even 
issuing subpoenas.
    Some of the separation of powers issues which are implicated in 
this statute were held constitutional in Morrison v. Olson, 487 U.S. 
654 (1988). The linchpin of the holding was that special counsel is an 
inferior officer under the Constitution such as could be appointed by 
the Congress or the courts, and that the Attorney General could remove 
the special counsel. We consider those issues and others as policy 
questions, entirely aside from legality issues.
    The power and duty to faithfully execute the laws is vested by the 
Constitution in the President. He does this through the Department of 
Justice with respect to criminal law. The breadth of the transfer of 
this duty from the Attorney General to independent counsel under this 
statute is substantial. The Attorney General is restricted unduly in 
deciding the need for independent counsel. The Attorney General can 
remove the special counsel, but only for cause and that cause can be 
contested in the courts. In the practical world, no special counsel 
will ever be removed by an Attorney General. The special court appoints 
the special counsel entirely within the discretion of the court. There 
are no realistic fiscal or time constraints on the special counsel. In 
effect, the law creates miniature departments of justice to prosecute a 
particular person. The special counsel has been given the President's 
power and duty to faithfully execute the laws.
    The statute places persons other than high government officials 
under the special counsel jurisdiction. Section 591(c) adds to those 
persons specifically covered in Section 591(b), others when the 
Attorney General receives information sufficient to constitute grounds 
to investigate whether the person may have violated a Federal criminal 
law and the Attorney General determines that an investigation or 
prosecution of the person with respect to the information received by 
the Attorney General or other officer of the Department of Justice may 
result in a personal, financial or political conflict of interest. It 
can be fairly inferred that this jurisdiction requires a nexus to the 
investigation of covered persons under Section 591(b), although the 
statute does not so state.
    It was this section which gave the independent counsel in the 
Whitewater matter jurisdiction over non-Federal persons who were not 
covered in Section 591(b) and who were later prosecuted in the 
Whitewater matter. There was a court decision regarding the Governor of 
the State and private parties who were prosecuted, holding that the 
Independent Counsel Law did in fact cover those persons even though 
they were not in the Executive Department of the government because 
they fell under Section 591(c) and the Attorney General had certified 
that she had a political conflict of interest. See U.S. v. McDougal, 
906 F. Supp. 499 (1995). The unspoken premise was that the President 
was being investigated, thus the nexus to a covered person.
    This peculiar type of conflict (political) is to be contrasted with 
the other provisions of the act which disqualify the Attorney General 
because of personal or financial relationships with covered persons. 
Section 591(e). The political disqualification is used only in Section 
591(c). We are left with the remarkable situation where the Attorney 
General has an admitted political conflict to warrant the appointment 
of special counsel for persons not covered in Section 591(b) but who 
have a close relationship with persons who are covered (the President 
and others). But the Attorney General in a different matter is not 
disqualified on financial or personal grounds where the President is 
the subject despite the fact that the President appoints the Attorney 
General and the Attorney General serves at the discretion of the 
President.
    Any conflict of interest problem, while at the same time honoring 
the President's constitutional duty to faithfully execute the laws 
through the Department of Justice and the preservation of trust in the 
Department of Justice as an institution, would be eliminated if the 
Attorney General and other political appointees in the Department of 
Justice were disqualified on grounds of an appearance of impropriety, 
as is the case with Federal judges. See Title 28, Section 455, U.S. 
Code. The Attorney General would be directed by the statute in such 
event to appoint a person not having a conflict of interest, whether in 
or outside the Department of Justice, to conduct such investigation as 
might be appropriate.
    The special counsel problem, if we agree that it is a problem, 
seems to present a number of options.
    The first is to do nothing.
    The second is to repair the statute in one or more ways. There are 
a number of areas in need of repair. The coverage is much too broad, 
particularly Section 591(c). It is under that section that the 
Whitewater special counsel has received jurisdiction over non-Federal 
persons rather than under 591(b), which includes the President and 
other executive officers. Certainly, Federal special counsel 
jurisdiction over non-Federal persons should not rest on the Attorney 
General being disqualified. Even Section (b) should be modified to 
include only the President, Vice President and Attorney General and not 
the retinue of Federal officers now included.
    Section 592(a)(2), which restricts the Attorney General from 
convening grand juries, issuing subpoenas, and so forth, needs to be 
eliminated to give the Attorney General more discretion to investigate 
allegations. This section puts blinders on the Attorney General with 
respect to making the determination whether to seek special counsel.
    Another area for reform would be in restricting the special court 
in the selection of special counsel. The Court has total discretion now 
and should be restricted to appointing counsel as to whom there is no 
appearance of impropriety. A standing panel nominated by these same 
judges and confirmed by the Senate would let the public know in advance 
of the universe from which special counsel might be selected.
    One problem with the special counsel statute that probably cannot 
be repaired is the inherent absence of due process from the procedure 
itself. This is the isolation of the independent counsel from the 
Executive Branch and the isolation of the putative defendant from the 
safeguards afforded all other Federal investigatees. The inherent 
checks and balances the system supplies heightens the occupational 
hazards of a prosecutor taking in too narrow a focus, a possible loss 
of perspective and a single minded pursuit of alleged suspects seeking 
evidence of some misconduct. This search for a crime to fit the 
publicly identified suspect is generally unknown or should be unknown 
to our criminal justice system.
    The person being pursued publicly in the investigation is treated 
differently from other suspects being investigated by Federal 
prosecutors who are afforded the protection of no comment by the 
prosecution on a pending investigation, including not acknowledging the 
fact of the investigation. Such disparate treatment can hardly be 
justified on the ground that the special counsel treats with only those 
holding political office or their associates.
    The final report by the special counsel can be another example of 
lack of due process by suggesting guilt although there was no 
indictment. An example is the report of Judge Walsh in the Iran-Contra 
investigation. This treatment would never be given by the Department of 
Justice to an ordinary person who was investigated but not indicted. 
The final report should be eliminated. It is quite enough to indict or 
close the investigation.
    The third option would be to let the statute expire. In that event, 
however, the standard for recusing the Attorney General should be 
raised to that of the judiciary, see 28 U.S.C., Section 455, which 
would require recusal when the President or Vice President or Attorney 
General are involved and the impartiality of the Attorney General might 
reasonably be questioned. My experience at the Department was to use 
the judicial model for recusal of all political appointee officers and 
in all matters. The statute might provide that the Attorney General, 
although recused, could appoint special or outside counsel or a Justice 
Department officer who is not disqualified. This would hold the 
Attorney General accountable as a responsible official and avoid any 
possible separation of powers problem. Compare Section 591(e) of 
present statute.
                        SPECIAL COUNSEL STATUTE
                       Outline of Pertinent Parts
A. Section 591
         1. L591(a)--Preliminary investigation by Attorney General 
        under Section 592 when Attorney General receives information 
        sufficient to constitute grounds to investigate whether any 
        person described in Subsection (b) may have violated any 
        Federal criminal law.
         2. L591(b)--Persons covered include President and Vice 
        President plus a host of other Federal officials and some 
        political party officials.
         3. L591(c)(1)--Provides open-ended coverage over and above 
        those persons included in 591(b) of any person being 
        investigated or prosecuted by the Department of Justice which 
        may result in a personal, financial or political conflict of 
        interest. This was the authority used for appointing special 
        counsel to prosecute the Governor of Arkansas and private 
        persons. The Attorney General asserted a political conflict of 
        interest as to those persons. U.S. v. McDougal, 906 F. Supp. 
        499 (1995).
         4. L591(c)(2)--Coverage of members of Congress added in 1994 
        ``when the Attorney General determines that it would be in the 
        public interest to do so.''
         5. L591(d)--How to determine need for preliminary 
        investigation and time periods allowed for determining whether 
        grounds to investigate exist (30 days).
         6. L591(e)--When Attorney General is recused, to designate 
        Department of Justice official not disqualified to take over.
B. Section 592--Preliminary Investigation and Application for 
        Appointment of Independent Counsel
         1. L592(a)(1)--How investigation is to be conducted and to be 
        done in 90 days. Special Court must be notified of preliminary 
        investigation.
         2. L592(a)(2)--Attorney General prohibited from convening a 
        grand jury, plea bargaining, granting unanimity or using 
        subpoenas during investigation.
         3. L592(a)(3)--Court may extend 90-day period for 60 days upon 
        good cause shown.
         4. L592(b)--Court must be notified if further investigation is 
        not warranted and court shall have no power to appoint an 
        independent counsel in the matter.
         5. L592(e)--If further investigation found warranted, 
        appointment of independent counsel by court to follow.
         6. L592(g)--Committee of the Judiciary in either House of the 
        Congress may request the Attorney General to seek appointment 
        of independent counsel--Attorney General must report to 
        Committee giving facts to date and reasons why no counsel 
        sought if that is the case.
C. Section 593--Duties of the division of the court in the appointing 
        process, qualifications of independent counsel, jurisdiction of 
        counsel, and fees for subject of investigation.
D. Section 594--Authority and duties of independent counsel, 
        compensation, expense reimbursement and staff, reports to the 
        court by independent counsel and final report required.
E. Section 595--Congressional oversight
         1. L595(a)--Independent counsel has duty to cooperate in 
        oversight, must file annual reports.
         2. L595(b)--Attorney General must also report within 15 days 
        to Congress as to particular cases or investigations.
         3. L595(c)--Independent counsel must advise House of 
        Representatives of information received which may constitute 
        grounds for impeachment.
F. Section 596--Procedure for removing
         1. L596(a)--Grounds for removal
           a. LReports by Attorney General to court and Congress 
        relative to removal
           b. LJudicial review of removal order
         2. L596(b)--Termination of office by independent counsel, 
        termination of office by court
G. Section 599--Expiration date--June 30, 1999.

    Chairman Thompson. Thank you very much, Judge Bell. Senator 
Baker, there are just so many areas, of course, we would like 
to talk about, but focusing on the role of Congress in all of 
this for a moment, you have seen these things occur from the 
standpoint of many years in Congress as well as in the 
Executive Branch.
    For any system to work, Congress has got to be involved. 
Separation of powers, of course, involves the congressional 
branch. None of us want Congress to be forcing prosecutions, 
but yet, Congress has an oversight responsibility.
    It has occurred to me that part of the problem we have seen 
here, the result we have had is Congress has been able to step 
back or has chosen to kind of step back and not fulfill some of 
its traditional roles.
    In a substantial change, maybe the role of the Congress has 
changed or maybe it should not have, but we have seen some 
investigations successful, some not successful. There are more 
pressures to bear now and attention spans are shorter than they 
used to be.
    What do you see as Congress' role? What has happened to 
Congress' role in all of this and what should it be?
    Senator Baker. Mr. Chairman, I think you touch a 
fundamentally important point; that is, the Congress has the 
inherent constitutional responsibility to oversee the functions 
of government.
    I think in a strange way, the Independent Counsel Statute, 
in whatever configuration and modification, has sort of invited 
Congress to leave it up to George, to back away from it and say 
not only the independent counsel will handle it, but perhaps 
there is something not quite right about Congress looking into 
the matters that are being investigated by an independent 
counsel.
    I think that the oversight responsibility is alive and well 
and I think the Congress ought to fully consider its 
responsibility, its duty to exercise that in connection with 
matters that might otherwise be presented to an independent 
counsel.
    I think that becomes doubly important if, in fact, this act 
expires, because while the Attorney General then and the 
President will have the primary and fundamental responsibility 
for looking into these matters, the Congress has the undoubted 
right to inquire and oversee how that function is performed.
    I do not think anybody thinks that there is a 
constitutional conflict there. So I think you make an important 
point. The oversight function is a terribly important 
safeguard. It is one that can supplement, perhaps even replace 
the function of independent counsel and one that will have a 
great concentrating effect on the minds of those who have the 
responsibility to see that the laws are faithfully executed.
    Chairman Thompson. And it seems to many of us that we have 
recently seen even the congressional role as far as the 
impeachment process has been minimized and that of the 
independent counsel has been greater than what many people 
probably thought when the Independent Counsel Statute was 
created.
    Senator Baker. Well Judge Bell said he would like to take 
out that one word. For my part, I would like to take out that 
provision, that the independent counsel has to file a report, 
has to report to Congress.
    Judge Bell. That is one of the worst things in the statute.
    Senator Baker. Well, it is and what it has done is 
eviscerate the impeachment provisions of the Constitution.
    Judge Bell. That is one of the most unfair things ever done 
in this country.
    Chairman Thompson. And nobody knows what the report should 
contain or should not contain or to what extent Rule 6(e) 
should apply.
    Judge Bell. Well, you can tell that you almost indicted 
someone, but finally decided not to. That is the only thing. 
You would never do that in an ordinary case.
    Senator Baker. That is the only situation that I know of in 
the American governmental system where you can spend millions 
of dollars investigating somebody, a high-profile 
investigation, then say, well, we decided there was not 
anything wrong and he spent millions--or she--has spent 
millions of dollars, has no opportunity really to defend 
themselves, and it is grossly unfair.
    Chairman Thompson. Well, maybe----
    Senator Baker. But on the question of impeachment, Mr. 
Chairman, I think that is worthy of a separate inquiry for this 
Committee because I think you fundamentally changed the 
impeachment functions of the Constitution of the United States.
    Chairman Thompson. And, General Bell, even further than 
what Senator Baker referred to, we have seen that in that final 
report, you can actually accuse somebody of criminal conduct--
--
    Judge Bell. You would need to read the Iran-Contra report.
    Chairman Thompson [continuing]. Without due process.
    Judge Bell. It would be like me being before a grand jury 
being investigated and the U.S. attorney announces that I am 
guilty, but deciding not to prosecute me. This is supposed to 
be a free country.
    Senator Baker. A counterpart to that, though, Mr. Chairman, 
is the story about the old fellow being tried in a justice of 
the peace court in Tennessee and he went home and his wife 
said, how are we doing? He said, I will tell you how we are 
doing. They are telling lies on us and they are proving part of 
them. [Laughter.]
    Chairman Thompson. That reminds me of another story that 
you used to tell.
    Senator Baker. We are in trouble.
    Chairman Thompson. That I have thought of a lot over the 
last several months. Senator Baker represented this mountain 
client who, after Senator Baker had explained to him his duties 
and responsibilities as a witness in his own case, he was being 
charged with criminal conduct, apparently on the steps of the 
courthouse, the old gentleman stopped Senator Baker, leaned 
over to him and said, Howard, now you have to understand. If it 
is just a lie between me and the penitentiary, I aim to tell 
it. [Laughter.]
    I always took that story as a true one. General Bell, let 
me ask you, you referred to a situation in Arkansas. I think 
you were referring to the case of Jim Guy Tucker where the 
Attorney General, I think, recused herself?
    Judge Bell. She had recused herself on the grounds that she 
had a political conflict since she was appointed by the person 
being investigated.
    Chairman Thompson. Apparently then, the political conflict 
was because of Tucker's relationship to the President?
    Judge Bell. Right.
    Chairman Thompson. And she had a political conflict there. 
But when it comes to the President himself under this statute, 
she has no such political conflict.
    Judge Bell. Because they took out the word political.
    Chairman Thompson. They took out the word political. So 
that is just another----
    Judge Bell. Like I said, I would like to find the person 
that did that.
    Chairman Thompson. It is just another result of the 
tinkering, so she has to recuse because of a political conflict 
with Jim Guy Tucker, but she does not have to recuse with 
regard to the President.
    Judge Bell. Right.
    Chairman Thompson. Let me ask----
    Senator Baker. It sounds like Judge Bell is going to post a 
reward for that person.
    Chairman Thompson. In the Paul Curran case that you 
referred to, General Bell, you used your statutory authority 
that you had to appoint a special counsel to come in for that 
period of time. What degree of independence did you give him? 
What can we learn from the situation?
    Essentially if we let the statute expire and do nothing 
else, we would be under the same set of circumstances, 
basically, that you were in at that time and you had that 
discretion and you chose it.
    I am interested in what degree of independence you gave 
him, what you learned from that, what were his reporting 
requirements?
    Judge Bell. I will find the press statement that we issued 
because that was the charter that we had. Then I had a press 
conference and reiterated what was in the press release, that 
he had all the powers that I had to the extent it was possible 
for me to delegate under the Constitution. I was the designee 
of the President to see that the laws were faithfully executed.
    I was acting as an agent for the President and I gave, 
through my powers as the agent, I gave all the power I had to 
him. He could go get all the FBI agents he wanted, get all the 
lawyers he wanted in the department. He did not hire any 
outside people. He just used people we already had.
    Chairman Thompson. Some people have expressed concern over 
a system like that, that you could never afford politically to 
fire a person like that. How did you feel about that? Did it 
occur to you that if he really messed up or he got out of hand 
that you could afford to--I don't know whether you recused 
yourself or not, whether you would be the one doing the firing 
or not, but whether you could afford to fire the person even 
though he deserved it?
    Judge Bell. Well, I could do that. If you are dealing with 
honorable people, you do not have to have a contract. I 
selected him because I knew he was an honorable person, a fine 
lawyer, a fine prosecutor, and I never expected to have any 
trouble with him. But if I had, I could have removed him. All I 
had to do was call him on the telephone and tell him he was 
going too slow or whatever the problem was.
    Chairman Thompson. So you feel that----
    Judge Bell. And there are a lot of Paul Curran's in this 
country that you can find, that the Attorney General can find. 
Ralph Lancaster, Senator Collins mentioned him, a fine lawyer, 
fine person up there in Portland, Maine. He is doing one of 
these special counsels.
    Chairman Thompson. But we do have to account for the 
possibility, don't we, that every once in a while, you are 
going to have a situation where things might get out of hand. 
You have got to account for that somehow and I guess the 
question is whether or not politically you could ever afford to 
fire one.
    I know Harry Truman did one time. I think President Grant 
did one time, also, but lately, that has not been a very 
popular idea.
    Judge Bell. Well, President Grant, unfortunately, made the 
grave error of firing the Attorney General from Georgia. I have 
always held that against President Grant, but other than that, 
he was a pretty good President. [Laughter.]
    Chairman Thompson. Under your proposal, the Attorney 
General would recuse himself and appoint someone either from 
within or without the Justice Department; is that right?
    Judge Bell. Right.
    Chairman Thompson. Do you not think that we need to go 
outside the Justice Department even if you are investigating a 
President? Do you think someone a little further down the line 
in the Justice Department?
    Judge Bell. That would be a case where I would go outside.
    Chairman Thompson. In other words, it would depend on who 
the subject was maybe?
    Judge Bell. We had a case, the Bert Lance case, when I was 
Attorney General and that was handled internally. The 
prosecutors were lower-level people. It did not even pass over 
my desk because I had put in this recusal system we use in the 
Federal court. I had been experienced in the Federal court 
system.
    That is in this statute now, according to what I saw this 
morning, but it does not apply to the Attorney General. It has 
been changed, as I said, with the one word taken out.
    Chairman Thompson. And although the Attorney General has 
that option today to bring someone in, your proposal would make 
it mandatory?
    Judge Bell. Ms. Reno appointed Bob Fiske. That is how Bob 
Fiske got in place in the Whitewater.
    Chairman Thompson. It was during the lapse of the 
Independent Counsel Law.
    Judge Bell. During the lapse. That shows how the government 
we have works.
    Chairman Thompson. And a lot of people feel like Mr. Fiske 
was unfairly criticized, which seems to be the history of any 
investigation now of an independent counsel of a President.
    Judge Bell. Yes. Oh, sure. You are not going to win any 
popularity contest if you are a prosecutor. That comes with the 
appointment.
    Chairman Thompson. Thank you very much, gentlemen. Senator 
Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman. Thank you both, 
Senator Baker and Judge Bell. I am reminded that when I came to 
the Senate from being Attorney General of Connecticut, what I 
most missed was the title general and it is nice to see you, 
General.
    Judge Bell. I have trouble getting people to call me 
General.
    Senator Lieberman. I appreciate your wisdom and I have 
enjoyed your humor. I feel a little bit left out of the 
Tennessee/Georgia circuit. I do not feel an immediate story 
from Connecticut coming to mind, but as we begin this 
proceeding and series of hearings on the independent counsel, I 
am reminded of something that Senator Cleland quoted, which he 
gave credit to W.C. Fields for and it may well describe where 
we are.
    He said, it is time to take the bull by the tail and face 
the situation, and that is about where we are with the 
Independent Counsel Act.
    Senator Thompson asked a bit about this, but I was struck, 
though I know, General Bell, you clearly favor the expiration 
of the law. Senator Baker, you have been quite clear that you 
favor the expiration and a cooling off period and coming back 
to thinking what we can do.
    The commission that you were part of did recommend the 
expiration, but then did say that you recognize that the 
possibility of conflicts of interest in investigation of high 
officials is far from imaginary. I am reading from your report.
    ``The difficulty lies in striking a balance between holding 
such public officials accountable and protecting their inherent 
right to fair treatment. The commission suggests''--and this is 
three lines of raising some possibilities--``that when the 
President, Vice President, or the Attorney General is involved 
in a criminal investigation, the Attorney General should be 
required, under a new statute, to recuse himself or herself 
from the case. The Attorney General, though recused, could 
appoint either outside counsel or a Justice Department official 
who was not disqualified. The Attorney General would remain 
accountable as the responsible official entitled to dismiss the 
counsel or Justice Department official for cause.''
    I wanted to just take a few moments, since that does 
present an interesting alternative to the status quo, and ask 
you just a few questions about that. Under that statute, the 
recused Attorney General would still be the responsible 
official entitled to dismiss the special prosecutor.
    I wonder whether you envision statutory provisions to 
define the procedures for removal under that circumstance?
    Judge Bell. I would not. I think it complicates it beyond 
measure to have a statute. I think the Attorney General is the 
agent of the President. He cannot give away the power to remove 
the person that has been appointed and you have the power to do 
that if you have good reason to do it.
    The oversight committee of the Congress is so strong that 
the Attorney General--I do not know how it was in Connecticut, 
but down here in Washington, every day you are under the gun of 
the oversight committees. You would not dare get rid of the 
counsel that you had appointed because you were disqualified 
yourself unless you had a good reason to do it.
    That is just the way it is. The government works well if it 
is left alone.
    Senator Lieberman. As you know, what engendered the 
original Independent Counsel Statute was President Nixon's 
firing of Archibald Cox, I should say the firing by the 
aforementioned Judge Bork.
    Judge Bell. That was a firestorm.
    Senator Lieberman. That was a firestorm. We did some 
research and it looked to me and my staff as if there had been 
six special prosecutors appointed, that we could find, over our 
history dating back to President Grant up through Archibald 
Cox, and interestingly, three of them were fired and the 
Presidents who fired them may have a pattern--President Grant, 
President Truman, and President Nixon. It is quite an 
interesting group.
    Of course, that is part of why the Congress ventured into 
trying to create a statutory framework to set some standards. 
Although as you indicated very well in your case with Paul 
Curran, a good appointment, thorough investigation, that was 
it.
    I guess the question I want to ask is whether it should be 
a goal of ours to reassure the public that there is going to be 
a clearly independent investigation without concern about 
either influence or termination by a superior officer who is 
just not happy with how aggressively or how the special 
prosecutor is going at it.
    In other words, whether simple recusal of the Attorney 
General, particularly if the Attorney General continues to be 
the responsible official, is enough to reassure the public, I 
suppose, in that sense, whether reassuring the public should be 
an important consideration of ours.
    Judge Bell. I see nothing wrong with having a statute 
saying that the person could be removed for cause, good cause.
    Senator Lieberman. You see that as a reason why----
    Judge Bell. But that raises the problem, though, by having 
a statute because the Attorney General has been appointed by 
the President, the President is being investigated by this 
person, and if she starts trying or he starts trying to remove 
the special counsel, you will have another firestorm.
    Senator Lieberman. That is right.
    Judge Bell. So I think it would be better left unsaid.
    Senator Baker. I agree with Judge Bell. I think that the 
most successful independent counsel or special prosecutor we 
ever had was not done under the statute and that was Leon 
Jaworski. I think the combination of the oversight 
responsibility of the House and Senate together with the public 
reaction, the political reaction to an unwarranted discharge of 
a special counsel is more powerful than any statute we could 
contrive.
    It has been my experience in this and other matters that 
every time we change the delicate balance proscribed for in the 
Constitution, we get in not only to unchartered waters, but we 
get into grave difficulty.
    In the final analysis, it proves not to work very well, 
which is not to say I do not think we can do anything at all. I 
think you can, but I think the more you try to restrict the 
authority of the Attorney General in this respect, the more 
difficulty you are going to encounter.
    Senator Lieberman. Let me ask you both if you want to say a 
little bit more about the suggestion in the commission report 
that we limit even the recusal, the mandatory recusal and 
appointment of special prosecutor to allegations or suspected 
crimes by the President, Vice President, and Attorney General.
    Just explain a little bit. Perhaps it is self-evident, but 
just if you would say a few words about why you think we should 
limit the potential targets to those three.
    Judge Bell. I do not think we should limit it. That is in 
that report, but that was a part of the report I did not write. 
That was not in the supporting document. I think the author was 
doing what you are doing. He was trying to reassure the public 
by naming those three officers, but the statute, it was called 
to my attention this morning, was part of the Watergate reform. 
It applies to everybody in the Justice Department.
    Senator Lieberman. And you would prefer----
    Judge Bell. They are all subject to being recused for 
impropriety, appearance of impropriety just like a Federal 
judge.
    Senator Lieberman. Right. Senator Baker.
    Senator Baker. I really do think that it ought to be 
limited if you are going to have a statute at all simply for 
the reason that these things have a tendency to grow like topsy 
and if you have three, pretty soon there will be a temptation 
to have 6 or 10 or 12. That is the reason I suggest for the 
inclusion of that sentence in the report.
    But I agree with Judge Bell that the general policy in the 
executive department and the Department of Justice calls for 
the recusal of people who have a conflict in any event, and I 
think you are better off not being too precise about it.
    If you are going to be precise at all, you ought to limit 
it very severely and that is to the number three that we came 
up with.
    Judge Bell. Following on that, if this new statute did what 
the report said, limited it to those three officers, that would 
mean that they would not be appointing people outside the 
department except on a rare occasion. Just on those three, you 
would appoint somebody outside the department.
    Senator Lieberman. Would you add to those three, as some 
have discussed in considering an alternative, the executives of 
the campaign committee of the incumbent President? This is 
obviously in our minds because of the 1996 election, but that 
is in the statute now.
    Judge Bell. I think that was added later. Senator Levin 
probably knows when that was added. I do not believe that was 
in the original statute.
    Senator Lieberman. I think that is correct.
    Senator Baker. I think that the regular process of 
monitoring the performance of public officials, and I suppose 
they fall in the category of public officials if not government 
officials, that monitoring their performance is a function that 
the Justice Department can do without any additional and 
supplemental statutory language. I would not favor including--
--
    Judge Bell. The first thing you would know, we would have 
so many special counsel running around that we will not need a 
Department of Justice. We will have 15 to 20 departments going 
at the same time. This is a very bad policy.
    I will tell you another thing that I would like to mention 
while we are on this subject. This statute has done untold harm 
to the Justice Department morale. These people over at the 
Justice Department are professional prosecutors, most of whom 
came there under the honors program. They have been there 25 or 
30 years.
    They think that this reflects on them, that they cannot be 
trusted to prosecute anyone. Therefore, it has been taken by 
the public, by the law, out of their hands and this was true 
from day one. The professionals in the department did not like 
this law. It is not really fair to these people, to have this 
thing outside the department.
    Senator Lieberman. Senator Baker.
    Senator Baker. Let me add to that. It has done damage in a 
lot of places other than just to the Justice Department, too. 
The Iran-Contra matter was being investigated by one of four 
independent counsels when I went to the White House as 
President Reagan's chief of staff.
    It was also the time when the act was reauthorized and sent 
down for the President's consideration, as the Constitution 
requires. Without going into vast detail, I want to tell you 
that there was a great debate going on within the senior staff 
at the White House with the President on whether or not this 
was a good idea.
    I will betray one confidence and say that President Reagan 
thought it was a terrible idea, this whole concept of 
independent counsel, but it was decided that it would not be 
wise for him to veto that bill considering that there were four 
independent counsels investigating one or the other aspects of 
his administration, and he signed it.
    Now, I do not know whether he regretted it or not, but I 
have regretted it because I think that public relations 
politics distorted a fundamental intellectual judgment on 
whether that bill should have been signed or not. But hindsight 
is 20/20 and it is only told to you to emphasize the point 
Judge Bell makes, that the act has had unintended consequences 
a lot of places.
    Senator Lieberman. Thank you both. I do want to say that it 
struck me, in response to what you said about the impact on the 
Justice Department, that one of the sub-dramas we were 
witnessing over the last couple of years is the department 
began to investigate abuses in the 1996 campaign.
    It was not just the judgment by the Attorney General as to 
whether to invoke the Independent Counsel Act and appoint an 
independent counsel to look at that campaign, but there was an 
expression of what might be called internal professional pride 
by the public integrity section that wanted to prove that they 
could do it.
    Judge Bell. I think to have an Attorney General who lets 
people vote on things, let's the FBI give their opinion about 
what ought to be done, I think that is the worst policy in the 
world. If you are going to be the Attorney General, you have to 
be the boss, you have to be accountable, and you have to make 
the decisions. If you are not going to do that, then you do not 
need that job. We need to get somebody else in the job.
    Senator Lieberman. Hearing you say that, General Bell, 
reminds me how much things have changed around Washington. 
Thank you both very much.
    Chairman Thompson. We have two Members that want to have 
brief opening statements. Senator Specter and Senator Edwards, 
briefly, if you would, please, and then we will go to Senator 
Collins for questions.

              OPENING STATEMENT OF SENATOR SPECTER

    Senator Specter. Thank you very much, Mr. Chairman. Just a 
couple of comments. I appreciate very much what Senator Baker 
and Judge Bell have had to say. When you talk about oversight, 
I am interested in what Judge Bell had said, strong 
congressional oversight from the perspective of somebody who is 
being overseen.
    The attitude that I think most of us have who are doing the 
oversight is it has not done much good and that there has to be 
something of a greater structure. When you talk about the 
professionals, you have Charles LaBella who called for an 
independent counsel and you have the FBI director who calls for 
an independent counsel, and there is a real problem as to what 
is going on in the Justice Department, that they are taking 
votes.
    Now you have the fury about an investigation of Starr and 
another independent counsel coming in to investigate Starr. The 
removal statute is explicit in calling for personal action of 
the Attorney General, only by the personal action of the 
Attorney General and only for good cause, and you would think 
that the Attorney General might be involved personally and make 
a determination on these factual matters which we have heard 
and come to a conclusion.
    I look at the matter to see what the experts have to say, 
but have an interest in some structure. We have had a lot of 
experience with the Independent Counsel Statute and most of it 
has been bad, but there are some specifics that I think we 
ought to undertake.
    I think we ought to limit the subjects. We do not have to 
have the various secretaries called in for independent counsel. 
Probably the three you articulate, President, Vice President, 
and Attorney General is sufficient. It seems to me that if you 
have the President, who is suspected of that, nobody can serve 
two masters and you just have that tremendous potential for 
conflict.
    Then the tenure has been expanded. Why not limit the 
independent counsel to the life of the grand jury and expanded 
it for cause shown? But 18 months has been established for an 
investigative period, which is a pretty good hallmark, and I 
think it ought to be full-time. If someone is not prepared to 
devote full-time to being independent counsel, they ought not 
to take the job.
    You cannot get the job done in full-time, let alone in 
having another job. Then the expansion of jurisdiction has been 
ill-advised. You talk about oversight. We had the Attorney 
General in for Judiciary Committee oversight and we have done 
this on a couple of occasions and it is a nullity.
    I asked the Attorney General why she expanded Starr's 
authority and she said the petition speaks for itself. Well, 
the petition, two half-pages, does not speak, it barely 
whispers, as to why Starr's jurisdiction was increased.
    I said contemporaneously that it was a bad move, not in 
derogation of Starr, but because the public would have no 
confidence with the public perception of a vendetta, of Judge 
Starr being out to get the President. I am not saying it is 
true, but that certainly was the public view.
    Then you have the concern as to whether the Attorney 
General will act, and she has special counsel for just about 
everybody except the President. If you take a look at the 
Alexis Herman, Secretary of Labor's application, it is shameful 
with the concession on the face of the application that there 
is no basis for doing so.
    We have worked very hard on the question of some judicial 
review and I have prepared a mandamus action. You cannot really 
file a mandamus action for independent counsel in the context 
where you are having an impeachment proceeding. You just cannot 
do everything at the same time.
    But the Attorney General has turned a deaf ear on 
overwhelming evidence which this Committee developed on 
campaign finance reform and the issues of Chinese 
contributions, etc.
    When I was district attorney of Philadelphia, there was a 
statute which said, somebody could petition the court to 
replace the public prosecutor if there was a dereliction of 
duty, fails or refuses to prosecute, on abuse of discretion. 
Perhaps we might head there in a more simplistic way. But at 
least preliminarily, my thought is, we ought to have some 
structure here and that the conflict is a very deep and a very 
serious one.
    I appreciate what Senator Baker says about public reaction 
and I think there is a lot to that, but I just have a question 
as to whether it is enough. I am going to listen to the 
independent counsel today and try to make an informed judgment. 
Thank you.
    Chairman Thompson. Thank you very much. Senator Edwards, do 
you have any comment.

              OPENING STATEMENT OF SENATOR EDWARDS

    Senator Edwards. Just very briefly. Judge Bell, Senator 
Baker, it is a pleasure to be here. It is always wonderful to 
be in the presence of great lawyers who have spent a lot of 
their lives in public service.
    General Bell. And who have no accent.
    Senator Edwards. You are not claiming I have got an accent, 
are you?
    Let me just say very briefly that the only thing that is 
clear to me is that this Independent Counsel Law has been a 
disaster and it is a mess and oftentimes, it seems to me, that 
when you try to fix a mess, you end up with a worse mess.
    I am completely open-minded about precisely what ought to 
be done. I have listened with great interest to what the two of 
you have had to say and I will listen with great interest to 
the other panels. I come to that subject with a completely open 
mind.
    I thank you all for being here and appreciate 
participating.
    Chairman Thompson. Thank you very much. Senator Collins.
    Senator Collins. Senator Baker, Judge Bell, you are 
obviously held in great esteem by all the Members of this 
Committee, and your assessment of the need for this law differs 
dramatically from mine, so it would be probably prudent on my 
part to not ask you any questions at all.
    Nevertheless, I do want to express to you my concerns about 
why I think we need to totally overhaul this law, but why we 
still need a mechanism for an independent counsel. I want to 
suggest that the Independent Counsel Law, if it operates as we 
would like it to operate, can actually confer benefits on the 
high-ranking official who is being investigated. Let me give 
you two examples of that.
    One is when the independent counsel clears the high-ranking 
official, the President, the Vice President, a cabinet member, 
of wrongdoing.
    It seems to me that the public is much more likely to have 
confidence in that decision and to be ensured that it was not 
tainted by any political considerations if it is made by an 
independent counsel than if it were made by a Justice 
Department official or even a special counsel appointed by the 
Attorney General.
    It seems to me that having that decision made by an 
independent counsel removes any cloud of suspicion over how the 
decision was made.
    The second example of the benefit of the Independent 
Counsel Law, to me, is that it guards against the Department of 
Justice bending over backwards and prosecuting the high-ranking 
official in a case where normally a prosecution would not be 
brought in order to remove any public doubt about why the 
decision was made.
    So that I would argue that in a close call, the independent 
counsel is much more likely to have the ability to clear an 
official or decide that the case is not worthy of prosecuting 
than if it is done within the Department of Justice where the 
pressure, because of public perception, might be to prosecute a 
case that otherwise would not be.
    So I would like you to respond, each of you to respond to, 
how can we get those kinds of benefits without an Independent 
Counsel Law?
    General Bell. I would say that if I was the President or a 
high official and somebody told me that this is going to be a 
big favor to you, we are going to appoint a special counsel, 
special prosecutor to investigate you, I would pay any price 
not to have that favor done for me.
    I would rather be prosecuted by somebody at the Department 
of Justice that is a professional prosecutor.
    Senator Baker. I guess I think, Senator, that my initial 
remark addresses the issue somewhat; that is, I have been on 
every side of this issue since 1978, even before 1978, in the 
wake of Watergate, and I have had a variety of positions on 
what we ought to do, and as I examine them, I lay them aside 
one at a time.
    The truth of the matter is, I do not know what you ought to 
do, but I think you ought to let this act expire, have a 
cooling off period, and then decide in a calm and deliberate 
way what would be appropriate to do. I think the times are so 
tense right now politically that almost anything we do for 
months to come is likely to be a mistake. So I think we ought 
to just cool it off for a while.
    I do not say that nothing is required, although I must say 
the older I get, the more I become a constitutional purist. I 
think the Constitution apportioned and assigned responsibility 
pretty well, very well indeed, and that that coupled with 
oversight in the Congress, coupled with the elective process 
has served us mighty well over the years.
    But I do not rule out the possibility. If I were sitting in 
your seat, I would not rule out the possibility of passing some 
law some time, but I would resist doing it right now.
    Senator Collins. Thank you. Mr. Chairman, I guess the final 
comment that I would make is, I think as we struggle through 
this issue, that we do have to remember that the reason this 
bill was passed in the first place was to promote public 
confidence in the decisions that were being made.
    We need to be fair to the targets of investigations. We 
need to make sure that we have a carefully crafted and balanced 
law, but we also need to remember that the ultimate goal is 
promoting public confidence. Thank you.
    Chairman Thompson. Thank you very much. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman, and again, let me 
thank our witnesses.
    First, Judge Bell, on the question of whether or not a 
public official--someone in his right mind--would request the 
appointment of an independent counsel, we have had a number of 
examples where actually that was requested by a public official 
in order to make sure that there would be public confidence in 
the outcome.
    I remember, for instance, when Attorney General--or former 
Attorney General then, I guess, Ed Meese specifically requested 
that there be an independent counsel just so he was confident 
that he would be cleared, and that when he would be cleared or 
not prosecuted that then it would have much more public 
credibility than if there was an inside person selected.
    So I think that Senator Collins' question does raise a very 
important point. I think your response is also true. You would 
have to probably wonder maybe, given recent activities at 
least, whether that person had ``lost it'' in making that kind 
of a request, but history has shown that there have been such 
requests for that particular purpose. I just want to add that 
to the record because I think it is an important point.
    Judge Bell. I was not aware of it that General Meese made 
that request.
    Senator Baker. He did.
    Senator Levin. Second, Senator Baker, your advice is always 
to be listened to very, very carefully, and your cooling-off-
period suggestion basically is what we may end up doing either 
intentionally or unintentionally, but----
    Senator Baker. If I might say, Senator, I found that always 
to be welcome advice to tell the Senate to put something off.
    Senator Levin. I remember when you were majority leader, 
you were trying to get us to move, but my question really is 
this. You are such a thoughtful person that we at some point 
would welcome your assessment of some specifics, and when that 
point comes, when you feel free to give us that assessment or 
when you think, assuming we have not acted by then, the 
cooling-off period has lasted long enough, it would be welcome, 
I know, by all of us that you give us specific reactions to 
specific suggestions, and that is true very much with you, 
General Bell, as well.
    You, though, have not suggested a cooling-off period. So 
you may be willing to give us your reactions to specific 
proposals now rather than later, but let me start, then, with 
you.
    One of the suggestions that I believe Senator Baker had 
made in earlier days was kind of bolstering the Public 
Integrity Section, and I want to make sure my memory is correct 
on this. If it is not, Senator Baker, please correct me.
    One way to do that, if we decide not to reauthorize this 
outside person, but to somehow or other strengthen the inside 
part of the Justice Department that might have jurisdiction 
over these kind of cases, one suggestion which had been made--
and I think I am expanding a bit on it--would be that the 
Public Integrity Section be subject to Senate confirmation, 
have a fixed term perhaps, and be subject to removal for cause 
only. And perhaps a fourth part of that would be that that 
person still be under the control of the Attorney General and 
in the Attorney General's office, but head of that section, 
would file a report not just to his or her boss, the Attorney 
General, but would also file a report should he or she choose 
with the Congress to give some kind of an outside oversight 
aspect to that.
    I am wondering whether or not you would feel free to 
comment on that, and then I will ask you, Senator Baker, if you 
would want to comment on that, despite your own advice that we 
cool off.
    So, first, General Bell?
    Judge Bell. I am not certain I favor that, and I will tell 
you why. Attorney General Levi set up something called the 
Office of Professional Responsibility that governed the 
lawyers' conduct. It worked very well. It was very independent. 
As a matter of fact, I was investigated twice myself by that 
office because somebody accused me of something. I just said, 
``Well, investigate me. I would be glad to be investigated.''
    That now is in the deputy's office, assigned to the 
deputy's office. So you have got the deputy in charge of the 
Office of Professional Responsibility. That very same thing 
could happen with the Public Integrity Section. I am very 
familiar with the Public Integrity Section department, and it 
works well now. They are in the criminal division. They do a 
good job, but I am not saying just setting up another bureau 
like that is a good idea. That is what special counsel are. 
They have got bureaus. They have got an idea how they want 
people. They do not use department people, except if they want 
to.
    So I am not stating I am in favor of that.
    Senator Levin. All right. Senator Baker.
    Senator Baker. I thought it was a good idea at the time, 
but I am not so sure now. I spoke earlier about diluting the 
authority of the Attorney General or even displacing the 
authority of the Attorney General or the President. I worry 
more about that now than I did at that time, but I do think it 
is one template that might be applied to the problem.
    I would add to that, I have often thought that perhaps the 
head of that section, confirmable by the Senate, should have a 
term of years that was not coterminous of that with the 
President, but all of those things raise a fundamental concern 
in my mind about whether or not it's an unwarranted intrusion 
into the constitutional chain of command. I will think some 
more about that.
    Answering your first question, it is more than mere lip 
service to say that I want to hear this debate. I want to see 
what comes from Congress and from commentators and reporters 
and columnists about this issue because I find over the years 
that, as time goes by, I benefit from those things. I may 
disagree with most of them, but I take them in and I sometimes, 
to my own surprise, end up with a firmly fixed view of 
something.
    I am hoping that will happen here, but I must say in 
candor, as I have once or twice before, if I were sitting in 
your place, Senator, I could not honestly say that I could 
wholeheartedly recommend a statute to take the place of this 
one against the proposal for a cooling-off period.
    Judge Bell. I would like to give you a bit of history on 
that idea of the Public Integrity Section.
    President Carter once asked me for a legal opinion as to 
making the Department of Justice an independent agency, and I 
got the Office of Legal Counsel to study the question and to 
give the answer, a formal opinion--I suppose it is over at the 
Department now--the answer was that you could not do that 
because the only power to execute the laws is given to the 
President.
    If we made the Department of Justice independent, we would 
have to get another Department of Justice. We would have to 
have some way for the President to faithfully execute the laws. 
It is very difficult to tinker with the system. Somehow or 
another, we just have to make it work as it is.
    Senator Levin. One of the problems with going back to the 
appointment of special counsel is what happened to Judge Fiske. 
He was appointed by the Attorney General to look into the 
President Clinton matter.
    Then, when we reauthorized the Independent Counsel Law, we 
specifically provided that the court could continue him or any 
existing special counsel as an independent counsel in the event 
there was a request to the court to appoint an independent 
counsel. Yet, that court, even though Judge Fiske had done a 
lot of work already and I think had completed his investigation 
of the Vince Foster matter, for instance--that court said, if 
my recollection is correct, that the fact that he was appointed 
by the Attorney General tainted that appointment and therefore 
would not continue him as independent counsel, but instead 
would appoint Kenneth Starr.
    I think we have to remember that we now have a court saying 
that the appointment of a special counsel by the Attorney 
General was tainted because it was the Attorney General which 
made the appointment and would we not get back into that same 
situation if we go back to the prior situation.
    Now, that is not so much a question, although I would 
welcome a comment from either of you.
    Senator Baker. Well, it would if you still have the three-
judge supervisory panel, but if the act expires, presumably 
that would expire, too.
    Senator Levin. No. I mean their thought, though, the 
thought that somehow or other it was tainted by the 
appointment, would continue in other places even if there were 
no three-judge panel.
    My point is that even a panel that you would think would be 
much more cautious and more thoughtful before reaching that 
kind of a conclusion reached a conclusion that the mere 
appointment of a special counsel by the Attorney General 
somehow or other tainted the independence of that person, and 
therefore, they were going to go with somebody else.
    I just want to throw that back into the mix.
    Judge Bell. Maybe the judges thought that. They must have 
had that idea. I do not know.
    Senator Levin. I am sure they did.
    Judge Bell. One of the worst things about this law--there 
are a lot of things wrong with it--is the fact that three 
judges can sit over there in the District of Columbia and pick 
the special counsel, anybody they want, they do not have to be 
confirmed by the Senate. At one time, Lloyd Cutler had the 
idea, that we would have a law that would create a standing 
panel of prosecutors and the judges had to select from this 
standing panel, each of whom had been confirmed by the Senate. 
This is another thing where you have power that is unaccounted 
for. It is not good.
    Senator Levin. Senator Baker, you made a reference that I 
would like you to expand upon having to do with Section 595 of 
the Independent Counsel Law, which is the provision that 
relates to the impeachment question. It says that the 
independent counsel shall advise the House of any substantial, 
credible information which such independent counsel receives in 
carrying out the independent counsel's responsibilities, if 
such information may constitute grounds for an impeachment.
    You indicated that this fundamentally changed--I believe 
this is your reference--the impeachment power of the United 
States, and that is something I was very much troubled by in 
this last impeachment. There was such a huge role for the 
independent counsel which was taken by the House as the 
investigatory material for its impeachment.
    Would you just expand as to what you meant by that?
    Senator Baker. Once again, I am not sure how I would handle 
that because, certainly, simple logic suggests that if a 
special counsel or anybody else turns up with a serious 
allegation against a President that might be an impeachable 
offense, they owe a responsibility to pass it on to the House 
of Representatives, presumably to the Senate as well in due 
course.
    But it seems to me that the very fact that the House did 
not have hearings, but rather depended on the record that the 
special counsel submitted to them, changed the way the 
Constitution originally had described the impeachment process.
    I guess I visualized in my mind's eye that if the special 
counsel found serious charges or had serious charges against 
the President, he would convey that to the House, but it would 
be the responsibility of the House to investigate those things 
and to decide whether or not to go forward with the impeachment 
provisions under Article I of the Constitution.
    Judge Bell. Was there any other statute ever born like 
this? I have never heard of any statute that requires 
prosecutors to give the House evidence of impeachable offense.
    Senator Levin. I know of none.
    Judge Bell. I think this is only one.
    Senator Levin. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much. Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    There are a number of States which have provisions that if 
the prosecutor fails to perform his duty, he uses discretion on 
application to the court. The court may appoint special counsel 
to handle the prosecutions.
    One of the problems which we have had with respect to 
campaign finance reform and the investigation of the Chinese 
contributions, made by this Committee, involved the refusal of 
the Attorney General to appoint independent counsel to those 
very serious charges to the President at a time when 
independent counsel was being appointed--Secretary of Interior 
Babbitt, Secretary of Labor, etc.
    I had produced an amendment in July, 1997 which sought to 
provide for some appellate review and to limit the standing to 
a majority of the Judiciary Committee of either house or a 
majority of the minority so that the party out of power would 
be represented, and this is similar to a provision in the 
existing law which gives those individuals in the Judiciary 
Committee the right to request in writing that the Attorney 
General apply for the appointment of independent counsel, but 
the Attorney General may then refuse if the Attorney General 
chooses.
    My question to each of you is: What would you think of 
imposing that limited kind of statutory approach to have 
judicial review if you have people of that standing and the 
Judiciary committees come forward and make an application? 
Senator Baker.
    Senator Baker. Well, Senator Specter, I must tell you, once 
again, I have not given serious thought to your proposal. I 
guess I can visualize a situation where that might be abused, 
but let me think about it. I would rather not give you an 
answer at this time.
    I will tell one more story, and I promise I will not tell 
any more.
    Senator Specter. Your stories certainly impede our 
questions, Senator Baker.
    Senator Baker. When I argued my first case before a jury, I 
was a very young man. My dad was there. He was a lawyer, too, 
and when I sat down, I said, ``How did I do?'' He said, ``You 
did OK, but you ought to guard against speaking more clearly 
than you think.'' [Laughter.]
    If I tell you one bit about what I think about your 
amendment, it will be more than I know. So I think I will wait.
    Senator Specter. Senator Baker, to repeat a Senator Baker 
story before you came to the Senate as a rich young lawyer and 
left 18 years later, none of the three?
    Senator Baker. That is right. You remember my closing 
remark when I came here. I was a wealthy young lawyer, and I 
have recovered from all three conditions.
    Senator Specter. Well, I am glad to hear that.
    Judge Bell, what about some judicial supervision?
    Judge Bell. That would be like making the Attorney General 
subject to the All Writs Act, Mandamus.
    Senator Specter. Correct.
    Judge Bell. And I am not certain that--I mean I think the 
Attorney General can ignore the statute and effectively about 
the statute, and there is nothing you can do about it now.
    Senator Specter. I think the Attorney General has done 
that, and that is why there was such extensive consideration 
for a Mandamus action.
    Judge Bell. I have a serious doubt that the courts would 
uphold this statute as being constitutional on account of 
Separation of Powers. I have never heard of being able to 
Mandamus a prosecutor, for example, in the Federal system, but 
I do not know. I have not looked into it. I see where you are 
coming from.
    Senator Specter. There is some authority to that effect. 
There had been three cases that were brought in the District 
Court to Mandamus, the Attorney General-appointed independent 
counsel, and were granted. All three were overturned on appeal 
on lack of standing. That is why my provision very carefully 
crafts standing in a very limited way to Senators on the 
Committee and a majority of either party to do that, but I 
think the Morrison case does raise the issue which you have 
addressed. I think that is true, but my instinct is that we 
could craft the statute around that if we decided that as a 
matter of public policy, we thought it was a wise thing to do.
    Judge Bell. Yes.
    Senator Specter. Senator Baker is certainly correct on the 
frustration which has set in around here when we have worked on 
campaign finance reform and have produced such powerful cases. 
You have the FBI director, a very distinguished lawyer and 
former Federal judge, and Labella, and you have the Attorney 
General just refusing to act on that. Essentially, we are 
looking for a referee.
    Judge Bell. When I was serving on the Fifth Circuit Court 
of Appeals, we had a district judge in Mississippi who ordered 
the U.S. Attorney to indict someone, and the U.S. Attorney 
refused, took it over to the Justice Department. The Attorney 
General just refused, said do not do it.
    I cannot remember how we got the case, whether it was on a 
contempt citation or what, but we held in that case that the 
judge did not have the power to tell the prosecutor to indict 
someone. There is a line there somewhere. I would really have 
to do a lot of research to answer your question.
    Senator Specter. Well, on the case you cite--and I have 
seen judges try the same thing--where it is sua sponte, or they 
do it as opposed to someone coming to the court in an organized 
sustained way with evidence, if the judge tries to do it on his 
own, which may have been your case--of course, I do not know 
the specifics--I think there is a limitation on judicial power.
    Judge Bell. It was a Federal judge ordering the Federal 
prosecutor to indict someone, and his contention was he 
committed perjury sitting in the witness box.
    Senator Specter. Well, I have seen that happen. I have seen 
that as district attorney, and I do not think the judge can do 
that, being in effect an indicting grand jury.
    I think it is different when the judge is asked in his 
judicial capacity by a third party on presentation of evidence 
to appoint the independent counsel.
    Judge Bell, let me pick up on a comment that you made on 
calling on the telephone, and I think the telephone is a great 
way to do it. Little independent investigations are a great way 
to do it. I am very concerned about what is happening now in 
the morass that has come about on the investigation of Judge 
Starr and now the three-judge special panel is in it.
    When I was district attorney of Philadelphia, which is 
obviously a much different situation, a much lesser situation, 
but I had my top deputies accused of impropriety, and I felt it 
incumbent upon me to make that my first order of business and 
to call in the people who had knowledge of the impropriety and 
then to call the deputy in and confront the issue and make a 
very prompt determination. It was my job as district attorney. 
I was the elected official.
    Judge Bell. All right.
    Senator Specter. And when I look at the statute for removal 
and see the trouble the Congress went to, to make it the 
``personal action'' of the Attorney General, I really wonder 
why there are so many committees and so many votes over there, 
and the stories come out. The staff is equally divided as to 
whether Harold Ickes, the deputy chief of staff, ought to be 
indicted or not, and then you have the stage all set.
    Would you be willing to make a comment as to how you would 
handle it? Would you do it on the phone, if you had----
    Judge Bell. Well, I would make the decision myself. I would 
not take a vote of my people. That is the first step.
    Senator Specter. You might do a little bit of independent 
investigating?
    Judge Bell. Yes, and I would not require the FBI to tell me 
what I ought to do. I mean, I would do it--the Attorney General 
needs to do it, make her own mind up about it, and if she does, 
I think she has the discretion to say yes or no because there 
is no way to appeal the ruling, even though you might think she 
is wrong. I do not think it can be appealed now.
    Senator Specter. Well, that would depend on whether or not 
we can structure a Constitution----
    Judge Bell. Right.
    Senator Specter [continuing]. Provision which would give 
the--limit the right of appeal on a special group which had 
special standing.
    Judge Bell. This is something that has been going on for 
years at the Department of Justice.
    One of the things that the Senate used to do when I was 
Attorney General is try to get underlying memoranda to show 
that somebody working under me disagrees with what I did, with 
the conclusion I reached, and I never one time gave an 
underlying memoranda, took the position that the Senate was not 
entitled to them. It just creates chaos in trying to govern the 
run of the Department.
    Senator Specter. Did you allow your subordinates to 
publicly disagree with you?
    Judge Bell. I did not have anybody--if somebody wanted to 
disagree with me, I would put it in a press release, give 
names. I mean, I had no problems with people disagreeing with 
me, but somebody has to be in charge, and you cannot 
investigate me by getting all the people under me to say, 
``Well, I would not have made that decision.'' I mean, that is 
a poor way to run a government, in my judgment, and I never 
would produce such a document, and I would not now if I was 
Attorney General. Again, I would not produce that because I do 
not think that is the right way to do it now.
    But since Ms. Reno has put in the system, the way she takes 
a vote apparently from different people and what they think 
about how to do things, I guess you are entitled to get all of 
that information.
    Senator Specter. Well, it is----
    Judge Bell. I am not being critical. She appointed Labella. 
She asked the head of the FBI to give his opinion. So you have 
got all of these opinions out there in public, but, ordinarily, 
we charge the Attorney General with running the Department of 
Justice, and if it is a decision that has to be made by the 
Attorney General, that is it. He makes it, or she makes it.
    Senator Specter. Well, that would be something beyond, I 
think, congressional reach, except where you have the 
Department in such disarray. The FBI Director speaks out really 
out of a very profound sense of disagreement, and you have 
Labella speaking out in a very profound sense of disagreement. 
Then the fat is in the fire, and we do have oversight 
responsibilities, but if you examine the transcripts for 
Senator Thompson or I or others who questioned the Attorney 
General at Judiciary oversight hearings, what is the basis for 
expanding the jurisdiction of Ken Starr on the Lewinsky matter, 
the petition----
    Judge Bell. Well, you have oversight jurisdiction.
    Senator Specter. Let me finish. The speaker speaks for 
itself, Senator, but the petition does not speak at all.
    Judge Bell. Yes. I think you have oversight to look into 
that. You have a reason to look into it.
    I had a head of the anti-trust division once say that the 
Department--he and his underlings decided I had made a bad 
ruling when I told him to do something on an anti-trust 
investigation, and they said they would like it to be publicly 
known.
    So I said we will issue a press release saying--and you 
give me the rest of the names--that you all disagree with the 
Attorney General, but he had already made the ruling. So I have 
said let me have the names. Well, in a little while, he never 
brought the names. So I called him and asked him to please send 
the names up, but he never gave them to me. That ended that.
    Senator Specter. Thank you very much, Judge Bell, Senator 
Baker. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much. Senator Durbin.
    Senator Durbin. Senator Baker and Judge Bell, thank you for 
being here, and I apologize for stepping out a few moments. You 
made a valuable contribution. It is certainly refreshing to 
hear your point of view with some experience under your belt.
    I would like to ask you just one question in deference to 
the Chairman's concern in the next panel, and it relates to a 
problem that I think is before us. To put it in a nutshell, 
when I worked in the Illinois General Assembly, we had what we 
called the perpetual motion bill where we increased the size 
and weight of cement mixers, concrete trucks, to a point where 
they would tear up the highways. So we figured that they would 
be tearing up the highways as they dumped the cement and 
concrete behind them and to patch them, perpetual motion, just 
keep it going.
    This seems to be a perpetual-motion law that we have here. 
I noticed--and I think she may be with us today--Ms. Melanie 
Dorsey was quoted a few months ago in The Washington Post about 
her efforts to close down an office of the independent counsel 
and how it became almost impossible because they had to have an 
audit every 6 months by the General Accounting Office. It was 
required by law, and so they had to have an employee. So they 
kept the employee on the premises for the General Accounting 
Office audit, and then, of course, I guess they had to audit 
the presence of that employee. So it never ends. Some of these 
have gone on for 9 years and more.
    My question to you is very simple. If we accept your 
premise, this has to come to an end, how do we turn the lights 
out on all of the existing independent counsels and do it in a 
fair way? What do you think might be a reasonable approach to 
do that?
    Judge Bell. The statute has got a provision in it that I am 
very familiar with, because I almost used it in the Iran-Contra 
investigation representing President Bush, that you can 
petition the Department of Justice or the court to transfer the 
investigation back to the Department of Justice.
    I think it probably contemplated loose ends, but to finish 
it. Maybe there is no reason to have a special counsel for some 
of the cases. So that would be the way I would go, to just use 
that statute.
    Senator Durbin. Send it back to the Department.
    Judge Bell. Yes.
    Senator Baker. I agree with that. I think that it is a real 
problem, but I think that there is already a remedy, and I 
think either to have the Attorney General take care of it or to 
have a petition that it be closed down.
    Senator Durbin. Does that have to go back through that 
three-judge panel to happen, though?
    Judge Bell. It can go to the Attorney General first, and if 
she does not want to do it, then you can send it to the three-
judge panel. Either one has the power.
    Senator Durbin. Thank you very much for your response, and 
thanks for being here. Thanks, Mr. Chairman.
    Chairman Thompson. Thank you very much. Senator Edwards.
    Senator Edwards. Thank you, Chairman. I will make this very 
brief. I promised I would be brief.
    It seems to me that we talked about lots of options for 
dealing with this issue, the independent counsel being one, the 
existing law, the power of the Attorney General to appoint 
special counsel, bolstering the Public Integrity Section.
    The thing I have not heard discussed, at least not much--I 
mean I came in late--is can you all imagine a way that the U.S. 
Attorney within the existing structure of the Justice 
Department--that the U.S. Attorney, for example, for the 
District of Columbia, that we could set up sufficient 
safeguards that the public would feel comfortable with the 
notion that the U.S. Attorney prosecuted these kinds of cases 
within the existing system?
    Judge Bell. I would not feel comfortable with it. U.S. 
Attorneys are usually the most political people you can find, 
anyway. They are all appointed by the Senators. [Laughter.]
    The Constitution fooled the people into thinking they are 
appointed by the President.
    Senator Edwards. Right.
    Judge Bell. I went to see a U.S. Attorney one time in the 
West, and he did not have a picture of President Carter in his 
office, but he had a picture of his Senator. I said, ``Well, 
why don't you have a picture of the President in here?'' He 
said: He didn't appoint me; Senator So-and-So appointed me.
    Chairman Thompson. Senator Edwards has not been here long 
enough to make any appointments yet. I think that is the point. 
[Laughter.]
    Judge Bell. He has not made any appointments yet.
    Chairman Thompson. That is correct.
    Senator Baker. That is not constitutionally correct, but it 
is much admired in this building.
    Senator Edwards. Senator Baker, do you have an opinion 
about that? Do you agree with that?
    Senator Baker. Yes, I do agree with that. I think U.S. 
Attorneys by and large are very professional, very qualified, 
but I think it is above their pay grade. I really do think it 
requires special attention. I think the Attorney General should 
have the responsibility, and if he chooses a U.S. Attorney 
someplace to do it, that is fine with me, but I do not think 
U.S. Attorneys on their own initiatives should have that power.
    Senator Edwards. And neither of you can imagine some sort 
of system, procedure, or mechanism by which, for example, the 
U.S. Attorney for the District of Columbia could be appointed 
in a less political way that would solve this kind of problem?
    Judge Bell. I do not want to say that. I do not think we 
ought to tinker around with things. We have an Attorney 
General. Just hold the Attorney General responsible, and if she 
has got a conflict of interest or he has, step aside, appoint 
somebody in your place.
    Senator Baker. I agree with that. I want to think some more 
about Senator Specter's dilemma, that is, what do you do when 
the Attorney General will not act and when there are 
significant reasons to think that there is major controversies 
in the Department. I want to think about that part, but 
otherwise, I think you have just got to depend on the Attorney 
General. You have got to just depend on the Attorney General 
doing what the Attorney General is supposed to do. That is the 
delegate of the Presidential authority.
    Judge Bell. I think I do not know the answer to that 
question either. It is certainly worth thinking about.
    Ordinarily, if the Attorney General would not act, the 
President would get another Attorney General because he would 
feel responsible. He is elected by the people.
    Chairman Thompson. But what if the proposed action, though, 
had to do with the President?
    Judge Bell. I know. That is a problem, and so what Senator 
Specter is saying is there ought to be some appellate authority 
you could go to, and it would be----
    Chairman Thompson. A Mandamus-type thing.
    Judge Bell. It would be a Mandamus-type thing. It would 
have to be a clear case. It could not be just an appeal. It 
would have to be a Mandamus.
    Senator Edwards. If I could just follow up, my concern is 
it seems to me the more complex these solutions become, the 
more problems they create.
    Judge Bell. Yes.
    Senator Edwards. Senator Baker referred to the simplicity 
of the Constitution. It seems to me that we ought to be looking 
for a very simple--if it is findable--a very simple solution to 
this problem as opposed to some complicated structure.
    Judge Bell. That is what we came up with in this 
recommendation at the Miller Center, and we thought was a 
simple thing. The Attorney General is subject to being recused, 
just like a Federal judge, but has a duty to appoint somebody 
who is not--by whose qualifications there is no doubt.
    Senator Edwards. Yes, sir. Thank you both very much.
    Chairman Thompson. Thank you very much.
    I am reminded on the question of the U.S. Attorneys and 
whether or not they are political, my recollection is one of 
the first things the Attorney General did this administration 
was get rid of all the old U.S. Attorneys and appointing their 
own people.
    Judge Bell. Right.
    Chairman Thompson. So I think that kind of speaks for 
itself.
    Thank you very much, gentlemen. I really appreciate your 
coming. I know it has been a long day for you. Your 
contribution has been invaluable. We may call on you again 
before it is over with.
    We want to thank our second panel. Would you come forth, 
please? We will now proceed with Arthur Christy, the first 
special prosecutor appointed under the 1978 Ethics and 
Government Act, former Independent Counsel Joe diGenova who 
investigated the Clinton passport file matter, and Curtis von 
Kann who investigated Eli Segal, the former head of Americorps.
    Gentlemen, thank you very much for your patience. We got 
started a little late this morning. We had a vote to start 
with, and since we are going to have rather extensive hearings 
over an extended period of time and this is an important issue, 
I thought it would be good if we could have statements by 
Senators. It probably delayed you substantially, but we really 
appreciate your contribution.
    Mr. diGenova, do you have a statement that you would like 
to make?

 TESTIMONY OF JOSEPH E. diGENOVA, INDEPENDENT COUNSEL, CLINTON 
                  PASSPORT FILE INVESTIGATION

    Mr. diGenova. Very briefly, Mr. Chairman. First of all, 
thank you for the invitation to be here.
    The great Danish constitutional scholar, Victor Borge, said 
that his uncle had accomplished a great thing in his life when 
he discovered the cure for which there was no disease. He said, 
unfortunately, his uncle caught the cure and died, and I think 
that is where we are, Mr. Chairman, with this statute.
    The body politic has caught the cure and has died. This is 
a statute which, in my opinion, cannot be reformed in any 
meaningful way. My position is a very simple one, that you 
should end it, not mend it.
    The reason I take that position, Mr. Chairman, is stated in 
great length in the statement which I put before the Committee, 
but I think it is important to revisit the notion that what 
Congress did for a very good reason at the time of Watergate 
was to try to fashion some perfect model for insulating law 
enforcement from political conflicts of interest. It was a 
noble effort, and it was an effort that was well worth trying, 
but notwithstanding the effort and revisions, successively 
three times, Congress has never been able to make something 
good out of something that is fundamentally bad.
    The reason people were having difficulty, for example, 
responding to Senator Specter's question about whether or not 
it would be a good idea to cast a statute, giving the U.S. 
Senate or the House the right to go to court, the question of 
the decision of an Attorney General not to appoint an 
independent counsel, the reason that is a notion that gives 
people pause is exactly the reason this statute is a bad idea.
    We have an Executive, a Legislative, and a Judicial Branch 
under our form of government. They are given enumerated powers, 
except for those that are reserved to the States, and those 
powers are delineated purposely so that we can have a balance 
of power.
    It is a great system, but it is impact. We all know that. 
To think that we can find a way to perfectly deal with 
political crimes or accusations of political crimes is a fool's 
errant. It cannot be done.
    The system that we have in existence for investigating 
crime and prosecuting it is a good one. It has held us in good 
stead over many years, when we have had problems at the 
Executive Branch. Long before the existence of this statute, 
Attorneys General and Presidents were forced to appoint outside 
counsel to investigate crimes when there were obvious political 
conflicts of interest because the public wheel required it. 
Congress and journalists demanded it, and there was a reaction 
to the elected officials in the Presidency and in the Executive 
Branch that they had to respond. That is a good system. It is 
not a bad system.
    I can understand Senator Specter's frustration, and I wish 
he were here because I think his point is understandable, but 
the minute the U.S. Congress starts filling petitions in a 
Federal court to overturn the decision of the chief law 
enforcement of this country acting on behalf of the President, 
not to begin an investigation, we will do exactly what this 
statute had done by its very existence.
    What this statue has done, for example, it has a provision 
in there already that allows a majority of the minority of 
either House or Senate Judiciary committees to send a letter to 
the Attorney General which requires the Attorney General to 
then begin a decision-making process about whether or not to 
begin an investigation. That, in my opinion, is an abomination. 
It was the beginning of the politicization of the criminal 
justice investigating and charging process.
    You cannot permit the Congress outside of its traditional 
oversight function to play a role in law enforcement. It does 
not have that role. It should not have that role. If it does 
not like what an Attorney General is doing, it ought to cut off 
her money. If it does not like what an Attorney General is 
doing, it ought to legislate out of existence her authority to 
do certain things, but the Congress should not become involved 
in trying to be the Executive Branch.
    I remember listening to John Dingell talk about how the 
oversight committees of Congress were the great grand jury of 
the American people. Now, whether or not you agreed or 
disagreed with Congressman Dingell's abuse or use of power, 
depending upon your viewpoint, the fact is that Congress' 
oversight function is a powerful weapon.
    It is true, as Senator Specter noted and as you have noted, 
Mr. Chairman, it may very well be that the congressional branch 
does not respond; that sometimes you will have an arrogant 
executive which in terms of the execution, the faithful 
execution of its duties maybe wanting. There are many people 
who believe that that is what has existed in the recent past. 
That is for others to decide, but I think your obviously 
fundamental caution about deciding how to fix something that is 
bad is not to make it worse.
    Let me give you another example, Mr. Chairman. The notion 
somehow that you can fix this statute by putting a time 
limitation on an investigation or a limitation on the amount of 
resources that would be permitted to be used in an 
investigation, you would create a Potemkin prosecutor. No 
respectable prosecutor or lawyer would ever take an assignment 
to conduct a real investigation if he or she were told, ``You 
have to do this in a limited period of time, with this amount 
of money,'' because that invites automatically dilatory 
tactics, delay tactics.
    This Committee has had experience with that. It was given a 
time table within which to conduct its investigation of 
campaign abuses, and that limitation proved to be a boon to the 
opponents of the investigation. The same thing would happen in 
a criminal investigation. That is why under Federal law, there 
is no limit on an investigation other than the statute of 
limitations which requires the bringing of a charge against 
someone within a specified time from the period the alleged 
defense was committed.
    I underscore that if the Committee were to seriously 
consider putting time and resource constraints on a prosecutor, 
then I suggest that people simply appoint a cartoon because 
that is what you would end up with. No responsible lawyer would 
ever undertake such an investigation if their authority was 
limited and the time frame was limited.
    The Committee already by law requires the GAO to audit 
every dime that an independent counsel spends. My expenses for 
my investigation were just finally audited last year, and I 
left in 1995. Congress knows how every dime is spent. It may 
not know about it within the 30 days within which the money is 
spent, but it certainly has authority to find out.
    The suggestions made that the independent counsel should be 
appointed by somebody else other than the three judges, there 
is no perfect way to appoint somebody to one of these jobs. It 
is probably true that a group of judges sitting around trying 
to decide who should be a prosecutor is a pretty bad idea. I 
would agree with that, but the U.S. Supreme Court has said it 
is constitutional.
    I might say that even though the statute is 
unconstitutional, I think its existence is extremely unwise, 
and I think clearly my position is it should be allowed to 
lapse. I think Senator Baker's notion that the Committee and 
the Congress should take a cooling-off period to think about 
some options is a pretty good idea.
    I would underscore also, Mr. Chairman, what I think others 
have said. The statute has led to something that is very, very 
dangerous. First of all, I think the trivialization of the 
investigation of crime by putting things into it which would 
ordinarily not be investigated, the triggering mechanism for 
the use of the statute is fundamentally unfair to high-level 
government officials. In addition, it has led to an over-
criminalization of our everyday life.
    Congress, just as a side note, has enacted many, many 
criminal laws over the last few years and has given U.S. 
Attorneys and Justice Department officials vast authority which 
they never had before. That really is what is at the core of 
the problem surrounding the Independent Counsel Statute. Once 
you take all of that vast power and give it to a prosecutor to 
investigate one person under the targeting theory developed in 
the 1960's, you have a prescription for dangerous exercise of 
power, even if that power is within the limits of the law. It 
is a very dangerous thing.
    I must say, Mr. Chairman, that I noted recently that the 
American Bar Association, after 25 years of supporting the 
statute, had decided that it had an epiphany, and that for some 
reason, the statute in their eyes had developed structural 
informities.
    I think about the only thing the ABA needs now is a pact, 
and then they will have brought themselves into the true 
meaning of what they are doing. This was not a policy decision. 
This was a political decision by the ABA.
    In fact, when I heard that they had decided that they were 
against the statute, I began to reexamine my position to 
determine whether or not I was right thinking at that point.
    I think what is safe to say, Mr. Chairman, is that some 
very fine people have been appointed under this statute. This 
is not about who is appointed. It is about the law itself. This 
is a dangerous digression from the separation of powers, from 
the way we hold prosecutors accountable, and from the way we 
historically have investigated crimes, whether they are 
political or otherwise.
    We have made it very, very difficult, it seems to me, for 
anybody to perform these functions without being held up to an 
intense microscope of the conduct of their duties. When we 
require that a report be filed at the end of an independent 
counsel's investigation if they decide not to charge anybody, 
look at what we have done.
    The purpose of the statute is to appoint someone to 
investigate the crime who has nothing to do with the Department 
of Justice. The statute says no one in the Department of 
Justice can investigate this crime. Therefore, we will pick an 
independent person, and that person, we say is fine because 
they are not part of the Department.
    So what do we do? We say we do not trust that person. We 
want a written report when they are done to see exactly why it 
is that they did not charge somebody. That is a very, very 
serious mistake.
    Assuming, for the sake of argument, that the statute would 
continue to exist, that report requirement should be 
eliminated. A statement by an independently appointed 
prosecutor that a charge either should not be brought because 
there is no evidence of a crime or that even though there may 
be evidence it is not worthy of prosecution should be 
sufficient for the body politic to feel comfortable that an 
independent job has been done.
    I think, Mr. Chairman, also, just as a note, there is 
nothing wrong with saying that political accountability through 
the President and the Attorney General is a bad thing. It is a 
good thing. Holding people accountable for the power that they 
wield is important. I think that once the process is allowed to 
run its course and you use the regulatory authority that the 
Attorney General has under the statute, that will be sufficient 
as it was in Watergate, as it was in Teapot Dome, as it was at 
the beginning of Whitewater, to see that thorough 
investigations are conducted by people who have honesty and 
integrity.
    I will stop at that point, Mr. Chairman.
    [The prepared statement of Mr. diGenova follows:]

THE FOLLOWING ARTICLE FROM THE GEORGETOWN LAW REVIEW WILL SERVE AS MR. 
                     diGENOVA'S PREPARED STATEMENT
       The Independent Counsel Act: A Good Time to End a Bad Idea
                        By Joseph E. diGenova *
    * Mr. diGenova served as Independent Counsel from 1992 to 1995 
investigating the Bush Administration State Department's search of 
President Clinton's passport file while he was still a presidential 
candidate. Mr. diGenova served from 1983 to 1988 as United States 
Attorney for the District of Columbia. He currently practices at the 
law firm of diGenova and Toensing in Washington, D.C.
                               __________
    When Dr. Samuel Johnson said ``Patriotism is the last refuge of a 
scoundrel,'' \1\ he apparently had not heard of reform. Reform, in 
vacuuo, is a wonderful idea, but reform in application can sometimes be 
awful for the people who are affected by it. The changes effected by 
the adoption of the independent counsel statute provide an example of 
the awful, if unintended, consequences of failing to understand the 
ramifications of reform.
---------------------------------------------------------------------------
    \1\ John Bartlett, Familiar Quotations 316 (Justin Kaplan ed., 
1992) (quoting from James Boswell, Life of Johnson, at Apr. 7. 1775 
(G.B. Hill ed. & L.F. Powell, rev. ed. 1934) (1791)).
---------------------------------------------------------------------------
    The independent counsel statute was born out of a legitimate 
concern following the Watergate affair. that the Justice Department 
might not be able to investigate serious crimes involving the President 
of United States, the Vice President, or the Attorney General, as well 
as other high-level officials, due to inherent conflicts of interest. 
In a paroxysm of reaction, President Carter proposed the Ethics in 
Government Act (the ``independent counsel statute''), one of the 
purposes of which was to remove the ``appearance of impropriety'' when 
the Department of Justice investigates high officials in the executive 
branch.\2\ To accomplish this purpose, the independent counsel statute 
included a provision establishing an Office of the Special Prosecutor, 
with various mechanisms through which a prosecutor is appointed and his 
jurisdiction is established.
---------------------------------------------------------------------------
    \2\ See, e.g., S. Rep. No. 95-170, at 6 (1978), reprinted in 1978 
U.S.C.C.A.N. 4216, 4222.
---------------------------------------------------------------------------
    At the time, I was one of those who believed that this provision 
was pure folly. There were many and varied reasons: it was bad public 
policy; it contorted the constitutional structure and was therefore 
unconstitutional; and it would ultimately lead to grievous abuses of 
the prosecution function because of the over-politicized nature in 
which these investigations often begin. The subsequent experience under 
the independent counsel provisions has proved these criticisms to be 
essentially correct.
    In 1988, the Supreme Court upheld the constitutionality of the 
independent counsel provisions of the Ethics in Government Act in 
Morrison v. Olson.\3\ Justice Antonin Scalia dissented \4\ from the 
majority in what became the siren song of Republicans who did not like 
the application of the statute back then, and has now become the siren 
song of Democrats who do not like the application of the statute now. 
Everything that he predicted in that dissent has come true.
---------------------------------------------------------------------------
    \3\ 487 U.S. 654 (1988).
    \4\ Id. at 697 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    Justice Scalia laid out several grave scenarios that the statute 
has created: ``[B]y the application of this statute in the present 
case, Congress has effectively compelled a criminal investigation of a 
high-level appointee of the President in connection with his actions 
arising out of a bitter power dispute between the President and the 
Legislative Branch.'' \5\ Justice Scalia was concerned that as a result 
of the independent counsel statute's limitations on the discretion of 
the Attorney General to appoint a prosecutor, Congress would be in a 
position to effectively ``compel'' a criminal investigation any time 
``the Attorney General cannot affirm, as Congress demands, that there 
are no reasonable grounds to believe that further investigation is 
warranted.'' \6\
---------------------------------------------------------------------------
    \5\ Id. at 703 (Scalia, J., dissenting).
    \6\ Id.
---------------------------------------------------------------------------
    Justice Scalia was not only concerned with the limited discretion 
that the statute left the Attorney General, he was also troubled by the 
fact that certain committees in the House and the Senate had the right 
to initiate an investigation by merely sending a letter to the Attorney 
General. Justice Scalia seriously doubted whether any Attorney General 
would have the political fortitude to withstand the scrutiny after 
failing to recommend an independent counsel appointment: ``Merely the 
political consequences (to [the Attorney General] and the President) of 
seeming to break the law by refusing to (appoint an independent 
counsel] would have been substantial.'' \7\ As a result, in Justice 
Scalia's mind, the Attorney General is caught in a Catch-22. If she 
fails to recommend an independent counsel appointment, she provides 
political fodder to her adversaries who will contend that her failure 
to do so is a cover-up; she will be vilified by opponents in Congress 
and will become politically damaged goods. If, on the other hand, she 
succumbs to the political pressure to recommend the independent counsel 
appointment, she gives credence to the accusations of the 
administration's enemies, no matter how unjustified.
---------------------------------------------------------------------------
    \7\ Id. at 702 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    The loss of an effective check on the powers of the independent 
counsel also worried Justice Scalia. Justice Scalia discussed this 
shortcoming in the context of separation of powers,\8\ but it is 
equally applicable when discussing the independent counsel statute as a 
matter of effective policy. Justice Scalia was troubled by the fact 
that because the independent counsel was not under the authority of the 
Attorney General or subject to other control by the President, the 
independent counsel had prosecutorial discretion that is unchecked by 
any part of our system of checks and balances: ``[T]he balancing of 
various legal, practical, and political considerations, none of which 
is absolute, is the very essence of prosecutorial discretion. To take 
this away is to remove the core of the prosecutorial function, and not 
merely `some' Presidential control.'' \9\ Prosecutorial discretion, in 
Justice Scalia's analysis, involves a ``balancing'' of executive 
interests: whether or not, in the interests of justice, particular acts 
are worthy of devoting resources and time to prosecute; whether or not 
a prosecution is worth the disclosure of national security secrets; 
\10\ and whether or not prosecution is worth damaging sensitive 
international interests.\11\ Under the independent counsel statute the 
balancing is removed from the control of the executive, and 
prosecutions that might not be in the best interests of the republic 
are without any political check.
---------------------------------------------------------------------------
    \8\ Here I am referring to Justice Scalia's criticism of the 
removal of executive control over a prosecutor, which he stated was 
essentially an executive function. See id. at 705-10 (Scalia, J., 
dissenting).
    \9\ Id. at 708 (Scalia, J., dissenting).
    \10\ See id.
    \11\ An independent counsel had subpoenaed the former ambassador of 
Canada, creating an embarrassing international incident. See id. I 
cannot believe this subpoena would ever have been issued by a Justice 
Department prosecutor.
---------------------------------------------------------------------------
    This unfettered discretion also ignores (in fact denies) the 
powerful checks on executive powers already present under our 
Constitution: the checks and balances of a Congress that will impeach 
executives who fail to enforce the law and the political check of the 
people who ``will replace those in the political branches . . . who are 
guilty of abuse.'' \12\ 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.
---------------------------------------------------------------------------
    \12\ Id. at 711 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    Such, scenarios that Justice Scalia identified are cause for alarm. 
The danger is that Congress, a body that is inherently partisan in 
nature, has granted itself a tool that it can use for partisan purposes 
against its political enemies. One need not think hard to come up with 
numerous instances when various factions in Congress have raised the 
cry for an independent counsel to probe an officer. And, to borrow a 
phrase from Chief Justice Marshall in McCulloch v. Maryland,\13\ the 
power to prosecute is the power to destroy, and the power to 
investigate is the power to maim, if not destroy.\14\
---------------------------------------------------------------------------
    \13\ 17 U.S. 316 (1819).
    \14\ Id. at 431 (``the power to tax involves the power to 
destroy'').
---------------------------------------------------------------------------
    Once an independent counsel is appointed, political enemies enjoy 
the added effect of avoided consequences--it is far easier for partisan 
Members of Congress to have an independent counsel carry out its 
investigations than it would be for the Congress itself. According to 
Justice Scalia, ``instead of accepting the political damage attendant 
to the commencement of impeachment proceedings against the President on 
trivial grounds . . . [Congress may simply] trigger a debilitating 
criminal investigation of the Chief Executive under [the independent 
counsel] law.'' \15\ ``The independent counsel, therefore, provides 
partisan members of Congress with good ``cover'': they can blame the 
independent counsel for excessive or unmerited investigations, 
investigations for which the members of Congress may themselves have 
called.
---------------------------------------------------------------------------
    \15\ Morrison, 487 U.S. at 713 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    The statute ultimately reflects a whole notion of ``reform'' that 
has led to the trivialization of ethics in the nation's capital and the 
trivialization of criminal law in general. Because of repeated calls 
for independent counsel investigations of one supposed controversy 
after another, an atmosphere has developed in which ``everything is a 
crime, so that therefore nothing is a crime.'' As a result, the 
independent counsel statute has debased the currency of the criminal 
law and led to an awful run of instances that have led the American 
people to lose their image of this statute as being something that is 
``special.'' \16\ Its routine use has debased its original currency: it 
was to be reserved for those rare instances when a constitutional 
crisis confronted the nation.
---------------------------------------------------------------------------
    \16\ indeed, the term ``special prosecutor'' was replaced by the 
term ``independent counsel'' throughout the act. Although the reason 
was to remove any negative connotations of the Watergate era, perhaps 
the change also reflects the fact that such appointments are no longer 
``special.''
---------------------------------------------------------------------------
    Although it may be true that the Espy, Cisneros, and HUD cases are 
all worthy of federal criminal investigation, it is abundantly obvious 
that they were not worthy of an appointment of an independent counsel. 
These are all investigations that the U.S. Department of Justice (DOJ) 
could easily have conducted. An implicit assumption of the independent 
counsel statute is that the DOJ cannot be trusted to investigate such 
matters. This assumption is ingrained into the minds of the American 
people, reinforcing a negative assumption that eventually affects the 
public's perception of impartiality of the DOJ as a whole in everyday 
matters.
    The net effect of these problems is the numbing of the public 
conscience when it comes to morality, ethics, and conduct in the 
nation's capital. As a result, the level of cynicism in America has 
increased and people feel disconnected from their government. Americans 
have less incentive to participate and more incentive to distrust. It 
is no minor irony that such effects work counter to the actual goals of 
the ``reform,'' namely to ensure to the people the integrity of their 
government and their belief in it.
    Is there any solution?
    From the outset, I have believed that Congress would never change 
this law significantly and that it would never repeal it. Therefore, I 
have often suggested three changes which would in some measure address 
these concerns: 1) narrow the covered persons under the law, making any 
future version applicable only to the President, Vice President, and 
Attorney General; 2) eliminate the requirement that the Attorney 
General proceed with a preliminary investigation if she cannot 
determine whether the information is specific and from a credible 
source; \17\ and 3) remove the restrictions placed on the Attorney 
General's ability to conduct a preliminary investigation.\18\ But I 
have now concluded that even these amendments would be unwise. Instead, 
I have come to the conclusion that what I believed earlier, when the 
statute was first proposed by President Carter, is truer now than it 
ever was before--we do not need the independent counsel statute. 
Indeed, we cannot afford to have the independent counsel statute 
because the damage to our institutions (the presidency, the Congress, 
the courts, and the body politic) is too grave to be permitted.
---------------------------------------------------------------------------
    \17\ 28 U.S.C. Sec. 591(d)(2).
    \18\ These restrictions include the inability to grant immunity, 
convene a grand jury, or even issue subpoenas. See id. 
Sec. 592(a)(2)(A). In addition, the statute prohibits the Attorney 
General from basing her decision that the information is not specific 
or credible or that there are no reasonable grounds for further 
investigation by an independent counsel on the fact that the target 
lacked the state of mind for a violation of criminal law 28 U.S.C. 
Sec. 592(a)(2)(B)(i)-(ii).
---------------------------------------------------------------------------
    My own experience as independent counsel has convinced me that the 
statute is a bad idea that--unlike a good wine--has not gotten better 
with age. This is a wine that has turned to vinegar and can never be 
returned to a vintage state. Far too many independent counsels have 
been appointed since the statute was first passed in 1978. By the time 
I was appointed in 1992, thirteen independent counsels had been 
appointed to investigate allegations ranging from cocaine use by a 
Carter aide to lying about a mistress by a cabinet nominee. In the end, 
my investigation identified no criminal violations, just political 
stupidity in the administration. But the accusations that led to my 
appointment surfaced during an election year, and partisans used the 
low ``appearance of impropriety'' standard to bring about my 
appointment, undoubtedly to embarrass the President.
    The statute is compromised at its very core. It cannot be nit-
picked and amended into a satisfactory form. The statute's mere 
presence in any form politicizes the entire process by which we accuse 
people, investigate them, and eventually ``charge them with crimes or 
exonerate them. The initiation process under this statute invites all 
the elements that should not be involved when deciding to initiate a 
criminal investigation of any person, namely personal and political 
motivations.\19\
---------------------------------------------------------------------------
    \19\ ``Nothing is so politically effective as the ability to charge 
that one's opponent and his associates are not merely wrongheaded, 
naive, ineffective, but, in all probability, `crooks.' And nothing so 
effectively gives an appearance of validity to such charges as a 
Justice Department investigation and. even better, prosecution.'' 
Morrison, 487 U.S. at 713 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    The targets of such investigations are also severely disadvantaged. 
The statute has led to a situation in which rather than being equal 
under the law, high level public officials in the executive branch are 
given fewer fights than the average citizen. It is one of those rare 
instances in which the ``big-shots'' actually are treated unfairly and 
are at a disadvantage as compared to the average citizen because of the 
hair-trigger mechanism for the invocation of the statute. Part of the 
reason for this disadvantage is the nature of white collar criminal 
investigations today. It is widely known among defense lawyers that 
white collar criminal investigations are lengthy and intrusive by their 
very nature. Various techniques, including undercover stings and 
surveillance, are now commonplace in such investigations. When you 
combine the already lengthy and intrusive federal criminal 
investigative process with the low triggering mechanism and politically 
oriented accusatory process of the independent counsel statute, you end 
up with a horrific amalgam which truly threatens the civil liberties of 
high level government officials.
    Furthermore, the costs for the target or subject of such probes are 
substantial. Careers are put on hold or ended, legal expenses pile up, 
and a mere misstatement could result in criminal prosecution:

        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 . . . [a]nd 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.\20\
---------------------------------------------------------------------------
    \20\ Id. at 708 (Scalia, J., dissenting).

    Of course, it goes without saying that the psychological effects of 
the investigation on the target are difficult to bear. Public scrutiny 
of the defendant is one thing when an indictment against a target is 
obtained by a U.S. Attorney. But when independent counsel is appointed 
merely to initiate an investigation of an executive official, the 
public scrutiny that the official receives is intolerable. Families are 
torn apart or severely strained. I cannot conceive of a good public 
policy reason to continue the statute's existence.
    For all these shortcomings, the independent counsel statute 
provides absolutely no assurances whatsoever that the American people, 
the Congress, or the press will be satisfied with the result. In a real 
sense, the independent counsel is accountable to no one. Any failure of 
the independent counsel to obtain an indictment when merited or to 
conclude when the investigation is going nowhere cannot be reviewed. 
Voters, Congress, the President, and the courts do not have control 
over the quality of the outcome. The irony here is that the appointment 
of an ``independent'' counsel was supposed to obviate any such 
concerns. But the highly politicized nature of the accusatory process 
under the statute has ripened into cynicism about who is appointed 
independent counsel and by whom and how. The statute has been consumed 
by itself.
    There are all sorts of proposals floating around now about how to 
amend the statute to try to make it work: allow the Attorney General to 
recommend three independent counsel candidates to the Special Division 
of judges which appoint the independent counsel, and require the panel 
to select from that list; allow a committee of the American Bar 
Association to keep a ``corral'' of available independent counsels 
which they can recommend to the court; or establish a permanent Office 
of Independent Counsel, which would be in place and ready to go on a 
moment's notice. All of these suggestions really do not deal with the 
fundamental problem of the statute: its mere existence.
    It is readily apparent to anyone who has studied the statute, 
watched its application, and followed the evolution of its application 
from constitutional crises to trivial criminal allegations, that the 
statute cannot be fixed or mended in a way that changes its fundamental 
flaw: it is an extra-constitutional,\21\ fourth branch \22\ of 
government that does not perform a useful role in our constitutional 
scheme. Rather, it may be doing irreparable damage to the political and 
governmental institutions of this country, including all three of our 
branches which are intimately involved in the application of the 
independent counsel statute.
---------------------------------------------------------------------------
    \21\ Even if it is constitutional under Morrison.
    \22\ Or a fifth branch depending on how you view independent 
regulatory agencies.
---------------------------------------------------------------------------
    It is very important to remember that in Watergate, a President of 
the United States was forced from office and named an unindicted co-
conspirator in a criminal case, all without the benefit of this 
statute. A true constitutional crisis was handled without this flawed 
statute being in existence, and the crisis ended exactly the way it 
should have: a disgraced president leaving office.
    I think that the lesson of Watergate is that when a true 
constitutional crisis does exist, the American people, the Congress of 
the United States, the media of this country, and the body politic as a 
whole will rise up and demand an independent inquiry of anything 
involving the President, Vice President, or the Attorney General. And 
that is the way it ought to happen. Resort to such mechanisms ought to 
be reserved for those moments in history when the enforcement of the 
Constitution is at issue. We do not need a statute for that.
    In addition, we do not need a statute to investigate members of the 
cabinet if they are alleged to have done something wrong. We need to 
restore confidence in the DOJ and its ability to handle cases of this 
nature when they do not involve the President, a Vice President, or the 
Attorney General. The integrity of the government requires it: if the 
American people are to have faith in the way the DOJ does its job with 
average Americans every day, their faith in its ability to investigate 
the government must be restored.
    If we get to a point where a President, a Vice President, or an 
Attorney General appears to have done something wrong and it needs to 
be investigated, we will once again rise to the occasion and force the 
legal and political process to require an independent investigation. 
But this statute is not necessary for that to happen.

    Chairman Thompson. Thank you very much. Mr. Christy.

