Congress Should Revive the Independent Counsel Act

I fear that the public may have lost their faith and confidence in the independence of the Department of Justice (DOJ) over the last few years. Many appear to wrongly view the Attorney General and the DOJ as under the exclusive control of the executive branch, particularly the president. This misconception was perpetuated during the last administration by statements and actions of the president during criminal investigations and lawsuits in which DOJ appeared to be taking directions from the president in matters where he had a personal interest or stake in the outcome.

I have no doubt that Merrick Garland will do his best to restore the 150-year reputation of the DOJ for honesty, fairness and integrity — operating free from any political influence. Congress can, however, play a part in this effort by reviving the Independent Counsel Act that expired in 1999.

In 1978, in the wake of Watergate, Congress passed the Ethics in Government act. In 1988, a portion of that act was subsequently renamed the Independent Counsel Act. The essence of the Act was to permit the attorney general to appoint an independent lawyer to investigate potential misconduct by officials in the executive branch. By farming out these investigations, the DOJ would separate itself from any conflict of interest or even the appearance of any conflict.

Over the years, a number of investigations were carried out by independent counsels. Two prominent examples include the Iran–Contra affair during the Reagan administration and the Whitewater Controversy during the Clinton administration. These investigations, and others, were broad in scope, may have suffered from mission creep, and took many years to conclude. Congress ultimately decided to let the Independent Counsel Act expire in 1999. In permitting the Act to lapse, many members of Congress voiced their concern that independent counsels had too much power, expanded their investigations too broadly, took as long as a decade to conclude their work and consumed vast government resources.

DOJ needed a substitute for the Act and thus the existing Special Counsel Regulation was promulgated soon thereafter to address investigations of executive branch officials in which there was a conflict of interest or an apparent conflict. The regulation sought a delicate balance. It was crafted to provide the Special Counsel with a degree of independence but with mechanisms that allow DOJ to supervise the investigations and, in some circumstances, order that the investigations be concluded. There is also a provision that permits the attorney general to fire a Special Counsel. These provisions –understandably inserted to quell Congress’ concerns regarding perceived abuses of the Act — do not meet the goal of independence in a way that is satisfactory to restore and maintain public confidence in DOJ and our government’s investigations of public official misconduct. Congress can rewrite provisions of the Act to pass a law that draws a better balance and provides for a different method of accountability.

My first proposed reform concerns the circumstances under which an Independent Counsel can be appointed. Under the terms of the former Act, Congress can request an appointment, but the final decision is within the sole power of the attorney general. If the attorney general decided to move forward, a specially created panel of appeals court judges would make the selction of the counsel. Congress can insert a provision, however, in the revised Act, that allows for a legal challenge when an appointment is not made by the attorney general, under circumstances in which it appears warranted, or to terminate an appointment if it appears unwarranted. The challenge can be brought before the special tribunal of appeals court judges. Second, if the work of the independent counsel is expanded into areas beyond the initial order of appointment, Congress can simply write a provision to allow it to challenge the expansion before the same panel of judges. These provisions would be in keeping with the American tradition of separation of powers and checks and balances.

Likewise, concerns regarding the conduct of the independent counsel in terms of propriety and integrity could be challenged in the same manner. Congress could also file an application to the judicial panel to call for a conclusion of the investigation. A mechanism can also be inserted to provide for an expedited direct appeal to the Supreme Court, if necessary, regarding the foregoing decisions that would be made by the panel. Such a provision would provide a layer of due process regarding this new and revised Independent Counsel Act.

The public, advocacy organizations, ethics societies and bar associations should weigh in and press Congress to take action.