[Congressional Record Volume 144, Number 67 (Friday, May 22, 1998)]
[Senate]
[Pages S5427-S5429]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           INDEPENDENT COUNSELS AREN'T ABOVE THE LAW, EITHER

  Mr. LEVIN. Mr. President, about one year from now, in June 1999, the 
independent counsel law is due to expire unless Congress acts to renew 
it. In the Senate, the Governmental Affairs Committee, of which I am a 
member, is responsible for examining whether the independent counsel 
law ought to be reauthorized. I rise today because, as I've begun to 
look at the reauthorization issues, one stands out as central to the 
law, central to the question of reauthorization, and central to the 
issue of whether the independent counsel law is a tool of fairness or a 
weapon of politics.
  In a recent Law Day speech, independent counsel Kenneth Starr 
proclaimed that, ``No one is above the law.'' He is correct. No one is 
above the law--certainly not the President, who was the focus of 
Starr's remarks, but equally so, not an independent counsel.
  The question I want to discuss today is whether independent counsels 
are themselves complying with the law, in particular a provision at 28 
U.S.C. 594(f)(1), which states that independent counsels ``shall'' 
comply with the ``written or other established policies of the 
Department of Justice.''
  This is a straightforward provision. The law says ``shall,'' not 
``may,'' not ``should.'' It makes compliance with established Justice 
Department policies mandatory, not discretionary, for every independent 
counsel. The only exception to this rule is where compliance with 
Departmental policies would be ``inconsistent with the purposes of the 
statute'' such as, for example, compliance with a policy requiring the 
permission of the Attorney General to take a specific act. Barring this 
exception, the law's clear general rule is that independent counsels 
must comply with established Justice Department policies.
  This provision in the law is an important one. It is a key constraint 
to ensure that persons who are subject to independent counsel 
investigations receive the same treatment as ordinary citizens--no 
better and no worse. It is a key safeguard against an overly zealous 
prosecutor.
  The Senate felt so strongly about this requirement that, during the 
law's 1994 reauthorization, the Senate approved an amendment by Senator 
Bob Dole emphasizing that failure to follow Justice Department policies 
constitutes ``cause'' for removing an independent counsel from office. 
The final conference report on the law, while omitting the Senate 
provision as accurate but too limiting, said, ``refusal to follow 
important Department guidelines . . .--like many other circumstances--
do provide potential grounds for removing an independent counsel from 
office.''
  Independent counsel compliance with Justice Department policies was 
important to the Supreme Court. In the key decision upholding the 
independent counsel law, Morrison v. Olson, the Supreme Court referred 
to the requirement as one of the keys to the law's constitutionality. 
The Court did so when determining whether the independent counsel law, 
``taken as a whole, violates the principle of separation of powers by 
unduly interfering with the role of the Executive Branch,'' in 
particular the Constitutional requirement that the President, as head 
of the executive branch, ensure that the laws be faithfully executed. 
The Supreme Court stated:

       It is undeniable that the Act reduces the amount of control 
     or supervision that the Attorney General and, through him, 
     the President exercises over the investigation and 
     prosecution of a certain class of alleged criminal activity. 
     . . . Nonetheless, the Act does give the Attorney General 
     several means of supervising or controlling the prosecutorial 
     powers that may be wielded by an independent counsel. Most 
     importantly, the Attorney General retains the power to remove 
     the counsel for `good cause,' a power that we have already 
     concluded provides the Executive with substantial ability to 
     ensure that the laws are `faithfully executed' by an 
     independent counsel. No independent counsel may be appointed 
     without a specific request by the Attorney General, and the 
     Attorney General's decision not to request appointment if he 
     finds `no reasonable grounds to believe that further 
     investigation is warranted' is committed to his unreviewable 
     discretion. . . . In addition, the jurisdiction of the 
     independent counsel is defined with reference to the facts 
     submitted by the Attorney General, and once a counsel is 
     appointed, the Act requires that the counsel abide by Justice 
     Department policy unless it is not `possible' to do so.