 TESTIMONY OF ARTHUR H. CHRISTY, SPECIAL PROSECUTOR, HAMILTON 
                      JORDAN INVESTIGATION

    Mr. Christy. I ask that my remarks be included in the 
record.
    Chairman Thompson. They will all be made part of the 
record.
    Mr. Christy. Mr. Chairman, I guess I am here because I was 
the first special prosecutor so many years back that there are 
probably very few Members of this Committee that even remember 
what it was I was to investigate. Let me remind you of the 
enormity of the crime that I was to investigate, which was that 
Hamilton Jordan, Chief of Staff to President Carter, had taken 
two or three toots of cocaine in a trendy New York nightclub. 
That was my mandate. I was a bit of a piker, I think, because I 
completed my investigation in 6 months, and it only cost 
$180,000.
    At any rate, I agree with my distinguished colleague, Joe 
diGenova that there is no way you can put time constraints or 
money constraints on a special prosecutor, but on many of the 
other points he made, I am afraid that I would disagree.
    One of the things that troubles me the most about doing 
away with the act is what I call public perception. The public 
wants to know at the end of an investigation, has anything been 
covered up, has it been fully investigated, has everything been 
done that should be done, and I believe that, really, only a 
special prosecutor appointed, whether by a three-judge panel or 
some other kind of a panel, is the type of person that can do 
that.
    I think that there are certain things that I would suggest 
in amending the law, and by the way, when I talk about the 
public perception, if the Attorney General is going to conduct 
the investigation, let us say of a member of the Cabinet and 
ultimately exonerates, exculpates that particular person, what 
does the public think? Do they not possibly think, look, there 
is the Attorney General who is of this party clearing the 
Secretary of whatever it is who was also of the same party when 
they break bread together every other day or so? Isn't the 
perception that maybe something has been covered up? That 
perception, I think, disappears when you have a special 
prosecutor.
    I believe very strongly that the act should be reenacted, 
but I would have some suggestions, Mr. Chairman. First of all, 
I would reduce the number of officials that are covered under 
the act, which somebody told me the other day came to 79, and I 
would limit it to the President, Vice President, Attorney 
General, members of the Cabinet, and perhaps the heads of the 
FBI and CIA.
    Two, I think the act should not apply to alleged criminal 
acts or activity that occurred prior to the time the official 
took office.
    Three, the act should be limited to acts of wrongdoing that 
are committed only while the official is in government, 
actually working in the government.
    Next, the act should not cover, in my opinion, personal 
mistakes or indiscretions. It should relate to something 
connected with the actual governmental work that that 
particular official is doing.
    Next, the investigation should be limited to the original 
mandate that was given to the independent counsel, and he 
should be prohibited from expanding his jurisdiction. If he 
wants to expand it, he has got to go to the Attorney General 
with very good reasons and must demonstrate that what he wants 
to expand his investigation to is directly related to his 
original mandate.
    I cannot remember whether this actually was amended before, 
but they ought to eliminate the power in the final report of 
the independent counsel to make reference to criminal conduct 
of somebody who is not indicted. There should be no reference 
of that type.
    Finally, and I do not know how you would put this in the 
statute, but I think that any person appointed as an 
independent counsel should be someone who has had prosecutorial 
experience. You do not want somebody learning on the job.
    Dealing with grand juries is a delicate matter. There are a 
lot of rules governing what goes on before the grand jury, and 
unless somebody has had some experience dealing with grand 
juries and the rules and regulations which govern their 
actions, I think it is open to mistake, so I think that the 
independent counsel should have some prosecutorial background 
and experience.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Christy follows:]

 PREPARED STATEMENT OF MR. CHRISTY, FIRST SPECIAL PROSECUTOR UNDER THE 
                    ETHICS IN GOVERNMENT ACT OF 1978
    Senator Thompson and distinguished Senators. My name is Arthur 
Christy. I guess I am here because I was the first Special Prosecutor, 
as it was then called, under the Ethics in Government Act of 1978.
    My mandate was to investigate whether or not Hamilton Jordan, then 
Chief of Staff to President Jimmy Carter, had taken, as alleged, a 
couple of toots or more of cocaine at a trendy night club in New York 
called Studio 54.
    On November 19, 1979 Benjamin R. Civiletti, then Attorney General 
of the United States, pursuant to Sec. 592(c)(1) Title 28 applied to 
the United States Court of Appeals for the District of Columbia 
Circuit, Special Prosecutor Division, for the appointment of a Special 
Prosecutor to investigate allegations of possession of cocaine by 
Hamilton Jordan in violation of 21 U.S.C. Sec. 844(a), which is a 
misdemeanor. On November 29, 1979, Honorable Roger Robb, presiding 
Judge of the Court of Appeals for the District of Columbia Circuit; 
Honorable J. Edward Lumbard, Senior Circuit Judge for the Court of 
Appeals for the Second Circuit; and Honorable Lewis Render Morgan, 
Senior Circuit Judge for the Court of Appeals for the Fifth Circuit, 
the Judges comprising the Special Prosecutor Division who were 
appointed by the Chief Justice of the United States, appointed me as 
the first Special Prosecutor. The order appointing me reads:

          Upon consideration of the application of the Attorney General 
        pursuant at 28 U.S.C. Sec. 592(c)(1) for the appointment of a 
        special prosecutor to investigate the allegation that Hamilton 
        Jordan possessed cocaine in the Southern District of New York 
        on June 27, 1978, it is:

          ORDERED that ARTHUR H. CHRISTY is appointed special 
        prosecutor to investigate this matter, and any other related or 
        relevant allegations of a violation or violations of 21 U.S.C. 
        Sec. 844(a) by Hamilton Jordan.

    Based on all of the information developed during the course of my 
Investigation it was my conclusion that there was insufficient evidence 
to warrant the bringing of criminal charges against Jordan for 
possession of cocaine in violation of 21 U.S.C. Sec. 844(a).
    The information developed during the course of my Investigation was 
presented to a Grand Jury seated in the Southern District of New York. 
On May 21, 1980, after deliberation, the Grand Jury reported that there 
was insufficient evidence for an indictment of Hamilton Jordan, and 
voted unanimously a no-true bill. I believe I may be the only Special 
Prosecutor where the Grand Jury voted a no-true bill.
    For your information, I and my staff conducted approximately 100 
interviews of about 65 persons. The Grand Jury met in 19 sessions and 
33 witnesses appeared, some on as many as three occasions. Over 2000 
pages of Grand Jury testimony were taken.
    One might say that my investigation was a single shot against a 
single target. Reading about subsequent investigations conducted by 
Special Prosecutors or Independent Counsels (hereinafter Independent 
Counsel) I can only say that my investigation was a piece of cake. 
Perhaps I was a piker as I spent only six months and approximately 
$180,000 as best I can recall. I think probably the most significant 
contribution that I made during my investigation was the selection and 
appointment of Theresa Duggan as my Administrative Assistant. She was 
superb at organizing everything, including how to get paid, how to rent 
space, how to get typewriters and all of those details necessary for 
the operation of the law office. Testimony to how good she is that in, 
at least five or six subsequent Independent Counsels hired Terri Duggan 
as Administrative Assistant. She only retired last year after a very 
distinguished career. If anybody writes the book on how to set up a 
Special investigation under the Act Terri Duggan would be the one to do 
it.
    While I believe the Act should be re-enacted, there are certain 
changes I would like to see, among them:
    1. Reduce the number of officials covered to the President, Vice-
President, Attorney General, members of the Cabinet and, perhaps, the 
heads of the FBI and the CIA.
    2. The Act should not apply to alleged criminal activity that 
occurred prior to the time the official took office.
    3. The Act should be limited to acts of wrongdoing that are 
committed while the official is in the government.
    4. The Act should not cover personal mistakes or indiscretions.
    5. The investigation of matters not within the original mandate 
should be prohibited unless the matter is directly related to the 
Independent Counsel's mandate and is necessary for its fulfillment.
    6. Eliminate the power to accuse an individual of criminal conduct 
in the final report if no charges are brought.
    7. There should be some rule or regulation that the Independent 
Counsel have some prosecutorial background and experience.
                               __________
       ARTICLE BY ARTHUR H. CHRISTY IN THE GEORGETOWN LAW JOURNAL

                               July, 1998

   Trials and Tribulations of the First Special Prosecutor Under the 
                    Ethics in Government Act of 1978

                         By Arthur H. Christy *

    * Arthur H. Christy is a partner at Christy and Viener in New York 
City.

                           I. THE APPOINTMENT

    I recall it was a Tuesday morning, November 27, 1979, and I was 
sitting quietly at my desk working on a motion for a case I was 
handling. The telephone rang, and my secretary told me that Judge J. 
Edward Lumbard, then Senior Circuit Judge for the United States. Court 
of Appeals for the Second Circuit, was on the line.
    Having served as an Assistant under Judge Lumbard in 1953 and 1954, 
when he was United States Attorney for the Southern District of New 
York, it was always a pleasure to have a call from the Judge. He asked 
me if I could come and see him sometime to talk about the possible 
appointment of a special prosecutor under the Ethics in Government Act 
of 1978 (the ``Act'').\1\ I told him that I would he free later in the 
week, but he suggested, rather forcefully, that I jump on the subway 
and hasten down to his chambers. Little did I know or guess as I left 
the office what lay ahead.
---------------------------------------------------------------------------
    \1\ The Ethics in Government Act of 1978, 28 U.S.C. Sec. Sec. 591-
599 (1978) (codified as amended at 28 U.S.C. Sec. Sec. 591-599 (1994)). 
As the original Act referred to a ``special prosecutor,'' I shall use 
that term throughout. In 1983, the Act was amended to substitute the 
term independent counsel for special prosecutor. See 28 U.S.C. Sec. 592 
(1983).
---------------------------------------------------------------------------
    In Judge Lumbard's chambers, I was introduced to Judge Roger Robb, 
presiding Judge of the Court of Appeals for the District of Columbia 
Circuit, and Judge Lewis Render Morgan, Senior Circuit Judge for the 
Court of Appeals for the Fifth Circuit. These three judges had been 
appointed by the Chief Justice of the United States Supreme Court to 
comprise the Division of the Court in accordance with the Act.\2\ They 
explained to me that the then Attorney General, Benjamin Civiletti, was 
preparing to apply to them for the appointment of a special prosecutor 
to investigate the allegation that Hamilton Jordan, then Chief of Staff 
to President Jimmy Carter, had used cocaine in the Southern District of 
New York on June 27, 1978. The allegation was that Jordan had sniffed 
cocaine at Studio 54, a trendy discotheque in Manhattan operated by a 
couple of miscreants, Steve Rubell and Ian Schrager. After considerable 
discussion about the intent and operation of the recently enacted Act. 
I said that, honored as I was by their offer, I did not think I could 
accept the appointment without talking to my partners. They understood 
this, and suggested that I go back and talk to my partners and then 
call Judge Lumbard within the next two days with my decision.
---------------------------------------------------------------------------
    \2\ 28 U.S.C. Sec. 49 (1978), amended by 28 U.S.C. Sec. 49 (1983).
---------------------------------------------------------------------------
    One fortuitous fact I learned from the three judges was that I 
would not have to resign from my firm or actually give up practicing 
law. That was important. I did, however, refrain from taking on any 
high profile cases while acting as special prosecutor.
    While I was somewhat reluctant at first to accept this appointment, 
my great esteem for my former mentor, Judge Lumbard, led me to conclude 
that I could not turn him down. Therefore, after consultation with my 
partners--who thought the whole investigation silly but found no 
objections--I called Judge Lumbard on Thursday, November 29, and told 
him I was prepared to accept the appointment. He asked me to come down 
to his office that afternoon and at that time, the three judges 
appointed me as special prosecutor.
    The order appointing me read in pertinent part:

          Upon consideration of the application of the Attorney General 
        pursuant to 28 U.S.C. Sec. 592(c)(1) for the appointment of a 
        special prosecutor to investigate the allegation that Hamilton 
        Jordan possessed cocaine in the Southern District of New York 
        on June 27, 1978, it is
          ORDERED that ARTHUR H. CHRISTY is appointed special 
        prosecutor to investigate this matter, and any other related or 
        relevant allegation of a violation or violations of 21 U.S.C. 
        Sec. 844(a) by Hamilton Jordan.\3\
---------------------------------------------------------------------------
    \3\ ARTHUR H. CHRISTY, REPORT OF SPECIAL PROSECUTOR ON ALLEGED 
POSSESSION OF COCAINE BY HAMILTON JORDAN IN VIOLATION OF 21 U.S.C. 
Sec. 844(A), at 2 (May 28, 1980) (on file with the author) [hereinafter 
CHRISTY REPORT].
---------------------------------------------------------------------------

                  II. CONCLUSION OF THE INVESTIGATION

    Though not necessarily logical, I have decided to present my 
conclusion on the investigation at the beginning of this essay. I 
submitted my Report to the Division of the Court, as required by the 
Act,\4\ on May 28, 1980, just six months after my appointment. 
Simultaneously, I submitted to the Division of the Court an Addendum to 
my Report, with a request that a copy of part or all of the Addendum be 
delivered to the Attorney General, in the discretion of the Division. 
Because Rule 6(e) of the Federal Rules of Criminal Procedure \5\ 
prevents the public release of testimony given and documents submitted 
to a grand jury, I based my Report solely on interviews I conducted in 
my office or elsewhere with all the persons to my knowledge having any 
information relating directly or indirectly to the allegation against 
Hamilton Jordan. The Addendum contained references to testimony 
submitted to the grand jury in support of my conclusion as well as 
certain other information which I felt should be brought to the 
attention of the Division of the Court and the Attorney General.
---------------------------------------------------------------------------
    \4\ 28 U.S.C. Sec. 594(h) (1978).
    \5\ FED. R. CRIM. P. 6(e).
---------------------------------------------------------------------------
    Based on all of the information developed during the course of my 
investigation, my staff and I concluded that there was insufficient 
evidence to warrant bringing criminal charges against Hamilton Jordan 
for possession of cocaine in violation of 21 U.S.C. Sec. 844(a).\6\
---------------------------------------------------------------------------
    \6\ See CHRISTY REPORT, supra note 3, at 3.
---------------------------------------------------------------------------
    The information developed during the course of the investigation 
was presented to a grand jury sitting in the Southern District of New 
York, empaneled for the purpose of the investigation. On May 21, 1980, 
after due deliberation, the grand jury reported that there was 
insufficient evidence for an indictment of Mr. Jordan, and unanimously 
voted a No True Bill.\7\
---------------------------------------------------------------------------
    \7\ Id.
---------------------------------------------------------------------------

                   III. CONDUCTING THE INVESTIGATION

    So there I was, the first Special Prosecutor. What to do? Where to 
go? There were no guidelines, no paths to follow, no lights to show the 
way, not even, it seemed to me, any light at the end of the tunnel.
    The first thing I did was to meet at the Justice Department with 
Attorney General Benjamin Civiletti, Philip Heymann, Assistant Attorney 
General in the Criminal Division, and Charles Ruff, Acting Deputy 
Attorney General. They reported to me what they had learned during 
their ninety-day investigation and provided me with all of the reports 
prepared by the Federal Bureau of Investigation, which had been 
conducting its own investigation into this matter at the request of the 
Attorney General. The reports were voluminous.
    At either my first or second meeting with Messrs. Heymann and Ruff 
about the investigation of Mr. Jordan, I pointed out to them that it 
seemed to me that the Attorney General could decide right then and 
there not to appoint a special prosecutor and declare the matter 
closed. The reason I gave was that I did not believe a prosecutor in 
New York, under either the state or federal system, would pursue a case 
involving such a smidgen of cocaine. And if there would be no 
prosecution under the state or federal law in New York, then why go to 
the expense of appointing a special prosecutor? They answered that on 
its face the Act required the appointment of a special prosecutor under 
these circumstances.\8\
---------------------------------------------------------------------------
    \8\ The Act as enacted in 1978 substantially limited the Attorney 
General's discretion in appointing a special prosecutor. See 28 U.S.C. 
Sec. 592(b)(1) (1978) (Attorney General must request appointment of a 
special prosecutor unless the Attorney General ``determines that the 
matter is so unsubstantiated that no further investigation or 
prosecution is warranted.'').
---------------------------------------------------------------------------
    It is true, of course, that as special prosecutor, I could have 
decided in the first week or so that the matter, involving just two 
toots of cocaine, was so minimal in the general scheme of the criminal 
law of both the state and federal systems that there was no point in 
continuing the investigation. However, I then considered the 
ramifications if I were suddenly to announce, having just been 
appointed special prosecutor, that I had decided that there was no 
point in going further because even if I concluded that Mr. Jordan had 
taken a couple of toots of cocaine, it was unlikely any jury would 
convict--de minimis non curat lex. I did not think that result would be 
politic after all the hoopla of being appointed the first special 
prosecutor particularly as the Attorney General did not decline 
prosecution.
    One circumstance Messrs. Civiletti and Heymann made clear to me was 
that I was on my own, and I was not to communicate with anybody in the 
Department of Justice about the investigation except under unusual 
conditions. I had learned earlier from the three judges who appointed 
me that they also preferred that I not communicate with them on the 
progress of the investigation unless something unusual arose, such as a 
request to expand my jurisdiction.
    Where to begin? The first matter to which I turned was to gather a 
staff.
    For a chief assistant, I selected Jim Lavin, who had been in the 
United States Attorney's office and had been involved in the 
prosecution of narcotics cases. I also appointed a former associate of 
Christy and Viener, Arthur Nealon, who had served as an Assistant 
District Attorney in Manhattan. Finally, I appointed Steven Greiner, a 
partner in a large prestigious law firm, with whom I had recently 
worked closely in a very complicated case. He had not been a 
prosecutor, and I felt it might be wise to have someone on the staff 
who had no prosecutorial background and could present views that might 
not have occurred to those of us who had been prosecutors.
    Although it was complicated, I was able to arrange for the 
appointment of an outstanding member of the FBI, John Barrett, as well 
as a senior official in the Drug Enforcement Administration, Jack Toal. 
I was concerned, however, that an FBI agent assigned to the 
investigation might feel obliged to reveal my investigation to his 
superiors. I discussed this concern with Special Agent Barrett and he 
agreed that he would not report the work that we were doing to his 
superiors without first obtaining my approval. Finally, I decided that 
I wanted my own investigator, who would report directly, and only, to 
me. I selected James McShane, a retired FBI agent with whom I had 
worked when I was an Assistant United States Attorney. It was a wise 
choice.
    The first order of business in the investigation was to review the 
approximately 500-600 pages of interviews and reports prepared by the 
FBI in the period from September to November 1979. These interviews 
were the basis for summoning and interviewing witnesses. The FBI 
conducted the preliminary investigation in an expeditious, thorough, 
and professional manner. we interviewed almost all of the witnesses 
previously interviewed by the FBI, and quite a few others not 
interviewed by the FBI, about whom we learned during the investigation.
    I then began to worry about some other major matters, such as how 
we would get paid and where we would get funds to open and supply an 
office. Very fortunately, I remembered working with Ms. Terri Duggan 
years earlier, when she had been an administrative assistant for an 
operation that I was running when I was in private practice. Terri 
Duggan came aboard in early December, and it was the best appointment I 
possibly could have made. As a matter of fact, as successive special 
prosecutors, or independent counsels, were named, the first thing they 
did was to call me up and ask, ``Where do I start?'' My invariable 
answer was, ``Call Terri Duggan, you won't be able to get along without 
her.'' In fact, Ms. Duggan has served as Administrative Assistant to 
eight Special Prosecutors and assisted others.\9\ If anyone could write 
the book on how to set up and begin operating as a special prosecutor, 
Terri Duggan would be the one. She was hardworking, dedicated, loyal 
and able to charm any government official to cut through the maze of 
government bureaucracy and get what we needed.
---------------------------------------------------------------------------
    \9\ Ms. Duggan has worked with Independent Counsels Arthur Christy, 
Leon Silverman, Jacob A. Stein, Alexia Morrison, Whitney North Seymour 
Jr., James McKay, Arlin M. Adams, and Larry D. Thompson.
---------------------------------------------------------------------------
    Terri Duggan and I began to wrestle with the basics of how to get 
an investigation off the ground. At times we felt like an unwanted 
child. No one at the Department of Justice seemed to want to help us in 
any way with regard to the nuts and bolts, such as how we were to get 
paid, pay for office space, and handle many other important details. 
One thing I had learned from my friend Paul Curran \10\ was that I 
would be better off if I was not under the jurisdiction of the 
Department of Justice. He told me they were very slow to pay, and at 
that particular point they still owed him money. I then discovered that 
we could come under the jurisdiction of the Administrative Office of 
the United States Courts in Washington, D.C. This jurisdictional move 
proved to be wise.
---------------------------------------------------------------------------
    \10\ Paul Curran had been appointed a prosecutor to investigate 
Burt Lance, a friend of President Carter. Paul was not a special 
prosecutor under the Act since his appointment was before 1978.
---------------------------------------------------------------------------
    It was my original idea to rent space either in my office or 
somewhere else in Rockefeller Center, where my office was located. We 
were advised, however, that the rents were too expensive. I conducted a 
large part of the investigation from my own office, particularly in the 
beginning. Ms. Duggan and I then searched and found some space at 26 
Federal Plaza, which was right across from the United States 
Courthouse. This location was helpful, as we could interview witnesses 
at Federal Plaza and then walk them across the street to the courthouse 
where the grand jury was sitting.
    Within a short time, Ms. Duggan had the offices, which were quite 
small, painted, carpeted, fitted with new locks installed and furnished 
with desks, chairs, filing cabinets and typewriters. I cannot tell you 
how much I relied on Ms. Duggan for all of the minor things such as 
letterhead, envelopes, a postage meter and all the necessary tools that 
are used in a law office. There were, as I have said, no guidelines for 
us to follow; we made our own. Ms. Duggan kept us on a tight leash as 
far as expenses were concerned, making sure we operated within 
government guidelines. In short, she made sure we were fiscally 
responsible. All of the attorneys on the staff were part-time. The only 
full-time employee was Terri Duggan. At the end of each week, we gave 
Ms. Duggan the amount of time that we had worked and she prepared the 
necessary payroll reports. There were, of course, no benefits. Terri 
Duggan so impressed the Administrative Office of the United States 
Courts that one of my problems was fending off requests that she leave 
me and join them at higher pay. Luckily for me, she resisted all such 
blandishments.
    After reviewing the information gathered by the Attorney General, I 
determined that the investigation should have the assistance of a grand 
jury. On December 18, 1979, by order of the Chief Judge of the United 
States District Court for the Southern District of New York, a grand 
jury was empaneled specifically for the investigation. A grand jury can 
compel the appearance of witnesses and the production of documents, and 
I considered both vital to my pursuit of the truth. There were some 
witnesses who had refused to be interviewed by the FBI without immunity 
or simply had refused to be interviewed at all. Under the Act, the 
Attorney General could not have convened a grand jury, issued 
subpoenae, or granted immunity to a witness--important tools in any 
investigation. I found witnesses who could sit across the table and lie 
like hell, but put those same witnesses in the grand jury with twenty-
three citizens staring at them, and the truth is apt to emerge.
    During the course of the investigation, my staff and I conducted 
approximately 100 interviews of about sixty-five people. At each 
interview there were at least two members of my staff present. one 
member would prepare a report and the other members of my staff who 
were present during the interview would review it when it was 
completed.
    The grand jury conducted its first session with witnesses on March 
7, 1980, and its last session on May 21, 1980. In all, the grand jury 
met for nineteen sessions. Thirty-three witnesses appeared, some on as 
many as three occasions. More than 2,000 pages of grand jury testimony 
were taken.\11\
---------------------------------------------------------------------------
    \11\ CHRISTY REPORT, supra note 3, at 52.
---------------------------------------------------------------------------

                         IV. THE INVESTIGATION

            A. BACKGROUND TO THE ATTORNEY GENERAL'S DECISION
    In April 1977, Stephen Rubell, Ian Schrager and Jack Dushey opened 
a discotheque in Manhattan called Studio 54. Studio 54 became an 
instant financial and trendy success. From the day they opened its 
doors, Messrs. Rubell, Schrager and Dushey started ``skimming'' money 
off the top of Studio 54's operations: they removed cash from the 
registers each evening and inserted a new tape, divided the cash among 
themselves, and then provided their accountants with the new tape for 
preparation of Studio 54's tax returns.
    On December 14, 1978, Studio 54 was raided by Internal Revenue 
Service agents acting on information that there was a large 
``skimming'' operation. The agents found bundles of cash hidden in a 
ceiling. On June 28, 1979, Messrs. Rubell and Schrager were indicted; 
Dushey was named as an unindicted co-conspirator. The indictment 
charged a conspiracy to evade the payment of income taxes by failing to 
report in excess of $2,500,000 of cash receipts of Studio 54. The 
indictment also charged Messrs. Rubell and Schrager with obstruction of 
justice for withholding, destroying, concealing, and tampering with 
documents which had been subpoenaed.\12\
---------------------------------------------------------------------------
    \12\ Id. at 5.
---------------------------------------------------------------------------
    After the indictment, counsel for Messrs. Rubell and Schrager 
engaged in discussions with the United States Attorney's office in what 
was characterized by them as a plea bargaining negotiation. Rubell and 
Schrager hoped that at least one of them would be permitted to plead to 
a misdemeanor so as not to jeopardize the liquor license held by Studio 
54. Rubell and Schrager were pressed by their counsel to determine if 
they knew of any violations of the criminal laws which might induce the 
United States Attorney to reduce the felony charges against them. The 
Assistant United States Attorney in charge of the tax case had asked 
Rubell and Schrager during prior plea bargaining sessions about persons 
dealing cocaine at Studio 54.
    On August 17, 1979, Schrager and his attorney lunched prior to the 
meeting that afternoon, in the United States Attorney's office for 
another plea bargaining session. At that luncheon, Schrager told his 
attorney for the first time that he recalled Rubell telling him about a 
year earlier that Hamilton Jordan had been in Studio 54 one night and 
had taken cocaine. That afternoon Schrager's attorney, without 
consulting Rubell or his attorney, told the Assistant United States 
Attorney they might be able to provide information about the use of 
drugs by a high government official (no pun intended). If the 
government agreed to drop the case against Rubell and Schrager, 
Schrager's attorney said they would reveal more information about the 
incident.
    At a meeting that night, Rubell told his and Schrager's attorneys 
that Hamilton Jordan and other White House people had come to Studio 54 
some time in 1978 and had asked for cocaine; that John Conaghan, a.k.a. 
Johnny C., the resident dispenser of drugs at Studio 54, was there; 
that Johnny C. and Rubell took Jordan and another White House aide to 
the basement, where Jordan allegedly took two toots of cocaine.
    The attorneys stated they wanted to talk to Johnny C. about whether 
he had given Jordan cocaine, as they felt they needed corroboration. It 
was agreed that Rubell would interview Johnny C. in his office that 
evening and that the interview would be taped. The interview took 
place, but when the attorneys went to pick up the tape of the meeting, 
they discovered, to their great horror and chagrin, that the tape had 
been inserted backwards and had failed to record. They decided, 
therefore, to make another tape. It was during this second conversation 
that Johnny C. stated, in substance but with some leading, that he 
recalled giving two toots of cocaine to Hamilton Jordan.
    The tape of that conversation was turned over to the FBI during the 
investigation conducted by the Attorney General. Counsel for Rubell and 
Schrager thereafter went to the United States Attorney's office and 
offered to reveal the name of the ``high government official'' who 
allegedly took the cocaine. United States Attorney Robert B. Fiske, Jr. 
attended that meeting on August 22. Fiske stated that there would be no 
disposition of the tax case against Rubell and Schrager as his office 
was not prepared to forego its tax case for information about an 
unknown government official who had supposedly taken drugs on a one-
time basis.
    Schrager's attorney nevertheless revealed to Fiske at that meeting 
the name of Hamilton Jordan. The attorney also stated that another 
White House aide was present with Mr. Jordan at Studio 54 on the night 
in question, but that only Mr. Jordan used cocaine. At the conclusion 
of that meeting, Fiske advised Schrager's attorney and the other 
attorneys present that the government would not dismiss the felony 
charges against Rubell and Schrager or even reduce them to a 
misdemeanor.
    On August 23, 1979, at the request of counsel for Messrs. Rubell 
and Schrager, there was a meeting at the Department of Justice in 
Washington at which defense counsel hoped to persuade the Department to 
overrule Mr. Fiske's decision not to dismiss the indictment or reduce 
the charges. Present at that meeting were Messrs. Heymann and Ruff, the 
Southern District Assistant in charge of the tax case, and counsel for 
Rubell and Schrager. At the conclusion of the meeting, the defense 
attorneys were again advised that the charges against Rubell and 
Schrager would not be dismissed or reduced.
    Sometime after the meeting at the Department of Justice on August 
23, 1979, the Attorney General, pursuant to the Act,\13\ commenced a 
preliminary investigation with the aid of the FBI.
---------------------------------------------------------------------------
    \13\ 28 U.S.C. Sec. Sec. 591-599 (1978).
---------------------------------------------------------------------------
    On November 2, 1979, Messrs. Rubell and Schrager each pled guilty 
to one count of evasion of taxes due from Studio 54 and one count of 
evasion of taxes due personally. On January 18, 1980, Rubell and 
Schrager were each sentenced by Judge Richard Owen to three and one-
half years in prison and a fine of $20,000.
    In the meantime, the Attorney General concluded his preliminary 
investigation within the ninety-day limit prescribed by the Act,\14\ 
found that the allegations against Mr. Jordan warranted ``further 
investigation,'' and applied to the Division of the Court for the 
appointment of a special prosecutor.
---------------------------------------------------------------------------
    \14\ Id. Sec. 592(a) (1978).
---------------------------------------------------------------------------
                            B. THE ACCUSERS
    There were only three people who claimed to have direct information 
concerning Mr. Jordan's alleged use of cocaine in Studio 54: Rubell, 
Johnny C., and one Barry Landau. As witnesses, the most charitable 
thing that could be said about them was that they were utterly 
unbelievable. In one of his early interviews with the FBI before my 
appointment, Rubell had told the FBI that he saw Mr. Jordan take 
cocaine in the presence of Johnny C. Rubell was later interviewed on an 
ABC 20/20 program telecast, as were Johnny C. and Barry Landau.\15\ On 
the 20/20 program, Rubell said that someone, whom he could not recall, 
had told him that Mr. Jordan had wanted cocaine. He then went on to say 
that Jordan ``took a hit in each nostril, and that was it.'' \16\ We 
interviewed Rubell on several occasions; on two occasions, however, he 
said that he could not recall that he had seen Mr. Jordan take 
cocaine.\17\ Finally, Rubell admitted that when he said on 20/20 that 
Jordan had taken ``a hit in each nostril'' he could not say that of his 
own independent recollection, but only because that was what he 
recalled Johnny C. had told him.\18\ I concluded that Rubell's 
statements were of no evidentiary value.
---------------------------------------------------------------------------
    \15\ 20/20 (ABC television broadcast, Oct. 4, 1979), cited in 
CHRISTY REPORT, supra note 3, at 18-19.
    \16\ Id. at 19.
    \17\ Id.
    \18\ Id. at 20.
---------------------------------------------------------------------------
    Johnny C. told many different versions of Mr. Jordan's alleged 
cocaine use in Studio 54, including that he gave him ``two toots.'' 
\19\ The bottom line, however, was that Johnny C. said he was not 
certain whether or not he had given cocaine to Mr. Jordan in the 
basement of Studio 54. Johnny C. said that he offered cocaine to a man, 
whom he could not precisely recall. He described the man to whom he had 
given cocaine as being over six feet tall, with very neat hair, which 
was parted on the left side. Johnny C. is six feet two inches tall. Mr. 
Jordan is considerably shorter. In view of all of Johnny C.'s different 
statements, it was apparent that the substance of Johnny C.'s present 
recollection would not provide any positive evidence that Mr. Jordan 
took cocaine in Studio 54.
---------------------------------------------------------------------------
    \19\ Id. at 21.
---------------------------------------------------------------------------
    Landau claimed that on the evening of June 27, 1978, while at 
Studio 54, Mr. Jordan asked him for cocaine. Despite what he had said 
on the 20/20 program, however, when we pressed him, he did not claim to 
have any knowledge that Mr. Jordan in fact took cocaine that night. 
Landau said he did not hear Mr. Jordan ask Rubell or anyone else for 
cocaine, did not hear any other discussions about cocaine, and did not 
see Mr. Jordan or any other member of the Jordan group take cocaine. He 
also said that prior to August 24, 1979, he was never told by Rubell or 
anyone else that Mr. Jordan had taken cocaine in his visit. Landau 
declined to be interviewed by the FBI about June 27, 1978.\20\
---------------------------------------------------------------------------
    \20\ Id. at 30.
---------------------------------------------------------------------------
    Although Landau said that other persons were with Mr. Jordan that 
evening when Mr. Jordan asked Landau for cocaine, each of those persons 
explicitly denied that Mr. Jordan asked anyone for cocaine in his 
presence. I had very serious doubts about Landau's credibility under 
any circumstances.\21\
---------------------------------------------------------------------------
    \21\ Rubell and Landau testified before the grand jury on three 
occasions, and Johnny C. on two occasions.
---------------------------------------------------------------------------
                  C. REFLECTIONS ON THE INVESTIGATION
    Hamilton Jordan, in his book published after he left the Carter 
administration, wrote that everybody at the White House was afraid that 
I was going to turn the investigation into a Roman circus, and they 
were very much worried.\22\ As a matter of fact, that was the last 
thing I had in mind. To demonstrate the extent to which we kept secret 
what we were doing, I arranged with the FBI to have Hamilton Jordan 
flown from National Airport to LaGuardia, picked up by Jack Barrett and 
Jack Toal, and brought to my office. In the middle of the afternoon in 
a small caravan, we went from my office to Studio 54, because I wanted 
Mr. Jordan to see the basement in which it was alleged he was given the 
cocaine. We had arranged to decoy the Studio 54 employees for a time, 
which permitted us to go in the back door, down the steps into the 
basement, spend twenty minutes in the basement, retrace our steps and 
get back to my office for some more interviews without detection. Later 
in the day, Barrett took Mr. Jordan back to the airport so he could fly 
back to Washington. Not one newspaper reported this surreptitious visit 
and I was quite proud of having made the arrangements and having 
carried it off without any problems. In fact, in his book, Mr. Jordan 
was quite complimentary about the low key approach that we took in the 
investigation.\23\ I also managed to bring him up from Washington, from 
LaGuardia airport to the courthouse, and to the grand jury room where 
he testified, and then back to the airport and to Washington without 
the press ever learning about it. Of course, it would have been very 
easy to have alerted the press and told them to be at Studio 54 at 
3:30pm on a particular afternoon and to find something interesting.
---------------------------------------------------------------------------
    \22\ HAMILTON JORDAN, CRISIS: THE LAST YEAR OF THE CARTER 
PRESIDENCY 239 (1982).
    \23\ Id.
---------------------------------------------------------------------------

         V. THE INDEPENDENT COUNSEL ACT SHOULD NOT BE ABOLISHED

    I believe the Independent Counsel Act should be retained.
    One problem with the Attorney General conducting an investigation 
is that the Attorney General is prohibited from using a grand Jury, is 
not permitted to subpoena witnesses, cannot give immunity to a witness 
and cannot plea bargain. All of these are necessary tools to fully 
evaluate any allegation, and are available to an independent counsel.
    More important, however, is the issue of perception. There are hard 
decisions--very close calls--that an independent counsel has to make 
during an investigation, and an independent counsel may make them a bit 
differently than might the Attorney General who is loyal to the 
administration. It is the perception of the public which is important; 
we want the public to feel that the investigation is not tainted with 
bias, and that whoever conducts the investigation will conduct it 
without regard to any influence. The American people must have faith in 
the conduct of the investigation, and the matter of appearances as much 
as anything else is important. This is the issue of perception. I think 
the American public may feel uneasy if the Attorney General is 
conducting the investigation of, say, a fellow Cabinet member with whom 
he or she sits at lunch or breakfast day in and day out.

                             VI. POSTSCRIPT

    In his book, Crisis: The Last Year of the Carter Presidency, Mr. 
Jordan wrote:

          With my lawyers, I took the shuttle to New York to see the 
        special prosecutor. I tried to relax on the way up but found it 
        difficult. We talked about Arthur Christy, the special 
        prosecutor appointed by the federal court to investigate the 
        Studio 54 charges. I wondered what kind of man would take an 
        assignment like that: to drop a lucrative private practice to 
        prosecute a misdemeanor against a public official. It seemed 
        plain to me: a publicity seeker, an ambitious lawyer trying to 
        get his name in the newspaper.
          However, Christy surprised me. Not that he did me any favors, 
        but I was impressed with his businesslike manner. He questioned 
        me intensely, leaving the room occasionally to confer with one 
        of the several lawyers and investigators on his staff. He was 
        polite but kept a proper distance.
          I appreciated his sensitivity to the publicity surrounding my 
        case. He had made it possible for me to come and go to his 
        office quietly and without any news leaks; he seemed as 
        interested in keeping my visit out of the papers as I was. When 
        we headed back to Washington, I felt better. At least I knew 
        that an honorable man was investigating me and that he seemed 
        determined only to find the truth. I hoped that he would.\24\
---------------------------------------------------------------------------
    \24\ Id.

    Sometime thereafter, Steve Rubell in a television interview went 
out of his way to comment on how fair I had been and that I had treated 
him very decently.
    When I told my eighty-four year old mother about the compliments 
from both Mr. Jordan and Mr. Rubell, she commented somewhat acidly that 
if I got compliments from both of them, I must have done something 
wrong.

    Chairman Thompson. Thank you very much. Mr. von Kann.

 TESTIMONY OF HON. CURTIS EMERY von KANN, INDEPENDENT COUNSEL, 
           ELI SEGAL INVESTIGATION, AMERICORPS CHIEF

    Judge von Kann. Senator Thompson, I am pleased to be here.
    Just by way of brief background, since there has been some 
talk that independent counsel should have prosecutorial 
experience, I had none. I was 16 years in private practice in 
Washington, 10 years as a judge of the District of Columbia 
Superior Court, and then in 1995, I retired to enter the field 
of arbitration and mediation and currently serve with J-A-M-S/
ENDISPUTE here in Washington, DC.
    The Committee's invitation asked that the three of us 
address three subjects, namely our experience with the act, our 
views on whether the act has achieved its objectives, and any 
legislative proposals that we might wish the Committee to 
consider. I will confine my testimony to those three topics.
    I would be grateful if my full statement could be put in 
the Committee record, and I will try to give a very telescoped 
oral version.
    Chairman Thompson. All statements will be made a part of 
the record.
    Judge von Kann. Thank you. My experience with the act, I 
guess, is briefly this.
    I was appointed in November 1996 as the 17th independent 
counsel under this act to investigate certain allegations 
concerning Eli J. Segal. Mr. Segal had served as chief of staff 
of the 1992 Clinton-Gore Election Committee and was, thus, a 
covered person under the act. However, the allegations did not 
relate to that. They related to his subsequent appointment by 
the President as chairman of the board and CEO of the 
Corporation for National and Community Service, the wholly 
owned government corporation that oversaw the Americorps 
program.
    It was alleged that Mr. Segal and others at the 
corporation, having set up a private partnership to help raise 
funds for Americorps and then serving as officers and directors 
of that private corporation at the same time that they held the 
government posts, had violated certain Federal conflict-of-
interest laws, principally 18 U.S.C. Section 208 and five or 
six others.
    At the time of my appointment, the allegations about Mr. 
Segal had not been made public. Accordingly, Attorney General 
Reno requested that my appointment be made under seal, and it 
was.
    As soon as I was appointed, I determined that we should 
conduct the investigation as quickly and economically as we 
could with due regard for the confidentiality required by the 
seal appointment.
    I hired a small staff, two lawyers, both of whom were 
former prosecutors, Richard Simpson and Melanie Dorsey, who is 
here today. An FBI agent, Ruth Bransford, was delegated to us, 
and Lula Tyler, who had served as an administrator in certain 
other independent counsel office, also took on our office.
    We secured some modest office space from the Administrative 
Office of the U.S. Courts. We outfitted it with some used 
furniture left over from prior independent counsel, and we got 
going.
    In the space of about 5 months, we met with the Inspector 
General staff at the Americorps Corporation. We met with the 
Department of Justice Section of Public Integrity. We reviewed 
10,000 pages of documents. We interviewed 10 witnesses. We met 
twice with Mr. Segal's counsel, and we conducted a 2-day 
recorded interview of Mr. Segal under oath.
    By June 1997, we concluded that we had examined enough 
facts, not all the facts in the world, but enough to make an 
informed decision. For reasons that are set forth in my written 
statement, we unanimously concluded, the three attorneys on the 
staff, that Mr. Segal should not be prosecuted. In most cases, 
there was no violation, and with respect to one matter, there 
was perhaps a violation, but prosecutorial discretion dictated 
that there not be a prosecution in that case.
    We then had to write a final report, as the act requires. 
At that point, we were still under seal. I was very concerned 
about the possibility of unduly tainting the reputations of 
persons involved in the matter, and ultimately, we concluded 
that we should write a report that was concise, that would not 
taint any individuals, and we identified all the subjects of 
our investigation other than the named subjects, not by their 
name, but by a generalized description of their position.
    On August 21, 1997, just under 9 months after I was 
appointed, I filed with the court under seal a 25-page final 
report that met those standards.
    Unfortunately, in October 1997, under circumstances still 
unknown to me, the fact of our investigation leaked out. 
Stories began appearing in The Washington Post and The New York 
Times and then were picked up by the wire service and appeared 
all across the country indicating that Mr. Segal was under 
investigation by an independent counsel for campaign finance 
abuses. That had nothing to do with our investigation whatever.
    I concluded that the reason for having been under seal had 
now evaporated, and the publicity concerning Mr. Segal was much 
more damaging because of the incorrect description of our 
investigation. I moved the court to lift the seal. Mr. Segal 
joined in that, and we became public soon thereafter.
    I should say, just by wrapping up our experience, that 
although it took us about 9 months to conduct the 
investigation, analyze the issues, and decline prosecution, it 
took us 15 months to comply with the act's requirements for 
winding down the office. That included processing two attorney 
fee petitions, which took quite some time, and then waiting for 
the GAO to get around to us in its regular cycle of auditing 
independent counsel offices and also archiving about 25 boxes 
of documents to deliver to the archivist, although that we did 
fairly quickly.
    The total cost of this 24-month effort was $465,000. 
Inflation has gone up, Arthur, since your day.
    Has the act achieved its objectives? Well, we all know the 
primary objective of the act in the wake of Watergate and the 
Saturday Night Massacre was to assure the public that 
prosecutorial decisions concerning high-ranking officials were 
made on the merits by persons independent of the political 
winds that swirl around this town.
    I think to a large extent, the act has achieved those 
objectives. Of the approximately 20 independent counsel 
appointed under this act, there has really only been 
significant criticism of three or four of those individuals. 
Apparently, the public has been generally satisfied with the 
job done by the other 80 to 85 percent, and in matters this 
controversial, an approval rating of 80 percent or higher is 
not a bad record.
    Moreover, with the single exception of Ken Starr's 
investigation, which has been challenged on grounds of alleged 
partisanship, the criticisms have generally not been about 
partisanship. They have been that the investigations are too 
expensive, too protracted, too wide-ranging, and too unchecked.
    I believe there are better ways of dealing with those 
criticisms than simply abandoning the act altogether. Allowing 
the act to expire and letting Attorneys General appoint special 
prosecutors on an ad hoc basis is not a real answer to those 
criticisms. An ad hoc special prosecutor may conduct an 
investigation just as expensive, protracted, and wide-ranging 
as any conducted under this act.
    Moreover, if the case involves the President or other high 
officials, the special prosecutor will be essentially as free 
from supervision and control as independent counsel are now.
    Politically, no Attorney General would dare rein in or 
dismiss such a prosecutor, given the firestorm that followed 
Archibald Cox's firing.
    I think that to some extent, the debate on this subject has 
exaggerated the consequences. The republic will not crumble if 
the act is allowed to expire. We managed reasonably well for 
200 years without it. We could do so again. Nor would the 
Nation perish if the act were reauthorized exactly in its 
present form. As noted, more than 80 percent of the counsel 
appointed under this act have performed their duties in an 
acceptable fashion, and I think any future counsel would have 
to be extraordinarily obtuse, not to be chastened by some of 
the recent stinging criticism that has been voiced.
    The question I think is not what choice do we make to avoid 
disaster? Rather, with due regard for its cost, do the benefits 
of having some sort of Independent Counsel Act outweigh the 
benefits of having none at all?
    In my judgment, the answer to that question is ``yes.'' I 
believe there is great value in having already in place an 
established mechanism and procedures for dealing with those 
exceptional situations where the public would not likely accept 
the integrity of a Department of Justice decision to prosecute, 
or not to prosecute, officials at the highest level. Moreover, 
I think there is a greater opportunity to curb the perceived 
abuses of investigations which go on too long, cost too much, 
and veer off into tangential areas through enactment of a 
carefully retooled Independent Counsel Act rather than 
dispensing with statutory standards and requirements and 
limitations altogether.
    The third subject you asked me to address is legislative 
proposals to consider. There are a great many of them floating 
around now. I have not read and considered all of those 
proposals, and I have not reached any hard and fast judgment on 
the precise package that I would recommend. However, I do think 
the need for change in certain areas is very clear.
    First, the act should be amended in three ways so that 
appointment of an independent counsel would become quite 
exceptional:
    (1) The list of covered persons should be greatly shrunk. I 
have been quoted a figure of 240 people under the current act. 
I am not sure how that was calculated. I have also seen the 
numbers 79 and 49. I am not sure what the correct figure is. I 
would favor limiting it to the President, the Vice President, 
and members of the Cabinet.
    (2) As with Arthur, I suggest it be limited only to 
offenses committed in the covered offices, not to prior 
offenses, which should be left to the regular State and Federal 
prosecutors.
    (3) The triggering mechanism should be significantly 
revised so as to make appointments much less automatic. Various 
reformulations for that have been suggested. I have no present 
view on which is the best.
    Second, the process for selecting independent counsels 
should be depoliticized. I rather like Lloyd Cutler's 
suggestion that each President, at the beginning of a term, 
would submit to the Senate the names of 10 or 15 persons who, 
upon confirmation, would constitute the panel from which future 
independent counsel would be chosen. Having such persons 
blessed in advance by both the administration and Congress 
would greatly reduce the chances of their later being attacked 
as partisan or lacking in judgment.
    Third, the process by which an independent counsel could 
seek to expand his or her investigation into new areas should 
be reviewed and tightened up considerably.
    Fourth, the role of the Special Division should be re-
examined. I am intrigued by Professor Gormley's thesis that the 
best way to place reasonable restraints and accountability on 
the work of independent counsel is to give the Special Division 
clear duties and powers with respect to overseeing that work, 
including the power to replace an independent counsel in 
extreme cases. Federal courts have already developed a well-
recognized body of case law for dealing with prosecutorial 
abuse and misconduct; it should not be too difficult to adapt 
that case law to dealing with excesses of an independent 
counsel. I also believe Congress should look at proposals for 
assuring regular rotation of the membership of the Special 
Division; one possibility would be to appoint new three-judge 
panels every few years and allow prior panels to continue 
supervision of any independent counsel they appointed.
    Fifth, Congress should take a look at the final report 
requirement. It may be desirable that all independent counsel 
file a very brief report basically outlining the skeletal 
summary of their assignment: ``I was appointed on X date to 
investigate Y, I did Z, I finished on such-and-such a date.'' 
Beyond that, I would leave it to the discretion of independent 
counsel whether they should discuss any substantive matters, 
with the presumption that they shouldn't unless there was some 
strong need to do so, for example, to point out to Congress 
some ambiguity or gap in a law that perhaps should be re-
examined. In all cases, reports should be concise, prompt, and 
written with due regard for legitimate privacy and reputational 
interests of persons not indicted.
    Sixth--and this is the next to the last--in keeping with my 
former law professor, Archibald Cox, I favor--I know Joe 
diGenova doesn't--but I favor writing into the statute strict, 
arbitrary time limits for all independent counsel 
investigations. Parkinson's Law holds that work will expand to 
fill the time available for its completion, and this is never 
more true than when one is an independent counsel conducting an 
investigation of a high-level official and there are virtually 
an unlimited supply of stones to turn over, just to make sure 
you didn't miss something. But in every other aspect of our 
life, I suggest, there are time limits by which very important 
things have to be done: 30 minutes to argue the most incredibly 
complex case in the Supreme Court of the United States, 3 hours 
to complete a college or law school exam, 20 hours to present 
to the Senate the case for or against impeachment of a 
President. Time is not----
    Chairman Thompson. Which was too long.
    Judge von Kann. Which is too long. Time is not an unlimited 
resource, and both the public and the subject have a right to a 
quick decision by an independent counsel.
    Just across the river in Alexandria sits the famous Eastern 
District of Virginia, which operates the so-called rocket 
docket. Every case filed in that court goes to trial in 1 year, 
no matter how complex, no matter how protracted. Competent 
counsel find that with that sort of a deadline, they focus 
their attention on the most important things, and they use 
their resources wisely. And attempts by recalcitrant parties to 
drag out the proceedings are quickly squelched. The judges 
there act almost immediately on any motions to compel someone 
who is holding back.
    Based on my own experience, I suggest that the statute 
should include a requirement that all independent counsel be 
required to either indict or decline prosecution within 1 year 
of their appointment. For good cause shown, I would allow the 
Special Division to grant up to two extensions of 6 months 
each, but no more. All investigations would have to be 
completed in 24 months at the outside. Of course, if an 
indictment was brought, trial and appellate proceedings 
thereafter might go on for some time.
    Finally, I would urge Congress to insert a strict 6-month 
limit for the winding down of an independent counsel office 
once the prosecution has been completed or declined. That is 
ample time to archive files, to brief and decide attorney fee 
petitions, and to have GAO depart from its regular schedule and 
come in and complete a final audit of the independent counsel 
office. Indeed, it may even be most economical and sensible to 
require that the independent counsel shut down the office as 
soon as the substantive work is done and provide that some 
official of the Justice Department or the Administrative Office 
of U.S. Courts would handle the clerical wind-down and the 
final audit of all independent counsel, with the proviso that 
the counsel must remain available to answer questions.
    Incidentally, one thing I would not worry too much about is 
setting budgets for independent counsel. While expenditures of 
some of the independent counsel may seem large, they are, in 
truth, fairly insignificant in relation to many other perhaps 
less worthy expenditures in the Federal budget, and are 
certainly not too much to pay for finding out whether the 
highest officials of the land have committed serious crimes. I 
believe the best way to bring down the total costs of 
independent counsel matters is to implement changes, like those 
I have suggested, which will ensure that these investigations 
will be less frequent and less protracted than they have been 
in recent years.
    Thank you for the opportunity to testify, and with my 
colleagues, I would be happy to respond to any questions.
    [The prepared statement of Judge von Kann follows:]

            PREPARED STATEMENT OF HON. CURTIS EMERY VON KANN

                              Introduction

    Senator Thompson, Senator Lieberman, and Members of the Committee: 
My name is Curtis von Kann. My background, briefly, is that I was a 
trial lawyer in private practice in Washington, D.C. for 16 years 
beginning in 1969. In 1985 President Reagan appointed me a Judge of the 
District of Columbia Superior Court, where I served for 10 years. In 
1995 I retired from the bench in order to help people resolve their 
legal disputes outside of court. Currently, I serve as Director of 
Professional Services in the Washington, D.C. office of JAMS/ENDISPUTE, 
the Nation's largest and, we think, best mediation and arbitration 
company. What brings me here today, obviously, is the fact that in 1996 
I was appointed the 17th Independent Counsel of the United States under 
the statute you are reviewing.
    The letter from Senators Thompson and Lieberman inviting me to 
testify today asked that I address three topics, namely, my experience 
with the act, my views on whether the act has achieved its objectives, 
and any legislative proposals I believe the Committee should consider. 
I will confine my testimony to those three topics.
    I appreciate that your invitation did not ask me to address the 
experience of other Independent Counsel, and I do not plan to do so. 
Since I am not privy to the multitude of facts and considerations which 
have influenced the actions and decisions of other Independent Counsel, 
I do not feel competent to comment on their work.
    I request that my full written statement be placed in the record, 
so that I may confine my oral presentation to the highlights only.

                     I. My Experience With The Act.

    In mid-November 1996, I received a telephone call from Judge David 
Sentelle, Presiding Judge of the U.S. Court of Appeals Division for the 
Purpose of Appointing Independent Counsels. He told me that the 
Division was considering candidates for an appointment it would have to 
make shortly and invited me to an interview before the three judges of 
the Division, which I attended soon after. On November 27, 1996, about 
a week after my interview, the Court appointed me Independent Counsel 
in the Matter of Eli J. Segal. Because the allegations concerning Mr. 
Segal had received little or no publicity at that time, the Attorney 
General requested that this appointment be made under seal, and the 
Court did so.
    Immediately following my appointment, I began to assemble a staff 
and set up my office. In doing so, I was influenced by an experience 
earlier in my legal career. In 1983-1985, I had worked in the law firm 
of Jacob A. Stein, while he served as Independent Counsel in the first 
investigation of Attorney General Edwin Meese. While I did not work 
directly on that investigation, I had an opportunity to observe Jake's 
modus operandi, and I was quite impressed by the economy and speed with 
which he conducted his investigation. When, 12 years later, it fell to 
me to perform the duties of an Independent Counsel, I was determined to 
do so as economically and expeditiously as possible, consistent with a 
thorough and professional investigation. Additionally, because the 
matter was under seal, I was determined that our investigation would be 
conducted in utmost confidence, so as not to violate the legitimate 
privacy interests of Mr. Segal and others involved in the matter.
    With these thoughts in mind, I set about to hire a lean team. I 
selected two attorneys to work with me, namely, Richard A. Simpson and 
Melanie G. Dorsey. Mr. Simpson was a former Assistant U.S. Attorney who 
had later served on the staff of Independent Counsel James McKay in the 
second investigation of Attorney General Meese. Ms. Dorsey was also a 
former Assistant U.S. Attorney and a former senior attorney at the U.S. 
Office of Government Ethics.
    Through the good offices of FBI Director Louis Freeh, Special Agent 
Ruth A. Bransford was detailed to assist in our investigation.
    Through the assistance of James Sizemore and his staff at the 
Administrative Office of the U.S. Courts, I secured the service of Lula 
R. Tyler as my Administrator and ``Certifying Officer.''
    Throughout the investigation, my staff never exceeded those four 
persons--two lawyers, one FBI agent, and one administrator. Six months 
into the matter, after we completed the bulk of our substantive work, 
Mr. Simpson resigned to return to his full-time law practice, and Ms. 
Dorsey assumed the position of Deputy Independent Counsel, thereby 
reducing the staff roster from four to three.
    The Administrative Office of U.S. Courts provided us with offices 
which it already had under lease as possible start-up space for 
Independent Counsels. No modifications to this space were required and 
it met the security requirements of an office under seal. Except for 
leasing one computer, we furnished the office entirely with perfectly 
satisfactory, used government furniture and supplies remaining from 
previous Independent Counsel offices. We devoted one terminal to 
Westlaw access for research purposes and obtained other research 
materials from the Department of Justice's law library.
    With staff and offices in place, I began the substantive 
investigation in early 1997.
    The allegations in our case concerned actions taken by Mr. Segal 
when he was Chief Executive Officer and Chairman of the Board of the 
Corporation for National and Community Service (``the Corporation''), a 
wholly-owned government corporation which oversaw the President's 
Americorps program. As you may recall, the National and Community 
Service Trust Act of 1993 provided that, in order to reduce demands on 
the Federal treasury, the Corporation could accept private donations to 
support the Americorps program. Within a few months of the 
Corporation's creation, Mr. Segal and others at the Corporation decided 
that they should establish a non-governmental ``501(c)(3)'' entity, 
which could promote private support for Americorps and accept donations 
from foundations and corporations that preferred to make contributions 
to a private, tax-exempt entity rather than the Federal Government. 
Accordingly, a D.C. non-profit organization called the Partnership for 
National Service (``the Partnership'') was established. The 
Partnership's Bylaws called for three of its seven directors to be 
officers of the Corporation or their designees. Thus, Mr. Segal became 
a director and chairperson of the Partnership; Shirley Sagawa, the 
Corporation's Executive Vice President, served as president and a 
director of the Partnership; and Larry Wilson, Jr., the Corporation's 
Chief Operating Officer, served as secretary, treasurer, and a director 
of the Partnership.
    The central question in our investigation was whether Mr. Segal 
(and also Ms. Sagawa and Mr. Wilson), by simultaneously serving as 
officers of the governmental Corporation and also as officers and 
directors of the private Partnership, violated the conflict of interest 
provisions of 18 U.S.C. Sec. 208, which make it a Federal crime for any 
officer or employee of the Federal Government, or of any independent 
agency of the United States, to participate personally and 
substantially in any decision or other matter in which an organization 
of which he or she is an officer or director has a financial interest.
    Parenthetically, neither the Executive Director, nor any other 
officer or employee of the Corporation for National and Community 
Service, is a ``covered person'' under the Independent Counsel Act. 
However, the Attorney General determined that Mr. Segal was a covered 
person because he served as Chief of Staff of the 1992 Clinton/Gore 
Election Committee and participated in the day-to-day management of the 
campaign at the national level. Interestingly, it was not Mr. Segal's 
actions in his covered position (as campaign chief of staff) which were 
the subject of our investigation but rather his subsequent actions in 
the not-covered position of Chief Executive and Chairman of the 
Americorps Corporation.
    In the course of investigating this matter, my staff and I 
undertook to gather as quickly as possible sufficient facts to make an 
informed judgment about whether Mr. Segal should be prosecuted. Thus, 
we met with representatives of the Corporation's Inspector General's 
Office, which had referred the matter to the Department of Justice, and 
met with staff of the Department's Section of Public Integrity. We 
obtained and reviewed approximately 10,000 pages of documents. We 
interviewed ten persons with knowledge of the pertinent matters and 
made detailed records of those interviews. We met twice with Mr. 
Segal's counsel to apprise them of the scope of our inquiry and to 
invite a submission detailing their views. In May 1997, we conducted a 
2-day, recorded interview of Mr. Segal in which he answered, under 
oath, all the questions we put to him concerning this matter.
    Throughout this investigation, we emphasized to all persons we 
talked with that the matter was under court seal and should not be 
disclosed to anyone without the court's permission.
    By mid-June 1997, my staff and I concluded that we had assembled a 
sufficient body of facts to make an informed prosecutorial decision. We 
had reviewed the most important documents and talked to the most 
important witnesses and had received generally consistent information. 
While we could have kept the investigation going many more months by 
looking for more documents and interviewing increasingly peripheral 
players, we decided that was neither necessary nor desirable.
    During June 1997, my staff prepared a complete analysis of all the 
matters we had considered, and we held several conferences to review 
and discuss this analysis. After thorough discussion, Mr. Simpson, Ms. 
Dorsey, and I unanimously agreed that we should not prosecute Mr. 
Segal, Ms Sagawa, or Mr. Wilson. We concluded that the simultaneous 
service of these individuals as officers of the governmental 
Corporation and the private Partnership, both of which were interested 
in raising donations for the Americorps program, may have constituted a 
violation of 18 U.S.C. Sec. 208. However, we also decided that a sound 
exercise of prosecutorial discretion led to the conclusion that a 
criminal prosecution was neither viable nor desirable in view of 
several factors:
    First, Mr. Segal testified credibly and without contradiction that 
he believed the creation and operation of the Partnership was lawful 
and proper, since the incorporation of the Partnership had been 
handled, on a pro bono basis, by one of Washington's largest law firms 
and the Office of Management and Budget was advised of plans to 
establish the Partnership and gave apparent approval.
    Second, Mr. Segal and other Corporation employees saw the creation 
of the Partnership as a legitimate means to effectuate the goals of the 
National and Community Service Trust Act of 1993, including 
``reinventing government'' by establishing public/private partnerships 
which would seek to employ the principle of leverage and grow national 
service, not with government dollars but with charitable dollars.
    Third, Mr. Segal, and other Corporation employees, including staff 
in the Corporation's General Counsel and Public Liaison Offices, saw 
the Partnership, not as an entity separate from the Corporation, but 
rather as an arm of the Corporation that existed for administrative 
convenience and had congruent financial interests.
    Fourth, there was no evidence that Mr. Segal, Ms. Sagawa, or Mr. 
Wilson benefited personally from their unremunerated positions as 
directors and officers of the Partnership.
    Finally, there was no evidence of the willfulness needed to support 
a felony prosecution under Sec. 208; any prosecution would be, at most, 
for a misdemeanor.
    Because my order of appointment also contained the standard 
language vesting me with ``authority to investigate related allegations 
or evidence of violation of any Federal criminal law . . . by any 
person or entity . . . as necessary to resolve [the Sec. 208 issue 
referred to me],'' my staff and I also considered whether Mr. Segal or 
others should be prosecuted for other possible criminal violations 
related to creation of the Partnership.
    Specifically, we considered whether Mr. Segal knowingly made false 
material statements, in violation of 18 U.S.C. Sec. 1001, when he 
signed an application, submitted to the IRS in late November 1994, 
which stated that the Partnership had not yet engaged in any 
fundraising, when such fundraising had actually begun a month earlier, 
or when he signed annual financial disclosure reports which failed to 
include, in the section for positions held outside of the U.S. 
Government, any reference to his positions in the Partnership. We 
concluded that prosecution was not warranted on either account. Drafts 
of the IRS application had been prepared by counsel and submitted to 
Mr. Segal at earlier times (perhaps even before the Partnership fund-
raising began); Mr. Segal looked quickly at the final application, 
detected no errors, and signed it, thus precluding a finding of knowing 
falsehood. Neither was Mr. Segal's omission of the Partnership from his 
financial disclosure forms a willful misstatement, since he considered 
himself to be acting in his official capacity as CEO of the Corporation 
when he performed his Partnership responsibilities; moreover, the 
Corporation's Alternate Designated Ethics Official had issued an 
opinion that Corporation officers were acting in their official 
capacities in their positions at the Partnership and were not required 
to list those positions in their disclosure forms.
    We also considered whether, in submitting to the IRS an application 
to grant the Partnership 501(c)(3) status, Mr. Segal violated 18 U.S.C. 
Sec. 205, which prohibits an officer or employee of any agency of the 
United States, other than in the proper discharge of his official 
duties, from acting as an agent for anyone before any department or 
agency in a matter in which the United States has a direct and 
substantial interest. We concluded that, because the application was 
submitted in connection with Mr. Segal's duties as CEO of the 
Corporation, the facts did not satisfy the statutory requirement that 
the officer must be acting ``other than in the proper discharge of his 
official duties.''
    Finally, we considered whether Mr. Segal violated 18 U.S.C. 
Sec. 641, which prohibits the conversion of Federal money or property; 
18 U.S.C. Sec. 371, which prohibits any conspiracy to defraud the 
United States; or 18 U.S.C. Sec. 207, which prohibits a former senior 
government employee from contacting his old agency, for a period of 1 
year, with an intent to influence any agency action. We found 
insufficient evidence to show a violation of any of these sections.
    Having concluded that no prosecution of Mr. Segal or other 
Corporation officers was warranted, my staff and I had to decide what 
to do by way of a final report. The Independent Counsel Reauthorization 
Act of 1994 abolished the requirement that an Independent Counsel 
explain his reasons for not seeking indictments. Nevertheless, the 
legislative history of the act calls for the Independent Counsel ``to 
provide a summary of the key steps taken'' in the investigation and 
``to explain the basis for [his] decision.'' That history also 
indicates that Congress considered it crucial for the final report to 
contain ``a discussion of the conduct of the person for whom the 
independent counsel was appointed to office.''
    Most law review commentaries discussing the final report 
requirement have criticized it, and Congress itself has cautioned that 
the requirement is not intended to authorize the publication of 
findings or conclusions that violate normal standards of due process, 
privacy, or simple fairness.
    Moreover, our case was still under seal when we were wrestling with 
these considerations, although we recognized that the seal might be 
removed at some future time.
    Ultimately, I decided to submit a final report with sufficient 
detail to assure the Court, Congress, and any other reader that our 
investigation was thorough, professional, and competent; that the 
decision to decline prosecution was based on the merits and the 
evidence adduced; and that resources were used wisely and economically. 
I also concluded, however, that the report should be concise; that it 
should not taint any individual; and that all persons, other than the 
subjects of the investigation, should be identified by generalized 
descriptions of their position but not by name. On August 21, 1997, 
slightly less than 9 months after I was appointed, I filed with the 
Court, under seal, a 25-page final report conforming to those 
guidelines.
    In October 1997, under circumstances still unknown to me, someone 
leaked to the press the fact that Eli Segal, who was then under 
consideration for presidential appointment to a significant position, 
had been the subject of a recent Independent Counsel investigation. 
Stories quickly appeared in the Washington Post, The New York Times, 
and, via wire service, in newspapers around the country. I have no idea 
who leaked this information or why, but I feel confident that it was 
not my staff.
    Because the reason for keeping the matter under seal had, 
unfortunately, evaporated, and because some of the stories erroneously 
reported that Mr. Segal had been under investigation for campaign 
finance abuses, which was then a very hot issue and almost certainly 
more damaging to reputation than the true subjects of our 
investigation, I concluded that it was my duty to move the Court for 
public release of the final report. Mr. Segal's counsel also concluded, 
regretfully, that this was the best course. Thus, I filed a motion to 
lift the seal on our report, and the Court did so.
    The last part of my experience, which I should briefly mention, is 
that, while it took me a bit less than 9 months to recruit staff, set 
up an office, conduct the investigation, analyze the issues, and submit 
a final report declining prosecution, it took me an additional 15 
months to comply with the act's requirements for terminating my office. 
First, Mr. Segal and Ms. Sagawa filed petitions for attorneys fees, as 
they were entitled to do; the processing of those petitions--i.e., the 
submission of the initial petitions with supporting papers, responses 
by our office, replies by Segal's and Sagawa's counsel, the issuance of 
orders by the Court, and payment of the fees--proceeded at a fairly 
leisurely pace over the space of nearly a year. The General Accounting 
Office, which audits Independent Counsel Offices and publishes reports 
every March and September on expenditures during the period which is 6 
to 12 months prior to those dates, was unable to perform its last 
substantive audit on our office until November 1998, about 14 months 
after we submitted our final report. Finally, while not a significant 
source of delay in our case, we were required to place all the 
substantive papers accumulated during our investigation into indexed, 
subdivided transfile boxes and to deliver 25 such boxes to the 
Archivist of the United States.
    On October 15, 1998, I advised the Court and the Attorney General 
that I would terminate my office effective November 30, 1998, and on 
that date, I did so. The cost to the taxpayers for this 24 month 
effort--9 months of substantive investigation and 15 months of wind-
up--was approximately $465,000.

                II. Has The Act Achieved Its Objectives?

    The prime objective of the Independent Counsel Act, passed in the 
wake of Watergate and the ``Saturday Night Massacre,'' was to assure 
the public that prosecutorial decisions concerning high-ranking 
administration officials are made on the merits by persons independent 
of the administration and of the political winds that inevitably swirl 
around this town. To a large extent, I believe the act has achieved 
that objective. Of the approximately 20 Independent Counsel appointed 
under this act, only three or four have received significant criticism, 
the public apparently being satisfied with the jobs done by the 
remaining 16 or 17. In matters this controversial, an approval rating 
of 80 percent or higher is a pretty impressive record.
    Moreover, with the single exception of one on-going investigation 
of the President, most of the criticism that has arisen is not on the 
grounds of the alleged partisanship of the Independent Counsel. Rather, 
the criticisms have been, principally, that recent investigations have 
been too expensive, too protracted, too wide-ranging, and too 
unchecked.
    I believe there are better ways of dealing with those criticisms 
than simply abandoning the act altogether. Allowing the act to expire 
and letting the Attorney General appoint Special Prosecutors, on an ad 
hoc basis as future needs arise, is no real answer to such criticisms. 
An ad hoc Special Prosecutor's investigation could be just as 
expensive, protracted, and wide-ranging as any conducted under this 
act. Moreover, if the case involves the President or other high 
officials, the Special Prosecutor will be essentially as free from 
supervision and control as Independent Counsels are now. Politically, 
no Attorney General would dare rein in or dismiss such a prosecutor in 
a highly charged case, given the firestorm that followed Archibald 
Cox's firing.
    While the decision of what to do about the act is certainly an 
important one, I believe zealous advocates on both sides of the issue 
have somewhat exaggerated the consequences of the course of action they 
oppose. In my view, the Republic will not crumble if the act is allowed 
to expire; we managed reasonably well for 200 years without it and 
could doubtless do so again. Nor would the Nation perish if the act 
were reauthorized in exactly its present form; as noted, more than 80 
percent of the counsel operating under this act have performed their 
duties in quite acceptable fashion and future counsel, unless they are 
extraordinarily obtuse, will certainly be chastened by some of the 
stinging criticism leveled at their recent predecessors.
    The question, I suggest, is not what choice must be made to avoid 
disaster. Rather, the question is, with due regard for its costs, do 
the net benefits of having some sort of Independent Counsel Act 
outweigh the benefits of having none at all? In my judgment, the answer 
to that question is ``Yes.'' I believe there is great value in having 
already in place an established mechanism and procedures for dealing 
with those exceptional situations where the public would not likely 
accept the integrity of a Department of Justice decision to prosecute, 
or not to prosecute, officials at the highest level. Moreover, I 
believe that there is a much greater opportunity to curb the perceived 
abuses (i.e., investigations which go on too long, cost too much, and 
veer off into too many tangential areas) through enactment of a 
carefully retooled Independent Counsel Act than by dispensing with 
statutory standards, requirements, and limitations altogether.

                III. Legislative Proposals To Consider.

    As the expiration date of the current Independent Counsel Act 
approaches, a great many people have come forward with proposals for 
changes in the act. I have not read and considered all these proposals, 
and have not reached any hard and fast judgment concerning the complete 
package of proposals I would favor. However, I do think the need for 
change in certain areas is clear.
    First, the act should be amended in three ways so that appointment 
of an Independent Counsel would be quite exceptional and not routine:

    1. The list of ``covered persons,'' which I'm told now totals 240, 
should be greatly reduced. I favor including only the President, Vice 
President, and Members of the Cabinet.
    2. The act should apply only to crimes allegedly committed while in 
office. Investigation of pre-office offenses should be left to regular 
State and Federal prosecutors.
    3. The ``triggering mechanism'' which activates the appointment 
process should be revised so as to raise the standard and make 
appointment less automatic. Various reformulations of the mechanism 
have been suggested, and I have no view at present as to which is best.

    Second, the process for selecting Independent Counsels should be 
de-politicized. I rather like Lloyd Cutler's suggestion that each 
President, at the beginning of his term, would submit to the Senate the 
names of 10 or 15 persons who, upon confirmation, would constitute the 
panel from which future Independent Counsel would be chosen. Having 
such persons blessed in advance by both the Administration and Congress 
would greatly reduce the chances of their later being attacked as 
partisan or lacking in judgment.
    Third, the process by which an Independent Counsel could seek to 
expand his or her investigation into new areas should be reviewed and 
tightened up considerably.
    Fourth, the role of the Special Division should be re-examined. I 
am intrigued by Professor Gormley's thesis that the best way to place 
reasonable restraints and accountability on the work of Independent 
Counsels is to give the Special Division clear duties and powers with 
respect to overseeing that work, including the power to replace an 
Independent Counsel in extreme cases. Federal courts already have a 
well-developed body of caselaw for dealing with prosecutorial abuse and 
misconduct; it should not be too difficult to adapt that caselaw to 
dealing with excesses of an Independent Counsel. I believe that 
Congress should also look at proposals for assuring regular rotation of 
the membership of the Special Division; one possibility would be to 
appoint new three-judge panels every few years and allow prior panels 
to continue supervision of any Independent Counsel they appointed.
    Fifth, Congress should take a fresh look at the final report 
requirement. It may be desirable to require that all Independent 
Counsel file a very brief report recording the skeletal facts of their 
investigation--e.g., ``I was appointed on date A, to investigate 
subject B, re matter C; I hired personnel D; we reviewed this many 
documents, interviewed this many witnesses, and decided on date E not 
to prosecute; or we obtained Indictment F, proceeded to trial, and 
secured this result.'' Beyond that, I would leave any substantive 
discussion of the case to the discretion of the Independent Counsel, 
with a presumption that there should not be such a discussion unless it 
is truly needed--for example, to explain some unusual feature which, if 
unexplained, might generate confusion or perhaps to point out to 
Congress a need to correct some gap or ambiguity in the criminal 
statute in question. In all cases, reports should be concise, prompt, 
and written with due regard for legitimate privacy and reputational 
interests of persons not indicted.
    Sixth, in keeping with my former law professor, Archibald Cox, I 
favor writing into the statute strict, arbitrary time limits for the 
completion of all Independent Counsel investigations. Parkinson's Law 
correctly holds that ``work expands to fill the time available for its 
completion.'' Never is this more true than when one is conducting an 
investigation of a high level official, with the whole world watching, 
and a virtually unlimited supply of stones to turn over, just to make 
absolutely certain that you didn't miss something. Yet, in nearly every 
other aspect of life, there are time limits by which very important 
things have to be completed--30 minutes to argue an incredibly complex 
case in the Supreme Court, 3 hours to complete a college or law school 
final examination, 20 hours to present to the Senate the case for or 
against impeachment of a President. Time is not an unlimited resource, 
and both the public and the subject have a right to a reasonably prompt 
completion of an Independent Counsel investigation.
    Across the Potomac River, on the so-called ``Rocket Docket'' of the 
U.S. District Court in Alexandria, all cases--no matter how complex or 
protracted--go to trial within 1 year of filing. Competent counsel find 
that the short deadline forces them to focus on the most important 
aspects of the case and to use their resources wisely. Attempts by 
recalcitrant parties to drag out the proceedings are quickly squelched; 
District Judges dispose almost instantly of all motions filed.
    Based on my own experience, I would suggest that the statute 
include a requirement that all Independent Counsel be required to 
either indict or announce a decision to decline prosecution within 1 
year of their appointment; for good cause shown, I would allow the 
Special Division to grant up to two extensions of 6 months each, but no 
more than that. All investigations would have to be completed, at the 
absolute outside, in 24 months. (Of course, where indictments were 
brought, trial and appellate proceedings could go on for some time 
after that.)
    Finally, I would urge Congress to insert a strict 6-month limit for 
the winding up of an Independent Counsel Office, once prosecution has 
been completed or declined. That is ample time to archive files, brief 
and decide attorneys fees petitions, and allow the GAO to conduct a 
final audit of the office.
    Indeed, rather than having the Independent Counsel keep his or her 
office intact for many months while waiting for the next GAO audit 
cycle to come around, it may be most economical and sensible to require 
that the Independent Counsel shut down the office as soon as the 
substantive work is done and provide that an official at the Justice 
Department or the Administrative Office of the U.S. Courts would handle 
the clerical wind-down and final audit of all Independent Counsel, with 
the proviso that such counsel must remain available to answer any 
questions which might arise.
    Incidentally, one thing I would not worry about much is setting 
budgets for Independent Counsel. While expenditures of some recent 
Independent Counsel may seem large, they are, in truth, insignificant 
in relationship to many less worthy Federal expenditures and are hardly 
too great a price to pay to determine whether the highest government 
officials have committed serious criminal acts. I believe that the best 
way to bring down the total costs of Independent Counsel matters is to 
implement changes, like those suggested above, which will insure that 
such investigations will be less frequent and less protracted than in 
recent years.

                               Conclusion

    I am honored for this opportunity to testify before you on this 
important subject and will be happy to respond to questions on the 
matters addressed in my testimony.

