[Congressional Record Volume 141, Number 100 (Monday, June 19, 1995)]
[Senate]
[Pages S8628-S8629]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                      THE INDEPENDENT COUNSEL ACT

 Mr. SIMON. Mr. President, no politician likes to admit that he 
made a mistake in voting for any bill. But, in life and politics, it is 
usually better to be right than to be consistent. [[Page S 8629]] 
  I voted for the Independent Counsel Act when it was enacted in 1978. 
And I voted for it again--although with increasing trepediation--when 
it was reauthorized in subsequent years. But, as many have said, 
experience is the best instructor. And experience has demonstrated to 
my eyes that the Independent Counsel Act is worse than the disease it 
was meant to cure. I have come to the conclusion that it is time for 
the Senate to reconsider--and perhaps even eliminate--the office of the 
independent counsel.
  To be sure, the act was born of good intentions. It was designed to 
counter the conflict of interest--or at least the appearance of a 
conflict--that existed whenever a Federal prosecutor pursued one of the 
President's own officials. It was meant, in short, to ensure that such 
investigations would be carried out solely with the public's interest 
in mind.
  Nonetheless, as Prof. Gerald Lynch of Columbia University argued in 
the Washington Post, the act has not put to rest the charges of bias in 
politically tinged cases. Instead, what has become painfully clear is 
that virtually any suit against a major political player will involve 
charges of favoritism and partisanship, whether or not an independent 
counsels is appointed.
  Even worse, says Professor Lynch, the act has encouraged overzealous 
prosecutions: ``Ordinarily, a prosecutor must ask whether it is fair to 
treat this case as a felony compared to others where the defendant was 
not politically prominent. The special prosecutor has no such 
concerns.'' Three distinguished Attorneys General--Edward Levi, Griffin 
Bell, and William French Smith--have made similar criticism, noting how 
the act ``exacerbates all of the occupational hazards of a dedicated 
prosecutor: the danger of too narrow a focus, the loss of perspective 
of preoccupation with the pursuit of one alleged suspect.''
  In short, 20 years of experience have demonstrated that the cost of 
maintaining the Independent Counsel Act far outweighs its benefits. It 
has aggravated, rather then calmed, the prevailing anti-Government mood 
that prevails in this Nation. As Gerald Lynch concludes, ``instead of 
purifying our governing institutions, special prosecutors play into a 
pathology that thrives on an appetite for scandal and a distrust of our 
system of government.'' And that is perhaps the strongest reason of all 
to reconsider the wisdom and efficacy of the act in its current form.
  I ask that the article by Prof. Gerald Lynch be printed in the 
Record.
  The article follows:
                 Special Prosecutors: What's the Point?

               (By Gerard E. Lynch and Philip K. Howard)