  The Court then went on to say, in language directly relevant to this 
issue: ``Notwithstanding the fact that the counsel is to some degree 
`independent' and free from executive supervision to a greater extent 
than other federal prosecutors, in our view these features of the Act 
give the Executive Branch sufficient control over the independent 
counsel to ensure the President is able to perform his constitutionally 
assigned duties.''

  The Supreme Court thus highlighted four ``features'' of the 
independent counsel law which enable the Attorney General to meet the 
constitutional requirement that the President, as head of the executive 
branch, ensure the faithful execution of the law. The four features 
identified by the Court are the Attorney General's sole authority to 
request appointment of an independent counsel, her authority to remove 
an independent counsel from office for good cause, her authority to 
define the scope of an independent counsel's investigation, and the 
requirement that independent counsels must abide by Justice Department 
policy.
  Mandatory compliance with Justice Department policies is important 
not only for the law to be constitutional, but also because that 
compliance is one of the few practical constraints on the conduct of an 
independent counsel. The Supreme Court has held that the special court 
which appoints independent counsels ``has no power to supervise or 
control the activities of the counsel'' it has appointed. Congress, 
legally empowered to oversee independent counsels, has shown little 
interest under the current Republican leadership in monitoring 
independent counsels investigating the Clinton Administration.
  The law does empower the Attorney General to remove an independent 
counsel from office for good cause, but that draconian penalty is not a 
practical one and has never been used. For example, if Attorney General 
Reno were to fire independent counsel Starr for enforcing subpoenas 
served on Secret Service personnel, the Republican Congress as well as 
the news media would have her head. The power to terminate an 
independent counsel, while an essential element in the law's 
architecture for purposes of constitutionality, is simply not, except 
for unusual circumstances, a practical means for limiting an 
independent counsel's individual prosecutorial decisions.
  That means a key remaining constraint on independent counsels is the 
legal requirement that they comply with established Justice Department 
policies.
  Yet questions have increasingly arisen about whether sitting 
independent counsels are acting in ways that an ordinary federal 
prosecutor would, or

[[Page S5428]]

whether they are taking actions outside the established practices of 
the Department of Justice.
  A prime example is an independent counsel subpoena so troubling that 
the Supreme Court has agreed to review it on an expedited basis next 
month. This subpoena was served by independent counsel Starr on a 
private attorney who, in 1993, met with Vincent Foster nine days before 
his suicide to discuss representing him during inquiries into the White 
House travel office. The Starr subpoena demands the notes taken by the 
attorney during that meeting, on the ground that the attorney-client 
relationship dissolved upon Mr. Foster's death.
  The U.S. Attorney Manual states that the Justice Department, ``as a 
matter of policy will respect bona fide attorney-client relationships, 
wherever possible, consistent with its law enforcement responsibilities 
and duties.'' But instead of respecting the bona fide attorney-client 
relationship between Mr. Foster and his attorney, Starr asserted a 
legal position that the Justice Department--in over one hundred years 
of criminal prosecution--has never taken. As Starr admits in a Supreme 
Court filing, the Foster case ``is the first federal decision 
addressing the question . . . of whether attorney-client privilege 
fully survives the client's death.''
  A federal trial judge asked to enforce the Starr subpoena struck it 
down for violating attorney-client confidentiality, but an appeals 
court, in a 2-1 decision over a strong dissent, reversed. The 
dissenting judge wrote that the Starr subpoena is contrary to the law 
in all 50 states, the Supreme Court's advisory committee, and model 
codes of evidence. He characterized the Starr subpoena as striking ``a 
fundamental blow to the attorney-client privilege.'' An independent 
counsel stretching that far is assuming the authority of the Justice 
Department to set legal policy for the United States.
  Required compliance with Departmental policies not only helps ensure 
that persons who are subjects of independent counsel investigations 
receive the same treatment as ordinary citizens, but also guards 
against an independent counsel's misuse of the authority to represent 
the United States. Developing federal legal policy is the province of 
the Justice Department, which is institutionally motivated and equipped 
to consider competing public policies, constitutional values, and the 
long-term health of the American legal system. It is not the province 
of an independent counsel who has a narrow mandate and operates without 
accountability for legal positions that may reverberate throughout the 
federal criminal justice system.
  Yet in the Foster matter, we have an independent counsel arguing a 
dramatically new position, that the attorney-client privilege 
disappears at death, without the Justice Department's ever determining 
whether that is a suitable position for the United States to take.