    Chairman Thompson. Well, thank you very much, and, again, 
thank you all for your patience and your forbearance. I assure 
you, although others have gone on to other responsibilities, 
that your views and thoughts will be known to everyone 
concerned with this. I think clearly the jobs that you did show 
that there have been instances when it worked the way the 
drafters of the law intended for it to.
    But, Mr. diGenova, I was wondering whether or not Mr. von 
Kann's plea for time limitations made any impression on you.
    Mr. diGenova. Well, let me begin by saying that I 
understand that Judge von Kann's mentor, Archibald Cox, has had 
an epiphany in the last 12 months and has decided, again, that 
there are structural infirmities in the statute which he had 
missed for 25 years.
    Chairman Thompson. There has been a lot of that going on.
    Mr. diGenova. Yes, there have been many epiphanies in the 
last--I saw some of them this morning. There were lights, 
haloes glowing over on this side.
    I think what is most--putting aside the acuteness of, 
again, the epiphany of many of the act's lovers who have now 
become its critics, I think what we have to do is what would 
the Justice Department do if asked, as part of its 
reauthorization package, you would require it to accept 
limitations on criminal investigations, and the answer is the 
President of the United States would rightfully veto that piece 
of legislation, and he should.
    No responsible investigation can have time limits put on it 
because it is an open invitation to dilatory tactics by very 
aggressive and very able counsel, and it doesn't take much. 
Even if you are not being dilatory, there are a huge number of 
issues that come up in a criminal investigation. Let me give 
you an example.
    When I was appointed the independent counsel, I was called 
by the court. The statute was expiring within 48 hours of my 
appointment. I was interviewed by the court. I was appointed, 
secretly. The next morning, after I had had the conversation 
with the court when I was appointed, I woke up and there was a 
headline, the largest headline I had ever seen, saying, 
``DiGenova Appointed Independent Counsel to Probe Bush.''
    It had leaked out. I felt awful. I had not even had a 
chance to discuss this with some people that I had a duty to 
discuss it with. It encouraged me in my resolve to conduct an 
investigation that was below the radar screen. In fact, I moved 
our grand jury. No one ever knew it. It was not sitting in the 
U.S. District Court here. Our witnesses never went in that 
courthouse. We kept below the radar.
    I never held a single press conference or issued a single 
press release until the day I filed my report after I had 
exonerated everyone. I held one press conference the day I 
issued my final report to issue an apology to the people who 
had been investigated--an apology not from me, but on behalf of 
the people of the United States and the Government of the 
United States for having to put them through what the statute 
required.
    During that time, I was handed an investigation which had 
involved an illegal interception of telephone communications at 
the State Department. That created terrible problems involving 
whether or not even the fundamental evidence that had come into 
our possession could be used under the tainted evidence rules, 
as you know, of the wiretap statute. We had to conduct two 
separate investigations: One with FBI agents and prosecutors 
who knew what was in those telephone conversations, and one 
group of prosecutors and FBI agents who knew nothing about that 
information. The issue was litigated on two tracks before the 
chief judge and in the U.S. Court of Appeals.
    The problem with having a limitation on the investigation 
is that there is no responsible way to put a limitation on an 
investigation, because if you do you are automatically killing 
the investigation and you will get no one of repute to accept 
the assignment to undertake it.
    Chairman Thompson. I wish you would quit saying that 
because I am sitting here thinking no Chairman in his right 
mind would accept such limitations, either. But we did and 
regretted it, over our objections.
    Mr. Christy. Mr. Chairman, may I make just one comment? 
Senator Levin in the course of his remarks noted that he--or he 
doubted that anybody would ask that a special counsel be 
appointed to investigate him, and there was a reference to 
Edwin Meese.
    Chairman Thompson. Yes.
    Mr. Christy. However, some time in the very early 1980's, 
Mr. Donovan, who I think had been appointed Secretary of Labor, 
asked that a special counsel be appointed, and Leon Silverman 
was appointed and ultimately exonerated Mr. Donovan, whose 
comment then was: ``But how do I get my reputation back?''
    Chairman Thompson. Well, thank you for that. That is a 
valuable comment.
    I would like to ask all three of you a very specific point, 
whether or not you think that the subjects of your 
investigation were out more in terms of attorneys' fees and 
expenses because an independent counsel was appointed to 
investigate them as opposed to a situation where the Justice 
Department had handled the same case.
    Judge von Kann. Actually, Senator, the irony is our 
subjects were better off in that all three of us declined 
prosecution, and under the act they were entitled to have their 
attorneys' fees paid by the taxpayers, which in my case 
happened.
    Mr. Christy. But that later on----
    Judge von Kann. I think you are right.
    Mr. Christy. My guy and Donovan didn't get it.
    Judge von Kann. That was a later provision in the statute.
    Chairman Thompson. Let's carry it a step further and assume 
indictment in both scenarios. I know that is stretching it a 
little bit, but you see the point I am getting to. Does an 
independent counsel investigation--is it more onerous and 
burdensome strictly from a financial standpoint than a similar 
investigation by the Justice Department? Part of that just may 
be opinion, a matter of opinion.
    Mr. diGenova. Well, Mr. Chairman, I think one of the 
things--one of the horrible secrets of this whole issue is that 
the truth is that Federal criminal investigations are very 
onerous per se, whether they are conducted by an independent 
counsel, the Main Justice, or a U.S. attorney. The cost of 
defending yourself, even if you are only a witness, let alone a 
subject or target, is tremendous. It is a part of the system 
that I think Congress ought to take a look at when it reviews 
the general area of Federal criminal law enforcement. But being 
a target or a subject or even a witness in any of these 
investigations requires the hiring of a good lawyer who knows 
his or her way around. It is very expensive.
    If you become a target in any Federal criminal 
investigation, whether or not it is an IC or the Justice 
Department, the costs associated with that are staggering in 
terms that any normal individual would understand. Hundreds of 
thousands of dollars can easily be spent in responding to 
subpoenas and doing all sorts of things that are necessary to 
properly defend yourself.
    I think what happens in the independent counsel situation 
is that people get dragged into an investigation who are on the 
periphery as well as those who are at its core because of the 
desire to be thorough, that independent counsels have, which is 
a natural consequence of a whole bunch of things in the 
statute. And a lot of people have to spend money for lawyers 
who wouldn't otherwise do it.
    Chairman Thompson. The higher the profile of the case is, 
probably the more pressures come to bear.
    Mr. diGenova. That is exactly correct.
    Chairman Thompson. The idea of being thorough and so forth, 
and even more so than you would in an ordinary case, which gets 
me to my next question. I was struck when reading Mr. Christy's 
testimony that although he had a case there--and, of course, it 
was handled in a very expeditious manner. But even though he 
had a case there, probably regular prosecutors would not have 
prosecuted. He had bad witnesses who had every motivation to 
lie. They were trying to cut a deal for themselves, and yet--
and you already had 500 or 600 pages of FBI interview material 
to start your investigation. But you felt it necessary to 
interview 100 witnesses and have 19 grand jury sessions over 6 
months. And I believe in your testimony you thought in view of 
all the commotion--you were the first independent counsel, of 
course, but in the profile of the case, it would not be very 
wise for anybody to be able to say you were giving short shrift 
to this investigation.
    So is it fair to say that you felt it necessary to kind of 
go beyond the duty, go beyond what a regular Federal prosecutor 
would in a similar case, even involving the same man?
    Mr. Christy. I discussed this with the then-Attorney 
General and his assistants and said to them, why are we 
involved with two toots of cocaine? I mean, that wouldn't even 
get to the complaint bureau in New York, either in the Federal 
system or in the State system. Well, he said, it is a crime, it 
is a misdemeanor. The law says you have got to appoint a 
special counsel.
    After I was appointed, I considered seriously whether I 
should at that point just decline prosecution on the grounds 
that even if I went through and got an indictment, I didn't 
think there was any jury in the city of New York that would 
even remotely think of convicting him.
    My thought is that that thing should have been cut off 
right at the pass.
    Chairman Thompson. I think that is a point well made, also.
    Mr. diGenova, I am going to ask you another question. You 
talked about in terms of damage you think the statute has done 
to the public perception. Instead of curing the problem, it has 
exacerbated the problem, public cynicism and so forth, I think 
especially in the higher profile cases.
    In the lower profile cases, it seems like some of the 
pressures are not there, and it works a lot better. The higher 
the profile, the bigger the problems.
    Ironically, most of us are focusing in now on just limiting 
it yet to a few instances where the President, the Vice 
President, and the Attorney General are involved. But those are 
the very cases where we have had all the problems and the 
political pressures and criticisms come to bear. So we kind of 
meet ourselves coming back. It is difficult to solve.
    But I want to ask a question that may be unfair, but do the 
best you can. That has to do with the Justice Department in all 
of this. Some of us are thinking that it might be better to let 
it lapse, and at least for a while, maybe forever; give it back 
to Justice. That implies getting back or maintaining, however 
you view it, a certain level of confidence in the Department of 
Justice. I don't want to be unduly critical or unduly general. 
Senator Specter's and my criticisms of the Department have been 
well documented. They have gone over there for about 2 years 
without even having a head of the Criminal Division and various 
other things.
    Is the Justice Department going to need to regain some--
have they lost throughout all of this, maybe due to the 
independent counsel, due to some decisions that have been made? 
You are familiar over there. Some of them I am sure are your 
friends. Some of them are my friends. Do they need to regain a 
measure of credibility? Have they lost a measure of credibility 
over the last few years without necessarily getting into a lot 
of detail, if you don't consider that to be an unfair question?
    Mr. diGenova. Well, I don't think it is an unfair question, 
Mr. Chairman, and I tell you, I think all of us have to be 
aware of how the Department feels about itself. I don't want to 
get too touchy-feely here, but the truth is you are dealing 
with a core bureaucracy of career prosecutors who, for the most 
part, are fundamentally sound, good people, who spend their 
lives dedicated to Federal law enforcement. And they do a good 
job.
    What the statute did over a period of time--and, remember, 
there are two constituencies inside the Department. There are 
people who love this statute in the Department because it gets 
them out of politically sensitive cases and out of the sight in 
the gun of people who want to oversee cases like this and 
criticize the Department for not going with it. There are 
people inside the Department who hate the statute because they 
view it as an insult to their integrity and their ability to 
investigate certain types of crimes.
    I know both of those camps. I knew them when I served as 
U.S. attorney, and I knew them when I was an independent 
counsel, and I know them as a defense attorney.
    The Department over the years, I think, has suffered an 
erosion of confidence in itself as a result of the existence of 
the statute, and I think there has developed some ingrained 
feelings inside the Department and pro and con. There are camps 
inside the Department about this statute.
    I think some of those things have come out in the press. 
You have seen some of the stories in The Washington Post and 
The New York Times about the differences of opinion that have 
come at the highest level within the Department in terms of 
interpreting the Independent Counsel Statute.
    I think that the Congress could do nothing better than to 
reinvigorate the Department in a meaningful way by 
demonstrating its continued confidence in their ability to do 
their job.
    Now, I can't account for the fact that members, individual 
members may not have that confidence because of what they 
perceive to be the performance of the Department. I think the 
Department has to prove itself every day in the way it does its 
job, just like anybody else does who is doing a job. But I do 
think that the statute has led to an erosion of confidence, I 
think unjustifiably, in the ability of the Department and its 
career prosecutors to investigate very sensitive cases.
    I have several matters with the Department right now at my 
firm. I have the utmost confidence in those people to be fair. 
If some of those matters get into the area of an independent 
counsel, everything changes. The entire ball game changes when 
it is a high-profile person. All of the calibrations are 
different. All of the decisionmaking is different.
    It shouldn't be that way. It wasn't when I was an 
independent counsel, and it wasn't when these two gentlemen 
were independent counsels. But human nature being what it is, I 
think the Department has felt harmed by the existence of the 
statute, and I think that--well, let me say something also 
about what Senator Levin said because it fits right into what 
you are saying.
    Senator Levin--and I am sorry he isn't here--proposed or 
threw out an idea that one of the things if we re-enacted the 
statute would be to have a requirement that--or if it was just 
the Attorney General appointing someone, that this person would 
have to file a report with the Attorney General and then a 
report with the committees.
    The minute you start doing stuff like that, you start to 
destroy the independence of prosecutors. I don't think it is 
important for Congress to be able to get prosecution memos, for 
example. I agree with the Attorney General. She should never 
turn over a prosecution memo, and I agree with Judge Bell when 
he said he would never do it. And I would go to contempt if I 
were an Attorney General on that, and I would win.
    That is not to say that Congress should not conduct 
excellent, intrusive oversight, in fact, and apropos of Senator 
Specter's concerns, whether or not oversight is effective or 
not is really a question for the members of any committee to 
decide how far they want to go and how far they want to push 
something.
    But the Department has a morale problem as a result 
partially of the existence of the statute. Whether or not it 
has a morale problem for other reasons, I don't know and I am 
not competent to tell this Committee. But the death of this 
statute would not be a cause for dismay within the ranks of 
career prosecutors at the Department, and I understand that and 
I stand with them in that regard because I, again, believe that 
this statute is a very bad idea because it basically says we 
can't trust certain people. That is not to say that there are 
not instances in which a special counsel should be appointed, 
as was done in Teapot Dome, as was done in the tax fraud 
scandal, as was done in Watergate, and as was done at the 
beginning of Whitewater. All of that is handled.
    Chairman Thompson. Thank you very much. Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. Picking up on the 
question as to who ought to be covered by the statute, Mr. von 
Kann, you were independent counsel for Eli Segal. It seems to 
me that prominent as Mr. Segal was, he was not closely 
connected to the Attorney General. Is there really a need to 
have independent counsel in a matter of that sort?
    Judge von Kann. I think not. But it must be remembered he 
was covered by the act not because he ran the Americorps 
program but because he had run the Clinton-Gore campaign. It 
was in that capacity that he was covered. And under the 
statute, once the President was elected and he was appointed to 
something, his coveredness went with it. I think that is well 
worth re-examining. Whether campaign officials should be 
included is debatable, but it had nothing to do with his 
running of the campaign.
    Senator Specter. Well, we are looking for some rational 
basis to make a determination as to who would be so close to 
the Attorney General or the Department of Justice that there is 
a conflict of interest.
    Mr. Christy, with Hamilton Jordan, he was very close to 
President Carter, but is there any reason to believe that the 
investigation of Mr. Jordan couldn't have been conducted by the 
Department of Justice?
    Mr. Christy. My own opinion is that the Department of 
Justice should have thrown it out right in the beginning. But 
they didn't. They made the decision that he was chief of staff; 
it was alleged that he had committed a crime, and, therefore, 
automatically we appoint a special prosecutor.
    Senator Specter. Well, if they weren't wise enough----
    Mr. Christy. I think, if I could just continue, when I got 
the case and began to look at it, I wondered could I or did I 
have the guts to decline prosecution, and I concluded that 
having recently been appointed special prosecutor, the Attorney 
General having not thrown the case out, I better go ahead and 
investigate. But I don't think it was worthy of investigation, 
no.
    Senator Specter. Well, you are talking about the merits of 
the case, and I admire your decision and your forthrightness 
and to call it as you saw it. I am looking at a little 
different aspect, and that is, Hamilton Jordan is a key man in 
the President's administration. But he doesn't consort with the 
Attorney General. He doesn't really have a relationship with 
the Attorney General like the President does or the Vice 
President does. I am looking for some rational basis for making 
a categorization if we are going to keep the statute as to 
limiting the number of covered people.
    Mr. Christy. Well, actually, Mr. Jordan did have a fair 
amount of contact with the Attorney General, as I recall it. 
But whether or not if you re-enact the act to include the 
President's chief of staff, I am not sure that I----
    Senator Specter. OK.
    Mr. diGenova, how about your investigation? Was that one 
which should have called for independent counsel, or could the 
Department of Justice have handled that?
    Mr. diGenova. Well, I think the Department of Justice could 
have handled it. I don't think there is any question about 
that. I do not believe that it was--even though some of the 
people who were being investigated were working in the White 
House, I do not believe that the Justice Department was 
incapable of doing that. I think career prosecutors working 
with FBI agents would have been able to investigate the matter 
as well as I did and would have concluded the matter exactly 
the way I did.
    But I also understand that--my position, of course, is that 
the statute should be abolished and allowed to die, and that if 
there are instances like this, I would have been fine if the 
Attorney General had said, look, this involves too many people 
at the White House that I meet with regularly at Cabinet 
meetings, I think we ought to just have a special counsel under 
the regulatory rules that I have and let them investigate this. 
That would have been fine as well, even if the statute hadn't 
existed.
    I think an Attorney General could have honestly looked at 
my set of facts and said that he or she had a conflict of 
interest with the people who were under scrutiny.
    Senator Specter. I would think it would require something 
more than meeting with them or knowing them, some much closer 
relationship. If you are the appointee of the relationship, 
that is something very different than if you meet people.
    When I was district attorney, I indicted people who were in 
the political system of my party. We are searching for a 
standard. I think it might be useful, and we can pursue this 
independently, to really survey all of the independent counsel 
and get the specifics as to whether they felt those individuals 
required independent counsel because you have got to know those 
people a lot better than we can simply to know the title, and 
similar where Mr. Christy knows Mr. Jordan much better, having 
investigated him, to get an idea as to whether he really had a 
conflict of interest, so we can screen through and try to find 
some standard in the event we intend to reauthorize.
    Chairman Thompson. Or, even if there was a conflict with 
the Attorney General, whether or not with the lower-level 
person the Attorney General could recuse herself and let 
someone else take that on, but still keep it within the 
Department.
    Judge von Kann. If I might, Senator Specter, I think all of 
us favor--at least Mr. Christy, and I, and probably Joe--if the 
law were to be reenacted, greatly reducing the number of people 
who are covered. I favor drawing the line at the President, the 
Vice President, and members of the Cabinet, but I would say it 
is difficult to do it, I think, sometimes just on the basis of 
one's position.
    You asked me do I think there was a need to have an 
independent counsel for Mr. Segal, and I think the answer is 
no, but it should be noted, Mr. Segal was a longtime friend and 
close friend of the President. He was known to be such within 
the administration. He continued to serve as assistant to the 
President, working out of the White House on occasion while he 
was also running the Americorps program. It is sometimes 
difficult to classify these things by position.
    There are instances in which individuals are well 
recognized within the administration, despite the particular 
post they are holding, as being extremely close to the 
President, and that makes it a bit more difficult, I think, to 
say, ``Well, that person clearly does not need an independent 
counsel. Look at the job he has got.'' Well, sometimes the job 
is not as important as the relationship.
    Senator Specter. Or, being close to the President, of 
course, is fundamentally different than being appointed by the 
President.
    Let me ask you the question, gentlemen, each of you, as to 
a limited tenure. What do you think of the idea to limit the 
tenure of independent counsel to the life of a grand jury to be 
extended only on a showing of cause? Mr. diGenova.
    Mr. diGenova. Senator, I would be opposed to that because, 
as I have said earlier, I think it invites dilatory tactics.
    As opposed to the tenure, if you mean someone else would 
then be appointed to continue the investigation, that would be 
wasteful, but I think to impose a limitation which we do not in 
other Federal criminal investigations of 18 months to reach a 
decision would invite the kind of tactics which have been 
complained about in recent years.
    Senator Specter. But how about if you had a full-time 
requirement?
    Mr. diGenova. Well, I think if you have a full-time 
requirement, you may not be able to get the kind and caliber of 
people you want to take the jobs. I think being paid $50 an 
hour for some of us who have been out of law school for $30 is 
not quite what I would consider appropriate, but, nonetheless, 
I continue to practice law.
    Senator Specter. We might modify the rate of pay.
    Mr. diGenova. You could, but Congress decided that it 
thought it was paying independent counsel too much 10 years 
ago. They did not like what people were making.
    It seems to me if you are going to do that, if you are 
going to make somebody resign from a law firm and give up a 
very lucrative practice to do something in the public good--and 
there are those who say, ``Well, fine, if you are going to take 
this job, then you have to take standard government pay''--I 
think modifying pay in those circumstances might be a good 
idea, but, again, remember, I do not think the statute should 
be saved, but if you are going to save it, then you are going 
to have to figure out a way to pay quality people. People are 
not going to give up their law practices to do these jobs. They 
are just not going to do it.
    Senator Specter. I think you may be wrong about that. Some 
might not, but I think many might.
    Mr. diGenova. Well, it----
    Senator Specter. Let me finish.
    You might get senior lawyers who are near retirement. I 
think we have a big pool of lawyers who could do a competent 
job, and when you talk about the----
    Chairman Thompson. They never retire, though.
    Senator Specter. When you talk about the time of an 
investigation, I think 18 months comprehends probably more than 
95 percent of investigations.
    Mr. diGenova. Senator, I will only say this. I have been a 
U.S. Attorney. I have been an advisor to the Attorney General. 
I have been an Assistant U.S. Attorney. I have been an 
independent counsel. Now I am a defense attorney. And I have 
got to tell you something. There is nobody who can tell you how 
long an investigation is going to last anymore.
    What has happened in Federal criminal law with the 
evolution of the vast powers Congress has given to prosecutors, 
it is that they can dig and dig and dig, and this process can 
be 3, 4, and 5 years, without the blink of an eye.
    Senator Specter. Well, Mr. diGenova, I am not totally 
without experience in the field, and I think 18 months is good 
enough for 95 percent of the cases, but if you have not found 
it in 18 months, it might be a good time just to wrap it up.
    I had grand juries on municipal corruption which had a life 
of 18 months. I had grand juries on drugs. I had grand juries 
on police corruption. I ran three major grand juries, a year 
and a half each, and what you cannot find in a year and a half, 
perhaps you ought to forget about.
    Mr. diGenova. Senator, there are very few prosecutors in 
this country who were as good as you were. There is no question 
about it.
    Senator Specter. Well, I was not part time.
    What do you think, Mr. Christy? Is 18 months a 
generalization long enough?
    Mr. Christy. No. I do not. I think that if you want to say 
18 months and then come back and tell us why you need another 
18 months and another 18 months, that might work, but I do not 
think you can put an arbitrary time limit on it. It just does 
not work that way.
    Senator Specter. I was Assistant Counsel to the Warren 
Commission who investigated the assassination of President 
Kennedy, and they brought in an outside team of 12 lawyers, 6 
seniors and 6 juniors, and they told us the investigation was 
going to be done in 3 months. We got an extension.
    We started in early January, and we finished in September. 
That was not a small case, but we were under pressure to finish 
it, and we finished it.
    What do you think, Mr. von Kann? I do not have to defend 
the Warren Commission results here, which I am prepared to do, 
but not at this particular hearing.
    Chairman Thompson. Still doing that?
    Senator Specter. Not at this particular hearing.
    Judge von Kann. Well, Senator, I think I am your only ally 
on the time limit. Earlier I did indicate I favor----
    Senator Specter. Well, that is one more than I usually 
have, Mr. von Kann.
    Judge von Kann. Well, I favor a time limit. I had suggested 
12 months with two possible 6-month extensions, a total of 24 
months. Obviously, these numbers are somewhat arbitrary.
    I think Joe's point is well taken that there are 
difficulties, and sometimes someone can be very obstructive and 
drag the process out, but just a couple of quick responses. I 
do not want to continue the debate unduly.
    We do have time limits on prosecutors in various settings. 
Under the Speedy Trial Act, we have time limits for bringing a 
case, when someone is preventively detained, there are time 
limits for bringing a case.
    And the reason I think some of these independent counsel 
investigations have gone on so long is that there is not an 
effective time limit, and if there were one and a counsel were 
having difficulty with someone, I find that courts when they 
know there is a deadline can handle things pretty 
expeditiously. They schedule an expedited hearing, they get 
that case in quickly and they rule, and the matter proceeds.
    I think if courts, particularly those who were conscious of 
the Independent Counsel Statute, realized that the counsel had 
7 more months to complete his or her investigation, someone is 
dragging it out, I think if Joe went to court, he would get 
some pretty speedy results.
    So I think it is doable within limits, and in my view, 
having some limits is better than letting it sort of drag on 
forever.
    Senator Specter. Mr. von Kann, the examples you cited were 
good, and we legislated time limits on habeas corpus cases. You 
can get an extension, but we have very tight time limits there 
in accordance with the general philosophy of making it a 
priority.
    Let me ask one more question because the time is going.
    Chairman Thompson. The light is off. We can be informal 
here, if it is all right with you.
    If I might just come in on that particular point, I am 
sitting here thinking about what you are saying. It seems to me 
that another one of the reasons why it takes so much time in 
some of these cases is because they are so high profile.
    What we are doing is narrowing the number of people down to 
the highest-profile cases, highly politically charged. The 
prosecutor and independent counsel reputation is on the line. 
The press is going to judge him or her, usually, on those kinds 
of cases whether or not they get somebody, all those kinds of 
things.
    I can just see now, if you impose a time limit on top of 
that, you are going to have every report in with: ``Well, we 
could have perhaps done better and gotten more if they just had 
not run the clock out on us.''
    Judge von Kann. Well, that is possible, although I think 
you said earlier that the problem has been mainly with 
independent counsel handling the highest-profile cases. 
Recently, that has been true, but I think we have to remember, 
there were two independent counsel investigations of Attorney 
General Meese, who was a very close friend of the President and 
a very powerful figure in that administration. In both cases, 
the independent counsel conducted it quickly, declined 
prosecution. There were no serious challenge to those decisions 
by Jacob Stein and James McKay.
    There was then an investigation by Whitney Norris Seymour 
of Michael Deaver who was chief of staff to President Reagan 
and a very close friend of the President's. In that case, there 
was an indictment. All of those counsel conducted it without 
any serious challenge to the----
    Chairman Thompson. The problem with that is kind of like 
some of the economic analysis that we get that behavior has not 
changed regardless of what we do. The question is whether or 
not these subjects would have changed their behavior had they 
known that there was a time limitation----
    Judge von Kann. Possibly.
    Chairman Thompson [continuing]. On their activity.
    I just think in terms of the President, for example, all he 
has to do is exert a couple of legitimate executive privilege 
claims and run those all the way up to Supreme Court and back.
    Judge von Kann. There is no perfect solution to many of 
these issues, and does a time limit have some problems? Yes.
    Is it worth thinking about when we have investigations that 
have been running 7 and 9 years? Yes.
    Chairman Thompson. Sure. Senator Specter, do you have 
anything further?
    Senator Specter. I want to touch on one more subject, 
really the core issue about judicial review where you have an 
abuse of discretion.
    We have been looking at campaign finance reform and the 
contributions in the Chinese matters and the super abundance of 
investigation. We talked about FBI Director Freeh's dissent and 
Mr. Labella's dissent. We prepared a complaint in Mandamus 
which documents the matter.
    There is a real issue as to whether there is standing, even 
if you had the Judiciary Committee in full behind it, but we 
could give standing. There is standing for a majority of the 
majority or a majority of the minority of either Judiciary 
committee in either house to get a response from the Attorney 
General.
    What would you think about having judicial review an 
umpire? Mr. von Kann, let's start with you on that one.
    Judge von Kann. I would have some real concern about that 
because I think that it is a pretty fundamental principle that 
a prosecutor must have discretion to decline prosecutions, and 
I think as Judge Bell talked about earlier, the general 
consensus is that courts do not have authority to order a 
prosecutor to institute a prosecution.
    It seems to me, there are two responses to the issue you 
raise. One is public outcry. If there is a serious dispute 
about the Attorney General's decision to decline prosecution in 
a particular case, I think that will eventually find its way 
into the political process. That may be a better way of 
handling it.
    Another possibility which I think could be at least 
considered, rather than having the issue of Mandamus 
mandamusing the Attorney General, there might be a possibility, 
I suppose, of allowing the decision about whether or not to 
institute a prosecution in some cases to be made by the court, 
by the Special Division, based upon certain statutory 
standards.
    Courts do in some instances decide whether or not to 
appoint a receiver to run a branch of government, which is 
something we see from time to time. People petition and say 
that the Department of Housing is a disaster and a receiver 
needs to be appointed to take over and run it for a time. There 
are instances in which courts will receive petitions to do 
extraordinary things.
    It might be possible to build into the statute a provision 
of that sort. The notion of second-guessing the exercise of 
prosecutorial discretion by the Attorney General, I have quite 
a bit of trouble with.
    Senator Specter. Well, there are a number of States which 
have statutory provisions where on application of the court, 
the public prosecutor may be replaced for the purpose of that 
prosecution on the ground of abuse of discretion, which is a 
little different from a Mandamus action, but pretty close.
    When you talk about the political process, it is 
complicated now because you cannot really focus on campaign 
finance reform in the context of an impeachment proceeding, but 
we were working on it all during 1997, this Committee, and 
found an avalanche of evidence, and then not only on campaign 
finance reform, but the Chinese contributions. And there was a 
tremendous amount of political pressure brought to bear. How 
much more can you get than the special counsel whom the 
Attorney General brings in from San Diego, or how much more 
political pressure can you get than the director of the FBI? It 
just did not work.
    At some point, there has got to be a safety valve, and 
traditionally, we go to the courts as a safety valve. What do 
you think, Mr. Christy?
    Mr. Christy. I do not know that you have any other 
alternative but to go to the courts, if you find yourself in 
that situation.
    Senator Specter. Well, we have found ourselves there. We 
have found ourselves with oversight hearings and have 
propounded the questions and have been on the issue of issue 
ads versus advocacy ads, and we have been on the issue of 
delegating the authority under a memorandum of understanding to 
the Federal Election Commission. We asked the Attorney General. 
This is a penal provision, the Department of Justice--the 
Attorney General is the only one who has law enforcement 
responsibilities, not the Federal Election Commission, and she 
said we are deferring to them.
    Mr. diGenova, what do you think?
    Mr. diGenova. Senator, if I were the Attorney General, I 
would resist your writ of prohibition with every ounce of power 
and strength I had in my body. I believe it would be an 
unconstitutional usurpation of executive functions.
    The power to decide whether or not to prosecute is one of 
the single most core functions of the Executive Branch. To 
suggest that a court could order, an Article III court could 
order an executive official to bring a case because the court 
disagreed with the discretionary judgment not to bring the case 
would, I think, be a profoundly unconstitutional act.
    Senator Specter. But, Mr. diGenova, how can it be a core 
executive function to decide whether or not to prosecute the 
executive?
    Mr. diGenova. How can it not be?
    Senator Specter. Well, the executive cannot be given the 
authority to decide whether he/she should be prosecuted.
    Mr. diGenova. But the executive is given that authority 
under the Constitution. That is not a judicial function, and it 
is not a legislative function. The legislature does not have a 
right to conduct grand juries. The judiciary supervises grand 
juries, but does not conduct them.
    My suggestion, Mr. Chairman, is I think you may be in a 
catch-22. It may very well be that notwithstanding the conduct 
of Executive Branch officials at this point in our history, 
with which you and other Members of the Committee and Congress 
are perhaps justifiably frustrated, there may be absolutely 
nothing you can do.
    Chairman Thompson. I have another suggestion, that we 
exercise the power that the Constitution gives us----
    Mr. diGenova. You could impeach.
    Chairman Thompson [continuing]. And the power of the purse 
and the power of appointment which would create a political 
firestorm that we would need to be prepared and have the 
courage enough to stand up and fight, but I am sympathetic with 
Senator Specter's dilemma because it is my dilemma, too, and we 
have talked about it a whole lot.
    As I give it thought, getting back to the basics of perhaps 
what we need to do, there is no easy way out for us. We, as 
Congress, need to step up to the plate and exercise the clear 
constitutional authority and power that we have and be willing 
to take that fight to the public.
    Senator Specter. Well, Mr. Chairman, do we shut down the 
Justice Department by limiting their appropriations?
    Chairman Thompson. Well, how we do it and to what extent 
and where? Those are all questions that we would need to 
debate.
    Senator Specter. We do not have to deny confirmation to the 
nominee for the Criminal Division.
    Chairman Thompson. Because there has not been one, but 
there are other appointments.
    Senator Specter. Nobody has been submitted. We do not have 
to turn down that nomination.
    Chairman Thompson. There are other appointments. I mean, we 
could do it, not to mention judgeships.
    Senator Specter. We are not doing too bad a job on that as 
it is. [Laughter.]
    Mr. diGenova. Mr. Chairman, you actually made the point 
which is that Congress has obviously several levers at its 
disposal which is, of course, the advice and consent process, 
the appropriations process, the reauthorization process, all of 
which provide opportunities for Congress to exercise 
legitimate----
    Chairman Thompson. Yes. I said power of appointment. That 
is, of course, what I was referring to.
    Mr. diGenova. Absolutely, yes, and I agree with you. I 
think that would be, in the political and constitutional arena, 
the proper place for Congress to play its role.
    Senator Specter. I believe we have some authority beyond. I 
categorically disagree with your assertion, Mr. diGenova, and I 
do not do this often with you, that it is not a core executive 
function to decide not to prosecute the executive, but that is 
a fairly narrow area of disagreement.
    Thank you, Mr. Chairman.
    Chairman Thompson. On that happy note, gentlemen, thank you 
very much. I sincerely appreciate the contribution that you 
have made to this area of the law, as well as your contribution 
today. Thank you very much.
    Mr. diGenova. Thank you, Mr. Chairman.
    Chairman Thompson. We are adjourned.
    [Whereupon, at 2:15 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


   CRS REPORT FOR CONGRESS BY JACK H. MASKELL, LEGISLATIVE ATTORNEY, 
                         AMERICAN LAW DIVISION
                June 30, 1988 (Revised February 5, 1992)
    The Congressional Research Service works exclusively for the 
Congress, conducting research, analyzing legislation, and providing 
information at the request of committees, Members, and their staffs.
    The Service makes such research available, without partisan bias, 
in many forms including studies, reports, compilations, digests, and 
background briefings. Upon request, CRS assists committees in analyzing 
legislative proposals and issues, and in assessing the possible effects 
of these proposals and their alternatives. The Service's senior 
specialists and subject analysts are also available for personal 
consultations in their respective fields of expertise.
                               __________
  MORRISON V. OLSON: CONSTITUTIONALITY OF THE INDEPENDENT COUNSEL LAW
                                Summary
    The Supreme Court decided in a 7-1 opinion authored by Chief 
Justice William Rehnquist, that the independent counsel (formerly 
``special prosecutor'') provisions of the Ethics in Government Act are 
constitutional. In Morrison, Independent Counsel v. Olson, 487 U.S. 654 
(1988), the Supreme Court ruled that the provisions of law establishing 
the mechanisms for a court appointment of an independent counsel to 
investigate and prosecute alleged wrongdoing by high-level 
Administration officials were consistent with the ``Appointments 
Clause'' of the Constitution, did not impermissibly vest an Article III 
court with non-judicial duties, and did not violate the ``separation of 
powers'' doctrine by unduly interfering with the President's 
constitutional duties and authority in the field of federal law 
enforcement.

                               __________
    The Supreme Court, in a 7-1 decision, upheld the independent 
counsel (formerly ``special prosecutor'') provisions of the Ethics in 
Government Act of 1978\1\ against constitutional challenges. The 
opinion of the Court, authored by Chief Justice Rehnquist, reversed a 
split 2-1 United States Court of Appeals panel decision which had 
earlier found the law unconstitutional.\2\
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    \1\ P.L. 96-521, Title VI, as amended by P.L. 97-409 and P.L. 100-
191; see 28 U.S.C. Sec. 591 et seq.
    \2\ In re Sealed Case, 838 F.2d 476 (D.C. Cir. 1988). The United 
States District Court for the District of Columbia had uphold the law 
against constitutional challenges. In re Sealed Case, 665 F.Supp. 56 
(D.D.C. 1987); see also Deaver v. Seymour, 656 F.Supp. 900 (D.D.C. 
1987); North v. Walsh, 656 F.Supp. 414 (D.D.C. 1987); In re Olson, 818 
F.2d 34 (D.C. Cir. Division for the Purpose of Appointing Independent 
Counsels 1987).
---------------------------------------------------------------------------
    In Morrison, Independent Counsel v. Olson, 487 U.S. 654 (1988), the 
Supreme Court found that the provisions of the Ethics in Government Act 
which establish the mechanism for appointing an independent counsel by 
a special court to investigate allegations of criminal wrongdoing by 
certain high-level Administration officials did not violate 
``separation of powers'' principles and did not unduly interfere with 
the President's constitutional duties in the field of law enforcement. 
The independent counsel provisions of the Ethics in Government Act were 
adopted to ensure the impartial pursuit of justice and to avoid real 
and apparent conflicts of interest which may arise in an investigation 
and a criminal prosecution by an Administration of itself and its own 
high ranking officers in the executive branch of government.\3\
---------------------------------------------------------------------------
    \3\ For general background note CRS Report No. 87-192A 
``Legislative History and Purposes of Enactment of the Independent 
Counsel (Special Prosecutor) Provisions of the Ethics in Government Act 
of 1978'', May 4, 1987.
---------------------------------------------------------------------------
    The independent counsel law is, ``triggered'' when the Attorney 
General receives specific information from a credible source sufficient 
to constitute grounds to investigate alleged violations of federal 
criminal law by certain officials. 28 U.S.C. Sec. Sec. 591, 592.\4\ 
After a ``preliminary investigation'' by the Attorney General of the 
allegations, the Attorney General may request and petition for the 
appointment of an independent counsel by a ``Special Division'' of the 
United States Court of Appeals. 28 U.S.C. Sec. 592. The Special 
Division selects the independent counsel and establishes his or her 
``prosecutorial jurisdiction''. 28 U.S.C. Sec. 593. The independent 
counsel then pursues the relevant legal matters independent from day-
to-day control of the Attorney General or the President (28 U.S.C. 
Sec. 594), and is removable from office by the Attorney General only 
for ``good cause''. 28 U.S.C. Sec. 596.
---------------------------------------------------------------------------
    \4\ Certain federal officials come ``automatically'' within the 
coverage of the independent counsel provisions. These are officials for 
whom an inherent conflict of interest was deemed to be present or most 
potentially present if an investigation of them by the Attorney 
General, controlled by the President, were to be initiated, such as the 
President himself, the Vice President, the Attorney General, the 
President's cabinet, etc. See 28 U.S.C. Sec. 591(b). The Attorney 
General may, however, request an independent counsel for any person if 
the Attorney General believes that an investigation by him or the 
Justice Department would constitute a ``personal, financial, or 
political conflict of interest''. 28 U.S.C. Sec. 591(c).
---------------------------------------------------------------------------
    The Supreme Court found that this statutory scheme of the Ethics in 
Government Act was consistent with the ``Appointments Clause'' of the 
Constitution, did not impermissibly vest an Article III court with non-
judicial duties, and did not violate the ``separation of powers'' 
doctrine by impermissibly interfering with the President's 
constitutional duties.
    This case arose in the context of an investigation being conducted 
by Independent Counsel Alexia Morrison into allegations of false 
testimony by a former Department of Justice official with respect to a 
congressional probe of the Environmental Protection Agency's 
``Superfund'' program. The legal issues ``ripened'' when the former 
Justice Department official, former Assistant Attorney General Theodore 
Olson, and two former colleagues from the Department, refused to honor 
a subpoena obtained by the independent counsel and were held in 
contempt of court.
APPOINTMENT OF INDEPENDENT COUNSEL
    The Supreme Court held that the appointment of the independent 
counsel by the Special Division of the United States Court of Appeals 
was consistent with the ``Appointments Clause'' of the Constitution. 
The Appointments Clause provides, at Article II, Section II, clause 2, 
that the President, by and with the advice and consent of the Senate, 
shall appoint all officers of the United States, except that Congress 
may by law vest the appointment of ``such inferior Officers, as they 
think proper,'' in the President alone, ``in the Courts of Law,'' or in 
the heads of departments.
    The independent counsel, found the Court, is clearly an ``inferior 
officer'' whose appointment may be vested by statute in ``the Courts of 
Law''. Although declining to set out a specific line of demarcation for 
an ``inferior'' officer versus a principal officer of the United 
States, the Court noted that the characteristics of the office of 
independent counsel establish that the independent counsel, even though 
she exercises significant discretion and independent authority, 
``clearly falls on the `inferior officer' side of that line.'' 487 U.S. 
at 671. The factors the Court noted in making that characterization 
were: (1) the independent counsel ``is subject to removal by a higher 
Executive Branch official''; (2) the independent counsel is empowered 
by law to perform ``only certain limited duties''; (3) the office is 
``limited in jurisdiction''; and (4) the office ``is limited in 
tenure.'' Id. at 671-672.
    The Supreme Court, unlike the Court of Appeals earlier, found no 
inherent constitutional difficulty with an ``interbranch'' appointment 
of an inferior officer, that is, an appointment by the judicial branch 
of an executive officer. The ``excepting clause'' within the 
Constitution's Appointments Clause gives to Congress ``significant 
discretion to determine'' whether it is ``proper'' to make such 
interbranch appointments, and the language of the excepting clause 
itself ``admits of no limitation on interbranch appointments.'' 487 
U.S. at 673.
    The power of Congress to provide by law for interbranch 
appointments of inferior officers would not be unlimited, however, and 
past case law has found that such authority would be improper when the 
appointment created an ``incongruity'' within the functions of the 
appointing body. Ex parte Siebold, 100 U.S. 1371, 398 (1880). The 
Supreme Court found no such ``incongruity'' in the case of the court 
appointing the independent counsel, as courts of law have experience, 
``special knowledge and expertise'' in the area of criminal prosecution 
(487 U.S. 676, n.13), and in the past have had the recognized authority 
to appoint ``special prosecutors'' for criminal contempts of court 
(Young v. United States ex re. Vuitton et Fils S.A, 481 U.S. 787 
(1987)), and to make interim appointments of United States Attorneys 
for prosecuting crimes (United States V. Solomon, 216 F.Supp. 835 
(S.D.N.Y. 1963)). Since the judges involved in the Special Division's 
appointing of an independent counsel may not participate in any matter 
involving an independent counsel they have appointed (28 U.S.C. 
Sec. 49f), no imposition on the court of ``Incongruous'' duties was 
found. The Supreme Court stated, in fact, that since the executive 
branch is to be disqualified by law because of conflict of interest 
principles from exercising authority to appoint a person to investigate 
and prosecute certain of its own high ranking officers, ``the most 
logical place to put it was in the Judicial Branch.'' 487 U.S. at 677.
NON-JUDICIAL DUTIES IN AN ARTICLE III COURT
    It has long been established that the judicial power of the courts 
of law is limited to ``cases'' and ``controversies'' (Muskrat v. United 
States, 219 U.S. 346, 356 (1911)), and that executive duties of a 
``nonjudicial nature may not be imposed on judges holding office under 
Art. III of the Constitution'' (Buckley v. Valeo, 424 U.S. 1, 123 
(1976), citing United States v. Ferreira, 13 How, 40 (1862); Hayburn's 
Case, 2 Dall. 409 (1792)), so as to prevent the judicial branch ``from 
encroaching into areas reserved for the other branches.'' 487 U.S. at 
678. In the case of the independent counsel provisions, the Supreme 
Court found that there can be ``no Article III objection'' to the power 
of the Special Division of the court to appoint an independent counsel, 
since that authority is expressly derived from the Appointments Clause 
in Article II of the Constitution, ``a source of authority that is 
independent from Article III.'' Id. at 678-679. A logical ``incident'' 
of that appointment authority in Article II is the power of the court 
to define for that appointee the ``nature and scope of the official's 
authority,'' that is, the independent counsel's prosecutorial 
jurisdiction. Id. at 679. The Supreme Court noted, however, that the 
Special Division's discretion in defining the independent counsel's 
prosecutorial jurisdiction is not to be considered unlimited, but that 
it must be truly ``incidental'' to its power to appoint:

        [T]he jurisdiction that the court decides upon must be 
        demonstrably related to the factual circumstances that gave 
        rise to the Attorney General's investigation and request for 
        the appointment of the independent counsel in the particular 
        case. 487 U.S. at 679.

    Most of the other functions and duties imposed on the court by the 
Ethics in Government Act were described by the Supreme Court as 
``essentially ministerial'' and of no constitutional consequence, since 
they did not allow in practice for the Special Division to 
``supervise'' or control the independent counsel's investigation or 
prosecution, and so do ``not encroach upon executive or legislative 
authority.'' 487 U.S. at 680-681. The Court, however, did urge the 
Special Division not to attempt to go beyond its specific, narrow 
statutory authority so as to avoid the potential for ``serious 
constitutional ramifications'' and ``transgressions of constitutional 
limitations of Article III.'' Id. at 684-685.
    The one remaining authority of the Special Division that troubled 
the Supreme Court was the power of the court to terminate the office of 
the independent counsel. 28 U.S.C. Sec. 596(b)(2). Seeking to interpret 
the statute ``in order to save it from constitutional infirmities,'' 
the Supreme Court read a circumscribed power of termination into the 
Special Division's statutory authority to ``occur only when the duties 
of the counsel are truly `completed' or `so substantially completed' 
that there remains no need for any continuing action by the independent 
counsel.'' 487 at 682-683. The Court explained the nature of such 
power:

        It is basically a device for removing from the public payroll 
        an independent counsel who has served her purpose, but is 
        unwilling to acknowledge the fact. So construed, the Special 
        Division's power to terminate does not pose a sufficient threat 
        of judicial intrusion into matters that are more properly 
        within the Executive's authority to require that the Act be 
        invalidated as inconsistent with Article III. 487 U.S. at 683.

    The Court concluded that the exercise of powers by the Special 
Division also does not pose any threat to the ``impartial and 
independent federal adjudication of claims.'' 487 U.S. at 683, quoting 
Commodity Futures Trading Commission v. Schor, 478 U.S. 833, at 850 
(1986). The Special Division, and its judges, in the opinion of the 
Supreme Court, are ``sufficiently isolated'' by the statutory 
provisions from review of the actions of the independent counsels ``so 
as to avoid any taint of the independence of the judiciary.'' 487 U.S. 
at 684.
SEPARATION OF POWERS
1. ``Good Cause'' Removal
    It had been argued that since the independent counsel is removable 
by the Executive, through the Attorney General, only for ``good 
cause'', that such statutory limitation imposed by Congress on the 
President's ``at will'' removal authority of an officer who is 
exercising purely executive functions unduly interferes with the 
President's constitutional duties and prerogatives, and so violates 
separation of powers principles. The Supreme Court, however, rejected 
that argument, and distinguished earlier ``separation of powers'' cases 
in Bowsher v. Synar, 478 U.S. 714 (1986), and Myers v. United States, 
272 U.S. 52 (1926), as dealing with attempts ``by Congress itself to 
gain a role in the removal of executive officials''. 487 U.S. at 686. 
No attempted aggrandizement of congressional power over removal of 
executive branch officials was seen to be at issue in the independent 
counsel law.
    In upholding the standard of ``good cause'' removal of the 
independent counsel in this case the Supreme Court re-affirmed and 
expanded on the line of cases in Humphrey's Executor v. United States, 
295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958), 
where the Supreme Court had found that the Constitution does not give 
the President ``illimitable power of removal'' over independent agency 
officials (Humphrey's Executor, supra at 630), and that ``no such 
power'' of unlimited at-will removal authority ``is given to the 
President directly by the Constitution.'' Wiener, supra at 356. The 
Supreme Court in Morrison found that officers allowed to be provided 
certain statutory protections and independence from at-will removal by 
the President need not necessarily be performing quasi-legislative and 
quasi-judicial functions such as officials of independent regulatory 
agencies (as in Humphrey's Executor), and that such ``good cause'' 
removal standard may apply to officers who are in fact performing 
``core'' or purely executive functions. 487 U.S. at 689-690.
    The test that the Supreme Court used is not simply whether the 
functions of the officer involved are ``purely'' executive, but rather 
whether or not the limiting of the removal authority of the President 
``impede[s] the President's ability to perform his constitutional 
duties''. 487 U.S. at 691. The restriction on the President's 
unfettered removal prerogatives in the independent counsel law do not 
unduly interfere with the President's constitutional authority to 
``take Care that the Laws be faithfully executed'' (Article II Section 
3), found the Court, since the ``good cause'' standard for removing the 
independent counsel is in itself sufficient to allow the President to 
ensure that the laws are being faithfully executed:

        This is not a case in which the power to remove an executive 
        official has been completely stripped from the President, thus 
        providing no means for the President to ensure the ``faithful 
        execution'' of the laws. Rather, because the independent 
        counsel may be terminated for ``good cause,'' the Executive, 
        through the Attorney General, retains ample authority to assure 
        that the counsel is competently performing her statutory 
        responsibilities in a manner that comports with the provisions 
        of the Act. 487 U.S. at 692.
2. Interference With Executive Functions
    The Supreme Court ruled that the independent counsel provisions of 
the Act, taken as a whole, did not violate the separation of powers 
principles as unduly interfering with the role of the executive branch. 
The Court reemphasized the ``importance in our constitutional scheme of 
the separation of governmental powers into the three coordinate 
branches'' in establishing what the Framers regarded as the ``self-
executing safeguards'' of ``separated powers and checks and balances'' 
that would protect against the ``encroachment or aggrandizement of one 
branch at the expense of the other''. 487 U.S. at 693, citing Bowsher 
v. Synar, supra at 725; Buckley v. Valeo, supra at 122. The Court 
noted, however, that ``we have never held that the Constitution 
requires that the three branches of Government `operate with absolute 
independence'.'' 487 U.S. at 693-694; United States v. Nixon, 418 U.S. 
683, 707 (1974); Nixon v. Administrator of General Services, 433 U.S. 
425, 442 (1977).
    The Court found that in the case of the independent counsel law, 
there was ``not an attempt by Congress to increase its own powers at 
the expense of the Executive Branch.'' 487 U.S. at 694. Similarly, 
there was no usurpation of executive power and functions by the 
judicial branch. It was emphasized by the Supreme Court that under the 
statutory scheme:

        [T]he Special Division has no power to appoint an independent 
        counsel sua sponte; it may only do so upon the specific request 
        of the Attorney General, and the courts are specifically 
        prevented from reviewing the Attorney General's decision not to 
        seek appointment, Sec. 592(f). In addition, once the court has 
        appointed a counsel and defined her jurisdiction, it has no 
        power to supervise or control the activities of the counsel. 
        487 U.S. at 695.

    The Court ruled in conclusion that the Act does not impermissibly 
undermine the powers of the Executive Branch (Schor, supra at 856), nor 
``disrupt[ ] the proper balance between the coordinate branches [by] 
prevent[ing] the Executive Branch from accomplishing its 
constitutionally assigned functions. Nixon v. Administrator of General 
Services, supra at 443.'' 487 U.S. at 695. The Court recognized that 
some diminishing of executive control over the independent counsel and 
her investigation and prosecution was inherent in the law because of 
the required independent nature of the office to comport with the 
purposes of the law to avoid conflicts of interest in law enforcement. 
However, the Court found that such independence did not unduly 
interfere with the President's ability to ``perform his 
constitutionally assigned duties'', as the President and the Attorney 
General retained sufficient ``control'' and ``supervision'' over the 
independent counsel process by: (1) allowing the Attorney General to 
remove the independent counsel for ``good cause''; (2) providing that 
no independent counsel may be appointed except upon the specific 
request of the Attorney General; (3) providing no judicial review of 
the decisions of the Attorney General with respect to requesting or not 
requesting an independent counsel or conducting or not conducting a 
``preliminary investigation'' before requesting an independent counsel; 
(4) providing that the jurisdiction of the independent counsel is 
defined ``with reference to the facts submitted by the Attorney 
General''; and (5) requiring the independent counsel, unless not 
possible to do so, to abide by Justice Department policy. 487 U.S. at 
695-696.
    Justice Scalia dissented from the opinion of the Court, and would 
have found that the statute impermissibly changes the separation and 
``equilibrium of power'' that the Constitution established among the 
three branches of government by depriving the President of ``exclusive 
control'' over the exercise of a purely executive function. In dissent, 
Justice Scalia would have ruled, in addition to the general separation 
of powers issues, that the independent counsel is a ``principal'' 
officer who could not be appointed by a court, and that the restriction 
of a ``good cause'' removal does not provide the President with enough 
control over the exercise of the executive's prosecutorial powers. 
Particularly troubling to Justice Scalia was the implication of the law 
to individual targets of an independent counsel investigation, Such 
persons, it was argued, would not have the advantage that other 
citizens have of the over-all perspective that a Justice Department 
prosecutor brings to his duties, because of the competing public 
interests, policy factors and priorities which such a prosecutor must 
consider in an investigation, or a prosecution. Rather, an individual 
target under the Ethics in Government Act is subject to the arguable 
``distortion'' of having a prosecutor and an entire staff whose only 
function in the government is to investigate and prosecute that one 
target.

                                               Jack Maskell
                                       Legislative Attorney
                                      American Law Division
                               __________

   CRS REPORT FOR CONGRESS BY JACK H. MASKELL, LEGISLATIVE ATTORNEY, 
                         AMERICAN LAW DIVISION
                             March 20, 1998
                                Abstract
    This report provides a brief overview and ``walk through'' of the 
statutory mechanisms of the independent counsel law, including the role 
in the independent counsel process of the Attorney General of the 
United States, and the special three-judge panel of the United States 
Court of Appeals. The current independent counsel law has a five year 
``sunset,'' and will expire in June of 1999.
                               __________
INDEPENDENT COUNSEL PROVISIONS: AN OVERVIEW OF THE OPERATION OF THE LAW
Summary
    The statutory mechanisms of the independent counsel law are 
triggered by the receipt of information by the Attorney General of the 
United States which alleges a violation of any federal criminal law 
(other than certain misdemeanors or ``infractions'') by a person 
covered by the Act. Certain high-level federal officials, for whom an 
inherent conflict of interest may exist in normal Justice Department 
criminal law enforcement, are ``automatically'' covered by the law. 
Additionally, the Attorney General has discretion to seek an 
independent counsel for any person for whom there may exist a personal, 
political or financial conflict of interest for Justice Department 
personnel to investigate; and the Attorney General may seek an 
independent counsel for any Member of Congress (rather than have the 
Department of Justice conduct the proceedings) when the Attorney 
General deems it to be in the ``public interest.''
    After conducting a limited review of the allegations (a 30-day 
threshold examination of the credibility and specificity of the 
charges, and a subsequent 90-day preliminary investigation, with a 
possible 60-day extension), the Attorney General, if he or she believes 
that ``further investigation is warranted,'' applies to a special 
``division of the court,'' a federal three-judge panel appointed by the 
Chief Justice of the Supreme Court, requesting that the division of the 
court appoint an independent counsel. The Attorney General of the 
United States is the only officer in the government who may apply for 
the appointment of an independent counsel. The special division of the 
court actually selects and appoints the independent counsel, and 
designates his or her prosecutorial jurisdiction, based on the 
information provided the court by the Attorney General. The independent 
counsel has the full range of investigatory and prosecutorial powers 
and functions of the Attorney General or other Department of Justice 
employees. Although Congress may call on the Attorney General to apply 
for an independent counsel by a written request from the House or 
Senate Judiciary Committee, or a majority of members of either party of 
those committees, the Attorney General is not required to begin a 
preliminary investigation or to apply for an independent counsel in 
response to such a request, but must provide certain information to the 
requesting committee.
    There is no specific term of appointment for independent counsels, 
and they serve for as long as it takes to complete their duties 
concerning that specific matter within their defined and limited 
jurisdiction. Once a matter is completed, the independent counsel is to 
file a final report. The special division of the court may find that 
the independent counsel's work is completed, and may terminate the 
office. A periodic review of an independent counsel for such 
determination is to be made by the special division of the court. An 
independent counsel, prior to the completion of his or her duties, may 
be removed from office (other than by impeachment and conviction) only 
by the Attorney General of the United States for cause, mental or 
physical impairment, or other impairing condition, and such removal may 
be appealed to the court.
                               __________
    The statutory provisions for the appointment of an independent 
counsel (formerly called ``special prosecutor'') were originally 
enacted as Title VI of the Ethics in Government Act of 1978,\1\ and are 
codified at 28 U.S.C. Sec. Sec. 591-599. The statute ``lapsed'' due to 
its five-year sunset provision and the absence of congressional 
reauthorization by the end of 1992, but was again reauthorized in 1994. 
The current provisions of the law will expire, if not reauthorized, on 
June 30, 1999. The mechanisms of the Ethics in Government Act 
concerning the appointment and the activities of an independent counsel 
were upheld against constitutional challenges by the Supreme Court in 
Morrison v. Olson.\2\
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    \1\ P.L. 95-521, as amended and reauthorized by P.L. 97-409, P.L. 
100-191, and P.L. 103-270.
    \2\ 487 U.S. 654 (1988). For a general discussion of that decision, 
see CRS Report 92-134, ``Morrison v. Olson: Constitutionality of the 
Independent Counsel Law,'' June 30, 1988, revised February 5, 1992.
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Background, Operation and Coverage of the Act
    The Attorney General of the United States is the only officer 
designated by statute who may apply for the appointment of an 
independent counsel.\3\ The statutory mechanisms are triggered by the 
receipt of information by the Attorney General alleging violations of 
any federal criminal law (other than Class B or C misdemeanors or `` 
infractions'') by one of the persons covered by the Act.\4\ If, after 
conducting a limited review of the matter, the Attorney General 
determines that there are ``reasonable grounds to believe that further 
investigation is warranted,'' the Attorney General applies to a special 
federal three-judge panel requesting that the panel appoint an 
independent counsel.
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    \3\ 28 U.S.C. Sec. Sec. 591, 592. The Supreme Court noted that 
separation of powers concerns raised by the appointment by a court of a 
prosecutor to perform executive law enforcement functions are mitigated 
by the fact that an independent counsel may be appointed ``only . . . 
upon the specific request of the Attorney General.'' Morrison v. Olson, 
487 U.S. supra at 695.
    \4\ 28 U.S.C. Sec. 591 (a).
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    The original intent of the Act was to provide a mechanism to avoid 
the inherent or structural conflicts of interest, or the appearances of 
conflicts or of ``conflicting loyalties,'' which could arise where the 
Attorney General or the President must supervise or conduct criminal 
prosecutions of themselves, or of high level officials or colleagues in 
the President's Administration.\5\ Since under our Constitution, and 
under our scheme of government with its separation of powers, the 
executive branch enforces the federal law, the persons automatically 
covered by the Act were those classes of persons which experience, such 
as the Teapot Dome and Watergate scandals, indicated could create the 
greatest potential for inherent conflicts of interest, or of 
conflicting loyalties, when the executive branch, through its normal 
enforcement mechanisms, had to conduct a criminal law enforcement 
activity directed at itself or its high ranking officials.
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    \5\ For a general discussion, see CRS Report 87-192, ``Legislative 
History and Purposes of Enactment of the Independent Counsel (Special 
Prosecutor) Provisions of the Ethics in Government Act of 1978,'' March 
4, 1987.
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    Persons automatically covered by the Act include (1) the President 
and Vice President; (2) persons serving in positions listed in 5 U.S.C. 
Sec. 5312 (cabinet level positions); (3) an individual working in the 
Executive Office of the President compensated at a rate equivalent to 
level 11 of the Executive Schedule under 5 U.S.C. Sec. 5313; (4) any 
Assistant Attorney General, or Justice Department employee compensated 
at or above a level III of the Executive Schedule under 5 U.S.C. 
Sec. 5314; (5) the Director and Deputy Director of the C.I.A., and the 
Commissioner of the I.R.S.; (6) persons holding those positions 
specified in (1)-(5) for one year after leaving their positions; and 
(7) the chairman and the treasurer of the national campaign committee 
seeking the election or reelection of the President, and any officer of 
that committee exercising authority at the national level, during the 
incumbency of the President.\6\
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    \6\ 28 U.S.C. Sec. 591(b).
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    In addition to investigating information concerning possible 
violations of federal criminal law by persons specifically designated 
or ``automatically'' covered in the Act, for whom there may exist an 
inherent conflict of interest in federal law enforcement, the Attorney 
General also has discretionary authority to request the appointment of 
an independent counsel for other persons, including specifically 
Members of Congress. The Attorney General may conduct a preliminary 
investigation and apply for an independent counsel concerning alleged 
violations of law by any person not specified in the automatic 
coverage, if the Attorney General determines that an investigation by 
him or her, or by other Department of Justice officials, may result in 
a ``personal, financial, or political conflict of interest.'' \7\ This 
discretionary ``catchall'' provision was added to the law in 1983 to 
allow the Attorney General the discretion to apply for an independent 
counsel even in those circumstances where the official was not 
``automatically'' covered, but where the Attorney General felt that the 
best interests of justice would call for the appointment of someone 
independent from the control and authority of the President or from the 
Attorney General.\8\
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    \7\ 28 U.S.C. Sec. 591(c)(1),
    \8\ Note S. Rept. 97-469, 97th Cong., 1st Sess., at 9 (1981).
---------------------------------------------------------------------------
    The Attorney General is now also expressly authorized to request an 
independent counsel for a Member of Congress, even if no explicit 
``conflict of interest'' is found or determined under the ``catchall'' 
provision of Sec. 591(c)(1).\9\ Under a provision enacted in the 1994 
reauthorization law, the Attorney General's discretion is 
broadened,\10\ and the independent counsel process may be invoked for a 
Member of Congress, and a preliminary investigation conducted, upon the 
finding by the Attorney General that it ``would be in the public 
interest'' to do so.\11\
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    \9\ Members of Congress have not been ``automatically'' covered by 
the provisions of the Act since the legislative branch, under the 
separation of powers principles in the Constitution, does not and may 
not appoint prosecutors, fire prosecutors (other than by impeachment 
and conviction), or supervise or control criminal investigations by the 
Department of Justice or by the United States Attorneys, as do the 
President and the Attorney General. No ``inherent'' or structural 
conflict, therefore, was seen or has been experienced in having the 
Department of Justice and the United States Attorneys generally 
continue to investigate and prosecute Members of Congress.
    \10\ H. Rept. 103-511, 103rd Cong., 2d Sess., at 10 (1994). ``It 
broadens the standards for invoking the process with respect to Members 
from requiring a conflict of interest to requiring the Attorney General 
to find it would be in the public interest.''
    \11\ 28 U.S.C. Sec. 591(c)(2). H. Rept. 103-511, supra at 10: 
``This broader standard would allow the Attorney General to use the 
independent counsel process for Members of Congress in cases of 
perceived as well as actual cases of conflicts of interest.''
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Threshold Inquiry/Examination
    Once information alleging a violation by a covered federal official 
is received by the Attorney General, the Attorney General has 30 days 
from the time the information is first received to determine if a 
``preliminary investigation'' should be conducted.\12\ During this 
``threshold inquiry'' period, the Attorney General will examine the 
sufficiency of the allegations presented to determine if there exist 
grounds to investigate. The law specifies that in determining the 
``sufficiency'' of the information as to whether grounds to investigate 
exist, the Attorney General may consider only the factors of ``the 
degree of specificity of the information'' and the ``credibility of the 
source of the information.'' \13\ The Attorney General is specifically 
prohibited during this time, when examining the specificity of charges 
and the credibility of the source, from dismissing a complaint because 
he or she determines that the official involved, ``lacked the state of 
mind required for the violation of criminal law.''\14\
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    \12\ 28 U.S.C. Sec. 591(d)(2).
    \13\ 28 U.S.C. Sec. 591(d)(1). See S. Rept. 97-496, 97th Cong., 2d 
Sess., at 11, 12 (1982); S. Rept. 100-123, 100th Cong., 1st Sess., at 
15 (1987); see also Nathan v. Smith, 737 F.2d 1069 (D.C. Cir. 1984) as 
to the specifically of the allegations required.
    \14\ 28 U.S.C. Sec. 592(a)(2)(B)(i). See S. Rept. 100-123, supra at 
10-11, 18.
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Preliminary Investigation
    If the Attorney General determines during the 30-day period that 
the allegations received are specific and credible enough, or if no 
determination is made within the 30-day time limit, then the Attorney 
General is to conduct a ``preliminary investigation.'' The preliminary 
investigation must be completed within 90 days, unless a one-time 
extension of 60 more days is granted by the division of the court upon 
the request of the Attorney General.\15\
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    \15\ 28 U.S.C. Sec. 592(a)(1),(3).
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    The law provides that ``the Attorney General shall conduct . . . 
[a] preliminary investigation . . . [u]pon receiving information that 
the Attorney General determines is sufficient to constitute grounds to 
investigate'' that a person covered by the Act has engaged in conduct 
violative of federal criminal laws; \16\ and that ``the Attorney 
General shall, upon making that determination [that the information 
received is credible and specific enough], commence a preliminary 
investigation with respect to that information.'' \17\ Although the 
language of the statute speaks in mandatory terms (``shall conduct'' 
and ``shall commence''), two United States Courts of Appeals cases have 
found that the statutory scheme provides no private right of action for 
members of the public, and no standing to sue for members of the 
public, to require the Attorney General to conduct a preliminary 
investigation.\18\
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    \16\ 28 U.S.C. Sec. 591 (a) and (c).
    \17\ 28 U.S.C. Sec. 59 1 (d)(2).
    \18\ Banzhaf v. Smith, 737 F.2d 1167 (D.C. Cir. 1984); Dellums v. 
Smith, 797 F.2d 817 (9th Cir. 1986); see also Nathan v. Smith, 737 F.2d 
1069 (D.C. Cir. 1984), at 1077 (J. Bork, concurring).
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    The purpose of the preliminary investigation is to determine if 
there are ``reasonable grounds to believe that further investigation is 
warranted.'' \19\ The authority and power of the Attorney General 
during these preliminary and threshold stages are intentionally limited 
to prevent extensive participation in substantive decision making by 
the Attorney General, and so to avoid the potential conflicts of 
interest at which the law was directed in the first instance. The 
Attorney General, during the preliminary investigation, is not allowed 
to convene a grand jury, plea bargain, issue subpoenas, or grant 
immunity,\20\ and may not base a determination that ``no reasonable 
grounds exist to warrant further investigation'' on a finding that an 
official lacked the state of mind required for a crime, unless there is 
``clear and convincing evidence,'' \21\ an occurrence which Congress 
believed would be a ``rare case'' given the limited investigatory 
powers of the Attorney General.\22\
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    \19\ Note 28 U.S.C. Sec. Sec. 592(c)(1)(A), 592(a)(1).
    \20\ 28 U.S.C. Sec. 592(a)(2).
    \21\ 28 U.S.C. Sec. 592(a)(2)(B)(ii).
    \22\ See H. Rept. 100-452, 100th Cong., 1st Sess., at 24-25 (1987). 
See also H. Rept. 103-511, supra at 11: ``Congress believes that the 
Attorney General should rarely close a matter under the independent 
counsel law based upon finding a lack of criminal intent, due to the 
subjective judgments required and the limited role accorded the 
Attorney General in the independent counsel process.''
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    One of the factors for the Attorney General to consider in 
determining whether a matter warrants further investigation is the 
``written or other established policies of the Department of Justice'' 
concerning the conduct of criminal investigations.\23\ This 
consideration was originally added to the law in 1983, and the language 
clarified in 1987, to deal with the triggering of the independent 
counsel provisions in matters which may not have warranted action by 
the Justice Department under its own policies. Congress was expressly 
concerned with the triggering of the statute during the Carter 
administration for allegations about certain presidential aides and 
social cocaine use which, even if true, the Department of Justice, 
within its prosecutorial discretion, would not have normally 
prosecuted.\24\
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    \23\ 28 U.S.C. Sec. 592(c)(1).
    \24\ See S. Rept. 97-496, supra at 3, 15: ``In determining whether 
`reasonsonable grounds' exist, the bill directs the Attorney General to 
comply with the written or other established policies of the Department 
of Justice with respect to the enforcement of criminal laws. The 
Attorney General must justify his decision that a special prosecutor 
should not be appointed upon a showing to the court that the Department 
of Justice does not, as a matter of established practice, prosecute the 
alleged violation of federal criminal law. Alternatively, he may state 
to the court that it is the practice of U.S. Attorneys for the district 
in which the violation was alleged to have occurred not to prosecute 
this violation.'' In 1987 this provision was clarified to make sure 
that the Attorney General did not ``misuse'' the provision to dismiss a 
matter at this stage when the Attorney General found that the 
``evidence collected'' did not offer a ``reasonable prospect of 
conviction,'' rather than basing a dismissal on the standard of whether 
the matter warranted further investigation. See S. Rept. 100-123, supra 
at 11. ``Hearings held within the Committee indicate that the Attorney 
General has misused this provision to justify replacing the statutory 
standard for requesting an independent counsel . . . with a 
Departmental policy related to indictments--which asks whether there is 
a `reasonable prospect of conviction'.'' Id. at 19.
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Congressional Requests for an Independent Counsel
    A request to the Attorney General to apply for an independent 
counsel in a particular matter may be made by the Judiciary Committee 
of either House of Congress, or by a majority of the members of either 
the majority or non-majority party of those committees.\25\ The 
Attorney General is not required to apply for an independent counsel 
pursuant to such request, nor is the Attorney General required to 
conduct a ``preliminary investigation'' because of such request. The 
Attorney General must, however, within 30 days after the receipt of the 
request, report to the requesting committee as to whether an 
investigation has begun, the date upon which any such investigation 
began, and reasons regarding the Attorney General's decisions on each 
of the matters referred. If the Attorney General makes any applications 
or notifications to the division of the court because of a preliminary 
investigation of the matter referred to him by Congress, the material 
shall be supplied to the committee which made the referral. If the 
Attorney General does not apply for an independent counsel after a 
preliminary investigation, then the Attorney General must submit a 
report detailing the reasons for such decision.\26\
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    \25\ 28 U.S.C. Sec. 592(g)(1).
    \26\ 28 U.S.C. Sec. 592(g)(3).
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Recusal of Attorney General
    If the information received under this statutory scheme 
``involves'' the Attorney General or ``a person with whom the Attorney 
General has a personal or financial relationship,'' then the Attorney 
General ``shall'' disqualify or ``recuse'' himself or herself from the 
matter, designating the next most senior officer in the Department of 
Justice to take over the Attorney General's functions under the 
law.\27\ The disqualification should be in writing, stating reasons, 
and filed with any application or notification submitted to the 
division of the Court.\28\
---------------------------------------------------------------------------
    \27\ 28 U.S.C. Sec. 591(c)(1).
    \28\ 28 U.S.C. Sec. 591(c)(2).
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Application to the Division of the Court for an Independent Counsel
    After the preliminary investigation, if the Attorney General finds 
``reasonable grounds to believe that further investigation is 
warranted,'' or after 90 days if no determination is made, the Attorney 
General ``shall apply'' for the appointment of an independent counsel 
by a special panel of the United States Court of Appeals.\29\ The law 
specifically provides that the Attorney General's determination whether 
to apply to the special division of the court for an independent 
counsel ``shall not be reviewable in any court.'' \30\
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    \29\ 28 U.S.C. Sec. 592(c). As noted, the Senate report in 1987 
emphasized that the standard to be used by the Attorney General for 
determining whether to apply for an independent counsel is whether 
there exists ``reasonable grounds to believe that further investigation 
is warranted,'' and not whether the case offered a ``reasonable 
prospect for conviction.'' See S. Rept. 100-123, supra at 11. The 
Committee noted that the standard concerning the ``prospects of 
conviction'' is generally applied by the prosecuting authority at the 
stage when the prosecutor is considering an indictment, rather than at 
the early stages of determining whether an independent counsel should 
be appointed to investigate the allegations made. Id. at 11, 18-19.
    \30\ 28 U.S.C. Sec. 592(f).
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    When the Attorney General applies to the division of the court for 
an independent counsel, the application must contain ``sufficient 
information to assist the division of the court in selecting an 
independent counsel and in defining that independent counsel's 
prosecutorial jurisdiction so that the independent counsel has adequate 
authority to fully investigate and prosecute the subject matter.'' \31\ 
The application and supporting materials may not be released to the 
public without the approval of the division of the court.\32\
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    \31\ 28 U.S.C. Sec. 592(d). The Senate Report on the then ``special 
prosecutor'' legislation, S. 555, 95th Congress, noted that ``in many 
cases the Attorney General might have suggestions as to the names of 
individuals who would make good special prosecutors, which information 
would be of assistance to the division of the court.'' S. Rept. 95-170, 
95th Cong., 2d Sess. 56 (1977).
    \32\ 28 U.S.C. Sec. 592(c).
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Appointment by Division of Court
    The division of the court, which is a panel of three judges from 
the United States. Courts of Appeals (one being from the District of 
Columbia Circuit) serving two-year terms on the panel, actually names 
and appoints the independent counsel, and defines the counsel's 
prosecutorial jurisdiction upon application and request of the Attorney 
General.\33\ The Senate Report on the 1978 Ethics in Government Act 
explained that the court appointment of the independent counsel (then 
called a ``special prosecutor'') was necessary ``in order to have the 
maximum degree of independence and public confidence in the 
investigation conducted by that special prosecutor.'' \34\
---------------------------------------------------------------------------
    \33\ 28 U.S.C. Sec. 593(b),
    \34\ S. Rept. 95-170, supra at 56.
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Prosecutorial Jurisdiction
    As noted, the three-judge panel sets out the prosecutorial 
jurisdiction of the independent counsel based on the information 
provided in the request by the Attorney General. The Senate Report on 
the Ethics in Government Act noted that defining the prosecutorial 
jurisdiction by the court is an ``important part of the responsibility 
of the . . . court . . . for the control . . . and the accountability 
of such a special prosecutor.'' \35\ The Supreme Court, in upholding 
the law against constitutional challenges in Morrison v. Olson, supra, 
noted, however, that because of separation of powers concerns, the 
court's duties must be merely ``ministerial,'' and that the division of 
the court's discretion in defining the independent counsel's 
jurisdiction was thus not unlimited, but ``must be demonstrably related 
to the factual circumstances that gave rise to the Attorney General's 
investigation and request for the appointment. . . .'' \36\
---------------------------------------------------------------------------
    \35\ Id.
    \36\ 487 U.S. at 679.
---------------------------------------------------------------------------
    The independent counsel statute provides that the prosecutorial 
jurisdiction shall be such as to ``assure that the independent counsel 
has adequate authority to fully investigate and prosecute the subject 
matter with respect to which the Attorney General has requested the 
appointment of the independent counsel, and all matters related to that 
subject matter.'' \37\ Furthermore, the independent counsel is to be 
authorized to pursue so-called collateral matters which ``arise out 
of'' the investigation of the original matter, such as ``perjury, 
obstruction of justice, destruction of evidence, and intimidation of 
witnesses.' \38\ Matters pursued within the original grant of 
jurisdiction from the three-judge panel must thus be ``demonstrably 
related'' to the subject matter of the Attorney General's request, 
either in the nature of collateral offenses such as perjury or 
obstruction of justice which ``arise out of' the investigation or 
prosecution of the original matter, or things which are otherwise 
``related'' to the ``subject matter of the Attorney General's original 
request'' for an independent counsel.\39\
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    \37\ 28 U.S.C. Sec. 593(b)(3).
    \38\ Id.
    \39\ United States v. Wade, 83 F.3d 196, 197-198 (8th Cir. 1996); 
Morrison v. Olson, supra at 679; United States v. Crop Growers Corp., 
954 F. Supp. 335, 341 (D.D.C. 1997).
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    Other or new matters may be pursued by the independent counsel 
either upon a ``referral'' of ``related'' matters, or by an 
``expansion'' of the independent counsel's existing prosecutorial 
jurisdiction. Although the independent counsel may ask the Attorney 
General or the court to refer matters to him or her which ``are related 
to the independent counsel's prosecutorial jurisdiction,\40\ the 
statute requires that any ``expansion'' of the prosecutorial 
jurisdiction of an existing independent counsel be made by the division 
of the court only ``upon the request of the Attorney General . . . and 
such expansion may be in lieu of an additional independent counsel.'' 
\41\ When requested by the independent counsel, upon the independent 
counsel's discovery of matters not covered by his or her original 
jurisdiction, the Attorney General will conduct a preliminary 
investigation, giving due consideration to the independent counsel's 
request, to determine if the jurisdiction should be expanded.\42\ If 
the Attorney General decides not to expand the jurisdiction, the 
division of the court has no authority to do so on its own.\43\
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    \40\ 28 U.S.C. Sec. 594(c).
    \41\ 28 U.S.C. Sec. 593(c); note Morrison v. Olson, supra at 680, 
n. 18; In re Olson, 818 F.2d 34, 47 (D.C. Cir. 1987). There may, of 
course, be some disagreement as to whether a new matter requested by 
the independent counsel is within the independent counsel's original 
prosecutorial jurisdiction, and is thus a ``related matter'' for the 
court itself (or the Attorney General) to refer under 594(c), or 
whether jurisdiction over the matter requested is an ``expansion'' of 
existing jurisdiction, that is, the matter is ``not covered by the 
prosecutorial jurisdiction of the independent counsel,'' such that the 
Attorney General must expand jurisdiction under Sec. 593(c). See In re 
Espy, 80 F.3d 501 (D.C. Cir. 1996); United States v. Tucker, 78 F.3d 
1313 (8th Cir. 1996).
    \42\ In re Meese, 907 F.2d 1192 (D.C. Cir. 1990).
    \43\ 28 U.S.C. Sec. 593(c)(2)(B).
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Authority, Powers of Independent Counsel
    The law provides that the independent counsel will have ``full 
power and independent authority to exercise all investigative and 
prosecutorial functions and powers of the Department of Justice, the 
Attorney General, and any other officer or employee of the Department 
of Justice'' including, but not limited to, conducting grand jury 
investigations, granting immunity to witnesses, inspecting tax returns, 
receiving appropriate national security clearances, and challenging in 
court any privilege claims or attempts to withhold evidence on national 
security grounds.\44\ The Department of Justice must provide assistance 
and access to materials which the independent counsel requests, and 
personnel may be detailed from the Department of Justice upon request 
of the independent counsel.\45\
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    \44\ 28 U.S.C. Sec. 594(a).
    \45\ 28 U.S.C. Sec. 594(d).
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Appropriations, Cost Controls and Audits
    The appropriation for the funding of the offices of the independent 
counsels is an open ended appropriation within the Department of 
Justice. Public Law 100-202 established a ``permanent indefinite 
appropriation'' within the Justice Department ``to pay all necessary 
expenses of the investigations and prosecutions by independent 
counsel.'' \46\ The Comptroller General is directed ``to perform 
semiannual financial reviews of expenditures'' of the independent 
counsels from this appropriation.\47\
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    \46\ P.L. 100-202, Sec. 101(a), December 22, 1987, 101 Stat. 1329, 
see now 28 U.S.C. Sec. 591, note. See also Appendix, Budget of the 
United States Government, Fiscal Year 1999, at 599-600.
    \47\ Id.
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    Numerous fiscal and administrative provisions and cost control 
measures were added to the independent counsel law in the Independent 
Counsel Reauthorization Act of 1994. Procedures for expenditure 
certifications, requirements to follow Department of Justice policies 
with regard to the expenditure of funds, requirements to use federal 
office space unless other space may be obtained for less cost, 
provisions limiting compensation of independent counsels and staff, and 
provisions regulating travel and per diem expenses of the independent 
counsel and staff, were enacted as part of P.L. 103-270.\48\
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    \48\ See 28 U.S.C. Sec. 594(b),(c),(1).
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    The independent counsel is required to make a mid-year and end-of-
year financial statement of expenditures.\49\ The mid-year statements 
are to be reviewed, and the end of year statements are to be audited by 
the Comptroller General of the United States, and the results reported 
to specified congressional committees.\50\ The independent counsel is 
also required to make reports every six months to the division of the 
court which identify and explain major expenses of the office, and 
summarize all other expenses incurred.\51\
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    \49\ 28 U.S.C. Sec. 596(c)(1).
    \50\ 28 U.S.C. Sec. 596(c)(2).
    \51\ 28 U.S.C. Sec. 594(h)(1)(A).
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Removal of an Independent Counsel
    An independent counsel may be removed (other than through 
impeachment and conviction) only by the Attorney General for ``good 
cause, physical or mental disability'' or other impairing condition. 
\52\ This removal may be challenged by the independent counsel in the 
United States District Court for the District of Columbia.\53\ Any 
removal action must be fully explained by the Attorney General to the 
special division of the court and to the House and Senate Judiciary 
Committees.\54\
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    \52\ 28 U.S.C. Sec. 596(a)(1).
    \53\ 29 U.S.C. Sec. 596(a)(3).
    \54\ 28 U.S.C. Sec. 596(a)(2).
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    The special division of the court may also ``terminate'' the office 
of independent counsel if the counsel's work is completed.\55\ The 1994 
reauthorization law also provided that the division of the court will 
review after two years, and then yearly after the succeeding two year 
period, whether the work of the independent counsel is completed or so 
substantially completed that the Department of Justice may 
appropriately finish the work.\56\ The Supreme Court, in Morrison v. 
Olson, supra, concerned about the potential interference that the 
original termination authority could have over an executive branch 
investigation, interpreted the original termination authority of the 
special division narrowly as one which does ``not give the Special 
Division anything approaching the power to remove the counsel while an 
investigation or court proceeding is still underway--[as] this power is 
vested solely in the Attorney General.'' \57\
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    \55\ 28 U.S.C. Sec. 596(b)(2).
    \56\ 28 U.S.C. Sec. 596(b)(2), as added by P.L. 103-270, Section 
3(h).
    \57\ 487 U.S. at 692.
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Disclosure of Information, Reporting
    Much of the initial and preliminary matters concerning the 
independent counsel, his or her appointment, and jurisdiction may be 
kept confidential.\58\ The legislative history of the Ethics in 
Government Act indicates that this confidentiality ``is crucial to the 
general scheme of this chapter'' to protect high-level public officials 
from the publicity of unsubstantiated allegations which may trigger the 
investigatory process.\59\ However, the legislative history expressly 
recognized that there ``will be other situations where the public will 
be aware of the allegations of criminal wrongdoing and there will be a 
great deal of public attention centered on whether a special prosecutor 
will be appointed, who that special prosecutor will be, and what the 
jurisdiction of that special prosecutor will be.'' \60\ In such 
instances, the Committee noted that certain confidentialities may not 
serve ``any purpose,'' except that the actual application from the 
Attorney General might still be kept confidential in the interest of 
not further publicizing unsubstantiated allegations contained therein, 
and that the decision to release information would be left to the 
division of the court on a case-by-case basis.\61\ The division of the 
court may release the identity of the independent counsel and his or 
her prosecutorial jurisdiction if requested by the Attorney General or 
in the court's own initiative if deemed in the public interest.\62\
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    \58\ 28 U.S.C. Sec. Sec. 592(c) (notifications, applications filed 
with court); 593(b)(4) (identity and jurisdiction of independent 
counsel).
    \59\ S. Rept. 95-170. 95th Cong., 1st Sess., to accompany S. 555, 
``Public Officials Integrity Act of 1977.'' at 57-58 (1977).
    \60\ Id. at 58.
    \61\ Id.
    \62\ 28 U.S.C. Sec. 593(b). The identity and jurisdiction of the 
independent counsel must be disclosed upon the return of an indictment 
or filing of any criminal information.
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    A final, detailed report from the independent counsel is required 
prior to the termination of the independent counsel's office setting 
forth the work of the counsel and any reasons prosecutions were not 
brought in any matter.\63\ This report is made to the division of the 
court, and may be released by the division of the court, in part or in 
whole, to the Congress or to the public.\64\
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    \63\ 28 U.S.C. Sec. 594(h)(1)(B),
    \64\ 28 U.S.C. Sec. 594(h)(2).
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    Upon completion of an investigation, the files of the office of an 
independent counsel, after grand jury and national security information 
are identified, are turned over to the Archivist of the United States, 
and are to be maintained in accordance with the federal records 
laws.\65\ Access to these records will generally be governed by the 
provisions of the Freedom of Information Act.\66\
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    \65\ 28 U.S.C. Sec. 594(k)(1),(2).
    \66\ 28 U.S.C. Sec. 594(k)(3)(A).
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Congressional Oversight
    The independent counsel is now directed by statutory language to 
submit to the Congress an annual report on the activities of such 
independent counsel, including the progress of investigations and any 
prosecutions. Although it is recognized that certain information will 
need to be kept confidential, the statute states that ``information 
adequate to justify the expenditures that the office of the independent 
counsel has made'' should be provided.\67\
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    \67\ 28 U.S.C. Sec. 595(a)(2), as added by P.L. 103-270, Section 
3(g).
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    The conduct of an independent counsel is subject to congressional 
oversight and an independent counsel is required to cooperate with that 
oversight.\68\ The Conference Report on the Ethics in Government Act of 
1978 noted that ``a special prosecutor is required to file periodic 
reports with Congress and cooperate with the oversight jurisdiction of 
the House and Senate Judiciary Committees, thereby insuring 
accountability.'' \69\ The independent counsel provisions also provide 
that the independent counsel ``shall advise'' the House of 
Representatives of any ``substantial and credible information'' which 
may constitute grounds for an impeachment of a federal official.\70\ In 
addition to oversight of the independent counsel, the statute as 
amended in 1988, provides that the Attorney General must respond to the 
appropriate congressional committee within 15 days of a request from 
that committee for specific information on a case which has been made a 
matter of public knowledge.\71\
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    \68\ 28 U.S.C. Sec. 595(a)(1).
    \69\ H. Rept. 95-1756, 95th Cong., 2d Sess. 78 (1978). See also 
``Ethics in Government Act Amendments of 1982.'' S. Rept. 97-496, 97th 
Cong., 2d Sess., 3 (1982).
    \70\ 28 U.S.C. Sec. 595(c). The Constitution provides for removal 
by impeachment and conviction of the ``President, Vice President and 
all civil Officers of the United States.'' United States Constitution, 
Art. II, Section 4. The Senate version of the independent counsel 
(special prosecutor) bill required only information for impeachment of 
the President, Vice President or a judge or justice (S. Rept. No. 95-
170, supra at 71), but this was expanded to ``an impeachment,'' 
presumptively including ``all civil officers,'' in conference. H. Rept. 
No. 95-1756, supra at 50.
    \71\ 28 U.S.C. Sec. 595(b).
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Sunset Provision
    The provisions of law relating to the independent counsel have had, 
since the time of their original enactment, a five year ``sunset.'' 
That is, the provisions of law expire five years after enactment, and 
thus need reauthorization every five years. The current provisions, 
reauthorized and amended by the Independent Counsel Reauthorization Act 
of 1994, P.L. 103-270, June 30, 1994, will expire on June 30, 1999, 
unless reauthorized.\72\
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    \72\ 28 U.S.C. Sec. 599.
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Division of the Court
    The ``division of the court'' referred to in the Ethics in 
Government Act of 1978, is a special three-judge panel of the United 
States Court of Appeals for the District of Columbia made up of federal 
jurists appointed for two-year terms on the panel by the Chief Justice 
of the United States Supreme Court.\73\ One of the federal judges 
chosen must be from the District of Columbia Circuit. The panel is 
formally called the Division for the Purpose of Appointing Independent 
Counsels. The current panel, as of this writing, consists of Judge 
David B. Sentelle (D.C. Cir.), Judge John D. Butzner (4th Cir.); and 
Judge Peter T. Fay (11th Cir.).
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    \73\ 28 U.S.C. Sec. 49.
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Independent Counsels/Special Prosecutors
    The following list provides the names of the independent counsels 
appointed by the Division of the Court for Appointing Independent 
Counsels under the statutory provisions of the Ethics in Government Act 
of 1978, as amended, and sets out in summary fashion the areas or 
subjects of investigation.\74\ This list includes those independent 
counsels whose appointments were made a matter of public record. Noted 
also as ``sealed'' are those independent counsels whose identity and/or 
prosecutorial jurisdiction have been kept confidential. Under the 
provisions of the Ethics in Government Act relating to the appointment 
of independent counsels, the information on the appointment of 
independent counsels and the targets of an investigation was generally 
to be kept confidential unless the division of the court had deemed it 
to be in the public interest to release, or unless and until an 
indictment or criminal information had been returned.\75\ The 
independent counsels appointed under the Ethics in Government Act 
provisions have included:
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    \74\ For a summary of the results, costs, and the time frame of the 
investigations and prosecutions, note CRS Report 98-19, ``Independent 
Counsels Appointed Under the Ethics in Government Act of 1978, Costs 
and Results of Investigations.''
    \75\ 28 U.S.C. Sec. 593(b)(4).

    1. Arthur H. Christy (appointed November 29, 1979). Investigated 
allegations concerning President Carter's Chief of Staff Hamilton 
Jordan, regarding alleged cocaine use.
    2. Gerald J. Gallinghouse (appointed September 9, 1980). 
Investigated allegations concerning President Carter's national 
campaign manager Tim Kraft, regarding alleged cocaine use.
    3. Leon Silverman (appointed December 29, 1981). Investigated 
allegations concerning President Reagan's Secretary of Labor Raymond J. 
Donovan, regarding bribery of labor union officials and certain 
connections to organized crime. Further investigation commenced on June 
11, 1985, upon referral to investigate alleged false testimony before 
grand jury.
    4. Jacob A. Stein (sworn in April 2, 1984). Investigated 
allegations concerning President Reagan's nominee for Attorney General 
Edwin Meese, regarding his finances, financial disclosure and other 
allegations including trading in public offices.
    5. Alexia Morrison (appointed May 29, 1986). Alexia Morrison was 
appointed after the resignation of independent counsel James C. McKay, 
to investigate allegations concerning former assistant Attorney General 
Theodore B. Olson for allegedly giving false testimony to Congress 
regarding the EPA ``superfund'' inquiry.
    6. Whitney North Seymour Jr. (appointed May 29, 1986). Investigated 
charges concerning former President Reagan aide Michael K. Deaver, 
regarding alleged violations of postemployment conflict of interest 
laws in representing certain foreign clients before the White House 
after leaving government employment.
    7. Lawrence E. Walsh (appointed December 19, 1986). Investigated 
Lt. Colonel North, and others, in relation to the ``Iran Contra'' 
matter concerning sale of arms to Iran and the alleged diversion of 
profits from the sale to support the Contras in Nicaragua in violation 
of federal law.
    8. James C. McKay (appointed February 2, 1987). Appointed to 
investigate allegations concerning former White House staffer Franklyn 
C. Nofziger and potential violations of post-employment ``revolving 
door'' conflicts of interest in relation to alleged ``influence 
peddling'' and lobbying activities performed for Wedtech Corporation. 
On May 11, 1987, Mr. McKay was referred the additional matter of 
Attorney General Edwin Meese's conduct concerning the Wedtech 
Corporation, Mr. Meese's financial holdings and potential conflicts of 
interest, Mr. Meese's involvement in the Aqaba Pipeline project and 
other matters.
    9. James R. Harper, appointed August 17, 1987 to replace Carl S. 
Rauh (appointed December 19, 1986). The subject of the investigation 
was sealed.
    10. Sealed. Independent counsel appointed May 31, 1989.
    11. Larry D. Thompson, appointed July 3, 1995, to replace Arlin M. 
Adams, appointed March 1, 1990. Investigating allegations of criminal 
conspiracy to defraud the United States by Samuel R. Pierce, former 
Secretary, of the Department of Housing and Urban Development in the 
Reagan Administration, and others, concerning the programs of the 
Department of Housing and Urban Development.
    12. Sealed. Appointed April 19, 1991.
    13. Michael F. Zeldin, appointed on January 11, 1996, to succeed 
Joseph E. diGenova, who was appointed December 14, 1992, to investigate 
whether Janet Mullins, Assistant to President Bush for Political 
Affairs, violated any federal laws concerning the search of then 
presidential candidate Bill Clinton's passport files during 1992 
presidential campaign.
    14. Kenneth W. Starr (appointed August 5, 1994). Appointed to 
continue the investigation of allegations commonly referred to as 
``Whitewater begun by the Attorney General-appointed Special Counsel 
Robert B. Fiske, Jr., regarding any possible violations of law relating 
in any way to President Clinton and the First Lady Hillary Rodham 
Clinton's relationship with Madison Guarantee Savings and Loan 
Association, the Whitewater Development Corporation, or Capital 
Management Services, as well as any collateral matters arising out of 
the investigation of such matters including obstruction of justice or 
false statements.
    15. Donald C. Smaltz. Appointed September 9, 1994, to investigate 
any potential criminal conduct concerning allegations that Secretary of 
Agriculture Mike Espy received various gifts and entertainment from 
companies or organizations which are regulated by or have official 
business with the Department of Agriculture.
    16. David M. Barrett. Appointed May 24, 1995, to investigate 
allegations pertaining to the Department of Housing and Urban 
Development Secretary Henry G. Cisneros and false statements allegedly 
made to the FBI during background check.
    17. Daniel S. Pearson. Appointed July 6, 1995, as independent 
counsel to investigate allegations concerning financial dealings of 
Secretary of Commerce Ronald H. Brown.
    18. Sealed. Appointed November 27, 1996.
    19. Carol Elder Bruce. Appointed March 19, 1998, to investigate 
allegations of false statements to Congress by Interior Secretary Bruce 
Babbitt concerning the rejection of a proposed Indian gambling casino 
in Wisconsin.

                               __________
     LETTER FROM GRIFFIN B. BELL TO SENATORS THOMPSON AND LIEBERMAN
                                                  February 26, 1999
Senator Fred Thompson, Chairman
Senator Joseph Lieberman, Ranking Minority Member
United States Senate
Committee on Governmental Affairs
Washington, D.C.

