The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“THE INDEPENDENT COUNSEL ACT” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S8628-S8629 on June 19, 1995.
The publication is reproduced in full below:
THE INDEPENDENT COUNSEL ACT
Mr. SIMON. Mr. President, no politician likes to admit that he made a mistake in voting for any bill. But, in life and politics, it is usually better to be right than to be consistent. [[Page S 8629]]
I voted for the Independent Counsel Act when it was enacted in 1978. And I voted for it again--although with increasing trepediation--when it was reauthorized in subsequent years. But, as many have said, experience is the best instructor. And experience has demonstrated to my eyes that the Independent Counsel Act is worse than the disease it was meant to cure. I have come to the conclusion that it is time for the Senate to reconsider--and perhaps even eliminate--the office of the independent counsel.
To be sure, the act was born of good intentions. It was designed to counter the conflict of interest--or at least the appearance of a conflict--that existed whenever a Federal prosecutor pursued one of the President's own officials. It was meant, in short, to ensure that such investigations would be carried out solely with the public's interest in mind.
Nonetheless, as Prof. Gerald Lynch of Columbia University argued in the Washington Post, the act has not put to rest the charges of bias in politically tinged cases. Instead, what has become painfully clear is that virtually any suit against a major political player will involve charges of favoritism and partisanship, whether or not an independent counsels is appointed.
Even worse, says Professor Lynch, the act has encouraged overzealous prosecutions: ``Ordinarily, a prosecutor must ask whether it is fair to treat this case as a felony compared to others where the defendant was not politically prominent. The special prosecutor has no such concerns.'' Three distinguished Attorneys General--Edward Levi, Griffin Bell, and William French Smith--have made similar criticism, noting how the act ``exacerbates all of the occupational hazards of a dedicated prosecutor: the danger of too narrow a focus, the loss of perspective of preoccupation with the pursuit of one alleged suspect.''
In short, 20 years of experience have demonstrated that the cost of maintaining the Independent Counsel Act far outweighs its benefits. It has aggravated, rather then calmed, the prevailing anti-Government mood that prevails in this Nation. As Gerald Lynch concludes, ``instead of purifying our governing institutions, special prosecutors play into a pathology that thrives on an appetite for scandal and a distrust of our system of government.'' And that is perhaps the strongest reason of all to reconsider the wisdom and efficacy of the act in its current form.
I ask that the article by Prof. Gerald Lynch be printed in the Record.
The article follows:
Special Prosecutors: What's the Point?
(By Gerard E. Lynch and Philip K. Howard)
Just about everybody in the country was focused on terrorism in Oklahoma, but the president of the United States had other pressing business: He was being questioned by independent counsel Kenneth Starr about Whitewater.
Nothing unusual there. In fact, there has hardly been a time, since passage of the Ethics in Government Act in 1978, when a special prosecutor and his target have not been in the news. Justifying the smallest details of a past transaction or decision has become part of the job description for high executive office, always with the suggestion of public scandal and personal ruin.
The progress of the manhunt is chronicled in the daily headlines (``Investigation Moves One Step Closer to the President''), but the titillating prospect of bringing down important leaders is not a healthly sign. Instead of purifying our governing institutions, special prosecutors play into a pathology that thrives on an appetite for scandal and a distrust of our system of government.
The stakes were small in early independent counsel investigations. Who cared whether Hamilton Jordan used cocaine at Studio 54? But the Reagan-Bush administration provided an investigative feast: Did Michael Deaver, Lyn Nofziger or Ed Meese violate conflict-of-interest rules? Did Samuel Pierce preside over a corrupt housing department? Did Iran-contra extend past North, Poindexter and McFarlane to the secretary of defense, perhaps even to Reagan and Bush?
Cries for new independent investigations have dogged the Clinton administration practically every month. This month it's the secretary of commerce who gets his own special prosecutor. And why not Ira Magaziner--who knows whether he told the whole truth? Future occupants of the White House can expect the same.
As for actual law enforcement, however, it has been slim pickings. Does anyone remember Thomas Clines, the only Iran-contra figure who went to jail? Deaver pleaded to minor charges, and Nofziger's conviction was reversed. Meanwhile, a lot of apparently innocent people have been investigated intensively for a long time. The anemic results are obscured by all the noise and speculation around new investigations, which consume staggering amounts of taxpayer funds (about $10 million so far with Whitewater) and whose primary effect is to divert our leaders from the task of governing.
