Appoint A Counsel Now, If Ever
By Viet D. Dinh
To those who believe, as I do, that the independent counsel law offends the constitutional division of power among the three branches, there is much irony in the debate whether to appoint an independent counsel to investigate possible illegal fund-raising during the 1996 presidential campaign. The arguments against such appointment are nothing more than arguments against the independent counsel statute itself.
Troubling allegations of improprieties abound, but at the very least, Vice President Al Gore has acknowledged that he made fund-raising calls from his office. And the White House has admitted that the first lady's chief aide, Margaret Williams, accepted a $50,000 political contribution in the White House.
Under the law, it is a felony "for any person to solicit or receive any contribution" in a building occupied by "an officer or employee of the United States." This statutory prohibition, on its face, would seem to cover Gore's and Williams' transgressions and thus would justify the appointment of an independent counsel. Not so, according to the lawyers.
First, Gore argues that there is "no controlling legal authority" that the prohibition applies to him or the president. Whatever the merits of this argument -- there are prominent legal experts on both sides of the debate -- one thing is clear. The reason the ambiguity has not been definitively resolved is that the Justice Department has never prosecuted a president or vice president under the statute.
Second, according to Attorney General Janet Reno, the definition of "contribution" applies only to candidate-specific money and does not include so-called "soft money" contributions of the type Gore solicited or Williams accepted on behalf of the Democratic National Committee. Although the statutory language contains no such limitation, Reno's spokesman noted that such an interpretation "has been the established practice" of the Justice Department.
But neither of these points argue against the appointment of an independent counsel. They instead illustrate the justification for the independent counsel statute in the first place.
Few question the ability and integrity of Justice Department investigators and line attorneys. Rather, underlying the independent counsel statute is a structural concern about prosecutorial discretion. In any criminal case, there are numerous questions of judgment about both law and fact -- whether to investigate a particular issue, whether to target an individual and, most important, whether to bring an indictment.
The independent counsel statute transferred the discretion to make those judgment calls from the attorney general to the independent counsel, a transfer of power that opponents argued was unconstitutional. As Supreme Court Justice Antonin Scalia wrote, to take away a prosecutor's discretion "is to remove the core of the prosecutorial function," thus eviscerating the president's power to execute the laws.
But Scalia lost, the Supreme Court upheld the independent counsel law, and Congress reauthorized the statute. What Scalia and others argued to be the statute's fatal flaw, the proponents touted as its primary strength. As Reno testified to Congress, removing the attorney general's control and discretion over the investigation eliminates the "conflict or an appearance of conflict in the person who is, in effect, the chief prosecutor."
Which brings us back to the fund-raising scandal. Whether the activities of Gore and other high-level administration officials were illegal depends on one's interpretation of the campaign financing laws. Perhaps a court will hold that the vice president is not subject to the laws, but the absence of "controlling" legal authority (other than the statute) does not preclude prosecution. It simply means that the prosecutor has to judge whether an indictment is worth the risk of an adverse judicial interpretation. That judgment, under the theory of the independent counsel statute, must be made by an independent prosecutor, not by the attorney general.
And the statutory language is far from clear that the prohibition against fund-raising in federal buildings does not cover "soft money" contributions. That interpretive gloss evolved from the Justice Department's practice of not bringing cases. Through the exercise of prosecutorial discretion, the Justice Department has blessed a whole range of activities which the statute arguably prohibits. But, again, such discretion should reside with an independent counsel when the allegations involve high-level administration officials.
An independent counsel may well conclude that the vice president is not subject to the prohibition against fund-raising in federal buildings, and that the prohibition excludes all "soft money" contributions. But the independent counsel statute is about structure, not outcomes. In Reno's words, "it recognizes the importance of public confidence in our system of justice," and to that end it "avert[s] even the most subtle influences that may appear in an investigation of highly-placed executive officials."
Therein lies the rub. Prosecutorial discretion over high-level investigations is exactly what Congress transferred from the Justice Department to independent counsels, and the current arguments against an independent counsel in this instance are in truth arguments that independent counsels should not exist at all. Having lobbied eloquently and successfully for the independent counsel statute, Attorney General Reno now has to explain why the investigation into White House fund-raising improprieties differs from the paradigm of independence which she envisioned.
Dinh is Associate Professor of Law at Georgetown University Law Center.
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