[Congressional Record Volume 143, Number 18 (Wednesday, February 12, 1997)]
[Extensions of Remarks]
[Pages E233-E234]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE INDEPENDENT COUNSEL LAW

                                 ______
                                 

                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                      Wednesday, February 12, 1997

  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday, February 5, 1997, into the Congressional Record.

                 Reforming the Independent Counsel Law

       Congress enacted the independent counsel law in 1978 in 
     response to Watergate and the seeming inability of the 
     executive branch to investigate and prosecute crimes by 
     senior administration officials. The independent counsel, 
     appointed by federal judges and working outside the executive 
     branch, was intended to handle such cases in an impartial 
     manner, thus restoring public confidence in the process.
       Since the law's enactment there have been 17 independent 
     counsel investigations at an estimated total cost of over 
     $115 million. Of those 10 ended with no indictments. Four 
     others, including the Whitewater investigation of the 
     President, are ongoing. There were several convictions in the 
     Iran-contra investigation, although some were overturned on 
     appeal.
       Even though the law is not up for review until 1999, 
     Congress is already considering proposals to reform the 
     measure. A House subcommittee held hearings on the law last 
     year, and numerous articles have been written on the issue, 
     particularly in light of the ongoing Whitewater 
     investigation. Some argue that the act has worked reasonably 
     well, while others say it has led to costly and unending 
     investigations and should be overhauled or scrapped.


                           How the law works

       The independent counsel law generally applies to high 
     ranking officials in the executive branch, including the 
     President, Vice President, senior White House staff, and 
     Cabinet members as well as members of Congress. The Attorney 
     General can seek an independent counsel on her own initiative 
     or on receipt of information alleging a violation of federal 
     criminal law.
       The Attorney General conducts an initial review of the 
     matter. If she reasonably believes further investigation is 
     warranted, she applies to a special three-judge panel 
     appointed by the Chief Justice of the Supreme Court, 
     requesting that the panel appoint an independent counsel. The 
     panel selects the independent counsel, and defines the scope 
     of the investigation. The independent counsel has the full 
     range of investigatory and prosecutorial powers and functions 
     of the Attorney General.
       There is no specific term of appointment for independent 
     counsels. They have unlimited budgets, serve as long as it 
     takes to complete their duties, and may seek to expand the 
     scope of their investigation. An independent counsel may only 
     be removed by

[[Page E234]]

     the Attorney General for good cause. Likewise, the special 
     three-judge panel may terminate the work of the independent 
     counsel if the counsel's work is deemed completed.


                         Arguments pro and con

       Supporters of the independent counsel law contend that it 
     is necessary to investigate allegations of high-level 
     misconduct in the executive branch. Only an independent 
     counsel, chosen by a panel of judges, can provide the best 
     assurance of a thorough and impartial investigation followed 
     by a fair-minded prosecution or public dismissal of the 
     charges. The Attorney General, in contrast, is a political 
     appointee of the President, and might not be counted on to 
     conduct an impartial review of allegations of misconduct by 
     the President or his appointees.
       Opponents respond that the law is too easily abused. 
     Congress enacted the independent counsel statute to address 
     those occasions, as with Watergate, where there is serious 
     evidence of criminal misconduct by the President or high 
     level government officials. An independent counsel operates 
     with broad powers and an unlimited budget, outside the 
     standard constraints of executive branch accountability, and 
     should be rarely appointed. The Iran-contra affair and 
     Watergate might justify appointment of a special counsel, but 
     determining whether a Department Secretary told an FBI 
     background reviewer the total amount of money he gave his 
     former mistress does not. Such a case could be handled by the 
     Justice Department.


                            reform proposals

       There is a wide range of proposals for reforming the 
     independent counsel law. Some favor outright repeal. They say 
     that career Justice Department prosecutors can impartially 
     investigate and prosecute cases of executive branch 
     misconduct, and that the political process will hold the 
     President accountable for prosecutorial abuse. After all, 
     they observe, the Watergate cases were investigated and 
     prosecuted without an independent counsel law.
       Others support incremental changes to the law. One set of 
     reforms would limit the circumstances when an independent 
     counsel would be appointed. For example, the law could be 
     limited to allegations of misconduct at the highest levels of 
     government, such as the President, Vice President, and 
     Attorney General, and to crimes committed in office. 
     Likewise, the law could be amended to raise the threshold at 
     which the Attorney General must ask the three-judge panel to 
     name a special prosecutor.
       Another set of reforms would place some checks on the 
     powers of an independent counsel. The law, for example, could 
     be amended to fix a time limit on the investigation, subject 
     to extension by the appointing court if there has been an 
     indictment or if the independent counsel has the evidence to 
     justify further inquiry. The law could also be changed to 
     limit the ability of the independent counsel to expand the 
     scope of an investigation. Some have also proposed 
     constraining spending on investigations by making them 
     subject to annual congressional appropriations.
       A third set of reforms would improve the integrity of the 
     independent counsel process. One such proposal would make the 
     job of independent counsel full time, permitting no 
     representation of other clients. This reform would enhance 
     public confidence in the impartiality of the investigation, 
     and help expedite the proceedings.


                               conclusion

       I have consistently supported the independent counsel law, 
     and approved of the appointment of a special prosecutor in 
     the Iran-contra and Whitewater cases. I believe, however, 
     that the process should be used more sparingly and subject to 
     more contraints. Public confidence in the process has 
     diminished as investigations drag on for years, at great 
     expense.
       The independent counsel law expires in 1999. We should use 
     the next two years to review the current law, and consider 
     reforms that would improve public confidence in the process, 
     including limiting the use of the independent counsel law and 
     making the process, when invoked, move more swiftly and less 
     expensively.

                          ____________________