What, we might reasonably ask, is the point?
Good government orthodoxy has it that ``special'' prosecutors are needed because the regular Justice Department prosecutors, reporting to a politically appointed attorney general, can't be relied on to prosecute the president's cronies. Special prosecutors supposedly ensure impartiality.
These premises, plausible enough on the surface, happen to be backward. Deciding to prosecute is not a simple matter of finding that a law has been violated. It is a far more subtle decision, made against the reliable backdrop of hundreds of other cases. Judgment and discretion are at the heart of a prosecutor's job. In a world in which regulations are piled so high that many well-meaning people trip over them, prosecutors must decide every day whether a particular violation is merely technical or is one that requires the awesome step of criminal prosecution. Decisions to prosecute are inextricably bound up in priorities--prosecutors regularly allocate scarce resources to violent and drug crimes at the expense of nonviolent white-collar cases--and necessarily draw on society's norms and values.
The premise that professional prosecutors will tend to favor the politically powerful is also wrong. Ordinary assistant U.S. attorneys in Maryland brought down Spiro Agnew. Regular Justice Department employees in New York indicated John Mitchell and Maurice Stans. It was one of Rudy Giuliani's assistants, not an ``independent'' prosecutor, who called sitting Attorney General Ed Meese, his own boss, a
``sleaze'' in a prosecution of one of Meese's closest friends.
The real pressures distorting prosecutors' judgment are the opposite of what reporters and good government editorialists perceive. High officials are the most tempting targets for young prosecutors. Fame and glory (and ultimately a lucrative private law practice) come from handling cases in the headlines.
But what of the ``appearance'' of partiality? Surely a nonpartisan figure of great repute ensures, if nothing else, that the investigation will be ``above politics.'' Two words refute this claim: Lawrence Walsh. The Iran-contra investigation proved the impossibility of taking a politically sensitive case ``above politics.'' Here we had a special prosecutor of the president's own party, with a long history of moderation and professionalism, a respected and independent figure with a lifetime of achievement in law practice and public service. Surely, his conclusions would be respected by all.
Hardly. When Judge Walsh began to conclude the president's men were crooks, he was vilified by the president's allies
(spearheaded by the Wall Street Journal) as politically motivated and biased. Judge Walsh was predictably defended as impartial by Democrats, but he was no more able to escape imputations of bias than regular prosecutors would have been. Indeed, Judge Walsh became a political symbol.
The Whitewater case provides an even more extreme example of the elusive search for nonpartisan appearances. The original special prosecutor, Bob Fiske, another establishment lawyer with Republican credentials and a reputation for unimpeachable integrity, drew criticism from Republicans when he did not seem impressed with the case against Clinton. Fiske was then replaced on the impeccable logic of taint-by-association: He was not quite ``special'' enough because he had been appointed by Clinton's attorney general. The New York Times, formerly a vigorous proponent of that pristine logic, promptly noted the right-wing Republican connections of the judge heading the panel that dumped Fiske, and attacked his replacement, Ken Starr--another lawyer of high standing and great integrity--as a Republican hack.
The lesson is clear: Partisan arguments intrude into all decisions involving the political arena. The intense spotlight of the special prosecutor does not illuminate so much as blind.
In the ordinary case, the U.S. attorney has to ask himself: Is it fair to treat this case as a felony, as compared to how we treated other, similar cases where the defendant was not politically prominent? The special prosecutor has no such concerns. He has only one investigation to pursue, and the unnatural intensity inevitably skews the decision. The smallest infraction can take on a life of its own.
In the words of three distinguished former attorneys general--Edward H. Levi, Griffin B. Bell and William French Smith--the independent counsel only exacerbates ``all the occupational hazards of a dedicated prosecutor: the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect.''
There may be disputes of constitutional dimesion--Watergate, perhaps--where the benefits of special counsel are worth the accompanying diversion and disequilibrium. But in practically all other cases, the discretion and balance found in our ordinary law enforcement system is far superior. And if the people believe that a president or an attorney general has distorted that system to favor his friends, retribution at the hands of political enemies and media interests is never far off.
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