  And the prosecutorial stretch illustrated by the issuance of the 
Foster subpoena is not the only instance in which an independent 
counsel appears to have stretched his authority. Just last week, over 
the strenuous objection of the Justice Department and for the first 
time in the nation's history, Starr asked a federal court to force 
Secret Service personnel to disclose how they operate and what they 
have observed of the President in the course of protecting him. No 
federal prosecutor has ever before asked a court to compel such 
testimony from a Secret Service agent, according to the Justice 
Department.
  But Starr is undeterred by the opposition of both the Justice 
Department and Secret Service. Discounting arguments regarding the 
safety of the presidency and effective operation of Secret Service 
personnel, Starr has assumed the role of policymaker. In so doing, he 
has issued subpoenas which are not only unprecedented, but also, 
judging from the opposition of the Justice Department, in violation of 
Justice Department policy and in violation of Mr. Starr's obligation to 
comply with Justice Department policy.
  There's more. The Department of Justice has carefully constructed 
policies determining when government attorneys may contact possible 
targets of prosecution without the knowledge and consent of their 
attorney. These policies are intended to protect every citizen's right 
to legal counsel in the criminal justice arena. In a Departmental 
regulation, 28 CFR 77.8, the Justice Department explicitly prohibits 
federal prosecutors from offering an immunity deal to a target without 
the consent of the target's legal counsel. Yet independent counsel 
Starr's staff reportedly confronted Monica Lewinsky, in the first 
contact they had with her, at a shopping mall outside the presence of 
her counsel for the express purpose of offering her an immunity deal. 
Indeed, it has been alleged that the independent counsel's office made 
the immunity deal contingent upon her NOT contacting her counsel. The 
press has reported that the judge supervising independent counsel 
Starr's grand jury proceedings issued a sealed opinion expressing 
concern about the actions of the independent counsel in this matter and 
indicating she may refer the matter to the Justice Department's Office 
of Professional Responsibility which is authorized to examine alleged 
violations of the rules prohibiting contact with a represented person.
  There's more. Independent counsel Starr issued subpoenas to force two 
bookstores to disclose all purchases by Monica Lewinsky over a 2 year 
period. The bookstores, supported by the publishing and bookselling 
communities, the American Library Association and others, moved to 
quash the subpoenas. Ruling that the subpoenas implicate the First 
Amendment, the presiding judge required Starr to provide additional 
justification for the subpoenas. The American Booksellers Foundation 
for Free Expression has stated that ``in the long experience'' of their 
members, these subpoenas are ``unprecedented'' in their breadth and 
``threaten free speech by making people afraid that the government will 
find out what they are reading.''
  Then there are the subpoenas Starr has issued to news organizations 
to obtain nonpublic information from their news gathering efforts. 
Long-standing Justice Department regulations caution federal 
prosecutors against such subpoenas in order to safeguard freedom of the 
press. The regulations require trying elsewhere for the information, 
negotiating requests for information first, and, in a final provision 
that a court has found falls within the exception to the compliance 
requirement, obtaining the Attorney General's permission prior to 
issuing a subpoena. Despite the established policy discouraging media 
subpoenas, independent counsel Starr and independent counsel Donald 
Smaltz have issued subpoenas to news organizations on several 
occasions. When ABC News objected to one such subpoena, Starr stated in 
a court pleading that the Justice regulations ``do not govern an 
Independent Counsel, who, by statutory design, operates for the most 
part outside the Department of Justice.''
  Then there are the subpoenas Starr issued calling a White House aide 
before the grand jury to question him about his communications with the 
media and calling another White House aide before the grand jury to 
question him about his communications with his local Democratic party. 
In both cases, Starr created the appearance of using the grand jury to 
silence or intimidate critics of his office--surely not an established 
practice of the Justice Department.
  Then there is the subpoena to Monica Lewinsky's mother despite a 
stated policy in the U.S. Attorneys' Manual that, ``the Department will 
ordinarily avoid seeking to compel the testimony of a witness who is a 
close family relative of . . . the person upon whose conduct grand jury 
scrutiny is focusing.''
  The list goes on.
  The key question, here, is whether the actions taken by Starr were in 
compliance with established Justice Department policies or whether they 
were actions that no ordinary federal prosecutor would take. The test, 
by the way, is not whether a judge would uphold the action in a court 
of law--prosecutorial conduct not in accordance with Justice policies 
may still be legal. The proper test is not whether the prosecutor's 
action is legal, but whether it is the type of action that the Justice 
Department has determined represents what federal prosecutors ought to 
be doing.

