Selected Skirmishes: Prosecutorial Abuse

Reinventing the Independent Counsel Act for fun and profit.


"It is my firm conviction that the law has been a good one, helping to restore public confidence in our system's ability to investigate wrongdoing by high-level executive branch officials."

So spake Attorney General Janet Reno on May 14, 1993. She was announcing before Congress "that the [Justice] department and the administration fully support re-enactment" of the Independent Counsel Act. Spending $48 million to hunt down political opponents; issuing sensational indictments only moments before national elections; grilling the wives, lawyers, and ministers of key targets; attacking public officials in reports even when the evidence did not merit indictments; dragging investigations on and on for years–all the proud work of Lawrence Walsh as Iran-Contra special prosecutor–not a problem. "The Iran-Contra investigation, far from providing support for doing away with the act, proves its necessity," opined Reno.

It appears that the Clinton administration and other supporters of the independent counsel law have jogged a few miles down the Damascus Road. Yes, it's possible that a flash of lightning and a few words from the Almighty changed their minds. But a conversion experience this eye-opening has not been seen since Sports Illustrated's swimsuit issue hit the library at Holy Innocents High. Archibald Cox, who gained fame when terminated as a prosecutor in Watergate, argued in 1975 that independence had to be guaranteed in a new law (eventually enacted in 1978). "The pressure, the divided loyalty are too much for any man," he said. "Some outside person is absolutely essential." Today, he disagrees, saying the law "contains more evils than benefits."

Fair enough–people learn from 21 years of experience. But what to make of Sen. Carl Levin (D-Mich.), an author of the 1978 act and a key supporter of reauthorization in 1982, 1987, and 1994? Despite such firm commitment, Levin has flipped. So has Georgetown law professor Susan Block, a once-staunch supporter of the statute, who now says: "With unlimited time, an unlimited budget, and a single purpose, the independent counsel can become fanatical and obsessive."

We've heard that before. In a 1988 dissent, Supreme Court Justice Antonin Scalia argued, "How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile." The losing plaintiff in that case, Theodore Olson, was an assistant attorney general hounded by a special prosecutor because of some memos he had written to Reagan administration officials regarding how they should respond to congressional requests for Superfund information. No indictment was brought, but Olson was left with $400,000 in unreimbursed defense costs. Pondering Olson's case and Scalia's logic, 22 senators did vote against the independent counsel statute when it came up for reauthorization in 1994. But the champions of the "most ethical administration in history" were decidedly not among them.

We understand the back and forth of politics, but what is also on display in this tidy episode is the short-circuiting of the policy feedback loop. In most institutions of social life–your job, your family, your basketball team–proposing a Great Scheme puts the idea's creator on the spot: If the thing works, you're a hero; if it's a bust, you're a pinhead. Heroes enjoy perks which pinheads do not. Markets are particularly effective–and ruthless–in meting out rewards and inflicting punishments.

In the policy world, however, those whose schemes lead to Great Destruction–even by their own admission–routinely benefit from the debacle. Let's go to the videotape! See the leaders who crafted the Independent Counsel Act? There they are, noisily baiting a bear cub escaped from their own cave: Ken Starr. (Bless his soul, Starr argued against the act before he was appointed under its auspices.) There they are, pledging to end this partisan travesty. There they are, leaders of foresight and courage, now saving America from out-of-control prosecutors appointed under their own law!

It's the public policy version of one-stop shopping. Those who manufacture the problem sell you their solution. When a policy flops–hey, who better to peddle the next sure-fire fix? The marketing campaign is impressive and well-established: congressional hearings, press conferences, cable talk shows, the televised speech on C-SPAN.

Most important, it doesn't require any admission of past mistakes. You just denounce last year's model as defunct and bravely announce the next product cycle. Indeed, there's money in it: White House fund-raisers boast that, driven by Starr hate, $5 million poured into "Save the Big He" coffers in 1998. Just one more year of that revenue level means Bill Clinton will profit from the Whitewater special prosecutor. Sign a bad law? Get a check.

The fuse in our feedback loop is blown. And that's what is truly out of control in our policy-making structure.

Contributing Editor Thomas W. Hazlett (hazlett@primal.ucdavis.edu) is an economist at the University of California at Davis and a resident scholar at the American Enterprise Institute.