    Re: Independent Counsel Statute

    Dear Senators: At our hearing on Wednesday, February 24, I referred 
to the appointment of Paul Curran as Special Counsel to investigate the 
Carter peanut warehouse and the National Bank of Georgia. I stated that 
I would find the transcript of the press conference at which Mr. Curran 
was appointed and from which we could understand the terms of his 
appointment.
    I have now found that transcript and enclose a copy for each of 
you. This investigation was completed within six months and Mr. Curran 
worked full time in doing the investigation.
    It was a pleasure to appear before your Committee.
            Yours sincerely,
                                    Griffin B. Bell
Enclosure
                               __________
  APPOINTING PAUL CURRAN AS SPECIAL COUNSEL TO INVESTIGATE THE CARTER 
                               WAREHOUSE
      Press Briefing, U.S. Department of Justice, Washington, D.C.
                             March 20, 1979
    Good morning. I want to announce that I am appointing Paul J. 
Curran of New York as Special Counsel to conduct the remainder of the 
inquiry into the various loan transactions between the National Bank of 
Georgia and the Carter Warehouse. This appointment is being made under 
the authority of the Attorney General, as found in Title 28 of the 
United States Code, Section 515(a).
    The Department of Justice has recently completed an intensive 
preliminary investigation of these loan transactions. That preliminary 
investigation did not resolve all factual and legal issues relating to 
the transactions, and therefore the Department has carefully considered 
available courses of action to pursue the inquiry.
    At the recommendation of Assistant Attorney General Heymann, with 
the approval of Deputy Attorney General Civiletti, I have determined 
that because of the unique combination of circumstances in this matter, 
it is in the best interest of the administration of justice, and the 
public's perception of the fairness and impartiality of justice that an 
independent Special Counsel be appointed.
    Over the last two years, the Department has received over 40 
requests from members of Congress and, from time to time, requests from 
others, to appoint Special Counsel or Special Prosecutors in all manner 
of investigations. We have always declined to do so. Frequent 
appointment of special attorneys would undermine the ability of the 
Department of Justice to conduct its business on a sound basis. It is 
essential to the administration of justice that the public have 
confidence in the ability of the Department of Justice to carry out its 
functions impartially and fairly. Common appointment of special 
prosecutors would erode the confidence of the public, would chip away 
at the morale of career prosecutors who have dedicated themselves to 
striving to administer justice uniformly for all.
    The Department of Justice often has to make and defend hard 
prosecutive decisions, and should be called upon to make those 
decisions if it is to fulfill its role as a neutral and vigorous 
guardian of law. It has plainly demonstrated that it has the capacity 
and integrity to investigate allegations of wrongdoing without regard 
to the position held by any subject of an investigation.
    For these reasons, it is the general policy of the Department not 
to appoint special prosecutors for investigation except where required 
by the terms of Title 6 of the Ethics in Government Act of 1978. That 
statute requires that allegation of federal criminal violations 
received against a limited number of high-ranking officials be referred 
to a special court for the appointment of prosecutors, if, after a 
preliminary investigation, the Department determines that the 
allegations warrant further investigation or prosecution. The 
Department has already implemented Title 6 on two and intends to 
enforce it faithfully.
    The Criminal Division's current inquiry into the various loans by 
the National Bank of Georgia to the Carter Warehouse has been 
consistent with a high standard of vigorous and impartial 
investigation. Late last summer, in the course of an ongoing inquiry 
into the activities of several Georgia banks, the Criminal Division 
examined records which described loan transactions between the National 
Bank of Georgia and the Carter warehouse. The attorneys on the banking 
case were directed by Assistant Attorney General Heymann, at that time, 
to investigate the character and handling of these loans. This 
investigation has continued and intensified over the last several 
months, as we considered the appropriate structure for handling the 
completion of the inquiry.
    It has been and remains the conclusion of the Department, as 
detailed in a March 5, 1979 letter from the Attorney General to the 
Chairman of the Senate Judiciary Committee, that the Ethics in 
Government Act does not apply to the pending inquiry, inasmuch as the 
basic information involving the loan transactions was developed by the 
Department of Justice prior to October 26, 1978, the effective date of 
the Act.
    Nonetheless, this Administration endorses the Ethics in Government 
Act; and the Department recognizes, in the spirit of the Act, that the 
Carter Warehouse inquiry involves a combination of extraordinary and 
special circumstances. These lead us to the conclusion that we should 
depart from our general policy against special counsel or special 
prosecutors in this unusual case.
    We have determined that an independent Special Counsel selected 
from outside the Department should be appointed to head the remainder 
of the Carter Warehouse inquiry. A Special Counsel is appropriate here 
for the following reasons: the investigation touches on the conduct of 
a business in which the President of the United States, the President's 
brother and the President's mother each hold a partnership interest. It 
is important to the American public's confidence in the administration 
of justice that they be assured that the ultimate resolution of the 
investigation, whether it be a finding that no charges are warranted, 
or a decision to initiate civil or criminal proceedings, was reached 
fairly, impartially, and without even the possibility of deference to 
high office.
    At the same time, the subjects of the investigation should not have 
to fear that they might be treated more harshly than is warranted, by a 
Department eager to prove its impartiality. The combination of these 
circumstances, we believe, outweighs the compelling reasons behind our 
policy not to appoint special prosecutors generally. The substance and 
the perception of justice and fairness to the subjects involved, 
require a Special Counsel.
    The Special Counsel will have full authority over the warehouse 
inquiry, and will supervise that investigation on a day-to-day basis. 
The Special Counsel will have authority to draw on existing Department 
of Justice personnel and resources, including access to any files, 
records, and other relevant materials; to bring in any additional staff 
necessary to perform his duties; to conduct proceedings before grand 
juries; and to conduct any other investigation that he deems necessary; 
to determine whether or not to contest any assertion of testimonial 
privilege; and to determine whether or not application should be made 
to a federal court for warrants, subpoenas or other court orders; to 
decide whether application should be made for a grant of immunity for 
any witness, consistent with applicable statutory requirements; and 
finally, to determine whether or not the prosecution of any individual, 
entity, or group of individuals, is warranted or not warranted.
    Special Counsel will not be operating with special statutory 
authority. Therefore, prosecutive decisions, including applications for 
immunity, must finally be approved by the Assistant Attorney General 
for the Criminal Division.
    When the Special Counsel reaches a decision with regard to any 
aspect of the investigation, or the entire investigation, he will 
report the decision to Assistant Attorney General Heymann. Mr. Heymann 
could overrule the Special Counsel only if the Special Counsel's 
decision was so grossly inconsistent with well-established 
prosecutorial standards as to render the decision unconscionable.
    In the event that a, decision of the Special Counsel were 
overruled, the matter would be fully reported to the public and the 
Congress at the earliest possible stage, consistent with the rights of 
any remaining potential defendants and the restrictions of Federal 
Rules of Criminal Procedure 6(e).
    In short, the Special Counsel will conduct a thorough and 
expeditious investigation of the Carter Warehouse loan transactions, 
and will bring the matter to a fair and just conclusion, whether by 
closing the case or by initiating appropriate civil or criminal 
proceedings. Special Counsel can build effectively on the fruits of the 
investigation to date. While the Department is confident that even 
without this special appointment, any investigation would be full, 
vigorous, and impartial. The Special Counsel will serve as a special 
guarantee to the public of these qualities.
    Now, you all know Assistant Attorney General Heymann, who is in 
charge of the Criminal Division. I want to introduce to you now Paul J. 
Curran of New York, who is former United States Attorney for the 
Southern District of New York; for,a long time before his service as 
U.S. Attorney, and since, a partner in the law firm of Kaye, Scholer, 
Fierman, Hays and Handler of New York. Paul is an experienced 
prosecutor, a fine trial lawyer, a member of the American College of 
Trial Lawyers, highly regarded amongst lawyers who try cases and 
amongst prosecutors. I have met him myself for the first time this 
morning, although he was carefully investigated in the sense of asking 
other people about him.
    I am confident that he is the kind of person that will come in, 
will do a good, thorough job on the matter pending, and that the public 
will have confidence in what he does and in the way this matter is 
being handled by the Department of Justice. I deeply appreciate his 
being willing to render this public service. It is the sort of thing 
that makes you proud of lawyers, when you can call a lawyer, bring him 
out and away from a busy practice, and get him to take on a task of 
this kind.
    Phil--and Paul Curran.
    ASSISTANT ATTORNEY GENERAL HEYMANN: We will be prepared to address 
questions on the mandate, why we are proceeding this way, but not 
questions on the underlying facts of the investigation, for obvious 
reasons.
    SPEAKER: Can you tell us first, is this a full time job? Are you 
going to be here in Washington, or is this something you are going to 
supervise part time? That wasn't fully explained.
    MR. CURRAN: I intend to work at it full time, beginning some time 
next week. Where I'll be doing it, I don't know; I'll probably be doing 
it several places.
    SPEAKER: Are you going to be the only ``outsider,'' so to speak? 
Will everybody else be Justice Department?
    MR. CURRAN: I think not, although I've just gotten into this 
matter. My present plan is to have one or two counsel from the outside, 
whom I will pick and who will work with me on the matter.
    SPEAKER: How long do you think it's going to take?
    MR. CURRAN: I have no idea.
    SPEAKER: How long are you prepared to do it?
    MR. CURRAN: Well, my charge is to do a thorough and expeditious 
inquiry, and that's what I'm going to do, but I couldn't stand here 
today and give you any time frame, because----
    SPEAKER: You didn't give an outside date on how long you can 
remain, or something like that?
    MR. CURRAN: I have no time frame on that.
    SPEAKER: Are you a Democrat or a Republican?
    MR. CURRAN: I'm an enrolled Republican.
    SPEAKER: Mr. Heymann, is your decision subject to review by the 
Deputy Attorney General and the Attorney General?
    ASSISTANT ATTORNEY GENERAL HEYMANN: I believe that my decision will 
be not reviewed by the Deputy Attorney General or the Attorney General 
in this case.
    SPEAKER: The question is whether it is subject to review; not what 
will happen, but whether it is subject to review.
    ASSISTANT ATTORNEY GENERAL HEYMANN: I believe it will not be 
subject to review.
    SPEAKER: Mr. Curran, will you take a moment to tell us why you took 
the job?
    MR. CURRAN: Well, I guess several reasons. First, it sounded like 
an interesting and challenging assignment. I think it's in the public 
interest to do something like this. A lawyer should do something like 
this when he's called upon to do it, if he can, consistent with his 
other obligations. I also believe that, having spent six years with the 
Department in New York, three years as an Assistant U.S. Attorney years 
ago, and three years--two and a half years more recently as United 
States Attorney, it's important to the Department to have something 
like this done, if the Department feels it should be done by a Special 
Counsel. And I believe that it's ultimately in the public interest.
    SPEAKER: When were you first contacted by Judge Bell, and what was 
your first reaction?
    MR. CURRAN: I was not contacted by Judge Bell. I first received a 
telephone call, which I returned, because I wasn't in my office, from 
Mr. Heymann last Wednesday. I talked to him once on Wednesday, once on 
Thursday, twice on Saturday, and three times yesterday.
    SPEAKER: Did it take time to talk you into it? Is that the reason 
for the frequency?
    MR. CURRAN: Well, I suppose there are a number of factors. I 
believe initially when he called me, he was talking to me about whether 
I might have an interest, and that was really the first conversation. 
The second conversation went a little bit further, and I said that I 
might have an interest. That was Thursday. After I did some checking, I 
told him on Saturday that I thought I would have an interest, subject 
to clearing up a couple of matters that required my personal attention; 
and then on Monday we nailed it down.
    SPEAKER: What kind of checking did you do on Thursday?
    MR. CURRAN: I didn't do any on Thursday.
    SPEAKER: Well, whatever day it was that you did----
    MR. CURRAN: I had to check into a couple of matters that I was 
handling at my office.
    SPEAKER: Oh, not about the case?
    MR. CURRAN: No, nothing to do with the case.
    SPEAKER: Mr. Heymann, what were the factors that led you to first 
contact Mr. Curran?
    ASSISTANT ATTORNEY GENERAL HEYMANN: We sat down and made up a 
list--and when I say ``well I mean people in the Criminal Division, 
almost entirely--made up a long list of names. We reduced the names to 
five who were our first priority. I talked to a number of people about 
each of the five names. I then called three, specifically; all three 
were willing to take the job, and I picked Mr. Curran.
    SPEAKER: Was the--was your choice, in part, dictated by the fact 
that Mr. Curran was a known Republican? Did you--in point of fairness, 
did you want a Republican if you could find one?
    ASSISTANT ATTORNEY GENERAL HEYMANN: I wanted a prosecutor. I 
thought it was an advantage if it was a Republican, but I did not think 
that was determinative.
    SPEAKER: Were all five on your priority list Republicans?
    ASSISTANT ATTORNEY GENERAL HEYMANN: No.
    SPEAKER: What about the three?
    ASSISTANT ATTORNEY GENERAL HEYMANN: I can't even tell you as to all 
three, what their party was. I know that Paul was a Republican; I know 
that--I have not, by the way, met him before this morning myself, in 
person.
    SPEAKER: What advantages do you see----
    ASSISTANT ATTORNEY GENERAL HEYMANN: I know one was a Democrat, and 
the third I don't know.
    SPEAKER: One of the five?
    ASSISTANT ATTORNEY GENERAL HEYMANN: One of the three was a 
Democrat, one was a Republican
    SPEAKER: How did Mr. Curran's name first come before you, Mr. 
Heymann?
    ASSISTANT ATTORNEY GENERAL HEYMANN: I don't know who suggested it, 
but he comes from a distinguished and highly admired career as U.S. 
Attorney in the Southern District of New York.
    SPEAKER: What are the advantages, say, in having a Republican 
Special Prosecutor?
    ASSISTANT ATTORNEY GENERAL HEYMANN: Oh, it's--I don't regard it as 
overwhelming, but what we want to do is have an investigation that the 
American people will--and certainly will believe is vigorous, complete, 
and absolutely fair, calling the shots either way they come out, 
wherever they come out.
    SPEAKER: Your statement also says that you are worried--that there 
was some concern in the Department, in the event that those who were 
being investigated should not have to fear that the Department would 
treat them harshly to prove its impartiality. Have you heard from the 
President's mother, the President, or the President's brother, to that 
effect? Did they ask you----
    ASSISTANT ATTORNEY GENERAL HEYMANN: I have been involved in this 
investigation since August of 1978; August 13th is the first time I 
have heard of it. In that period, I have never said anything except. 
``Go! Go! Go!'' and I have never heard a word from Judge Bell or anyone 
in the White House about it. Nor have I invited it, but I have never 
heard a word from anybody.
    It does worry me in general, in any political case; it worries me 
that there will be a tendency to prove our integrity by bringing cases 
that should not be brought, whether it is a Congressman or a Mayor or 
whoever; and I think that's always one good reason to be very careful 
in political cases.
    SPEAKER: What is the substantive difference, if any, between a 
Special Counsel and a Special Prosecutor?
    ASSISTANT ATTORNEY GENERAL HEYMANN: Practically none. We tried to 
copy--we used the term ``Special Counsel'' in large part because 
``Special Prosecutor'' has taken on a statutory meaning, now, under the 
Ethics in Government Act. We tried to copy the powers of the Special 
Prosecutor Statute, and of the earlier Special Prosecutors. I think 
that they are substantially identical, except for the retention in the 
head of the Criminal Division of a very narrow power that is carefully 
spelled out in the paper you have before you, not to go along with 
actions that depart so widely and so drastically from what anybody 
might expect--well-established standards--that they would be 
unconscionable.
    SPEAKER: Why did you retain that power?
    ASSISTANT ATTORNEY GENERAL HEYMANN: I think it's a practical 
matter; it doesn't make a lot of difference. As a theoretical matter. 
The Justice Department continues to have a responsibility. Some of you 
may remember that at the time that Elliot Richardson was dealing with 
this there was always a phrase that Elliot Richardson used, which was 
that the Attorney General retained the powers that the Attorney General 
must retain.
    The Justice Department has a responsibility, always ought to have a 
responsibility, to see that nothing unconscionable is done.
    SPEAKER: Mr. Curran, as you know, there was a preliminary 
investigation by the FBI. As a former prosecutor, you know that the 
next thing the FBI can do is to undertake a full field investigation. 
Do you anticipate ordering a full field investigation?
    MR. CURRAN: I anticipate conducting a thorough and expeditious 
inquiry, and at this time that's all I'm going to say. I am not 
familiar with the facts, and I am in no position this morning to 
discuss what I intend to do, to the extent I could discuss it anyway.
    SPEAKER: Mr. Heymann, why didn't you go ahead with a full Special 
Prosecutor under the Ethics in Government Act?
    ASSISTANT ATTORNEY GENERAL HEYMANN: It has been my advice to the 
Attorney General that there is no legal power of the Attorney General 
to go to court for a Special Prosecutor in this matter, and that there 
is no legal power in the court to appoint a Special Prosecutor.
    The statement of that, which the Attorney General has given to both 
Judiciary Committees, can be summarized. It has about three independent 
prongs, but if I can just take one of them. The Attorney General, in 
order to go to a court for a Special Prosecutor in this case, would 
have to personally find that this investigation involving certain loans 
of the National Bank of Georgia was not related to other investigations 
that we have going involving the National Bank of Georgia. In the 
language of the legislative history, he would have to find that it did 
not pertains to the same incidents or transactions or course of conduct 
being investigated.
    It seems to me that this plainly relates to investigations of other 
loans of the National Bank of Georgia, and that the court has no power, 
as I read the statute--or the Attorney General has no power, to get a 
court appointment, in that situation.
    SPEAKER: Mr. Heymann, do you contemplate other matters going on 
involving the National Bank of Georgia, or are those going to be held 
in abeyance?
    ASSISTANT ATTORNEY GENERAL HEYMANN: Other matters will go on; I 
contemplate this.
    SPEAKER: Mr. Heymann, under what conditions may the Special Counsel 
be dismissed?
    ASSISTANT ATTORNEY GENERAL HEYMANN: It never occurred to us that 
that would--perhaps foolishly, it never occurred to us that that would 
come up as an issue until we started talking, just before coming up 
here, and I can't tell you the answer to that. I can't imagine it. We 
will have a written order creating Mr. Curran's post, and, I suppose, 
we may or may not deal with it then. I can't imagine that situation.
    SPEAKER: What is Curran's salary?
    ASSISTANT ATTORNEY GENERAL HEYMANN: The salary has not been worked 
out yet, either, and I wouldn't--I shouldn't reveal the generosity of 
attitude Mr. Curran has towards his salary, because it will prejudice 
him in dealing with the Justice Department.
    SPEAKER: Mr. Heymann, could you finish the answer that you were 
giving about why you didn't appoint a full-fledged Special Prosecutor 
under the Ethics in Government Act?
    ASSISTANT ATTORNEY GENERAL HEYMANN: The simple answer is, I don't 
think that that is a legal possibility. I think it would be 
inconsistent with Section 604(2) of the statute. I think it is 
forbidden, not legally possible.
    SPEAKER: Are you saying the Attorney General doesn't have an 
independent power to appoint a Special Prosecutor outside of that Act?
    ASSISTANT ATTORNEY GENERAL HEYMANN: The Attorney General has the 
independent power to appoint a Special Prosecutor that he has exercised 
in appointing Mr. Curran as Special Counsel; and I don't read any great 
distinction between Special Counsel and Special Prosecutor. He has no 
power to go to the court and ask the three-judge court that has been 
set up under the Ethics in Government Act, to do that for him. He 
doesn't have the power because it's clear, under Section 604(2), that 
he doesn't; it's simply a legal matter.
    SPEAKER: Isn't ``prosecutor'' a more--a pejorative term? A 
``prosecutor'' implies you're after a criminal case, as opposed to 
advising on whether or not there is one?
    MR. CURRAN: When I was trying cases as a prosecutor I never wanted 
to be called a ``prosecutor.'' I preferred to be called ``the attorney 
for the Government'' and the defense counsel called me the 
``Prosecutor.'' I don't know whether it is a particularly good term or 
not. I'm satisfied that as Special Counsel, I have all the powers I 
need to conduct this inquiry thoroughly and expeditiously, and I'm 
satisfied, should Mr. Heymann and I have an ultimate disagreement, that 
under the charter which Judge Bell read, there are adequate safeguards 
there as well.
    SPEAKER: If there is a disagreement, will it be made public? Can 
you state now that it will be made public?
    MR. CURRAN: Page 6, at the top, says precisely that.
    SPEAKER: Mr. Curran, were there any powers or authority that you 
insisted upon in your conversations with Mr. Heymann over the last 
week? Is there any----
    MR. CURRAN: You mean, that I didn't receive?
    SPEAKER: Well, that you, yourself, specifically asked for 
assurances on or bring in?
    MR. CURRAN: Yes. I asked initially, I guess, the very first time we 
talked, whether I would have total independence, and his answer was, 
``Yes.'' And I asked, also, about the ability to bring in a lawyer or 
two, if I thought it was appropriate, from the outside, of my own 
choosing; and the answer to that was, ``Yes.'' And then we discussed 
the powers of the job, and things that are mentioned in the charter, 
for example, and I'm satisfied thoroughly with those powers.
    SPEAKER: Do you have to get the Department's approval for the two 
people that you (inaudible)?
    MR. CURRAN: That's not my understanding. No, my understanding is I 
can select anybody I want.
    SPEAKER: Your release of Judge Bell's remarks described this as an 
investigation into NBG loans to the Carter Warehouse. Is your mandate 
limited to that subject matter, or will you also be investigating other 
possible violations of law involving the President, the President's 
brother, and his mother?
    MR. CURRAN: Well, you say ``other possible violations of law.'' I 
don't know that there are any violations of law uncovered as of now, as 
far as I know, against anyone. As I understand it, my mandate is to 
look at those loan transaction and to see where the money went, or the 
proceeds of the loan transactions, and follow that situation wherever 
it deserves to be followed. If you're asking me if something else comes 
up during the course of that inquiry which indicates a totally separate 
possible violation of criminal law, I think that would have to be dealt 
with at the time we uncover it, if it ever happens.
    SPEAKER: Let me just move back to what you said a moment ago. You 
said you don't know if any violations of criminal law have yet come up. 
Could you elaborate on that? There has been a preliminary investigation 
here, which has gone on for some time, and it's safe to assume that 
there was some sort of a report compiling the results of that; and from 
what you say, I gather that there have been no violations of law that 
warrant indictment, that have been----
    MR. CURRAN: Oh, no, I'm sorry. I was stressing my knowledge, or 
lack of knowledge. I have read no reports in this matter, so I have no 
knowledge right now of the facts. I have no knowledge of what's been 
found or not at this time, in whatever preliminary investigation was 
conducted. I'm going to attain that knowledge quickly.
    SPEAKER: Mr. Heymann, can you answer that question? Without going 
into the facts of the case, it would seem that your investigation so 
far has produced enough information so that it warrants a further 
investigation. That's obvious.
    ASSISTANT ATTORNEY GENERAL HEYMANN: I won't go into the underlying 
facts at all, or the next steps, because it wouldn't be proper. It 
would also prejudice, to some extent, Mr. Curran's investigations and 
his plans, whatever he plans to do. And I can't tell you as to the 
future; that's going to be up to him.
    SPEAKER: Mr. Curran, everybody knows about the Southern District of 
New York. It was one of the proudest, most ``go-go'' offices within the 
Justice Department. There's a feeling about that office, that once 
you've been in it, and once you've led it, even if you leave it, you're 
not really ``outside the company,'' to borrow from another agency. And 
here the Justice Department is saying that it has gone outside the 
Justice Department to bring someone other in. How ``other'' are you?
    MR. CURRAN: Well, people from Justice Department in Washington used 
to call us, when I was back there, the ``Department of Justice for the 
Southern District of New York.'' They didn't mean that in a 
particularly endearing sense, I don't think, or at least some of them 
didn't. I don't know about ``us'' and ``them.'' I'm going to do this 
investigation the best I know how. I'm going to call the shots as I see 
them, as best I can, and finish it as quickly as I can. That's all I 
can tell you.
    SPEAKER: Mr. Curran, the Attorney General's statement says that, in 
the event a decision of the Special Counsel were overruled, the matter 
will be fully reported to the public and the Congress at the earliest 
stage possible, consistent with the rights of remaining defendants and 
the Rules of Criminal Procedure. Does that mean to you a matter of 
hours, days, or many months after the dust has settled, or how do you 
interpret that?
    MR. CURRAN: Well, to me it means just as soon as one could possibly 
do it, and if it could be done in a matter of hours, I suppose it 
should be done in a matter of hours, consistent with the rights of 
defendants under Rule 6(e), which, as you know, is the grand jury 
secrecy rule.
    SPEAKER: When you were in New York, Mr. Curran, you had some 
prosecutions involving Nixon officials. Were you under any pressure? 
Are you familiar with the kind of pressure this bring down on you?
    MR. CURRAN: When I was in New York, I had a number of prosecutions 
involving people in government, at state, city, and national levels, 
and in my two and a half years as United States Attorney and my three 
years as an assistant, way before I ever had any political pressures, 
or indeed any pressures of any kind with respect to cases I was 
handling.
    SPEAKER: Mr. Curran, could you address yourself to a hypothetical 
issue of constitutional law?
    MR. CURRAN: I'll try.
    SPEAKER: Can a sitting President of the United States be indicted?
    MR. CURRAN: I think I'll defer to the constitutional lawyer.
    ASSISTANT ATTORNEY GENERAL HEYMANN: I'm under strict instructions 
from the Attorney General to refer all such questions to the Office of 
Legal Counsel. No, I wouldn't answer that now.
    ATTORNEY GENERAL BELL: And they will not run an opinion on a 
hypothetical question. Not even for a member of the press.
    SPEAKER: You had the option in this matter, of going the review 
panel route. Was there a determination made that, politically, you 
would take a whipping if you went that way?
    ASSISTANT ATTORNEY GENERAL HEYMANN: No, the--I think a decision was 
made on the merits, Carl. Obviously the merits always are public 
merits, too, and it means that they have public impact. The question--
the difference between a reviewing panel and a Special Counsel, such as 
Mr. Curran will be, is how complete and detailed the control of the 
ongoing investigation will be, and how obvious it would be, how obvious 
that he's in control it would be. We wanted the greater control, and 
the greater apparent control. Both of them will be in Curran's hands.
    SPEAKER: Has the President of the United States been advised that a 
special Counsel has been appointed? And if so, by whom, when, and what 
was his reaction?
    ATTORNEY GENERAL BELL: Last night, about six-thirty or a quarter to 
seven, I went over to the White House and advised Jody Powell that I 
had decided to appoint Mr. Curran as Special Counsel this morning. That 
is the only person I have talked to about it at the White House. I have 
not discussed the matter with the President at all, nor have I advised 
Mr. Kirbo of what I was going to do. I advised Mr. Powell, and I 
imagine he may have told the President, but I don't know that. You'll 
have to ask him that.
    SPEAKER: Why did you----
    ATTORNEY GENERAL BELL: This morning, at 15 minutes to 10, 1 had 
delivered a copy of this biography and the press release to Senator 
Kennedy and Senator Thurmond, because of the offices they hold; 
Chairman Rodino and Congressman McClory, because of the offices they 
hold on the House Judiciary Committee; and to Mr. Powell. I did it 
because--as an accommodation to the media, assuming they would probably 
have some interest in asking the White House questions about this 
matter--I thought maybe it would be better for them to be forewarned by 
15 minutes.
    SPEAKER: Judge, if a Special Prosecutor were justified in the 
Watergate case, why is one not justified in this case?
    ATTORNEY GENERAL BELL: Well, I've never completely compared it to 
the Watergate--I was not in Washington at that time. I handle cases on 
a case-by-case basis, and we have appointed a Special Counsel. I know 
it's very disappointing to the media that we will not use the term 
``prosecutor.'' Mr. Marro put his finger on the answer to that 
question. You assume, if we use the term ``prosecutor,'' that we are 
going to prosecute someone. We believe in due process of law, and we 
don't announce in advance, before we finish an investigation, that 
we're going to prosecute someone. They do that in some countries, but 
we have never yet done it in this country. Thank you.
    SPEAKER: Mr. Heymann, will there be a permanent team of Justice 
Department lawyers assigned to Mr. Curran, or will he just call upon 
the resources as he needs them?
    ASSISTANT ATTORNEY GENERAL HEYMANN: He will just call upon the 
resources that he needs at any given time. It will be completely up to 
him.
    SPEAKER: Mr. Curran, can you imagine this dragging on into 1980, 
election year?
    MR. CURRAN: That's awfully hard to answer. I would prefer not to 
imagine anything close to that, but I don't know. I am simply not 
familiar enough with the facts.
    SPEAKER: Mr. Heymann, do you contemplate a public report, even if 
there is no indictment and no civil action warranted?
    ASSISTANT ATTORNEY GENERAL HEYMANN: I don't know. I think it's 
something we have to think about hard. Judge Bell, on another related 
occasion, on allegations regarding the activities of Robert Vesco, said 
that he would like to see a public report made. It's very hard for us 
to figure out how to do it with a proper respect both for the privacy 
rights of the people whose reputations are affected, and for a 
technical, legal rule, Rule 6(e). There is no exception that makes it 
easy to do when you've had a grand jury.
    SPEAKER: But you did it with the U.S. Recording case and the 
Federal Bureau of Investigation. Why shouldn't the same standards apply 
to the White House?
    ASSISTANT ATTORNEY GENERAL HEYMANN: I don It know the reference. We 
did it with regard to what?
    SPEAKER: The U.S. Recording case and the F.B.I. earlier in this 
Administration.
    ASSISTANT ATTORNEY GENERAL HEYMANN: All I can tell you is, we would 
like in appropriate cases to issue a report if there is no official 
action, such as a prosecution, and I welcome suggestions on how we 
could do it. I don't know what we did in the U.S. Recording.
    SPEAKER: Thank you very much.

                               __________
THE SEPARATION OF POWERS: THE ROLES OF INDEPENDENT COUNSELS, INSPECTORS 
           GENERAL, EXECUTIVE PRIVILEGE AND EXECUTIVE ORDERS
  Final Report of the National Commission on the Separation of Powers 
    From the Miller Center of Public Affairs, University of Virginia
                            December 7, 1998
    Founded in 1975, the Miller Center of Public Affairs at the 
University of Virginia is a nonpartisan research institute that 
supports scholarship on the national and international policies of the 
United States. Miller Center programs emphasize both the substance and 
the process of national policymaking, with a special emphasis on the 
American presidency and the executive branch of government. Philip 
Zelikow, White Burkett Miller Professor of History, is Director of the 
Miller Center.
                              INTRODUCTION
    The separation of governmental powers is one of the hallmarks of 
the American Constitutional system. In Britain and in the many other 
countries that follow the Westminster model, the executive, legislative 
and judicial functions are all handled, wholly or in important measure, 
by the single entity known as parliament. In the United States, 
however, each of these functions is carried out by a separate branch of 
government, namely the Presidency, the Congress and the Judiciary.
    The three are interrelated, not only in the way they derive their 
power but also in the way they exercise it. The President, senators and 
representatives are directly elected; judges and justices are appointed 
by the President with the consent of the Senate. Congress can remove a 
President from office by impeachment for ``high crimes and 
misdemeanors.'' All three branches can be involved in the formulation 
of laws; Congress must pass them, the President must sign or veto them 
and the courts are frequently called upon to adjudge their 
constitutionality and meaning. This arrangement of separated and 
overlapping functions creates a system of checks and balances that is 
another hallmark of the American system.
    Some of this is set out in the Constitution. Some is codified in 
the decisions of the Supreme Court, such as Marbury v. Madison, which 
established the right of the Court to rule on the constitutionality of 
acts of Congress. Many gray areas remain, however, where the 
delineation of powers is not so clear and where, in fact, the branches 
of government, usually the legislative and executive, grapple from time 
to time for dominance. Often these struggles take place deep within the 
bureaucracy, but sometimes, as in the extensive investigation of a 
sitting President by an independent counsel and the resulting 
consideration by Congress of his report, they become the stuff of 
national preoccupation.
    One important struggle was recently decided by the Supreme Court 
when it declared unconstitutional the Line-item veto statute passed by 
Congress after years of agitation for a Federal law giving Presidents 
the right, already enjoyed by many governors, to approve some parts and 
disapprove other parts of legislation. President Clinton signed the 
bill and used its powers on several occasions, but the Court 
subsequently found that it ceded to the President Congressional powers 
that Congress was not empowered to cede in the absence of a 
Constitutional amendment.
    The Miller Center Commission on the Separation of Powers is the 
eighth such commission established by the Center to study aspects of 
the Federal government, in a series dating back to 1980. Like the 
others, it is independent of party and faction. Over the last two and 
one-half years, it has conducted a methodical and scholarly survey, 
examining a number of areas where the separation of powers is unclear 
and selecting five of them for detailed consideration. These are: The 
office of independent counsel, the uses of inspectors general 
throughout the government, the doctrine of executive privilege, the 
issuance of executive orders and the War Powers Resolution passed in 
1973. All are related in some way to the contentious debates that arose 
out of the Vietnam War and the Watergate scandal. The Commission makes 
specific recommendations on each.
                          INDEPENDENT COUNSEL
    Doubtless the most tropic of these recommendations relates to the 
functioning of independent counsels, who operate under a law first 
passed in 1978 for a five-year period and renewed and amended several 
times since. This is a role born of the distrust in government created 
by Watergate. When the holders of specified high offices, 49 in all, 
are alleged to have committed crimes, the authority of the Attorney 
General himself to investigate the matter is severely limited, and the 
Attorney General must consider requesting the judicial appointment of 
an independent counsel.
    If such a counsel is deemed to be necessary, the duty to faithfully 
execute the laws, which is vested in the President by the Constitution, 
and normally exercised through the Department of Justice with respect 
to criminal law, is in effect transferred in cases where the President 
might have a conflict of interest. From November, 1979, to May, 1998, 
no fewer than 21 independent counsels have been named.
    The Commission concludes that the law is seriously flawed. It finds 
that the Attorney General is unduly restricted in deciding the need for 
independent counsel. The Attorney General can remove the counsel, but 
only for cause, and that can be contested in the courts. In the 
practical world, no counsel is likely to be removed by an Attorney 
General. There are no realistic fiscal or time constraints on the 
counsel. In effect the law creates miniature departments of justice, 
independent of the Attorney General, to prosecute particular persons.
    Driven by the fact that the independent counsel statute will expire 
next Year unless Congress acts to revise or extend it, the Commission 
considered a number of ways in which the statute establishing the 
independent counsel could be reformed. It concludes that there is no 
way of correcting the inherent absence of fairness from the procedure 
itself--chiefly the isolation of the putative defendant from the 
safeguards afforded to all other subjects of Federal criminal 
investigations.
    A paper discussing the law was prepared for the Commission by 
former Attorney General Griffin R. Bell, its co-chairman. The paper 
states, quoting from a 1988 brief that he wrote with two other former 
attorneys general: ``The inherent checks and balances the system 
supplies heighten the occupational hazards of a prosecutor: taking too 
narrow a focus, a possible toss of perspective and a single-minded 
pursuit of alleged suspects seeking evidence of some misconduct. This 
search for a crime to fit the publicly identified suspect is generally 
unknown or should be unknown to our criminal justice system.'' Judge 
Bell also criticized the provision of the statute requiring independent 
counsels to issue final reports. In some though not all cases, such as 
the Iran-Contra investigation, he said, these can suggest guilt even 
though there is no indictment in the case.
    Gerhard Casper, the president of Stanford University, who is a 
nationally recognized authority on the separation of powers, said 
recently that he doubted that the office of independent counsel could 
be eliminated because, he argued, once established, such institutions 
are hard to uproot.
    The Commission urges that the independent counsel statute be 
permitted to expire next year under the five-year ``sunset'' provision. 
But the Commission recognizes that the possibility of conflicts of 
interest in investigations of high officials is far from imaginary. The 
difficulty lies in striking a balance between holding such officials 
accountable and protecting their inherent right to fair treatment. The 
Commission suggests that when the President, the Vice President or the 
Attorney General is involved in a criminal investigation, the Attorney 
General should be required under a new statute to recuse himself or 
herself from the case. The Attorney General, though recused, could 
appoint either outside counsel or a Justice Department official who was 
not disqualified. The Attorney General would remain accountable as the 
responsible official, entitled to dismiss the counsel or Justice 
Department official for cause.
                           INSPECTORS GENERAL
    After the Watergate scandal, Congress took a second step to check 
abuse in the executive branch, passing the Inspector General Act of 
1978. The act, as amended, currently empowers the President to appoint 
inspectors general in each of 28 Federal agencies, and prohibits senior 
officials within those agencies from obstructing any audit or 
investigation by an IG or blocking the issuance of any subpoena by an 
IG during the course of an audit or investigation. A President may 
remove an IG, but only after reporting his reasons to Congress, which 
raises separation of powers concerns. (We note, however, that in 
practice the reasons can be perfunctory, as when President Reagan told 
Congress that he was removing all the IGs because he needed to have the 
``fullest confidence in the ability, integrity and commitment'' of 
each.)
    IGs must also report to Congress twice a year, which means they are 
subject to two masters, in that they serve as members of the Executive 
Branch yet report to Congress about the internal workings of their 
agencies. They serve, in other words, within executive agencies as 
Congressional ferrets of dubious constitutionality, though the issue 
has not, been raised in court. While the system creates conflict, it is 
also useful in the detection and prevention of fraud and abuse within 
the Executive Branch. Once again, as with the independent counsel, it 
is a question of balance.
    As one vivid demonstration of how the system operates, the 
Commission cites the role of the IG in the Justice Department, which 
attenuates the Attorney General's authority. The IG can always threaten 
the Attorney General with a ``seven-day letter.'' That is to say, 
whenever the IG has serious concerns about the way things are being 
handled within the Justice Department, he can report his concerns at 
once to the Attorney General, who then has seven days to send the 
report to Congress.
    It has even been suggested that inspectors general be permitted to 
prosecute certain kinds of cases. Currently, when an IG uncovers 
evidence of criminal conduct, the prosecutions are conducted by United 
States Attorneys and the Department of Justice. Judge Bell, who also 
reported to the Commission on this subject, said that any grant of 
prosecutorial authority would represent an unacceptable widening of the 
IG's authority. The Commission opposes any further moves in that 
direction. The fundamental problem is that no one watches the 
watchdogs. There is no central agency that collects information about 
what each inspector general is doing, which varies widely from agency 
to agency. The IGs, born independent by design, are now so independent 
that some have begun to run amok. They constantly seek more authority, 
and when it is not expressly granted, some take it anyway. No one is 
there to check their power. The Commission endorses the suggestion 
recently made by Senator Susan Collins that the General Accounting 
Office or some other neutral agency periodically review the inspector 
generals' operations to insure consistency and to rein in IGs who 
exceed their statutory mandate.
                          EXECUTIVE PRIVILEGE
    Whenever Congress exercises its power to ``check and balance'' the 
actions of the executive through investigation and corrective 
legislation, one of the President's main defenses has been invoking 
executive privilege. That is the President's right to withhold 
documents and testimony concerning the content of communications with 
his top-level staff and other executive branch officials relating to 
official business. It is strongest where national security is 
concerned, weakest where Congress is investigating allegedly illegal or 
unethical actions by executive branch officials.
    Many Presidents--from Jackson in 1833, who refused to comply with a 
Senate request for a document relating to the Bank of the United 
States, to Reagan in 1982--who ordered an aide not to reply to a House 
committee's subpoena, have cited the doctrine of executive privilege. 
Perhaps surprisingly, such assertions have been subjected to court 
proceedings only twice to test their constitutionality.
    In the case of President Nixon's Watergate tapes, an appellate 
court rejected a claim of absolute privilege but declined to enforce a 
subpoena issued by the Senate Watergate Committee, absent a showing of 
a specific need for the tapes. In the case of President Reagan's 
Environmental Protection Agency administrator, whom Congress cited for 
contempt, the President sued for a declaratory judgment char his claim 
was well taken. The judge ruled that suit premature, pending any 
criminal action to enforce the citation, but pregnantly observed that 
the difficulties of the case ``should encourage the two branches to 
settle their differences without further judicial involvement. 
Compromise and cooperation, rather than confrontation, should be the 
aim of the parties.''
    Executive privilege is much more difficult to sustain against the 
demands of criminal juries for information relevant to a criminal 
indictment or trial. Even though the lower courts had previously 
refused to enforce the Senate Watergate subpoena for the Nixon tapes, 
the Supreme Court upheld a subpoena for the same tapes issued by the 
judge presiding over the criminal trial of the principal Watergate 
defendants. In response to the President's claim that some of the tapes 
referred to national security matters, the Supreme Court authorized the 
trial judge to examine the tapes in camera and to provide the 
prosecutor with those, including the so-called ``smoking gun'' tapes, 
which did not raise national security concerns. As to executive claims 
outside the national security area, the Court instructed the trial 
judge to balance the jury's need for each document against the 
President's assertion of the right to withhold it.
    The Watergate case profoundly affected executive privilege, as it 
affected so many things. Lloyd N. Cutler twice a Presidential counsel, 
argued in a study for the Commission: ``While die President still holds 
a strong legal hand when he asserts executive privilege vis-a-vis the 
Congress, his political power and will to do so have been greatly 
weakened by Watergate and its aftermath. Watergate seriously impaired 
the moral status of the Presidency, and substantially enhanced the 
moral status of Congressional investigations. Since Watergate, 
incumbent Presidents have been reluctant to assert executive privilege 
whenever they or their closest advisors or family members have been 
accused of illegal or unethical misconduct. This reluctance is induced 
by a well-founded concern that their political opponents and a portion 
of the media will react by charging `cover-up,' and that odious 
comparisons will be drawn to Watergate.''
    In the Commission's view, the waivers of executive privilege by 
modern Presidents, including Bill Clinton, are doing serious long-term 
damage to the ability of Presidents to perform their duties. When 
Presidents dare nor seek confidential advice for fear it will not 
remain confidential, when Presidential aides and cabinet members are 
reluctant to offer advice for the same reason, when all top executive 
branch officials are loath to write memoranda or make records of their 
consultations with one another, Presidents are ill-equipped to exercise 
their full executive power. Moreover, historians and biographers will 
lose their most important source materials. The Commission therefore 
recommends that Congress reduce its demands on the Presidency 
concerning its internal deliberations, and that Presidents invoke 
executive privilege to resist unreasonably invasive demands from 
Congress. The Presidency cannot function with a Congressional TV 
surveillance camera at the White House.
                  EXECUTIVE ORDERS: THE WAR POWERS ACT
    The use of executive orders is almost as old as the republic. The 
first, issued by Thomas Jefferson, led to the Marbury v. Madison 
decision, which established the Supreme Court's power to decide the 
constitutionality of acts of Congress but left untouched another highly 
significant issue--the power of the President alone, by executive 
order, to take binding actions not expressly authorized by the 
legislature. It is a critical issue for the separation of powers, and 
although more than 13,000 executive orders have now been published, the 
issue has not been resolved to this day.
    When Congress passes and the President signs legislation expressly 
delegating some legislative power to the President, such as the power 
to make environmental or safety regulations, the courts have generally 
sustained the delegations. (But, as noted above, the Supreme Court 
overturned a more sweeping delegation, the Line Item Veto Act.) The 
separation of powers question arises in its most difficult form when 
Congress has delegated nothing, and the President relies on his own 
explicit or implicit powers. Two examples are President Truman's 
seizure of the steel mills during the Korean War and President Carter's 
suspension of court actions by U.S. nationals against the government of 
Iran; a third, the standoff over the War Powers Resolution, is treated 
separately below.
    In the steel case, the Supreme Court ruled against President 
Truman, noting that Congress had voted down a bill that would have 
delegated seizure power to him. In the Iranian case, the court upheld 
President Carter's order as a legitimate exercise of his foreign-policy 
powers. The issues created in these and other cases have been managed 
without significant damage to the principle of checks and balances. But 
the commission believes the War Powers Resolution creates a serious 
risk of such damage and that further steps should be taken to limit 
that risk.
    Born of American involvement in Vietnam, the War Powers Resolution 
reflects the legislature's desire to reassert its prerogatives in 
foreign affairs, which had been eroded by the Executive Branch over a 
long period. It is intended to deal with the modern reality that armed 
conflicts involving American troops abroad have become more commonplace 
and declarations of war have become rarer. The resolution requires the 
President ``in every possible instance'' to consult with Congress 
before committing armed forces to hostilities and keep consulting until 
they are no longer involved in hostilities or have been removed from 
the war zone.
    Although widely derided as unwise, unconstitutional or both, the 
resolution has never been subject to definitive Constitutional review. 
Presidents have ignored it when using force for short-term operations 
and sought approval for major operations such as the Gulf War without 
conceding that they need it. Congress has skirted confrontation as 
well. In any event, modern technology makes it impractical to apply the 
Wax Powers Resolution to the most important war decision of all, 
responding to a nuclear attack. Here the need for speed, not 
Presidential usurpation, has removed Congress from the equation. 
Similarly, the need for secrecy has made it impossible to consult large 
numbers of members of Congress in cases of hostage-rescue missions.
    Nevertheless, it remains true that Presidents cannot effectively 
exercise their shared powers to make foreign policy and to wage war 
without the cooperation of Congress, and in achieving such cooperation, 
as George Shultz said, ``trust is the coin of the realm.'' To build 
that trust, the next President and Congress would be well advised, 
before deploying armed forces, to consult the majority and minority 
leaders and the relevant committee leaders of both houses. Another 
possibility, the Commission believes, would be an agreement to amend 
the resolution to remove the generalized requirement to consult 
Congress, limiting the duty to consult to designated leaders, while at 
the same time repealing the probably unconstitutional requirement to 
withdraw American forces if Congress has not concurred within 60 days. 
In the complex world we inhabit today, no greater degree of 
Congressional consultation and involvement seems feasible.
                         COMMISSION MEMBERSHIP
    Howard H. Baker, Jr., co-chair, was United States senator from 
Tennessee from 1967 to 1985, and chief of staff in the Reagan 
administration. He practices law in the Knoxville, Tennessee firm of 
Baker, Donelson, Bearman & Caldwell, with offices in Washington, D.C.
    Griffin B. Bell, co-chair, was attorney general of the United 
States from 1977 to 1979. He is a senior partner in the law firm of 
King & Spalding in Atlanta.
    R.W. Apple, Jr. is chief correspondent of the New York Times. He 
has reported for the New York Times since 1963, writing from more than 
100 countries.
    Lloyd N. Cutler is Senior Counsel to the Washington law firm of 
Wilmer, Cutler & Pickering. He served as White House counsel for 
Presidents Carter and Clinton and was special counsel to President 
Carter on the ratification of the SALT II Treaty.
    William P. Barr served as Attorney General in the Bush 
Administration. He is senior vice-president of GTE, Inc.
    Andrew H. Card, Jr. is the president and chief executive officer of 
the American Automobile Manufacturers Association. He served in 
President Bush's cabinet as Secretary of Transportation.
    Lawrence S. Eagleburger was Secretary of State from 1992 until 
1993. He served in the Foreign Service for 27 years. In 1993, he joined 
the law firm of Baker, Worthington, Crossley, Stansberry and Woolf as 
Senior Foreign Policy Advisor.
    William Frenzel is a Guest Scholar at the Brookings Institution in 
Washington, D.C. During his 20 year tenure in the House of 
Representatives (R-Minn.), he served as ranking minority member of the 
House Budget Committee and was a member of the Ways and Means Committee 
and its trade subcommittee.
    Paul D. Gewitz is the Potter Stewart Professor of Constitutional 
Law at Yale University.
    Juanita Kreps is James B. Duke Professor of Economics and Vice 
President Emeritus, Duke University. She served as Secretary of 
Commerce in the Carter Administration.
    Daniel J. Meador is the James Monroe Professor of Law Emeritus at 
the University of Virginia. He served as Assistant Attorney General, 
Office for Improvements in the Administration of Justice, U.S. 
Department of Justice, from 1977 to 1979.
    Joshua I. Smith is the chairman and chief executive officer of 
MAXIMA Corp, a computer systems and management information products and 
services firm. He served as Chairman of the U.S. Commission on Minority 
business Development under the Bush Administration and was a member of 
the Executive Committee of the 1990 Economic Summit of Industrialized 
Nations.
    Sander Vanocur was a television journalist and commentator. He is 
presently host of ``Movies in Time'' on the History Channel.
    William Webster is a senior partner with Milbank, Tweed, Hadley & 
McCloy, in Washington, D.C. He served as the director of the FBI from 
1978 until 1987 and of the CIA from 1987 until 1991. From 1973 until 
1978, he served as judge, U.S. Court of Appeals.
    Kenneth Thompson, the Commonwealth Professor of Government and 
Foreign Affairs at the University of Virginia, served as Commission 
coordinator. During his tenure as Director of the Miller Center from 
1979 to 1998, he established the National Commissions program as a way 
to fulfill a key Miller Center mission: to examine and improve the 
American presidency. He is currently Resident Scholar at the Miller 
Center.

                     LETTER FROM CURTIS E. VON KANN

               J.A.M.S Endispute (Just People Just Results)

                                                      March 1, 1999

Honorable Arlen Specter
United States Senate
Committee on Governmental Affairs
Washington, D.C.

    Dear Senator Specter: At last week's hearing, you and I were voices 
crying in the wilderness in support of a fixed time limit for 
Independent Counsel investigations. The principal stated objection was 
that, through obstructionist tactics, subjects might stymie the 
investigation while the clock was running out. After the hearing, it 
occurred to me that there is an easy answer to this objection, namely, 
to provide that the time limit will be tolled during the period when 
any court is considering a motion to enforce a subpoena or otherwise 
deal with obstructions. Thus, I hope you will continue to press for 
inclusion of some time limit in any revised Independent Counsel Act.
    I should add that, while I favor enactment of a modified 
Independent Counsel statute in the reasonably near future, there is 
great merit in Senator Baker's suggestion of a ``cooling off'' period. 
Present passions (inflamed more by recent controversial decisions of a 
few key players, which can happen under any scheme, than by incurable 
flaws in the Act) make some want to ``chuck the whole thing'' rather 
than engage in the thoughtful, objective cost-benefit analysis of 
weighing the advantages of a statute, which sets procedures and 
standards and strikes a careful balance between competing 
considerations, against the advantages of no statute at all. Such an 
analysis may well be better undertaken a year from now than in the rush 
to June 30, 1999.

            Very truly yours.
                                 Curtis E. von Kann
                                 Former Independent Counsel
PREPARED STATEMENT BY U.S. REPRESENTATIVE JAY DICKEY, FROM THE STATE OF 
                                ARKANSAS
    Mr. Chairman: Thank you for allowing my statement and bill, H.R. 
117, The Independent Counsel Reform and Accountability Act of 1999, to 
appear in the February 24, 1999, Senate Governmental Affairs hearing 
record.
    I re-introduced the Independent Counsel Reform and Accountability 
Act (H.R. 117), in the U.s. House of Representatives, on January 6, 
1999. After careful consideration, I re-introduced this bill because I 
believe that the basic concept of the independent counsel is necessary.
    However, under the guidelines of the current independent counsel 
statute, there is no accountability and the guidelines are far too 
broad.
    My bill, H.R. 117, attempts to correct the problems by making 
substantial, needed changes to the current statute. This bill will 
provide Congress with a more reasonable statute to consider when a vote 
on re-authorization of the Independent Counsel Statute comes to a head.
    Mr. Chairman, this Congress must find an alternative to the current 
statute or let the independent counsel statute expire altogether.
    Mr. Chairman, once again, thank you for allowing my statement and a 
copy of H.R. 117 to be included in the record.
    [The copy of H.R. 117 follows:]
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 QUESTIONS AND ANSWERS FOR CURTIS EMERY VON KANN FROM SENATOR LIEBERMAN
    1. Question: The announcement of an investigation, like an 
indictment, is tantamount to a conviction in the minds of many people, 
despite the fact that in thirteen of the twenty independent counsel 
investigations, no indictments were returned. How was it possible for 
you to conduct your inquiry without leaks or press attention? What 
guidance or recommendations can you make to this Committee to assure 
the integrity of independent counsel investigations and the privacy of 
the individuals involved?

          Answer: Because the allegations concerning Mr. Segal had 
        received no publicity, the Attorney General requested that my 
        appointment be made under seal; the Special Division complied 
        with that request and issued its November 27, 1996 order of 
        appointment under seal. For the next eleven months, our 
        investigation proceeded under seal, with no publicity and no 
        inquiries from the media. In October 1997, under circumstances 
        still unknown to me, someone did leak to the press that Eli 
        Segal was the subject of an Independent Counsel investigation; 
        thereafter, a number of news accounts appeared, some containing 
        significant inaccuracies. I determined that the reasons for 
        keeping the matter under seal had evaporated; I moved the Court 
        to lift the seal, Mr. Segal did not oppose the motion, and it 
        was granted.
          Accordingly, my efforts to protect the privacy of Mr. Segal 
        and others involved in our investigation were only partly 
        successful.
          As to recommendations, I would offer three:

          (1) Unless there has been significant publicity concerning 
        the matters to be investigated, Independent Counsel 
        appointments should be made under seal. This will increase the 
        ability of the Independent Counsel and his/her staff to insist 
        on confidentiality in dealing with witnesses; will greatly 
        diminish the chances of the media becoming aware of the 
        investigation; and will provide greater likelihood--although no 
        guarantee--that the investigation may be concluded without any 
        publicity.
          (2) I would consider making it a Federal criminal offense, 
        punishable by substantial fine or imprisonment, for anyone to 
        leak information to the media concerning an Independent Counsel 
        investigation known to be under seal.
          (3) I suggest that, if the requirement of a final report is 
        retained in the Independent Counsel Act, the report should 
        refer to individuals (and corporations) other than the subject 
        only by generic description (for example, ``a manager in the 
        contracting office of a corporate donor'') and not by name. 
        This was the mode of identification utilized in my final 
        report.

    2. Question: What criteria would you establish for the selection of 
independent counsels?

          Answer: I don't believe that one can devise formal selection 
        criteria for Independent Counsels which will significantly 
        increase the chances of good appointments, any more than one 
        could devise such criteria for selection of good judges, 
        attorneys general, or senators. Individual qualities of 
        judgment, discretion, wisdom, and efficiency are much more 
        important than any litmus test of particular qualifying 
        criteria.
          For example, I do not believe it is appropriate to require 
        that all Independent Counsel have served as prosecutors in the 
        past. Some of the most successful independent counsel have not 
        had such prior employment experience. One can always hire, as 
        deputy independent counsel and staff attorneys, persons with 
        prosecutorial experience. Indeed, some observers of the 
        Independent Counsel Act believe that, since an Independent 
        Counsel staff of zealous prosecutors may sometimes need to be 
        reined in, one who has served as a criminal defense counsel (as 
        Jacob Stein has) or a trial judge (as I have) may have the 
        better perspective for serving as an Independent Counsel than a 
        former prosecutor.
          In short, I would not favor mechanistic criteria (e.g., 
        ``must have been a prosecutor,'' ``must have practiced law for 
        at least 20 years,'' etc.). Rather, I would formulate the 
        criteria more broadly (e.g., ``the individual appointed shall 
        have obtained--as prosecutor, defense counsel, or trial judge--
        substantial criminal law experience and shall have the 
        judgment, wisdom, temperament, and discretion to carry out the 
        investigation expeditiously, fairly, and with due regard for 
        the rights of all affected persons'') and would leave it to the 
        selection process to identify candidates of the highest 
        caliber.\1\
---------------------------------------------------------------------------
    \1\ As indicated in my testimony before the committee, I like Lloyd 
Cutler's suggestion that each President submit to the Senate the names 
of ten or fifteen people who, upon confirmation, would constitute the 
panel from which future Independent Counsels would be chosen.

    3. Question: With respect to both setting up an office and 
conducting the investigation, is the lack of formal support from the 
Justice Department a weakness, or could it impair the independence of 
the investigation? While not involved in Jacob Stein's investigation of 
Edwin Meese, you worked in the same office and saw how he organized his 
effort, and you hired an attorney with previous experience in an 
independent counsel investigation as a member of your staff. How vital 
---------------------------------------------------------------------------
is such ``institutional memory'' to an investigation?

          Answer: As to Justice Department support, I believe the 
        present balance--in which the Independent Counsel can avail 
        himself or herself of whatever assistance may be desired from 
        DOJ but may also choose to operate completely independent of 
        DOJ--is about right. I received complete cooperation from DOJ 
        and the FBI when I asked for it but experienced no interference 
        or intrusion into my independence.
          ``Institutional memory'' does seem to me a valuable asset 
        which can probably be fostered in two ways. On an informal 
        level, those who receive Independent Counsel appointments are 
        well advised to include prior Independent Counsel experience on 
        their staff and/or to consult with prior Independent Counsels 
        for their insights. On a more formal level, the Administrative 
        Office of the U.S. Courts has an Independent Counsel Support 
        Section whose staff provides each new Independent Counsel with 
        an orientation briefing and a handbook of useful materials and 
        are available to answer any administrative questions which may 
        arise.
          One kind of support which would be welcome is an office, 
        within the Administrative Office of the U.S. Courts or the 
        Justice Department, to handle the administrative winding up of 
        an Independent Counsel Office--principally the archiving of 
        files and awaiting a final GAO audit (which are currently 
        performed only for the six months ending March 31 and the six 
        months ending September 30). Indeed, it might be wise to 
        require that, whenever an IC Office advises GAO that it has 
        completed all operations and is ready for final audit, GAO 
        would audit that office with 30 days of such notice rather than 
        waiting for up to six months for the next periodic audit cycle 
        to roll around.
  QUESTIONS AND ANSWERS FOR JUDGE BELL AND SENATOR BAKER FROM SENATOR 
                                CLELAND
    1. Judge Bell, having served as Attorney General, do you believe 
that the statutory authority granted to Attorney Generals to appoint 
special counsels outside the Department of Justice to investigate 
matters in the public interest is sufficient to conduct investigations 
of high government officials should we choose not to reauthorize the 
Independent Counsel statute? If not, why?

          Answer: Yes. Such was sufficient in the case of the Teapot 
        Oil scandal, Watergate and the Carter Warehouse investigation.

    2. To Judge Bell and/or Senator Baker: I understand the national 
Commission on Separation of Powers, which you co-chaired, recommends a 
new statute that would provide that when the President, Vice President, 
or Attorney General are involved in a criminal investigation, the 
Attorney General is to be recused and appoint outside counsel or a 
qualified Department of Justice official to investigate. But what 
procedure would you use to investigate the other high office holders 
currently covered under the Independent Counsel statute who have 
committed alleged wrongdoing?

          Answer: The procedure should be the same. The Attorney 
        General, in this situation, should appoint a special counsel 
        from inside or outside of the Department of Justice to 
        investigate allegations of wrongdoing.

    3. To Judge Bell and/or Senator Baker: Although the National 
Commission on Separation of Powers, which you co-chaired, concludes 
that there is no way of correcting the inherent absence of fairness 
from the procedure itself, assuming reauthorization of the Independent 
Counsel Act is inevitable, what do you believe are the most important 
amendments Congress should make to the statute?

          Answer: If the Independent Counsel Act were to be amended, I 
        would suggest that it be amended in several ways. First, the 
        coverage of the statute is much too broad, particularly Section 
        591(c). It is under that section that the Whitewater special 
        counsel has received jurisdiction over non-Federal persons, 
        rather than under Section 591(b), which includes the President 
        and other executive officers. Section 591(c) should be 
        eliminated, and Section 591(b) should be modified to include 
        only the president, Vice President, and Attorney General and 
        not the retinue of Federal officers now included.
          Section 592(a)(2), which restricts the Attorney General from 
        convening grand juries, issuing subpoenas, and so forth, needs 
        to be eliminated to give the Attorney General more discretion 
        to investigate allegations. This section puts blinders on the 
        Attorney General with respect to making the determination 
        whether to seek special counsel.
          The statute should also be amended to restrict the special 
        court in the selection of special counsel. The Court has total 
        discretion now and should be restricted to appointing counsel 
        as to whom there is no appearance of impropriety. A standing 
        panel nominated by these same judges and confirmed by the 
        Senate would let the public know in advance of the universe 
        from which special counsel might be selected.
          Finally, the requirement of a final report should be 
        eliminated.

    4. Judge Bell, you have also criticized the provision of 
the.statute requiring Independent Counsels to issue final reports. Some 
in Congress have suggested that eliminating that provision should be a 
possible amendment to the Act. What is your criticism of the final 
reporting requirement and why do you believe it is unnecessary?

          Answer: The final report by the special counsel is an example 
        of the lack of due process afforded the target by suggesting 
        guilt although there has been no indictment. A final report 
        would never be issued by the Department of Justice to an 
        ordinary person who was investigated but not indicted. A final 
        report is not necessary. It is quite enough to indict the 
        target, or close the investigation.

    5. To Judge Bell and/or Senator Baker: It is estimated the total 
cost of all 20 Independent Counsel investigations from 1979 through 
March 30, 1998, has been just under $150 million. Some have suggested 
moving the investigatory function of the Independent Counsel under a 
permanent division of the Department of Justice where career 
prosecutors or a full-time ``independent counsel'' could conduct these 
investigations to avoid some of the problems we have had with the 
statute and presumably would also keep costs of investigations down. Do 
you believe this would be a prudent alternative to our current 
independent counsel process?

          Answer: I do not. No such standing authority is needed, given 
        the small number of such investigations. The regular Justice 
        Department investigatory and prosecutorial procedures are 
        entirely adequate in most cases. I know this from actual 
        experience.
      LETTER FROM HOWARD H. BAKER, JR. ABOUT QUESTIONS AND ANSWERS
                                                       May 26, 1999
The Honorable Joseph Maxwell Cleland
United States Senate
Senate Dirksen Office Building
Washington, D.C. 20510

    Dear Senator Cleland: Thank you very much for your additional 
questions subsequent to my testimony before the Committee on the 
Independent Counsel Act. I have a copy of General Griffin Bell's reply 
dated May 10, 1999. I associate myself fully with those answers.
            Sincerely,
                               Howard H. Baker, Jr.



               THE FUTURE OF THE INDEPENDENT COUNSEL ACT

                              ----------                              


                        WEDNESDAY, MARCH 3, 1999

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Fred Thompson, 
Chairman of the Committee, presiding.
    Present: Senators Thompson, Collins, Cochran, Specter, 
Gregg, Lieberman, Levin, Akaka, Durbin, and Edwards.

             OPENING STATEMENT OF CHAIRMAN THOMPSON

    Chairman Thompson. Let's come to order, please.
    The Governmental Affairs Committee continues its hearings 
today on whether or how to reauthorize the Independent Counsel 
Act. We want to thank everyone for moving back and forth 
between hearing rooms with us. The media has asked us to use 
this room whenever we can. They have a greater ability to cover 
what we are doing, and we appreciate your operating on 
sometimes short notice as to where we are going to be having 
these hearings.
    The first panel will present a view on this subject never 
before considered by a committee reviewing this law, and that 
is the perspective of subjects of the Independent Counsel 
investigation and their attorneys; in fact, almost solely, I 
think, today from their attorneys.
    Ted Olson, who was going to be with us, is ill this morning 
and could not be with us. But as we go along, we might be able 
to refer to some of his comments in his testimony and 
submission to the Committee because I think he also has a 
valuable insight.\1\
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Olson appears in the Appendix on 
page 229.
---------------------------------------------------------------------------
    But, frankly, we have the advantage today of having with us 
five of the very best attorneys in the country, and we have the 
advantage through them of seeing how some of these things 
operate in the real world. We operate sometimes in a vacuum 
with regard to these things, but these gentlemen will be able 
to give us, I think, an insight that perhaps is all too rare.
    I know that when matters get very, very serious with an 
individual, they go to people who not only are the most clever 
or perhaps astute, but also people of great integrity whose 
judgment they rely upon. And such is the case with the five 
gentlemen we have here today. These gentlemen not only are 
fierce advocates for the cases that they have, but they are 
people who have proven that they are interested in having the 
best system, the best overall system, because it is the 
environment in which they live and the environment in which we 
all live. It has to do with our system of justice.
    My experience has been that the higher you go in terms of 
capability and integrity in the hierarchy in this legal system, 
the more these people are able to put aside their own political 
views, whatever they may be, and really look at things 
objectively. That is their life. That is what they are paid to 
do, is to analyze things objectively before they become 
advocates. So I think we are really fortunate in having these 
gentlemen here with us today.
    Obviously, no one is pleased to be the subject of any 
criminal investigation. It is important to recognize that 
Congress has given regular Federal prosecutors expansive powers 
in recent years, and that Independent Counsel also use these 
same powers. The witnesses on the first panel have experience 
both with standard Federal prosecutions and with Independent 
Counsel prosecutions. They will thus be able to provide the 
Committee with insight into any abuses that may appear only, or 
far more frequently, in Independent Counsel investigations than 
in standard Federal criminal prosecutions.
    The second panel consists of three individuals who 
prosecuted high-level government officials through other 
approaches other than the Independent Counsel Act. One witness 
did so as a standard Federal prosecutor within the Justice 
Department. A second witness was a special prosecutor appointed 
by the Attorney General, and removable at will. A third was a 
regulatory Independent Counsel, a term that we haven't heard 
used much. But there is a regulation on the books separate and 
apart from the Independent Counsel Act that allows the Attorney 
General to appoint a so-called regulatory Independent Counsel, 
rather than by a three-judge panel, terminable only for cause. 
So we will get to explore that a little bit today for the first 
time.
    So their testimony will benefit the Committee in 
considering what might be the advantages and disadvantages of 
adopting alternatives to the Independent Counsel Act and I look 
forward to their testimony.
    Senator Lieberman.

             OPENING STATEMENT OF SENATOR LIEBERMAN

    Senator Lieberman. Thank you very much, Mr. Chairman. I 
join you in welcoming the witnesses today, who are really an 
extraordinary group of attorneys and remind us why, in spite of 
ongoing public abuse, the legal profession is really a noble 
profession. At least I think it is, and I appreciate the work 
that these people have done pro bono at various times in their 
careers, as well as the extraordinary work they have done for 
which they have been compensated which has been of a high 
quality as well.
    I suppose that there are some people following news about 
Congress' consideration of the Independent Counsel Act who 
would wonder why we are proceeding with this hearings, I mean 
as if the patient has already died. So why are we still in the 
operating room? But it is too early to begin preparing 
eulogies, and rightfully so, in my opinion.
    Mr. Chairman, I do thank you again for both the seriousness 
with which you have put together this series of hearings, 
notwithstanding your own inclination as to what the outcome 
should be, and the fairness and openness with which you have 
involved both me and others on the Democratic side in this 
process.
    My reference to the news was, of course, I was disappointed 
yesterday to read the administration position, as stated by 
Deputy Attorney General Holder, to a House committee because it 
is a change of position from the position the administration 
took at its outset in 1993 and 1994 which was critical to the 
reauthorization of this counsel in 1994.
    I suppose beauty is in the eye of the beholder. The 
attractiveness or ugliness of the Independent Counsel office 
may depend on whether you are in power or not. We recall that 
the Republicans tended to be much less enthusiastic about 
renewing the Independent Counsel after the experience with 
Lawrence Walsh. And Democrats are much less inclined to renew 
the counsel after the experience with Kenneth Starr now.
    And I think what we are trying to do here is to learn from 
the experiences that we have had with these two Independent 
Counsel and a host of others who were less controversial and 
less visible, most of whom, incidentally, did not proceed to 
indict their targets. But most of all, not just to learn from 
this experience, but to try to transcend it, to go beyond it 
and look at the purpose for which this law was created in 1978.
    It is easy enough to find scars, or warts rather--scars on 
others and warts in the office. But we have to ask ourselves, 
what we do if we let it die and don't create something in its 
place, what is going to happen the next time there is a 
suspicion of criminal behavior by people at the top of our 
government? Are we and the public going to be satisfied with 
and have confidence in either the Justice Department itself or 
a special prosecutor appointed by the Attorney General, 
accountable to the Attorney General, removable by the Attorney 
General, being in charge of the investigation?
    So I suppose yesterday I was disappointed by Mr. Holder's 
testimony not just because of the change of the position, but 
because as I followed it, it seemed to me that one or two of 
his points went to the heart of the statute, but the rest of 
them were the kinds of criticisms that can be remedied with 
surgery as opposed to termination.
    So it is in that spirit of open-mindedness that I look 
forward to the testimony of this very fine panel of witnesses, 
whom I thank for giving us their time and thoughts. And, again, 
I thank you, Mr. Chairman, for the way you have led this 
effort.
    Chairman Thompson. Well, thank you, Senator Lieberman. I do 
think the natural tendency is for all of us to be kind of 
pushed to the extremes of our positions and for people who are 
searching for a bottom line to everything at all times, and we 
really shouldn't reach a bottom line yet. And you might be 
interested in knowing that with the growing popularity of the 
notion that we should abolish the law, I am beginning to 
reassess my own position on it.
    Senator Lieberman. That is good. You have a kind of 
reflexive orneriness about you, a kind of innate maverick that 
I was hoping would rise. Thank you.
    Chairman Thompson. Our first panel consists of two 
attorneys who have represented targets of Independent Counsel 
investigations. We were going to have an additional one, Mr. 
Olson, who himself was a target. I will not go through the long 
resumes that I could relate concerning these gentlemen. They 
are all extremely well-known, nationally known, tops in their 
profession. They have all served their government--both served 
their government. They have both been at distinguished private 
practices.
    Robert Bennett is, among his other endeavors, counsel for 
the President, counsel for Harold Ickes, was counsel for Caspar 
Weinberger. Nathan Lewin was former counsel to Attorney General 
Edwin Meese. Mr. Olson, whom I mentioned, was counsel for 
targets in the Clinton passport file investigation, as well as 
a subject himself, subject of an Independent Counsel 
investigation, whose case incidentally resulted in the Supreme 
Court decision in Morrison v. Olson.
    So, gentlemen, thank you for being here, and any 
preliminary statements that you might have.
    Mr. Bennett.

 TESTIMONY OF ROBERT S. BENNETT, SKADDEN, ARPS, SLATE, MEAGHER 
                            AND FLOM

    Mr. Bennett. Good morning, Senator Thompson and Members of 
the Committee. My name is Robert Bennett and I am a partner in 
the Washington office of Skadden, Arps, Slate, Meagher and 
Flom, and I want to thank Senator Thompson and the Committee 
for inviting me here to express my views about a statute which 
I feel very strongly about and with which I have had, frankly, 
a great deal of experience.
    I and my firm have represented both targets and witnesses 
in many, many Independent Counsel investigations. As the 
Chairman noted, I personally represented Caspar Weinberger in 
connection with the investigation of Lawrence Walsh, and 
currently, as you know, represent President Clinton. In 
addition, I have served as special counsel to the Senate Ethics 
Committee in three investigations--the Harrison Williams 
investigation, the David Durenberger investigation, and the so-
called Keating Five investigation. Also, in my earlier life, I 
learned what a magnificent lawyer Chairman Thompson is when we 
both served as consultants to the Senate Foreign Relations 
Committee regarding the appointment of Alexander Haig as 
Secretary of State.
    Before going into private practice, I was a Federal 
prosecutor, serving here in the District of Columbia. And I 
believe that with this range of experience, I have some insight 
into the functioning and the flaws of the Independent Counsel 
Act.
    Can this statute be saved? I have come to the view that it 
cannot and that it should not be reenacted, although I should, 
in the spirit of full disclosure, tell you I have not always 
held this view. Several years ago, I felt that it was necessary 
for public acceptability to have such a statute, although even 
then I thought it was necessary to make some substantial 
changes.
    I am no longer of that view. I believe there is no perfect 
answer. There is no possibility of having total independence, 
but that on balance we should allow this statute to lapse. I 
believe that the last few years have made it very clear that 
the act has simply failed to fulfill its purpose and I don't 
think it should be reenacted in any form.
    First of all, rather than freeing prosecutorial discretion 
from political bias, the act has yet become another weapon, 
indeed a nuclear weapon, in the arsenal of partisan politics. 
Partisan politics affects every phase of the Independent 
Counsel Statute, every step of the process. The very first call 
for an Independent Counsel, the decision to make a referral, 
the court's choice of Independent Counsel, the conduct of the 
investigation by the Independent Counsel once appointed--every 
step has become an opportunity for one side or the other to cry 
political foul.
    When I was representing Mr. Weinberger, the cries of 
political foul came from one side, and now the cries of 
political foul come from the other. We could argue for days 
about who is to blame for this, but I sense that there is 
plenty of blame for all to share. But, to me, the bottom line 
is this: The public now views the Independent Counsel Statute 
as largely a political process, and this has not only 
undermined respect for the Department of Justice, but it has 
also led to disrespect for Congress, who many believe are 
willing to interfere with impartial law enforcement for the 
sake of partisan gain.
    Rather than ensuring that public officials are not treated 
with kid gloves, the Independent Counsel Act has become a 
vehicle for subjecting them and those around them to a 
seemingly perpetual scrutiny more intense than any private 
citizen would have to endure. The mere appointment of an 
Independent Counsel puts the scandal machine, which has caused 
so much damage to both sides of the political aisle, in 
overdrive.
    And rather than being invoked in limited and extraordinary 
instances, the act is structured in such a way and has been 
interpreted by the courts in such a way as to give Independent 
Counsel ever-expanding jurisdiction. This has resulted in the 
prosecution of peripheral individuals, some of whom have never 
held public office or who have never had any dealings 
whatsoever with the public figure who is supposed to be the 
target of the Independent Counsel, and for matters which would 
normally not subject anyone to prosecution.
    Moreover, any benefits to be derived from the act are 
outweighed, I believe, by the costs imposed on our society. 
These costs include the corrosion of public confidence in our 
justice system, the erosion of the separation of the powers, 
incursions into the rights of individuals in and out of public 
office. And perhaps most troubling, I strongly believe that it 
is the act and its accompanying scandal mentality that are 
discouraging some of the very best and brightest people from 
entering government.
    The Independent Counsel concept is of no benefit anymore 
and the act should be scrapped. It should be allowed to die. It 
cannot be fixed. All the proposed fixes will make it more 
complicated and unwieldy, and will raise as many questions as 
they solve. And I would go even further, and perhaps I should 
say at this point I want to make it clear that I don't speak on 
behalf of the President, on behalf of Mr. Weinberger, or on 
behalf of any other client.
    But I would propose that once this act is allowed to lapse, 
all currently active Independent Counsel investigations should 
be referred back to the Public Integrity Section of the 
Department of Justice, which can assess all pending 
prosecutions and investigatory leads and determine which to 
abandon and which to pursue. They should be brought back within 
the Department of Justice budgetary system and under the 
auspices of the Department of Justice guidelines. These cases, 
if need be, can be referred to a Leon Jaworski-type special 
prosecutor within the Department of Justice framework, and if 
the Attorney General decides the current Independent Counsel 
can be retained to continue their work.
    Former Attorney General Edward Levi was able to spot the 
problems with the Independent Counsel Act two decades ago. 
While I didn't agree with all of his testimony, I agree with 
this. He said very prophetically that the act would create 
opportunities for actual or apparent partisan influence in law 
enforcement; publicize and dignify unfounded, scurrilous 
allegations against public officials; result in the continuing 
existence of a changing band of multiple special prosecutors; 
and promote the possibility of unequal justice. Senators, we 
should have listened to Attorney General Levi.
    Some of the act's fundamental flaws are well-known to this 
Committee--the lack of deadlines for completing an Independent 
Counsel investigation, the limitless resources available to an 
Independent Counsel, the fact that an Independent Counsel has 
only one case to pursue. Senators, in over 30 years of 
practice, I have, for present purposes, learned one lesson that 
is more important than any others. Beware of the lawyer with 
one case, who has an endlessly deep pocket to finance it, and 
no time limit in which to get the job done.
    While I am vigorously opposed to the reenactment of the 
statute in any form, I would urge this Committee to at least 
conduct some radical surgery. Senator Lieberman mentioned 
surgery should you decide to renew it. Well, hopefully, if you 
do that, make it radical surgery if it is to continue in any 
form. And I thought perhaps I could be most helpful to the 
Committee to give you a list of things which I think have to be 
changed and which go to the core of the practical problems 
which I face day in and day out in dealing with these 
Independent Counsels.
    The overarching point to me, is that if you are to reenact 
the statute, you somehow have to bring the Independent Counsel 
within the Department of Justice budgetary system and under the 
auspices of DOJ guidelines.
    Second, any act should be limited in application only to 
the President, Vice President and Attorney General. And no 
discretionary authority is needed, in my opinion, because 
existing government ethics regulations already require the 
Attorney General to recuse herself when she has an actual 
personal or financial conflict of interest.
    Third, any renewed act should be invoked only in connection 
with charges of felony-level offenses that occurred while the 
target held public office. You should not permit an Independent 
Counsel to have a hunting license to pursue a covered official 
in all aspects of his or her past life.
    Four, preliminary inquiries should not have artificial 90-
day deadlines.
    Fifth, the Attorney General should be authorized to issue 
subpoenas and use a grand jury during the preliminary inquiry 
phase. I would agree, if reenacted, the Attorney General should 
not be able to give immunity to witnesses.
    Sixth, the standard for referring a matter to an 
Independent Counsel should be probable cause or, at a minimum, 
a rational basis to believe that a felony has occurred. The 
requirement that a referral must be made if further 
investigation is warranted should be eliminated. The burden 
should always be on the government to affirmatively establish 
some quantum of evidence to go forward with an Independent 
Counsel investigation.
    Seventh, the act should make explicit that Independent 
Counsel's jurisdiction is to be strictly construed and should 
not be expanded beyond that which is necessary to prosecute 
obstruction and perjury in connection with its original 
jurisdiction.
    Eighth, each Independent Counsel investigation should have 
a deadline and a budget stated in the jurisdictional referral. 
It should be part of the Attorney General's mandate to set a 
deadline and a budget which in his or her judgment is 
reasonable to complete the investigation, given the nature of 
the referral. If an Independent Counsel determines that he or 
she will need more time or money, they can apply to the special 
division of the court.
    Nineth, Independent Counsels should be selected from a 
preexisting roster of highly qualified professional prosecutors 
or former prosecutors, those who are used to using the enormous 
power of law enforcement and the power of prosecution. And 
these lists should be compiled ahead of time by the Department 
of Justice based on names solicited from sources such as the 
American Bar Association, the U.S. District Courts and the U.S. 
Attorneys offices throughout the country.
    The appointment should not be made because someone seeks 
the job or because a well-placed friend recommends him or her 
to a judge on the special division. I think an interesting area 
of inquiry of this Committee would be to determine just how 
some of the Independent Counsels have been selected. I would 
suggest to you that you would find that it was not always done 
in an objective and impartial way but very often it is someone 
who seeks the job.
    Tenth, a significant percentage of an Independent Counsel's 
staff should be required to be highly experienced career 
prosecutors. Perhaps career prosecutors in the Public Integrity 
Division should be regularly assigned to staff Independent 
Counsel investigations.
    Eleventh, an Independent Counsel should be required to, for 
all practical reasons, give up his or her private practice 
until the investigation is completed.
    Twelveth, there should be no requirement that an 
Independent Counsel issue a final report, and all who are 
appointed should agree not to write books about their 
investigation. Reports and books serve no prosecutorial purpose 
and only further politicize the process and tarnish the 
reputations of individuals whom the Independent Counsel may 
have chosen not to prosecute. Moreover, the report-writing 
requirement increases the cost of investigation because they 
cause Independent Counsels to pursue aspects or details of 
investigations which have little investigatory value, but only 
serve the purpose of protecting the Independent Counsel from 
future criticism and placing him or her in a favorable 
historical light.
    Thirteenth, there should be no requirement that the 
Attorney General report to Congress on why he or she chose not 
to refer a matter to an Independent Counsel. In the current 
law, the Attorney General must do so if she declines to make a 
referral that was initiated by a request from the majority of 
members of either party on the Judiciary Committee. This simply 
creates opportunities to use the Independent Counsel Act as a 
weapon in partisan politics, and subverts well-established and 
warranted rules concerning the secrecy of criminal 
investigations.
    Fourteenth, Independent Counsels should be clearly required 
to follow DOJ policy and guidelines, except for those that 
require approval of the Attorney General or other high-ranking 
DOJ officials. Witnesses, subjects and targets of Independent 
Counsel investigations should be recognized in the statute as 
having standing to enforce this requirement.
    Fifteenth--and this is my final one--the Attorney General 
should be authorized to remove or discipline an Independent 
Counsel for good cause, including a failure to follow DOJ 
guidelines or a violation of ethical rules applicable to 
prosecutors. The procedures for removing an Independent Counsel 
and who should conduct investigations of Independent Counsels 
should be spelled out in the statute or regulation. There is no 
need to fear that an Attorney General will use this authority 
improperly. Congressional oversight and the news media will see 
to that.
    Mr. Chairman, Members of the Committee, we do not need an 
act such as the Independent Counsel Act. In the passion that 
followed the Watergate scandal, it seems that the country and 
Congress may have ignored the most obvious lesson of Watergate. 
The system worked. Despite the Saturday Night Massacre, a 
special counsel, appointed within the existing Justice 
Department structure and regulations, was able to pursue the 
most serious charges against the highest officer in the land.
    President Nixon did not shut down the prosecution by firing 
Archibald Cox. A free press and firm Congress would not permit 
him to do that. In the end, he turned over the tapes and 
resigned. There is every reason now to revert back to that 
structure. Outside the Independent Counsel Act, there still 
exists mechanisms which an Attorney General can use in the 
extraordinary case to appoint a special counsel who cannot be 
fired except for cause, but who otherwise would operate within 
the Justice Department.
    The practical reality is that there could never be a cover-
up of a serious crime by a President or other high-ranking 
official. Congressional oversight, an aggressive press, and 
professional prosecutors and agents would blow the whistle on 
any such attempt. The Independent Counsel Act is simply not 
needed.
    I very much appreciate the opportunity to come here today 
and to express my views. Thank you very much.
    [The prepared statement of Mr. Bennett follows:]

                PREPARED STATEMENT OF ROBERT S. BENNETT
    Good morning Senator Thompson and Members of the Committee. My name 
is Robert S. Bennett, and I am a partner in the Washington office of 
Skadden, Arps, Slate, Meagher and Flom. I want to thank Senator 
Thompson and the Committee for inviting me to present my views on the 
Independent Counsel Act, about which I feel very strongly, and with 
which I have had much experience. My comments today are my own views 
and I do not speak for the President nor any other client.
    I and my firm have represented both targets and witnesses in 
Independent Counsel investigations. We have represented Republicans and 
Democrats, public officials and corporations involved in Independent 
Counsel investigations. These included Caspar Weinberger, the former 
Secretary of Defense in the Reagan administration; Harold Ickes, former 
White House Chief of Staff; and of course, President Clinton. 
Additionally, I served as special counsel to the Senate Ethics 
Committee in three investigations: the Harrison Williams investigation; 
the David Durenberger investigation; and the so-called ``Keating Five'' 
investigation. Before going into private practice, I was a Federal 
prosecutor, serving in the District of Columbia as an Assistant U.S. 
Attorney. I believe this range of experience gives me some insight into 
the functioning, and the flaws, of the Independent Counsel Act.
    Can this statute be saved? I have come to the view that it cannot, 
and should not be re-enacted. I did not always hold this view. Several 
years ago I felt that it was necessary for public acceptability to have 
such a statute although even then I thought it necessary to make 
substantial changes.
    However, as events over the last few years have made clear, the act 
has failed to fulfill that purpose and I believe it should not be re-
enacted in any form: * Rather than freeing prosecutorial discretion 
from political bias, the act has become yet another weapon--indeed, a 
nuclear weapon--in the arsenal of partisan politics. * Rather than 
ensuring that public officials are not treated with kid gloves, the 
Independent Counsel Act has become a vehicle for subjecting them, and 
those around them, to seemingly perpetual scrutiny more intense than 
any private citizen would have to endure. The mere appointment of an 
Independent Counsel puts the scandal machine in overdrive. * And rather 
than being invoked in limited and extraordinary instances, the act is 
structured in such a way, and has been interpreted by the courts in 
such a way, as to give Independent Counsels ever-expanding 
jurisdiction. This has resulted in the prosecution of peripheral 
individuals--some of whom have never held public office or have never 
had any dealings whatsoever with the public figure who is supposed to 
be the target of the Independent Counsel--for matters which would 
normally not subject anyone to prosecution.
    Former Attorney General Edward Levi was able to spot the problems 
with the Independent Counsel Act two decades ago--before any 
Independent Counsel had even been appointed under the act. In testimony 
he gave before the House Judiciary Committee in 1976, when the act was 
first proposed, he warned that it would create opportunities for actual 
or apparent partisan influence in law enforcement; publicize and 
dignify unfounded, scurrilous allegations against public officials; 
result in the continuing existence of a changing band of multiple 
Special Prosecutors; and promote the possibility of unequal 
justice.Senators, we should have listened to Attorney General Levi.
    Some of the act's fundamental flaws are well-known to this 
Committee--the lack of deadlines for completing an Independent Counsel 
investigation, the limitless resources available to an Independent 
Counsel, the fact that an Independent Counsel has just one case to 
pursue. Senators, beware of a lawyer with one case who has an endlessly 
deep pocket to finance it and no time limit in which to get the job 
done. As Justice Scalia stated in his now-prescient dissent in Morrison 
v. Olson, ``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.''
    I believe these problems will be well canvassed by the other 
witnesses before the Committee. The Committee also, no doubt, is 
hearing from legal scholars who will discuss the separation of powers 
and other constitutional concerns posed by the Independent Counsel 
regime. I hope today to provide the Committee with some practical 
insight into how the act actually functions, based on my experience 
representing individuals who have come within its purview. From this 
practical perspective, I have concluded that the act is fatally flawed.
    The first flaw is the hair-trigger provision for activating an 
Independent Counsel investigation. The act requires the Attorney 
General to appoint an Independent Counsel at the end of a preliminary 
investigation if he or she concludes there are ``reasonable grounds to 
believe that further investigation is warranted.'' Further, the 
Attorney General cannot avoid the appointment of an Independent Counsel 
unless there is ``clear and convincing evidence'' that the target 
lacked criminal intent. At the same time, the act precludes the 
Attorney General from using basic investigative tools--such as 
subpoenas, a grand jury, grants of immunity--to develop evidence that 
might exonerate the covered person. Thus, proving a negative, which is 
hard enough in itself, becomes nearly impossible.
    This system is repugnant to the rights of the individual who is the 
subject of a preliminary inquiry. First, it is counter to one of the 
most basic tenets of our jurisprudence--that you are presumed innocent 
until proven guilty. Indeed, this reverse burden of proof has a very 
real impact on the rights of the targeted public official. He 
effectively has no choice but to forego his constitutional right to 
remain silent in the face of a preliminary inquiry, because if the 
target does not submit to a voluntary interview with DOJ prosecutors, 
the Attorney General will be forced to conclude that further 
investigation is warranted. On the other hand, if the target does 
cooperate, and an Independent Counsel is appointed nonetheless, his 
statements to prosecutors in the preliminary inquiry can be used 
against him by the Independent Counsel.
    We ask our public officials to make numerous sacrifices in order to 
enjoy the privilege of public office. But sacrificing basic 
constitutional protections is, I respectfully submit, too high a price 
to ask of anyone. Certainly none of you would welcome being put to that 
choice.
    Notwithstanding this Hobson's choice, it is very telling that most 
defense counsel advise their clients to submit to a voluntary interview 
in the hope of avoiding an Independent Counsel. This is because no 
responsible defense counsel that I know of would choose to have his or 
her client investigated by an Independent Counsel rather than the 
Department of Justice. That fact speaks volumes about the Independent 
Counsel Act. It says that the act has failed in one of its most 
important missions--to provide equal justice under the law, regardless 
of status.
    Pursuant to the act, an Independent Counsel in theory is to provide 
the same ``justice'' as would the Department of Justice; the only 
aspect that is supposed to be different is that an Independent Counsel, 
not the Attorney General, is the final arbiter of prosecutorial 
discretion. To this end, the act provides that an Independent Counsel 
is to follow established Justice Department policy and guidelines. 
Indeed, the Supreme Court in part relied on this provision when it 
upheld the constitutionality of the act in Morrison v. Olson. In 1994, 
after the Morrison decision, Congress attempted to fortify this 
requirement further, by providing that deviations from DOJ policy would 
be tolerable only if applying DOJ policy would be inconsistent with the 
purposes of the act. The legislative history makes clear that the only 
deviations Congress had in mind were in cases where DOJ policy required 
a prosecutor to get approval from the Attorney General or another DOJ 
official before acting.
    The reality is, however, that Independent Counsels often do not 
follow Department guidelines. The reality is that any individual who 
becomes entangled in an IC investigation--even private peripheral 
actors as well the target public official--are treated much more 
harshly at the hands of an Independent Counsel than they would be by 
the Department of Justice. And unlike a normal DOJ prosecution--where a 
prosecutor has numerous senior and more broadly experienced superiors 
with whom to consult, and where a target of any investigation can take 
steps to ensure that a prosecutor's decision-making is reviewed by such 
experienced people--there are no such resources available in an 
Independent Counsel investigation. There is no one to appeal to. We 
have placed the enormous law enforcement power of the Executive branch 
in the hands of a single individual who for both political and 
practical reasons is unaccountable, unchecked and who cannot 
meaningfully be challenged.
    Most troubling, recent court decisions have rendered this 
requirement--the requirement that Independent Counsels follow 
Department guidelines--unenforceable. In this regard, I draw the 
Committee's attention to the case of Ronald Blackley, issued a month 
ago by the U.S. Court of Appeals for the District of Columbia. Mr. 
Blackley was Chief of Staff to Agriculture Secretary Michael Espy. He 
was prosecuted by the Espy Independent Counsel not for anything he did 
in connection with the allegations that Mr. Espy improperly accepted 
gifts. Indeed, Mr. Blackley was not even called as a witness at Mr. 
Espy's trial.
    Mr. Blackley was prosecuted for failing to disclose $22,000 on his 
financial disclosure form. Yet, the Department of Justice had a policy 
not to subject persons to criminal sanctions for such non-disclosure 
unless it could be proved that the undisclosed income came from an 
illegal source, and the Department of Justice had previously 
investigated Mr. Blackley and had declined to prosecute. There thus was 
clear evidence that prosecuting Mr. Blackley on this basis would be 
contrary to DOJ policy. Nonetheless, the Independent Counsel prosecuted 
Mr. Blackley, and he was convicted. On appeal, the D.C. Circuit held 
that an individual convicted by an Independent Counsel had no standing 
to enforce the act's requirement that the Independent Counsel follow 
DOJ guidelines. The only remedy for a failure to follow such 
guidelines, the Court said, was for an Independent Counsel to explain 
his failure to do so in his final report.
    This decision guts Congress's already limited efforts to reign in 
Independent Counsels and to ensure that they do not provide uneven 
justice. Ironically, Mr. Blackley was sentenced to 27 months in prison, 
while Mr. Espy was acquitted. The Espy Independent Counsel, displayed 
further disregard for the role of the prosecutor in our system when he 
indicated after Mr. Espy's acquittal that ``the actual indictment of a 
public official may, in fact, be as great a deterrent as a 
conviction.''
    Two other statutory provisions aimed at restraining an Independent 
Counsel have likewise proven to be toothless tigers. One is the 
requirement that each Independent Counsel periodically submit reports 
to the Special Division--the panel of judges who oversee IC 
appointments. Judge David Sentelle of the Special Division said in a 
recent speech that when he receives these reports, he just sticks them 
in a file. As quoted in an article in the February 22 Legal Times, 
Judge Sentelle said he has no idea why the statute requires Independent 
Counsels to file such reports, inasmuch as ``it gives us no duties, no 
authority and no responsibility with regard to that report.'' Even if 
he thought the report disclosed ``the worst behavior in the world,'' 
Judge Sentelle honestly observed, ``I couldn't do a thing about it.''
    The final, and perhaps most significant, statutory effort to 
control out-of-control Independent Counsels has proved especially 
problematical. That is the provision that permits the Attorney General 
to remove an Independent Counsel for good cause. The act does not lay 
out procedures for how an Attorney General is to determine whether good 
cause exists for removing an Independent Counsel; nor does it explain 
who is to investigate an IC, and whether discipline short of removal 
may be invoked. Right now, we have the DOJ, Independent Counsel Ken 
Starr, and the Special Division engaged in a dispute over how to 
investigate allegations against the Independent Counsel. This 
provision, moreover, has only turned into another opportunity to inject 
partisan attacks into the process. The upshot may be the appointment of 
an Independent Counsel to investigate an Independent Counsel! Where 
will it end?
    I have come to the conclusion that we do not need an Independent 
Counsel Act. In the passion that followed the Watergate scandal, it 
seems the country and Congress may have ignored the most obvious lesson 
of Watergate: the system worked. Despite the Saturday night massacre, a 
special counsel, appointed within the existing Justice Department 
structures and regulations, was able to pursue the most serious charges 
against the highest officer in the land. President Nixon did not shut 
down the prosecution by firing Archibald Cox. A free press and firm 
Congress would not permit him to do that. In the end, he turned over 
the tapes and resigned.
    There is every reason now to revert to that structure. Outside the 
Independent Counsel Act, there still exist mechanisms which an Attorney 
General can use in the extraordinary case to appoint a special counsel 
who cannot be fired except for cause, but who otherwise would operate 
within the Justice Department. The practical reality is that there 
could never be a cover-up of a serious crime by a President or other 
high-ranking official. Congressional oversight, an aggressive press, 
and professional prosecutors and agents would blow the whistle on any 
such attempt. The Independent Counsel Act simply is not needed.
    Moreover, any benefits to be derived from an Independent Counsel 
regime are outweighed by the costs it imposes on our society. These 
costs include the corrosion of public confidence in our justice system; 
the erosion of the separation of powers; and incursions into the rights 
of individuals in and out of public office. Perhaps most troubling, I 
strongly believe, is that the act and its accompanying scandal 
mentality are discouraging the best and brightest from serving in 
government.
    On the other side of the ledger, I no longer see any benefit to 
having an Independent Counsel Act. The justification for the act was 
never, in my mind, that the Department of Justice could not be trusted 
to vigorously pursue investigations into politically important people. 
To the contrary, it has always been my experience, both in and out of 
government, that the professional prosecutors of the Federal Government 
are thorough, fair and impartial no matter who is the target of their 
investigation. For example, during a Democratic administration, the 
Department did not shrink from prosecuting Congressman Rostenkowski, 
arguably the most powerful Democrat in Congress and an ardent supporter 
of President Clinton.
    Now, however, partisan politics infects every phase of the 
Independent Counsel process. Every step of the process--the very first 
call for an Independent Counsel, the decision to make a referral, the 
court's choice of an Independent Counsel, the conduct of the 
investigation by an Independent Counsel once appointed--every step has 
become an opportunity for one side or the other to cry political foul. 
We can argue for days about who is to blame for this; there is, I 
sense, plenty of blame for all to share. But the bottom line is this: 
the public now views the Independent Counsel process as largely a 
political process. This has not only undermined respect for the 
Department of Justice but has also led to disrespect for Congress who 
many believe are willing to interfere with impartial law enforcement 
for the sake of partisan gain.
    The Independent Counsel concept is therefore of no benefit anymore, 
and the act should be scrapped. The act should be allowed to die. It 
cannot be fixed. All the proposed fixes will make it more complicated 
and unwieldy, and will raise as many questions as they solve.
    I would even go further. I would propose that once the act is 
allowed to lapse, all currently active Independent Counsel 
investigations should be referred to the Public Integrity Division of 
the Department of Justice, which can assess all pending prosecutions 
and investigatory leads and determine which to abandon and which to 
pursue. They should be brought back within the Department of Justice 
budgetary system and under the auspices of DOJ guidelines. These cases, 
if need be, can be referred to a Leon Jaworski-type special prosecutor 
within the DOJ framework and even, if the Attorney General decides, the 
current Independent Counsel can be retained to continue their work.
    While I am vigorously opposed to the re-enactment of the statute, I 
would urge this Committee to conduct radical surgery on it, if it is to 
continue in any form. My recommendations for change follow:

     LThe single most important change must be to bring the 
Independent Counsel within the Department of Justice budgetary system 
and under the auspices of DOJ guidlines.
     LAny renewed act should be limited in application only to 
the President, Vice President and the Attorney General. No 
discretionary authority is needed because existing Government Ethics 
regulations already requires the Attorney General to recuse herself 
when she has an actual, personal or financial conflict.
     LAny renewed act should be invoked only in connection with 
charges of felony-level offenses that occurred while the target held 
public office. You should not permit an Independent Counsel to have a 
hunting license to pursue a covered official in all aspects of his or 
her past life.
     LPreliminary inquiries should not have artificial 90-day 
deadlines.
     LThe Attorney General should be authorized to issue 
subpoenas and use a grand jury during the preliminary inquiry phase.
     LThe standard for referring a matter to an Independent 
Counsel should be probable cause, or at a minimum, a rational basis to 
believe that a felony offense has occurred. The requirement that a 
referral must be made if ``further investigation is warranted'' should 
be eliminated. The burden should always be on the government to 
affirmatively establish some quantum of evidence to go forward with an 
IC investigation.
     LThe act should make explicit that an Independent 
Counsel's jurisdiction is to be strictly construed, and should not be 
expanded beyond that necessary to prosecute obstruction and perjury in 
connection with its original jurisdiction.
     LEach IC investigation should have a deadline and a budget 
stated in the jurisdictional referral. It should be part of the 
Attorney General's mandate to set a deadline and a budget which in his 
or her judgment is reasonable to complete the investigation, given the 
nature of the referral. If an IC determines that he or she will need 
more time or money, they can apply to the Special Division of the 
Court.
     LIndependent Counsels should be selected from a pre-
existing roster of highly qualified professional prosecutors or former 
prosecutors, compiled by the Department of Justice based on names 
solicited from sources such as the American Bar Association, Federal 
District Courts and U.S. Attorneys throughout the country. The 
appointment should not be made because someone seeks the job or because 
a well-placed friend recommends him or her to a Judge on the Special 
Division.
     LA significant percentage of an Independent Counsel's 
staff should be required to be highly experienced career prosecutors. 
Perhaps career prosecutors in the Public Integrity Division should be 
regularly assigned to staff Independent Counsel investigations.
     LAn Independent Counsel should be required to give up his 
or her private practice until the investigation is completed.
     LThere should be no requirement that an Independent 
Counsel issue a final report and all who are appointed should agree not 
to write books about their investigation. Reports and books serve no 
prosecutorial purpose and only further politicize the process and 
tarnish the reputations of individuals whom the IC may have chosen not 
to prosecute. Moreover, the report writing requirement increases the 
cost of investigation because they cause Independent Counsel's to 
pursue aspects or details of investigation which have little 
investigatory value but only serve the purpose of protecting the 
Independent Counsel from future criticism and placing him or her in a 
favorable historical light.
     LThere should be no requirement that the Attorney General 
report to Congress on why he or she chose not to refer a matter to an 
Independent Counsel. In the current law, the Attorney General must do 
so if she declines to make a referral that was initiated by a request 
from the majority of members of either party on the Judiciary 
Committee. This simply creates opportunities to use the Independent 
Counsel Act as a weapon in partisan politics, and subverts well-
established and warranted rules concerning the secrecy of criminal 
investigations.
     LAny Independent Counsels should be clearly required to 
follow DOJ policy and guidelines except for those that require approval 
of the Attorney General or other high-ranking DOJ officials. Witnesses, 
subjects and targets of IC investigations should be recognized in the 
statute as having standing to enforce this requirement.
     LThe Attorney General should be authorized to remove or 
discipline an Independent Counsel for good cause, including a failure 
to follow DOJ guidelines or a violation of ethical rules applicable to 
prosecutors. The procedures for removing an IC, and who should conduct 
investigations of Independent Counsels, should be spelled out in 
statute or regulation. There is no need to fear that an Attorney 
General will use this authority improperly; Congressional oversight and 
the news media will see to that.

    Chairman Thompson. Thank you very much, Mr. Bennett. Mr. 
Lewin.