  A federal prosecutor may be legally able to subpoena a target's 
mother, but

[[Page S5429]]

should he? A federal prosecutor may be legally able to subpoena a 
Secret Service agent, but should he? A federal prosecutor may be 
legally able to offer immunity to a target without telling her 
attorney, but should he? A federal prosecutor may be legally able to 
subpoena the media's nonpublic information, but should he? Justice 
Department policy says, in most cases, he should not. Such policies 
raise serious questions as to whether independent counsel Starr is 
meeting his legal obligation to comply with Justice Department 
policies.
  Starr is not, by the way, the only independent counsel to raise these 
concerns. Independent counsel Smaltz, appointed to determine whether 
then-Agriculture Secretary Mike Espy violated criminal laws, is another 
example. One key issue in this area involves the role that courts play 
in enforcing independent counsel compliance with Justice Department 
policies, as mandated by statute. To date, several courts have held 
that criminal defendants lack standing to enforce such compliance and 
have declined to examine the substance of their claims. One judge 
handling a prosecution by independent counsel Smaltz went further, all 
but reading the requirement to comply with Justice Department policies 
out of the law.
  The case involved Ronald Blackley, one time chief of staff to 
Secretary Espy. Independent counsel Smaltz charged Blackley, among 
other crimes, with making false statements on a financial disclosure 
form. Blackley moved for dismissal, in part by citing section 9-85A.304 
of the U.S. Attorneys' Manual which he said prohibited:

     prosecuting alleged violations of financial disclosure 
     requirements under 18 U.S.C. 1001 ``unless a nondisclosure 
     conceals significant wrongdoing.'' . . . [T]here is no 
     allegation of any underlying wrongdoing. . . . We have found 
     no case where an individual filer has been criminally 
     prosecuted in a situation similar to this one.

In a published decision, United States v. Blackley, 986 F. Supp. 607 
(1997), the judge held the following:

       It undeniable that Congress's addition of section 594(f) to 
     the Independent Counsel statute in 1982 created somewhat of a 
     paradox between that provision's purpose and the rationale 
     underlying the overall Independent Counsel framework. On the 
     one hand, through section 594(f)(1), Congress is ensuring 
     that there are not two different standards of justice 
     depending on the prosecutor; that ``treatment of officials is 
     equal to that given to ordinary citizens under similar 
     circumstances.'' . . . To prevent against public officials 
     being subject to potentially capricious prosecutorial 
     conduct, an Independent Counsel needs to be tethered to some 
     quantifiable standard, and the Department of Justice policy 
     guidelines provide arguably the most complete, detailed and 
     time-tested standards available. Furthermore . . . adherence 
     to the executive branch's established prosecutorial 
     guidelines helps to guard against constitutional separation-
     of-powers challenges to the Independent Counsel statute. . . 
     . On the other hand, if an Independent Counsel is supposed to 
     operate as nothing more than the identical twin of the 
     Department of Justice, with no permissible variance in 
     prosecutorial discretion, then the need for the Independent 
     Counsel structure becomes highly questionable. . . . For the 
     Independent Counsel to play a meaningful role, he or she is 
     necessarily expected to act in a manner different from, and 
     sometimes at odds with, the Department of Justice. . . . 
     Therefore, the Independent Counsel may prosecute this case, 
     even if said prosecution is contrary to the general 
     prosecutorial policies of DOJ. . . . Potential criminal 
     ethical violations that may be too small to concern the 
     Department of Justice are nonetheless properly within the 
     purview of the Independent Counsel because the Independent 
     Counsel is, in a sense, charged with the responsibility of 
     ensuring that public officials have maintained the highest 
     standards of ethical conduct.

