The preparation and presentation of Mr Civiletti's testimony was assisted by Andrew Fois of Venable's Legislative Practice Group who as a former staffer and Assistant Attorney General for Legislative Affairs, is no stranger to the house Judiciary Committee. His testimony follows below.
Congress is considering what to do about the independent counsel statute when it expires on June 30th. Based upon my experience with it, as well as close observations of its operations over the past twenty years, I believe that the act is hopelessly flawed and cannot be repaired. Congress should allow it to expire as scheduled. This view is based not on an assessment of the performance of any individual independent counsel, but instead is rooted firmly in what I believe are insurmountable inherent problems with the structure and operation of the act. These flaws also lead to the development of a risk of misuse of the Act by fringe political extremists of every persuasion.
As originally conceived, the first independent counsel statute was intended to assure equal justice for everyone, regardless of one's high position in government or relationship to anyone in such a position. That statute (and its successors) was intended to be invoked whenever a conflict, or the appearance of a conflict, arose between the Attorney General and the President due to allegations against either of them or against other high-ranking members or friends of the Administration. Supporters believed that this was the best way to assure the credibility of such an investigation while safeguarding the rights of the subjects of such investigations. Instead, the operation of the law has resulted in just the opposite. The operation of the independent counsel statute has become unfair and accords those subjected to it far less than the due process normally accorded in the criminal justice system.
This unequal justice exists in the following ways. First, the media and other public attention given to the issue of the appointment, or the request for an appointment, of an independent counsel itself taints the subject even before any investigation is commenced or charges filed. This publicity and accompanying allegations invariably damage the reputation of the subject, often beyond any repair, regardless of the ultimate result. This stands in stark contrast to the normal course of other criminal investigations in which there is usually no taint or bias against the subject unless and until legitimate charges are brought and publicly filed.
Second, in the usual course of events, a crime occurs and then the criminal process is invoked to search for and identify the perpetrator of that crime. Under the operation of the statutory scheme of the Independent Counsel Act, this process is turned on its head. First the subject of suspected activity is identified and only then are the mechanisms of the Act invoked to search for the crime. This reversal raises the specter of the fate of Jean Valjean in which Inspector Javert's obsessive pursuit is of the person rather than of justice.
Third, individuals involved in the regular criminal justice process (as well as the public) can rely on a certain level of predictability of professionalism, competence and judgment on the part of investigators and prosecutors. These decision-makers have years, and often entire careers, of training, standards and experience that make them suitable for performing their duties. Under the Independent Counsel Act, however, there is no reliable selection process assuring that only the most qualified individuals will be given this tremendous responsibility. The lack of any selection standards creates variable and uneven qualifications and, therefore, no reliable predictability of results.
Fourth, ordinarily in the criminal justice system most crimes are pursued with the available and finite resources in accord with priorities established through experience. Those well-tested priorities demand that those crimes that are most harmful to the public receive priority treatment and vigorous attention. On the other hand, those acts that are potentially criminal but may constitute insignificant conduct are given lower priority and fewer resources and often are not prosecuted at all. The Independent Counsel Act allows for no such prioritization.
Finally, even when an independent counsel does not bring charges, the Act requires that a report be filed with the court. This report requirement, and the attention it generates, frequently subjects those individuals mentioned in it to serious criticism and damage despite the fact that they are not being charged with any offense. This sort of prosecutorial behavior would never be tolerated in the course of the usual criminal process.
In sum, the Act was intended to ensure that high-ranking officials did not get special treatment, not to subject them to unfair and unequal treatment.
There are other reasons why I believe the Act should not be reauthorized.
As experience has shown, the nature of the matters and individuals potentially subject to the Act has made it vulnerable to abuse by the irresponsible. Partisan fringes may use the Act to generate publicity and clamor intended to harass or embarrass political opponents with allegations of criminality, often with little or no foundation. The effort to remove the politics from these investigations and prosecutions by appointment of someone ostensibly "independent" has failed. It has merely resulted in the shifting of the political pressure points to other places in the process. This politicization can do great mischief in a criminal proceeding. By comparison, the ordinary criminal case is usually free of such routine attempts at politically-motivated manipulation.
In addition, coming on the heels of the substantial corruption represented by Watergate, the Act was intended to provide a mechanism to address major crimes of corruption of government functions by high-ranking officials and those very close to them. Over the years the use of the Act has vastly exceeded its original purposes, however, both as to the kind of conduct and the type of individuals that have been the subject of independent counsel investigations. Clearly, the Act is no longer considered constrained to those purposes for which it was originally legislated.
Moreover, the Act provides for little or no accountability for the independent counsel as compared to the continual series of checks and balances to which actors in the rest of the criminal justice system are subject. Although technically subject to Department of Justice policies, the independent counsel is not subject, in a meaningful way, to the usual restraints and limitations imposed upon federal or other investigators and prosecutors.
Finally, I believe that the Independent Counsel Act can be allowed to expire without fear that we will have no ability to deal credibly with allegations against high-ranking government officials because there is a reasonable alternative. When there is a conflict between the Attorney General and the subject of a criminal investigation, there can and should be appointment of a regulatory independent counsel in the Department of Justice by the Attorney General. Authority for this appointment exists under law and has been successfully invoked in recent years. The history of successful prosecutions under this model goes back many decades to the Teapot Dome scandal in the 1920s and many successful investigations and prosecutions since then. Let us not forget that it was Attorney General Elliot Richardson's Justice Department that prosecuted Vice President Agnew before there was an independent counsel statute.
The Supreme Court has ruled that the independent counsel statute is constitutional. Just because a statute is constitutional, however, it does not necessarily follow that it is a good law or a wise policy. The Independent Counsel Act is a flawed law and an unsound policy. It cannot be saved by modification at the margins. It should be erased from the statute books and consigned to the history books. (Alternatively: It should be allowed to pass into the province of legal historians.)