 TESTIMONY OF NATHAN LEWIN, MILLER, CASSIDY, LARROCA AND LEWIN

    Mr. Lewin. Thank you, Mr. Chairman and Members of the 
Committee. My name is Nathan Lewin. I have practiced law in 
Washington, D.C., for the past 30 years, after serving in the 
Department of Justice and the Department of State during the 
Kennedy and Johnson administrations. I was a Federal prosecutor 
in the 1960's and have been a white collar criminal defense 
lawyer since joining my present firm, Miller, Cassidy, Larroca 
and Lewin, in 1969.
    I have taught at Harvard, the University of Chicago and 
Georgetown law schools, and I gave the first course that was 
ever given in a national law school, titled ``Representation of 
the White Collar Criminal Defendant,'' when I was a visiting 
professor at the Harvard Law School in 1975. Coincidentally, a 
student in that class was Jamie Gorelick, who came to work 
thereafter for our firm, became a partner, and then provided 
distinguished service in the Clinton administration for several 
years as Deputy Attorney General. I am presently teaching both 
at Columbia Law School and the George Washington University Law 
School.
    I have also had the privilege of arguing 27 cases in the 
Supreme Court of the United States, in one of which, as a 
matter of fact, Senator Lieberman was co-counsel when he was 
Attorney General of the State of Connecticut. And many of the 
cases have involved issues of criminal law. In May 1987----
    Senator Lieberman. They are asking the result, because 
during the trial I said that--excuse me for interrupting, but 
just to explain this, I indicated when I spoke in closed 
session--I hope I am not incarcerated for revealing this, but I 
have said it in public session, too, that my admiration for 
Chief Justice Rehnquist had gone up during the trial. But it 
had always been high for his judgment because in the one case I 
had the honor to argue with you, the result was a vote of 8-1, 
and the only Justice wise enough, clear-headed enough, 
courageous enough to vote on our side was Justice Rehnquist.
    Mr. Lewin. That is correct, but I guess as was true in that 
trial, he was silent, largely silent. He gave no reason for his 
dissent. He just said Chief Justice Rehnquist dissents. I have 
been mystified ever since then exactly why it is he agreed with 
our clearly correct position, but nonetheless he was on the 
right side.
    Mr. Bennett. Well, you both did better than I did. I was 9-
0. [Laughter.]
    Senator Levin. Next time, bring Senator Lieberman with you. 
You will pick up one Justice. [Laughter.]
    Senator Lieberman. It was an Establishment Clause case, so 
we assume that Justice Rehnquist's vote, though unexplained, 
was a matter of faith.
    Mr. Lewin. I will take that on faith as well.
    In May 1987, I was asked by then Attorney General Edwin 
Meese to represent him in the Independent Counsel investigation 
that was initiated against him. This was the second Independent 
Counsel investigation concerning Mr. Meese. The first, by the 
way, had concluded after several months, very efficiently, 
quickly done by a leading practitioner here in Washington, 
D.C., Jake Stein, who conducted an Independent Counsel 
investigation that cost, I think, $300,000 and cleared Mr. 
Meese in the first Independent Counsel investigation.
    For the following 14 months, assisted ably by my partner, 
Jim Rocap, and other personnel in our firm, I represented the 
Attorney General in what was to that date the most highly 
publicized Independent Counsel investigation. It was the first 
time that a Cabinet officer was investigated under this 
procedure while he or she continued in office.
    The Independent Counsel in charge of that investigation was 
James McKay, who had been, and then I think returned, as a 
partner at Covington and Burling. And he had originally been 
appointed to investigate Lyn Nofziger, who was an assistant to 
President Reagan. The Meese investigation was concluded 14 
months later, in July 1988, with a determination by Mr. McKay 
not to return any criminal indictments against the Attorney 
General. It was a very welcome outcome, but the road that was 
traveled to get to that destination was a very rocky and 
disturbing one.
    In representing Mr. Meese more than a decade ago, I 
encountered many of the same defects in the Independent Counsel 
process that have come to public attention in recent years. I 
have followed in the popular and legal media the reports of the 
investigations and prosecutions conducted by subsequent 
Independent Counsels, including the robustly criticized 
activities of Kenneth Starr. In my own mind, I have been 
continually evaluating the benefits and drawbacks of the law, 
and I have to tell you that contrary to my distinguished 
friend, Bob Bennett, and maybe a little bit like the Chairman, 
I was at the inception against the notion of an Independent 
Counsel. But over the years, I have come to the conclusion 
that, if constitutional--and the Supreme Court has upheld its 
constitutionality--it really has a very beneficial concept 
which I think can be effectively carried out with proper 
safeguards.
    Now, having been invited by the Committee to testify on 
this subject, I would like to summarize my personal 
conclusions. And again I have to emphasize these are my 
personal views. They don't reflect the opinions of my 
distinguished former client, Mr. Meese, nor do they reflect the 
views of my partners in what I think is the leading firm in 
Washington, several of whom----
    Mr. Bennett. I object. Objection. [Laughter.]
    Mr. Lewin [continuing]. Several of whom have been involved 
in the representation of targets, subjects, or witnesses in 
other Independent Counsel investigations, and I think who take 
a different view, quite honestly.
    My opinion is that in today's media-dominated age, the 
concept of an Independent Counsel, not answerable to the 
Attorney General or to the President, is essential for public 
confidence in government, and that fair and efficient 
investigations can be conducted by an Independent Counsel. 
There are major flaws in the present law and they should be 
remedied. And Bob Bennett here has, I think, listed 15 
suggestions, and as I think is customary among lawyers, I have 
to say agree with about half of them and strongly disagree with 
the other half.
    Now, I think some law, even if imperfect, is better than 
none. And in case a serious allegation of misconduct that would 
call for independent investigation erupts after June of this 
year and the Nation finds itself without a statute, I would 
oppose the suggestion made last week to this Committee by 
Senator Baker that there be a cooling off period without the 
law.
    If meaningful amendments cannot be drafted and voted on by 
June--and I believe they can--the Congress can renew the law 
for a limited period, 6 months, or a year. But the reality is, 
as lawyers know better, I think, than anybody else, that a 
deadline concentrates the mind. If the law disappears, there is 
going to be no pressing incentive to consider how it should be 
amended until there is some new scandal and we are trying to 
figure out how to deal with that.
    Now, Shakespeare's Marc Antony observed in his famous 
address that ``the evil men do lives after them; the good is 
oft interred with their bones.'' So it is with the Independent 
Counsel. In today's climate, few look at what was accomplished 
over the past 20 years by the nine or ten counsel who conducted 
efficient investigations and effectively cleared high-ranking 
government officials.
    My own conclusion from the investigation of Mr. Meese and 
from studying other investigations is that the process whereby 
individuals are cleared of charges is truly meaningful only if 
the clearing is done by an independent attorney. And the 
critics of the law don't consider the successful criminal 
prosecutions that receive little publicity. The emphasis today 
is all on the abuses, all of which I think are correctable.
    Now, I say that the independence of an Independent Counsel 
makes his or her decision exonerating the accused conclusive in 
the public mind. There was a memorable moment during the Meese 
investigation that brought this proposition home to me. It was 
March 29, 1988, 10 months after the Meese investigation began. 
The media were after Attorney General Meese and there was much 
speculation that Independent Counsel McKay was going to indict 
him.
    I knew by then that this speculation was false. The 
Independent Counsel had resolved, and told me that he had 
resolved, in Mr. Meese's favor the primary issue which was 
referred to him, and had pretty much completed his 
investigation on a second major issue which I will describe in 
a few minutes that was so remote and insubstantial that I 
really didn't think it deserved inquiry.
    But nonetheless, reacting to the media's frenzy, Deputy 
Attorney General Arnold Burns and Assistant Attorney General 
William Weld abruptly announced that they were resigning. The 
announcement was a total surprise to Mr. Meese, and it 
generated enormous demands from the media that he also resign 
immediately. I called Mr. McKay, and my partner, Jim Rocap, and 
I went over to this office and met with him and his deputy, 
Carol Bruce, who is now the Independent Counsel handling the 
Bruce Babbitt investigation.
    I told Mr. McKay my opinion that the pendency of the 
investigation and its long overdue conclusion had precipitated 
these resignations, and I asked him to declare publicly that he 
was not intending to indict Mr. Meese. After considering my 
request, the Independent Counsel took the forthright step of 
announcing on April 1, 1998, that, ``based on the evidence 
developed to date,'' he would not be indicting Mr. Meese. That 
was featured in the press the following day.
    That conclusion was accepted by the media and the public as 
vindication of the Attorney General, and the demands for his 
resignation abated. It was clear to me that an announcement by 
a Department of Justice lawyer, or even by an outside counsel 
responsible to the Department of Justice that the Attorney 
General was cleared and would not be indicted would not have 
rescued Mr. Meese from the lynch mob.
    Now, I think, as I said, there are major flaws in this 
statute. And in the statement that I have given and prepared 
for the Committee, I have listed not only a number of major 
flaws, but also my specific proposed statutory text for 
amendments. Just let me list those.
    No. 1, is what I call the Inspector Javert Syndrome. Victor 
Hugo created an unforgettable character in ``Les Miserables,'' 
the inspector who hounds Jean Valjean all his life because he 
is convinced that the theft of a loaf of bread should not go 
unpunished. Some Independent Counsel have taken on the role of 
an Inspector Javert and they treat the government official who 
is the target of their initial authorization as a quarry who 
should be hunted down.
    The ABA Sections on Criminal Justice and Litigation said in 
their fine report recently, although again I don't agree with 
their conclusion, that the assignment of an Independent 
Counsel, ``too often appears to be investigating an individual 
rather than a crime.'' That, to my mind, was the largest flaw 
in the Meese investigation.
    It was shocking to be told after the Wedtech phase of the 
investigation was totally put to rest that Mr. Meese would have 
to refute allegations concerning, (1) a proposed Aqaba pipeline 
project that had absolutely nothing to do with Wedtech; (2) 
other investments involving a Mr. Chinn who was named in the 
referral; (3) the Attorney General's participation in 
telecommunications matters at the Department of Justice; (4) 
the funding of Mrs. Meese's job at the Multiple Sclerosis 
Society; and, (5) the accuracy of the Meeses' 1985 tax return.
    We responded to all those, but that is not the job and 
should not be the job of an Independent Counsel. Authorizing a 
government prosecutor to investigate an individual rather than 
a crime is contrary to fundamental principles of American 
justice. There is probably no person alive, and surely no 
person who has accomplished enough in his or her lifetime to be 
considered for a Cabinet post or top-level government 
appointment, who could not be faulted for some misstep in 
public or private life.
    Our Constitution does not knowingly empower Inspectors 
Javert to find skeletons in the closets of public officials. 
How can that be cured? The Independent Counsel law can be 
amended in a clear and forceful manner to prevent an expansion 
of authority. Right now, as Mr. Bennett said, the law favors 
broad definitions of the jurisdiction of an Independent Counsel 
and liberal extensions of authority. I would propose that an 
Independent Counsel should be authorized to investigate a 
specific allegation that has survived the preliminary steps, if 
they are kept, described in Sections 591 and 592. He should be 
prohibited from extending that investigation to any other 
conduct unless it is a part of a single continuing offense.
    If an Independent Counsel comes across a new charge, such 
as Mr. Starr did when Linda Tripp came to him in January 1998 
with allegations and evidence of perjury and obstruction of 
justice in the Lewinsky matter, the entire investigation should 
be referred immediately to the Attorney General and, if 
appropriate, assigned only to another Independent Counsel. The 
statute should prohibit the assignment of the same matter to 
that Independent Counsel. That ban removes the personal 
incentive that an Independent Counsel may have, or may appear 
to have, in going off on a tangent from his initial 
investigation.
    If he knows with absolute certainty that any other alleged 
crime will be investigated by someone else, neither he nor his 
staff can be tainted by personal ambition in pursuing that 
lead. If there is any emergency matter that has to be done, as 
I think was claimed with regard to the information that Ms. 
Tripp provided to Mr. Starr, that would have to be done by the 
Department of Justice while the new Independent Counsel is 
being appointed.
    Now, in the case of the Lewinsky allegations, the evidence 
presented suddenly to Mr. Starr by Linda Tripp was very 
serious. It justified strong measures, but if they had been 
taken by the Department of Justice, I don't think there would 
have been the criticism that has now accompanied it.
    Now, I should note at this point that I do not join the 
chorus of disapproval that is being heard frequently with 
regard to Independent Counsel Starr. I know and have great 
respect for Kenneth Starr, whom I retained to represent me 
personally in an appeal that he undertook before being invited 
to serve as an Independent Counsel. The investigative and 
prosecutive measures that his office has taken are all too 
familiar to me.
    During three decades of representing targets of Federal 
criminal investigations, I have seen much, much more serious 
violations of fairness and decency than are alleged with regard 
to Mr. Starr. I wish all my clients were treated with the 
respect and forthrightness that Mr. Starr and his staff showed 
to the targets of their investigation.
    Now, my other proposals for revision of the Independent 
Counsel law are various. My second point relates to what I call 
the Walter Winchell Illusion.
    Chairman Thompson. Mr. Lewin, could you summarize some for 
us? I don't know what your intentions are.
    Mr. Lewin. I am going to summarize the remainder of the 
points that I make in here.
    Chairman Thompson. You have some very, very good 
recommendations here and I don't want to short-circuit you.
    Mr. Lewin. No. I am going to summarize.
    Chairman Thompson. We were pent up for a month in 
impeachment investigations and not allowed to talk, and I think 
it is bubbling up maybe a little bit. [Laughter.]
    Mr. Lewin. Mr. Chairman, I will give you really just simply 
captions.
    The Walter Winchell Illusion relates to the fact that an 
Independent Counsel, as Mr. Bennett has said, writes a report. 
And too many Independent Counsels, including Mr. McKay, whose 
report I have right here, thought that it was their job to 
write about the target of the investigation extensively 
expressing opinions about things that were not in the original 
referral, judgments of guilt on some matters. That is not the 
job of an Independent Counsel and is, I think, contrary to 
American notions of justice.
    The third point I have I call the Quest for Queen Esther 
because this is the day after Purim, you see. And as Bob 
Bennett has mentioned, nobody can figure out how an Independent 
Counsel is selected. Well, when I was reading the Book of 
Esther yesterday, on the Jewish holiday of Purim, when the 
Persian king was looking to select his queen, his advisers 
brought candidates from all over the country in for his 
examination.
    And my proposal, and I have reduced it to legislative 
language, is that this be a task that really be assigned in 
part to the Senate; that if each Senator were required to 
designate two names of leading attorneys, not in their State 
necessarily, just two names of leading attorneys for a roster 
from which Independent Counsel would be chosen, and that roster 
were made public so that the special court could receive 
communications from the public regarding the attorneys on that 
list, as well as having all the background information, and 
they would be required to select from that list of 200 
attorneys, I think that is, as I say, a Queen Esther form of 
selection that I think is perfectly appropriate with regard to 
an Independent Counsel.
    My fourth point is what I call the Frankenstein Phenomenon. 
The concern is that an Independent Counsel will turn into Dr. 
Frankenstein's monster and will do all kinds of incredible 
unethical, illegal things, go beyond the standard of the 
Department of Justice. My proposal is that at the same time 
that an Independent Counsel is selected for the purpose of 
reviewing what he does, there be a selection of a special 
panel. It has got to be different from the one that names the 
Independent Counsel under Morrison v. Olson, but a special 
panel of three circuit judges who can be selected from among 
the senior circuit judges around the country, and that panel 
would have the jurisdiction to oversee and entertain motions, 
complaints with regard to the conduct of the Independent 
Counsel, and make prompt resolution.
    You would have a judicial review procedure for what the 
Independent Counsel does. At present, the statute says he has 
to follow Department of Justice standards, but there is no way 
of enforcing that. This panel could enforce that by real, 
active litigation with the Independent Counsel.
    The fifth point is what I call the Methuselah Factor, the 
fact that Independent Counsels just seem to go on and on 
forever. They almost meet the biblical maximum number of years. 
There is no way of terminating them. I see Senator Specter is 
not here, but he had mentioned an 18-month period in the past. 
I think an Independent Counsel in his reports to the court 
should state how much longer he expects the investigation to 
take in his 6-month reports. Once he gets to 18 months, it 
seems to me, if he doesn't justify it, I think the court can 
terminate or order the Independent Counsel to terminate his 
jurisdiction and investigation.
    And my final point is what I call the King Midas Fallacy. 
There is a notion here that there is a pot of gold, that 
everybody can, like Rumpelstiltskin, turn straw into gold. 
Independent Counsels spend enormous amounts of money. Exactly 
how their budget can be limited constitutionally I don't know. 
I am not in favor of Mr. Bennett's suggestion that they go back 
to the Department of Justice, but maybe there can be something 
built in with regard to what the original court does when it 
authorizes the appointment of the Independent Counsel and maybe 
sets a budgetary limit.
    But in addition to that, the cost of these investigations--
and the public doesn't realize this because they read the 
newspapers and they are told about enormous lawyers' bills, 
that Betty Currie has got a lawyer's bill for who knows how 
much, hundreds of thousands of dollars. Other witnesses who are 
working for the government who are simply drawing salaries, 
again, have got enormous lawyers' bills.
    As a practicing lawyer, I know, and I know from my 
colleagues, these are bills. That doesn't mean that there are 
payments. These are not people who can afford to pay lawyers' 
bills, and the fact of the matter is that one of the gross 
unfairnesses about this system--which is geared to government 
because it is a whole statute which says we are going to 
investigate government employees, many of whom are people of 
limited resources--is that it doesn't provide for the payment 
of lawyers' fees, except of a subject who is not indicted.
    I would propose that anybody who receives a subpoena from 
an Independent Counsel who is a government employee be entitled 
to retain counsel, to be paid out of the budget of the 
Independent Counsel. In other words, the application would be 
made to the court, and this would not be shown to the 
Independent Counsel because there are things on lawyers' bills 
that are attorney-client confidences, but nonetheless, payments 
every quarter to witnesses, subjects. I submit even targets who 
are government employees would have to be paid by the 
government so that they could have effective legal 
representation.
    Now, as I say, I certainly have views with regard to many 
of the proposals that Bob Bennett has made. I think it would be 
a mistake to limit the targets to only the President, the Vice 
President and the Attorney General. As a matter of fact, if 
anything, I think the investigation of the President shows that 
an Independent Counsel cannot really effectively deal, in terms 
of the public stage and the public media, with an accused like 
the President of the United States. Even an Independent Counsel 
can't deal with it, and I think that the suspicions that would 
grow up if there was no Independent Counsel are even greater.
    So I think I will conclude now, at the Chairman's 
suggestion, and certainly be prepared to respond to any 
questions.
    [The prepared statement of Mr. Lewin follows:]
                   PREPARED STATEMENT OF NATHAN LEWIN
    My name is Nathan Lewin. I have practiced law in Washington, D.C., 
for the past 30 years after serving in the Departments of Justice and 
State during the Kennedy and Johnson administrations. I was a Federal 
prosecutor in the 1960's and have been a white-collar criminal defense 
lawyer since joining my present firm, Miller Cassidy Larroca & Lewin, 
in 1969. I have also taught at Harvard, University of Chicago, and 
Georgetown Law Schools, and gave the first course ever given in a 
national law school on ``Representation of the White-Collar Criminal 
Defendant' when I was a Visiting Professor at the Harvard Law School in 
1975--shortly after Watergate. I might add that among the students in 
that course was Jamie Gorelick, who came to work for our firm, became a 
partner, and then provided distinguished service for several years 
during the Clinton Administration as Deputy Attorney General. I am 
presently teaching at Columbia Law School and George Washington 
University Law School.
    I have also had the privilege of arguing 27 cases in the Supreme 
Court of the United States, many of which have involved issues of 
criminal law. And in May 1987 I was asked by then Attorney General 
Edwin Meese to represent him in the Independent Counsel investigation 
that was initiated against him. For the next 14 months, assisted ably 
by my partner Jim Rocap and other personnel in our firm, I represented 
the Attorney General in what was--to that date--the most highly 
publicized Independent Counsel investigation. It was the first time 
that a Cabinet officer was investigated under this procedure while he 
or she continued in office. The Independent Counsel in charge of that 
investigation was James McKay, who had originally been appointed to 
investigate Lyn Nofziger, an Assistant to President Reagan.
    The Meese investigation was concluded in July 1988 with a 
determination by Mr. McKay not to return any criminal indictment 
against the Attorney General. That was, of course, a welcome outcome, 
but the road traveled to get to that destination was a very rocky and 
disturbing one. In representing Mr. Meese more than a decade ago, I 
encountered many of the same defects in the Independent Counsel process 
that have come to public attention in recent years. I have followed the 
popular and legal media reports of the investigations and prosecutions 
conducted by subsequent Independent Counsels, including the robustly 
criticized activities of Kenneth Starr. In my own mind, I have been 
continually evaluating the benefits and drawbacks of the law. Having 
been invited by the Committee to testify on this subject, I am honored 
to summarize my personal conclusions--and I emphasize that these are my 
own personal views. They do not reflect the opinions of my 
distinguished former client, Attorney General Meese. Nor do they 
reflect the views of my law partners, several of whom have been 
involved in the representation of targets, subjects or witnesses in 
other Independent Counsel investigations.
    My opinion is that in today's media-dominated age, the concept of 
an Independent Counsel--not answerable to the Attorney General or to 
the President--is essential for public confidence in government, and 
that fair and efficient investigations can be conducted by an 
Independent Counsel. There are, I believe, major flaws in the present 
law, and they should certainly be remedied as soon as possible. I will 
discuss some of these flaws and my proposals for change in this 
testimony. But some law--even if imperfect--is better than none. And 
just in case a serious allegation of misconduct that would call for 
independent investigation erupts after June of this year and the nation 
then finds itself without this statutory remedy, I would oppose the 
suggestion made last week by former Senator Baker that we have a 
``cooling-off period'' without the law. If meaningful amendments cannot 
be drafted and voted on by June--and I believe they can--the Congress 
can renew the law for an additional six months or one year while the 
drafting is going on. The reality is, as all lawyers know, that a 
deadline concentrates the mind. If the law simply disappears, there 
will be no pressing incentive to consider how it should be amended 
until some new scandal breaks out
    Shakespeare's Marc Antony observed, in his famous address, that 
``the evil men do lives after them; the good is oft interred with their 
bones.'' So is it with Independent Counsel. In today's climate, few 
look at what was accomplished over the past twenty years by the nine or 
ten counsel who conducted efficient investigations and effectively 
cleared high-ranking government officials. My own conclusions from the 
investigation of Mr. Meese and from studying other investigations is 
that the process whereby individuals are cleared of charges is truly 
meaningful only if the clearing is done by an independent attorney. Nor 
do the critics consider successful criminal prosecutions that received 
little publicity. The emphasis now is on abuses--all of which are, I 
believe, correctable.
    The independence of an Independent Counsel makes his or her 
decision exonerating an accused conclusive in the public mind. There 
was a memorable moment during the Meese investigation that brought this 
proposition home to me. It was March 29, 1988, ten months after the 
Meese investigation had begun. The media were after Attorney General 
Meese, and there was much speculation that Independent Counsel McKay 
was going to indict him. I knew by then that this speculation was 
false. The Independent Counsel had already resolved, in Mr. Meese's 
favor, the primary issue which was referred to him, and had pretty much 
completed his investigation on a second major issue--to be described 
later--that was so remote and insubstantial that it truly did not 
deserve inquiry.
    Nonetheless, reacting to the media's frenzy, Deputy Attorney 
General Arnold Burns and Assistant Attorney General William Weld 
abruptly announced that they were resigning. The announcement was a 
total surprise to Mr. Meese, and it generated demands from the media 
that the Attorney General also resign.
    I immediately called Mr. McKay. Jim Rocap and I went to his office 
to meet with him and his deputy, Carol Bruce (who is now the 
Independent Counsel investigating Interior Secretary Bruce Babbitt). I 
told Mr. McKay my opinion that the pendency of the investigation and 
its long-overdue conclusion had precipitated the resignations, and I 
asked him to declare publicly that he was not intending to indict Mr. 
Meese.
    After considering my request, the Independent Counsel took the 
forthright step of announcing on April 1, 1988, that ``based on the 
evidence developed to date'' he would not be indicting Mr. Meese. The 
conclusion was accepted by the media and the public as vindication of 
the Attorney General, and the demands for his resignation abated. It 
was clear to me that an announcement by a Department of Justice lawyer 
or even by an outside counsel responsible to the Department of Justice 
would not have rescued Mr. Meese from the lynch mob.
    In this testimony, I plan to discuss the principal flaws in the 
present statutory scheme and then to return to why, notwithstanding 
these defects, I believe that some Independent Counsel law is needed.
(1) The Inspector Javert Syndrome
    The investigation of Attorney General Meese began with an 
allegation that Mr. Meese had, through a personal friend named E. 
Robert Wallach, provided illegal assistance while he was Counselor to 
the President to a business called the Wedtech Corporation. The written 
referral to Mr. McKay stated that he should investigate whether ``the 
Federal conflict of interest law, 18 U.S.C. Sec. Sec. 201-211, or any 
other provision of Federal criminal law'' had been violated by Mr. 
Meese's ``relationship or dealings at any time from 1981 to the 
present'' with the Wedtech Corporation, Mr. Nofziger, E. Robert 
Wallach, W. Franklyn Chinn, and/or Financial Management International, 
Inc.
    Under this broad charter, Mr. McKay proceeded to a thorough 
investigation of the Wedtech allegations. His Final Report acknowledged 
that he not only tried to identify any official acts performed by Mr. 
Meese for Wedtech, but also ``to conduct a full investigation of Mr. 
Meese's financial affairs from 1981 through 1986.'' The Attorney 
General cooperated fully, and even came to the U.S. District Court to 
testify before the grand jury. Mr. McKay's final report declared that 
``the investigation into Wedtech-related and Meese Partner matters was 
substantially complete by the end of November 1987.''
    This was six months after the investigation began, and it should 
have ended there. But Mr. McKay apparently believed it was his job to 
investigate not merely the particular allegation, but every possible 
allegation that might be made against Mr. Meese involving any of the 
other names in the referral. And, before concluding his task, he went 
beyond even that limitation to conduct a total investigation of Mr. and 
Mrs. Meese's finances and other possible conflict-of-interest 
allegations.
    Victor Hugo created an unforgettable character in Les Miserables--
the inspector who hounds Jean Valjean all his life because he is 
convinced that the theft of a loaf of bread should not go unpunished. 
Some Independent Counsels have taken on the role of Inspector Javert 
and treat the government official who is the target of their initial 
authorization as a quarry who, they feel, should be hunted down. The 
ABA Sections on Criminal Justice and Litigation said in their recent 
report that the assignment of an Independent Counsel ``too often 
appears to be investigating an individual rather than a crime.''
    That, to my mind, was the largest flaw in the investigation of 
Attorney General Meese. It was shocking to be told, after the Wedtech 
phase of the investigation was totally put to rest, that Mr. Meese 
would have to refute allegations concerning (1) a proposed ``Aqaba 
pipeline project'' that had absolutely nothing to do with Wedtech, (2) 
other investments involving Mr. Chinn, (3) the Attorney General's 
participation in telecommunications matters at the Department of 
Justice, (4) the funding of Mrs. Meese's job at the Multiple Sclerosis 
Society, and (5) the accuracy of the Meeses'' 1985 tax return.
    The Aqaba pipeline investigation consumed an additional six months 
and, I am sure, substantial government resources after the Wedtech 
investigation ended. And when that was nearing completion, we were told 
that Mr. McKay and Ms. Bruce were going to inquire into whether the 
Attorney General should have disqualified himself when the Department 
of Justice was considering antitrust action regarding the ``Baby 
Bells.'' And then, in February 1988, we were told that the funding of 
Mrs. Meese's job was to be yet another new area of inquiry. And shortly 
before the investigation ended, the matter of the 1985 tax return was 
suddenly raised.
    Authorizing a government prosecutor to investigate an individual, 
rather than a crime, is plainly contrary to fundamental principles of 
American justice. There is probably no person alive--and surely no 
person who has accomplished enough in his or her lifetime to be 
considered for a Cabinet post or an equivalent top-level government 
appointment--who could not be faulted for some misstep in public or 
private life. We do not knowingly empower Inspectors Javert to find 
skeletons in the closets of public officials.
    The Independent Counsel law must be amended in a clear and forceful 
manner to prevent this kind of expansion of authority. At present, the 
law favors broad definitions of the jurisdiction of an Independent 
Counsel and liberal extensions of authority. The presumption should be 
reversed. An Independent Counsel should be authorized to investigate a 
specific allegation that has survived the preliminary steps described 
in Sections 591 and 592. He should not be able to extend that 
investigation to any other conduct unless it is part of one single 
continuing offense. There must be an absolute prohibition against 
granting an existing Independent Counsel any authority to expand his 
investigation beyond the specific allegations that he was initially 
authorized to investigate. If an Independent Counsel comes across a new 
charge--such as Mr. Starr did when Linda Tripp came to him in January 
1998 with allegations and evidence of perjury and obstruction of 
justice in the Lewinsky matter--the entire investigation should be 
referred immediately to the Attorney General and, if appropriate, 
assigned thereafter to another Independent Counsel.
    This flat unequivocal ban on expansion of an ongoing investigation 
removes the personal incentive that an Independent Counsel may have--or 
may appear to have--in going off on a tangent from his initial 
investigation. If he knows, with absolute certainty, that any other 
alleged crime will be investigated by someone else, neither he nor his 
staff can be tainted by personal ambition in pursuing that lead. The 
Department of Justice will have to be trusted to take any immediate 
investigative steps that are needed if a new matter arises. And whether 
or not an Independent Counsel should be appointed to pursue the new 
charge will be evaluated on its own merits.
    Had such a proposition of law governed the Meese investigation, the 
work of the Independent Counsel would have ended after six months, with 
absolutely no harm to the administration of justice. None of the 
excursions that Mr. McKay took after the Wedtech allegations were 
resolved would have come close to justifying the appointment of 
additional Independent Counsels.
    In the case of the Lewinsky allegations, the evidence presented 
suddenly to Mr. Starr by Linda Tripp on January 12, 1998, was, I think, 
very serious, and it justified prompt law-enforcement measures. The 
Lewinsky investigation would not have garnered the criticism it has 
received if that investigation had been conducted, on an emergency 
basis, by Department of Justice personnel and thereafter under the 
aegis of a different Independent Counsel. It is clear that the 
Department of Justice was not eager to handle this ``hot potato'' and 
gladly referred it, as it was entitled to do under existing law, to Mr. 
Starr.
    I should note, at this point, that I do not join the chorus of 
disapproval that is being heard frequently with regard to Independent 
Counsel Starr. I know and have great respect for Kenneth Starr, whom I 
retained to represent me personally in an appeal that he undertook 
before being invited to serve as Independent Counsel. The investigative 
and prosecutive measures that his Office has taken are all too familiar 
to me. During three decades of representing targets of Federal criminal 
investigations, I have seen much more serious violations of fairness 
and decency by Federal prosecutors at various levels. I wish all my 
clients were treated with the respect and forthrightness that Mr. Starr 
and his staff showed to the targets of their investigation.
    I believe that the Inspector Javert Syndrome can be cured and 
prevented by amended statutory provisions, and I propose language 
accomplishing that result in an Appendix to this Statement.
(2) The Walter Winchell Illusion
    A second major grievance I have with the conduct of the Independent 
Counsel who handled the Meese inquiry in 1987-88 relates to his Final 
Report. Mr. McKay was not content to embark on various expeditions that 
had absolutely nothing to do with Wedtech, but he also felt obliged to 
include in his Final Report a recitation of all the allegations, 
together with his personal evaluation of their validity. As a 
consequence, he opined publicly, with respect to two allegations, that 
Mr. Meese had violated Federal criminal law but that criminal 
prosecution was, nonetheless, not ``warranted.''
    This was a public smear on Attorney General Meese's reputation that 
was, unfortunately, legally privileged. The only remedy I had, as Mr. 
Meese's counsel, was to include, in the Response we filed on behalf of 
Mr. Meese, the sworn conclusions of two highly respected former Federal 
prosecutors that the facts recited in Mr. McKay's Report did not state 
a prosecutable Federal offense and to present his defense in extenso in 
the Response. But our Response--which was, I believe, far better 
written and more persuasive that Mr. McKay's Report--was read by very 
few. Although Mr. McKay exonerated Attorney General Meese totally on 
the Wedtech allegations, the public misimpression remains to this day 
that Mr. McKay believed that Mr. Meese was guilty of the Wedtech 
charges but chose to withhold criminal prosecution for some overriding 
policy reason. In fact, The New York Times made precisely that error in 
a Sunday magazine story it printed several months ago and, when called 
on to correct it, only aggravated its initial mistake by citing the 
gratuitous opinions of guilt regarding conflict-of-interest and taxes 
that Mr. McKay had put into his Final Report.
    There is, I believe, a consensus now that a Final Report is not a 
Walter Winchell gossip column, in which an Independent Counsel may, 
without legal liability, state his opinions about a subject's guilt. 
The job of an Independent Counsel is to investigate and to decide 
whether to initiate a criminal prosecution. The Final Report should be 
used to tell Congress what the Independent Counsel has done, not what 
he personally believes.
    In the Appendix to this Statement I propose an amendment to Section 
594(h)(1)(B) designed to destroy any Independent Counsel's illusion 
that the Congress and the public are entitled to hear his opinion of 
the facts revealed by his investigation.
(3) The Quest for Queen Esther
    The existing statute leaves the selection of Independent Counsel 
entirely to the Special Division of the Court of Appeals. That court 
relies on its own initiative to collect names, check qualifications, 
and make the appointment. I recall that years ago--before my 
representation of Attorney General Meese--I was called by a Federal 
appellate judge who was on the Special Division panel and asked my 
opinion of a Washington, D.C., lawyer who was being considered for 
appointment as an Independent Counsel. I gave him high ratings. The 
appointment was made, and he performed his duty admirably. But I was 
surprised at the time over the haphazard quality of the information-
gathering process that the court was using.
    Since my representation of Mr. Meese it has occasionally occurred 
to me that an appointment as Independent Counsel might be interesting. 
But there is no roster and no place to apply. I asked two Federal 
appellate judges who are not on the Special Division panel how one goes 
about being considered. Both replied that they would not, as a matter 
of principle, recommend names to the panel. That makes the selection 
process totally random. Three Federal judges select attorneys for these 
very important duties entirely on the basis of who they know personally 
or by reputation.
    The lawyers selected have, by and large, been distinguished and 
experienced. But no one can say that there is any system for selecting 
them. And it is simply dangerous to have a statutory procedure with so 
gaping a void in a major, possibly outcome-determinative, phase of the 
process.
    How should the court gather candidates for the list from which an 
Independent Counsel is selected? The Biblical Book of Esther--which was 
read in synagogues all over the world yesterday on the Jewish Holiday 
of Purim--describes how the King of Persia proceeded to select a new 
queen more than 2500 years ago. By royal decree candidates from across 
the breadth of his kingdom were brought to the palace for the King's 
personal examination. And the result was the selection of the fairest 
of them all--Queen Esther.
    The search for an Independent Counsel should be no less exhaustive. 
I recommend that the Congress become involved in the selection process 
by nominating the pool of lawyers from which Independent Counsel are 
chosen. The special division might be required to select an Independent 
Counsel from a roster of nominees of the Senate. Each Senator would 
nominate two lawyers for the pool. This would give the court up to 200 
names of leading members of the Bar. Along with the nomination, the 
Senatorial office would be expected to provide the court with relevant 
background information on its nominees, including cases that attorneys 
have handled and the names of judges and counsel who could be called as 
references.
    The roster of names would be a public document. Lawyers or others 
who might want to support or oppose particular nominees could submit 
letters to the court. The court would thus have a broad array of names 
and a wide choice of sources from whom to inquire.
    In the Appendix to this Statement I propose an amendment to Section 
593(b)(2) to create the roster of candidates from which the special 
division court would select an Independent Counsel.
(4) The Frankenstein Phenomenon
    This brings me to the important question of possible abuse of 
power. What should be done if an Independent Counsel turns, a la Dr. 
Frankenstein's monster, into an out-of-control creature that exceeds 
bounds of legality and fairness? The present law has no effective 
mechanism to prevent abuses of power beyond the toothless exhortation 
of Section 594(f) that the Independent Counsel should comply with ``the 
written or other established policies of the Department of Justice'' 
and should ``consult with the Department of Justice.''
    I should emphasize, at the outset, that there is no truly effective 
means of curing or preventing gross errors of judgment by any Federal 
prosecutor, including an Independent Counsel. Should the charges 
against Mike Espy have been brought to trial or were they a combination 
of trivial technical violations that should not be subject to the 
criminal law? If it was a misjudgment to pursue that case--and I 
personally believe it was--I can only say that in my experience as a 
criminal-defense lawyer I have seen instances of misjudgments by rank-
and-file Federal prosecutors that were as great or greater. I have 
tried, usually unsuccessfully, to have misjudgments of this kind 
reviewed and reversed by higher levels within the Federal justice 
system. Occasionally, I have even gone to the Department of Justice to 
complain of misguided zeal by Assistant U.S. Attorneys in the field. 
Nearly all the time, I have been rebuffed. Any experienced white-collar 
criminal-defense lawyer will tell you that line prosecutors have broad 
discretion, and that when their decisions are approved by a U.S. 
Attorney himself or herself, there is a snowball's chance in hell of 
getting that decision reversed by the Department of Justice.
    I have told my clients that, in the real world, they must live with 
a system that tolerates lapses in judgment, and that there is seldom 
any recourse short of vindication at trial. That is what the Espy case 
demonstrated. I do not believe that this experience proves the 
infirmity of the Independent Counsel Law. The same poor judgment could 
have been shown--and often has been shown--in prosecutions controlled 
by the Department of Justice.
    But what of more flagrant excesses that violate the law or that 
infringe on constitutional rights? Although Section 594(f) requires an 
Independent Counsel to ``comply with the written or other established 
policies of the Department of Justice,'' there is no enforcement 
mechanism. And what if an Independent Counsel leaks grand jury evidence 
to the press--a charge that has been made, but far from proved, with 
regard to Independent Counsel Starr?
    I think that judicial supervision and oversight of an Independent 
Counsel should be the business of a panel of three appellate judges 
selected randomly for each Independent Counsel investigation. The 
issues are usually susceptible to determination as a matter of law, and 
they can be resolved on the submission of briefs and, if necessary, 
oral argument. Oversight by an appellate panel avoids the delay 
incident to a decision by a single district judge that is then taken on 
appeal. And if evidence must be obtained through oral testimony, the 
court of appeals can appoint a special master to hear the evidence and 
to make proposed findings.
    Each investigation, I believe, should have its own appellate panel 
to which the targets, subjects or witnesses may apply to challenge the 
conduct of an Independent Counsel. That panel may be determined, by 
lot, as soon as the investigation begins. The parties and witnesses 
will, therefore, know to whom to turn if the Independent Counsel 
exceeds his authority, engages in unconstitutional or unlawful conduct, 
or violates the statutory directive of Section 594(f)(1).
    In the Appendix to this Statement I propose an amendment to Section 
594(f) to deal with the Frankenstein Phenomenon.
(5) The Methuselah Factor
    Another criticism of the Independent Counsel law is that 
Independent Counsel investigations take too long. I can tell you, as I 
tell every client who consults me at the inception of an investigation 
into a ``white-collar'' offense, that I have never in 30 years of 
practice seen a properly conducted investigation finished within the 
time predicted by the prosecutor or within the longest period the 
potential accused expects in his worst nightmare. By their nature, such 
investigations always drag on, frequently until just before the statute 
of limitations will expire.
    Any arbitrary fixed deadline for Independent Counsel investigations 
will have unfair repercussions. An Independent Counsel whose time is 
almost up will feel pressured to indict even if his case has holes. On 
the other hand, a crafty defense counsel who sees the deadline 
approaching may find reasons to delay until the Independent Counsel is 
out of office.
    Nonetheless, it is reasonable to ask an Independent Counsel who has 
been at it for more than a year-and-a-half why he is taking so long and 
assign to him the burden of explaining the Methuselah Factor. I propose 
an amendment to Section 594(h)(1)(A) which will require an Independent 
Counsel to advise the court that has appointed him, in his 6-month 
reports of finances, how much longer he expects the investigation to 
last and the specific reasons for the duration of the investigation 
once it exceeds 18 months. The court should be empowered to evaluate 
his explanation and to direct that the investigation terminate by a 
specified date if it is not satisfied with the Independent Counsel's 
explanation. Such a termination order, based on the content of a report 
of the Independent Counsel to the court, is, I believe, an appropriate 
``judicial'' power as defined in Morrison v. Olson, 487 U.S. 654, 681-
683 (1988).
(6) The King Midas Fallacy
    Another serious criticism of the Independent Counsel law concerns 
the huge amount of money that some investigations have cost the 
taxpayer. Many believe that Independent Counsel are oblivious to these 
expenses and that they treat the public treasury as if it were King 
Midas' storehouse, constantly replenished with gold.
    It is clear that the court that appoints the Independent Counsel 
could not, under Morrison v. Olson, 487 U.S. 654 (1988), supervise the 
expenditure of funds by an Independent Counsel. I do not see a 
constitutional means of assigning to a court the duty of limiting an 
Independent Counsel's expenses. Only Congress may police that aspect of 
an investigation, possibly by imposing arbitrary dollar limits.
    There is, however, another aspect of the King Midas Fallacy that 
justifies a drastic change in the premise on which an Independent 
Counsel investigation is conducted. In authorizing costly 
investigations scrutinizing the conduct of high-level government 
officials, Congress operates under the misguided notion that lawyers 
may be pressed into involuntary servitude to represent Federal 
Government employees ensnared in these investigations.
    The media enjoys describing the massive attorneys' bills that 
ordinary government employees run up when they are involved in an 
Independent Counsel investigation. Huge figures have been cited for 
Betty Currie and Bruce Lindsey in the Lewinsky investigation. I don't 
know how accurate these figures are. Nor do I know whether the clients 
whose skyrocketing legal fees are reported in the press are actually 
paying their lawyers.
    My own belief is that, contrary to what journalists report, very 
few lawyers are putting their children through college on fees from 
these cases. Lawyers' bills may mount, but payment is nowhere in sight.
    To be sure, Section 593(f)(1) of the law provides that a ``subject 
of an investigation'' may recover attorneys' fees ``if no indictment is 
brought against such individual.'' I invoked this provision to recover 
attorneys' fees for our representation of Attorney General Meese after 
Mr. McKay's investigation was concluded. Other lawyers who have 
represented ``subjects'' who were not indicted in other investigations 
have had their fees paid by the United States after the investigation 
was over.
    This is, by the way, a peculiar provision. It gives statutory 
sanction to what would, under other circumstances, be an ethical 
violation. If I had told Attorney General Meese when he first consulted 
me that I would represent him on the understanding that he would pay my 
fees only if he was not indicted, I would be making a contingent-fee 
arrangement in a criminal case. That is grounds for disbarment.
    Given Mr. Meese's limited personal financial resources, that was 
nonetheless the effect of the statutory provision for payment of 
attorneys' fees. If Mr. Meese had been indicted, I doubt that he could 
have afforded to stand trial, much less pay our outstanding bill.
    Most government officials who find themselves targets or subjects 
of an Independent Counsel investigation are not independently wealthy. 
The economic burden of defending them--regardless of what the media may 
say--falls on their lawyers. When a government employee is subpoenaed 
to testify in an Independent Counsel investigation, he or she must find 
a lawyer who will be willing to undertake the representation even if 
the prospect of payment is bleak. Much of the financial burden of 
investigations of Cabinet officers therefore routinely falls on 
Washington lawyers. They undertake the work because it is interesting 
and they feel a responsibility to society. But it really constitutes 
involuntary pro bono representation. And it confers a legally 
questionable gratuity upon the government employee.
    The time has come, I think, for the United States to pay lawyers 
who represent government employees in these situations, and the cost 
should be charged against the budget of the Independent Counsel. If a 
government employee is subpoenaed by an Independent Counsel, he or she 
should be able to retain a lawyer at the lawyer's prevailing hourly 
rate, with the lawyer's bill to be submitted, on a quarterly basis, to 
the special division court for payment by the government. The court 
may, of course, review the bill for reasonableness (although it should 
not, at that juncture, reveal the bill or any of its details to the 
Independent Counsel).
    Lawyers who cannot now afford to accept a client in an Independent 
Counsel investigation on the evanescent promise that payment may be 
made in the future can realistically be retained under such a system. 
Independent Counsel and his staff will also become aware of how 
expensive repeated subpoenas are because the lawyers' fees for 
unnecessary visits will be charged to the Independent Counsel's budget.
    By the same token, I favor paying, on a quarterly basis, the 
lawyers' fees of all subjects or targets of an Independent Counsel's 
investigation who are government employees. Those lawyers' bills 
should, of course, be itemized and reviewed by the court of appeals for 
reasonableness. But if a government official is investigated by an 
Independent Counsel, he should be able to call on the lawyer of his 
choice, and the lawyer should know that he will be fairly compensated, 
on a timely basis, for his services. That arrangement should be 
effective even after indictment and during trial.
    What happens if the target of an Independent Counsel investigation 
is ultimately indicted and convicted? In that case, the sentence may 
require him to reimburse the government for its payment of his own 
lawyer's fees--just as sentencing law today requires the payment of 
restitution in addition to jail or some other restriction on liberty. 
But it is unethical and unfair to the lawyer to make him work for 
nothing or to make his compensation depend entirely on whether the 
client is indicted.
    Should this apply to anyone subpoenaed by an Independent Counsel, 
whether or not in government service? The private sector is different. 
Subjects or targets of an Independent Counsel who are in the private 
sector when they become subjects or targets are similar to subjects or 
targets of an ordinary Federal prosecutor. Private individuals must 
find funds to pay lawyers if they are suspected of complicity in a 
Federal crime. If the same people are being scrutinized by an 
Independent Counsel, they should also secure private funding for their 
defense.

                               * * * * *

    If there is so much wrong with the present Independent Counsel law, 
why keep it? Why not just let the law lapse and return to the status 
quo ante two decades ago? Let the Attorney General choose a Special 
Counsel--as Judge Griffin Bell told this Committee he did in the case 
of the Carter Peanut Warehouse--whenever a credible accusation is made 
against the President or a Cabinet officer.
    The answer is that the concept of an Independent Counsel is right, 
and the public--through the media--has become accustomed to it. There 
is no turning back. The public will no longer accept a determination in 
a sensitive investigation concerning a high government official if made 
by a counsel who is not independent. The determinations recently made 
by Attorney General Reno on several threshold issues relating to the 
appointment of Independent Counsels have been greeted with great 
skepticism and continue to provide grist to the columnists.
    Looking back at the experience of the Meese investigation, I was 
enormously frustrated and unhappy during various junctures of that 
investigation. I thought that Mr. McKay was acting unreasonably in a 
way that an ordinary Federal prosecutor--limited by budgeting 
restraints and reasonable choices regarding priorities--would not have 
done.
    But the outcome was accepted by the American people. Mr. McKay did 
his job and found that there was no basis to indict Attorney General 
Meese on the allegations that had initiated the investigation (and on 
most other peripheral matters). No one has, since that time, questioned 
the result. Would the same be true if the decision had been reached not 
by an independent lawyer selected by the court but by a lawyer 
appointed by the Deputy Attorney General (since the Attorney General 
was disqualified)? I think not.
    Surely not in today's climate. The prevailing winds are those of 
skepticism and cynicism. Experts on TV roundtables and talk shows 
routinely question the integrity and the motives of government 
officials from top to bottom.
    The purpose of the Independent Counsel law is to restore confidence 
in government processes by ensuring the public that government 
officials who commit crimes will be prosecuted no less zealously than 
the private citizen. In the history of Independent Counsel law, many 
defendants have pleaded guilty or been convicted after trial by 
Independent Counsel. These successful prosecutions should not be 
ignored.
    But what of Kenneth Starr's performance? The conventional wisdom is 
that this latest investigation demonstrated the undesirability of the 
Independent Counsel process. I think, contrary to that conventional 
wisdom, that it proved that an Independent Counsel is necessary for the 
most sensitive cases, and surely when it is the President who is 
accused.
    Fifty Senators voted to find the President removable from office 
because he committed obstruction of justice. Many of those who voted 
against removal said publicly that he should be criminally prosecuted 
for that offense after he leaves office. Forty-five Senators thought he 
should be removed for grand jury perjury, and many others agreed that 
he should ultimately be criminally prosecuted for perjury during the 
Paula Jones deposition or in the grand jury.
    Is there any real likelihood that the case against the President--
recognized now by most Americans to be a legitimate criminal 
prosecution--would have gone as far as it did if the prosecutor were 
not totally independent? The pressures on a prosecutor who was subject 
to Justice Department oversight would surely have overcome any 
inclination to investigate further. If Independent Counsel Starr was 
zealous, his zeal and his independence were surely needed to discover 
the facts in the case.

                               __________
     APPENDIX OF PROPOSED AMENDMENTS TO THE INDEPENDENT COUNSEL LAW
(1) The Inspector Javert Syndrome
    1. Section 594(e) is repealed.

    2. Replace Section 593(b)(3) with the following:

          (3) Scope of prosecutorial jurisdiction.--The division of the 
        court shall define the prosecutorial jurisdiction of the 
        Independent Counsel by reference to the alleged unlawful 
        conduct of the individual who is the subject of the 
        investigation and any Federal criminal statute that the subject 
        may have violated. The jurisdiction of the Independent Counsel 
        should also include the authority to investigate and prosecute 
        Federal crimes, other than those classified as Class B or C 
        misdemeanors or infractions, that may have arisen or may arise 
        out of the investigation or prosecution of the matter so 
        defined, including perjury, obstruction of justice, destruction 
        of evidence, and intimidation of witnesses. The Independent 
        Counsel may not investigate any matter not included within the 
        definition of such Independent Counsel's prosecutorial 
        jurisdiction without receiving prior authorization from the 
        division of the court pursuant to subsection (c).

    3. Replace 593(c) and 593(d) with the following:

        (c) Amendment of jurisdiction.--

          (1) In general.--The division of the court shall not amend 
        the prosecutorial jurisdiction of an Independent Counsel unless 
        the prosecutorial jurisdiction, as initially defined, has 
        omitted alleged conduct or a Federal criminal statute that is 
        part of a single continuing course of criminal conduct. If the 
        Independent Counsel discovers or receives information about 
        possible violations of criminal law by the subject of the 
        Independent Counsel's investigation that are not covered by the 
        prosecutorial jurisdiction of the Independent Counsel and do 
        not qualify for amendment under this subsection, the 
        Independent Counsel shall submit such information to the 
        Attorney General for further proceedings under section 591 of 
        this chapter. An Independent Counsel shall not qualify and may 
        not be appointed pursuant to subsection (b) to conduct any 
        investigation and prosecution of an individual within his 
        prosecutorial jurisdiction other than the matter initially 
        defined by the special division or amended pursuant to 
        subsection (c)(2).

          (2) Procedure for request by Independent Counsel.--If the 
        Independent Counsel discovers or receives information about 
        conduct that is not covered by the prosecutorial jurisdiction 
        of the Independent Counsel but is part of a single continuing 
        course of criminal conduct that includes the conduct defined by 
        the order of the division of the court, the Independent Counsel 
        may apply to the court for an amendment of the prosecutorial 
        jurisdiction. The division of the court may, following such 
        notification and hearing to interested parties, including the 
        Attorney General, as the court deems appropriate, amend the 
        prosecutorial jurisdiction of the Independent Counsel.
(2) The Walter Winchell Illusion
    Add to Section 594(h)(1)(B) the following language:

        , provided that no report of an Independent Counsel shall state 
        or imply there is merit to any allegation that does not result 
        in indictment and conviction.
(3) The Quest for Queen Esther
    Replace Section 593(b)(2) with the following:

          (2) Selection of Independent Counsel.--Not later than 45 days 
        after the enactment of this law and on or before September 1 of 
        every second year thereafter, each member of the U.S. Senate 
        shall provide to the Director of the Administrative Office of 
        the U.S. Courts the names of two attorneys, resident anywhere 
        in the United States, who are not employed by the United States 
        or by any local government, and who are qualified by education 
        and experience to serve as Independent Counsel and are willing 
        to serve. The roster of attorneys nominated by the members of 
        the Senate shall be published by the Administrative Office of 
        the U.S. Courts, which shall receive and file letters from the 
        public regarding the nominees. The division of the court shall 
        appoint as Independent Counsel one of the nominees on the 
        roster maintained by the Administrative Office of the U.S. 
        Courts, but no nominee shall, at the time of his appointment or 
        service, hold any other office of profit or trust under the 
        United States.
(4) The Frankenstein Phenomenon
    Replace Section 594(f) with the following:

        (f) Fairness and compliance with legal standards--

          (1) In general.--An Independent Counsel shall comply with 
        legal standards regarding investigations applied in the Federal 
        courts and, except to the extent that to do so would be 
        inconsistent with the purposes of this chapter, shall comply 
        with the written or other established policies of the 
        Department of Justice respecting enforcement of the criminal 
        laws. Any person aggrieved by an Independent Counsel's 
        violation of these standards may move before the court 
        designated pursuant to subsection (f)(2) for an order enjoining 
        the Independent Counsel from proceeding with any action that 
        violates these standards.

          (2) Reviewing court.--Within 30 days of the appointment of an 
        Independent Counsel the Director of the Administrative Office 
        of the U.S. Courts shall select by lot a court of three active 
        circuit judges that will have jurisdiction to review the 
        conduct of the Independent Counsel, determine claims presented 
        to it pursuant to subsection (f)(1), and issue orders regarding 
        the investigation by the Independent Counsel. The circuit 
        judges eligible for such lottery and assignment shall be the 
        four most senior active circuit judges (excluding chief judges) 
        in each judicial circuit identified in Sec. 41 of this Title 
        who agree to accept such assignment and are not members of the 
        division specified in Sec. 49 of this Title or any other court 
        created pursuant to this subsection. The Clerk of the U.S. 
        Court of Appeals for the District of Columbia Circuit shall 
        serve as the clerk of any court appointed pursuant to this 
        subsection and shall provide such services as are needed by 
        such court.

          (3) National security.--An Independent Counsel shall comply 
        with guidelines and procedures used by the Department of 
        Justice in the handling and use of classified materials.
(5) The Methuselah Factor
    1. Replace Section 594(h)(1)(A) with the following:

          (A) file with the division of the court, at the conclusion of 
        6 months after the date of his or her appointment and for each 
        6-month period thereafter until the office of that Independent 
        Counsel terminates, a report containing the following:

            L  (i) an identification and explanation of major expenses 
        and a summary of all other expenses incurred by that office 
        during the 6-month period with respect to which the report is 
        filed;

            L  (ii) an estimate of future expenses of that office;

            L  (iii) an estimate of how many more months the 
        Independent Counsel believes that the investigation will last; 
        and

            L  (iv) in the case of any report filed 18 months or more 
        after the appointment of the Independent Counsel, an 
        explanation, with reference to specific events during the 
        investigation, for the duration and expected duration of the 
        investigation; and

    2. Renumber subsections (2) as (3) and (3) as (4). Insert the 
following as subsection (h)(2):

          (2) Termination by the courts.--If the division of the court 
        determines from the report filed pursuant to subsection (1) 
        that there is no lawful justification for the extension of the 
        investigation, the court may, following the filing of any 
        report filed 18 months or more after the appointment of the 
        Independent Counsel, order that the investigation be concluded 
        within a specified number of months.
(6) The King Midas Fallacy
    Replace Section 593(f) with the following:

        (f) Attorneys' fees.--

          (1) Government employees.--On the application of any 
        government employee who was served with a subpoena by the 
        Independent Counsel, the division of the court shall order the 
        Independent Counsel to pay reasonable attorneys' fees directly 
        to an attorney chosen by the government employee to represent 
        him or her with regard to the subpoena and the investigation of 
        the Independent Counsel. The division of the court shall not 
        submit information in the application to the Independent 
        Counsel or the Attorney General. It shall review the 
        application for attorneys' fees in light of the sufficiency of 
        the documentation, the need or justification for the services, 
        whether the expense would have been incurred but for the 
        provisions of this chapter, and the reasonableness of the 
        amount of money requested. Applications for payment of 
        attorneys' fees under this subsection shall be submitted no 
        more frequently than every three months, and payment shall be 
        made within 15 days of the order of the court. Any payments 
        made by the Independent Counsel to an attorney under this 
        subsection shall be added to the expenses of the Independent 
        Counsel reported pursuant to section 594(h)(1) of this Title.

          (2) Targets and subjects.--Any government employee who is a 
        target or subject of the investigation of the Independent 
        Counsel shall be entitled to apply for and obtain payment of 
        attorneys' fees pursuant to subsection (1), whether or not 
        served with a subpoena, from the time he or she is notified by 
        the Independent Counsel or it otherwise becomes clear that he 
        or she is a target or subject of the investigation.

          (3) Non-government employees.--Any individual who is not a 
        government employee and any other entity that is the subject of 
        an investigation conducted by an Independent Counsel and has 
        not been indicted shall be entitled, at the conclusion of the 
        investigation, to recover reasonable attorneys' fees incurred 
        as a result of the investigation which would not have been 
        incurred but for the requirements of this chapter. Any 
        application for attorneys' fees pursuant to this subsection 
        shall be submitted by the division of the court to the Attorney 
        General and to the Independent Counsel for comment in light of 
        the criteria enumerated in subsection (1).

          (4) Conviction and reimbursement.--If any person who is 
        awarded attorneys' fees by an order of the division of the 
        court pursuant to this subsection is thereafter convicted on an 
        indictment submitted by the Independent Counsel, the sentencing 
        court may, as part of the sentence and judgment of conviction, 
        direct that he or she reimburse to the United States the amount 
        of attorneys' fees paid under this subsection.

          (5) Definition.--``Government employee'' means any person who 
        earns more than 50 percent of his or her total annual income 
        from a salary provided by the United States or any state or 
        local government.

    Chairman Thompson. Thank you very much, Mr. Lewin. I think 
your last point that you made is one that is probably the best 
point in favor of retaining some sort of statute, and that is--
and a point that you elaborate more in your written statement--
that we can't go back again; that now that we have it, the 
public expects some kind of other mechanism even though it may 
be flawed; and that we are not really writing on a blank slate 
anymore in terms of public perception. And I must say that so 
far the polls indicate that apparently most people would favor 
retaining something, and that may go to your point there. We 
can get back to that in a minute.
    But I think what you two gentlemen do is point out two 
different sides to different coins that maybe we don't often 
get. In the first place, there are investigations that go on in 
this country all the time, and just because an Independent 
Counsel is not investigating someone doesn't mean that someone 
would not be investigating someone. So you are comparing. It is 
not Independent Counsel versus nothing oftentimes. Most times, 
it is the Independent Counsel versus, say, a regular Justice 
Department-type investigation. So what is the difference there? 
I think that is one thing we need to explore.
    The other coin has to do with the fact that we raise all 
these problems with the Independent Counsel, but the 
investigation has got to go somewhere. And most people say, 
well, let's let it go back to Justice in one form or another, 
bring in special counsel on occasion, Public Integrity in most 
cases, or what not. But that presents problems. I mean, we are 
suffering, right now from diminished confidence, perhaps, that 
the Justice Department can handle those things. I think you 
laid a wonderful background that I would like to get back to in 
a moment or two.
    More detailed points first. For some reason, you gentlemen, 
all of you--the point that crops up throughout your statements 
that I don't see in a lot of others has to do with attorneys' 
fees. I can't quite figure that out, but it is there and it is 
something that we don't spend a whole lot of time concentrating 
on. And you suggest that the system we have now is unfair to 
targets, and also unfair to witnesses, and we should broaden 
that compensation.
    But the first thing that strikes me is that ordinary people 
in ordinary investigations are investigated all the time both 
by Justice Department and around the country whether they are 
indicted or not. And under our current IC system, of course, if 
you are not indicted, you get all or most of your attorneys' 
fees paid. And if you are indicted, you are not, even if you 
are acquitted. But most people don't get their attorneys' fees 
paid under any circumstances, if they are not indicted or if 
they are indicted and acquitted, or whatever.
    I am wondering whether or not this maybe, the system that 
we have set up, is some kind of implicit recognition that 
perhaps this is kind of extraordinarily onerous. And my second 
point is in view of the fact that most people, whether the 
investigations are fair or unfair, or the prosecutions are 
successful or unsuccessful or renegade or justified, do not get 
their attorneys' fees paid at all, so what justification do we 
have for expanding the provision of an IC statute if, in fact, 
we have one. And if we do away with it, as Mr. Bennett 
suggests, I assume we would have no provision for any 
attorneys' fees at all.
    Could you elaborate, each of you, on those points?
    Mr. Bennett. Well, I may get drummed out of the corps here. 
I just don't see that as a big issue because, again, as a 
practical matter the egos--and I don't mean that in a critical 
way--of first-rate trial lawyers who do this kind of work is 
they want to be in the action. And while there may be a 
particular lawyer who will not take a case or can't afford to 
take a case, most people who come under investigation in an 
Independent Counsel investigation are going to be able to get 
representation. And I would be troubled if the Committee wastes 
a whole lot of time on this and not on the more fundamental 
issues.
    If I could just make one other point so my position is 
clear, I agree that there is a need of some kind of 
independence, but my point is it is best to be done within the 
structure of the Justice Department. If, in a high-profile 
investigation, any one of the people, such as Mr. Lewin, Mr. 
Fiske, Mr. Ruth, or Mr. Beall, who are here today, were 
appointed as a special counsel working within the structure of 
the Justice Department under appropriate internal guidelines I 
think you will accomplish about as much as you can. We will get 
the benefits of independence without all of the draconian 
things we have been talking about.
    To me, it is a practical thing. Let me just share with you 
the experience I had when I represented Mr. Weinberger. We 
caught Mr. Walsh towards the end of his investigation. I 
believe he served--maybe I will be corrected on this--I think 
it was 7 years which was longer than all but three attorneys 
general in the history of our country.
    Very often, I wasn't able to deal with Mr. Walsh. I was 
dealing with a deputy who had been primarily a drug prosecutor 
in another jurisdiction. When I have a major Justice Department 
case, I can get several experienced prosecutors to look at the 
case--these are professionals who have experience in using the 
vast machinery of law enforcement. Usually, when I am dealing 
with an Independent Counsel, I am not dealing with someone with 
that kind of experience. In the beginning of an investigation, 
you find there are lot of very good people working for the 
Independent Counsel, but if you get into the tail-end of an 
investigation, you find that most of the very good people are 
gone. My concerns are basically practical concerns.
    Chairman Thompson. Very good point. Mr. Lewin, comment on 
that because you make the point on the other side of that coin 
that your experience under ordinary circumstances, non-
Independent Counsel circumstances, is that you run into the 
same or worse problem than Mr. Bennett refers to. So what do 
you think about what Mr. Bennett just said?
    Mr. Lewin. Absolutely. Maybe Bob Bennett gets seven or 
eight Department of Justice people wrestling over each of the 
questions that he brings to them. My experience really has 
been, by and large, that there are great injustices done in 
ordinary Federal criminal prosecutions. In some prosecutions 
assistant U.S. attorneys and U.S. attorneys themselves approve 
going ahead even when it is a gross misjudgment. Going to the 
Department of Justice is very much of an uphill battle.
    I have done that a number of times. I am flattered that Mr. 
Bennett says that if I was an Independent Counsel, everybody 
would take my word. I just don't think that is true. I think 
the Department of Justice by and large lets its line attorneys 
and the people up the line--gives them great discretion. They 
make great misjudgments, and you don't get the Department of 
Justice ready to interfere with that in the ordinary course.
    Chairman Thompson. How about the length of the 
investigation?
    Mr. Lewin. The length of the investigation? I have been in 
investigations, criminal investigations, that have gone to the 
eve of the statute of limitations and even have required--the 
government prosecutor says, look, we want to get the statute of 
limitations extended. These things go on and on and on quietly, 
without all of the glare of publicity that may accompany it.
    Let me explain to you why I think an Independent Counsel is 
desirable. The theory of an Independent Counsel is if you have 
a discreet allegation, an experienced attorney--a Bob Bennett, 
a Bob Fiske, a Jake Stein, a Leon Silverman--should be able to 
look at that allegation, have a couple of people working on it 
maybe full-time, and make a judgment as to whether you ought to 
go ahead. That is an experienced lawyer working from the 
outside.
    As a matter of fact, I am not in favor of having all these 
lawyers resign to become full-time Independent Counsels. The 
theory ought to be that a Bob Fiske or a Bob Bennett or maybe 
myself should be able to look at this, have a couple of people 
working on it, and within 6 months decide is there something we 
can go ahead with or not. But that is a discreet allegation. If 
they say to me, go after Mr. ``X'' and find everything you can 
about him, of course, that is going to take years. But that is 
not the kind of thing that the theory of the Independent 
Counsel is directed to.
    Chairman Thompson. That rolls into another question--I have 
got just a little bit of time--and that has to do with the 
selection process and the reference made that if these 
gentlemen were appointed, you gentlemen were appointed 
Independent Counsel, things would go smoothly, and I think that 
they would.
    Several suggestions have been made concerning how the 
three-judge panel might operate in the selection process. And I 
think one of the things we have learned is the fact that 
apparently it is very haphazard. It depends on the personal 
acquaintances of the three judges either directly or through 
other references that they get.
    Let's just take these high-profile cases, setting all the 
criticisms after the fact aside. Has it not been the case that 
everybody who has been selected as an Independent Counsel has 
been someone of the highest reputation at the time that they 
were selected? I won't ask you for details and put you on the 
spot in terms of names, but as a general proposition it does 
occur to me that with regard to these high-profile cases, 
whether it be Mr. Starr or Mr. Walsh or any of the others, that 
there is not a great deal of criticism coming in terms of 
things that were on the table at that time. You never can tell 
what someone is going to do, but at that time.
    Mr. Bennett. Well, I think--could I just make one 
observation on his point?
    Chairman Thompson. Yes.
    Mr. Bennett. I agree with Mr. Lewin that there is a lot of 
injustice out there and there are a lot of bad decisions. And 
if you get a line attorney in some other jurisdiction, it is 
hard to get review at Main Justice. I am not talking about 
that. I am talking about a high-profile Justice Department 
investigation. In 30 years, I have never had a situation where 
I could not get a meaningful review in an appropriate case. I 
have certainly been turned down a whole lot of times, like the 
Rostenkowski case. This is a good example. He was a very close 
friend to the President. The President was campaigning for him. 
I certainly couldn't get Eric Holder at the Justice Department 
to back off that case. When you have a significant case at the 
Justice Department, I find that you get a lot more review and 
scrutiny than with an Independent Counsel.
    But let me address your point, and I don't want to get into 
names and I accept your permission not to do that. I don't 
agree with that. First of all, with all due respect to 
appellate court judges, I don't think they are very good at 
picking Independent Counsel.
    Second, they live in a different world. They are not down 
there in the pit. As my friend Ted Olson says, he quotes a 
Spanish saying that, ``It is one thing to talk about the bulls 
and quite another to be in the bull ring.'' And I think if you 
look at these resumes carefully, you will find that many times 
these are not people who have been in the bull ring. They have 
beautiful, wonderful resumes. I am not surprised that Jake 
Stein brought about a good result. He has been in the bull 
ring.
    Chairman Thompson. But you are talking about qualifications 
more than integrity.
    Mr. Bennett. I am not talking about integrity. I don't 
question the integrity. But what we have done is we have taken 
the vast law enforcement power of the Executive Branch and have 
placed it sometimes in the hands of people who have not used 
that power frequently, who are not experienced in the nuances 
of using that power, and that is a problem.
    Chairman Thompson. I take your point. Mr. Lewin, briefly, 
and I will----
    Mr. Lewin. I agree entirely. These are all men of 
integrity, but I agree with Bob Bennett. They are not people 
who know what it is like to actually be questioning witnesses, 
making judgments with regard to them, preparing the case. I 
have, as I said before, the highest regard for Ken Starr, but 
it turned out that he was never involved in terms of 
questioning grand jurors, in terms of making personal 
evaluations of witnesses.
    Now, I think that is the kind of qualification that is 
looked for in terms of the Independent Counsel. That is the 
kind of judgment. It is a Bob Bennett's judgment and a Bob 
Fiske's judgment that really is needed. But within the 
Department of Justice--and this just responds to your earlier 
question, Mr. Chairman. I think when it is within the 
Department of Justice, the public will not accept it the way 
they would if this were an independent person employed from the 
outside world out in the private sector acting under the 
auspices of the court.
    It will still be the Attorney General's person who has 
decided not to prosecute. That is the case you have got to be 
looking at. You have got people who are coming on the next 
panel who successfully prosecuted Vice President Agnew, for 
example--Mr. Beall. That is good, and nobody says it can't be 
done by the Department of Justice. The problem is what is going 
to happen with the next Cabinet officer about whom the 
Department of Justice maybe hears an allegation and doesn't 
indict. Is the public going to believe it or are they going to 
say it is political?
    Chairman Thompson. Thank you very much. Senator Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman. Thanks to both of 
you for the time you took in preparing your statements, which I 
thought were very thoughtful and very helpful. And though you 
reluctantly assumed the role of surgeon here, Mr. Bennett, I 
thought some of your operating suggestions were really quite 
helpful.
    In a way, I want to come back to what Mr. Lewin just 
finished with. But I want to clarify, Mr. Bennett, the last 
suggestion you made, which was to have removal of the 
Independent Counsel for good cause by the Attorney General. As 
you well know, that is in the current law, but then that 
decision by the Attorney General is appealable to the court.
    Am I correct in assuming that you would remove that last 
step of appeal? Would you allow the Attorney General's judgment 
to be final there?
    Mr. Bennett. Yes, I would remove it. I think separation of 
powers is pretty important, and I think judges should be 
judging cases and they shouldn't be getting involved in issues 
such as the removal of a prosecutor. I believe if an Attorney 
General improperly or without cause removed a prosecutor, there 
would be such enormous hell to pay in this country--that is our 
best protection. Judges should judge, prosecutors should 
prosecute, and we should not get it all muddled up the way we 
have
    Senator Lieberman. How about the possibility of 
establishing some appeals process within the Executive Branch 
as a way of surmounting your separation of powers concerns?
    Mr. Bennett. I haven't really thought about that, but I 
think that that is a possibility. I think it is consistent with 
my overall view of this that within the structure of the 
Justice Department we can, in effect, have a Leon Jaworski-type 
prosecutor that will be credible to the American people, 
whichever way he or she goes, but have these protections within 
the structure of the Executive Branch and the Department of 
Justice. Nothing will solve all your problems.
    Senator Lieberman. Right. Let me now come back to what Mr. 
Lewin said because I thought you made a good point, at least in 
my review of this over the last couple of weeks. You approached 
the point from a different perspective. Here is what I mean.
    I have been for retaining this office in some form for two 
reasons. One is to assure that, in fact, independent 
investigations are conducted of the highest-ranking people of 
our country when they are suspected of committing a crime, just 
to prevent the circumstance where such an investigation, if 
done internally, was corrupted, was stifled.
    The second, though, is the point of public credibility, and 
particularly at this time of great cynicism. I know cynicism 
has been part of American history, but the cynicism quotient 
seems to be a bit higher and expresses itself in distrust of 
government. You would want to convince the public that an 
investigation was done fairly, and this is a point where we do 
really have Mr. Starr's investigation too much in our mind, I 
think, because you make the point through the Meese experience 
which is important for us to remember that one of the central 
reasons for having an Independent Counsel is not just to make 
sure that there be prosecution if it is justified by the facts, 
but that there be a declaration of innocence that is credible 
to the public if the facts don't justify prosecution. And as I 
mentioned briefly in my opening statement, more than half of 
the Independent Counsels have not gone forward with 
indictments, which is a measure in that sense of the success of 
the office.
    So part of what I want to ask Mr. Bennett is that question, 
which is--as you said at the outset, the Independent Counsel 
office has become a weapon in the arsenal of partisan politics. 
You are right. Politics has become more partisan. The 
electronic media particularly, but all media now, have lowered 
their own thresholds for what kinds of scandal they will cover, 
how much they will cover.
    But isn't it true that one way or another, there are going 
to be partisan politics and media focus on these 
investigations, and ultimately, particularly in cases of 
decisions not to prosecute, that there is going to be much more 
credibility if you can say this person wasn't under the heel of 
the Attorney General or the President?
    Mr. Bennett. Well, you have to be careful. I mean if you 
write the statute in a way, as I understand the law, which 
totally isolates the Attorney General, then you are going to 
have an unconstitutional statute. As I read the Morrison case, 
the only reason that the separation of powers argument survived 
was because it was recognized that in the last analysis the 
Attorney General has some power here, the power of removal. So 
you are stuck with that, no matter what system you have. So 
let's not forget total independence is probably 
unconstitutional.
    Also, I don't think the test, by the way, should be whether 
there is no prosecution. I mean, we shouldn't assume that all 
of the decisions that have been made not to prosecute were the 
right ones. But I believe, Senator, that, using Jake Stein as 
an example, and assuming that was the right decision--and I am 
not suggesting it was not--I believe if Mr. Stein had been 
designated as a special counsel or a special prosecutor within 
the Public Integrity Section, and that there were internal 
guidelines which said he didn't have to report to the Deputy 
Attorney General or didn't have to report to A, B, C or D and 
he had come out the way he did, I think the public would have 
accepted his decision.
    But we can't let the tail wag the dog here. The problem we 
have is we have just created this monster. We should focus on 
making the Department of Justice an institution which people do 
respect. If no decision within the structure of the Justice 
Department will be accepted by the public than this Committee 
should not focus on the Independent Counsel Statute, but for 
the long-term survival of our system, should instead focus on 
making the Justice Department a different entity than it is. I 
don't believe that that is necessary, but that is what is most 
important.
    Senator Lieberman. I hear you.
    Mr. Lewin. Can I just speak to that for a moment, Senator 
Lieberman, because I do disagree with my good friend Bob 
Bennett on that?
    I mean, this is a government of laws and not of men. Much 
as I respect Jake Stein--Bob Bennett, and I and Mr. Fiske all 
would say, well, if Jake Stein says there is not a basis for 
prosecuting, I would believe him. But 99 percent of the 
American public, or maybe more I daresay, have never heard of 
Jake Stein. And they would simply say, hey, this was at a time 
when Mr. Meese was appointed. The Jake Stein investigation grew 
out of the appointment of Mr. Meese as Attorney General.
    Senator Lieberman. Right.
    Mr. Lewin. Now, just imagine that Jake Stein had been 
appointed by the Department of Justice as an Independent 
Counsel, a special counsel, to look into whether the 
President's appointee for Attorney General committed any 
criminal offense. And with all the regard I have for Jake 
Stein, if he had said after 6 months, no, perfectly all right, 
I think most of the country would have said this is a political 
fix. So they got some lawyer who has got great respect?
    So, that is not the point. As I say, it is a government of 
laws. You have got to look to set up a system that people will 
have confidence in, not rely on individual people. And that is 
why I have come around to the view that there should be a 
system under which a Jake Stein or a Bob Bennett or a Bob Fiske 
is appointed as an independent lawyer. When they conclude their 
investigation, that is a declaration of innocence which you 
don't get from the Department of Justice.
    If I succeed on behalf of a client with a U.S. attorney or 
with the Department of Justice, the case goes away. My client 
says to me, hey, I want to get a letter that says they 
concluded this and said I am innocent. Prosecutors laugh at me. 
I tell the client they are going to laugh if I ask them for a 
letter, because prosecutors never write letters saying you are 
innocent. But when an Independent Counsel says, I have 
concluded the investigation and there is no basis for indicting 
Mr. Meese, that is as close as you will ever get to a 
declaration of innocence.
    Mr. Bennett. There is a flip side of this which I think is 
more significant and more important. You appoint somebody 
totally independent who operates totally outside of the Justice 
Department there are going to be a substantial number of people 
who say the politicians are at work interfering with law 
enforcement.
    And there will be a lot of defense lawyers, some of whom 
are here today who will argue ``Ladies and gentlemen of the 
jury, this is politics, this is politics.''
    Senator Lieberman. Well, it is going to happen in either 
case, so the question is how can we make the judgment of the 
prosecutor most credible to the most people. It is hard to ask 
too many questions of you guys. Your answers are engaging.
    Did I hear you say, Mr. Bennett, that you thought that when 
the law expires, we ought to bring all the Independent Counsels 
back into the Justice Department? I know we have the power of 
the purse, but wouldn't that be a real separation of powers 
concern that the Congress is essentially wrapping up 
independent prosecutors' investigations?
    Mr. Bennett. No. I am not naive to think that this is going 
to happen, but I think if you were to determine that this 
statute--I am somewhat of a realist, but I feel, to be honest 
with you, if you determine that this statute should die because 
of a variety of reasons, then you should let it die. You 
shouldn't let three, four, or five Independent Counsel just 
continue as is.
    If you decide that there is a new structure you are going 
to have within Justice then what I am saying is all of those 
cases should go back for review within the new structure. And 
it may well be that the determination is that Mr. Starr 
continues or that any one of the other Independent Counsel 
continue. But if it is a bad system, let's end it. Let's not 
perpetuate it.
    Chairman Thompson. I think your realism is well-placed.
    Mr. Bennett. I took a shot. Thank you. [Laughter.]
    Chairman Thompson. Thank you. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman. I want to thank 
both of our witnesses for their testimony. Mr. Lewin, I 
particularly enjoyed your testimony because it mirrors so much 
my own thinking on this issue. You pointed out, as did Senator 
Lieberman, that the public is much more likely to accept a 
finding if it is made by an Independent Counsel not to bring 
charges against the target of the investigation. And I think 
that is such an important point that has been overlooked in 
much of the debate.
    Now, an alternative that some have advocated is to beef up 
the Public Integrity Division of the Justice Department perhaps 
by having a head who has a set term that would go beyond the 
term of the President. And I wanted to get your reaction to 
that proposal. Do you see the same problems of independence and 
public confidence in the results of investigations occurring as 
long as that official is part of the Justice Department, no 
matter how many safeguards we try to put in?
    Mr. Lewin. Yes. I think assuring that person's continuity 
in office as head of the Public Integrity Section doesn't take 
care of the problem that he or she is still within the 
Department of Justice. And ultimately the decision, I guess, is 
made within or under the Department of Justice aegis. If it is 
a totally separate office, although nominally within the 
Department of Justice, I have serious problems with that, too.
    Some people have suggested setting up an office of 
Independent Counsel within the Department of Justice which is 
totally independent. But you then have somebody who is sitting 
around there waiting to find some allegation against a public 
official. He has a whole staff that doesn't handle the ordinary 
kinds of activity, but if he handles these kinds of things, is 
waiting around to be able to justify his own office's existence 
by a whole group of these cases. I think that makes the 
situation as bad, if not worse, than it is today. If you have 
an allegation that justifies triggering some mechanism that 
somebody is looked into, let's do that, but don't, for God's 
sake, have an office to simply say we are independently going 
to look to see whether any Cabinet officials have committed any 
offenses.
    And by the way, let me add to that another disagreement I 
have with Bob Bennett concerns this notion that it has got to 
be limited to the time that the public official is in office. 
That means that in the very first years of a new administration 
nobody who makes an allegation against a Cabinet officer about 
something he or she may have done in private life before he or 
she became a Cabinet officer would come within this procedure. 
And yet I think it is equally important.
    If somebody says, the Secretary of Commerce did something a 
year or 6 months before he or she became Secretary or Commerce, 
the problems with regard to that being investigated by the 
Department of Justice are as great as if it is something the 
Secretary or Commerce did on his or her third day in office.
    Senator Collins. Let me ask you two other quick questions. 
One concerns the coverage of the law. Mr. Bennett has suggested 
that if the law survives, we should narrow the coverage to just 
the President, the Vice President and the Attorney General. It 
is difficult to figure out exactly how many people are covered 
under the current law because it is tied to salary levels, but 
it is probably more than 100 officials.
    I have proposed shrinking the coverage, but not nearly to 
the extent that Mr. Bennett proposes. It seems to me that the 
Attorney General is always going to have an inherent conflict 
of interest, whether actual or perceived, investigating any of 
her colleagues in the Cabinet, for example.
    Do you have any suggestions on narrowing the scope of the 
covered officials under the law?
    Mr. Lewin. I don't have any specific suggestions. I haven't 
addressed that in my statement, but I agree with you, Senator 
Collins, that it should be narrowed from where it presently is, 
but not as far as Mr. Bennett suggests or others have 
suggested. I think simply limiting it to the President, Vice 
President and Attorney General would be far too narrow. The 
same problem arises with any member of the Cabinet, people who 
are right up there in terms of White House staff right next to 
the President. I think they all ought to be covered.
    Senator Collins. Finally, I share your concerns about the 
fairness of the final report provision of the Independent 
Counsel Act. I think we have seen more than one case where the 
final report to Congress includes a lot of opinion by the 
Independent Counsel that damages the reputations of people even 
in cases where a decision not to indict the official occurred. 
I think we saw that with the Walsh report, for example. And, 
indeed, Ken Starr's report raises issues of whether impeachment 
proceedings should be tied to an Independent Counsel's report.
    Why not just abolish the reporting requirement altogether, 
the requirement of a final report to Congress?
    Mr. Lewin. Well, I think abolishing it in terms of any 
recitation of evidence would be the proper thing to do. On the 
other hand, I think it has an accountability feature to the 
extent that the Independent Counsel says to Congress, here is 
what I did, I conducted an investigation. It can be a very 
short, and should be a very short document that just simply 
reports what the Independent Counsel actually did, not what he 
believes, not a summary of evidence, and certainly not a 
statement of opinion.
    And let me just give you a practical insight into that. 
When Mr. McKay completed his report about Attorney General 
Meese, we were extremely relieved that he was not indicting. He 
had this terrible stuff in the report about, well, I think he 
committed this, I think he committed that, but we won't indict.
    As a defense counsel, I was faced with a Hobson's choice. I 
could go to him and say, you can't put that in the report; 
either you indict my client or take it out. And I had a fear 
that the response would be, OK, if that is what you want, we 
will indict him. We were so delighted that he was not going to 
be indicted, we weren't quarreling with the fact that there was 
stuff in that report. But a defendant and his lawyer are in an 
impossible position when that happens because if he tries to 
call the Independent Counsel's bluff, there is the risk that it 
won't be a bluff at all.
    Senator Collins. Thank you, Mr. Chairman
    Chairman Thompson. Thank you very much. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman. Going back to a 
point which a number of us have raised, which is the 
credibility of a decision not to indict, Mr. Bennett, your 
answer to that was that if a decision not to indict was made by 
a special counsel rather than an Independent Counsel, you 
thought that would have as much public credibility. And I must 
say I don't agree with you on that point.
    I happen to think there are many problems with the 
Independent Counsel law, and many abuses that we have seen, 
severe abuses. We have tried to rein in the power of 
Independent Counsel each time we pass the law or reauthorize 
the law. We have not succeeded, in my judgment. We ought to 
keep trying to find some other mechanism.
    But in one area I really do not agree with you, and it is 
the Meese experience, too, because I can personally vouch for 
the fact that I was no fan of Mr. Meese, to put it gently. But 
when the Independent Counsel reached a conclusion that he would 
not indict Mr. Meese, I could accept that far more readily than 
I could have accepted the Department of Justice, which he was, 
I think, then nominated to head, reaching that conclusion. I 
can give you that as a personal experience in terms of 
confidence in a decision not to indict, which after all is the 
decision which I believe has been made by a majority of the 
Independent Counsel, or close to it.
    Second, we have the experience of the court relative to 
Judge Fiske, where we specifically told the court that they 
could appoint Judge Fiske as the Independent Counsel, should 
they choose, because he had already been selected as special 
counsel in the Whitewater matter. And we very specifically in 
the reauthorization said they may appoint him, and that court 
decided not to reappoint Mr. Fiske and specifically said it has 
got nothing to do with his integrity, which they accepted very 
readily, thank God.
    But the court said that, having reviewed the motion of the 
Attorney General, Robert Fiske's appointment as Independent 
Counsel would not be consistent with the purpose of the act. 
And then they went on to say that, as Fiske was appointed by 
the incumbent administration, ``the court therefore deems it in 
the best interest of the appearance of independence 
contemplated by the act that a person not affiliated with the 
incumbent administration be appointed.''
    So even this three-judge panel, who I happen to disagree 
with, by the way, significantly on their decision here because 
I thought they should have reappointed Judge Fiske--he had 
already been into the matter and he had total integrity--
nonetheless, they said the appearance of independence was such 
that they would not reappoint him, even though it was 
authorized by the act.
    So in terms of the level of confidence that someone outside 
or inside the Department of Justice has in terms of the public 
accepting a result, particularly when it is a result not to 
indict--it seems to me we ought to accept that there would be a 
greater level of public confidence with a decision of an 
Independent Counsel not to indict than there would be typically 
with a special counsel's decision not to indict.
    Now, that is not a question. It is just my own feeling 
about that. That should be put on the scale, however, against 
the criticisms of the Independent Counsel law. So where I think 
I disagree with you, Mr. Bennett, is in your statement that the 
public would have accepted it as much coming from a special 
counsel as an Independent Counsel. I think on that it is not 
accurate in my experience, based on many things.
    However, that is not to deny your ultimate conclusion that 
there is so much on the other side of the scale that outweighs 
that benefit that we have to look at both sides of the scale. I 
myself, again, would like to try to see if we can fix this law, 
repair it; if we can't, to find a way to bolster the Public 
Integrity Section.
    Now, having said all that, let me get to my questions 
because it is a point that I think is important, obviously, to 
all of us who have spoken that there is some credibility gained 
on a decision not to indict. We have to look at the other side 
as well.
    Now, termination by the court. The current law provides--
and here I will have a question--the current law does provide, 
and I want to read it. ``If the Attorney General has not made a 
request under this paragraph to terminate an Independent 
Counsel no later than 2 years after the appointment of the 
Independent Counsel, then at the end of the 2-year period, the 
court will do it on its own motion.'' That is current law.
    Now, I haven't seen that placed in operation by the court. 
Now, maybe I have missed something here, but this is now a 
question of both of you.
    Mr. Lewin. What section are you reading from now?
    Senator Levin. I am reading from Section 596(b)(2). ``The 
division of the court, either on its own motion or upon the 
request of the Attorney General, may terminate an office of 
Independent Counsel at any time on the grounds the 
investigation of all matters within the prosecutorial 
jurisdiction of Independent Counsel or accepted by such 
Independent Counsel has been completed or so substantially 
completed that it would be appropriate for the Department of 
Justice to complete such investigations and prosecutions.''
    Now, we have had two instances that I would like to ask you 
about. One is the Pierce Independent Counsel that has been 
going on 9 years. I think 4 years ago, the Independent Counsel 
decided that it had resolved the issues relative to the former 
HUD Secretary and it is still not finally completed. That 
provision, which was aimed by the Congress to try to put some 
limits on these investigations, has seemingly not had any 
effect on that investigation which has been going on 9 years.
    And in the Starr investigation, we had Judge Starr saying, 
I think, 6 months ago when he made his presentation to the 
House that his investigation was either completed or nearly 
completed relative to Whitewater, Filegate, Travelgate, and one 
other gate.
    Now, my question of both of you is are you aware of any 
effort by the special court to terminate either of those two 
investigations based on Section 596(b)(2). That is my specific 
question.
    Mr. Bennett. I am not.
    Senator Levin. Do you have any comment? I want to give you 
a chance to comment on my earlier----
    Mr. Bennett. Yes, I would like to. No, I don't know of any. 
I just want to be sure you understand my position. If you start 
with the fundamental question of will the public accept a 
decision with someone who has nothing to do with the Justice 
Department better than one who has something to do with the 
Justice Department----
    Senator Levin. Not to prosecute, we are talking about.
    Mr. Bennett. Yes. With all due respect, I mean that is a 
Ph.D. in the obvious. Of course, if you have nothing to do with 
the Justice Department, it is better. But my point is, Senator, 
you can get 80 or 90 percent of the way there with some changes 
within the system, without all the other baggage, you point out 
correctly there is sort of a sliding scale here. That is not 
your word, but there is a lot of other baggage that comes with 
it. And what I am saying is for that extra 10 percent or 20 
percent, or whatever, it is just not worth all the other 
problems you are going to have. That is my point.
    Thank you.
    Senator Levin. Sure. Mr. Lewin, do you know of any 
consideration by the court under 596(b)(2) to terminate an 
Independent Counsel because the work is nearly completed, as 
was represented by Judge Starr 6 months ago and was apparently 
the case in the Pierce investigation, a few years ago?
    Mr. Lewin. No, I know of none. Of course, the problem is 
that the special division of the court operates under in camera 
or secrecy rules, except to the extent that it issues opinions. 
So there is no ongoing publication of any application, if any 
application was made, whether anybody ever asked to have the 
office terminated.
    And the problem, quite frankly, Senator Levin, is that the 
statutory language doesn't give you much of a hook on which to 
rely. It talks about the ground that the investigation of all 
matters within the prosecutorial jurisdiction of such 
Independent Counsel has been completed. Now, if the Independent 
Counsel says, I haven't completed it yet, judges have a hard 
time saying, we disagree, we tell you you have completed your 
jurisdiction. It looks like the kind of thing that will only 
take care of the most extreme kind of case.
    Senator Levin. Let me move to the suggestion that you have 
made, Mr. Bennett, and others have, that we go back to a system 
where special counsel are selected. I happen to agree with you 
totally. The law has not succeeded in removing the issue from 
politics at all. We have not succeeded in that. In only one 
area do I think the law has clearly succeeded, and that is the 
area which Mr. Lewin has focused on where there is a decision 
not to indict. I think it is more readily accepted in maybe 100 
percent versus 80 percent. Maybe we can get to that. 
Nonetheless, there is a difference there which is important, I 
believe.
    But, now I want to ask you about removing from politics. If 
we go back to a special counsel approach, we will still have a 
situation where politics can be interjected quite easily, and 
that is that people will argue, you ought to pick a special 
counsel here, you shouldn't be doing this inside the Justice 
Department with the Public Integrity Section doing it, you 
should pick a special counsel.
    We have that now argued with the Independent Counsel all 
the time. We have people in the Congress putting a lot of 
pressure on Attorney General Reno to go for an Independent 
Counsel in the campaign finance area. You should go; the law 
requires you to go. Many people in the Congress put tremendous 
pressure on the Attorney General to do that. That was political 
pressure on the Attorney General.
    You could still have that kind of political pressure on the 
Attorney General to seek a special counsel, if that is the 
route we go. So, that doesn't really remove it at least totally 
from politics, now, to get to the sliding scale, does it? That 
is my question. Don't you just have the same political problems 
with that mechanism, or similar political problems?
    Mr. Bennett. These are all degrees. You can't eliminate 
politics completely from these things, and frankly I am not 
sure you should. But it is a question of degree. I think there 
will be less of it under what I suggest rather than what we 
have now. And one of the big problems which I hope you will not 
overlook--I am sure you won't--is the way the system works now, 
we have each of these levels of which just puts the scandal 
machine in overdrive. And on each occasion, members of Congress 
speak on each of these events, and politics takes over.
    Maybe I don't think it is as complicated a problem as many 
people do. I think if you had a roster of superstar people, 
many of whom are testifying before you today, and they were on 
a roster ahead of time and people weren't lobbying for these 
positions, and if a sensitive investigation came up and a 
revised Public Integrity Section--if it were announced that Mr. 
Fiske or Mr. Lewin or Mr. Beall, or any one of a number of 
wonderful lawyers were going to handle this, and here are these 
internal guidelines, I think it would go a long way to 
reducing, if not eliminating politics.
    Senator Levin. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much.
    Mr. Bennett. I find it interesting, by the way--you 
mentioned Mr. Fiske. The argument for not having Mr. Fiske do 
it, the appearance issues--I can't quite understand the 
subsequent appointment, which to me created many more 
appearance problems.
    Chairman Thompson. Thank you very much. Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. Last week, 
Senator Baker made a comment that the Independent Counsel 
Statute had drastically altered the nature of the impeachment 
proceedings by the provision which called upon Independent 
Counsel to transmit information to the House of Representatives 
on specific and credible evidence of wrongdoing.
    My own view is that we ought to try to salvage the 
Independent Counsel Statute, and a number of us are working on 
that. And if we do, I would be interested especially, Mr. 
Bennett, in your view of that particular provision. You were 
mentioned very prominently in the impeachment proceedings, 
where we heard more repetition of lawyers' arguments and no 
witnesses in one of the most remarkable non-trial trials, I 
think, ever. At least that is my view.
    But we went over and over and over again the President's 
deposition in the case brought by Ms. Paula Jones, and the 
famous commentary on what ``is'' is and whether he was 
observing on the representations that his distinguished 
counsel, Robert S. Bennett, was making at the time. And, of 
course, we have seen the referral by the Independent Counsel to 
the House of Representatives, leading the House to conclude 
that they needed no witnesses and setting the stage for a very 
unusual impeachment proceeding, leading Senator Baker to 
conclude that that provision at least ought to be changed.
    Having been involved to some substantial extent, Mr. 
Bennett, I would be interested in your view as to Senator 
Baker's recommendation.
    Mr. Bennett. I am not quite sure precisely what----
    Senator Specter. He wants to strike the provision from the 
Independent Counsel Statute, if we retain it, which requires 
the Independent Counsel to give to the House of Representatives 
specific and credible evidence which could lead to impeachment.
    Mr. Bennett. As I understand it, I don't--I have not 
studied the issue, Senator, but my initial reaction is, again, 
it is not a total one way or the other. It would seem to me--
and, again, before you were here I said I am not here speaking 
on behalf of the President. I would be troubled with any kind 
of rule which said that an Independent Counsel or a Justice 
Department lawyer was barred from presenting to the U.S. 
Congress or a committee operating under the Constitution from 
getting information under appropriate circumstances. I would 
have a great deal of difficulty with that.
    You have a constitutional role to play, an important one, 
and there may well be times when you have this unique 
situation, which hopefully we will not have for another 200 
years. I would be hard put to say you should not get certain 
kinds of information.
    Senator Specter. I don't think Senator Baker was saying 
that there would be a prohibition, but simply not a 
requirement, or perhaps a refinement so that the statute would 
not raise an inference or presumption that the House of 
Representatives should take that record without conducting an 
independent inquiry. If they decide that they want to pursue 
articles of impeachment.
    Mr. Bennett. Right. What I am enormously troubled with and 
I think was wrong and should not be permitted again is this 
wholesale dumping of material, of raw material on the Congress, 
to let people do with it what they will. And I think that if a 
lesson was learned, that should be one of the lessons. That 
should never have happened and it was wrong.
    And let me tell you one other thing, Senator, a very 
practical thing, as someone who day in and day out represents 
people. Many times I am asked to have clients cooperate with 
the government, and many times in the last 30 years I have had 
clients talk to FBI agents. And, normally, I have been able to 
say, and when I was a prosecutor I was able to say, look, there 
is Rule 6(e), grand jury secrecy.
    What happened recently--I have to tell a client, look, if 
this thing gets high-profile enough, this could all be dumped 
over on Congress and what you tell the FBI agent or what you 
tell this person is going to be on the front page of the paper.
    Senator Specter. Thank you very much, Mr. Bennett. I want 
to move on to another issue. We have limited time here, but I 
would agree with you that there ought not to be wholesale 
dumping. And my view is that whatever is evidentiary and ought 
to come before a committee ought to be in the public domain. 
And if it doesn't come before the House Judiciary Committee--if 
the House wants to play the President's tape, then the tape 
ought to be in the public domain to that extent. And we did not 
duplicate that in the Senate when we had depositions, 
videotaped depositions. The portions which were played in the 
Senate proceeding are part of the public record and the rest of 
it is not. The transcript may be available, but the videotapes 
are not available.
    Let me move to the question on time limit and ask you, Mr. 
Lewin, the question about trying to curtail the scope. My own 
sense is that if we are to retain the Independent Counsel 
Statute, we are going to have to provide that jurisdiction is 
not to be expanded, as it was, for example, covering Ms. 
Lewinsky on the decision made by the Attorney General without, 
I think, adequate information. Certainly, her petition to 
expand the jurisdiction says very little, a subject which we 
tried to pursue in Judiciary Committee oversight and will 
later.
    But you have come out in favor of an 18-month time limit, 
which I would like to see as a starting point, with a couple of 
addenda to make it feasible, such as full-time Independent 
Counsel--we had discussions last week as to whether we could 
get people who would do it on a full-time basis--what the 
problem would be in dilatory tactics, so that we might extend 
the 18 months to expand the time if somebody raises issues and 
takes executive privilege, for example, to the Supreme Court, 
and provide for expedited review by the court of any matter 
which comes within the purview of Independent Counsel to try to 
condense it.
    But I would like an amplification of your thinking on the 
practicality of imposing that kind of a time limit.
    Mr. Lewin. Well, I think that the burden can be certainly 
imposed on whoever is appointed as Independent Counsel to 
justify anything beyond 18 months to the supervising court, to 
the special division of the court. I have to disagree, as I 
think I mentioned before, with the notion that this has to be a 
full-time job. I think if, in fact, it is appropriately limited 
the way it should be so that a particular allegation is made 
and is referred to an Independent Counsel, then I think the 
theory of Independent Counsel is that the allegations should be 
narrow enough.
    And under my proposal, any extension should be prohibited 
in advance. The statute should say you will never get extended 
to anything that is related, anything except direct obstruction 
of justice in the course of your investigation. But other than 
that, the definition has to be in terms of a particular 
allegation, and I think then you want the judgment of an 
Independent Counsel who maybe has some other practice, as a 
matter of fact is involved in these things all the time and 
makes that ultimate judgment as to whether this is a 
prosecutable case.
    In England, for example, prosecutors who actually try cases 
are chosen from the private bar. Barristers take cases for 
prosecution on behalf of the State, and the rest of the time 
they are involved in private litigation. I don't know why that 
should not be true in this instance. Now, if somebody is 
appointed----
    Senator Specter. Let me move on to another subject because 
the yellow light has just come on, and that is the question as 
to supervisory authority over the Attorney General's decision 
not to appoint an Independent Counsel. Senator Levin has 
commented that politics has stayed in the process, except when 
there is a decision not to prosecute. And that isn't quite the 
same as a decision not to appoint Independent Counsel, but 
there has been a good deal of frustration coming from Members 
of this Committee and Judiciary for the long investigation 
which Governmental Affairs conducted on campaign finance 
reform, and especially the Chinese implications.
    There were three mandamus actions brought in district 
courts which granted applications for compelling the Attorney 
General to appoint Independent Counsel. All three were reversed 
on appeal, on the ground of a lack of standing. And my thought 
is to copy a portion of the statute which grants a majority of 
the majority or a majority of the minority of the Judiciary 
Committee of either House the power to require the Attorney 
General to give a written response, which is very limited, but 
to expand that to give standing in a very limited way to those 
groups to apply to the court as a referee, where we had none, 
when Attorney General Reno declined to appoint Independent 
Counsel to utilize that mandamus feature if we are to retain 
the statute.
    I would be interested in both of your views on that 
question.
    Mr. Lewin. Well, it appears to me that that is--if it is 
limited in terms of scope and Congress specifically defines 
standing in terms of that narrow group, I think it is a way of 
getting judicial review over the Attorney General's decision, 
which I think the Supreme Court, given Morrison v. Olson, would 
uphold. I think it is a permissible mechanism for getting some 
outside review, and I think would encourage or would improve 
public confidence in the system, as such.
    Senator Specter. Thank you. Mr. Bennett, what is your view?
    Mr. Bennett. I haven't studied that issue, Senator, and I 
just think this is too important for me to express a view when 
I haven't--I am troubled with lots of people coming in and I 
see a lot of independent groups trying to get into things and 
it causes lots of problems. But I am going to defer on that, if 
you don't mind.
    Senator Specter. Well, Senators and members of the House 
can cause lots of problems, too. Thank you very much, Mr. 
Bennett and Mr. Lewin.
    Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much.
    Gentlemen, we could go on for a long, long time. You have 
been very, very helpful to us in our deliberations and brought 
up several points that I think that most of us probably had not 
really fully considered.
    Senator Levin. Could Mr. Bennett just for the record supply 
that answer, if he feels free to do so later? \1\
---------------------------------------------------------------------------
    \1\Letter from Robert S. Bennett appears in the Appendix on page 
233.
---------------------------------------------------------------------------
    Mr. Bennett. I will, Senator.
    Chairman Thompson. Thank you very much. With that, if there 
is nothing else, then you may leave with our gratitude. Thank 
you. Thank you very much.
    Mr. Bennett. Thank you very much.
    Mr. Lewin. Thank you.
    Chairman Thompson. We will now proceed to our second panel 
for a discussion of alternatives to the current Independent 
Counsel Statute. This panel is made up of prosecutors who have 
conducted investigations outside of the Independent Counsel 
Statute.
    The witnesses are George Beall, former U.S. attorney who 
successfully prosecuted Vice President Spiro Agnew; Robert 
Fiske, former U.S. attorney and the first regulatory 
Independent Counsel in the Whitewater investigation; and Henry 
Ruth, special prosecutor during Watergate and former counsel to 
Hamilton Jordan.
    Mr. Beall, would you care to proceed with your testimony? 
Your entire remarks will be entered and made a part of the 
record, and if you could summarize those for us, we would 
certainly appreciate it.

