Harvard Journal of Law and Public Policy, Vol. 22, No. 1 (Fall 1998), pp. 279-337. Reprinted with permission.


The tenure of Independent Counsel Kenneth Starr has generated much debate among scholars, politicians, and the media in recent years regarding the efficacy of the independent counsel statute, which is scheduled to expire in June 1999. Enacted in response to the Watergate saga, and particularly the infamous “Saturday Night Massacre,” the independent counsel statute was designed to remove politics from the prosecution of executive branch officials and to foster public confidence in the prosecutorial process. Advocates claim that the statute, though flawed, is the best system available to address alleged criminal wrongdoing by high-ranking executive branch officials, as well as the conflict-of-interest problems inherent in internal executive branch prosecutions. Opponents insist that the statute is dispensable, maintaining that the prosecutorial system was not in need of reform when the statute was enacted. They further stress that independent counsel excesses are proof that the current structure is unmanageable. Thus, they contend, statute modification is not a feasible alternative.

These arguments are but a sampling of those advocated in support of, and in opposition to, the independent counsel statute. As June 1999 approaches, advocates and foes alike will raise these and other arguments as Congress decides the statute's fate. This article attempts to synthesize the various arguments, proposals, and counterproposals in the debate with legal norms and statutory policies. To this end, the article commences with a description of the current terms and provisions of the independent counsel statute. Thereafter, the article identifies, discusses, and analyzes the leading arguments for and against renewal, as well as the various alternatives suggested by prominent scholars and practitioners. Finally, the article concludes with suggested measures of reform which, I submit, will result in a much more efficient and productive prosecutorial process.