The court then upheld the indictment of Blackley, ruling that it was 
irrelevant whether or not the charge in question complied with Justice 
Department policy.
  Contrary to the court's ruling, however, Congress has never charged 
independent counsels with ethics enforcement. Independent counsels are 
federal prosecutors required to act in accordance with established 
Justice Department policies. The Blackley decision misreads both the 
law and the legislative history, not only by expanding the mission of 
independent counsels beyond criminal law into ethics enforcement, but 
also in essentially reading out of the statute the requirement that 
independent counsels comply with Justice Department policies.

  The Blackley decision is now on appeal. It brings legal focus to the 
issue of independent counsel compliance with established Justice 
Department policies--its importance to the law and the question of how 
to enforce it.
  The Supreme Court stated the following in a 1935 case about 
prosecutorial misconduct, Berger v. United States, 295 U.S. 78:

       The United States Attorney is the representative not of an 
     ordinary party to a controversy, but of a sovereignty whose 
     obligation to govern impartially is as compelling as its 
     obligation to govern at all; and whose interest, therefore, 
     in a criminal prosecution is not that it shall win a case, 
     but that justice shall be done. . . . He may prosecute with 
     earnestness and vigor--indeed, he should do so. But, while he 
     may strike hard blows, he is not at liberty to strike foul 
     ones. It is as much his duty to refrain from improper methods 
     calculated to produce a wrongful conviction as it is to use 
     every legitimate means to bring about a just one.

This language applies with equal force to an independent counsel, and 
mandatory compliance with established Justice Department policies is a 
means to that end.
  As the chief law enforcement officer of the United States, the 
Attorney General is responsible for ensuring that ``no one is above the 
law.'' The law requires independent counsel compliance with established 
Justice Department policies. Where there is evidence that independent 
counsels are not complying with Justice Department policies, the 
Attorney General has a legal obligation to determine if that is so and, 
if so, to take whatever action is appropriate to obtain independent 
counsel compliance. In light of court rulings that persons who are the 
victims of independent counsel noncompliance lack standing to contest 
the independent counsel's actions in this area, no one other than the 
Attorney General has the responsibility and the capability to enforce 
independent counsel compliance with the law.
  If the Attorney General does not act, we need to understand why. If 
the reason is that the Attorney General feels she has insufficient 
statutory authority to obtain independent counsel compliance with 
Justice Department policies, we need to clarify the statute. If the 
reason is not the wording of the law, but politics that makes it 
impossible for the Attorney General to insist on compliance, we need to 
design new enforcement mechanisms which are more politically feasible. 
Stronger enforcement mechanisms could include, for example, amending 
the law to require an independent counsel to obtain from the Attorney 
General a certification of compliance with Justice Department policies 
before seeking court enforcement of a subpoena or filing an appeal of a 
question of law, or adding a provision giving affected persons legal 
standing in court to force independent counsel compliance with Justice 
Department policies.
  The requirement for compliance with Justice Department policies is 
central to the law's constitutionality and fairness. The Attorney 
General and the Attorney General alone can enforce it. Since an 
independent counsel is not above the law, the Attorney General must 
enforce Section 594(f), which is the law of the land and essential to 
the independent counsel law's constitutionality and purpose.

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