          TESTIMONY OF GEORGE BEALL, HOGAN AND HARTSON

    Mr. Beall. Thank you, Senator Thompson. Mr. Chairman, 
mindful of the hour, I do ask that my written submission be 
incorporated in the record.
    At the outset, I introduce myself. I am George Beall. I am 
an attorney privately with the law firm of Hogan and Hartson 
and in a previous career served as the U.S. Attorney for the 
District of Maryland. I was appointed in 1970 by President 
Nixon, on the recommendation of U.S. Senator Charles Mathias, 
whom some of you may have served with, at a time when my 
brother, J. Glenn Beall, Jr., was also U.S. Senator from 
Maryland, and in the shadow of my father, who was U.S. Senator 
from Maryland from 1952 to 1964. So as a Republican appointee 
in a Republican administration with fairly long Republican 
lineage, I came to the office, I suppose, with the kind of 
conflicts of interest that defy description.
    But in any event, confronted with that lineage, I embarked 
on a special project, so to speak, in Maryland. Unhappily, in 
the 1970's and earlier, it was an open secret that the public 
business in Maryland was too often for sale. I decided as the 
U.S. Attorney that that office was peculiarly well-equipped to 
try to get at this particular problem and undertook a fairly 
broad-ranging investigation in January 1973.
    Within the first month--and those of you who are former 
prosecutors will appreciate this--I had an individual, an 
architect, with his lawyer, come into my office and, 
conscience-stricken, describe how he had been making payments 
to local public officials in Maryland of 5 percent on the face 
of every contract, in return for getting public work.
    He also explained to us how he generated the funds to do 
that, and it wasn't very complicated. His firm would give 
bonuses to senior executives and the executives would cash the 
check and they would give back to the firm the cash that the 
firm maintained as a fund to use to pay the 5 percent. We, with 
that information, began the process of pursuing local public 
officials. We ended up indicting the chief executives of two 
political subdivisions in Maryland, and in the course of the 
investigation learned, in May 1973, from one of the engineers 
that he had made payments to Mr. Agnew when he was the Governor 
of the State of Maryland.
    This particular individual was subject to some significant 
credibility problems and it presented me, the U.S. Attorney for 
Maryland, with a very, very awkward prospect because at that 
point in history we did not have an Attorney General. When I 
first heard from this particular witness, Mr. Kleindienst had 
left the Department. Mr. Richardson had not yet been appointed, 
and I was confronted with the awful, terribly scary prospect of 
having this secret about the Vice President and not being able 
to share it with anybody.
    But, happily, there came a time when I was able to meet 
with Attorney General Richardson. As I relate in my submission, 
happily, he, by reason of, I think, fundamental integrity that 
he enjoyed and by reason of his prior experience as a U.S. 
Attorney for the District of Massachusetts, responded 
sorrowfully to the story that I presented to him. He also 
responded positively in saying that this was the kind of matter 
that simply had to be pursued.
    And he displayed, again, happily, enough confidence in me 
to permit us to go forward very quickly, keeping in mind that I 
was 35 years of age at the time and I was the oldest member of 
my staff. We arranged to meet with the Attorney General and he 
expressed obvious concern not about the integrity of the 
investigation, but obviously the explosiveness of the 
investigation because the problems of Watergate were ongoing 
and the Presidency was in increasing jeopardy. And to have the 
Vice Presidency simultaneously in jeopardy was something that 
he grappled with from day one.
    But I was very mindful of the fact that the Attorney 
General had committed to the Senate during his confirmation 
hearings to appoint an Independent Counsel. Indeed, Professor 
Cox had been identified and appointed as of that time to handle 
the Watergate matter. I was concerned that the Attorney General 
may be inclined to either refer the Agnew investigation to Mr. 
Cox or appoint some other Independent Counsel.
    So I made it my business very early on in meetings with the 
Attorney General--and I have to say I met with him personally. 
I mean, to his great credit, he personally involved himself in 
this matter from day one and indicated that I was to report to 
him, I was to keep him advised. He was fully supportive of what 
we did from the very beginning, and I seized the opportunity 
early on to suggest to the Attorney General that the Agnew 
investigation was something that we could handle. We could 
handle it effectively. We had the staff, we had the experience, 
and we had the competency, and, simultaneously, it was an 
opportunity for the Department of Justice to display to all who 
watched that the matter was conducted fairly and thoroughly.
    The Attorney General, in a meeting in 1973, after a lot 
more discussion than I have been able to recite to you, 
concluded that, yes, the Department of Justice should retain 
jurisdiction, should not refer it to an Independent Counsel; 
that, yes, under the Constitution the Department of Justice and 
the Attorney General does have responsibility for dealing with 
criminal misconduct on the part of public officials, even to 
the second highest office in the land. At the conclusion of 
that meeting in June, it was decided that the Department of 
Justice would play out the investigation. There would be no 
Independent Counsel; and the subject was never discussed again.
    Chairman Thompson. Actually, ``special counsel'' was the 
term being used then, I believe, wasn't it?
    Mr. Beall. That is correct. Every time we talk about the 
Independent Counsel Statute, I am reminded of the New Yorker 
cartoon that appeared a couple of years ago when a waiter 
appears at a table of people and he has a tray in his hand. On 
the tray there is a human figure and the waiter says, ``who 
ordered the special prosecutor?''
    I think from my perspective, not as an Independent Counsel 
or former Independent Counsel, I have been persuaded from day 
one that this statute was unnecessary. To me, from the 
beginning, it has been a solution in search of a problem. The 
reaction in the wake of Watergate was not unusual. There was a 
feeling that something had to be done. But it is a little bit 
like something had to be done in Maryland to prevent architects 
and engineers from buying public work, and the legislature 
passed a law that sets up a very elaborate screening process 
for doing this and it is far more expensive and very cumbersome 
process that probably, a little bit like the special prosecutor 
law, is an over-reach and unnecessary.
    So, with that, I will conclude by saying that there has 
been some observation this morning that perhaps we can't go 
back again. That may be true. It is a different Department of 
Justice today. There is a different culture. As I comment in my 
remarks, I am told that in this administration Assistant U.S. 
Attorneys, for example, are under civil service. That was not 
true in my era and I think it is a bad thing.
    I think it was healthy when you had a combination of young, 
eager-beaver prosecutors with career civil servants. When you 
have all civil servants, I think you are likely to get the kind 
of gridlock and perhaps lack of initiative that is necessary if 
you are going to attack corruption.
    Chairman Thompson. Or independence, also? Lack of 
independence, you think?
    Mr. Beall. I think there is lack of independence as well.
    Chairman Thompson. All right. Thank you very much.
    [The prepared statement of Mr. Beall follows:]

                   PREPARED STATEMENT OF GEORGE BEALL
    Mr. Chairman and Senators: As the son of one former U.S. Senator 
from Maryland and brother of another it is a personal privilege for me 
to appear today.
    My contribution to your deliberations will be more anecdotal than 
analytical since I am here as a former Federal prosecutor and not one 
who has served as an Independent Counsel.
    The threshold premise for the Independent Counsel statute in 1977 
was that the Department of Justice could not impartially investigate 
and, if necessary, prosecute highly placed officials in the Executive 
Branch who commit Federal crimes.\1\
---------------------------------------------------------------------------
    \1\ Attorney General Reno reiterated this rationale when the 
statute was reauthorized in 1994. She testified before the Senate:
      ``In 1975, after his firing triggered the constitutional crisis 
that led to the first version of this act, Watergate Special Prosecutor 
Archibald Cox testified that an Independent Counsel was needed in 
certain limited cases, and he said--''--and I am quoting--`--the 
pressure, the divided loyalty are too much for any man, and as 
honorable and conscientious as any individual might be, the public 
could never feel entirely easy about the vigor and thoroughness with 
which the investigation was pursued. Some outside person is absolutely 
essential.' ''
      ``The reason that I support the concept of an Independent 
Counsel, with statutory independence, is that there is an inherent 
conflict whenever senior executive branch officials are to be 
investigated by the department and its appointed head, the Attorney 
General. The Attorney General serves at the pleasure of the President. 
Recognition of this conflict does not belittle or demean the impressive 
professionalism of the department's career prosecutors. It is 
absolutely essential for the public to have confidence in the system, 
and you cannot do that when there is conflict, or the appearance of 
conflict, in the person who is, in effect, the chief prosecutor. There 
is an inherent conflict here, and I think that is why this act is so 
important.''
      ``The Independent Counsel Act was designed to avoid even the 
appearance of impropriety in the consideration of allegations of 
misconduct by high-level executive branch officials and to prevent the 
actual or perceived conflicts of interest. The act thus served as a 
vehicle to further the public's perception of fairness and thoroughness 
in such matters and to avert even the most subtle influences that may 
appear in an investigation of highly-placed executive officials.''
---------------------------------------------------------------------------
    The investigation of former Vice President Spiro T. Agnew in 1973 
is a noteworthy case study of how the Department of Justice--and not a 
special or independent prosecutor--can discharge its law enforcement 
responsibility in the context of a politically sensitive criminal 
matter. As U.S. Attorney for Maryland I was the prosecutor responsible 
for initiating and then conducting this investigation. I was a 
Republican appointee of a Republican President and Vice President, the 
latter who was from my home state. In short, I worked for the same 
Executive Branch as they and our Attorney General.
    Consequently, when Vice President Agnew entered a plea of no 
contest to tax felony charges and received a monetary fine, probation 
and no term of imprisonment in return for resignation from his office 
and we placed on the court record a 40-page summary of the proof of his 
criminal misconduct, the country was shown that our Executive Branch 
could prosecute its own officials without the necessity for enlistment 
of an Independent Counsel. With a staff of Assistant U.S. Attorneys in 
Baltimore, Agents of the Internal Revenue Service and a Federal grand 
jury, all working under the personal direction of Attorney General 
Elliot T. Richardson, the Agnew investigation was significant 
confirmation of our principle of neutrality; that is, that no citizen 
is above or below the law including the second highest elected public 
official in our Republic.
    Significantly, Attorney General Richardson decided, on my office's 
recommendation, that the Department of Justice should retain 
jurisdiction over the Agnew investigation and not refer the inquiry to 
the special prosecutor, Archibald Cox. Mr. Cox had been nominated as 
the Special Watergate Prosecutor to pursue a wide-ranging investigation 
of the President and others on May 18, 1973. Mr. Richardson replaced 
Richard Kleindienst as Attorney General of the United States on May 25, 
1973. He inherited a Department of Justice which was demoralized--
perhaps even humiliated--because the Watergate investigation had been 
taken away and assigned to a special prosecutor. So it was that, as Mr. 
Richardson moved from Secretary of Defense to become Attorney General, 
his mission was said by him to restore integrity and credibility to the 
Justice Department:

          ``To a large extent . . . [the American people's] respect for 
        government is affected by the fairness and integrity of the 
        law-enforcement process. I think there is an opportunity to 
        restore confidence [by] finding ways in which the law-
        enforcement process can be made to be, and perceived to be, 
        scrupulous in the ways in which it carries out its job.''

    What Mr. Richardson did not know as he delivered that statement on 
his arrival at Justice was that the Office of the U.S. Attorney for 
Maryland was assembling an array of witnesses, documents and hard 
evidence confirming that Mr. Agnew had received from a number of 
intermediaries kickbacks of 5 percent on public engineering and 
architectural contracts during his tenure as Governor of Maryland from 
1966 to 1968 and that, thereafter, he had accepted a cash payment of 
$10,000 that was delivered to him in his temporary office in the 
basement of the White House by one of those engineers in January, 1969.
    When I had informed his predecessor, Mr. Kleindeinst, of the 
Baltimore probe as he was resigning in May, 1973, he had encouraged me 
to ``do what I had to do'' and emphasized that I should brief the new 
Attorney General at the earliest opportunity.
    My first meeting with Attorney General Richardson on June 12 was, 
needless-to-say, very dramatic.
    Naturally, I seized the opportunity to brief my new boss on our 
expanding Baltimore investigation of the Vice President. The Attorney 
General, confronted with the increasing vulnerability of President 
Nixon to the Watergate entanglement, responded with remarkable 
equanimity. Mr. Richardson began by relating an experience he had as 
Republican U. S. Attorney in Massachusetts. In 1961 he and his office 
had initiated a kickback inquiry involving highway contractors and the 
Governor, a Democrat. After the 1960 national election, when he asked 
the new Attorney General, Robert F. Kennedy, for permission to stay in 
the job to complete the investigation, his request was denied. 
Naturally, this political corruption matter was a casualty of the 
political transition and was not pursued, something Mr. Richardson 
found unsatisfactory.
    To me his reaction and this meeting were most heartening. From the 
outset the new head of the Department of Justice demonstrated that he 
understood the predicate for our Maryland investigation. Further, he 
confirmed that principle mattered more than politics in Federal 
criminal law enforcement, a sentiment I shared.
    Finally, he chose to meet me alone, without aides or Justice 
Department staff, and said he would personally oversee my 
investigation, inviting me to ``keep in touch'' with him as we parted. 
He, the Attorney General, took charge immediately.
    At our next meeting on July 3 the Attorney General had an 
opportunity to meet the three Assistants from my Baltimore office \2\ 
who were conducting the Maryland political corruption investigation. 
After considerable delay I, by prearrangement, proceeded with lengthy 
introductions of our obviously young team of prosecutors--I was the 
oldest at 36--emphasizing their Harvard backgrounds for Mr. 
Richardson's absorption. Before I could get to the point of elaborating 
the considerable evidence that had been accumulated against Mr. Agnew 
since my earlier briefing, his secretary handed him a note and he 
excused himself.
---------------------------------------------------------------------------
    \2\ Assistant U.S. Attorneys Barnet D. Skolnick, Russell T. Baker, 
Jr. and Ronald S. Liebman.
---------------------------------------------------------------------------
    No sooner had he returned then he was handed another note and left 
again. After another significant delay he returned to the conference 
room and said he owed us an explanation as to why he kept leaving the 
room. He said something to the effect that ``the President's a little 
upset with Mr. Cox today,'' referring to a morning newspaper story that 
the special Watergate prosecutor was investigating the President's real 
estate transactions including, particularly, his home in San Clemente, 
California. He assured us that only calls from President Nixon had 
priority over our discussion. Then he began articulating the big 
issues:

     LWhat would be the effect of the Agnew case on the 
capacity of the administration to govern?
     LShould Mr. Agnew be confronted immediately with the 
evidence against him?
     LWould the Vice President resign or would he contest the 
charges?
     LWould the principal witnesses against the Vice President 
be offered immunity? (They were not--each agreed to plead guilty to at 
least one felony in return for their cooperation.)
     LWhen should President Nixon be told?

    By the time the 3-hour meeting ended, Mr. Richardson had decided 
that, while it was imperative that the President learn of the 
investigation at the earliest possible time, the problems attendant to 
Watergate and the remote possibility that the witnesses against Mr. 
Agnew might not stand up to intense inquisition, persuaded him to delay 
telling the President. Again, the meeting was between my staff and Mr. 
Richardson, with no ``career'' Justice personnel present.
    Encouraged as we Baltimore prosecutors were with the Attorney 
General's thoroughly responsible, determined and supportive reaction, 
the possibility that this investigation could, arguably, come under the 
jurisdiction of Special Prosecutor Cox had to be confronted.
    At a follow-up meeting with the Attorney General on July 11 this 
issue was addressed at length.
    Mr. Richardson reminded us that in his confirmation hearings, 
appointment of a special Watergate prosecutor had been a subject of 
discussion and certain Senators had pointed out that there would be an 
appearance of impropriety if an Attorney General appointed by the 
President also conducted the Watergate investigation. Mr. Richardson 
had acknowledged to the Senate that it was valid to be concerned about 
how the public perceived the Watergate investigation and that, 
therefore, it was justifiable and necessary that a special prosecutor 
be appointed for that matter.\3\
---------------------------------------------------------------------------
    \3\ In his book, Reflections of a Radical Moderate (Pantheon Books, 
1996), Mr. Richardson writes as follows at p. 196:
      ``Now, I am not saying that appearances are never important. When 
on April 29, 1973, President Nixon asked me to leave the Department of 
Defense and go to the Department of Justice he left it up to me whether 
or not there should be a special prosecutor for Watergate. The more I 
thought about it, the clearer it seemed to me that public confidence in 
the investigation would depend on its being independent not only in 
fact but in appearance. And though I believed I could fulfill the first 
of these requirements, it was clear that I could not meet the second. I 
had from the beginning of his administration been the appointee of a 
president whose staff was being investigated and who might himself be 
implicated. I would, moreover, once again be serving at his pleasure.
    Seven days after my meeting with Nixon I announced at a press 
conference that I would, if confirmed as Attorney General, appoint a 
special prosecutor and give him all the independence, authority, and 
staff support needed to carry out the tasks entrusted to him. I assumed 
that future occasions to appoint a special prosecutor would be rare--no 
more frequent, perhaps, than two or three in the balance of the 
century. Only twice before in our history, after all, had such an 
appointment been thought necessary: the Teapot Dome scandal in 1925 and 
the investigation of Justice department officials in the early 1950's. 
It would have amazed me to be told that two-thirds of the way through 
the century's next-to-last presidential term six special prosecutors 
would be serving simultaneously, with one looking into the Reagan era's 
Department of Housing and Urban Development, three investigating 
current cabinet members, one the actions of individuals in the Bush 
administration, and one transactions involving Bill Clinton that 
occurred long before he became President.''
---------------------------------------------------------------------------
    He then told us that in the case of Mr. Agnew the same sensitivity 
to appearances of a conflict of interest could be raised in support of 
an argument for referring it to Mr. Cox. I said to the Attorney General 
that, because one of his stated objectives had been restoration of 
public confidence in the Department of Justice in the wake of 
Watergate, Mr. Kleindeinst's resignation and other events, the Agnew 
case offered a timely opportunity for us to demonstrate that the 
Department had the will, ability and capacity to vigorously enforce the 
criminal law, even as it involved the Vice President of the United 
States. I argued that my office could be fair to Mr. Agnew and could 
accelerate the investigation's pace, while remaining thorough. He 
agreed and the subject never arose again.\4\
---------------------------------------------------------------------------
    \4\ According to the authors of a book about the Agnew 
investigation ``This was exactly what [Mr.] Richardson wanted to hear. 
He expressed his agreement; Cox would be kept out. (Shortly thereafter, 
Richardson advised the Baltimoreans that he had discussed the Agnew 
matter with Cox and there were no problems. . . . Richardson instructed 
Cox to send anyone approaching him in anyway about the Agnew case 
straight to Beall.). . . .'' Cohen and Witcover, A Heartbeat Away 
(Viking Press, 1974), pp. 124-125.
---------------------------------------------------------------------------
    By the time news of the Agnew investigation broke in the Wall 
Street Journal on Tuesday, August 7, the investigation we began three 
months earlier was essentially complete. When Mr. Richardson met with 
President Nixon that same day, he was asked by the President to meet 
personally with Mr. Agnew to provide a summary of the status of the 
investigation in Baltimore. Mr. Richardson did so and Mr. Agnew, among 
other things, reacted by saying that we the prosecutors ``lacked 
objectivity,'' and that someone at the Department of Justice in 
Washington should be placed in charge of the investigation. Mr. 
Richardson, it is said, defended me and my staff against these 
allegations and declined the request.
    Then one of Mr. Agnew's attorneys is said to have observed that, if 
there was ever need for a special prosecutor, a prosecutor removed from 
any political role in the state where the case was being brought, it 
was surely in this situation. Mr. Richardson again disagreed, but then 
said that he would ask Assistant Attorney General Henry Peterson to 
make an independent assessment of the evidence that had been assembled.
    Later in August, after that assessment had been completed, Mr. 
Peterson reported to the President and Vice President that the 
government had an airtight case against Mr. Agnew in support of 
criminal indictment on multiple charges of bribery, extortion, 
conspiracy and tax evasion.
    Not unlike similar investigations of government officials in the 
years since, the Agnew defense strategy involved public attacks on the 
prosecutors, claims of ``leaks'' to the press, litigation initiated to 
forestall grand jury proceedings and undermining witnesses' reputations 
through media statements. Unique to Vice President Agnew, however, was 
his effort to forestall criminal prosecution by requesting an 
impeachment proceeding in the House of Representatives.
    On September 25, 1973 the Vice President personally delivered a 
letter to Speaker Carl Albert in which he argued ``that the 
Constitution bars a criminal proceeding of any kind--Federal or State, 
county or town--against a President or Vice President while he holds 
office'' and that, therefore, Mr. Agnew could not be criminally 
prosecuted and should be impeached. He referred to a similar request 
made by Vice President John C. Calhoun in 1826 who was charged with 
profiteering from an Army contract as Secretary of War. In that 
instance, the House appointed a select committee, subpoenaed witnesses 
and documents, held hearings and issued a report exonerating the Vice 
President. The obvious distinction between the two was that charges 
against Vice President Calhoun implicated his official conduct in that 
office while Mr. Agnew for the most part was answering allegations of 
criminal misconduct prior to his Federal office.
    In any event, the House declined the invitation, saying that it 
would not be proper for Congress to act on a matter then before the 
courts.\5\ Interestingly, it was in this context that then Solicitor 
General Robert Bork issued an opinion for the Department of Justice to 
the effect that, contrary to Vice President Agnew's contention, the 
Constitution did not bar criminal proceedings against him. That 
conclusion (the subject of considerable recent discussion) became the 
predicate for a legal action on behalf of Vice President Agnew to 
prohibit the Justice Department from presenting any evidence to the 
grand jury. Given that the matter was ultimately resolved through the 
time-honored vehicle of plea bargaining, the Federal courts were not 
called on to test this constitutional argument.
---------------------------------------------------------------------------
    \5\ Jimmy Breslin, in How the Good Guys Finally Won (Viking Press, 
1975), says that Speaker O'Neil persuaded Mr. Albert and Judiciary 
Committee Chairman Rodino that, whether Mr. Agnew was correct that the 
Constitution protected both the President and Vice President from 
criminal prosecution while in office was for the Courts to decide and 
quotes Mr. O'Neil at p. 63 as saying:
      ``Because the man is lying. He says he's innocent and he's being 
framed. I don't know about that. I think he's worried about going to 
jail, but he won't tell you that. He can't tell the truth. If we put 
this into the Judiciary Committee, we're doing exactly what Agnew 
wants. He'll have this stalled and delayed for so long that the court 
would wind up having no rights in the matter. And another thing, and I 
can guarantee this, if you let the man get away with this, then the 
Democratic caucus will skin you alive.''
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                             RECOMMENDATION

    For almost 200 years the country survived without an Independent 
Counsel statute. From time to time Presidents and Attorneys General 
have gone outside the Department of Justice to designate Special 
Counsel to pursue a particular matter that public integrity or public 
policy required. There is a long ``track record'' of prosecuting crimes 
by government officials pursuant to existing laws and regulations. For 
examples, the Grant administration saw an outside prosecutor for the 
Whiskey Ring; there was Teapot Dome during President Harding's tenure; 
tax corruption in the Truman administration; the peanut warehouse of 
President Carter and, more recently, Attorney General William Barr on 
three occasions in the early 1990's used his inherent authority to make 
special inquiries through outsiders who were not a direct subordinate 
of his or the President.
    In my view as a former prosecutor, but not an Independent Counsel, 
the statute was unnecessary when enacted and remains undesirable today.
    The answer to the question as to what to do about executive 
malfeasance is in the Constitution. It speaks of impeachment for the 
President. Prosecution is for all other executives. There is a 
mechanism in place already for dealing with presidential, vice 
presidential and high level misconduct. We have a free press, 
congressional oversight of executive branch officials and public 
opinion to provide true accountability.
    In summary:

     Lconceptually our system of justice empowers and obligates 
the Department of Justice to handle Federal criminal matters;
     Lresponsibility for this rests with the Attorney General;
     Lthe Independent Counsel statute removes this 
responsibility from an institution accustomed to the exercise of 
prosecutive discretion and puts it in another who has less 
institutional knowledge, a much narrower focus and little 
accountability;
     Lthe Department of Justice has investigative personnel, 
tools and know-how to evaluate allegations of official malfeasance, but 
the statute has circumscribed this unsatisfactorily. There is no 
discernible reason why the Department of Justice should not be allowed 
to use these tools and a grand jury--the same prosecutorial resources 
used in the ordinary case--in political inquiries, as the statute now 
does not allow.
     LThe rule of neutrality and equality built into our legal 
heritage is frustrated by the Independent Counsel statute because it 
says our criminal justice system will be used differently for high 
officials than ordinary citizens. That is wrong.
     LHigh officials including the President, Vice President 
and Attorney General are subject to special scrutiny through the 
political process.
     LOur system is one of ``checks and balances,'' but 
Independent Counsels are subject to neither.

    My experience--together with historical precedent--teaches me that 
political conflicts of interest in the Department of Justice can be 
overcome by officials whose sense of duty overrides partisanship.
    The compelling question for this Congressional body then must be 
whether the Department of Justice of the 1990's has the same capacity 
as existed in the 1970's to fulfill its law enforcement duty as to 
politically sensitive allegations against high-level executive branch 
officeholders. Again, congressional oversight could afford the answer. 
Many changes have taken place in the intervening decades in the 
Department's composition and operation. For example, I am told that 
this administration has decreed that all Assistant U.S. Attorneys now 
come under Civil Service. This was not true in the Agnew era so we were 
arguably more independent and less apprehensive about our careers. To 
the extent that this Administration has created a more career-oriented 
staff at the Department of Justice with lifetime (rather than career) 
jobs, I think there is more likelihood that getting along careerwise 
means going along and not taking politically difficult stands. In my 
view, the Department (particularly U.S. Attorneys' offices) should be 
composed of both permanent lawyers and temporary, non-career 
prosecutors.
    Others have also questioned the will of this Administration to 
pursue vigorously allegations of high-level criminal misconduct.\6\ 
And, of course, the Department of Justice is now considering the 
appointment of an Independent Counsel to investigate Independent 
Counsel Starr, the ultimate ``coming full circle.''
---------------------------------------------------------------------------
    \6\ See ``Justice Without Fear or Favor,'' Eugene H. Methvin, Wall 
Street Journal, September 30, 1996. ``If the U. S. Justice Department 
had fumbled as badly in Maryland in 1973 as it did in Arkansas in 1993, 
former Vice President Agnew would have become President of the United 
States.''
---------------------------------------------------------------------------
    But conflicts are part of a prosecutor's--and public officials'--
jobs. They can be overcome through full disclosure and recognition of 
the need for personal accountability. The public will judge eventually 
in any event.
    Let us return to life before the 1978 Independent Counsel statute. 
Let us rely on existing laws and regulations that permit Attorneys 
General to appoint special counsel, on congressional oversight, on the 
free press and on political forces to meet public expectations that 
Federal law enforcement will apply equally to high ranking government 
officials. Let us permit this Independent Counsel statute to expire.

    Chairman Thompson. Mr. Ruth, a slightly different view.

 TESTIMONY OF HENRY RUTH, FORMER SPECIAL PROSECUTOR, WATERGATE 
           SPECIAL PROSECUTION FORCE, WASHINGTON, DC

    Mr. Ruth. Yes, sir. I strongly feel the act should be 
maintained, and I have to voice a strong objection to hearing 
that Watergate proves that you can do it within the system. As 
one who was in charge during the Saturday Night Massacre, it is 
impossible to describe how thin a thread existed at that time, 
and for 3 weeks thereafter, for the continuation of the Special 
Prosecutor.
    And to say that you want to set up a system that can 
survive a Saturday Night Massacre, to me, is inviting a 
Saturday Night Massacre because in this age of PR, I believe, 
as current events have proved, a very strong information 
machine at the White House can create the atmosphere for a 
massacre to succeed.
    One thing I had hoped from Watergate was that future White 
Houses would say, well, the way to deal with an allegation is 
to get everything out in the open and not cover up the problem. 
Without cover-up, there is no problem. We see now that future 
Presidents may take a different tack, in light of the success 
of the present incumbent, and that is attack: Attack the 
lawyers, attack the witnesses, attack the prosecutor, attack 
the laws the prosecutor seeks to enforce, and don't get it out 
in the open because you can succeed by attacking.
    I also want to say that I think it is a mistake to set time 
and budgetary limits for an Independent Counsel ahead of time. 
I used to do a lot of white-collar criminal defense work, as my 
colleagues here have done. And in the area of joint defense and 
joint defense privilege among defense attorneys--I think this 
is what might have happened to the Senate's investigation of 
campaign contributions--the second you set a time limit, 23 
people get a one-way ticket to China and the joint defense 
lawyers sit around the table once or twice a week and say, how 
do we get this beyond the time limit. And that is going to 
happen in every white-collar criminal case, as well as 
Independent Counsel case.
    Budgetary limits, I think, are deceiving. Everybody says, 
well, we have spent $150 million on Independent Counsels. Well, 
first, you have to ask how much would the Justice Department 
have spent on those 20 investigations of Independent Counsels 
and subtract that from the $150 million. And as I say in my 
written testimony, if you look at the 20 Independent Counsels, 
only 4 of the 20 have expended 87 percent of that total of $150 
to $155 million, which means to me that as to expense, 16 of 
the 20 were not a problem.
    And if you look at time limits of the 20, 16 of the 
Independent Counsel investigations have been completed. Ten 
were finished under 18 months, which is extraordinary for a 
complex investigation, and two of the present ongoing ones are 
still under 18 months. So as I look at the problems of time and 
expense, and even charges filed, in 11 of the completed 
investigations, there were no charges. Two, uncompleted, have 
had no charges. So 13 of the 20 have had no criminal charges. 
So it is not that an Independent Counsel automatically thinks 
that he or she has to bring a criminal charge.
    And as I see it, out of the 20, at least 15 were 
successful, and successful in the sense that the public 
believed in the results. Now, the five that I think are a 
problem are HUD, Iran-Contra, Mr. Starr, the one against Mr. 
Espy, and the one against Mr. Cisneros. And I have proposed, as 
you know, in my testimony, about 13 recommendations to the 
statute which I tend to group under four problems.
    The coverage issue is one: How many people are covered, 
what kind of offenses are covered. I made suggestions on that. 
Second is the preliminary investigation problem and the 
expansion of investigation problem, and I have made some 
suggestions on that. Third is the tenure and accountability of 
an Independent Counsel. I have made some suggestions on that. 
And, fourth, is fairness. I think that of the five main problem 
investigations I see out of the 20 Independent Counsel, those 
13 recommendations, if enacted, would take care of most of the 
problems of those investigations.
    To me, the HUD investigation could have gone back to 
Justice a long time ago. In the Iran-Contra investigation--the 
Senate immunity raised enormous problems for Mr. Walsh. And 
delay tactics which can't be blamed on Mr. Walsh, raise a 
problem for extending the investigation. But I think an 
Independent Counsel should have to report, as I have suggested, 
to the Attorney General and the head of the Criminal Division 
after 3 years and every year after that 3-year period, and 
persuade the Attorney General that there are reasons to 
continue the investigation.
    If there were an enforcement of compliance by an 
Independent Counsel with Justice policy, that referral may not 
have happened because if the Attorney General believed at the 
time that even if the charges against Mr. Espy were true, the 
Justice Department would not bring a gratuities charge, then I 
believe the Attorney General should not refer that to an 
Independent Counsel, and the same with Mr. Cisneros.
    I would like to see the Independent Counsel reserved for 
actions by an incumbent while in office, and perhaps only 
official actions or actions that affected the treasury, the 
monies, of the Federal Government. And if there is an 
allegation about private life or something that happened before 
the election or appointment, let the Attorney General appoint a 
Bob Fiske special counsel for those.
    I think an Independent Counsel should be reserved for the 
most serious matters and that the Attorney General has a right, 
after a period of time, to demand accountability from such an 
official.
    I will stop there. Thank you very much, Senator.
    Chairman Thompson. Thank you very much.
    [The prepared statement of Mr. Ruth follows:]

                    PREPARED STATEMENT OF HENRY RUTH
    I appreciate the opportunity to express my view that the Congress 
should reauthorize the Independent Counsel Act of 1978, as amended, 
with substantial modifications. This year, too many people have 
expressed strong negative views of the act without sufficiently 
examining the history of implementation over the past 20 years. I bring 
to this issue the perspective of having toiled for 28 months in the 
Watergate prosecution office and having represented, along with Steve 
Pollak, the first person (who was also the first innocent person) 
subjected to investigation under the 1978 law, i.e., Hamilton Jordan 
who was then Chief of Staff for President Carter and who was cleared of 
wrongdoing by Special Prosecutor Arthur Christy and by a unanimous vote 
of a New York grand jury. I was also privileged to lead the men and 
women of the Watergate office for the 3-week period following the 
Nixon-Bork firing of Archie Cox and the ineffective administration 
attempt to abolish our office prior to the appointment of Leon 
Jaworski.
    The prevailing view of critics appears to be that Independent 
Counsels feel compelled to indict, stretch their investigations 
needlessly over too long a time and spend too much money. A look at the 
facts is helpful in negating these erroneous impressions. Since 1978, 
11 of the 20 Independent Counsels have brought no criminal charges and 
10 have completed their investigations in 18 months or less. Fifteen of 
the 20 offices have completed their mission in less than 4 years. In 
contrast, although most of the Watergate prosecutions were brought 
within 3 years of the June 1972 break-in at Democrat headquarters, the 
Watergate prosecution function served by the U.S. Attorney's Office and 
later the Watergate Special Prosecution Force endured for about 5 
years.
    In addition, of the $150 to $155 million expended by the 20 counsel 
offices created under the 1978 act, four of the offices have spent over 
85 percent of the total monies used for these purposes. In other words, 
16 investigations have expended an average of $1 million each and the 
remaining four have expended over $135 million. In summary, I would 
view these facts as to outcome, expenditures and length of office 
tenure as an Independent Counsel success rate of at least 75 per cent. 
And no one knows how much money the Department of Justice would have 
expended for these investigations, so we do not know really the extent 
of extra dollars the Independent Counsels have cost the taxpayers.
    In lieu of discarding the entire mechanism, legislative 
consideration should focus upon the four or five investigations that 
appear to have created severe negative reaction. These are the counsel 
offices created to investigate HUD, Iran-Contra, Whitewater, Secretary 
Espy, and Secretary Cisneros. Your Committee should also ask and answer 
two key threshold questions: Should persons at the highest levels of 
government be compelled to adhere to a standard of compliance with the 
criminal laws that is stricter than that afforded an ordinary citizen? 
And is the Department of Justice the most effective way to investigate 
highest-level Executive Branch officials who fall under the suspicion 
of a criminal allegation?
    On the threshold questions, we are confronted with the apparently 
unanimous view of President Clinton's defenders that Presidents, though 
not above the law, are also not ``below the law.'' Those defenders 
maintain that if an ordinary Joe or Janet making $6 an hour tossing 
french fries would not be investigated, then a President should not be 
so pursued either. On the other hand, I believe that people entrusted 
with running a democratic government deserve stricter scrutiny for 
lawful behavior than does an average citizen. At the time Hamilton 
Jordan was investigated on a phony allegation of a single, two-second 
incident of cocaine use, I was so outraged as his attorney that I 
wanted the special prosecutor provisions thrown in the Atlantic Ocean. 
Clearly, other citizens in America would not have been investigated by 
the Federal Government for such an allegation. But in hindsight, 
despite the pain inflicted on Mr. Jordan during the 7-month 
investigation, one can argue convincingly that a Chief of Staff to the 
President of the United States should not be using drugs and should be 
investigated if a credible allegation surfaces even though a roofer, a 
reporter or an assembly line worker would not be so investigated. The 
problem with the Jordan matter was not the allegation, in my opinion, 
it was the total lack of credibility of the allegation. Under present 
law, I believe that the Jordan special prosecutor would not have been 
appointed because present law permits a Department of Justice closure 
if an allegation is not from a credible source.
    The second threshold issue confronts the question of why the 
Department of Justice cannot do the job as well as an Independent 
Counsel. I cannot face that question without reliving October 20, 1973, 
the night of the Saturday Night Massacre. The Watergate prosecutor was 
fired and the White House announced that our Office was abolished. The 
President's Chief of Staff sent the FBI to surround our office and 
freeze our records. By far, the majority of our staff was under 30 
years old and worried about their future lives. In anticipation of 
adverse action, we had secured copies of key documents in secret 
locations around Washington, D.C. and even removed some key items from 
the office that Saturday night hidden in underwear and other unlikely 
locations. We did not know whether the military would raid our homes 
looking for documents. Unanimously, the staff of the Watergate 
prosecutors' office just refused to leave or to change anything we were 
doing unless someone physically removed us. And if an unprecedented 
450,000 telegrams of spontaneous protest had not descended upon 
Washington, D.C. in the few days after that Saturday night, no one 
really knows if President Nixon would have succeeded in aborting the 
investigation. In other words, we did not feel that the Department of 
Justice was an adequate instrument for investigating the President and 
other high officials of government.
    Even today, the difficulties of normal investigation of high-level 
officials appear in the Department of Justice pursuit of campaign 
financing violations. After 1 year, it was embarrassingly clear that 
the media were far ahead of the Federal investigators and the Attorney 
General felt compelled to find a new investigative chief; and even he 
resigned later from that position in apparent frustration about the 
lack of an Independent Counsel. Then, his intensive efforts and 
disagreement with the Attorney General were rewarded by his loss of an 
impending appointment as U.S. Attorney in San Diego. What does all that 
tell future Justice investigators about their independence?
    I propose the following changes in the Independent Counsel Act:
    1. Limit coverage to the President, Vice President, Chief of Staff 
to the President, the President's National Security Advisor, heads of 
Cabinet-level agencies including the Attorney General, the Director of 
the CIA, the IRS Commissioner and the Assistant and Associate Attorneys 
General in the Department of Justice.
    2. Limit offense coverage to only those crimes committed in whole 
or in part while an incumbent is in national office and only those acts 
or attempts which involve actual or potential Federal Government agency 
action, an illegal use of Federal moneys or an interference with a 
Federal investigation through perjury, obstruction, witness tampering 
and the like.
    3. Expand the Attorney General's preliminary investigation by 
permitting a grand jury subpoena for documents and grand jury testimony 
by the one or more persons making the allegation. If a person making an 
allegation refuses to testify without immunity, the Attorney General 
should be permitted to grant immunity to such person if normal 
Department of Justice policy and practice would so allow.
    4. The preliminary investigation should be only one stage and an 
Attorney General should be able to dismiss an allegation if it is not 
specific, if it is not credible, if the Department of Justice under its 
policies would not otherwise prosecute such a high government official 
even if the allegation were true or if the Attorney General finds that 
a further reasonable investigation would more likely than not fail to 
reveal sufficient admissible evidence adequate to institute a Federal 
criminal charge. The Attorney General would have up to 6 months for a 
preliminary investigation.
    5. An expansion of an existing Independent Counsel investigation 
should not occur without a preliminary investigation and referral by 
the Attorney General.
    6. An Independent Counsel and core staff should be required to work 
fulltime at that task.
    7. The Attorney General should maintain a core list of not less 
than 10 and not more than 25 persons who, because of prior Federal 
enforcement experience plus additional qualifications, are clearly able 
to serve as Independent Counsels. Anyone, including members of the 
three-judge appointing court, should be free to recommend such persons 
to the Attorney General. But the three-judge appointing court must 
appoint an Independent Counsel from such list unless the court rejects 
the qualifications of all such members of the list.
    8. At the end of 1 year, an Independent Counsel who is still active 
must report to the Attorney General why the provisions of section 
594(g) of the Independent Counsel Act (dismissal of matter pursuant to 
Department of Justice policy) have not been applied. Such report shall 
also be filed at the conclusion of each subsequent year.
    9. After 3 years of an Independent Counsel's investigation, and at 
the conclusion of each year thereafter, the Independent Counsel shall 
inform the Attorney General and the Assistant Attorney General 
(Criminal) as to the progress of the investigation and as to why the 
investigation should proceed further with the Independent Counsel. The 
Attorney General and Assistant Attorney General shall not share any 
such information with any other person unless otherwise authorized in 
this act.
    10. The government should reimburse reasonable attorney's fees 
under section 593(f) of government employee witnesses in Independent 
Counsel investigations in situations where the witness status would not 
have occurred but for the requirements of the Independent Counsel Act.
    11. An impeachment referral under Section 595(c) should occur only 
if the House Committee on the Judiciary by a two-thirds vote so 
requests or if the Independent Counsel so determines. And in any event, 
no referral shall occur until the Independent Counsel has concluded 
that probable cause exists that the President has committed a Federal 
criminal violation. Such referral shall be limited to inclusion of the 
testimony, documents and other evidence which relates to the reason for 
the referral. The Independent Counsel shall not include a narrative 
within the referral, but shall include an index.
    12. Under Section 596(a)(1), the Attorney General may conduct an 
investigation as to whether good cause exists for removal of an 
Independent Counsel and the Independent Counsel should be directed to 
cooperate with that investigation. In determining ``good cause'', the 
Attorney General may take into consideration whether or not 
Departmental policy and practice would conclude the Independent 
Counsel's investigation without further action if the investigation 
were within the Attorney General's purview. The Attorney General should 
also be able to take into account the fact that matters or persons then 
remaining under Independent Counsel investigation could now be 
adequately handled within the Department of Justice without violating 
the provisions of the act.
    13. In the Independent Counsel's final report under Section 
594(h)(1)(B), as to persons investigated but not indicted, the 
Independent Counsel shall state only the nature of the allegation, the 
extent of the investigation and the conclusion that the investigation 
failed to reveal evidence sufficient to file a criminal charge under 
the standards and policies of the Office.
    I believe that the combination of these changes to the law would 
reduce, if not eliminate, the inequities which many persons perceive in 
the substance of the Cisneros prosecution and in the length and breadth 
of the Espy, Iran-Contra, Whitewater and HUD investigations. The 
Committee should recognize, however, that the perceived excessive 
length of an Independent Counsel's (or any other prosecutor's) 
investigation may actually be the inevitable result of obstruction, 
delay, failure to produce documents, improper use of joint defense 
agreements, intimidation, inappropriate use of privileges and/or other 
devices sometimes employed by subjects and/or their counsel. We cannot 
and should not blame Independent Counsels for those conditions.
    I thank the Committee once again for considering these 
recommendations.

    Chairman Thompson. Mr. Fiske.

  TESTIMONY OF ROBERT B. FISKE, JR., DAVIS, POLK AND WARDWELL

    Mr. Fiske. Thank you, Mr. Chairman. There has been a lot of 
discussion about what would happen if the statute is not 
renewed, what are the alternatives. And I have been asked to 
come down here to give the Committee the benefit of my 
experience in 1994, following my appointment to what the 
Chairman referred to as a regulatory Independent Counsel by the 
Attorney General pursuant to 28 Code of Federal Regulations, 
Sec. 600.1. I will do that as briefly as I can. I also have 
some views as to how the statute should be modified, if it is 
to be renewed, which I will address at the end of my statement.
    I have a biographical statement which you have all seen, 
but just very simply after graduating from the University of 
Michigan Law School 44 years ago, my career has been a 
combination of private practice and public service. In private 
practice, I represent companies in complex civil litigation. I 
also represent individuals and corporations in white-collar 
crime investigations. I spent 4 years as an Assistant U.S. 
Attorney and 4 years as U.S. Attorney by appointment of 
President Gerald Ford, both in the Southern District of New 
York, and in both of those tours of service prosecuted a number 
of high-profile criminal cases myself.
    As Members of the Committee undoubtedly recall, back in 
1993 the Independent Counsel Statute had lapsed, and so in 
early 1994, when there was a hue and cry for the appointment of 
a regulatory Independent Counsel, there was no statute in 
effect. Republicans called for the Attorney General to appoint 
a regulatory counsel. She was reluctant to do it because she 
said, if I do that, anybody I pick is going to be subject to 
criticism because how could they have the appearance of 
independence if they have been picked by somebody who reports 
to the President, whom the Independent Counsel is 
investigating.
    When several Democratic Senators joined in the call for an 
Independent Counsel, the President himself asked the Attorney 
General to appoint a regulatory counsel under the Code of 
Federal Regulations. And shortly following that, I received a 
call from two high-ranking people in the Justice Department. 
And I think it is worth just spending a minute on the process 
that we went through for my selection because I think it bears 
on many of the issues that you are concerned about.
    The two individuals that contacted me were Philip Heymann, 
who was then the Deputy Attorney General, and JoAnn Harris, who 
was then the chief of the Criminal Division. I had known both 
of them and worked with both of them back when I was U.S. 
Attorney. They told me I was on a short list of people that 
were being considered for this appointment and asked if I would 
be interested. I said I was, and they asked me to come to 
Washington, which I did, and we engaged in a series of 
discussions in which there quickly emerged three important 
issues that were important to me and important to them.
    One was what would my authority be if I were selected. And 
I looked at the Code of Federal Regulations which were then in 
effect--and they were pretty much the same as they are today--
and I was satisfied, and I think you will be satisfied reading 
those regulations that, if selected, I would have absolutely 
the identical powers that someone would have had if the statute 
had been in effect. So, that was not a problem.
    The second issue was will I be independent. They assured me 
that I would be. That was very important to them. It was 
important to the Attorney General. They said, if you are 
selected, we will not try to control your investigation, we 
won't even ask you how it is going, you will be completely on 
your own, we don't expect to hear from you until it is over.
    And the third issue was the subject of my jurisdiction 
because, as you all know, whatever jurisdiction I was conferred 
under these regulations would, by definition, be taken away 
from the Justice Department. I would for all practical purposes 
be the Attorney General for whatever area was covered by my 
jurisdiction. They said it was important to them and to the 
Attorney General that I have the jurisdiction that I felt was 
necessary, and they even asked me to go draft up what I thought 
was appropriate and they would consider it. And, in fact, they 
would accept it unless it was sort of totally unreasonable.
    I did that, and without reading it into the record--it is 
in my written statement--suffice it to say that the 
jurisdiction that I wrote out was accepted by them and it was 
conferred on me by the Attorney General, and it is the same 
jurisdiction, precisely word for word, that was later conferred 
on Ken Starr by the three-judge court when he was appointed in 
August 1994.
    After my meetings with Mr. Heymann and Ms. Harris, I went 
to see the Attorney General and I had a short meeting with her 
in which, after thanking me for my willingness to accept the 
appointment, she said she had two questions. One, ``was I 
satisfied that I had all the authority and jurisdiction I 
needed.'' I said ``I was.'' And she said, ``are you satisfied 
you will have all the independence you need? '' I said ``I 
was.'' And she said, I promise you you will not hear from me 
again until after this is all over.
    And I think it is important to note at this point that 
during the period of my service from January 21, 1994, until 
August 5, 1994, the commitments that were made to me by the 
Attorney General, Mr. Heymann and Ms. Harris as to my 
independence were totally and completely fulfilled. At no time 
did anyone in the Justice Department make any effort to 
influence anything that I was doing. At no time did anyone ask 
how things were going or what I was doing.
    On one or two occasions, at my request, I was put in touch 
with career people in the Justice Department to answer 
questions about Justice Department practices and procedures 
which I was making every effort to follow. Those contacts were 
initiated by me and consisted only of my obtaining information 
from them that I thought would be helpful to me in discharging 
my responsibilities. And on a few occasions, we initiated 
discussions with a representative of the Solicitor General's 
office on a legal question.
    On March 24, after my appointment was announced, I took a 
leave of absence from my firm to work full-time on this 
investigation and went down to Little Rock to set up an office. 
I also made arrangements to set up an office in the District of 
Columbia. I immediately started to put together a staff of 
former prosecutors and other lawyers from around the country to 
conduct the investigation, and I would just like to take a 
minute to read their qualifications into the record because I 
am very proud of this group.
    Roderick C. Lankler, a New York lawyer who had spent 13 
years in the Manhattan district attorney's office under Frank 
Hogan and Robert Morgenthau, serving as deputy chief of the 
Homicide Bureau and subsequently chief of the Trial Division; 
Rusty Hardin, from Houston, Texas, who had spent 15 years in 
the Harris County district attorney's office, where he had 
obtained over 100 felony convictions, including 13 first-degree 
murder convictions, and had been designed Texas Prosecutor of 
the Year in 1989; James E. Reeves, from Caruthersville, 
Missouri, an experienced trial lawyer who had served as U.S. 
Attorney for the Eastern District of Missouri in 1969 and 1973; 
Denis McInerney, a deputy chief of the Criminal Division in the 
Southern District of New York; Mark Stein, also a deputy chief 
of the Criminal Division on the Southern District of New York; 
Julie O'Sullivan, an assistant U.S. Attorney in the Southern 
District of New York, a former law clerk to Justice Sandra Day 
O'Connor who is now a professor at Georgetown Law School and I 
understand she has been invited to testify before this 
Committee at a later date.
    Three lawyers I also obtained from private practice on the 
basis of recommendations from people whom I respected around 
the country. William S. Duffey, from Atlanta, Georgia, a 
partner in King and Spalding, was highly recommended to me by 
Griffin Bell.
    Gabrielle Wolohojian, from the Boston firm of Hale and 
Dorr, was highly recommended to me by Bob Mueller, the former 
Assistant Attorney General in charge of the Criminal Division 
under President Bush; and Carl Stich, a partner in the 
Cincinnati firm of Dinsmore and Shohl, was highly recommended 
by lawyers that had worked with him in the investigations of 
savings and loan fraud in Ohio. I also had three younger 
lawyers from my firm, two of whom are now serving as Assistant 
U.S. Attorneys.
    Very briefly, reviewing the work that we did in the 9 
months that I served, at the time I was appointed there was a 
pending indictment in Little Rock which had been obtained by 
the U.S. Attorney's Office there against David Hale, a former 
municipal judge who been president of Capital Management 
Services. The indictment charged Hale and two lawyers, Charles 
Matthews and Eugene Fitzhugh, with fraud against the Small 
Business Administration.
    Mr. Hale's public allegation that then Governor Clinton had 
pressured him into making an illegal SBA loan had been one of 
the events leading to the call for the appointment of an 
Independent Counsel. We prepared that case for trial. Mr. Hale 
agreed to plead guilty, and he did plead guilty. The other two 
individuals went to trial and in the middle of trial plead 
guilty and received jail sentences.
    After Mr. Hale agreed to plead guilty, our office entered 
into extensive debriefings of him to work out the terms of an 
acceptable plea agreement. And we worked out a plea agreement 
under which he pleaded to two counts, and agreed to cooperate 
fully with the efforts of our office. In my statement, which I 
know is a matter of record, I quote what I said to the 
sentencing court back in March 1996, at the time I appeared 
before the court pursuant to the plea agreement to state to the 
court the extent of Mr. Hale's cooperation while he was working 
with our office.
    It is quoted in my statement. Suffice it to say that I told 
the court that Mr. Hale's cooperation with us had given us 
information which subsequently led to the guilty pleas by four 
individuals, and also had provided substantial information with 
respect to the case that was then being tried before Judge 
Howard which resulted in the conviction of Governor Tucker and 
the two McDougals.
    I also told the court--and this is relevant to an issue, I 
know, that you are concerned about--that Mr. Hale had brought 
to our attention in the course of the investigation several 
other matters of which we did not have prior knowledge, one of 
which was a bankruptcy fraud in which Mr. Hale told us Governor 
Tucker and others had participated. We investigated that matter 
and the investigation that followed led to the indictment and 
conviction of Governor Tucker on that charge as well.
    The investigation of this bankruptcy and tax fraud 
involving Governor Tucker was conducted by our office pursuant 
to a paragraph of the jurisdictional statement which gave us 
authority to investigate other allegations or evidence of 
violation of any Federal criminal or civil law developed during 
the Independent Counsel's investigation. The bankruptcy fraud 
investigation of Governor Tucker was one example where we used 
that provision.
    There were two others that have become public that are 
important. One related to Webster Hubbell. In March 1994, the 
Rose law firm in Little Rock filed a public allegation before 
the Arkansas Grievance Committee alleging fraud by Mr. Hubbell 
in connection with billing practices relating to his clients 
and his partners. We had a discussion with the Justice 
Department. Obviously, this had to be investigated. Mr. Hubbell 
was then the Associate Attorney General in the Justice 
Department. It was pretty clear that the Justice Department did 
not want to investigate that, and should not have investigated 
that at that time.
    The issue was did they appoint another regulatory counsel 
or should I do it? We were already looking at some issues 
relating to the Rose law firm, and so it made sense all around 
for us to undertake that investigation. We did, and by the time 
I left in August 1994 and turned it over to Ken Starr, we had 
developed substantial evidence establishing Mr. Hubbell's guilt 
which he admitted in his guilty plea in December 1994.
    The third area where we expanded our jurisdiction related 
to allegations concerning the financing of Governor Clinton's 
1990 campaign for governor--allegations had been made that 
money that he had obtained by loans from the Perry National 
Bank--money that he had borrowed ostensibly to pay off 
Whitewater loans may have been used improperly for his 1990 
campaign. We were investigating that. In the course of that, we 
discovered a fairly flagrant currency transaction report 
violation which subsequently led to a guilty plea by the former 
president of the Perry County Bank.
    And, finally, in Washington, we completed an investigation 
into the death of Vincent Foster, concluding that that was a 
suicide in Fort Marcy Park. We also investigated allegations of 
possible obstruction of justice in connection with 
conversations and meetings in 1993 and early winter of 1994 
between the White House and Treasury officials concerning 
referrals from the RTC. We issued a report in June 1994 in 
which we concluded that there was not sufficient evidence of 
obstruction of justice to warrant a prosecution.
    On June 30, 1994, as you all know, the Independent Counsel 
Statute was reenacted. The same day, the Attorney General 
applied to the court for the appointment of an Independent 
Counsel and recommended that I be appointed. I have in my 
statement the opinion of the three-judge court which Senator 
Levin has already referred to, so I won't read that into the 
record. But suffice it to say that they concluded that they 
appointed Kenneth Starr because they felt that appointing me 
would create the appearance of a lack of independence, since I 
had originally been selected by the Attorney General.
    If one of the purposes of today's hearing is to examine how 
would the system work if the Independent Counsel Statute is not 
renewed, I can state that from my personal experience during 
the time I served as regulatory Independent Counsel, I am one 
hundred-percent satisfied that I functioned every bit as 
effectively as if I had been appointed pursuant to the statute. 
My powers, my actual independence, and my jurisdiction were 
identical.
    Based on that experience, I believe if the statute is not 
renewed, there is an effective mechanism for dealing with what, 
in my view, should be an extremely limited number of situations 
where someone outside of the Justice Department should be 
appointed to handle a sensitive investigation. And I would cite 
just one example in addition to what has been already referred 
to today, and that is the situation in 1978 when my predecessor 
as U.S. attorney in New York, Paul Curran, was appointed by 
Attorney General Bell to investigate allegations of wrongdoing 
in connection with Billy Carter's peanut warehouse.
    The issue there was whether money from the warehouse had 
improperly gone into President Carter's campaign. And Paul 
conducted an investigation in which he wrote a report in which 
he said, ``I accounted for every nickel and every peanut, and 
found no violation.'' And I would just pause on that for a 
second because it goes to this issue that Senator Levin and all 
the rest of you have highlighted today. Can the public have 
confidence in a situation where someone is exonerated by 
someone who has been appointed by the Attorney General rather 
than by the three-judge court?
    And my recollection of that situation--and you can go back 
and read the newspaper articles at the time--is that that 
decision, that conclusion by Paul Curran, was one hundred-
percent accepted, I think every bit as well as it would have 
been if he had been appointed by a three-judge court.
    In terms of my views as to the statute, I believe that in 
the vast majority of situations it would be far preferable to 
allow the career prosecutors in the U.S. Attorney's Office and 
in the Justice Department to investigate and prosecute these 
cases. George Beall's description of what they did with respect 
to Vice President Agnew is testimony to that. I think testimony 
to that is also reflected in what Bob Bennett referred to 
earlier, which is in my statement, the fact that the U.S. 
attorney in the District of Columbia, a Democratic appointee, 
vigorously and effectively prosecuted Congressman Rostenkowski, 
who I would submit at the time was far more important to the 
President in his position as chairman of the House Ways and 
Means Committee, dealing with the budget and the health care 
plan, than were any of the number of Cabinet officers for whom 
since special prosecutors have been appointed.
    If you get to the basic issue, should the statute be 
renewed, the only argument I see for renewing any part of this 
statute is the concern that has been expressed today. And 
notwithstanding what I said about the one hundred-percent 
public acceptability of Paul Curran's report, I would agree 
with everyone else that to some degree a decision by an 
Independent Counsel who has been picked by a three-judge court 
not to indict will have some degree of credibility beyond that 
of an Independent Counsel picked by the Attorney General. By 
how much, we can all debate, but it is hard to say that it 
wouldn't to some degree.
    So the problem is not in the situations where you are 
worried about will this person do an effective investigation 
and is there any risk that there won't be an effective 
prosecution and effective indictments or trials afterwards. As 
I said before, I think once I was appointed I was one hundred-
percent satisfied that I could do this job every bit as well as 
if I had been appointed under the statute.
    If there are indictments, then the credibility of the 
Independent Counsel is played out exactly where it ought to be, 
in the courtroom. And the public can judge by the results in 
the courtroom whether this is a prosecution that should have 
been brought or shouldn't have been brought. So the only 
concern is when there isn't an indictment and then it is just a 
question of the extent of the person's credibility.
    If the statute is to be renewed, I would make these 
suggestions, and I will do it very quickly. It should be 
limited to the President, the Vice President and the Attorney 
General. It should be a full-time requirement, and I can't 
believe that if the coverage is limited to the President, the 
Vice President and the Attorney General there won't be many 
competent lawyers that would be willing to take that on on a 
full-time basis.
    I think the idea of a time limit has great potential. I 
agree with Henry Ruth that there are obviously risks of 
stonewalling, and there is obviously the kind of situation 
where you have somebody under indictment who may be a potential 
witness if they are convicted. You have to wait until a trial 
is over. You have to wait for appeals. There may be things that 
prolong the investigation, so it can't be an arbitrary time 
limit. But some kind of accountability, I think, is good.
    I would make the accountability not to the three-judge 
court, but to the Attorney General because I think, to the 
maximum extent possible, I think the control of these 
investigations, to the extent there is control, ought to be in 
the Executive Branch and not the court.
    With respect to the appointment, that is the only place 
where I think, as I have said before, the statute really serves 
a meaningful purpose. And even there--and I think I heard this 
suggestion from someone else, so this isn't original, but there 
has been a suggestion that there be a list of people put 
together that is submitted to the court and the court picks off 
that list.
    Another way to do it which would give more power to the 
Attorney General, where I think it ought to be, and still give 
a strong stamp of credibility to the appointment would be for 
the Attorney General to prepare a list of individuals, submit 
that to the court in advance and have the court basically bless 
that list. Or if there were somebody on the list that the court 
didn't think ought to be on the list, they could take it off. 
But you would have a list that had been pre-approved by the 
court, but the Attorney General would make the appointment from 
the list.
    I would raise the threshold for appointment. An article in 
the Michigan Law Review, to which I always turn when I am in 
search of education, by Professor Gormley, would create the 
standard as ``substantial grounds to believe that a felony has 
been committed.'' I would give the Attorney General power to 
investigate that she doesn't have now. I would give her powers 
to issue subpoenas during the investigative process.
    Finally, I would eliminate the report requirement, for two 
reasons. One, it is unfair. And, second, I think the reporting 
requirement in itself tends to prolong the investigation 
because any Independent Counsel who is doing the investigation 
wants to write something that is going to be bullet-proof from 
criticism if it has to be a public report. Prosecutors in other 
areas don't write reports. I don't think there is any need for 
a report here.
    [The prepared statement of Mr. Fiske follows:]

               PREPARED STATEMENT OF ROBERT B. FISKE, JR.
    I understand that one of the purposes of today's hearing is to 
examine how the system might work in the event that the Independent 
Counsel Statute is not renewed. I have been requested to appear to give 
the Committee the benefit of my experience in 1994 following my 
appointment as an Independent Counsel by the Attorney General under 28 
C.F.R. Sec. 600.1. I also have some views as to how the Independent 
Counsel Statute should be modified if it is to be renewed which I will 
address at the end of my statement.
    As the Members of the Committee undoubtedly recall, the Independent 
Counsel Statute, which was first enacted in 1978, had a ``sunset'' 
provision which meant that it expired after 5 years unless it was 
renewed. The statute was renewed with similar 5-year sunset provisions 
in 1982 and 1987. Pursuant to the 1987 renewal, the statute expired on 
December 14, 1992 and was not renewed at that time. Accordingly, there 
was no Independent Counsel Statute in effect in December 1993 when 
demands began to be made for the appointment of an Independent Counsel 
in connection with allegations against President Clinton relating to 
Whitewater and Madison Guaranty Savings and Loan.
    Demands were made upon the Attorney General, initially by 
Republicans, for her to appoint an Independent Counsel under the power 
that she had under 28 C.F.R. Sec. 600.1. She resisted such requests, 
stating that she was concerned that anyone that she appointed, no 
matter what his or her qualifications were, would be subject to 
criticism on the grounds that he or she could not have the appearance 
of independence if he or she were appointed by an Attorney General who 
was accountable to the President to be investigated by the Independent 
Counsel. In early January 1994, several Democratic senators, including 
Senators Moynihan, Bradley, Robb, and Feingold, joined in the call for 
the appointment of an Independent Counsel. On January 12, President 
Clinton himself asked the Attorney General to make such an appointment 
and that same day the Attorney General stated that she would. I was 
subsequently contacted by two high-ranking officials in the Justice 
Department: Philip Heymann, the Deputy Attorney General; and JoAnn 
Harris, the Assistant Attorney General in charge of the Criminal 
Division. I had worked with both of them when I was U.S. Attorney for 
the Southern District of New York.
    They told me I was on a short list of people being considered, and 
asked me whether, if asked to do so, I would be willing to accept an 
appointment by the Attorney General as Independent Counsel to 
investigate the Whitewater matter. I said that I would. The following 
week, I went to Washington and had a series of meetings with Mr. 
Heymann, Ms. Harris and others at the Justice Department. In those 
discussions with the Justice Department, three important issues 
emerged: (1) independence; (2) authority; and (3) jurisdiction. With 
respect to the first issue, I was assured that whoever was appointed 
would be totally independent from the Justice Department; that no one 
would make any effort to influence what he or she was doing; and that 
the person appointed was not expected to report to anyone in the 
Justice Department until after the entire investigation had been 
completed.
    With respect to authority, I examined the provisions of the Code of 
Federal Regulations which were in effect at the time and was satisfied 
that, if appointed, I would have all the powers that an Independent 
Counsel appointed under the statute would have had--indeed in practical 
effect I would be the Attorney General in the areas covered by my 
jurisdiction.
    On the third subject--the scope of my jurisdiction--I was told that 
it was very important to the Attorney General that whoever was 
appointed should have all the jurisdiction necessary to do the job 
properly. I was told to draft up what I thought the jurisdiction should 
be. The Justice Department had a draft of a proposed jurisdictional 
provision which they gave me to consider. I then rewrote it to my 
satisfaction. That was the jurisdiction which I subsequently was given, 
which was codified in 28 C.F.R. Sec. 603.1 as follows:
        ``Sec. 603.1 Jurisdiction of the Independent Counsel
          ``(a) The Independent Counsel: In re Madison Guaranty Savings 
        & Loan Association shall have jurisdiction and authority to 
        investigate to the maximum extent authorized by part 600 of 
        this chapter whether any individuals or entities have committed 
        a violation of any Federal criminal or civil law relating in 
        any way to President William Jefferson Clinton's or Mrs. 
        Hillary Rodham Clinton's relationships with:

            (1) Madison Guaranty Savings & Loan Association;
            (2) Whitewater Development Corporation; or
            (3) Capital Management Services.

          ``(b) The Independent Counsel: In re Madison Guaranty Savings 
        & Loan Association shall have jurisdiction and authority to 
        investigate other allegations or evidence of violation of any 
        Federal criminal or civil law by any person or entity developed 
        during the Independent Counsel's investigation referred to 
        above, and connected with or arising out of that investigation.
          ``(c) The Independent Counsel: In re Madison Guaranty Savings 
        & Loan Association shall have jurisdiction and authority to 
        investigate any violation of section 1826 of title 28 of the 
        U.S. Code, or any obstruction of the due administration of 
        justice, or any material false testimony or statement in 
        violation of Federal law, in connection with any investigation 
        of the matters described in paragraph (a) or (b) of this 
        section.
          ``(d) The Independent Counsel: In re Madison Guaranty Savings 
        & Loan Association shall have jurisdiction and authority to 
        seek indictments and to prosecute, or to bring civil actions 
        against, any persons or entities involved in any of the matters 
        referred to in paragraph (a), (b) or (c) of this section who 
        are reasonably believed to have committed a violation of any 
        Federal criminal or civil law arising out of such matters, 
        including persons or entities who have engaged in any unlawful 
        conspiracy or who have aided or abetted any Federal offense.''

(I should note, parenthetically, that this is precisely the same 
jurisdiction which was conferred upon Kenneth Starr when he was later 
appointed by the Special Division for Appointing Independent Counsels 
of the U.S. Court of Appeals for the D.C. Circuit.)
    During the course of my discussions with Mr. Heymann and Ms. 
Harris, I was told that they were going to recommend to the Attorney 
General that I be appointed. On the afternoon of Wednesday, January 19, 
1994 I met with the Attorney General. After thanking me for being 
willing to undertake this appointment, she said that she wanted to make 
sure that I was satisfied that I had all the authority that I needed, 
and that I was satisfied that I had all the independence that I needed. 
I said that I was, as to both. She said that she would make the 
announcement the following day, and that she did not expect to talk to 
me again after that until the entire matter was over.
    It is important to note that during the period of my service from 
January 21, 1994 until October 6, 1994 the commitments that were made 
to me by the Attorney General, Mr. Heymann and Ms. Harris as to my 
independence were totally and completely fulfilled. At no time did 
anyone in the Justice Department make any effort to influence anything 
that I was doing. Indeed, at no time did anyone ask how things were 
going or what I was doing. On one or two occasions, at my request, I 
was put in touch with career people in the Justice Department to answer 
questions about Justice Department practices and procedures which I was 
making every effort to follow. Those contacts were initiated by me and 
consisted only of my obtaining information from them that I thought 
would be helpful to me in discharging my responsibilities. On a few 
occasions we initiated discussions with a representative of the 
Solicitor General's Office on a legal question.
    On Monday, January 24, I took a leave of absence from my firm and 
went down to Little Rock to set up an office. I also made arrangements 
to set up an office in the District of Columbia because I had committed 
to investigate the circumstances surrounding the death of Vincent 
Foster.
    I immediately started to put together a staff of former prosecutors 
and other lawyers from around the country to conduct the 
investigations. The people that I recruited were as follows:
    Roderick C. Lankler, a New York lawyer who had spent thirteen years 
in the Manhattan District Attorney's Office under Frank Hogan and 
Robert M. Morgenthau, serving as Deputy Chief of the Homicide Bureau 
and subsequently Chief of the Trial Division.
    Rusty Hardin, from Houston, Texas, who had spent 15 years in the 
Harris County District Attorney's Office where he had obtained over 100 
felony convictions, including 13 first-degree murder convictions, and 
had been designated ``Texas Prosecutor of the Year'' in 1989.
    James E. Reeves, from Caruthersville, Missouri, an experienced 
trial lawyer who had served as U.S. Attorney for the Eastern District 
of Missouri in 1969 and 1973.
    Denis J. McInerney, a Deputy Chief of the Criminal Division in the 
U.S. Attorney's Office in the Southern District of New York.
    Mark J. Stein, also a Deputy Chief of the Criminal Division in the 
Southern District of New York.
    Julie O'Sullivan, an Assistant U.S. Attorney in the Southern 
District of New York and a former law clerk to Justice Sandra Day 
O'Connor.
    William S. Duffey, Jr., from Atlanta, Georgia, a partner in King & 
Spalding who was highly recommended to me by former Attorney General 
Griffin Bell and Frank Jones of that firm.
    Gabrielle R. Wolohojian, from the Boston firm of Hale & Dorr who 
was highly recommended to me by Robert S. Mueller III, the Assistant 
Attorney General in charge of the Criminal Division under President 
Bush.
    Carl J. Stich, Jr., a partner in the Cincinnati firm of Dinsmore & 
Shohl, who was highly recommended to me by several lawyers who had 
worked with him in the investigation and prosecution of savings and 
loan fraud in the State of Ohio. He had also served as a Special 
Attorney General in Kentucky in investigating election crimes.
    Patrick J. Smith, Timothy J. White and Beth Golden, all of whom 
were then young associates from my law firm, Davis Polk & Wardwell. 
(Mr. Smith is now an Assistant U.S. Attorney in New York and Ms. 
Golden, after serving as an Assistant U.S. Attorney in Minnesota, is 
now a Deputy Attorney General in New York.)
    At the time I was appointed, there was a pending indictment in 
Little Rock which had been obtained by the U.S. Attorney's Office 
against David Hale, a former municipal judge, who had been president of 
Capital Management Services, Inc. The indictment charged Hale and two 
lawyers, Charles Matthews and Eugene Fitzhugh, with fraud against the 
Small Business Administration. Mr. Hale's public allegation that then-
Governor Clinton had pressured him into making an illegal SBA loan had 
been one of the events leading to the call for the appointment of an 
Independent Counsel. The case was set for trial on March 24. An 
immediate priority, of course, was to get that case ready for trial. We 
did so and, in early March, David Hale agreed to plead guilty to a 
superseding two-count information (Matthews and Fitzhugh, whose trial 
was severed, pleaded guilty during trial in June and received jail 
sentences).
    The first count of the information against Mr. Hale replicated the 
pending charge of fraud against the SBA. The second count was a broad 
mail fraud count covering Mr. Hale's activities over a 6-year period 
with a number of other individuals. The plea agreement, which called 
for Mr. Hale's complete and truthful cooperation, was entered into 
after intensive debriefings of Mr. Hale by our office. Following the 
plea, Mr. Hale continued to cooperate with our office and with Kenneth 
Starr after he took over.
    Pursuant to the plea agreement, I appeared at Mr. Hale's sentencing 
in March 1996 to state to the Court the extent of his cooperation while 
I was Independent Counsel. I advised the Court that:

          ``. . . . [B]etween March and August 1994, Mr. Hale provided 
        substantial information to our office in connection with 
        investigations that subsequently led to guilty pleas by the 
        following individuals: Robert Palmer, who pleaded guilty to 
        conspiracy to make false entries in the records of Madison 
        Guaranty Savings & Loan Association; Chris Wade, who pleaded 
        guilty to bankruptcy fraud and making a false statement to a 
        financial institution; Stephen Smith, who pleaded guilty to 
        conspiracy to misapply the funds of CMS; and Larry Kuca, who 
        also pleaded guilty to conspiracy to misapply the funds of CMS. 
        Finally, Mr. Hale had also provided a great deal of information 
        to my office in connection with that part of the investigation 
        that relates to the case that is currently being tried before 
        Judge Howard [this was the case which resulted in convictions 
        of Governor Tucker, James McDougal and Susan McDougal]. My 
        office was intensively investigating that information at the 
        time Mr. Starr took over.'' (Transcript of Hale Sentencing, 3/
        25/96, pp. 13-14).

    In addition to those matters, I also told the Court that Mr. Hale 
had brought to our attention several entirely new matters of which we 
had no prior knowledge. One example of such a matter was a bankruptcy 
and tax fraud in which, Mr. Hale alleged, Governor Tucker and others 
had participated. The investigation that followed Mr. Hale's providing 
us with that information ultimately led to the indictment and 
conviction of Governor Tucker, as well as William Marks and John Haley, 
for tax and loan fraud.
    The investigation of the bankruptcy and tax fraud involving 
Governor Tucker was conducted by our office pursuant to paragraph (b) 
of the jurisdictional statement which gave us authority to:

          ``investigate other allegations or evidence of violation of 
        any Federal criminal or civil law by any person or entity 
        developed during the Independent Counsel's investigation.''

    This was one of three principal areas which have since become 
public where we exercised jurisdiction beyond the original Whitewater/
Madison Guaranty mandate. The second such situation involved the 
investigation of Webster Hubbell for fraud against his clients and his 
partners in the Rose Law Firm arising from fraudulent billing 
practices. A complaint making those allegations was filed against Mr. 
Hubbell by the Rose Law Firm before the Arkansas Grievance Committee 
and made public in March 1994. In discussions with the Justice 
Department, it was agreed that it made sense for our office to 
investigate this matter. We began that investigation in March 1994 and, 
by the time I left, we had developed substantial evidence establishing 
Mr. Hubbell's guilt, which he admitted in his guilty plea in December 
1994. The other area was an investigation which we undertook in the 
spring of 1994 into the financing of then-Governor Clinton's 1990 
campaign for governor. In the course of this investigation we obtained 
evidence which led to a conviction, by guilty plea, of Neal Ainley, the 
former president of the Perry County Bank in Perryville, Arkansas, for 
currency transaction reporting violations in connection with large cash 
withdrawals by the Clinton campaign.
    In Washington, we completed an investigation into the death of 
Vincent Foster. We concluded that Mr. Foster's death was a suicide in 
Fort Marcy Park. We also investigated allegations of possible 
obstruction of justice in connection with conversations and meetings in 
1993 and early winter of 1994 between the White House and Treasury 
officials concerning referrals from the Resolution Trust Corporation. 
We issued a report in June 1994 in which we concluded that there was 
not sufficient evidence of obstruction of justice to warrant a 
prosecution.
    On June 30, 1994, the Independent Counsel Statute was reenacted, 
and on that same day, the Attorney General applied to the Special 
Division of the D.C. Circuit asking for the appointment of an 
Independent Counsel with the same jurisdiction under which I was then 
operating pursuant to 28 C.F.R. Sec. 603.1. In that application, she 
recommended that I be appointed. On August 5, 1994, the Court granted 
the application for the appointment of an Independent Counsel and 
selected Kenneth Starr for that position. In explaining the decision, 
the Court stated:

          ``. . . . The Court, having reviewed the motion of the 
        Attorney General that Robert B. Fiske, Jr., be appointed as 
        Independent Counsel, has determined that this would not be 
        consistent with the purposes of the act. This reflects no 
        conclusion on the part of the Court that Fiske lacks either the 
        actual independence or any other attribute necessary to the 
        conclusion of the investigation. Rather, the Court reaches this 
        conclusion because the act contemplates an apparent as well as 
        an actual independence on the part of the Counsel. As the 
        Senate Report accompanying the 1982 enactments reflected, 
        ``[t]he intent of the special prosecutor provisions is not to 
        impugn the integrity of the Attorney General or the Department 
        of Justice. Throughout our system of justice, safeguards exist 
        against actual or perceived conflicts of interest without 
        reflecting adversely on the parties who are subject to 
        conflicts.'' S. Rep. No. 496, 97th Cong., 2d Sess. at 6 (1982) 
        (emphasis added). Just so here. It is not our intent to impugn 
        the integrity of the Attorney General's appointee, but rather 
        to reflect the intent of the act that the actor be protected 
        against perceptions of conflict. As Fiske was appointed by the 
        incumbent administration, the Court therefore deems it in the 
        best interest of the appearance of independence contemplated by 
        the act that a person not affiliated with the incumbent 
        administration be appointed. . . .''

    As stated above, I understand that one of the purposes of today's 
hearing is to examine how the system would work if the Independent 
Counsel statute is not renewed. In my opinion, during the time I served 
as regulatory Independent Counsel, I functioned every bit as 
effectively as if I had been appointed pursuant to the statute. My 
powers, my actual independence and my jurisdiction, were identical. 
Based on that experience, I believe that if the statute is not renewed, 
there is an effective mechanism for dealing with what in my view should 
be an extremely limited number of situations where someone outside of 
the Justice Department should be appointed to handle a sensitive 
investigation. That was, of course, what happened in Watergate, which 
occurred before the statute was adopted, when independent prosecutors 
functioned extremely effectively under appointments from the Attorney 
General. That is also what happened in 1978 when Paul Curran, my 
predecessor as U.S. Attorney for the Southern District of New York, 
functioned extremely effectively under an appointment by Attorney 
General Griffin Bell to investigate allegations of wrongdoing against 
Billy Carter in connection with his peanut warehouse.
    In terms of jurisdiction and investigative and prosecutorial 
authority, there is no difference between what an Independent Counsel 
can do under the statute and under the regulations. This was the case 
when I was appointed in 1994 under the regulations. The only difference 
is in the circumstance leading to the appointment and even in that 
situation, to a significant extent, the difference may be more apparent 
than real.
    Under the regulations, the Attorney General has total discretion as 
to whether and when to appoint an Independent Counsel, as to the 
identity of the Independent Counsel selected, and as to the scope of 
the Independent Counsel's jurisdiction. Under the statute, the Attorney 
General is required to apply for the appointment of an Independent 
Counsel when there are allegations against specified individuals which, 
after a 90-day period of investigation, are of sufficient weight that 
he or she cannot say there is no reasonable basis to believe that an 
investigation would produce evidence of a crime. But even there, 
whether or not an application for appointment of an Independent Counsel 
should be made is entirely the Attorney General's decision to make. A 
decision not to apply is not reviewable by any court, under 28 U.S.C. 
Sec. 592(f). See Banzhaf v. Smith, 737 F.2d 1167 (D.C. Circuit 1984).
    I believe that, in the vast majority of situations now covered by 
the statute, it would be far preferable to allow the career prosecutors 
in the Justice Department and the U.S. Attorneys around the country to 
be responsible for investigating and prosecuting allegations of 
misconduct by high-ranking government officials. The prosecution of 
Vice President Agnew by the U.S. Attorney in Baltimore, and the 
prosecution of Congressman Rostenkowski by the U.S. Attorney for the 
District of Columbia are but two examples of the ability and 
willingness of the Justice Department to effectively investigate and 
prosecute such cases.
    If the statute were to be renewed, I would limit its coverage to 
the President, the Vice President and the Attorney General and would 
make the appointment a full-time position.