       Just about everybody in the country was focused on 
     terrorism in Oklahoma, but the president of the United States 
     had other pressing business: He was being questioned by 
     independent counsel Kenneth Starr about Whitewater.
       Nothing unusual there. In fact, there has hardly been a 
     time, since passage of the Ethics in Government Act in 1978, 
     when a special prosecutor and his target have not been in the 
     news. Justifying the smallest details of a past transaction 
     or decision has become part of the job description for high 
     executive office, always with the suggestion of public 
     scandal and personal ruin.
       The progress of the manhunt is chronicled in the daily 
     headlines (``Investigation Moves One Step Closer to the 
     President''), but the titillating prospect of bringing down 
     important leaders is not a healthly sign. Instead of 
     purifying our governing institutions, special prosecutors 
     play into a pathology that thrives on an appetite for scandal 
     and a distrust of our system of government.
       The stakes were small in early independent counsel 
     investigations. Who cared whether Hamilton Jordan used 
     cocaine at Studio 54? But the Reagan-Bush administration 
     provided an investigative feast: Did Michael Deaver, Lyn 
     Nofziger or Ed Meese violate conflict-of-interest rules? Did 
     Samuel Pierce preside over a corrupt housing department? Did 
     Iran-contra extend past North, Poindexter and McFarlane to 
     the secretary of defense, perhaps even to Reagan and Bush?
       Cries for new independent investigations have dogged the 
     Clinton administration practically every month. This month 
     it's the secretary of commerce who gets his own special 
     prosecutor. And why not Ira Magaziner--who knows whether he 
     told the whole truth? Future occupants of the White House can 
     expect the same.
       As for actual law enforcement, however, it has been slim 
     pickings. Does anyone remember Thomas Clines, the only Iran-
     contra figure who went to jail? Deaver pleaded to minor 
     charges, and Nofziger's conviction was reversed. Meanwhile, a 
     lot of apparently innocent people have been investigated 
     intensively for a long time. The anemic results are obscured 
     by all the noise and speculation around new investigations, 
     which consume staggering amounts of taxpayer funds (about $10 
     million so far with Whitewater) and whose primary effect is 
     to divert our leaders from the task of governing.
       What, we might reasonably ask, is the point?
       Good government orthodoxy has it that ``special'' 
     prosecutors are needed because the regular Justice Department 
     prosecutors, reporting to a politically appointed attorney 
     general, can't be relied on to prosecute the president's 
     cronies. Special prosecutors supposedly ensure impartiality.
       These premises, plausible enough on the surface, happen to 
     be backward. Deciding to prosecute is not a simple matter of 
     finding that a law has been violated. It is a far more subtle 
     decision, made against the reliable backdrop of hundreds of 
     other cases. Judgment and discretion are at the heart of a 
     prosecutor's job. In a world in which regulations are piled 
     so high that many well-meaning people trip over them, 
     prosecutors must decide every day whether a particular 
     violation is merely technical or is one that requires the 
     awesome step of criminal prosecution. Decisions to prosecute 
     are inextricably bound up in priorities--prosecutors 
     regularly allocate scarce resources to violent and drug 
     crimes at the expense of nonviolent white-collar cases--and 
     necessarily draw on society's norms and values.
       The premise that professional prosecutors will tend to 
     favor the politically powerful is also wrong. Ordinary 
     assistant U.S. attorneys in Maryland brought down Spiro 
     Agnew. Regular Justice Department employees in New York 
     indicated John Mitchell and Maurice Stans. It was one of Rudy 
     Giuliani's assistants, not an ``independent'' prosecutor, who 
     called sitting Attorney General Ed Meese, his own boss, a 
     ``sleaze'' in a prosecution of one of Meese's closest 
     friends.
       The real pressures distorting prosecutors' judgment are the 
     opposite of what reporters and good government editorialists 
     perceive. High officials are the most tempting targets for 
     young prosecutors. Fame and glory (and ultimately a lucrative 
     private law practice) come from handling cases in the 
     headlines.
       But what of the ``appearance'' of partiality? Surely a 
     nonpartisan figure of great repute ensures, if nothing else, 
     that the investigation will be ``above politics.'' Two words 
     refute this claim: Lawrence Walsh. The Iran-contra 
     investigation proved the impossibility of taking a 
     politically sensitive case ``above politics.'' Here we had a 
     special prosecutor of the president's own party, with a long 
     history of moderation and professionalism, a respected and 
     independent figure with a lifetime of achievement in law 
     practice and public service. Surely, his conclusions would be 
     respected by all.
       Hardly. When Judge Walsh began to conclude the president's 
     men were crooks, he was vilified by the president's allies 
     (spearheaded by the Wall Street Journal) as politically 
     motivated and biased. Judge Walsh was predictably defended as 
     impartial by Democrats, but he was no more able to escape 
     imputations of bias than regular prosecutors would have been. 
     Indeed, Judge Walsh became a political symbol.
       The Whitewater case provides an even more extreme example 
     of the elusive search for nonpartisan appearances. The 
     original special prosecutor, Bob Fiske, another establishment 
     lawyer with Republican credentials and a reputation for 
     unimpeachable integrity, drew criticism from Republicans when 
     he did not seem impressed with the case against Clinton. 
     Fiske was then replaced on the impeccable logic of taint-by-
     association: He was not quite ``special'' enough because he 
     had been appointed by Clinton's attorney general. The New 
     York Times, formerly a vigorous proponent of that pristine 
     logic, promptly noted the right-wing Republican connections 
     of the judge heading the panel that dumped Fiske, and 
     attacked his replacement, Ken Starr--another lawyer of high 
     standing and great integrity--as a Republican hack.
       The lesson is clear: Partisan arguments intrude into all 
     decisions involving the political arena. The intense 
     spotlight of the special prosecutor does not illuminate so 
     much as blind.
       In the ordinary case, the U.S. attorney has to ask himself: 
     Is it fair to treat this case as a felony, as compared to how 
     we treated other, similar cases where the defendant was not 
     politically prominent? The special prosecutor has no such 
     concerns. He has only one investigation to pursue, and the 
     unnatural intensity inevitably skews the decision. The 
     smallest infraction can take on a life of its own.
       In the words of three distinguished former attorneys 
     general--Edward H. Levi, Griffin B. Bell and William French 
     Smith--the independent counsel only exacerbates ``all the 
     occupational hazards of a dedicated prosecutor: the danger of 
     too narrow a focus, of the loss of perspective, of 
     preoccupation with the pursuit of one alleged suspect.''
       There may be disputes of constitutional dimesion--
     Watergate, perhaps--where the benefits of special counsel are 
     worth the accompanying diversion and disequilibrium. But in 
     practically all other cases, the discretion and balance found 
     in our ordinary law enforcement system is far superior. And 
     if the people believe that a president or an attorney general 
     has distorted that system to favor his friends, retribution 
     at the hands of political enemies and media interests is 
     never far off.
     

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