    Chairman Thompson. Thank you very much. As you know, I have 
had some real criticisms about the current setup and have 
wondered whether or not it would not be best to go back to a 
Justice-related process. But let me play devil's advocate with 
you just for a moment because it has to do not only with just 
the question of whether or not to indict, but also whether or 
not to investigate. And it gets back to the credibility of a 
Justice Department under those circumstances. It points out how 
important it is.
    It seems to me that in a strange way, when a decision not 
to investigate has been made in some cases recently, 
Independent Counsel law has become a shield instead of a sword, 
as most people fear. In other words, if it doesn't fit the 
technical requirements and there is no judicial supervision of 
the Attorney General, she has total discretion just to say that 
I don't think the law applies, end of story; I don't care what 
you say or what everybody thinks or what my chief investigator 
thinks.
    She can come to that conclusion, so if it doesn't meet 
those technical requirements, actually it is more difficult to 
get an investigation going of a high-ranking official than it 
otherwise would be, because if you didn't have an Independent 
Counsel law, it might be easier to concentrate on the inherent 
conflict that everybody sees instead of the technical 
requirements of that law.
    So it gets back again to Justice, which I think is the 
crucial question here. Everybody sees problems with what we 
have. The question is whether or not, if we go back to Justice 
in some way, relying on bringing in special counsels in the 
Public Integrity office, and so forth, would be suitable. Mr. 
Beall and Mr. Fiske both give examples from their own 
experience that lead them to believe that perhaps it would be 
suitable. But it seems to me like we may have different 
circumstances now than in each of those cases.
    Mr. Beall, in your case, you were not a part of Main 
Justice. You were a U.S. Attorney out here and you were left 
alone. You had an Attorney General who basically consulted with 
you and let you do your thing, and when you met with him, you 
didn't even have all these other assistant deputy U.S. Attorney 
types or Department of Justice types around; there was just you 
and him. And you were out there and you were allowed to do your 
job.
    In fact, as I read your statement, Mr. Agnew wanted you and 
tried to push the Attorney General to bring it into Main 
Justice. He apparently didn't like it out there with you, and 
for good reason as it turned out, I suppose.
    Mr. Beall. Senator, may I comment on that?
    Chairman Thompson. Yes.
    Mr. Beall. I had learned a hard lesson in the first year of 
my appointment when we in Baltimore had investigated and wanted 
to take to the grand jury an indictment with respect to 
construction of the Longworth House of Representatives parking 
garage. That particular contract and that particular project 
was, in our view, criminally tainted.
    When I went to Justice to seek permission, I was forbidden 
by the Attorney General, John Mitchell, from signing an 
indictment that would have implicated some high-level 
officials. And the grand jury did something very unusual. The 
grand jury decided they were going to return the indictment 
anyway, without the U.S. attorney's signature. Of course, that 
prompted a legal action and the district court in Maryland said 
that an unsigned indictment would be valid.
    Chairman Thompson. So you had good and bad experience with 
attorneys general?
    Mr. Beall. I had a bad experience. So when it came to Mr. 
Agnew, quite honestly, I did what was humanly possible to make 
sure that Justice stayed out of our way. We were, for example, 
told repeatedly we should submit some sort of a written 
prosecution memorandum to Justice, and I didn't do it.
    Chairman Thompson. So does it not get down, then, to the 
individual that you happen to draw at the time? If we look at 
current circumstances, my recollection is the first thing that 
the current administration did was fire all the U.S. attorneys. 
Now, that normally happens. There is a turnover there, but my 
recollection is it happened more rapidly and more thoroughly 
than before. They put Webster Hubbell in the number two 
position in the Department of Justice. And now I understand 
they have made all the assistant U.S. attorneys civil servants, 
which at least you think lessens their independence. So we have 
a different situation.
    We are constantly trying to look down the road, and in a 
couple of years we will have a different President and we need 
to look at this--nobody knows which candidate will win, so it 
is an ideal in some way. But still it reminds us of the fact 
that not only do we have another remaining 2 years currently, 
but it depends in large part on the luck of the draw. And maybe 
it gets back to Congress; we have to do a better job, perhaps, 
on the front end in terms of some of these appointments.
    Mr. Fiske, you point out that you were left unfettered 
under the regulatory system. It should be pointed out that 
under the regulatory Independent Counsel, you basically 
operated the same way you would under a statute. However, on 
the front end it is different in that the Attorney General gets 
to decide, totally discretionary--she has a great deal now--as 
to whether or not to bring one in. She gets to decide who to 
bring in and she basically decides the jurisdiction. That is 
under the regulatory system that you were appointed.
    I think she made the right decisions in all those cases in 
your case. But, again, this was a case where the President 
himself asked that an Independent Counsel be brought in. So it 
would be a whole lot easier for her to give you all this 
independence, I would think, than under perhaps another 
circumstance where the President was resisting.
    Finally, Mr. Ruth, you point out a problem that has to do 
with perception. We saw a situation where, as you put it, the 
media seemed to be ahead of the Justice Department in this 
campaign investigation. They brought in someone from the 
outside to give some perception of doing the right thing. Then 
they made a recommendation on an Independent Counsel. That was 
not followed. And now, as you point out, apparently the fellow 
who made the recommendation went back and apparently lost his 
position in line to become a U.S. attorney in San Diego.
    So I don't know all the realities of that, but from a 
perception standpoint everything possible went wrong in order 
to create public cynicism, and we didn't even get to the 
question of indicting or not indicting. It all has to do with 
the question of whether or not to even appoint or to ask for; 
totally discretionary. People talk about a hair trigger. You 
can make a case in some cases when it gets high enough that it 
is a locked trigger.
    So you are suggesting that we continue on with some form of 
an Independent Counsel. Is that the main reason why you have 
come to that conclusion? First of all, have I relayed your 
analysis of that situation correctly? And, second, where does 
that figure into your thinking in terms of where we ought to 
come out?
    Mr. Ruth. Well, I think it is more than a perception 
problem, Senator Thompson. I mean, I was a bureaucrat, GS-11 
through 18, as well as a Watergate prosecutor. This makes me 
think, for example, when Waco happened, Treasury Secretary 
Lloyd Bentsen asked three of us from the outside to investigate 
ATF's performance, and we came up with a rather blistering 
report and the five top people in ATF resigned. The FBI and 
Justice did its own inside evaluation of their performance, and 
essentially that evaluation, all four volumes, can be boiled 
down to their saying we raided the Branch Davidians, 75 people 
died, and we did a great job. It was a whitewash.
    I think in addition to perception, there is a substantive 
problem. When I came to Watergate, I was a good friend of Henry 
Peterson until the day he died, and there is no way I was going 
to investigate----
    Chairman Thompson. Head of the Criminal Division in the 
Justice Department during Watergate.
    Mr. Ruth. Yes. There was no way I was going to investigate 
Henry Peterson. The first day, I recused myself and I said I am 
not going to investigate him; I will become a character witness 
for him. So I recused myself. I said don't tell me anything you 
are doing about Henry.
    Many times, as you know, attorneys general have a prior 
close association with the President, and it is tough to 
investigate a friend. I couldn't do it. It is tough to go to 
Cabinet meetings and look across the table and say I am 
investigating you. Your budget has to go to the White House 
every year. There are built-in problems if you don't have an 
Independent Counsel under that rare situation where it is 
needed.
    I do not agree that attorneys general would be fine as long 
as there are special counsel. Archie Cox was a regulatory 
counsel, and when Bork fired us he actually forgot to abolish 
our regulation for about a week. He even forgot about 28 CFR, 
the Code of Federal Regulations, which was why Judge Gesell 
said the firing was illegal. So, that was just a detail flaw. 
If the President wants to get rid of you, he can get rid of 
you. So I think there are built-in problems with special 
counsel.
    This campaign contribution investigation which you just 
mentioned that is ongoing in Justice--who is going to have 
faith in the results? Right or wrong, who is going to have 
faith in the results? Anybody who takes a close, substantive 
look might say, well, maybe that is as far as they could get. 
But if, after a year, the media is still ahead of you, 
something in that bureaucracy must have said, we will spend a 
year reading the newspaper clippings and interviewing 
underlings, whereas an Independent Counsel would say let's 
interview persons at an intermediate or higher level. Let's ask 
them to come over tomorrow at 10 a.m. And you tend to do that 
as an Independent Counsel, whereas if you are GS-15 in the 
Justice Department, you sit down and write a memo which goes to 
10 other people.
    Chairman Thompson. I rest my case. Senator Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman.
    Mr. Ruth, something you said in very human terms reminded 
me that we haven't talked here at all about the general 
inclination of Presidents to appoint close friends and allies 
as attorneys general. It hasn't always been the case, but if I 
remember correctly, President Reagan brought his personal 
attorney in as Attorney General. President Carter was very 
close to Griffin Bell. I believe John Mitchell might have been 
in President Nixon's law firm. Of course, President Kennedy 
appointed his brother. You can't get much closer than that. So 
let's just leave it there, and I think you made the point.
    You have been excellent witnesses, and again I appreciate 
the time. There is always the danger that one finds in 
testimony evidence to support one's prior conclusions, so I 
state that up front. But it does seem to me that each of you in 
your way, in the stories and your excellent testimony, to me 
make me feel stronger about the need to protect the 
independence of prosecution of the highest officials.
    Mr. Ruth, you said in a sentence that will resonate in my 
brain for as long as this goes on how thin the thread was for 
that 3 weeks, how thin the thread was after Mr. Cox was fired 
in terms of the investigation going forward. And you made 
another comment about what has happened more recently about the 
way in which prosecutors have become open to attack by 
politicians.
    Now, it just makes you wonder whether everybody accused 
President Nixon of being pretty good at all this, but if they 
had done a job on Archibald Cox at that point, a spin attacking 
him for one reason or another, whether the outpouring of public 
outrage would have occurred that led to the reluctant 
appointment of Mr. Jaworski.
    Mr. Beall, I was fascinated. I had either never known or 
forgotten this whole story that you tell about how Attorney 
General Richardson within the Justice Department had decided 
not to tell the President about the investigation of the Vice 
President. It leaked, and then I guess you were called in and 
the President ordered the Attorney General to sit with Vice 
President Agnew and tell him about the investigation. And then 
he called for the sort of special counsel within the Department 
because he was wanting to take hold of it. I mean, it is to the 
credit of you and the Attorney General that you didn't yield at 
that point.
    Mr. Beall. Well, the Attorney General deserves all the 
credit. I mean, keep in mind I was a 35-year-old prosecutor 
from outside the Capital Beltway. But the Attorney General did 
have a very, very serious problem with respect to involvement 
or not of the President. He obviously was appointed by the 
President. I met with the Attorney General on June 12. The 
Attorney General did not speak to the President until I had 
sent a letter; actually, I hand-delivered a letter to Mr. 
Agnew's personal counsel in my office on August 1, saying 
essentially ``You are under investigation; this is to formally 
advise you. You are welcome to produce documents, welcome to 
come meet with us and talk with us and come to the grand jury, 
and so forth and so on.''
    I handed the letter to his attorney in order to avoid 
leaks, and so forth and so on. That Sunday morning, I was at 
home and I got a call from a reporter from the Wall Street 
Journal who said that he has in his hand the letter. I am 
mindful of the fact that the Attorney General hadn't met with 
the President yet. Of course, the first call I made was the 
Attorney General.
    Senator Lieberman. That may have been rare in those days.
    Mr. Beall. Yes.
    Senator Lieberman. Mr. Fiske, your situation is very 
different and it suggests to us how complicated this whole 
matter is. Your situation is unique, so perhaps it wouldn't be 
repeated. But there is some reason to believe--certainly, some 
historians, journalists, analysts have suggested that some of 
our colleagues up here felt that you were not being quite 
aggressive enough, and that that may have been the reason why 
some of them cooperated in the reenactment of the Independent 
Counsel Statute, which then led to your termination. It is not 
quite a Saturday Night Massacre and it takes a certain leap 
here, and it just, again, says to me that it is important.
    Mr. Beall, even though I have a high regard for what you 
did, apparently there were some critics at the time who said 
that the Department, not so much you, but the Department had 
been easier on the Vice President in those cases, allowing him 
to make a deal where he would resign, and in that sense being 
easier on him than they would have been on an everyday citizen 
accused of similar charges. So it just says to me that even the 
credibility of that Attorney General who was so independent and 
you who were so independent was questioned at that time because 
it was an in-house investigation.
    Mr. Beall. Senator, I think the result, that is the plea 
bargain, was hotly debated at the time.
    Senator Lieberman. Right.
    Mr. Beall. The fact that the Vice President was permitted 
to resign his office and trade that for a plea of nolo 
contendere and a fine and probation was the issue. The Attorney 
General decided, as he had to, that the country simply couldn't 
stand to have the President under investigation and facing 
impeachment and the Vice President standing in the dock in 
criminal court. The country just couldn't do that.
    Senator Lieberman. And, of course, an Independent Counsel 
might well have made that same judgment in that case.
    Mr. Beall. Right.
    Senator Lieberman. Let me ask this question. It is the only 
question I am going to ask, which might be called 
proportionality. You have each had experience that may help you 
answer this. One of the allegations about the current office of 
Independent Counsel is that if you have one person, unlimited 
time, unlimited budget, but set that aside--one target, that he 
is not going to make the kinds of judgments that prosecutors 
normally make because they have got a whole host of different 
cases in front of them. They can't go after all of them with 
the same zeal, so they make proportionality judgments, 
regarding which are most important.
    And one of the ways to deal with that, I suppose, is to 
limit the expansion of the jurisdiction of the Independent 
Counsel in some way, but leave that as well. Consider it if you 
want, but what about that? Each of you are very experienced 
prosecutors. I think Mr. Holder actually gave some weight to 
that yesterday. Is that of sufficient weight to abolish the 
office of Independent Counsel?
    Mr. Fiske. Well, if I could respond to that, it seems to me 
that if you think about it logically and you take at face value 
what I said a minute ago that I felt that as regulatory 
Independent Counsel I had exactly the same authority and 
jurisdiction that I would have if I had been appointed by the 
statute, you would have that same problem with the appointment 
of a regulatory counsel. So, really, the only alternative then 
is not to ever appoint anyone outside the Justice Department.
    Senator Lieberman. Good point. Mr. Beall or Mr. Ruth, do 
you have any comment on that?
    Mr. Beall. I really yield to these two gentlemen who 
actually served in the office of Independent Counsel because 
they are the ones who had to address and confront this 
directly.
    Senator Lieberman. Well, let me ask it in a different way, 
then. In your time as U.S. attorney, did you make those kinds 
of judgments because you had so many potential cases? I suppose 
in the ideal world, every prosecutor would prosecute every case 
where they suspect that there was a crime committed.
    Mr. Beall. No question, prosecutorial discretion is highly 
prized and valued. And, I always felt my job was to be able to 
say no. It is easy to say yes. It is easy to bring criminal 
charges, but I always thought my job description was to see 
that we said no on appropriate occasions. That is easier to do 
when you have a lot on your plate than it is when you have one 
particular matter that you are pursuing.
    Mr. Fiske. If I could just follow up on that because I 
think it goes right back to this issue of the report, I mean 
the ordinary situation when I was U.S. Attorney is 99 percent 
of the time hopefully you were conducting an investigation of 
something that was not public, and you did your best to make 
sure it did not become public until there was an indictment. 
And if there wasn't an indictment, then hopefully nobody ever 
knew about it.
    In the course of that, you are constantly making value 
judgments. You have got so many resources to use. What are you 
going to use them on? We used to have weekly meetings of every 
unit, go through every investigation. This one doesn't seem to 
be going anywhere; let's close it down. Let's not spend any 
more time on that. Let's put it on this.
    When you are appointed as an Independent Counsel to 
investigate a high-profile allegation against a high-ranking 
public official and you have a requirement that when it is all 
over you have to write a detailed report if you are not going 
to bring a prosecution explaining why you didn't do it, 
recognizing the political pressures both ways--you are 
criticized if you do, you are criticized if you don't by a 
different party--it is human nature that someone will prolong 
the investigation, running down things that an ordinary 
prosecutor never would do because he would be devoting 
resources somewhere else, to be sure that when he finally 
writes a report, nobody is going to be able to pick it up and 
say, oh, well, you should have done something else that you 
didn't do.
    So I think although it is not exactly what your question 
was, I do think it ties into this reporting requirement, which 
is one reason I think it should not be required.
    Senator Lieberman. There might be pressure in a case where 
you announce as Independent Counsel you are not going to indict 
to nonetheless take some swipes at the target just to make 
those who wanted you to indict him feel that you had brought 
him up to the edge.
    Mr. Ruth, my time is up, but since you favor the 
continuation of the office of Independent Counsel, I ask you to 
just address for a moment this question of discretion or 
proportionality.
    Mr. Ruth. Actually, Senator Specter and I taught a seminar 
on prosecutors' discretion at Penn Law School many years ago.
    Senator Lieberman. How did he do?
    Mr. Ruth. Actually, he did very well. He let us take 75 
cases--he was D.A. in Philadelphia. We took 75 of his cases and 
made him explain why he brought the charge he did, and he 
defended himself very well.
    Chairman Thompson. No wonder he got out of that business. 
[Laughter.]
    Mr. Ruth. I think what you are raising, Senator Lieberman, 
is a fundamental question, and we heard it during the Clinton 
matter. All the defenders on television were saying the 
President can't be above the law, but he shouldn't be below the 
law. And I never understood that because I don't think you 
decide whether or not to investigate a President with the same 
standard that you might exercise in investigating a guy that 
pitches french fries at McDonald's or a salesman or a waiter. I 
think Presidents ought to abide by a higher standard. I think 
attorneys general ought to abide by a higher standard.
    I felt, representing Hamilton Jordan (President Carter's 
Chief of Staff), that maybe the new law should say anyone that 
has ever represented a defendant or a target in an Independent 
Counsel investigation should not testify for 1 year before the 
Senate, because I was ready to throw this act out for at least 
a year after Hamilton Jordan, where the allegation was one 
alleged two-second use of cocaine, period, and it never 
happened.
    But then I started to realize, and so did Hamilton at the 
time--he used to placate us. He used to say, look, a chief of 
staff to the President shouldn't be sniffing cocaine. OK, they 
wouldn't investigate some other guy, but they should 
investigate me if they think I did that. And, of course, he 
didn't do it and the grand jury so voted, 23-0. And Arthur 
Christy was a wonderful Independent Counsel. He finished in 7 
months.
    And when Hamilton was cleared of that--and a lot of people 
believed the allegation for 7 months, believe me, including 
most of the people in the media. But when he was cleared by an 
Independent Counsel, it totally went away. So although a 
prosecutor might have 2,000 matters in his or her office, if an 
allegation comes in about the President violating a law, I 
believe an ordinary prosecutor would assign a lot of resources 
to that matter.
    Senator Lieberman. Well said. Thank you
    Chairman Thompson. Just on that point briefly, that is 
something that I have wondered about in listening to all this. 
You talk about how you treat a public official, above or below, 
but my recollection is--I don't know if they have changed or 
not, but when I was an assistant U.S. attorney, clearly, they 
would bring prosecutions against people who would set an 
example and people who were in the public officials.
    Even if they weren't public officials, they would sooner 
indict an accountant for tax fraud, the IRS would, than they 
would some guy working at McDonald's for sure because that 
would have a deterrent effect. So for a long time, we have had 
different standards, for better or for worse, it seems to me.
    Mr. Ruth. Well, I think the public trust--if you have a 
public trust, you better damn well live up to it.
    Chairman Thompson. Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. When Henry Ruth 
reminisces about the days where we taught a law school class 
together, he left out the best part when we were younger 
lawyers, still young lawyers, but younger lawyers, playing 
softball together in the Philadelphia big law firm city league, 
or when I tried to hire him after I was elected D.A. to be my 
first assistant. And he was working for the Attorney General, 
who threatened a war between the U.S. Department of Justice and 
the Philadelphia District Attorney's office if I proceeded to 
try to hire him. That really motivated me to work harder. I 
thought that would be a fair battle, but I couldn't persuade 
Professor Ruth to join me at that time.
    I want to pick up on what you said, Henry, on who would 
have any faith in the result by the Department of Justice in 
their investigation on campaign finance reform. And those words 
certainly resonate in this room because at that table and in 
those witness chairs for months, this Governmental Affairs 
Committee heard testimony. And you talk about political 
outrage. Where is the outrage--a question which has been raised 
by a lot of people in a lot of contexts.
    We had Charles LaBella brought in specially by the Attorney 
General personally to head campaign finance reform, and in a 
lot of ways was like a special prosecutor. He left his position 
in San Diego and was expecting to be the U.S. attorney in San 
Diego. And when he agreed with FBI Director Louis Freeh that 
there ought to be Independent Counsel, he lost his status, and 
the recommendation has been made to have somebody else 
appointed to be the U.S. attorney for San Diego.
    When that happened last August, I pressed to have hearings 
on the issue. We may yet have them when the confirmation comes 
up as to the replacement. But there is so much to be outraged 
about that you really can't focus on it. How could we push a 
mandamus action to try to compel Attorney General Reno to 
appoint Independent Counsel at a time when there is an 
impeachment process? How can you be outraged as to Mr. LaBella 
when there is so much more which moves onto center stage? And 
when you tell the story of the Saturday Night Massacre, I think 
people really tend to forget it.
    I think that we need more safeguards against conflict of 
interest, not fewer, and that is why I come back to the 
judicial review. Independent Counsel was appointed on a 
mandamus action against the Attorney General in three cases, 
and in all three cases overruled on grounds of lack of 
standing. And if we can correct the standing process, my own 
sense is that is where we ought to go.
    I would be interested in your view on that, Mr. Fiske. What 
do you think about having an umpire come in when the Judiciary 
committees, or a majority of the majority or a majority of the 
minority, really feel there has been a flagrant abuse of 
discretion?
    Mr. Fiske. Well, I am a little bit like Bob Bennett. I 
mean, I haven't thought this through very well, but my concern 
about that would be a constitutional one. I mean, basically, as 
I understand it, the decision whether to prosecute or not is an 
Executive Branch decision. The decision whether to investigate 
is an Executive Branch decision, and whether you do it yourself 
or whether you appoint an Independent Counsel to do it, it 
still is a decision whether to investigate or prosecute.
    Senator Specter. We had a discussion with Joe diGenova on 
that very point, and Mr. diGenova said a core executive 
responsibility is prosecution. And my reply to that was a core 
executive responsibility cannot be the question of prosecuting 
the executive. There has to be a referee somewhere.
    What do you think, Mr. Beall?
    Mr. Beall. You put your finger on a terrible dilemma. I 
don't have a solution. If you have an Attorney General who 
won't act, how can you bring about action? I don't have the 
answer, Senator.
    Senator Specter. Well, the traditional way is to go to 
court, and three went to court and got Independent Counsel 
appointed but were overruled for lack of standing.
    Let me pick up the question of time limits because I know 
that Professor Ruth and I have a difference in view on it. You 
talk about people going to China, running right out from under 
the subpoenas of this Committee. It wouldn't make any 
difference whether the investigator had unlimited time if they 
are in China; we have to revise jurisdiction, venue, and 
service of process to work that out.
    But when I was district attorney, I had a 4-year term. It 
had to be completed within 4 years. I had two terms, so I had 
to get it done. Pennsylvania law limits a grand jury to 18 
months and you have to work within the time frame, so that if 
you have expedited process where a court would be under 
statutory obligation--we have done that on speedy trial and on 
death penalty habeas corpus cases, etc.--they would have to 
decide it sooner.
    And if the Independent Counsel was full-time and you have 
extensions for cause shown, especially where there were 
dilatory tactics or not, why not? My sense is we are going to 
have a hard time getting reauthorization of this statute. We 
are going to have to very sharply curtail it if we are to get 
the job done at all.
    What do you think, Henry?
    Mr. Ruth. Well, that is why I propose some accountability 
to the Attorney General, Senator Specter. I think if I were a 
defense counsel and I was representing a potential target in an 
investigation just announced with an 18-month time limit, and 
then we organize all our joint defense and all 18 lawyers sit 
around the table and say, well, if everybody takes the Fifth, 
they won't have any evidence----
    Senator Specter. How about changing that rule, privileging 
joint defense----
    Mr. Ruth. I used to ask that question for shock value in 
law school about abolishing the Fifth Amendment, but I don't 
remember asking it in other places.
    Chairman Thompson. It had the same effect on me.
    Senator Specter. Well, there is a move afoot on that that 
might have some currency in this room on abolishing Miranda.
    Mr. Ruth. But you can delay. I mean, the average white-
collar investigation by the Justice Department takes over 4 
years, and that is when they are moving relatively 
expeditiously. We all know as a defense attorney, you have got 
a lot of weapons of delay, and delay is the first principle of 
defense and will always be, and I think you are quite aware of 
that. And delay with a time limit is a dream.
    Senator Specter. Well, I have seen white-collar 
investigations run in a much more abbreviated time than 4 
years. And it may be that after you have investigated for 18 
months, if you can't find something perhaps that ought to be 
the conclusion of it. And if defense counsel have engaged in 
dilatory tactics or taken interlocutory appeals, etc., or 
privilege questions, perhaps you can get an extension for that, 
but perhaps you ought to call it.
    Mr. Ruth. Well, I think the Independent Counsel should have 
to explain to the Attorney General after 3 years and every year 
thereafter why the investigation must continue. And I would 
allow more use of the ``good cause'' provision. I mean, I 
wouldn't call this the Independent Counsel anymore; I would 
call it a temporary counsel. And I would set it up not as an 
adversary proceeding, but as two law enforcement people trying 
to work out a law enforcement problem.
    Senator Specter. Mr. Fiske, I was interested in your strong 
endorsement of full-time practice. And, of course, you are a 
good example of that, and we have had some sparring and some 
debate that people are not going to give up their practice to 
come in. But my sense has been that these are very interesting 
appointments, sort of plum appointments, and you can work it 
out with a law firm to bring people of your caliber in on a 
full-time basis.
    I would like to hear you amplify that view.
    Mr. Fiske. Well, my first point, Senator, is that I said 
before I think the statute should be drastically cut back in 
terms of the people that are covered so you raise the level of 
the people that are covered to the very highest level. I said 
President, Attorney General and Vice President. Somebody else 
said make it the whole Cabinet, but certainly not the group of 
people you have now.
    Once you do that, then there is going to be no problem 
getting good people to do it full-time, and I think there are 
at least three reasons why that is important. One, I think it 
is very important that there be an appearance that the person 
who is doing this is doing it on a full-time basis. 
Investigating people at that level--the President, the Attorney 
General and the Vice President--shouldn't be perceived as a 
part-time job.
    Second, you just get the job done faster if you are doing 
it on a full-time basis. And, third, there is a pressure there. 
We are all worried about how long is this going to take. If 
someone that has a profitable private practice gives that up 
full-time until they finish the investigation, there is a not 
too subtle additional pressure to finish the investigation 
perhaps faster than it would have otherwise. So those are all 
reasons why I think it is important.
    If I could just go back to your question to Henry about the 
time limits, I think I am on the same page that he is with 
respect to the concern that if you are going to have time 
limits and there is going to be some kind of a requirement that 
there be a showing of good reason to go forward further that 
the Attorney General should be the one to make that decision, 
not the court.
    I am again concerned about the constitutional issue, and in 
Morrison v. Olson, in upholding the statute, the Court made a 
point out of saying once the court has appointed a counsel and 
defined his or her jurisdiction, it has no power to supervise 
or control the activities of the counsel. That was obviously 
important to the majority. I think if you have the court 
sitting in judgment on what is essentially a prosecutorial 
decision--is there good reason to go forward from here--you 
have got a problem.
    Senator Specter. I think that is a very good suggestion. 
Thank you, gentlemen, very much.
    Chairman Thompson. Thank you very much. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    First, Mr. Fiske, your appointment by the Attorney General 
is an interesting chapter in our history, and her statement to 
you after she appointed you that she did not expect to talk to 
you again until the entire matter is over is a very strong 
statement of independence. But it raises questions, then, about 
the accountability, which is one of the reasons frankly that 
many of us who have supported this law want to either tighten 
it or find another mechanism because we feel there have been 
excesses and extreme uses to which this law has been put and 
extremes to which it has been taken.
    And I guess that you would never hear from her again until 
after it is over raises questions like staffing. If you had 
asked for three times as many staff, would you have had it?
    Mr. Fiske. Well, I think certainly, Senator, that was the 
understanding that I had. Now, I don't think I abused it, but 
it was up to me to decide who I wanted to hire. I read their 
names and qualifications into the record. I think it was a very 
outstanding group. But there were no time limits put on me, 
there were no budget restraints put on me. And I guess the 
problem is trying to balance the tension between independence 
and accountability, and in my situation I felt I was free to do 
whatever I wanted to do.
    Senator Levin. We have put some restraints on Independent 
Counsels in terms of reporting to the court, for what it is 
worth. At least they have got to report to a court. At least 
they are subject to being removed if they are nearly completed 
in the eyes of the Attorney General or the court, acting on its 
own motion. There are other restraints that we have placed on 
Independent Counsel. It sounds like you didn't even have that.
    Mr. Fiske. No. Under the regulations, there were a couple 
of things. First of all, as the statute subsequently said, I 
was required to follow Justice Department practices and 
procedures, and I made every effort to do that. And I could be 
removed for good cause, and I think as Henry said earlier, as 
an example, not following Justice Department practices and 
procedures, I am sure, would be good cause if it could be 
demonstrated.
    Senator Levin. Well, I would hope so. I am not so sure that 
the Attorney General is taking that position, and I am not even 
sure that the courts do, since apparently the removal is 
appealable to court. And we have had a court decision at least 
in one case which says that Independent Counsel in this case--
this was in the Espy case, I believe, with Judge Lambreth--says 
that the Independent Counsel could prosecute a violation--it 
was an ethics violation--``even if said prosecution is contrary 
to the general prosecutorial policies of the Department.''
    Now, that really raises a fundamental question. And you 
have raised this, too, Mr. Ruth, because you sort of suggested 
that maybe there ought to be a higher standard that we hold 
public officials to. That suggests that we are not going to see 
an Independent Counsel or a special counsel or a regulatory 
counsel follow the policies and practices of the Justice 
Department because if the policy of the Justice Department is 
not to prosecute a private individual for whatever particular 
offense it is, what you are saying is, if I heard you right, 
maybe we ought to prosecute that public official anyway.
    Mr. Ruth. Well, the Department of Justice, as you know, 
Senator, has a huge policy book on criminal matters which is 
now on the Web, and the Department itself has different 
standards for prosecuting public officials. So, to me, you 
would be following the Department of Justice standards as to 
whether you would prosecute a President or an Attorney General 
for this, not whether you would prosecute Joe or Jane.
    Senator Levin. Well, that is fair enough. But if the 
Justice Department policy is not to prosecute a public official 
for a particular offense that they wouldn't prosecute a private 
individual for, you are not suggesting, are you, that that 
policy should not be followed because it is a public official?
    Mr. Ruth. No. I think it should be followed, and I think 
the Attorney General should be given, in an amendment, the 
right to investigate an Independent Counsel to see if good 
cause for dismissal exists, including good cause to dismiss for 
not following Department of Justice policies.
    I think the case you were reading was an underling they 
were trying to squeeze to see if he had something to say about 
his boss. And the Department of Justice will prosecute 
sometimes in an instance where they think they can squeeze 
somebody after a conviction, even though they wouldn't 
prosecute that underling ordinarily. That is the step ladder 
theory. If they think somebody is a step ladder, they might 
well prosecute.
    Senator Levin. Let's just focus on that issue of how do you 
enforce the policies and practices of the Justice Department 
and what investigatory powers does the Attorney General now 
have into the activities of an Independent Counsel to see 
whether or not that counsel has followed the policies and 
practices of the Justice Department.
    Mr. Ruth. If I were Mr. Starr, I would say to Janet Reno, 
you all come, I didn't do anything wrong. And I think the 
present statute, when it says you can dismiss for good cause, 
inherently says the Attorney General has to have the power to 
investigate.
    Senator Levin. I totally agree with that, but that is not 
the way this is apparently unfolding at the moment. But, 
nonetheless, I totally agree with that.
    Let me ask you, Mr. Beall, do you agree with that?
    Mr. Beall. I do; I agree with Mr. Ruth.
    Senator Levin. As to what he just said, because this is 
really a very critical point? I don't think we have to amend 
the statute, by the way, in order to accomplish this point.
    Mr. Fiske, I am going to ask you the same question. Do you 
agree with that comment that the Attorney General has the 
authority to ask any Independent Counsel questions, and 
determines whether that Independent Counsel has not followed 
the policies or practices of the Justice Department, or, if I 
heard Mr. Ruth correctly, he refuses to cooperate in such an 
investigation, that that would be just cause for dismissal? 
Would you agree with that?
    Mr. Fiske. Well, I think the first issue is whether or not 
following Justice Department practices and procedures is a good 
cause for dismissal. It would depend, I think, obviously, on 
the specific facts. But as a generic proposition, I would think 
it certainly could and in many cases should. I mean, you would 
have to know exactly how egregious it was, and so forth, but 
certainly that is a legitimate area that could be covered by 
the ``good cause'' grounds for termination.
    And I must say inherently it makes common sense that if the 
Attorney General has the power to discharge someone for good 
cause, which includes not following the procedures, that the 
Attorney General ought to have a way to find out whether the 
Independent Counsel is or is not following procedures. And then 
I guess the safeguard is that in any event, if there is a 
discharge, that is subject to review by the district court in 
the District of Columbia.
    Senator Levin. The regulatory counsel provisions that you 
were appointed under will still exist even if this law expires, 
is that correct?
    Mr. Fiske. Yes.
    Senator Levin. I mean, unless the Attorney General repeals 
those regulations, we are going to have regulations on the 
books. Now, does that not create, in effect, the similar 
problem to what we have now, which is the huge political 
pressure on the Attorney General to appoint or seek the 
appointment of an Independent Counsel, if anything, would be 
more intense, when she can do it herself under the regulation 
that would continue to exist even if the law expires in June.
    Would not that problem continue to be there? The 
opportunity to put pressure on the Attorney General to appoint 
a, ``regulatory counsel'' would continue to exist after the law 
expires. Let me start with you, Mr. Fiske. I will go right down 
the line.
    Mr. Fiske. Well, just so I understand, you are saying if 
the statute expired and we were dealing just with the 
regulations, would there still be this same kind of----
    Senator Levin. You have a regulatory counsel?
    Mr. Fiske. Yes. I think that is exactly what happened in 
1993 and early 1994.
    Senator Levin. So we don't correct this problem with the 
Independent Counsel law that it is open to the Attorney General 
being put under some pretty withering fire politically to seek 
the appointment of an Independent Counsel if we have a 
regulatory counsel provision that still exists in regulation 
where, maybe not quite as independent as law, but nonetheless 
she could go and appoint one herself.
    Would you agree with that, Mr. Beall?
    Mr. Beall. Senator, part of the job description of the 
Attorney General and any other public official, is political 
pressure. That is inherent. I am not sure how one could obviate 
that.
    Senator Levin. I am not either, but it still would continue 
to exist, is that correct?
    Mr. Beall. Yes.
    Senator Levin. Mr. Ruth, would you agree?
    Mr. Ruth. I think it might even increase because the 
Attorney General couldn't cite a statute, which I think is the 
problem Senator Thompson was referring to, he or she wouldn't 
have the shield of a statute not to appoint.
    Could I make one comment about the final reports?
    Senator Levin. Sure.
    Mr. Ruth. At the end of most of Watergate, I happened to be 
the surviving Watergate prosecutor after serving under Mr. Cox 
and Mr. Jaworski, and we were under terrific demand to release 
all our files. And if you look at the Watergate final report 
that we wrote, it is about three-quarters of an inch thick. And 
the Herblock cartoon the day after I left office was a baseball 
stadium with a batter swinging and missing, and the caption was 
``The Babe Struck Out.'' And that is mainly because we didn't 
release all our files. And I was hauled up to the House 
Judiciary Committee three times, where Elizabeth Holtzman 
castigated me in very unpleasant terms for hiding things.
    Chairman Thompson. Why are you just now telling us this? 
[Laughter.]
    Mr. Ruth. Well, it was all open, actually, and the 
Washington Post was terribly upset--George Lardner wouldn't 
speak to me for a while. But I think you should release that 
kind of limited report explaining what your policies were, what 
was your plea bargain policy, what did you investigate. And I 
recommend that the statute be amended so that if someone is 
cleared, a final report can say only we investigated and we 
found insufficient evidence to indict and no more. And you 
won't have a repeat of that McKay-Meese incident where Mr. 
McKay, which I criticized publicly at the time, basically said 
we didn't indict him, but by the way he is guilty. I mean, that 
was horrible.
    Chairman Thompson. On the guidelines question, refresh my 
memory or recollection on this. It has been a long time since I 
have dealt with it. What if the Department itself does not 
follow its own guidelines? Under today's law, is that a 
reversible offense?
    Mr. Ruth. No. If you read those guidelines, 500 pages, the 
last paragraph says: None of this shall bind the Department of 
Justice.
    Chairman Thompson. It doesn't count.
    Mr. Ruth. And, basically, I don't think you can write them 
any other way.
    Chairman Thompson. Well, the Department of Justice itself, 
if it does not follow its own guidelines, there is really no--
it does not give a defendant a right to the dismissal of an 
indictment or overturning of a conviction.
    Mr. Ruth. No. That is a dilemma for the court because if 
someone violated the law, the court can't say it is illegal to 
prosecute a violation of the law. And Bob and George faced that 
as U.S. attorneys.
    Chairman Thompson. Yes. I am not saying that is necessarily 
a great idea, but I thought that was the case. So the situation 
is the same as far as the Independent Counsel law, because 
there is something in the guidelines, as you point out, that 
also says nothing in here gives any additional rights to anyone 
in case we don't----
    Mr. Ruth. Right. But if you use ``good cause,'' I think in 
the Espy matter, an Attorney General, if there were a 
meaningful ``good cause'' provision, could have called Mr. 
Smoltz on the carpet and said, look, $4 million, $8 million, 
$12 million, $16 million investigating some gratuities? Give me 
a break here. Why do you think this ought to continue? We 
wouldn't continue that under Justice policies.
    Mr. Fiske. Senator, if I could just make one comment with 
respect to that, there may be a little difference. I mean, you 
are absolutely right. The U.S. attorneys manual--every other 
page says a violation of this doesn't give the defendants any 
right. On the other hand, internally, within the Justice 
Department, if someone flagrantly violates their own 
procedures, the Justice Department is entitled to take remedial 
action against them.
    Chairman Thompson. And demand justification for doing it?
    Mr. Fiske. Yes.
    Chairman Thompson. Sometimes, there is good reason for 
that.
    Mr. Fiske. Yes, exactly.
    Mr. Ruth. My experience with that as a defense attorney is 
they don't do much about it. I mean, there are violations all 
the time of Federal investigators talking to represented 
targets.
    Chairman Thompson. We keep getting back to the fact that 
there is no failsafe position here and we have got to continue 
to try to get the best people involved. For the people who say 
let's bring it back to Justice--what do you do if Justice is 
not acting right, whether it is to bring a case or not to bring 
a case, or refuse to bring an investigation? Their answer 
always is public opinion and the media pressure and things of 
that nature.
    So you can't take Congress out of the equation. Nobody 
wants a Congress pushing and deciding, as we have had in the 
last 20 years, I must say, time after time from Capitol Hill, 
trying to get somebody indicted. On the other hand, if we go 
back to a system whereby Justice has more discretion when 
people see what they consider to be a flagrant violation of 
their duty, there is going to be that political give-and-take.
    One final question. You brought up something, Mr. Ruth, in 
your statement that I had been grappling with and that has to 
do with the role of Congress. One of the things that I have 
been saying and thinking for some time is that, if we go back, 
if we move away from this Independent Counsel law, Justice is 
going to have to do a better job. They are going to have to 
have more credibility, but so is Congress. We are going to have 
to do a better job.
    Back in the old days, back during Watergate when you and I 
were in town on opposite ends of the street, it worked out. We 
had a bipartisan investigation, essentially. We had the good 
fortune of having a taping system in the White House, and a 
President's attorney who decided to testify against him, and a 
few other things that tend to help an investigate along a 
little bit. Lately, we have not been as fortunate, for a lot of 
reasons.
    And you pointed to something that is very obvious that I 
hadn't really focused in on, and that is the proclivity now for 
people to exercise their Fifth Amendment rights is greatly 
increased and enhanced. When we had Watergate, I can think of 
one or two instances. In the first place, you didn't have many 
lawyers in town who knew what they were doing and they would 
let their clients go before grand juries, I mean, in terms of 
the white-collar criminal area, frankly.
    Mr. Ruth. There was no white-collar criminal bar.
    Chairman Thompson. Well, we have created one, God help us. 
And people freely testified, and on up to the time of Iran-
Contra. And now we have seen, of course, perjury charges and 
immunity deals that have gone bad, and so forth. It causes me 
to wonder whether or not Congress anymore can perform the 
historical oversight role that it performed for 200 years and 
say, let's take some of it out of the court system. We don't 
have a failsafe system. Let's let the light shine on it, let's 
have congressional hearings, let's get to the bottom of it.
    I am wondering anymore whether or not we have--and then, of 
course, when we impose time lines on ourselves and we break 
down into partisanship, that is just additional pressure. But I 
am wondering now, inherently, when people are doing what they 
have a perfect right to do, and smart lawyers are going to 
encourage them to oftentimes, and that is take the Fifth 
Amendment, whether or not we are that much a part of the 
equation anymore.
    And take it a step further. That causes us to tend to want 
to immunize witnesses, give them use immunity for their 
testimony in order for us to do our job. Well, of course, that 
creates trouble with the prosecutor. My experience has been it 
creates trouble with the prosecutor whether it is in Justice or 
an Independent Counsel.
    I don't have any point here other than to say what is your 
thinking about all of that in terms of the issues that we have 
been discussing here today. Any solution to any of that?
    Mr. Ruth. Well, that is why I brought up the subject, 
Senator, because Senator Ervin's committee, as you well know, 
was so successful. I mean, it was dynamite, and that is why I 
said this can't happen again because if you are a modestly good 
defense counsel, you are not going to let a mid-level or above 
official go before a Senate or House committee with the 
possibility of a prosecutor hanging out there and saying 
anything but the Fifth Amendment.
    And the Senate or House can get documents, and you can get 
lower-level government employees to testify, but that is not 
going to move the ball. And, to me, because you lose 
significant congressional oversight while a prosecutor is 
proceeding, or even impending, that, to me, is the need more 
for an Independent Counsel because any prosecutor really shuts 
down the whole thing from public view.
    Chairman Thompson. Well, that leads you in that direction. 
Does that lead you in the same direction? Do you agree with 
this analysis and does it lead you in a different direction?
    Mr. Fiske. I don't know where we end up on this, but it 
does seem to me that what you are talking about is a tension 
here that hopefully can be cooperatively resolved between the 
Congress and Justice or the Independent Counsel, but most of 
the time, it can't be, between a legitimate desire on the part 
of the Senate to air everything publicly, the public's right to 
know, let's get all the facts out, these are political issues, 
the public should know about them so they can exercise their 
vote at the ballot box, versus the issue from the view of the 
Justice Department as to whether this is conduct that is more 
important to criminally prosecute than expose.
    And being on the Justice Department Independent Counsel 
side of that and having taken this very position with two 
congressional committees that were proposing to hold hearings 
while I was doing what I was doing back in 1994, I think there 
is obviously an enormous concern on the part of prosecutors 
that if people are immunized, I think the Iran-Contra aftermath 
in the North and Poindexter case indicates for all practical 
purposes they can't be prosecuted, and indeed maybe a lot of 
other people can't.
    Chairman Thompson. Well, I had the privilege of bearing 
witness to what you are saying, as a young guy. I was even a 
little younger than Mr. Beall there during all of that and 
watched Senator Irvin and Archibald Cox argue with each other 
over that very thing, two giants, coming from different ends of 
the street, each with legitimate concerns, but having real 
disagreements as to what should have priority under the 
circumstances. And we will never get away from that, will we?
    Mr. Fiske. No. Whether or not you appoint an Independent 
Counsel, that problem is going to be there.
    Chairman Thompson. Senator Levin.
    Senator Levin. Just a couple more questions. First, going 
back to the regulatory counsel, the regulation would continue 
to exist, and we have to consider that, it seems to me, when we 
act or don't act in terms of reauthorizing this statute.
    Some parts of the regulation are actually from a 
perspective of trying to rein in the Independent Counsel's 
powers and make that person more accountable even weaker than 
the current law. For instance, in the current law, we have GAO 
requirements, GAO reports, under the law which would lapse with 
it. Those requirements are not present in the regulations, just 
for starters. There is no review of expenses, for instance, in 
the regulations as far as I know that the GAO does. So we have 
that issue that we have to contend with and it is one that I 
have not put much focus on myself, frankly, until I read your 
testimony today, Mr. Fiske.
    Mr. Fiske. Senator, the GAO did regulate our expenses.
    Senator Levin. Good; I don't think by regulation. But, in 
effect, if they did, it is the same thing.
    Mr. Fiske. We reported to them.
    Senator Levin. OK, then that takes care of that. There are 
other aspects, however. I have a list being put together here 
of items that are not in the regulation that we added to the 
law in its last reauthorization. So in some respects there are 
safeguards that were intended to be placed in the law by that 
last reauthorization that are not in the regulations. And I 
don't have all of them at my fingertips, but apparently there 
are others which would be more accurate than the one I 
apparently have just given.
    On the question of Congress and politicization of this 
process, I would be deeply troubled by following the course 
that Senator Specter suggested here, which is to allow 
Congress, by a majority of the majority or a majority of the 
minority, to mandamus the triggering of this Independent 
Counsel Statute. I think that will plunge us even deeper into 
politicizing this statute.
    I think you did not want to comment on it.
    Mr. Fiske. I just raised a constitutional question of 
getting the court involved in that, whether it is by petition 
of Congress or anybody else, as to whether it is constitutional 
to have the court making what is, in effect, an Executive 
Branch decision.
    Senator Levin. Do either of the two of you have a comment 
on the suggestion of Senator Specter that we be given the power 
by a majority of the majority or a majority of the minority to 
mandamus a court action as to whether or not the Independent 
Counsel law should be triggered? My own view I just stated, but 
do either of the two of you have a view on that you want to 
share?
    Mr. Ruth. I don't think that would survive a constitutional 
attack, unless the court review were limited to whether or not 
the Attorney General was violating whatever provisions existed 
in the act, not as to----
    Chairman Thompson. Excuse me. It wouldn't be only court 
review, I guess, but you would also have a problem between the 
first and second branches of government. If you are giving 
Congress the authority to force a prosecution, or at least the 
consideration by the court of--it looks to me like you have got 
the problem from two different directions.
    Mr. Ruth. We had the problem in Watergate with one witness 
we made a plea bargain with, and the U.S. attorney of his 
district objected, I think, for political reasons and went to 
court to enjoin our plea bargain. And that got up to the Fifth 
Circuit and the Fifth Circuit said prosecutor's discretion is 
prosecutor's discretion. The court does not have a place, even 
though the U.S. attorney was the one who had sued us.
    Senator Levin. Mr. Beall.
    Mr. Beall. I think it is a bad idea. I think it does 
politicize the process even further if you have the opportunity 
to petition. In this era of litigiousness it just, I think, 
invites even more litigation.
    Senator Levin. Finally, on another constitutional issue, 
and that has to do with the policies and practices of the 
Justice Department, there have been some interesting comments 
here today both on the flexibility issue, that that is part of 
that book of policies and practices--it seems to me that is 
kind of an intriguing wrinkle--but also on the fact that there 
may already in the policies and practices be different 
standards for public officials than for private.
    And that is something I am going to have to take into 
account because I have been putting a lot of emphasis on trying 
to find a way to enforce the law. The law is that that 
Independent Counsel must follow the policies and practices of 
the Department of Justice. And, in my judgment, that has not 
been the case and so I have got to now take into account these 
other complicating elements in terms of when I say that.
    But I just want to close with this thought. That 
requirement in our law right at the beginning was one of the 
constitutional foundations for this law. In Morrison v. Olson, 
the Supreme Court specifically looked at that requirement that 
the policies and practices of the Justice Department be 
followed and said that that was one of the four reasons that 
this law was constitutional, the first being that it could only 
be triggered by the Attorney General, by the way, which gets, I 
think, to the mandamus issue as well.
    Second, the Attorney General could fire, for cause. The 
third one was the policies and practices requirement, that they 
be followed by the Independent Counsel. And the fourth one, I 
forget, but there were four of them. And I just want to say 
that with all of the qualifications about policies and 
practices--the interesting one that indeed there is all the 
flexibility written in there in order to avoid creating rights 
in defendants, and this other point that you have made, Mr. 
Ruth, about there may be different policies for public 
officials--still, that point, to me, is critically important.
    And if we can't figure out a way to basically get an 
Independent Counsel to treat the person that is being 
investigated basically the same as that person would, if a 
private person, be treated by the Justice Department, then I 
don't think we have a law that is carrying out its principal, 
essential purpose. We have got to find a way to do that, I 
think.
    Mr. Ruth. I wanted to suggest that no matter what was 
written in the law, you would be faced with the ultimate 
dilemma. In the Clinton matter, you had alleged perjury by a 
President in a situation and as to a subject matter where maybe 
none of us would have been prosecuted. But who knows what the 
Department of Justice policy is as to a President? Should the 
President be allowed to commit perjury in any circumstance, 
since he appoints all the U.S. attorneys and all the Federal 
judges?
    So even though you had a clear policy, you would almost 
have to be telling the Justice Department to write a separate 
chapter saying this is our policy as to the highest officials 
in the land. Either perjury by a President is excusable in some 
instances, as we seem to be saying it is--the Democrat side 
seems to be saying everybody commits perjury--or can we----
    Senator Levin. I had better interrupt you quickly. That is 
not an accurate characterization of, ``the Democratic side.'' 
That is an accurate characterization of some.
    Mr. Ruth. The people on television. Let me put it that way.
    Senator Levin. Some people on television. We have been on 
television so often we can quote each other, but some people on 
television have said that. I have been on a lot and would never 
say that.
    Mr. Ruth. I don't want to get diverted, but you see my 
point, I think, that I don't know how you make that judgment. 
Some people will believe the President should not be prosecuted 
for perjury about this matter, and other people, as I believe, 
say if you are the chief law enforcement officer appointing all 
the U.S. attorneys and all the judges, you better not go before 
a Federal judge and a Federal grand jury and lie about 
anything. But who is to say who is right?
    Senator Levin. Even your age, right?
    Mr. Ruth. Yes.
    Senator Levin. Thank you, Mr. Chairman.
    Chairman Thompson. Gentlemen, thank you so much. You have 
made a major contribution to our efforts here and you have the 
gratitude of all of us. We sincerely appreciate your being with 
us.
    Mr. Ruth. Thank you for the opportunity.
    Mr. Beall. Thank you.
    Chairman Thompson. We stand in adjournment.
    [Whereupon, at 1:52 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              



                PREPARED STATEMENT OF THEODORE B. OLSON

               Concerning the Independent Counsel Statute

                     (28 U.S.C. Sec. 591, et seq.)

    Chairman Thompson and Members of the Committee on Governmental 
Affairs of the U.S. Senate, my name is Theodore B. Olson. I am a 
partner with the law firm of Gibson, Dunn & Crutcher in Washington, 
D.C.
    Thank you for the opportunity to testify before your Committee in 
connection with the future of the Independent Counsel Provisions of the 
Ethics in Government Act, 28 U.S.C. Sec. 591, et seq. As I will 
explain, I believe, and have believed for many years, that the 
Independent Counsel Provisions of the Ethics in Government Act 
constitute a flawed policy of highly dubious constitutionality. This 
law should be allowed to expire.
    I have had extensive personal experience with the Independent 
Counsel Law from a variety of vantage points over the past 18 years. As 
Assistant Attorney General for the Office of Legal Counsel in the U.S. 
Department of Justice during the years 1981-1984, I provided legal 
advice to Attorney General William French Smith and other Justice 
Department officials concerning the interpretation and implementation 
of the law in the early days of its operation. During that same period, 
my office rendered legal advice and submitted formal legal opinions 
concerning the law to independent counsels who were then conducting 
investigations. I also participated in preparing testimony setting 
forth the position of the Department of Justice on proposed amendments 
to the act as it was being re-authorized in 1982.
    Two years after leaving the Department of Justice, I had the 
uncomfortable experience of becoming the subject of a lengthy 
independent counsel investigation which included an unsuccessful 
challenge to the constitutionality of the law in the U.S. Supreme Court 
(Morrison v. Olson, 487 U.S. 654 (1988)). Although that investigation 
ended with a report exonerating me and a judicial decision reimbursing 
me for a substantial portion of my legal fees, it is not an experience 
that I would want to repeat. As Justice Scalia explained in dissenting 
from the Supreme Court decision upholding the constitutionality of this 
law: ``[It is] frightening to have your own independent counsel and 
staff appointed with nothing else to do but to investigate you until 
investigation is no longer worthwhile.'' 487 U.S. at 732.
    I have also been counsel to several subjects of independent counsel 
investigations including former President Ronald Reagan and former 
White House Chief of Staff Donald Regan in connection with the Iran-
Contra Independent Counsel investigation conducted by Judge Lawrence 
Walsh. I also represented Steven Berry, a subject of the ``Clinton 
Passport File'' Independent Counsel investigation, and I have 
represented witnesses in the Clinton Administration Independent Counsel 
investigation being conducted by Kenneth Starr.
    As a result of an intensive analysis of the provisions and goals of 
the Independent Counsel Law, its history, the Constitution, and my own 
varied experiences with it, I believe that the law fails to serve the 
purposes for which it was intended, distorts our Constitution, and has 
damaging consequences to individuals subject to it and our system of 
government. Although honorable and conscientious individuals have 
served as Independent Counsel, including persons for whom I have high 
personal regard, the nature of the responsibility that they undertake 
when accepting such an assignment and the structure of the Independent 
Counsel Law itself lead to unfortunate consequences that, in my 
judgment, far outweigh the benefits that the law was intended to 
produce. I therefore believe that the law should be permitted to expire 
without amendment or replacement.
    The Independent Counsel Law is fundamentally and fatally flawed. 
You do not have time to hear all of my objections to it, however, so I 
will mention only a few.
    1. As Attorney General (and later Supreme Court Justice) Robert 
Jackson explained in 1940 to the Second Annual Conference of U.S. 
Attorneys, a Federal ``prosecutor has more control over life, liberty, 
and reputation than any other person in America.'' He or she can order 
prolonged and intrusive investigations, subpoena documents, obtain 
search warrants, secure approval to tap telephones, compel persons to 
testify before grand juries, damage reputations, force people to go to 
trial, drive persons into bankruptcy and generally disrupt or damage 
lives. Any subject of a criminal investigation, especially if it is 
conducted, in part, in public, suffers significant and essentially 
irreparable damage simply by virtue of the investigation itself and its 
most basic consequences. While a prosecutor may be and usually is an 
important force for justice, as Attorney General Jackson explained, if 
``he acts from malice or other base motives, he [may be] one of the 
worst [forces in our society].''
    Because a prosecutor has such awesome power, it is essential that 
that power be exercised with restraint and within a system of 
institutional checks. It is important, for example, that prosecutors 
investigate crimes and not target individuals for investigation to see 
whether a crime may be found. Any one of us would be vulnerable if a 
prosecutor were to be given unlimited time and resources to ascertain 
whether we had filed a defective tax return, violated an environmental 
law or filled out some government form with insufficient accuracy or 
detail. Nearly everyone has done something that might arguably violate 
some law, and most prosecutors will admit that it is not hard to 
convince a grand jury to indict. The problem with ``special 
prosecutors'' (a term that is certainly more accurate than the 
euphemism ``Independent Counsel'') is that they are appointed to 
investigate persons more than crimes and regardless of the scope of 
their jurisdiction, that is what they generally wind up doing.
    To quote Attorney General Jackson again, ``The greatest danger of 
abuse of prosecuting power lies in those situations where a person is 
selected for investigation and the prosecutor then looks for an 
offense.'' Yet that is essentially how the Independent Counsel Law 
operates in practice.
    2. The injustice created by targeting individuals to investigate is 
compounded by the fact that the threshold to start an investigation 
under the Independent Counsel Law is a great deal lower than for other 
investigations. Because a criminal investigation of an individual can 
be such an intrusive and damaging episode, and because law enforcement 
resources are limited and in the usual case must be allocated among 
many serious law violations, criminal investigations are not normally 
commenced absent a relatively strong basis for believing that a crime 
has been committed. That important barrier to the launching of an 
investigation is virtually eliminated in the case of the Independent 
Counsel Law. Under that law, the Attorney General ``shall'' order a 
preliminary investigation whenever she receives ``information 
sufficient to constitute grounds to investigate'' whether any of the 
officials designated by the statute ``may have violated'' any but the 
most trivial of Federal laws. Unless the Attorney General determines, 
during a brief and limited preliminary investigation, that ``there are 
no reasonable grounds to believe that further investigation is 
warranted,'' the Attorney General ``shall'' apply for the appointment 
of an Independent Counsel.
    This is an extraordinarily low standard. It sets in motion the 
appointment of an Independent Counsel, and virtually assures that there 
will be a lengthy, public, costly and damaging investigation, 
predicated on the thinnest of allegations of wrongdoing unless the 
Attorney General can determine that there is ``no reasonable ground 
to'' investigate further.
    That is almost like having to prove that you are innocent beyond a 
reasonable doubt. The law thus exposes the highest officials in the 
Executive Branch, including the only two persons (the President and 
Vice President) elected by the entire Nation, to a potentially 
devastating and debilitating criminal investigation based upon 
allegations that may lack substance but which cannot be ruled out as a 
potential avenue of investigation. It seems ironic as well as unjust 
that we submit our most trusted public officials to a vastly greater 
exposure to a criminal investigation than any other citizen in the 
Nation.
    3. The appointment of the Independent Counsel is the beginning of a 
prolonged nightmare for the subject of the investigation. Once the 
Independent Counsel is appointed, the investigation that follows is 
almost invariably more lengthy, intrusive, broad, public and intense 
than normal Justice Department investigations. Lawyers must be hired, 
friends and associates will be subpoenaed for testimony, and 
extraordinarily broad categories of documents must be produced.
    Ordinary prosecutors are forced to allocate limited resources to 
the most serious of crimes, and to move on to other compelling concerns 
if an investigation becomes too lengthy. These restraints are valuable 
institutional checks which prevent most prosecutors from investigating 
trivial or unintended or harmless crimes, or from pursuing a target, 
however deserving of investigation, endlessly. Unfortunately, the 
Independent Counsel Law overrides most of the normal constraints on the 
powers of prosecutors. Neither their resources nor their time are 
limited. Unlike any other prosecutor, or any other government agency, 
they have a blank check from Congress to spend whatever funds they deem 
appropriate, to hire as many assistant prosecutors as they wish, to use 
as many FBI agents or other government assistants as they desire, and 
to exercise every power given to the Attorney General of the United 
States for as long as they wish. As would any individual who is given 
unrestrained power, money, and time, the Independent Counsel will 
almost invariably use that discretion to interview every witness, 
examine every document and turn over every pebble, however 
insignificant.
    The institutional pressures on Independent Counsel virtually assure 
that normal limitations will be exceeded. The designation of an 
Independent Counsel to investigate someone is like issuing a hunting 
license with the name of the target printed on the license. The 
prosecutor is then accorded all of the power and resources of the 
Federal Government to ``hunt'' that target. As a result, all manner of 
psychological forces encourage a lengthy, exhaustive investigation. 
Unfortunately, the virtually irresistible temptation is to bring home 
the game whose name is on the license, or to demonstrate at the end 
that no effort was spared in attempting to find a ground for doing so.
    4. The Independent Counsel's jurisdiction is generally defined by 
the appointing court in broad terms, with an added proviso that the 
prosecutor can investigate other persons and any other alleged law 
violation uncovered during the investigation. This gives the prosecutor 
not only broad power over his subject, but the power to put 
investigative pressure on friends, associates and relatives of the 
target. And the prosecutor can investigate whether witnesses have been 
truthful or cooperative, thus putting pressure on them to help the 
prosecutor build a case against the target. Of course, regular 
prosecutors have similar authority, but they generally do not have the 
same public pressure to ``bring in'' the target named on a highly 
specific hunting license, because they, unlike Independent Counsels, 
can always move on to other targets. Nor do they have the unlimited 
resources that allow them to focus so intensely for so long on securing 
the prosecution of the identified target.
    History has shown that because there are no budgetary or time 
constraints on Independent Counsels, they will typically investigate 
broadly, at great length and in meticulous detail. No Independent 
Counsel wants to be accused of overlooking anything. Political 
opponents of the targeted person will bring huge pressure on the 
Independent Counsel to track down every rumor, allegation or suspicion. 
And the Independent Counsel has no excuse, except discretion, not to 
investigate everything. Thus, Independent Counsel investigations get 
longer and longer. The first two such investigations were completed in 
months. Their length is now measured in years.
    5. As a consequence of all these factors, the damage to targets of 
Independent Counsel investigations is invariably immense even where 
there is no indictment. They incur enormous costs. Their lives are 
disrupted for long periods. And, if they are top government officials, 
their ability to perform their job is inevitably impaired. If they have 
left the government, their private lives are seriously dislocated. No 
one survives an investigation without some serious scars. And even if a 
subject is not indicted, the final report is almost invariably critical 
of the subject in some fashion. And attorneys fees, even for the 
unindicted, are seldom, if ever, reimbursed in full.
    6. Interim reports to Congress by Independent Counsel, authorized 
by the law, have been abused to make allegations and assertions 
regarding the subjects, or targets of investigations--something which 
regular prosecutors are bound not to do. And the final report 
requirement has turned into an excuse to file long exhaustive 
expositions which rationalize the investigation, describe every fact 
investigated, witness interviewed and document examined, offer opinions 
regarding and/or pronounce judgments on the individuals investigated, 
and generally make the Independent Counsel look good. These reports may 
have some benefits, as when an Independent Counsel explains that the 
persons who have been under a cloud for years did not violate any law. 
But that benefit is often outweighed by judgmental statements in 
reports pronouncing that persons who had not been prosecuted, or who 
had been pardoned, or whose convictions had been overturned, had 
nonetheless committed crimes, failed to cooperate, had violated the 
``Spirit'' of the law, or had acted improperly in some fashion. These 
reports often contain assertions based on out-of-context fragments of 
secret grand jury testimony--impossible for anyone to refute.
    7. The power to respond to these reports given by the law to 
persons mentioned in them has very little value. No one reads these 
responses. What the prosecutor says is news, especially if it is 
gratuitous slander or insult. The responses receive little attention. 
Moreover, it is impossible for a subject to respond properly to these 
reports because neither they nor their lawyers have access to the grand 
jury documents or testimony on which the reports are based, or the 
opportunity to cross-examine witnesses. An accusation cannot be refuted 
without all the evidence on which it is based. That is why we have a 
confrontation clause in the Bill of Rights. No such right exists with 
respect to these reports.
    8. The fee reimbursement mechanisms of the law are woefully 
inadequate. The subject cannot even apply for fees if he has been 
indicted. Given the ease with which a prosecutor can indict, that gives 
the prosecutor enormous leverage over the subject. And the Independent 
Counsel court submits attorneys fee applications for comments to the 
Independent Counsel and to the Department of Justice, thus requiring a 
subject to reveal confidential information to his adversary and the 
government if he expects to be reimbursed. And the Independent Counsel 
actually has the power to oppose payment of attorneys fees, giving him 
even more power over the subject of his prosecution, especially with 
respect to any subject--or attorney--who dares criticize the 
Independent Counsel or his work. Most frequently, the court awards only 
a portion of the fees incurred and only then well after the 
investigation is over. Ironically, although the investigation typically 
generates enormous adverse publicity to the subject of the 
investigation and the law allows the Independent Counsel to hire press 
agents and pays him for dealing with the press, the court will not 
reimburse the target's lawyer for his necessary dealings with the press 
in response. Attorneys are therefore often paid less than 50 cents on 
the dollar, especially when fee awards are discounted for the length of 
time between when the services are rendered and the date of fee 
recovery. This provides a substantial disincentive to represent anyone 
subject to this law.
    For these and many, many other reasons, I see no need for an 
Independent Counsel Law. I see no virtue in hair-triggered, intrusive, 
prolonged, public investigations of our highest executive branch 
officials. Our Constitution vested all executive power in the 
President. The Department of Justice is filled with dedicated career 
officials who regularly investigate alleged criminal activity by public 
officials; they do so thoroughly and competently every day under 
Republican and Democrat presidents. It will be rare that political 
appointees could successfully stifle or sidetrack legitimate 
investigations in this day and age. These career officials value their 
integrity too much to allow that to happen except in an extraordinary 
setting. And if such an effort is made, there is always the possibility 
of a leak to the press or to Congress whenever a political appointee 
attempts to impede an investigation or cover up a crime. No system, 
unfortunately, is perfect, and the exercise of power does lead to the 
temptation to abuse it. But our existing systems of an independent 
judiciary, a free press and a vigilant Congress are better protections 
than a mandatory Independent Counsel Law.
    If the President himself must be investigated, pressures from 
Congress and the press will generally assure that the investigation 
will be conducted by someone who has credibility. And Congress also 
possesses the impeachment power, which the framers of our Constitution 
designed to be the process by which corrupt officials, including 
presidents, could be removed. They did not intend, and would not have 
supported, ``independent'' prosecutors who, if anything, give Congress 
and the press excuses not to exercise the powers given to them.
    Of course, our Constitutional system is not flawless or foolproof. 
But we also have regular elections which provide additional structural 
safeguards. And in our effort to make our system perfect, in my 
judgment, we have introduced more injustice into the system than we 
have removed.
    I recognize that Congress and the American public have become 
accustomed to the Independent Counsel Law and many in the media seem to 
have become addicted to the controversy that these investigations 
generate. Thus, there remains considerable opposition to termination of 
this mechanism. If the law cannot be eliminated, I suggest that at 
least the following flaws in the law be remedied:

    1. There should be a substantial narrowing of the range of 
``covered persons.''
    2. The trigger for seeking an appointment of an Independent Counsel 
should be considerably higher than ``reasonable grounds to believe that 
further investigation is warranted.''
    3. The list of Federal offenses to which the law applies should be 
sharply limited.
    4. The jurisdiction of the Independent Counsel should be narrowly 
defined, expanded only where there is substantial evidence that a crime 
has been committed and not expanded to cover new targets or subjects 
except in very limited circumstances.
    5. An Independent Counsel should agree at the outset that his or 
her responsibility will be a full time engagement. While it might be 
argued that some Independent Counsel investigations will not require a 
full time prosecutor, the temptations and distractions of a competing 
law practice and the need for individuals being investigated and the 
American public to have an expeditious resolution to these 
investigations suggests to me that Independent Counsel should work full 
time on their government duties until the mission is completed. For 
some investigations, career prosecutors who are already government 
employees could perhaps be considered for appointment as Independent 
Counsels.
    6. The right to file ``interim'' reports with Congress and the 
responsibility to file a final report should be deleted or materially 
narrowed. The interim report process is not necessary and simply allows 
the Independent Counsel to make extra-judicial and immunized statements 
about a pending investigation that may be damaging to the subject of an 
investigation. The final report may be used unfairly to stigmatize 
persons who have not been charged with committing crimes. Or it may be 
used to express judgments about subjects or witnesses based on secret 
grand jury testimony that are unfair to the persons mentioned and 
difficult to refute because based upon sources not available to the 
persons commented upon. Moreover, these reports have become lengthy, 
government-financed, self-congratulatory tomes. The Iran-Contra Report 
was 565 pages and several hundred thousand words. Aside from a simple 
statement that certain persons had been convicted or acquitted or not 
prosecuted, these reports do vastly more damage than good.
    7. An Independent Counsel should sign a contract with the 
government to the effect that he or she will receive no compensation 
with respect to their service as an Independent Counsel except from the 
U.S. Government and will assign in advance to the treasury any funds 
received from any source for describing or recounting their experiences 
as an Independent Counsel. While this will not preclude Independent 
Counsels from giving speeches or lectures, or otherwise writing about 
their experiences, it will preclude them from profiting from a book 
about their exploits. This should remove the temptation for Independent 
Counsels to have one eye on discharging their public duties and another 
on the book they might write glorifying their own adventures. This 
commitment should also be imposed on any person on the Independent 
Counsel's staff.
    8. Attorneys fees provisions should be amended to authorize interim 
payments, to delete input regarding fee awards from the Independent 
Counsel and the Department of Justice, to cover indicted but not 
convicted subjects, and to cover all tasks reasonably undertaken by a 
subject's lawyer, including dealing with the press.
    9. Independent counsels should be selected from among a list of 
individuals submitted by the Attorney General, which list shall include 
persons from each major political party, and which should be limited to 
persons having substantial, high level, experience in law enforcement 
at the Federal level.
    10. Independent counsels should be encouraged to staff their 
offices from the ranks of Federal prosecution offices, which 
individuals could then be detailed to the Independent Counsel.
    11. The Independent Counsel Law should not be employed in a manner 
that allows Congress, for political reasons, to weaken the powers of 
the presidency by authorizing investigations of subordinates of the 
President for the performance of tasks fundamental to the President's 
Constitutional duties except where there is substantial evidence that a 
crime motivated by corrupt purposes has been committed in performing 
those duties.

                               Conclusion

    The Independent Counsel Law is a misguided effort to improve on our 
Constitution. Unfortunately the damage being done to individuals and to 
our institutions of government by this well-intended but woefully 
misguided law, and its enormous costs, far outweigh its extremely 
limited benefits. It is an idea whose time has ended.

                               __________
                     LETTER FROM ROBERT S. BENNETT
                                                      April 6, 1999
The Honorable Fred Thompson, Chairman
Committee on Governmental Affairs
United States Senate
Washington, DC

    Dear Chairman Thompson: I testified about the Independent Counsel 
Act before the Senate Judiciary Committee on March 3, 1999, Senator 
Levin asked we to convey to the Committee my views on two proposals 
which Senator Specter outlined. The first of these would retain the 
provision of the current Act which requires the Attorney General to 
submit a written report to the Judiciary Committee if he or she 
declines to go forward with an Independent Counsel appointment after 
receiving a request from the majority of either party's members on the 
Committee. The second would create a new provision to give limited 
standing to groups outside government to seek judicial review of any 
decision by an Attorney General to decline to appoint an Independent 
Counsel. At the time of my testimony, I had not thoroughly considered 
either proposal, but testifying, I have had time to review the issues 
and am prepared to respond. In my view, and based on my experience 
representing individuals who are the subject of such preliminary 
inquiries, I have grave concerns about both proposals.
    First, as a general matter, I believe it is unwise to require 
written reports from an Attorney General or from an Independent Counsel 
at any stage of an investigation. I am sure you and many members of the 
Committee are aware, requiring a prosecutor to disclose his or her 
reasons for declining prosecution in any case is counter to well-
established policies designed to preserve the integrity of law 
enforcement investigations and to safeguard the reputations of those 
who ultimately are not charged with criminal conduct. Thus, we do not 
compel a prosecutor to divulge his or her reasons for declining 
prosecution of an individual citizen. The many good reasons why we 
refrain from doing so in other investigations apply with equal force to 
investigations involving public officials, be it a preliminary 
investigation by an Attorney General or a full-scale investigation by 
an Independent Counsel.
    Moreover, I believe the present provision--which permits the 
majority of Committee members from either party to request the 
appointment of an Independent Counsel and to compel a written 
explanation should the Attorney General decline to appoint an 
Independent Counsel in response to such a request--is counterproductive 
to the asserted goal of the Independent Counsel Act, which is to remove 
partisan politics from the exercise of prosecutorial discretion. The 
provision as currently enacted does not require the congressional 
referral to be based on any evidence or quantum of evidence, and leaves 
open the possibility that a small number of members of one party, 
without bi-partisan support, could trigger a distracting and intrusive 
inquiry into the conduct of a public official of the other party. This 
creates the potential that the process will, in perception or reality, 
be tainted with partisanship from the outset.
    This problem is compounded by the requirement that the Attorney 
General explain in writing to the Committee any decision to decline to 
go forward with a referral to an Independent Counsel. Requiring such a 
response virtually insures that the Department of Justice will have to 
undertake a full-blown investigation, no matter how frivolous or 
politically-motivated the request, in order to demonstrate the 
thoroughness of his or her efforts in this written report. An Attorney 
General would have no choice but to go down a number of rabbit holes 
and pursue all leads, regardless of how frivolous, simply to attain 
political cover when the written report comes out.
    In the end, this entire regime would become a mechanism by which 
politics are injected into the IC process, rather than removing 
politics from the process. Therefore, in my view, it should be 
eliminated, not re-enacted. At a minimum, if a provision for 
congressional referrals is to be preserved, there should be a mechanism 
that ensures bi-partisan support for a referral, such as approval from 
two-thirds of the Judiciary Committee as a whole, of a requirement that 
the referral be endorsed by both the Chairman and the Ranking Member, 
similar to the model used by the Senate Ethics Committee. And there 
should be no requirement of any written report if the Attorney General 
declines to go forward.
    The second proposal which Senator Specter aired--to give groups 
outside of government limited standing to seek judicial review of an 
Attorney General's decision not to appoint an Independent Counsel, and 
to give a court authority to ``referee'' these disputes--also raises 
serious concerns. As you know, for a number of very important policy 
reasons, the exercise of prosecutorial discretion generally is not 
subject to judicial review in any other case. I see no justification to 
make an exception to this important principle and to subject a public 
official to a different standard of review. Moreover, to permit this 
exceptional treatment to be triggered by outside interest groups--many 
with political agendas--would infuse even more politics and 
grandstanding into the process. Finally, it would, in my view, be nigh 
impossible to create workable standards for a court to use to determine 
whether an Attorney General has exercised his or her discretion 
appropriately.
    I hope this answers the Committee's questions. Thank you for 
permitting me to have some input into the Committee's very important 
undertaking with respect to the Independent Counsel Act.
            Sincerely,
                                          Robert S. Bennett

                               __________
                    LETTER FROM ROBERT B. FISKE, JR.
                                      Davis Polk & Wardwell
                         450 Lexington Avenue, New York, NY

                                                      March 8, 1999
Re: Hearings on Independent Counsel Act

The Honorable Fred Thompson, Chairman
United States Senate
Committee on Governmental Affairs
Washington, D.C.
    Dear Senator Thompson: Following up on the testimony that I gave 
before the Committee on March 3, I thought it might be helpful to write 
with some additional views on the Independent Counsel Act that I 
expressed orally at the hearing based on questions that arose there. I 
understand that this letter will be included in the record of the 
hearing.
    As I stated at the hearing and in my written statement, if the 
statute is not renewed, I believe that the existing regulations 
providing for an Independent Counsel offer a viable basis for 
proceeding in the extremely limited number of situations where it may 
be desirable not to have the investigation handled by the Justice 
Department.
    In those situations where an Independent Counsel brings an 
indictment, the result will be determined in open court, and the public 
is fully equipped to determine whether the indictment was appropriate. 
The only persuasive argument I have heard for renewing the statute is 
with respect to the situations in which there is no indictment. In 
these cases, there will be a higher degree of public confidence in the 
result of an Independent Counsel who is appointed by the Court rather 
than the Attorney General.
    If the statute is to be reenacted, I would place as much authority 
as possible in the Attorney General rather than in the Court. To that 
end, I would suggest a procedure whereby the Attorney General submits a 
list of names to the Court for approval in advance of any particular 
appointment. If an Independent Counsel is needed, the Attorney General 
can make the choice from that list. That Independent Counsel, if he or 
she exonerates the subject, will have the advantage of having been 
specifically approved by the Court. Alternatively, although in my view 
less desirably, the Court could pick the Independent Counsel from a 
list submitted by the Attorney General.
    For the reasons I stated at the hearing, if the statute were to be 
renewed, I would limit its coverage to the President, the Vice 
President and the Attorney General and would make the appointment of an 
Independent Counsel a full-time position. If the statute were so 
limited, I cannot imagine that there would be a problem finding 
outstanding Independent Counsels who would be willing to take a leave 
from their private practice to undertake such high-level 
investigations. The requirement that the Independent Counsel be full-
time is important to ensuring public confidence in the investigation. 
Moreover, the requirement would help hasten the conclusion of the 
office's work, both because it would be a full-time endeavor and 
because of the built-in incentive to conclude work and return to 
private practice.
    The statute also needs reform in the area of the preliminary 
investigation. Currently, the Attorney General is somewhat hamstrung 
during the preliminary investigation, because he or she cannot convene 
grand juries, plea bargain, grant immunity, or issue subpoenas. See 28 
U.S.C. Sec. 592(a)(2)(A). I suggest giving the Attorney General the 
power to convene grand juries and to issue subpoenas so that the 
preliminary investigation could be a meaningful one.
    Furthermore, under the current statute, at the conclusion of the 
ninety-day preliminary investigation, the Attorney General must request 
that the Court appoint an Independent Counsel unless he or she 
concludes that there are no reasonable grounds to believe that further 
investigation is warranted. See 28 U.S.C. Sec. 592(c)(1)(A). This 
standard, which has little in common with governing standards in other 
areas of criminal law, is ill-defined and too low. A better standard 
would be that proposed by Professor Ken Gormley in the University of 
Michigan Law Review (December 1998): an application must be made when 
there exist substantial grounds to believe that a felony has been 
committed and further investigation is warranted.
    The suggestion has been made by Senators Specter and others that 
there be a fixed time limit--18 months seems appropriate--after which 
the Independent Counsel must show cause in order to continue the 
investigation. To maintain authority in the Attorney General and to 
avoid constitutional problems concerning separation of powers, see 
Morrison v. Olson, 487 U.S. 654, 695 (1988), I would require that the 
showing be made to the Attorney General, not to the Court.
    Finally, if the statute is to be renewed, I would suggest that the 
Congress eliminate the current final report requirement. First, a 
report which discusses the evidence at length may be unfair to the 
extent that it may, even implicitly, incriminate subjects who were 
nevertheless not indicted. Second, because of the temptation to make 
the report unassailable, the report requirement itself is a 
contributing cause to the time and expense concerns that have been so 
widely expressed. Although a brief summary report might be issued if 
the Independent Counsel sees fit in particular circumstances, there is 
no such requirement of prosecutors in ordinary cases and there should 
be no such requirement here.
    Thank you for the opportunity to participate in the Committee's 
hearings,
            Sincerely yours,
                                       Robert B. Fiske, Jr.

 
               THE FUTURE OF THE INDEPENDENT COUNSEL ACT

                              ----------                              


                       WEDNESDAY, MARCH 17, 1999

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:33 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Fred Thompson, 
Chairman of the Committee, presiding.
    Present: Senators Thompson, Collins, Cochran, Specter, 
Lieberman, Levin, Akaka, Durbin, Torricelli, and Edwards.

             OPENING STATEMENT OF CHAIRMAN THOMPSON

    Chairman Thompson. The Committee will come to order, 
please. Today, we continue our hearings with regard to the 
reauthorization of the Independent Counsel Act.
    Today, we are privileged to have Attorney General Reno with 
us. I think it is important to remember the original purpose of 
the Act--which was the feeling that it is very difficult, if 
not impossible, for the Attorney General, and the Justice 
Department, to investigate the President and other high-ranking 
government officials in the Executive Branch of Government 
without an obvious conflict of interest.
    I think also behind the Act was the sentiment that we have 
all too much cynicism and skepticism today with regard to our 
institutions, and not only must justice be administered, but 
the appearance of justice is equally very important.
    Attorney General Reno said in 1993, ``The Independent 
Counsel Act was designed to avoid even the appearance of 
impropriety in the consideration of allegations of misconduct 
by high-level Executive Branch officials and to prevent the 
actual or perceived conflict of interest. The Act thus served 
as a vehicle to further the public's perception of fairness in 
such matters, and to avert even the most subtle influences that 
might appear in an investigation of highly-placed executive 
officials.'' I think those sentiments are as valid today as 
they were then.
    In our hearings up until this point, we have heard various 
criticisms of the statute. I certainly have been critical of 
the statute for many years. Many of the criticisms have to do 
with the back end of the process, so-called, and that is with 
regard to various actions and powers that the Independent 
Counsel have taken or powers that they have--too much power in 
too few hands; one job; too expensive; too long, and too 
burdensome to public officials.
    However, there has been quite a bit of criticism with 
regard to the so-called front end of the process, too, and that 
is how Independent Counsel are chosen. Many people have said 
that one of the main problems with the Independent Counsel Act 
is it is triggered too easily, that there is a so-called hair 
trigger, that Independent Counsel are brought in in cases that 
never should be pursued.
    The standard is, after a preliminary inquiry, whether there 
are reasonable grounds to believe that further investigation is 
needed. Many people think that almost invariably somebody will 
think that there are reasonable grounds to believe some further 
investigation is needed, and therefore the threshold is too low 
for triggering the Independent Counsel Act.
    Also, with regard to the intent requirement, at that stage 
of the process the system is weighted toward the appointment of 
an Independent Counsel in that the Attorney General must 
determine by clear and convincing evidence that the subject did 
not have criminal intent. As the Attorney General said in her 
statement, it really requires proof of a negative by clear and 
convincing evidence.
    In other words, because of the statutory requirements 
concerning the standard of proof, the statutory requirements 
with regard to intent, it is very heavily weighted toward 
appointment of Independent Counsels, and we have seen several 
who have been appointed.
    But, today, I think we will be able to explore another 
problem that we have not had a chance to explore yet, and that 
is one having to do with a situation probably that is a bigger 
problem of public perception than anything else and that is 
when you are actually dealing with the President, who is really 
the only superior that the Attorney General has, and what 
happens when it appears that an Independent Counsel is called 
for and the Attorney General does not call for one.
    We have seen in the case involving the President recently, 
I believe, a situation which is a classic case for the kind of 
situation the law was designed to cover, where it was not 
activated and not called for. The so-called hair trigger--even 
with all of the evidence presented--was not a hair trigger 
anymore in the case of the President.
    I think we saw, for example, where, under the operation of 
the campaign finance laws passed back in 1974 that basically 
said a presidential candidate in a general election can take 
money out of the public treasury if he will agree not to get 
out into the fundraising business and not take additional 
monies. The clear purpose of the Act was to take presidential 
candidates out of that business. Pursuant to that, the 
President obtained $62 million in the general election in 
public funding after signing a certification that he would not 
take additional monies.
    However, the President was able to raise, under his 
direction, an additional $44 million in large chunks, as large 
as $325,000, which went directly to benefit his campaign. The 
FEC had always taken the position that if there is 
coordination--which there was in this case--the President in 
the television ads directed the ads; he raised the money, he 
directed the ads, in many cases the composition of the ads, in 
many cases where the ads would be run. The FEC has taken the 
position in the past that if there is that kind of coordination 
with regard to television ads that contain an electioneering 
message, that counts as a contribution. The Attorney General 
decided that there was no violation, basically because these 
were soft money contributions. They were run through the DNC, 
who in turn spent them on behalf--my contention--on behalf of 
the President's campaign, for the benefit of the President's 
campaign.
    The Attorney General also held that there was no intent. In 
other words, she was able to get over this hurdle of proving a 
negative by clear and convincing evidence in this case, and 
held that there was no criminal intent because the President 
received a legal opinion, an in-house legal opinion, I believe, 
that this was appropriate because the television ads did not 
contain direct advocacy.
    Of course, we have had disagreements about that for a long 
time now. I believe it is fair to say that never before--in the 
20-some-odd-year period that, never before did any presidential 
candidate interpret the law that way or engage in anything 
remotely resembling this kind of conduct. Some say, well, the 
Dole campaign did it, too. Well, if they did, so be it. The 
same principles should apply.
    But I think the real question here is, in a situation like 
this where the--usually, we have a situation in the Independent 
Counsel law where the facts are in dispute and the law is 
clear. Here, it is kind of reversed because the facts are so 
clear, but it was held that the law was confusing. And the 
question becomes who should decide these questions.
    We will hear from witnesses today, for example, some of 
whom have been in this Justice Department, who feel like that 
this is a clearly wrong interpretation of the law. And I am not 
referring to Mr. La Bella here in this case either. But who 
decides? Should the Attorney General, in a matter concerning 
her superior and applying a law which is designed not only to 
administer justice, but to see that justice is administered, 
and give the appearance of it--should the Attorney General be 
the one making that decision or should an Independent Counsel 
be doing that?
    I also think it is fair to say that not only is it an 
incorrect reading of the law, but it is bad policy. As Mr. 
Heymann has said, this interpretation really rules the Campaign 
Spending Act out of existence, and that we really have no 
campaign spending laws anymore.
    I don't think the American people yet understand or realize 
the situation that we have right now. There is essentially no 
bar--sure you have to run it through a committee and you have 
to be a little careful with the wording of your ad, but there 
is essentially no bar to any contribution from any source, 
foreign or domestic, any amounts of money, corporate, large 
labor unions.
    The Attorney General and I have had a disagreement as to 
whether or not her interpretation of the law allowed for 
foreign contributions. I have taken the position for a long 
time that it did. She disagreed with that, and now we have had 
a Federal district judge who has said indeed, yes, foreign 
contributions are allowable. If there is soft money, soft money 
is soft money, foreign or domestic.
    So that is the situation that we have gotten ourselves 
into. It is going to have tremendous ramifications, I think, 
for this next political campaign. Some say that 
constitutionally, of course, the Executive Branch has to decide 
these things, and that is true. We don't want Congress making 
these decisions. We couldn't under the Constitution if we 
wanted to.
    But some say let's just make it clear that the Attorney 
General has the discretion anytime, not bind the Attorney 
General down with all these rules and regulations and confusing 
interpretations under the Independent Counsel Act. But let's 
just flatly say she has the discretion to call for an 
Independent Counsel anytime. Maybe this would clear things up.
    The problem with that is that the Attorney General has that 
discretion now. Under the regulations, she can call for an 
Independent Counsel when she thinks it is appropriate, as well 
as under the statute, without having to go through these front-
end hoops in terms of reaching a certain threshold.
    Also, there is a statutory permission that the Attorney 
General has to bring in a special counsel. The Attorney General 
in her statement urges that we go back to that situation where 
special counsel be brought in. I think that is something that 
should be seriously considered.
    In times past, there have been many instances where special 
counsels have been brought in. Former Attorney General Griffin 
Bell, for example, testified about situations that he had. 
Others have brought in special counsels, not with all the 
rubric of the Independent Counsel and all the problems 
connected with that, accountable to the Attorney General, but 
also having a measure of independence. And it has worked pretty 
well. But again, you know, you can't get away from the fact 
that it is still discretionary with the Attorney General.
    We have had situations were where we have had testimony in 
our Committee with regard to the campaign spending laws where 
we had evidence of several people, some of whom have already 
been indicted, who raised millions of dollars for the 
President's campaign, much of it foreign money, some of whom 
were close associates to the President or the Vice President.
    John Huang, hired at the DNC because the President and 
James Riady urged the DNC officials to hire him, made 67 visits 
to the White House. Charlie Trie, who was a close friend and 
political supporter of the President since the 1970's, 
laundered money from Ng Lap Seng and visited the White House 31 
times. He is the one who poured out all the cash money orders 
on the table there for the President's legal defense fund. Mr. 
Wiriadinata contributed $450,000 illegally and told the 
President ``James Riady sent me.'' Maria Hsia facilitated the 
infamous Buddhist temple fundraiser, a long-term political 
associate of the Vice President.
    So you had many, many cases here of people, some of whom 
now have been charged with criminal activity, some of whom may 
be in the future, with close White House connections. And yet 
you would think it would call for at least a discretionary 
consideration, if not under the statute itself, as was used, 
for example, in the Whitewater case because the Attorney 
General had a political conflict of interest with James 
McDougal. I doubt if the Attorney General knows Mr. McDougal, 
but because of Mr. McDougal's association with the President, a 
discretionary Independent Counsel was asked for in that case.
    But, again, even if you get away from the statute, you have 
a special counsel option, too. So all the options are there and 
always have been there. So the question becomes, keeping in 
mind the constitutional requirements of the Executive Branch to 
make these decisions, is there any halfway measure; is there a 
way that perhaps it could lodge in Justice, but under some new 
law or guidance or guidelines that might address some of these 
problems. I think that is one of the areas that we can pursue 
today, and we are happy to have the Attorney General with us to 
help in that regard.
    Senator Lieberman.

             OPENING STATEMENT OF SENATOR LIEBERMAN

    Senator Lieberman. Thanks, Mr. Chairman. Welcome, Attorney 
General Reno. The Chairman's references to the various 
decisions that you made, General Reno, regarding whether or not 
to appoint Independent Counsels in the particular case of the 
campaign finance matters say to me two things. One is why I 
believe we continue to need an Independent Counsel law or 
something like that, but, two, how complicated and how 
difficult the drafting is.
    I don't think we are ever going to come to a point where a 
person making a decision, an Attorney General or any other 
institution or individual we give that authority, about whether 
and how to investigate the highest officials of our government 
when they are suspected of crime, that that individual will be 
immune from political criticism. It is just inherent in the 
function.
    But I do think that we have an obligation to do our best to 
try to both establish a system which, to the greatest extent 
possible, guarantees not only the integrity of the 
investigation and prosecution, but the credibility to the 
public of the investigation and prosecution, and as we heard at 
the last hearing we held, the credibility of a decision by a 
prosecutor not to prosecute. And I think that credibility 
depends in good measure, understanding that we are never going 
to get political criticism out of this, on the independence of 
the investigation and prosecution.
    I will say that the comments about your own decisions here 
suggest the difficulty of ever fully insulating a decisionmaker 
from such criticism. I don't mean to speak in defense of you. 
You defend yourself very well, and I am sure you will today, on 
these particular judgments.
    But just to say by way of fact--and we talked about this 
some at the last hearing we held--there has been a tradition of 
Presidents bringing to the office of Attorney General people 
that they were pretty close to before. If I remember 
correctly--I am just going back--President Bush brought in 
Governor Thornburgh, with whom he had had a political 
relationship.
    President Reagan, I think, brought his own lawyer here, 
William French Smith, to serve as his Attorney General. Of 
course, President Carter brought Griffin Bell, who was a 
distinguished partner in an Atlanta firm, but a very close 
adviser of his before. And we can keep going back. President 
Nixon brought John Mitchell, who was his law partner, to serve 
as Attorney General. President Kennedy brought his brother.
    So it is interesting to me that as I think of recent 
Attorneys General, you are probably the one who has the fewest 
political, personal, and as far as I know no familial contact 
with the President who appointed you.
    Second, as a matter of fact, in the time since 1994, when 
the Independent Counsel Statute was reauthorized--I was 
interested in going over the history when we started this 
series of hearings--you have actually appointed one-third of 
the Independent Counsels who have been appointed in the 
approximately two-decade history of the statute. I think you 
have appointed seven in the last 4 or 5 years.
    So I think we have got to keep that in mind as we consider 
the judgments you made on the campaign finance matters. And on 
those--and I don't want to get into them in any detail--it just 
struck me one of my conclusions from the hearings that this 
Committee went through in 1997 was that some of the largest 
scandals that occurred in the 1996 election were, sadly, legal; 
that the standard unfortunately became for those who were 
actors in the campaign what was legal, not what was right, even 
though it was obvious that what they were doing was beyond and 
around the intention of our election laws.
    But notwithstanding that, you are charged with the 
obligation of deciding what is legal or not. I leave the rest 
to you, but I do want to come back and say that, again, this 
indicates to me why we need an Independent Counsel, certainly 
for the second reason, which is the credibility of the 
investigation.
    I am not speaking of what I am about to say to the Chairman 
because I know that his mind is open on whether to reauthorize 
an Independent Counsel in one form or another. But I do think 
it is an irony when I hear some who are clearly and absolutely 
opposed to reauthorization of an Independent Counsel in any 
form then criticize you for not appointing Independent Counsels 
in some of these cases.
    Having said all that, I was disappointed by Mr. Holder's 
testimony in the House and what I take to be the direction of 
your testimony today, although I look forward to hearing it and 
discussing it with you, because I do think that though some of 
the Independent Counsels have functioned in ways that have been 
extremely controversial and subject to question by us and the 
public and perhaps yourself, that the basic purpose of the law 
is still a valid one.
    I can't think of a way in which bringing this function 
totally within the Justice Department would serve the 
continuing public interest in independent investigation and 
prosecution when the highest officials of our government are 
suspected of criminal behavior. So I look forward to your 
testimony and to the discussion of it afterward.
    Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much. Attorney General 
Reno.

TESTIMONY OF HON. JANET RENO, ATTORNEY GENERAL, U.S. DEPARTMENT 
                           OF JUSTICE

    Attorney General Reno. Mr. Chairman, Senator Lieberman, 
Members of the Committee, I appreciate the opportunity to be 
before you today and I look forward to working with you on what 
is obviously a very complex, difficult issue in which there may 
be no right answer because of the structure of government that 
we have.
    I request that my prepared statement be entered into the 
hearing record, and would like to summarize my remarks.
    Chairman Thompson. It will be made a part of the record.
    Attorney General Reno. I want to state an important 
limitation regarding my testimony. I am concerned that my 
comments not in any way interfere with ongoing investigations 
or litigation involving the Independent Counsels, and therefore 
I will be unable to give specific examples or direct my remarks 
to a specific Independent Counsel or a specific investigation, 
nor should any comments I make be considered to be directed 
toward them.
    In 1993, I testified in support of the statute. I said that 
the law had been a good one, helping to restore public 
confidence in our system's ability to investigate wrongdoing by 
high-level Executive Branch officials. I believed then--and, 
Senator Lieberman, I believe now--that there are times when an 
Attorney General will have a conflict of interest. I also 
believed then as I do now that to keep the public's faith in 
impartial justice that in such a case someone other than the 
Attorney General must sometimes be put in charge of the 
investigation, and I think that is an important consideration.
    Prior to becoming Attorney General, I had functioned under 
a procedure in Florida under which the governor could reassign 
a particular matter to another prosecutor in the event of a 
conflict of interest. I used that a number of times in recusing 
myself. This mechanism provided both for parity and 
accountability.
    Parity was ensured because an elected prosecutor of equal 
rank would oversee the case as part of his or her caseload and 
within his or her budget, accountability because the elected 
governor and the prosecutor would both have to answer to the 
public for their actions. This procedure also ensured that the 
prosecutor who was recused had no further control of the case. 
Based on that experience, I believe that the Independent 
Counsel Act could have the same effect due to its particular 
mechanism for transferring prosecutorial power to an outside 
person.
    From the time the Act was reauthorized, I have focused on 
what the Act said, not what I thought it should say, except 
with respect to budget provisions, so that I could ensure the 
most correct application of the Act according to congressional 
intentions.
    As time came for Congress to consider reauthorization, I 
focused on what I thought it should say based on my experience 
in these 5 years, during which time I have asked for the 
appointment of at least seven Independent Counsels, and 
expanded their jurisdictions when appropriate. I have come to 
believe, after much reflection and with great reluctance, that 
the Independent Counsel Act is structurally flawed and that 
those flaws cannot be corrected within our constitutional 
framework.
    In my view, the Act has failed to accomplish its primary 
goal--the enhancement of public confidence in the fair and 
impartial administration of the criminal law. This is so in 
large part because the Act requires the Attorney General to 
make key decisions at several critical stages of the process 
whether to open a preliminary investigation, whether to seek 
the appointment of an Independent Counsel, what subject to 
refer to the court when seeking a counsel, and whether to 
remove the counsel or not.
    This central role for the Attorney General was not just a 
congressional choice, but a constitutional mandate. In Morrison 
v. Olson, the Court make clear that the Act was constitutional 
because it required the Executive Branch, through the Attorney 
General, to play a critical role in these key decisions.
    But the very thing that makes the Act constitutional is 
also what prevents it from accomplishing its goals, for an 
Attorney General, after all, is a member of the President's 
Cabinet, and as such his or her decisions will inevitably be 
second-guessed and criticized, no matter what decision is made.
    On the other side of the equation, the decisions of an 
Independent Counsel are no less subject to criticism and 
second-guessing. Once again, I am not saying that this is fair 
or unfair, justified or unjustified, right or wrong. I am just 
saying that it is natural and that this climate of criticism 
and controversy weakens rather than strengthens the public's 
confidence in the impartial exercise of prosecutorial power, 
and that at the end of the day undercuts the purpose of the 
Act. Instead of giving people confidence in the system, the Act 
creates an artificial process that divides responsibility and 
fragments accountability, and I think that is key to our 
discussion today.
    The Act has other built-in characteristics that I believe 
have also contributed to the public's concern over the years. 
We have heard much about the extraordinary expense associated 
with a number of Independent Counsel investigations. These 
costs are in large part built into a system that requires the 
counsel to set up a brand new office--it means hiring lawyers, 
administrators, clerical staff, consultants, and renting out 
office space--and are compounded by the unique expectations 
placed upon a counsel that the Independent Counsel will go down 
every investigative side street, that he or she will prepare a 
comprehensive final report, and so on.
    The statute imposes other costs that are not so easily 
quantified, such as its effect on the role of the prosecutor 
and her or his relationship to the subjects of the 
investigation. I have been a prosecutor for most of the last 25 
years, and I think I can fairly say that the Independent 
Counsel Act creates a prosecutor who is unlike any other.
    Virtually all other prosecutors have limited time, limited 
budgets, and a great many actual and potential targets. And so 
we have to make choices. We have to identify the most important 
cases, make judgments about the most important allegations, and 
allocate our limited resources accordingly. Also, we draw upon 
the collective experience of senior prosecutors to develop 
consistent prosecutorial practices from case to case.
    I am talking about what is known as prosecutorial 
discretion. As you know, this exercise is not a formulaic 
science. Rather, much like common sense judgment and wisdom, it 
comes with experience and it comes from handling a variety of 
cases, so that you learn to treat similar cases similarly. 
Deciding to prosecute isn't a simple matter of deciding that 
the law has been broken. It also entails a much more 
complicated judgment about competing priorities, prosecutorial 
policies, and the public interest.
    The Independent Counsel Act distorts this process. In 
trying to ensure independence, the statute creates a new 
category of prosecutors who have no practical limits on their 
time or budgets. They have no competing public duties and no 
need to make difficult decisions about how to allocate scarce 
resources. They are not always required to take into account 
the overall prosecutorial interests or traditions of the 
Department of Justice.
    An Independent Counsel typically is charged with 
investigating one person, and so all of his or her energy, 
ingenuity and resources are pointed in one direction. Add to 
this the fact that an Independent Counsel may labor in the 
public spotlight and under the watchful eye of history. An 
Independent Counsel will be judged not on the basis of a broad 
track record, but on one case alone. If the counsel uncovers 
nothing or fails to secure an indictment and conviction, some 
may conclude that he or she has wasted both time and money.
    All of these factors combine, I believe, to create a strong 
incentive for the Independent Counsel to do what prosecutors 
should not be artificially pushed to do, that is to prosecute. 
Again, I am not commenting on the work of any particular 
Independent Counsel. These are simply the incentives that the 
statute creates.
    It is for these reasons that the Justice Department has 
concluded that the Act is structurally and fundamentally 
flawed, and that it should not be reauthorized. But let me 
clear also about what our position does not mean. It does not 
mean that allegations of high-level corruption should be 
pursued with anything less than the utmost vigor and 
seriousness of purpose. And it does not mean that the 
Department considers itself capable of pursuing, in the 
ordinary course, each and every allegation of corruption at the 
highest levels of our government. We know that sometimes a 
special prosecutor is in order.
    Yet, we have come to believe that the country would best be 
served by a return to the system that existed before the 
Independent Counsel Act, when the Justice Department took 
responsibility for all but the most exceptional of cases 
against high-ranking public officials and when the Attorney 
General exercised the authority to appoint a special prosecutor 
in exceptional situations.
    Our Founders set up three branches of government--a 
Congress that would make the laws, an executive that would 
enforce them, and a judiciary that would decide when they had 
been broken. The Attorney General, who is appointed by the 
President and confirmed by the Senate, is publicly accountable 
for her decisions. The Attorney General must answer to Congress 
and ultimately to the American people. And in this day of 
aggressive journalism, sophisticated public advocates and 
skilled congressional investigators, we are held, I believe, 
more accountable than ever.
    In contract, the Independent Counsel is vested with the 
full gamut of prosecutorial powers, but with little of its 
accountability. He has not been confirmed by the Senate and he 
is typically not subject to the same sorts of oversight or 
budgetary constraints that the Department faces day in and day 
out. Accountability is no small matter. It goes to the very 
heart of our constitutional scheme. Our Founders believed that 
the enormity of the prosecutorial power and all the decisions 
about who, what and whether to prosecute should be vested in 
one who is responsible to the people
    That way--and here I am paraphrasing Justice Scalia's 
dissent in Morrison v. Olson--whether we are talking about 
over-prosecuting or under-prosecuting, the blame can be 
assigned to someone who can be punished. It is for this reason 
that the American republic has survived for over 200 years 
without an Independent Counsel Act.
    When high-level officials have been accused of wrongdoing, 
the Department has not hesitated to fully investigate. Over the 
last two decades, the Department of Justice has obtained the 
convictions of 13,345 public officials and employees from both 
sides of the political aisle. The Department prosecuted Vice 
President Spiro Agnew while he held office, and also Bert 
Lance, the Director of the Office of Management and Budget, 
soon after he left the administration.
    The Attorney General has also stood ready under his or her 
authority to appoint a special prosecutor when the situation 
demanded it. Paul Curran investigated allegations concerning a 
peanut warehouse owned by President Carter's family while he 
was still in office. Leon Jaworski investigated President 
Nixon, members of his Cabinet, and others. And although the 
President ordered the firing of Mr. Jaworski's predecessor, 
Jaworski showed that a non-statutory special prosecutor can do 
exactly what must be done to investigate high-level members of 
an administration even when the President is bent on subverting 
the investigation. Perhaps the real lesson of our Nation's 
experience with the special prosecutor during Watergate is not 
that the old system was broken, but that it worked.
    Apart from the major structural problems I have discussed, 
our experience has also persuaded us that other problems with 
the act further exacerbate its costs and burdens. I have 
discussed these other problems that may have legislative 
solutions in my prepared remarks. Those problems can generally 
be grouped into the following subject areas--the scope of the 
Act, the triggering mechanism, the standard for seeking the 
appointment, the selection process for Independent Counsels, 
dispute over proper jurisdiction, the removal power, and the 
reporting requirement.
    I want to reiterate that the Department believes that any 
such changes, while making a bad law better, would not remedy 
the statute's fundamental flaws. The Department of Justice 
therefore joins the many experts, such as Senator Baker, former 
Attorneys General William Barr and Griffin Bell, and former 
U.S. Attorney and Independent Counsel Joseph di Genova, who 
have concluded that the fundamental flaws in the Act will 
remain even if Congress addressed all of these other problems 
in the Act.
    In conclusion, the mission of the Independent Counsel Act 
is as worthy today as it was back in 1978. There are a limited 
number of criminal matters that should be handled in a special 
way in order to ensure the American people that politics will 
play as little role as possible in our criminal justice 
process. But we at the Department have come to believe that the 
Act's goals have not been well served by the Act itself and 
that we would do better without the statute.
    The internal regulations that are now on the books provide 
a set of procedures for the appointment of such a non-statutory 
Independent Counsel. These regulations would naturally require 
review in the event the Act lapses. The Department is in the 
process of drafting new internal regulations that would 
supersede the existing ones, and we will be happy to submit 
them for your review early in the process so that we may have 
the benefit of your views. But I want to emphasize that even 
without any regulations at all, the Attorney General has the 
ability to appoint a special prosecutor, and I, for one, would 
not hesitate to do so in an appropriate case, should the Act 
lapse.
    As I said at the outset, my change of heart about this 
statute has not come lightly. To those who question me about 
this or tell me, as some already have, that they told me so, I 
can only say this--I have now seen how the statute operates 
close up, probably closer up than anybody in American history, 
and I know more than I did before. It is as simple as that. I 
am reminded of something Justice Frankfurter once said, 
``Wisdom too often never comes, and so one ought not to reject 
it just because it comes late.''
    I thank you for inviting me to testify. The ultimate issue 
is responsibility. I go back to the point that I made that the 
system as it exists now diffuses responsibility, divides 
responsibility, and fragments accountability. If I am going to 
get blamed for it, I would like to be responsible for it and 
have the tools to do the job.
    [The prepared statement of Attorney General Reno follows:]

           PREPARED STATEMENT OF ATTORNEY GENERAL JANET RENO
    Mr. Chairman, Members of the Committee:
    Thank you for inviting me to present the views of the Department of 
Justice on the Independent Counsel Act. The Justice Department has 
administered the Act since its inception in 1978. It has done so under 
my watch since 1994, when the statute was last reenacted. Since its 
reauthorization, the Department has had extensive experience with the 
statute--experience that has influenced our assessment of it. After 
much reflection and inquiry, we have decided--reluctantly--to oppose 
reauthorization of the Independent Counsel Act.
    Before explaining the reasons for this decision, I must preface my 
observations with a caveat. It is very important that my remarks do 
not, in any way, interfere with any ongoing investigations or 
litigation involving an Independent Counsel. And so I cannot comment on 
the work of any particular Independent Counsel, or provide examples or 
details regarding a specific investigation. I will focus, instead, on 
the structure of the Independent Counsel Act itself and on what I 
believe are its inherent, though unintended, consequences. In 1993, as 
many of you know, I testified in support of the statute. I said that 
the law has been a good one, helping to restore public confidence in 
our system's ability to investigate wrongdoing by high-level Executive 
Branch officials. I believed then, and I believe now, that there are 
times when an Attorney General will have a conflict of interest.
    I also believed then--as I do now--that to keep the public's faith 
in impartial justice, that in such a case someone other than the 
Attorney General must sometimes be put in charge of the investigation.
    Prior to becoming Attorney General, I had functioned under a 
procedure in Florida under which the Governor could reassign a 
particular matter to another prosecutor in the event of a conflict of 
interest. This mechanism provided for parity and accountability. Parity 
was ensured because an elected prosecutor of equal rank would oversee 
the case as part of his or her caseload and within his or her budget; 
accountability because the elected Governor and the prosecutor would 
both have to answer to the public for their actions. This procedure 
also insured that the prosecutor who was recused had no further control 
of the case. Based on that experience, I believed that the Independent 
Counsel Act could have the same effect due to its particular mechanism 
for transferring prosecutorial power to an outside person.
    However, after working with the Act, I have come to believe--after 
much reflection and with great reluctance--that the Independent Counsel 
Act is structurally flawed and that those flaws cannot be corrected 
within our constitutional framework.
The Origins of the Independent Counsel Act
    Let me begin by addressing the reasons that gave rise to the 
present Independent Counsel Act. Congress passed the Act as a post-
Watergate reform, intending to prevent the reoccurrence of the crisis 
in government that arose when President Nixon directed that Special 
Prosecutor Archibald Cox be fired. President Nixon's decision 
ultimately precipitated the resignation of the Attorney General and the 
Deputy Attorney General.
    The Act was based upon the premise that a conflict of interest may 
exist when the Justice Department of any particular Administration 
investigates the highest ranking officials of that Administration. 
Therefore, the Act established a prosecutorial entity to handle such 
cases that would be separate and apart from the Administration and the 
Department of Justice. Only in this way, the drafters reasoned, could 
the investigation have sufficient credibility to provide assurance to 
the American people that there had been no coverup and no undue 
political influence exerted in favor of the Administration.\1\
---------------------------------------------------------------------------
    \1\ H.R. Rep. No. 1307, 95th Cong., 2d Sess. 3 & n. 5 (1978); S. 
Rep. No. 170, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S. Code 
Cong. & Admin. News 4221, 4281-82.
---------------------------------------------------------------------------
    There can be no question that these goals are highly desirable. In 
fact, by seeking to prevent conflicts of interest, the Independent 
Counsel Act appeared to be consistent with the long-established 
practices of the Department of Justice and other prosecutorial offices, 
in that it provided an alternative prosecutor in those limited 
circumstances in which the prosecutor with original jurisdiction was 
forced to recuse himself or his office.
The Act Has Failed to Promote Public Confidence that Politics is Absent 
        From the Process
    Unfortunately, the Act has failed to live up to its promise. In the 
first place, it has failed to instill confidence among the public that 
politics has been removed from the process. This is so, in large part, 
because the Act requires the Attorney General to make key decisions at 
several critical stages of the process--whether to open a preliminary 
investigation, whether to seek appointment of an Independent Counsel, 
what subject matter to refer to the court when seeking a counsel, and 
whether to remove him or her. This central role for the Attorney 
General was not just a congressional choice, but a constitutional 
mandate. In Morrison v. Olson, the Court made clear that the Act was 
constitutional because it required the Executive Branch--through the 
Attorney General--to play a critical role in these key decisions. But 
the very thing that makes the statute constitutional is also what 
prevents it from accomplishing its goals. For an Attorney General, 
after all, is a member of the President's cabinet, and as such, his or 
her decisions will inevitably be second guessed and criticized no 
matter what decision is made.
    Whenever a high-level official is accused of wrongdoing, the stakes 
are high. Almost by definition, these are significant cases that 
generate a lot of interest--in the newspapers, up here on Capitol Hill, 
and in political circles across the country. As a consequence, just 
about every decision becomes controversial--be it an Attorney General 
decision whether to trigger the Act and seek the appointment of an 
Independent Counsel, or an Independent Counsel's decision to pursue a 
particular, prosecutorial course. And I have come to believe that the 
statute puts the Attorney General in a no-win situation. Or, as I have 
said in the past: an Attorney General is criticized if she triggers the 
statute, and criticized if she doesn't.
    On the other side of the equation, the decisions of an Independent 
Counsel are no less subject to criticism and second-guessing. Once 
again, I'm not saying any of this is fair or not fair, justified or not 
justified, right or wrong. I'm just saying that it is natural, and that 
this climate of criticism and controversy weakens--rather than 
strengthens--the public's confidence in the impartial exercise of 
prosecutorial power. And that, at the end of the day, undercuts the 
purpose of the Act. Instead of giving people confidence in the system, 
the Act creates an artificial process that divides responsibility and 
fragments accountability.
The Act Removes the Constraints of Prosecutorial Discretion
    The Act has other built-in characteristics that, I believe, have 
also contributed to the public's disenchantment over the years. We have 
heard much about the extraordinary expense associated with a number of 
Independent Counsel investigations. These costs are, in large part, 
built into a system that requires an Independent Counsel to set up a 
brand-new office--which means hiring lawyers, administrators, clerical 
staff, consultants, and renting out office space--and are compounded by 
the unique expectations placed upon a Counsel: that the Independent 
Counsel will go down every investigative side street, that he or she 
will prepare a comprehensive final report, that the Counsel will 
litigate attorneys fees. This is a very expensive way to do business.
    The statute imposes other costs that are not so easily quantified--
such as its effect on the role of the prosecutor and her or his 
relationship to the subjects of the investigation. I have been a 
prosecutor for most of the last 25 years, and I think I can fairly say 
that the Independent Counsel Act creates a prosecutor who is unlike any 
other. Virtually all other prosecutors have limited time, limited 
budgets, and a great many actual and potential targets. And so we have 
to make choices: We have to identify the most important cases, make 
judgments about the most important allegations, and allocate our 
limited resources accordingly. Also, we draw upon the collective 
experience of senior prosecutors to develop consistent prosecutorial 
practices from case to case.
    I'm talking, of course, about what's known as prosecutorial 
discretion. Several of you are former prosecutors, and so you know that 
the exercise of this discretion is not a formulaic science. Rather, 
much like common sense, judgment, and wisdom, it comes with experience, 
and it comes from handling a variety of cases so that you learn to 
treat similar cases similarly. Deciding to prosecute, isn't a simple 
matter of deciding that the law has been broken. It also entails a much 
more complicated judgment about competing priorities, prosecutorial 
policies, and the public interest.
    The Independent Counsel Act distorts this process. In trying to 
ensure independence, the statute creates a new category of prosecutors 
who have no practical limits on their time or budgets. They have no 
competing public duties, and no need to make difficult decisions about 
how to allocate scarce resources. They are not required to take into 
account the overall prosecutorial interests or traditions of the 
Department of Justice (they are bound only to comply with the written 
and other established policies of the Department of Justice to the 
extent not inconsistent with the purposes of the statute). An 
Independent Counsel typically is charged with investigating one 
person--and so all of his or her energy, ingenuity, and resources are 
pointed in one direction. Add to this the fact that an Independent 
Counsel may labor in the public spotlight and under the watchful eye of 
history. An Independent Counsel will be judged, not on the basis of a 
broad track record, but on one case alone. If the Counsel uncovers 
nothing, or fails to secure an indictment and conviction, some may 
conclude that he or she has wasted both time and money.
    All of these factors combine, I believe, to create a strong 
incentive for the Independent Counsel to do what prosecutors should not 
be artificially pushed to do--that is, to prosecute. Again, I am not 
commenting on the work of any particular Independent Counsel. These are 
simply the incentives that the statute creates.
A Return to First Principles
    It is for these reasons that the Justice Department has concluded 
that the Independent Counsel Act is structurally and fundamentally 
flawed, and that it should not be reauthorized. But let me be clear, 
also, about what our position does not mean. It does not mean that 
allegations of high-level corruption should be pursued with anything 
less than the utmost vigor and seriousness of purpose. And it does not 
mean that the Department considers itself capable of pursuing, in the 
ordinary course, each and every allegation of corruption at the highest 
levels of our government. We know that, sometimes, a special prosecutor 
is in order.
    Yet we have come to believe that the country would be best served 
by a return to the system that existed before the Independent Counsel 
Act--when the Justice Department took responsibility for all but the 
most exceptional of cases against high-ranking public officials, and 
when the Attorney General exercised the authority to appoint a special 
prosecutor in exceptional situations.
    Our Founders set up three branches of government: a Congress that 
would make the laws, an Executive that would enforce them, and a 
Judiciary that would decide when they had been broken. The Attorney 
General, who is appointed by the President and confirmed by the Senate, 
is publicly accountable for her decisions. The Attorney General must 
answer to the Congress--and, ultimately, to the American people. And in 
this day of aggressive journalism, sophisticated public advocates, and 
skilled congressional investigators, we are held--I believe--more 
accountable than ever.
    In contrast, the Independent Counsel is vested with the full gamut 
of prosecutorial powers, but with little of its accountability. He has 
not been confirmed by the Senate, and he is not typically subject to 
the same sorts of oversight or budgetary constraints that the 
Department faces day in and day out. Accountability is no small matter. 
It goes to the very heart of our constitutional scheme. Our Founders 
believed that the enormity of the prosecutorial power--and all the 
decisions about who, what, and whether to prosecute--should be vested 
in one who is responsible to the people. That way--and here I'm 
paraphrasing Justice Scalia's dissent in Morrison v. Olson--whether 
we're talking about over-prosecuting or under-prosecuting, ``the blame 
can be assigned to someone who can be punished.''
    It was for this reason that the American republic survived for over 
200 years without an Independent Counsel Act. When high-level officials 
have been accused of wrongdoing, the Department has not hesitated to 
fully investigate. Over the last two decades, the Department of Justice 
has obtained the convictions of 13,345 public officials and employees 
from both sides of the political aisle. The Department prosecuted Vice 
President Spiro Agnew while he held office and also Bert Lance, the 
Director of the Office of Management and Budget, soon after he left the 
Administration.
    The Attorney General has also stood ready, under his or her 
authority, to appoint a special prosecutor when the situation demanded 
it. Paul Curran investigated allegations concerning a peanut warehouse 
owned by President Carter's family while he was still in office. Leon 
Jaworski investigated President Nixon, members of his Cabinet, and 
others. And although the President ordered the firing of Mr. Jaworski's 
predecessor, Archibald Cox, Jaworski showed that a nonstatutory special 
prosecutor can do exactly what must be done: investigate high-level 
members of an Administration even when the President is bent on 
subverting the investigation. Perhaps the real lesson of our Nation's 
experience with the Special Prosecutor during Watergate is not that the 
old system was broken--but that it worked.
    Apart from the Act's overall structural problems, our experience 
has persuaded us that other problems further exacerbate the statute's 
costs and burdens. These other problems exist in a different category 
from the ones I have been talking about, as they could be addressed--
with varying degrees of effectiveness--with changes to the statutory 
language here and there. And although I will share these thoughts with 
you, I want to reiterate that the Department believes that any such 
changes--while making a bad law better would not remedy the statute's 
fundamental flaws.
The Scope of the Act
    First, we have concluded that the group of individuals 
automatically covered by the Act is too broad. By extending mandatory 
coverage to so many individuals including White House officials at a 
certain pay level, cabinet officers, campaign officers, and others the 
Act presumes a conflict of interest where none usually exists.
    The Department of Justice can effectively, aggressively and 
credibly investigate or prosecute the majority of these public 
officials. Mandatory coverage of such a large group is particularly 
unnecessary in light of the Act's alternative provisions which give the 
Attorney General discretion to seek appointment of an Independent 
Counsel whenever the prosecution of any individual would constitute a 
conflict of interest.
The Triggering Mechanism
    Another area where the Department has encountered repeated 
difficulties involves the mechanisms and standards by which, the Act is 
``triggered.'' Having now applied these concepts, I understand how hard 
it is to write into the U.S. Code the sort of intricate standards that 
prosecutors develop after years of experience. I can only say that the 
statute, while making a valiant attempt, does not succeed.
    During an initial inquiry under the Act, the Attorney General must 
decide in 30 days whether there are grounds to investigate whether a 
covered person ``may have violated any Federal criminal law.'' In 
making this decision, the Act requires the Attorney General to decide 
whether the information supporting the allegations is (1) specific, and 
(2) from a credible source. Now, as a prosecutor, I've had a fair 
amount of experience with assessing credibility. I've learned--
sometimes the hard way--that credible sources are sometimes mistaken. 
And I've also learned that less than credible sources are sometimes 
accurate. The statute seems to ignore these possibilities. Also, the 
term ``may have violated'' is very broad and subject to many 
interpretations. As a result, the Act sometimes requires the Department 
to take action that it would never take in an ordinary case against a 
non-covered person.
    The most serious problem with the Act during the initial inquiry 
phase, however, is its treatment of the issue of criminal intent. The 
Act tells the Attorney General that no matter what the evidence shows--
or does not show--about the subject's intent, she is not to consider 
it. Now, as many of you well know, intent is often the critical 
question in criminal law. Forcing the Attorney General to decide 
whether an allegation is specific and credible--and at the same time 
barring her from considering the central element of intent--is unfair 
to the subject and misleading to the public.
The Decision Whether to Seek an Independent Counsel
    Following a preliminary investigation, an Attorney General must 
decide whether an Independent Counsel should be appointed. She must 
seek an Independent Counsel if she concludes that ``there are 
reasonable grounds to believe that further investigation is 
warranted.'' This standard, too, is unclear and subject to differing 
interpretations. After all, most of us think that ``some'' further 
investigation can almost always be warranted, and there's usually a 
doubt or two that you'd like to resolve--especially if there are no 
constraints on time and money. But should an investigation proceed even 
where there is no reasonable prospect of making a prosecutable case? 
The statute does not provide a clear answer to that question. And any 
effort to read reason into the standard in a particular case often 
generates much criticism and controversy.
    The problem regarding criminal intent persists into this phase of 
the process as well. Again, the Act prohibits the Attorney General from 
deciding that no further investigation is warranted because of a lack 
of criminal intent unless, that is, there is clear and convincing 
evidence that the subject did not have the requisite intent. This 
standard--which requires proof of a negative by clear and convincing 
evidence--is extraordinarily difficult to apply. And it also stands 
traditional prosecutorial decisions on their heads. In almost every 
criminal case, we will not proceed without some positive evidence of 
intent.
    Another problem with the statute is that it deprives the Department 
of the normal investigative tools: we cannot subpoena witnesses or 
documents, convene grand juries, plea bargain, or grant immunity during 
the preliminary investigation. Without the subpoena power, we are 
greatly handicapped in our search for the truth. And coupled with the 
short timetable for conducting the investigation, this restriction can 
prompt the unwarranted appointment of an Independent Counsel because we 
can't find all the facts that we otherwise could have, given the proper 
tools.
The Selection Process for an Independent Counsel
    After the Attorney General has decided to seek the appointment of 
an Independent Counsel under the Act, the next step involves the actual 
selection process by the three-judge panel known as the Special 
Division. However, the Act gives the judges no real standards or 
qualifications to look for in making their choice. It provides for no 
selection protocol, visible or otherwise. And, as Judge Butzner has 
stated, in some instances the Special Division has encountered great 
difficulty in finding someone available for appointment as an 
Independent Counsel, resulting in a significant delay of the 
investigation.
Jurisdictional Disputes
    The Act's jurisdictional provisions have emerged as a serious 
problem, at times leading to disagreements between Independent Counsels 
and the Department and often requiring a great deal of time to resolve. 
While most disagreements have been ironed out cooperatively between 
Independent Counsels and the Department, there have been several 
conflicts over who should handle certain matters. At the heart of these 
disagreements seems to be a basic and fundamentally different view as 
to the appropriate role of the Independent Counsel. The Department 
views the Act as a limited solution to a limited problem: that is, as 
an appropriate response when a conflict of interest precludes us from 
investigating specific allegations against a particular person. In our 
view, matters outside that limited category of cases can--and should--
be handled by the Department in the ordinary course.
    Given the ambiguities in the statute, however, there is a natural 
tendency for Independent Counsels to view themselves as full-scale 
prosecutors, and to believe themselves authorized to investigate all 
avenues--wherever (and to whomever) they may lead. This impulse to 
expand one's jurisdiction is, again, a natural reaction to the 
statutory scheme itself--and to the incentives it creates to secure 
convictions or to otherwise justify an investigation's time and 
expense.
    There has been some litigation over this issue. Rejecting the 
Department's position that the Attorney General's consent is required, 
the Special Division has held that it may refer to an Independent 
Counsel the jurisdiction to investigate matters that are ``related'' to 
the original grant of jurisdiction without first obtaining the consent 
of the Attorney General.
    In addition, the courts have defined a ``related'' matter in a way 
that we believe is unduly expansive. As a result, an Independent 
Counsel can be given jurisdiction to investigate the friends and 
associates of a covered person for alleged crimes that have only the 
most tangential relationship to the core allegations. I suggest that 
this expansion goes far beyond any possible need for the statute, and 
that it hurts--rather than helps--the statute's effectiveness.
    In addition to the ``relatedness'' problem, there is also confusion 
about what constitutes a matter ``arising out of'' an Independent 
Counsel's investigation. Remember, the statute gives an Independent 
Counsel jurisdiction to investigate crimes that ``may arise out of'' 
the central investigation. The Department has always taken the 
position, based on examples in the Act and the legislative history, 
that this language refers to interference with the investigation 
itself, like obstructing justice or committing perjury. Some 
Independent Counsels and some courts, however, have read the language 
to cover any crime unearthed by the Independent Counsel during the 
course of the investigation. Again, we believe that such jurisdictional 
expansions are unwarranted, unintended, and unwise.
    Finally, there have also been disagreements between the Department 
and Independent Counsels over the counsels' authority to handle civil 
matters. The Department does not believe that independent criminal 
prosecutors should be able to bind the United States in civil suits and 
settlements. We believe that this provision was intended to be limited 
to instances where the civil authority is essential to the successful 
completion of the criminal matter, such as handling a civil contempt 
case involving a witness, or intervening to request that a civil case 
be stayed pending resolution of the criminal case.
Removal
    This discussion of jurisdictional disputes and issues brings me 
back to the subject of checks and balances--or the lack thereof--
provided by the Act. It is difficult for the Department to litigate or 
even express these views without being accused of improper interference 
with an Independent Counsel's work. Indeed, I will not be surprised if 
my observations today are challenged by some on that ground--though, as 
I said at the outset, and as I've tried to make clear, I am talking 
about the structure of the Act and the incentives it creates, not the 
actions of any particular Independent Counsel. If even such generalized 
testimony can be read as impinging on an Independent Counsel's 
independence, I would ask you to think about how much more difficult it 
would be for an Attorney General to exercise his removal authority 
under the Act. The removal provision which the Supreme Court 
highlighted as central to the statute's constitutionality allows the 
Attorney General to remove an Independent Counsel for enumerated 
causes. Implicit in the Attorney General's authority to remove must be 
the authority to investigate serious allegations of misconduct that 
come to her attention. But how can the Department investigate an 
Independent Counsel without being charged with trying to bridle the 
Counsel's independence? It will always be extremely difficult for any 
Attorney General to exercise the authority to investigate, let alone 
remove, an Independent Counsel.
The Final Report Requirement
    A final problem that I wish to address briefly is the Act's 
requirement that an Independent Counsel prepare a final report. On one 
hand, the American people have an interest in knowing the outcome of an 
investigation of their highest officials. On the other hand, the report 
requirement cuts against many of the most basic traditions and 
practices of American law enforcement. Under our system, we presume 
innocence and we value privacy. We believe that information obtained 
during a criminal investigation should, in most all cases, be made 
public only if there is an indictment and prosecution, not in lengthy 
and detailed reports filed after a decision has been made not to 
prosecute. The final report provides a forum for unfairly airing a 
target's dirty laundry. And it also creates yet another incentive for 
an Independent Counsel to over-investigate--in order, again, to justify 
his or her tenure and to avoid criticism that the Independent Counsel 
may have left a stone unturned. We have come to believe that the price 
of the final report is often too high.
Conclusion
    The mission of the Independent Counsel Act is as worthy today as it 
was back in 1978. There are a limited number of criminal matters that 
should be handled in a special way, in order to assure the American 
people that politics will play no role in our criminal justice process.
    But we at the Department have come to believe that the Act's goals 
have not been well-served by the Act itself--and that we would do 
better without a statute. Instead, the Department would utilize the 
Attorney General's authority to appoint a special prosecutor when the 
situation demands it. The regulations that are now on the books provide 
a set of procedures for the appointment of such a non-statutory 
Independent Counsel. These regulations would naturally require review 
in the event that the Act lapses. But I want to emphasize that this 
Committee and Congress can rest assured that if the Act expires with no 
new legislation enacted, that the Department will be prepared to 
enforce its regulations to address any issue that the Act was intended 
to cover. As we move forward in making changes to these regulations, we 
greatly encourage input from this Committee.
    As I said at the outset, my change of heart about this statute has 
not come lightly. To those who question me about this--or who tell me, 
as some already have, that they told me so--I can only say this: I've 
now seen how the statute operates close-up, and I know more than I did 
before. It is as simple as that. I'm reminded of something Justice 
Frankfurter once said: ``Wisdom too often never comes, and so one ought 
not to reject it merely because it comes late.''
    Again, I appreciate the chance to share my thoughts with you, and I 
will be happy to respond to your questions.

    Chairman Thompson. Thank you very much, Attorney General 
Reno. Your criticisms are similar to many of the ones that we 
have heard already, and they are similar, as I recall, to my 
opening statement when we started these hearings. I think 
almost in every instance they are valid concerns. Whether or 
not they should be determinative, I think, is yet to be seen.
    My concern and the concern of a lot of people, most of the 
critics of the Act, has been there from the very beginning, not 
because of the way a particular Independent Counsel would 
behave, because we all know when we create a law we have to 
look and see what the outermost limits are and assume that 
those limits will be achieved one time or another. It has to do 
with the structure of the law and not the individual as we 
analyze whether or not it is a good law.
    You pointed out structural defects. I note your change of 
opinion. I do not criticize you for that. I think that that is 
commendable in many cases, if a person feels that recent events 
shed new light on a particular matter. But you refer in your 
statement to structural flaws, and those flaws have been there 
from the beginning. There have been amendments to it from time 
to time.
    Certainly, back in 1993, when you supported the Act, the 
Department position--and you had people in the Department at 
that time, I am sure, who had been there for some time; some of 
those are still there. So there is a continuity there. We had 
already seen most of the criticisms of the law. They were on 
the table, all the ones that you raised today, all of the 
criticisms of Mr. Walsh's investigation, all of the criticisms 
concerning Mr. Meese and the fact that there was a final report 
that, although he wasn't indicted him, accused him of criminal 
conduct.
    So when you refer to structural defects, what structural 
defects have become apparent to you in the last few years that 
have not been out there for all this time? Justice Scalia, I am 
sure, will be gratified that you are now quoting him and his 
dissent, but that was back in 1988, and he pointed out a lot of 
these things, too.
    Obviously, we have experience with various counsels since 
then. Is that the reason for your view today, the experience 
with those counsels, or is it as you refer to in your 
statement, structural deficiencies that, while pointed out by a 
lot of people, were not readily apparent up until recently?
    Attorney General Reno. I refer to the structural 
deficiencies because what I have tried to do is grapple within 
the last months as I faced this issue with what we could do to 
change the statute to address the problem of removing the 
Attorney General from the process.
    I had expected, based on my experience in Florida, that the 
Act could be implemented so as to inspire public confidence. I 
did not account for the focus and the immediate posture of any 
decision I made to see it plunged into the political process, 
with people on one side saying I asked for too many and people 
on the other side saying I asked for too few, and people saying 
I should do this and people saying I should do that.
    I obviously became a central focus for it, and so I have 
tried to figure out how can you design something that takes the 
person who has the conflict out of the process. I have gone 
over it and over it and over it, and I can't figure out how to 
do it consistent with Morrison v. Olson.
    Chairman Thompson. Well, I wonder if that is a structural 
defect with the statute or that has to do with what you would 
call a political environment, or maybe if it had to do just 
with your decisions. I mean, frankly, you talk about damned if 
you do, damned if you don't. I don't really recall--and this is 
no reflection on you one way or the other; it is not passing 
judgment on your decisions, but I don't recall other Attorneys 
General having this ``damned if you do and damned if you 
don't.''
    They have been criticized for sure, but I don't recall 
anything like that. And maybe that is the point you are trying 
to make. Attorneys General have made decisions to appoint 
Independent Counsels, decisions not to. But, frankly, I don't--
of course, the Watergate situation, I guess, stands by itself--
I don't recall all this controversy where the Attorney General 
is in the middle of all this until your situation.
    Attorney General Reno. Well, you haven't had an Attorney 
General who has been around as long or who has made so many 
decisions or who has had to come up against probably one of the 
most complex, confusing laws that Congress ever passed, which 
is the Federal Elections Act.
    Chairman Thompson. Well, it has been on the books for a 
long time.
    Attorney General Reno. No. I am talking about the Federal 
Elections Act.
    Chairman Thompson. Well, that has been on the books for a 
long time, too.
    Attorney General Reno. And it becomes more confused with 
the passage of time.
    Chairman Thompson. Well, it has become more confusing 
lately, I assure you. But for about 20 years, there were some 
basic assumptions there that people operated under that they 
can't operate under now.
    But going to another point, you and I clearly are not going 
to resolve our different views in terms of what the election 
laws require. But on a slightly related point, you chose not to 
call for an Independent Counsel, for the views that you have 
stated often. But you have the option also to call for an 
Independent Counsel not because the criteria is reached, but 
because of a political conflict of interest, is what the 
statute allows you to do in an appropriate case. Is that not 
true, when you have a political conflict of interest with 
regard to a non-covered person, let's say?
    Attorney General Reno. That is correct.
    Chairman Thompson. And you have exercised that authority 
that you have in various instances, such as I mentioned the 
McDougal situation; Bernie Nusbaum, I believe, former counsel 
to the President; and the former governor of Arkansas. All of 
these people were not covered people, but because of what you 
delineated as a political conflict of interest under the 
wording of the statute, because of their relationship 
presumably to the President, you asked for an Independent 
Counsel in those cases. Is that not correct?
    Attorney General Reno. That is correct.
    Chairman Thompson. I would ask you whether or not, in light 
of some of the instances that I mentioned in my opening 
statement concerning the various individuals, some of whom 
had--well, let's take Mr. Trie, who had a relationship with the 
President back to the 1970's, was in and out of the White 
House, left the country and went to Beijing, who is back now 
and who has been indicted, hundreds of thousands of dollars in 
illegal money for the President's campaign through the DNC. I 
mentioned others.
    Why did you not see fit to delineate that as a political 
conflict of interest with regard to Mr. Trie and those others 
as you did with regard to Mr. Nusbaum and Mr. McDougal and 
those people?
    Attorney General Reno. Because I believed that the conflict 
did not exist in a way that the Department would not be able to 
handle it consistent with the interests of justice.
    Chairman Thompson. Of course, Mr. McDougal and the 
President were not apparently very close at the time that you 
had to make the decision with regard to him. I think the same 
thing is true with regard to former governor Jim Guy Tucker. 
Mr. Nusbaum had already left the White House. Yet, Mr. Trie was 
still attending fundraisers. You had other individuals in and 
out of the White House apparently taking the Fifth Amendment, 
fleeing the country, some of whom, as I said, you have already 
indicted.
    You saw a greater conflict with Mr. McDougal and Mr. 
Tucker, for example, than you did with these individuals--
political conflict?
    Attorney General Reno. I saw a circumstance with respect to 
Whitewater where I thought that the request for appointment of 
an Independent Counsel would be appropriate.
    Chairman Thompson. All right.
    Attorney General Reno. But, Senator, let me point out 
something because it really troubles me. This is the fourth or 
fifth hearing that I have been at when I get a question that 
has a passing reference to one matter, a passing reference to 
another, somebody taking the Fifth Amendment, the person 
unidentified, the circumstances having no connection with the 
original question. And it is these types of questions that 
create so much of the confusion about the Act.
    Senators from that bench today have said, you appointed an 
Independent Counsel in such-and-such and such-and-such. I 
didn't appoint the Independent Counsels that the Special 
Division appointed, and I think it is very important that as we 
address these issues, we address them very, very carefully so 
that we can focus on the specific issue involved.
    Chairman Thompson. Well, I agree with that, and we 
shouldn't use terms loosely. But I can't think of anything that 
I have said that is in error or that I would take back. The 
point is that your suggestion here today that this be given 
back to Justice and you be allowed to appoint special counsel--
I think it is entirely valid for me to point out that in cases 
that cry out, in my opinion, for the appointment of either a 
political conflict of interest Independent Counsel or at least 
a special counsel that has been utilized by others Attorneys 
General that in times past you have not seen fit to avail 
yourself.
    We have got a right to feel--we talk about congressional 
oversight, but congressional oversight has more to do than just 
with asking a question or two and then moving on. I think we 
have got a right to get some insight as to how this Justice 
Department would utilize its special counsel capabilities that 
the statute gives it.
    I think there is a relationship. I think it is appropriate 
to point out that in some cases you have called for a special 
counsel or a political conflict of interest counsel. But in 
other cases, it appeared to me to present an even greater 
conflict of interest with regard to even a more substantial 
matter; when you are talking about that level of money and not 
knowing what the sources are and that entire scandal that is 
somewhat unprecedented, that we don't utilize the same 
provisions for that.
    I understand your position, but you need to understand 
mine, too.
    Attorney General Reno. I understand yours perfectly, and I 
understand that you disagree with me on some of my decisions 
and that you agree with me on others. I understand that there 
are some people----
    Chairman Thompson. Which ones do you think I agree with you 
on? [Laughter.]
    Attorney General Reno. I have no idea, but I am sure you 
would be raising all of them if you disagreed with me.
    Chairman Thompson. All right. Thank you very much.
    Attorney General Reno. But let me point out, Senator, there 
are members of Congress that disagree with your disagreement of 
my conclusion. When you try to make legal decisions, they are 
going to be people that disagree with you. It troubles me that 
it sometimes gets into a divide based on party, and so I have 
made the judgment that I am going to make the best conclusion I 
can based on the evidence and the law, understanding that you 
are going to disagree with some of the decisions. Senator 
Lieberman may disagree with others, and Senator Levin may 
disagree with others. But I am going to call it like I see it 
the best way I can.
    Chairman Thompson. All right, thank you. Senator Lieberman.
    Senator Lieberman. Thanks. Thank you, General Reno. I want 
to say I enjoy calling you ``General Reno'' because one of the 
great losses I suffered when I received the honor of being 
elected to the U.S. Senate from my position as Attorney General 
of Connecticut is that nobody calls me ``General'' anymore. So 
I am honored to be able to call you that.
    Let me go to what you have cited as one of your major 
reasons for being against reauthorization of the Independent 
Counsel Act more or less as it currently exists, for bringing 
it back into the Justice Department, and it is cited by other 
witnesses we have heard before in the public commentary about 
this law, which is that because the Independent Counsel is 
appointed without limits on time or money, focused on a 
particular person, if you will, there is a danger--in effect, a 
danger that has been realized--that the Independent Counsel 
will not be subject to the same kinds of resource constraints, 
time constraints that affect other prosecutors within the 
Justice Department, and that there may be real pressure not to 
end this until you can indict.
    Now, I know we all have Mr. Starr in our minds because he 
is the most prominent current Independent Counsel, and I know 
that many felt that at times Mr. Starr seemed to be an 
Independent Counsel in pursuit of a person, in this case the 
President, as opposed to an Independent Counsel in pursuit of a 
crime or criminal behavior.
    But trying to put that aside, the fact is that over the 
history of this Independent Counsel Act, as I am sure you know, 
more of the appointed counsels have decided not to indict than 
to indict, so that the record does not show at least on that 
part that they have felt a pressure to indict.
    Incidentally, as I mentioned before--and I think it is one 
of the values of the Independent Counsel Act--when they chose 
not to indict, that certainly had more credibility than if the 
Attorney General appointed by the President or serving with the 
other Cabinet members had chosen not to indict.
    I want to ask you to comment generally on that, but I want 
to just pose this question to you also. Obviously, 
prosecutorial discretion insofar as it includes a decision as 
to whether there is sufficient evidence to prosecute a crime--I 
mean, that is discretion that we hope everybody uses because 
that is what the justice system is about, not to prosecute 
unless there is sufficient evidence.
    But some of the other constraints that affect normal 
prosecution, I don't think are virtues of the system in the 
sense that, well, somebody is not prosecuted even though the 
prosecutor may feel there is evidence that a crime was 
committed because there are more important crimes to prosecute. 
And I specifically think that is relevant when we are dealing 
with the highest officials of our government.
    One of the witnesses we had at our last hearing--I believe 
it was Henry Ruth, although it is unfair to put these words in 
his mouth. I am going to paraphrase, but he dealt with the 
argument that is made that the Independent Counsel Act was 
designed to make sure that the highest officials of our 
government are not above the law. And some of the critics of 
the law say but they also should not be below the law. And in 
some cases, because of the zeal of Independent Counsels, they 
have been.
    Mr. Ruth said, and I agree with him, shouldn't we want to 
hold our highest officials to the highest interpretation of the 
law? And if evidence exists that a crime has been committed, 
they should be prosecuted. The prosecution should not be 
constrained by resource limitations, and along the lines of the 
general notion that the higher you go, the higher standard you 
should be held to.
    Attorney General Reno. I think everybody should be held to 
the highest standards. One of the things that I take issue with 
you about--you started off by calling me ``General.'' I don't 
think generals belong in the law, and I think that kind of goes 
to my feeling about the law that we should all be subjected to 
the law and to the standards.
    That does not mean that you do not focus responsibility on 
very serious cases, and in cases involving high officials of 
government that creates a very serious case. The prosecutor 
should have a budget. If that budget requires millions of 
dollars, then be accountable to the American people just as I 
am accountable for how I spend my money at the Department of 
Justice. I don't think those two points are inconsistent.
    Senator Lieberman. Well, maybe we will come back later to 
the question of accountability.
    Attorney General Reno. And, Senator, may I just, out of 
great caution, make one comment? You made reference to one of 
the Independent Counsels. I am not making any comment, nor 
should it be construed as a comment on any Independent Counsel.
    Senator Lieberman. Understood, and I appreciate that.
    Well, how do you respond to the facts that more than half 
of the Independent Counsels have, in fact, not indicted? 
Doesn't that suggest that the argument of prosecutorial 
discretion, or lack of it here, is not compelling?
    Attorney General Reno. As I made the point in my opening 
remarks, I do not comment on what was done. I am simply 
describing the incentives of the Act.
    Senator Lieberman. OK. Let me go in the time I have left to 
what may happen either if the Department achieves the result it 
wants here regarding this statute or assuming that we don't do 
anything by the date the law expires later this year, later 
this spring. We may do something later, but there is a gap 
there, and I want to ask you about the regulations that now 
govern the Independent Counsels within the Justice Department, 
the regulations that you operate under that you cited.
    Am I correct that they give complete discretion to the 
Attorney General regarding whether to appoint an Independent 
Counsel and whom to select for that position?
    Attorney General Reno. My understanding of the regulations 
that exist and have been in existence is that they mirror the 
Act and were put in place should the Act not be authorized for 
a period of time. We are reviewing those regulations, and the 
regulations that we would propose would give discretion to the 
Attorney General.
    But whatever happens, I think we can all agree--Senator 
Thompson, the Committee, myself--we are all interested in 
trying to design something that can give the American people 
confidence in the process. And I will be happy to work with 
you, share the proposed regulations, and talk with you about 
other avenues that we can pursue because I am very anxious to 
make sure that this process is as open, as understandable, and 
as just as possible.
    Senator Lieberman. I believe that the current regulations 
give the Attorney General total discretion regarding the 
appointment of special counsels; in other words, neither the 
mandatory nor the discretionary features that the Chairman 
referred to in his earlier statement and questions.
    Attorney General Reno. As I made the point, I can, 
independent of the regulations, as I understand it, appoint a 
special counsel.
    Senator Lieberman. Let me ask----
    Chairman Thompson. On that point--and I will give back your 
time--I think there is a question because the Attorney General 
is right. I think it does mirror the statute; the regulation 
pretty much mirrors the statute and it gives her, I think, 
total discretion in appointing one without having to go through 
the standards.
    I think there is a real question, though, if this law 
lapses, whether or not that regulation would be applicable 
because it refers to such things as the three-judge court 
which, of course, under that situation would no longer exist. 
So I think there is a real question there as to what we would 
do with that regulation if the law lapsed.
    Senator Lieberman. Let me ask you, then, directly, assuming 
that the statute lapses before Congress has acted, what 
criteria would you apply in deciding whether to appoint an 
Independent Counsel if a request is made to you to do so?
    Attorney General Reno. We are reviewing a proposed 
regulation. We have indicated to the House that we will submit 
it the first part of April, and what I would like to do is to 
submit that to you. I would be happy to come back and review it 
with you, work with your staff, do anything we can to address 
concerns, or follow up on points that you make that indicate to 
us that we should take a different direction.
    Senator Lieberman. Let me, in the time remaining, just get 
to another aspect of this which is critical, I think, to a lot 
of us and that is the decision to terminate an Independent 
Counsel. I notice in some of the research done that leading up 
to the time of Archibald Cox, I could find six occasions where 
special counsels were appointed by Attorneys General. This goes 
way back to President Grant. Interestingly, three of them were 
fired.
    And, of course, in the current Independent Counsel Statute, 
an Attorney General has the power to terminate, to fire the 
Independent Counsel, but then that counsel can appeal to 
Federal District Court. If the law lapses and the regulation 
then prevails, the Attorney General would have absolute 
authority to fire a special counsel or Independent Counsel, 
whatever the terminology is.
    Do you think that is a good situation? Should there not be 
some review of the Attorney General's decision to terminate an 
Independent Counsel when the counsel is working on an 
investigation of possible criminal behavior either by the 
President or others with whom the Attorney General serves 
closely?
    Attorney General Reno. I think that this is always an area 
that can be reviewed. I think ultimately the responsibility 
comes back to the Attorney General, as the Constitution 
envisions the Executive Branch of Government having the power 
in this instance.
    In the one instance in which I have appointed a special 
counsel, I went through the steps carefully. I had confidence 
in the person. I designed an understanding with that special 
counsel. And I think in all of these instances, if done 
properly, we can structure a system in which we can have 
confidence in the process and removal is not necessary.
    But if there comes a situation where somebody does 
something that Senator Thompson thought was absolutely the 
worst case of prosecutorial misconduct, for some reason, that 
you could imagine, and that you thought the same and Senator 
Levin thought the same, and we all agreed this person should be 
removed, I think there has got to be that power to remove.
    Senator Lieberman. But maybe we are all wrong and maybe 
that person ought to still have the opportunity to appeal that 
decision.
    Attorney General Reno. Again, those are issues that we 
could explore in terms of the regulation and what might be 
necessary. But let us put it on paper for you and let us 
consider it. Again, as you read Morrison v. Olson, as you 
consider the enormity of the power of the prosecutor, we want 
to try to devise some system that focuses responsibility, 
provides for some independent judgment, and yet is consistent 
with the Constitution.
    Senator Lieberman. My time is definitely up. Thank you.
    Chairman Thompson. Thank you very much. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Attorney General Reno, I really do respect your right to 
change your mind; all of us do from time to time based on 
experience. But I have to tell you that I think you had it 
right back in 1993. I think wisdom, in fact, came early to you 
on this issue when you stated that, ``While there are many 
legitimate concerns about the costs and burdens associated with 
the Act, I have concluded that these are far outweighed by the 
need for the Act and the public confidence it fosters.''
    You went on to say that, ``It is absolutely essential for 
the public to have confidence in the system, and you cannot do 
that when there is a conflict or appearance of conflict in the 
person who is, in fact, the chief prosecutor. There is an 
inherent conflict here, and I think that is why the law is so 
important.''
    I agree with your earlier comments on this. Don't we have a 
problem whenever the Attorney General is called upon to 
investigate her boss or a colleague in the Cabinet? Don't we 
have an inherent conflict of interest that doesn't go away as 
long as you are the person making the appointment? In other 
words, even if you appoint a special counsel, as long as you 
are the appointing authority, isn't there at least a perception 
of a conflict of interest that is harmful to public confidence?
    Attorney General Reno. Senator Thompson sees a conflict of 
interest in my failing to do something. What I have come face 
to face with, Senator, is that the conflict exists in the Act 
now. Senator Thompson says that I should have sought the 
appointment--not appointed--of an Independent Counsel in the 
campaign finance case.
    Chairman Thompson. General Reno, just a point of 
clarification. I think the conflict has to do with your 
relationship to the other party. It doesn't have to do with 
your particular decision that you might make.
    Attorney General Reno. No, but I have a conflict. Senator 
Thompson, as I understand it, believes I have a conflict and 
that I should seek the appointment. I have a conflict in 
investigating the President and I should seek the appointment.
    Senator Collins. But what I am saying is there is an 
inherent conflict. No matter how high the integrity of the 
Attorney General, there is an inherent conflict just because of 
the relationship.
    Attorney General Reno. And what I am saying is that I agree 
with you that there are conflicts. I can't figure out how to 
get the Attorney General out of that situation and still comply 
with the constitutional mandates of Morrison v. Olson. They 
make the point that it is--one of the points made by the Court 
is that the Attorney General triggers the Act and that that 
decision is not reviewable. They also point out that the 
Attorney General can remove for good cause, and that that is 
reviewable. Those are two points where the Attorney General 
remains in the system, and I can't figure out how to avoid a 
conflict and still pass constitutional muster.
    Senator Collins. But what I would contend is that that 
conflict and the appearance of the conflict is greatly 
exacerbated if the Attorney General or her appointee is making 
all the prosecutorial decisions along the way. I think the 
point is you have been subject to a great deal of criticism for 
your decision not to appoint an Independent Counsel in the 
campaign finance case. That criticism has come not just from 
members of Congress, but from editorial writers across the 
country.
    Attorney General Reno. You don't pay any attention to 
those, do you, Senator? [Laughter.]
    Senator Collins. But my point is a serious one. If you 
receive that much criticism making just the threshold decision 
on whether or not the Independent Counsel law is triggered, 
think what the cloud of suspicion and the public skepticism 
would be if, in fact, you or any Attorney General were taking 
the case to conclusion. I mean, to me, public confidence would 
be shaken in such a system.
    Attorney General Reno. Let me give you an example of what 
an Attorney General can do because as I stressed in my opening 
remarks, I am not suggesting to you in any way that there won't 
be cases where there should be independent judgment. And if I 
were the Attorney General, I would review carefully. I would 
probably try to seek a person from the other party. I would 
review the background. I would look for prosecutorial 
experience. And I would make sure that the person was well 
qualified to pursue the investigation and the prosecution, and 
that they had the resources, that they had an appropriate 
budget, that they were accountable for it. And I think I would 
achieve more than what I achieve now, where responsibility is 
divided and the accountability process is fragmented. It can't 
get any worse, Senator.
    Senator Collins. Well, let me make the point----
    Attorney General Reno. And I would also point out to you, 
you all are saying everybody thinks I was wrong on the campaign 
finance decision. There are a whole bunch of people that think 
I was right. I don't total up the numbers. That is not the way 
to make a judgment about justice. I just try to make the best 
judgment I can.
    And one of the good things about--you speak of editorial 
writers. If you are on the national scene, there are going to 
be some that say you did right and some that say you did wrong. 
So I am just trying to devise a process that recognizes you 
can't get the Attorney General out of it and still have 
something that passes muster with the Constitution. And if I am 
going to be responsible, I would like to be responsible.
    Senator Collins. Let me turn to a couple of other issues in 
my remaining time. Senator Lieberman and I have both in 
previous hearings raised the issue that if an Independent 
Counsel decides not to bring charges against the target of the 
investigation, there is widespread public acceptance of that 
decision. There is no cloud of suspicion, and indeed in most 
cases that has been the experience. Most recently, we think of 
the clearing of Eli Segal by the Independent Counsel.
    Do you really think that the public would have the same 
degree of confidence if those decisions not to bring charges 
were made by the Justice Department? Don't you think it 
enhances the public's confidence that the decision was the 
correct one, that it was not tainted by politics, when the 
decision is made by an Independent Counsel rather than by the 
Justice Department?
    Attorney General Reno. I think the Justice Department can 
appoint the Independent Counsel in that situation.
    Senator Collins. But in that situation--and I don't 
question in any way that you would do your best to appoint 
someone who would do a first-rate job, but there is still the 
appearance problem as long as you----
    Attorney General Reno. There is an appearance now. I am 
being asked why don't you do something with respect to an 
Independent Counsel?
    Senator Collins. We don't have the appearance problem in 
cases where you have triggered the statute and the Independent 
Counsel has ended up clearing the high-ranking official.
    Attorney General Reno. I think you can have a process as 
long as the Attorney General is involved, I mean has to be 
involved. I just think you can have a process that is designed 
to merit public confidence. There are going to be decisions; 
there are going to be political decisions that get everybody 
upset and Democrats are going to be against Republicans. And 
maybe we can't avoid controversy in all of these situations, 
but by focusing responsibility, by holding people accountable, 
by focusing accountability, I think we can really make a 
difference.
    And one of the problems that you have by saying, oh, let's 
appoint an Independent Counsel to clear a person--that 
oftentimes means that that person is subject to a long, 
involved investigation, again with very little limits on it. 
And there again should be accountability for it.
    Senator Collins. Don't misunderstand me. I think the law 
needs to be overhauled, and indeed I have been working with 
Senators on both sides of the aisle to try to fix some of the 
flaws. But I really think that we have a need for the 
underlying concept.
    One other issue very quickly----
    Attorney General Reno. Senator, let me just stress to you 
we agree. Where we disagree is how that person is appointed, I 
think, but there will be instances where there should be an 
Independent Counsel. I don't think we disagree on that at all.
    Senator Collins. You know, I think that we seem to forget 
the many examples where the law has worked very well and 
exactly as Congress intended. I have quoted the recent 
Independent Counsel's decision clearing Eli Segal as an 
example. There is an ongoing investigation of Secretary Herman 
by a very distinguished lawyer from Portland, Maine, who has 
conducted his investigation so quietly, so far from the public 
spotlight, that no one remembers that it is ongoing.
    It seems to me that if you look at the history of this Act, 
with a very few exceptions that are not the rule, it has worked 
reasonably well; that the majority of Independent Counsels have 
completed their job in a timely fashion, at a reasonable cost, 
and quietly, outside of the public spotlight.
    You testified 6 years ago that it isn't valid to criticize 
the Act for what politics has wrought, nor expect the Act to 
solve all crises. Hasn't the law, in fact, if you look at its 
entire history, worked quite well?
    Attorney General Reno. I think if you said to a 
prosecutor--if you said to the prosecutor in Bangor, Maine, I 
agree with 51 percent of your cases and you have done right in 
those, or a majority of the cases, but there have been abuses 
in the other cases, but the majority wins, that is not the way 
we should judge prosecution. We have got to develop the best 
possible system we can under our Constitution that ensures 
justice for everyone, not just for a majority.
    Senator Collins. And that systems needs to ensure public 
confidence as well.
    Attorney General Reno. And we agree, and I would like to 
work with you in every way that we can. I am just telling you 
from the vantage point of someone who would like to have the 
responsibility as long as I am being held accountable, I think 
we can devise and work together to come up with a system that 
addresses your concerns, addresses the concerns that I have 
referred to, and goes a long way toward ensuring public 
confidence in the system.
    Senator Collins. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman. When this law was 
first written and during each of its reauthorizations, we built 
in or we attempted to build in limits on the powers of the 
Independent Counsel. We built in limits on how long somebody 
would be holding office, at least some mechanism that we 
thought would bring these investigations to some kind of an end 
with a 2-year rule that the court was required to follow or 
that you could trigger. We put in some limits on expenditures, 
we thought, with GAO reports on office space.
    But the limit that was built in at the beginning of this 
law was that the Independent Counsel must follow the practices 
of the Department of Justice. In Morrison v. Olson, the Supreme 
Court held that this law was constitutional based on mainly 
four elements in the law, all involving the Attorney General.
    Each one of these involved the power of the Attorney 
General to make sure that this person is, in fact, accountable; 
that there is a check on the power of this person; that the 
Independent Counsel is, in fact, in the Executive Branch, 
subject to the powers of the Attorney General, for instance, 
one, to seek his appointment--only you can do that; two, to 
remove from office for good cause; only the Attorney General 
can do that; three, with limited jurisdiction, as defined by 
the court based on facts which the Attorney General submits; 
and, four, the requirement that the Independent Counsel follow 
the policies of the Department of Justice.
    Now, each one of those rests on your action, and so the 
Attorney General is, as you just put it a moment ago, in the 
center of this. And this Act would not pass constitutional 
muster, as you put it, unless the Attorney General were 
involved in the ways that the Supreme Court found in Morrison 
v. Olson. And I want to focus on why these haven't worked.
    In my judgment, Independent Counsels have gone on too long, 
have spent too much, have abused power, have not followed the 
policies and practices of the Department of Justice too often. 
And I would like to try to find out why these limits on the 
prosecutorial power of the Independent Counsel have not worked.
    First, in terms of following the policies of the Department 
of Justice--and, again, nobody else can enforce this but you. 
Some of the targets of the Independent Counsel have tried to 
enforce this particular requirement, without success, in court. 
So it is left to you to enforce the requirement that the 
Independent Counsel follow the policies of the Department of 
Justice.
    My first question is this. During your term of service, 
have there been instances, in your judgment, where Independent 
Counsels failed to comply with established Justice Department 
policies?
    Attorney General Reno. Senator, I don't think I can comment 
on that as these are all----
    Senator Levin. I am not going to ask you at this point to 
identify those instances. I am simply asking you a generic 
question whether or not, in your judgment, during your term 
there have been instances where Independent Counsels have not 
followed the policies of the Department of Justice.
    Attorney General Reno. I do not think I can answer that 
question conclusively at this point.
    Senator Levin. Conclusively?
    Attorney General Reno. That is correct, sir.
    Senator Levin. Does that mean you can't give us an answer 
as to whether there have been instances or not? I am not asking 
you how many instances. I am just simply asking you--we are 
trying to determine whether this Act can be salvaged, whether 
it ought to be modified, whether we should have a different 
mechanism.
    And the Supreme Court said there were four fundamental 
pillars of constitutionality of this Act, and one of them was 
that the Independent Counsels must follow the established 
policies of the Department of Justice. Only you can enforce 
that, and I am asking you whether or not--and again I am not 
asking you to give us the instances, just have there been 
instances, in your judgment, where the established policies of 
the Department of Justice have not been followed by the 
Independent Counsel?
    Attorney General Reno. I would stick by my previous answer.
    Senator Levin. All right. The Supreme Court also noted that 
one of the key elements in supporting the constitutionality of 
the Independent Counsel law is the limit on the Independent 
Counsel's jurisdiction--``The jurisdiction of the Independent 
Counsel is defined with reference to the facts submitted by the 
Attorney General.''
    Now, I want to ask you about a specific case that we are 
all familiar with and you are all familiar with, and that has 
to do with the Lewinsky matter where the Independent Counsel 
wired Linda Tripp for a taped conversation with Monica Lewinsky 
and offered Linda Tripp immunity at the same time without 
having jurisdiction over that investigation. My question of you 
is did that comply with the Supreme Court's requirement in 
Morrison v. Olson that the grant of jurisdiction of the 
Independent Counsel is defined with reference to the facts 
submitted by the Attorney General?
    Attorney General Reno. I will not comment on that matter. 
It is still open.
    Senator Levin. I am trying to figure out why you can't 
comment. Is there a criminal investigation going on? You can 
comment on your relationship with Independent Counsels, unless 
there is some kind of a----
    Attorney General Reno. Mr. Starr still has----
    Senator Levin. Excuse me, if I could finish my question.
    Attorney General Reno. Sorry.
    Senator Levin. I am trying to find out why we can't gain 
from you your experience in terms of implementing these 
critical aspects of the Independent Counsel law which, in the 
Supreme Court opinion in Morrison, made it constitutional. And 
you are the only one who can give us this experience, and 
unless there is a criminal investigation going on I am trying 
to understand why you can't share with us the specifics of your 
relationships, or even a general comment on your relationships 
with the Independent Counsel.
    Attorney General Reno. Mr. Starr still has matters relating 
to Ms. Lewinsky, such as the upcoming trial of Ms. Steele, and 
I do not think it would be appropriate for me to comment. I 
understand exactly how you feel and your frustration, and I 
look forward to the day when I can properly discuss it. But I 
don't think I can discuss it.
    Senator Levin. Even though I am not asking you about the 
Steele matter?
    Attorney General Reno. I do not think I can discuss any 
matter relating to that situation because I do not want to do 
anything that would interfere with the investigation or the 
pending prosecution.
    Senator Levin. In this Committee's 1993 report, we 
expressed our concern that the Department of Justice had failed 
to develop standards and procedures for reviewing an 
Independent Counsel's activities and deciding, if appropriate, 
to remove him or her from office.
    This is what the Committee report said in 1993. When asked 
about this matter, the Department of Justice admitted it had 
never developed any standards or procedure for using this 
authority, and expressed little interest in doing so. In 1993, 
when the Committee asked the same question of Attorney General 
Reno, however, she expressed willingness to address this issue 
and develop appropriate standards and procedures.
    And what we are talking about here are standards and 
procedures for determining whether it is appropriate to remove 
an Independent Counsel from office. I don't believe that the 
Justice Department has issued such standards and procedures to 
date, and I wonder if you could tell us why.
    Attorney General Reno. This has been an area of frustration 
for me because you are correct, we have not. I had hoped that 
we would be able to move into the reauthorization of the Act, 
if you determined to reauthorize it in 1994, and that we would 
have the opportunity to do it in a situation where it was not 
done in the context of a particular case. One thing led to 
another and it never seemed to be the appropriate time to be 
addressing it. I assume responsibility for that.
    Senator Levin. One of the alternatives which is being 
looked at in order to keep a credible investigation of the 
high-level official against whom there is significant credible 
information of wrongdoing is to utilize and strengthen the 
office of the Public Integrity Section. And one of the 
possibilities in this proposal is that we make the head of that 
Section have a fixed term of 5 years or 7 years, possibly make 
that person subject to confirmation by the Senate, and provide 
for reporting not only to the Attorney General, but also to the 
Congress by that person, as we currently do with Inspectors 
General.
    I am wondering if you could give us your reaction to that 
proposal.
    Attorney General Reno. I am concerned that the proposal 
would be unworkable and would, in fact, increase political 
pressure. If the Attorney General did not have the power to 
remove the chief of the Section, it could violate the 
separation of powers doctrine.
    But setting that issue aside, it would create enormous 
administrative difficulties to have a section chief equal in 
rank to the Assistant Attorney General for the Criminal 
Division. In effect, this could create a section chief who 
would not be obligated to follow the directives of the head of 
the Criminal Division. The proposal would seriously warp 
established lines of reporting and authority within the 
Department and would create a section chief who outranks the 
Deputy Assistant Attorney General, to whom he or she reports.
    Most of the matters that the chief of the Public Integrity 
Section handles have nothing to do with high-level 
administration officials. Although I think this proposal is 
done with an effort to achieve what we are all trying to 
achieve, it would create far more problems than it would solve.
    Senator Levin. Thank you. My time is up.
    Chairman Thompson. Thank you very much. Senator Specter.

              OPENING STATEMENT OF SENATOR SPECTER

    Senator Specter. Thank you, Mr. Chairman.
    Attorney General Reno, I would like to discuss with you 
some ideas on modifications of the Independent Counsel Statute. 
From comments that you have already heard, I believe that there 
are quite a number of Members of this Committee who favor 
reauthorization. I think it is fair to say that as the hearings 
have progressed, some who were initially opposed are starting 
to rethink that opposition so that we might most usefully focus 
on changes which might be made. And I would be interested in 
your experience on formulating those changes.
    It may be that you were too persuasive when you testified 
back in 1993 on the reasons for the Independent Counsel 
Statute. And in rereading your testimony today, I believe that 
you articulated at that time the reasons which are very much in 
many of our minds when you talked very emphatically about it is 
absolutely essential for the public to have confidence in the 
system, and you cannot do that when there is a conflict of 
interest or the appearance of impropriety; referred to the 
inherent conflict.
    Your comments were very strong--``fully support reenactment 
of the Act.'' You concluded that the disadvantages are far, far 
outweighed by the need for this Act and the public confidence 
which it fosters. And then you quoted Archibald Cox, who said, 
``The pressure and the divided loyalty are too much for any 
man. And as honorable and conscientious as any individual might 
be, the public would never feel entirely easy about the vigor 
and thoroughness about the investigation.''
    And you made a comment that things can't get any worse. I 
believe that notwithstanding the differences, there has always 
been a civil dialogue when you have appeared before this 
Committee or the Judiciary Committee on oversight. And I think 
things can get worse, illustrated by the experience of the 
Saturday Night Massacre and the matters that Archibald Cox was 
talking about.
    And when you propose to have a special prosecutor appointed 
by the Department of Justice and you talk about the limitations 
of resources, something that I understand very well, having 
been a district attorney, and the choices that have to be made 
and prosecutorial discretion, you are going to have similar 
considerations if you have a special prosecutor within the 
Department, unless somebody is going to tell that special 
prosecutor what to do.
    And I think a very significant statement of your prepared 
text is, ``It does not mean that the Department considers 
itself capable of pursuing in the ordinary course each and 
every allegation of corruption at the highest levels of our 
government. We know that sometimes a special prosecutor is in 
order.'' So giving that to the Department of Justice restates 
the issue, and it is a very tough matter on independence versus 
accountability. But my own judgment is that we need to retain 
the Independent Counsel Statute.
    I have asked you the question that Senator Levin broached 
again this morning with respect to expanding the jurisdiction 
of Judge Starr. I asked that question last July 15 in the 
Judiciary Committee oversight hearing, where you said, ``The 
application speaks for itself, Senator.'' And I have since 
referred to the application for the expansion of jurisdiction 
that I quoted to you last Friday when we had a Judiciary 
Committee hearing, at which time you said you were not prepared 
to talk about the Independent Counsel, but had come prepared to 
talk about the budget.
    And in asking the question and in pursuing the subject, I 
do so not in context of revisiting the expansion of Judge 
Starr's jurisdiction, but in trying to figure out what we do 
next time around. I believe that we ought to limit the 
Independent Counsel for a full-time job and for 18 months, 
unless expanded for cause, and some restrictions which we have 
learned from our experience.
    But the expansion of jurisdiction for Judge Starr appeared 
to me to be very problemsome at the time. And contemporaneously 
with the expansion, I have said that I thought it was unwise, 
widely interpreted to be a criticism of Judge Starr, which it 
was not, because you had Travelgate and you had Filegate and 
you had Whitewater. You had so many matters where there was a 
public perception of a vendetta between Judge Starr and the 
President.
    And in your application you said, ``It would be''--this is 
the application to the Special Division to expand the 
jurisdiction--``It would be appropriate for Independent Counsel 
Starr to handle this matter because he is currently 
investigating similar allegations involving possible efforts to 
influence witnesses in his own investigation. Potential 
subjects and witnesses in this matter overlap with those in 
this ongoing investigation.'' Three times, you refer to the 
plural of ``subjects,'' ``witnesses,'' and ``witnesses'' again. 
Having studied the Starr report in some detail, the only 
overlap which he had noted was one where Vernon Jordan had 
sought a job for Webster Hubbell with Revlon, which was 
identical or very similar with Mr. Jordan's seeking a job for 
Ms. Lewinsky with Revlon.
    So the question is what can we learn from that experience 
which will guide us in trying to restructure this statute, if 
there is a majority of the Congress which seeks to do so. And I 
would be very appreciative of your assistance on this matter 
because, like Senator Levin, I do not believe that it 
implicates in any way the Steele prosecution or any matters 
which are now pending.
    Attorney General Reno. I will be happy to pursue it with 
you as circumstances permit me to. I do not think that I can 
address that issue now and not interfere with the investigation 
and the matters being handled by the Independent Counsel.
    Senator Specter. Well, Attorney General Reno, what is the 
interference? This is a closed matter. The application has been 
submitted to the special court. There are representations which 
you have made on the record.
    Attorney General Reno. I will do this, Senator. I will 
consult with the Independent Counsel and see if there is 
something that I can properly do that would not interfere. 
Otherwise, I do not think I can comment.
    Senator Specter. Well, I would appreciate it if you would 
consult with the Independent Counsel and if you would rethink 
that, because at least on----
    Attorney General Reno. I have been rethinking this issue 
since Friday. I have been sitting there as I have prepared for 
this hearing saying Senator Specter is going to be talking to 
me about this. What can I say? While others are telling me you 
don't have a conflict here, just think of the conflicts you 
will have--and, Senator Collins, this is an example, again, of 
what happens. There is no way out of the Attorney General being 
involved in this process, and I look forward to working with 
you all to try to, either by statute, by regulation, or 
otherwise, improve the system so that people can have 
confidence in the process.
    Senator Specter. Well, while you were sitting there 
thinking about it, I was sitting somewhere else thinking about 
it.
    Attorney General Reno. I knew you were.
    Senator Specter. Let's think about it some more and see if 
we can't find some way to get your experience to help on a 
reformulation.
    Attorney General Reno. I am very anxious to do that, sir.
    Senator Specter. Let me pursue another idea which I have 
had for changes in the Independent Counsel Statute. There has 
been enormous frustration, and I think with the best of intent 
on both sides, as you have declined to appoint Independent 
Counsel in campaign finance reform and as this Committee did a 
laborious job in 1997 on our investigation. And so many of us 
felt so very, very strongly about the need for Independent 
Counsel.
    I had prepared a lengthy complaint in mandamus, recalling 
my days as a district attorney, where there is an outer limit 
to the public prosecutor's discretion. If there is an abuse of 
discretion, there are circumstances where mandamus is in order. 
Some States have statutes providing for appointment of counsel 
by the court where the D.A. fails or refuses to prosecute.
    Now, there have been three district court cases which had, 
in fact, ordered mandamus of the Attorney General to compel 
appointment of Independent Counsel. All three were overturned 
on appeal because of lack of standing. And the proposed 
amendment which I have drafted would provide standing in a very 
limited circumstance for a majority in either Judiciary 
Committee, Senate or House, a majority of the majority or a 
majority of the minority, patterned after the statutory 
provision which authorizes and requires an answer by the 
Attorney General which, of course, falls far short of a 
mandamus action.
    The constitutional requirements are rigorous, but I would 
be interested--aside from any reaction to not wanting to be the 
subject of mandamus, I would be interested in your opinion as 
to whether a statute can--and I know how closely you have 
studied the Morrison case, etc.--whether there is a way that 
you think we could structure a mandamus action which would be 
constitutional.
    Attorney General Reno. Let me look at it carefully because 
I haven't really considered that, and what I would like to do 
is explore it with lawyers at the Department who have real 
expertise in this area. I have concerns because what this is 
doing, again, is becoming involved in a process where the 
executive is responsible for the faithful execution of the 
laws. And for Congress to be able to have standing of any sort 
to become involved in that process is of concern to me. But I 
don't dismiss it out of hand, Senator, and let me get the exact 
language, pursue it, and come over and meet with you on it.
    Senator Specter. Just one more comment, Mr. Chairman, on 
the subject. It is delicate. I think a greater area of delicacy 
comes with the court's intervention. But this is like so many 
other matters. You have a position, articulated in good faith. 
Some of us disagree. The tradition is to go to the court to 
have a judgment made.
    Attorney General Reno. What I am concerned about--and I 
know you see a distinction and I recognize the distinction, but 
the next step will be, Madam Prosecutor, why didn't you 
prosecute that case? The majority of Congress believes that you 
should and we are going to mandamus you to require prosecution 
of the case.
    And I think that creates a very dangerous situation, but I 
don't want to dismiss it out of hand. Let me look at it and 
understand because I recognize the frustration. And I think 
this goes to the larger issues, Senator. We have spent hours 
and hours and hours on an Act that everybody agrees has 
problems with it, so we have got to figure out how we work on 
it. What we should be doing is focusing all our attention on 
the investigation and prosecution of people who should be 
investigated and prosecuted.
    Now, by failing to ask for an Independent Counsel and by 
determining that the law does not permit the invocation of the 
Independent Counsel Act, that does not mean that I don't pursue 
these other investigations. I just think it is important for 
the American people to understand that these other 
investigations are underway, that there are prosecutions 
underway, that we are not sitting back and saying--just because 
we haven't invoked the Act doesn't mean that we are not doing 
our job.
    Senator Specter. Thank you very much, Attorney General 
Reno. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much. Senator Akaka.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. I want to 
express my appreciation to Attorney General Reno for being with 
us today. Throughout these hearings, I have been struck by the 
caliber of witnesses who have come before us, and today's 
hearing is no different.
    Although I know the Justice Department no longer supports 
the Independent Counsel law, I was interested to have the 
opportunity to hear your reasons why the Department has 
withdrawn its support of the Act. I was also pleased to hear 
that the Department is working on developing a plan to deal 
with potential allegations of wrongdoing by high-level 
officials.
    In your 1993 testimony, you supported the concept of an 
Independent Counsel with statutory independence, ``because 
there is an inherent conflict whenever senior Executive Branch 
officials are to be investigated by the Department and its 
appointed head, the Attorney General.'' I agree that even the 
appearance of impropriety is detrimental, and yet I know the 
Department of Justice has a distinguished record of prosecuting 
high-level officials without the aid of an Independent Counsel.
    My question is what are your views on bringing back the 
functions of a special prosecutor to the Department?
    Attorney General Reno. Basically, I support--when you say a 
special prosecutor for the Department, what I support is 
placing the responsibility in the Attorney General to, in those 
cases where it is deemed appropriate, seek an outside counsel, 
appoint an outside counsel. Again, I use the example that we 
have pursued in the one case in which I did so, in which we sat 
down after a comprehensive review of potential candidates, 
selected a person of great, good reputation, of experience as a 
prosecutor.
    He was very emphatic that he would have, if you will, a 
charter about his jurisdiction, his authority, his 
responsibility. And we made it very clear that he would have 
broad responsibility, and we defined it. We made sure that he 
would have the resources. And I think we can achieve the same 
results, and better results, if we have responsibility for the 
process focused on the person who is involved, and again that 
is the Attorney General.
    As Senator Levin pointed out, there is no getting around 
the fact that the Attorney General has got to be involved in 
the process if the process is to be constitutional. I want to 
try to work with you all to work--there is a conflict one way 
or the other and we have got to minimize it and do the best we 
can to come up with something that will give greater confidence 
to the people.
    Senator Akaka. One concern that we all have in this is 
political influence. I am concerned about the appearance of 
conflict whenever anything is done. Obviously, the reason for 
the Act was to fully investigate allegations and evidence of 
wrongdoing by high-level elected officials without influence 
from the President.
    Do you believe that public confidence would be restored if 
such investigations were returned to the Justice Department?
    Attorney General Reno. I think it would go a long way 
because then the person who has responsibility under the three 
branches of government would have the authority to ensure that 
the process was done the right way. I think, again, those 
Senators who have made comments that there are going to be 
cases that no matter what you do, there are going to be 
problems--I think that is true and we will not be able to avoid 
all of those.
    But it would be a much more sensible situation, rather than 
creating, as this Act has created, a prosecutor with enormous 
power that does not belong to one of the three branches of 
government. It is as if we have created a fourth branch of 
government, but we have not given that fourth branch full 
responsibility. We have not retained full responsibility in the 
Executive Branch, and that division of authority and division 
of responsibility has, I think, created the problem in people's 
minds.
    Senators Specter and Levin have asked me what have you done 
about this and what have you done about that. Under the system 
that I operated under before I became Attorney General, when I 
was State attorney, once I had recused myself from the case, 
that was it, and it worked well. I don't see how we can do that 
under our constitutional framework.
    Senator Akaka. I am one of the members who is concerned 
about what would happen if we don't reauthorize the Independent 
Counsel Act and what would happen after that. Hopefully, your 
Department will be creating a plan that will help us make that 
transition.
    Attorney General Reno. We are in the process of doing so, 
and I look forward to submitting it to the Chairman, Senator 
Lieberman, and Members of the Committee so that we can review 
it and get your input and try to fashion something that will 
address the concerns of all.
    Senator Akaka. Along similar lines, Common Cause proposed 
returning cases involving allegations and evidence against 
high-level Federal officials to the Criminal Division of the 
Justice Department, with final review authority given to the 
Assistant Attorney General for that Division. Do you believe 
that the Criminal Division can conduct investigations without 
interference from the Attorney General and those outside of the 
Division?
    Attorney General Reno. I think the Criminal Division does a 
wonderful job of conducting investigations, and just the record 
of the number of people that they have convicted for public 
corruption cases in these last decades is an example.
    The Assistant Attorney General of the Criminal Division is 
appointed by the President, and once you shift responsibility 
from the Attorney General to the Assistant Attorney General, 
appointed by the President, we are going to be right back here, 
only it won't be me sitting in this seat, 10 years from now, 
saying probably the same thing because that doesn't shift the 
issue.
    The problem still is that you have got to have authority 
within the Executive Branch. If you limit the authority within 
the Executive Branch so that the President or the Attorney 
General cannot remove a head of the Criminal Division, then you 
raise constitutional questions about the President's 
responsibility for faithfully executing the laws. It is a 
difficult issue and I don't think moving the boxes around is 
going to solve the problem.
    Senator Akaka. The Act gives tremendous authority to a 
prosecutor who may lack appropriate experience or who has been 
confirmed by Congress and who may ignore the oversight 
authority inherent in the Act after the last reauthorization. 
There has been widespread criticism of some recent Independent 
Counsel investigations as being too far-reaching, too costly, 
and lacking accountability.
    I know you have focused on responsibility and 
accountability as being very important. If we were to 
reauthorize the Act, how would you restructure the Act so that 
future prosecutors are independent and yet accountable to the 
public and Congress, and to maintain their faith in impartial 
justice and to keep the public confidence?
    Attorney General Reno. One of the steps that I have--the 
only comment that I have made from the beginning is the comment 
that there should be budget control of the Independent Counsel. 
This is not to suggest that because a very important case is 
involved that they shouldn't get money. It should be that the 
Independent Counsel should be responsible just like all other 
public officials are for developing a budget for which he is 
accountable. I think that is one step.
    I think if you were to reauthorize the Act, some time 
limitation with the subject for renewal would be appropriate. I 
think that there has got to be a process where we clarify--and 
Senator Levin had raised the point that the Independent Counsel 
is required to comply with the policies of the Department. Not 
all of those policies are mandatory, but of those that are 
mandatory the Act specifically says ``except when it will 
interfere with the purposes of this Act.'' So it gives a great 
exception. I think that that has got to be clarified so that 
the person, if you reauthorize the Act, who is the Independent 
Counsel has the same responsibilities, the same authorities, 
the same policies governing him or her that all prosecutors 
have throughout the country.
    Senator Akaka. Thank you very much, Mr. Chairman.
    Chairman Thompson. Thank you.
    Attorney General Reno. I would also point out one point 
with respect to the Common Cause suggestion. The system we have 
now is for the Assistant Attorney General for the Criminal 
Division to be responsible for that Division that has a wide 
range of responsibilities that have primarily a national scope.
    But then there are 93 U.S. Attorneys across the country who 
are also appointed and confirmed by the President who have 
responsibilities. Again, we have got to be very careful as we 
approach these issues. This is an interesting proposal, and we 
would again like to pursue that along with all the others to 
see what we can come up with that best achieves what we all 
want, which is confidence in the system.
    Senator Akaka. Thank you for these frank and 
straightforward answers. Thank you.
    Chairman Thompson. Thank you. Senator Durbin.

              OPENING STATEMENT OF SENATOR DURBIN

    Senator Durbin. Thank you, Mr. Chairman. Thank you, Madam 
Attorney General, for joining us today. Like yourself, I have 
had second thoughts about this statute and have stated publicly 
that I would not vote to reauthorize it.
    I was intrigued by your Justice Frankfurter quote. I can 
give you another one. When Abraham Lincoln was accused of the 
same weakness in changing his position, he stated, ``I'd rather 
be right some of the time than wrong all the time.'' And I have 
used that quite a bit in my public career.
    I would like to make one observation and then two 
questions. The first by way of observation is you have said a 
lot about the budget of the Independent Counsel. I would like 
to ask you, as I understand it, the Criminal Division of the 
Department of Justice has an annual appropriation of 
approximately $100 million, and within that Criminal Division 
another $30 million of the $100 million is dedicated to white-
collar crime. And within the white-collar crime section, $5.4 
million, roughly, is dedicated to the Public Integrity Section, 
so about $5.5 million a year to that section of the Criminal 
Division.
    In your own words, what would you describe as the 
responsibility of the Public Integrity Section of the 
Department of Justice?
    Attorney General Reno. The Public Integrity Section is 
responsible for establishing the policies and procedures and 
providing the consistency with which public officials are 
investigated and prosecuted in this country. They work with the 
U.S. Attorneys around the country to ensure that these cases 
are appropriately handled. And where a U.S. Attorney will 
recuse themselves or for other reasons, because the Public 
Integrity Section was in the case from the beginning, they may 
prosecute the case. They have broad responsibility and they do 
an excellent job.
    Senator Durbin. And, of course, their jurisdiction applies 
to public officials at every level if there is a violation of 
Federal law.
    Attorney General Reno. That is correct.
    Senator Durbin. And it is my understanding that the Public 
Integrity Section, with its $5.4 million annual budget, has 
some 43 employees. The reason I wanted to make that a part of 
the record is I wanted to draw the contrast with what we have 
done with the Independent Counsels--the appointment of Mr. 
Adams for 8\1/2\ years, the expenditure of $28 million during 
that period of time; Lawrence Walsh, 6\1/2\ years, the 
expenditure of $48 million during that period of time; Mr. 
Starr, for more than 4 years now, some $33 million of his 
expenditures, $6 million of his predecessor, Mr. Fiske, for $39 
million, plus; and Mr. Smaltz, whose jurisdiction as an 
Independent Counsel went for more than 4 years and he spent 
more than $17 million.
    The reason I wanted to make that part of the record is that 
I think you have made a very valid point. If you are being 
given literally $5.4 million a year in the Public Integrity 
Section of the Department of Justice to oversee the 
administration of justice and elected and appointed officials 
nationwide, and we are giving to these Independent Counsels 
these vast sums of money, virtually unaccountable and 
unchecked, I think your point is well made.
    I might also add, Mr. Chairman, that I know the Attorney 
General has been kind enough to sit in the hot seat here with 
some frequency before this Committee and the Judiciary 
Committee. I really hope, in pursuing the goal of a balanced 
and complete hearing, that we will invite to this hot seat some 
of these Independent Counsels. I would like to have Mr. Starr 
here to explain his budget. I would like to have Mr. Smaltz 
here to explain some of the comments he made about the validity 
of indictments as opposed to prosecutions.
    I would like to have examples of targets here, and I can 
tell you that the Secretary of Agriculture, Michael Espy, has 
told me personally he is prepared to come and testify and tell 
what his experience was, having been a target for more than 4 
years by an Independent Counsel. I think that would give to 
this hearing a great deal of credibility, and I sincerely hope 
that the Committee and the Chairman will consider that.
    Attorney General Reno. May I just make a suggestion? I 
don't have the Public Integrity Section's budget right off the 
top of my head, so I am not sure just exactly what it is. Let 
me confirm it with you, if I may.
    Senator Durbin. I would be happy to. My staff did check on 
that and I think that figure is very accurate.
    Two questions I have of you, Madam Attorney General. I 
thought that your statement was very clear and compelling when 
you said that accountability is no small matter. I believe the 
difference between democracy and tyranny is accountability. We 
pride ourselves on checks and balances, and you make it clear 
in your testimony that there is a serious shortcoming in this 
law when it comes to the checks and balances and accountability 
of an Independent Counsel.
    I listened to the question asked by Senator Levin and your 
response, but I want to see if perhaps I can term this question 
from a different perspective in a way that you might be able to 
respond to it. Do you believe that the current law gives the 
Attorney General adequate authority to restrain Independent 
Counsels who ignore or exceed Department of Justice policy?
    Attorney General Reno. There are some policies, just taking 
it generally, not applying to a particular case--I just would 
like to read the language to you. I will get that for you in a 
moment.
    Some of our policies are not mandatory, so there may be 
policies that they--there may be exceptions to the policies. 
But I clearly think that the person who is the Independent 
Counsel should be required to do what other prosecutors do 
around the country with respect to policy, procedures and 
process. The statute provides that he shall follow the policies 
of the Department, except where inconsistent with the purposes 
of this Act. And that creates a significant exception that is 
subject to considerable interpretation.
    Senator Durbin. I heard that comment by you before, and you 
think--I don't want to put words in your mouth, but you would 
suggest that is a major loophole in terms of the enforcement of 
Department policies when it comes to Independent Counsels?
    Attorney General Reno. Yes.
    Senator Durbin. Who is responsible within your Department 
of Justice for working with the Independent Counsels when it 
comes to following the departmental policies? Is there one 
person assigned to each Independent Counsel?
    Attorney General Reno. It will vary from situation to 
situation. There may be calls--in some cases, Mr. Keeney, for 
example, has been the person who has been the contact point. In 
other situations, it will be Mr. Robinson. It will be a variety 
of people, depending on the circumstances and depending on the 
particular issue.
    Senator Durbin. Has it been your experience that 
Independent Counsels have sought your advice or counsel in 
terms of following Department of Justice policy?
    Attorney General Reno. A number of them have been very 
anxious to do so.
    Senator Durbin. Thank you. The last question I have of you 
relates to an amendment which Senator Torricelli and I and 
several others will be offering perhaps very soon related to 
the future of the Independent Counsel, not just the statute, 
but those who are currently authorized by that statute to 
continue in their work.
    Senator Torricelli and I and others believe that it is time 
to bring this to a close, not just in terms of the end of the 
statute but the end of their jurisdiction. And we are hoping 
that a majority of the Senate will agree with us that the 
responsibilities of these Independent Counsels should be 
returned to the Department of Justice, and particularly to the 
Public Integrity Section.
    We talked earlier about your authority, absent the 
Independent Counsel Statute, to appoint an Independent Counsel. 
And if I am not mistaken, you did as much in appointing Robert 
Fiske in January 1994, and he continued for some 7 or 8 months 
while we were reauthorizing this statute.
    If our amendment prevails and these matters are returned 
from the offices of the Independent Counsels to the Department 
of Justice, is it your belief that you have adequate authority, 
if necessary, to appoint Independent Counsels and continue 
those investigations which you think are necessary?
    Attorney General Reno. Well, when you say continue the 
investigations, my understanding of the Act is that it provides 
for the continuity of the existing investigations under the law 
as it is. But with respect to new matters, what we are engaged 
in doing is developing a proposed set of regulations that we 
would like to share with you to show you how we would propose 
to exercise the power under the law, recognizing, as I would 
like to stress again--some people think that by advocating 
letting the law lapse that we are advocating a situation where 
we would never ask for an Independent Counsel. I think we have 
got to be able to do that. I think it will happen as we have 
seen it happen in history, and we would have regulations in 
place that would govern it.
    Senator Durbin. My question relates specifically to those 
ongoing Independent Counsels who, if we terminated funding for 
Independent Counsels and referred these matters to the 
Department of Justice--my question is whether or not you 
believe that you have the authority under existing regulation 
and law to continue such investigations which are currently 
underway by Independent Counsels, whether or not you need any 
additional authority to do that?
    Attorney General Reno. Yes, I think I have the authority to 
handle those cases. If you terminated the funding and made 
clear--and I am not sure that an amendment would be necessary, 
but by letting the law lapse, I think there might have to be 
some language that permitted us to take it over. But if you let 
the law lapse, if you fail to provide funding, I think we have 
the inherent authority to pursue it and we would.
    Senator Durbin. Well, Senator Torricelli, I am sure, is 
going to follow up on this, and that is exactly what we are 
seeking to do with this amendment. So the critics of the 
amendment, if there are any--I hope there aren't, but there 
might be--should know that on the basis of your testimony that 
those meritorious ongoing investigations would not be 
interrupted and could continue under the auspices of the 
Department of Justice. Thank you, Mr. Chairman.
    Chairman Thompson. As a matter of policy, do you think it 
would be wise for Congress to terminate current ongoing 
investigations regardless of what happens after that?
    Attorney General Reno. I think that since these 
investigations are underway that they should probably be 
concluded under the current framework.
    Chairman Thompson. Senator Torricelli.

            OPENING STATEMENT OF SENATOR TORRICELLI

    Senator Torricelli. Thank you, Mr. Chairman. First, Madam 
Attorney General, I would like to extend some thanks. My State 
has had a terribly wrenching ordeal in the recent months on the 
question of racial profiling. Last week, Eric Holder met with a 
group of citizens from my State representing the civic, 
religious and political leadership to assure them that the 
Department of Justice was mindful of this problem and providing 
some oversight. For that, I am very grateful for Mr. Holder's 
time and his advice, and for the Department's. It has been very 
helpful to the people of my State.
    Second, while I intend to use most of my time to address 
the question of Independent Counsel, I am mindful of the fact 
that most people in Washington who are thinking about the 
Department of Justice on this day have their minds on the 
question of espionage. And if not in the nature of a question, 
then briefly as a statement I want to make several points.
    It appears to me that something of rather extraordinary 
historic significance is now unfolding. The people and the 
government of our country have not been served well. It is for 
President Clinton to reach judgment about whether his 
subordinates served him and the country properly. They are in 
his employment and not subject to our advice and consent. I 
focus separately, but I believe of equal importance on this 
matter on the question of the Department of Justice's own 
involvement, since you do have the advice and consent of the 
U.S. Senate. And I believe the record is troublesome.
    It took 1 year for the FBI to report on measures to improve 
the security of the Department of Energy. The recommendations 
for those improvements were allowed to languish for 17 months 
without any record of objection from the FBI or the Department 
of Justice that there should be a decision rendered. It took 
until July 1997 for there to be adequate resources provided for 
the investigation. Two years were allowed to lapse before a 
polygraph was administered to Mr. Lee.
    I recognize that there are competing resources in the 
Department of Justice in dealing with criminal investigations 
in the United States, but the possible theft of nuclear secrets 
of this country, providing for a potential rival or adversary 
the resources of this government endangering our people, would 
be difficult to put on a par with any other investigation or 
any other potential matter.
    I have great confidence in Mr. Freeh. I have always had a 
great belief in you and your tenure as Attorney General. But 
there are profound questions here as to why the justice system 
itself did not rise to the occasion, why, with all the 
resources of the FBI and the Justice Department, this matter 
was not addressed more expeditiously, more seriously, and why 
the people and the government of this country were not 
protected.
    I believe it is fair to say that for there to have not been 
adequate resources available by the FBI or the Justice 
Department at a time when the Department of Justice was lending 
so many resources to things which were of high profile and 
political importance, and understandably of considerable 
intellectual or political interest, while the fundamentals, the 
most basic level of protection was not offered in an espionage 
case, may be debated by historians for a long time, but at the 
moment is of considerable import to Members of this Committee 
and the Congress.
    I recognize the sensitivity of the issue. I don't expect 
you to respond, though obviously you are free to do so, though 
there may be little in there which you would like to address. 
But I would pause if there is such a desire.
    Attorney General Reno. Director Freeh is testifying this 
afternoon before a committee in full and I think that the facts 
will unfold. This is obviously a matter--espionage is a matter 
of concern for every American and we want to do everything that 
we can to make sure that there are appropriate responses 
consistent with the law.
    Senator Torricelli. Let me turn then to the question that 
is before the Committee, Madam Attorney General. There are some 
who are now expressing considerable surprise that Mr. Starr's 
investigation may have violated both the procedural 
requirements of the Department of Justice and even statutes of 
the United States. There is no reason for you or