Brigham Young University Law Review, Vol. 1999, No. 4 (1999), pp. 1367-1417


With the backdrop of the impeachment trial of President William Jefferson Clinton, Congress was confronted with the quandary of whether to reauthorize the independent counsel statute. As the statute approached its June 30, 1999 lapse date, lawmakers grappled with and bandied about an array of proposals, including statutory abandonment, in the midst of tremendous political tension and public fervor over the actions of the President, Independent Counsel Kenneth Starr, and members of Congress. Ultimately, Congress allowed the statute to expire, leaving the prosecution of high-ranking Executive Branch officials in the hands of the Department of Justice. Advocates of reauthorization could only hope that the issue of reauthorization would be revisited at a later time. As noted by Senator Thompson, a persistent shortcoming associated with the statute “over the last 20 years” had been the failure to effect a statutory balance which preserved prosecutorial independence and latitude, yet provided sufficient safeguards against the runaway exercise of prosecutorial discretion. Indeed, this objective underlied the statute's enactment. With Watergate serving as the precipitous event, and after five years of legislative effort, the original version of the statute emerged in 1978. Perceived as a mechanism that would bolster public confidence with respect to the prosecution of high-ranking members of the Executive Branch, the statute removed the prosecutive function from the Justice Department and placed it in the hands of a judicially appointed independent counsel. However, despite repeated attempts at modification, many believed that the want of adequate safeguards with respect to independent counsel activity, inter alia, ultimately undercut the very purpose of the legislation. In this article, I dispute the contention that the statute's arguable failures with respect to independent counsel accountability mandate statutory abandonment. By allowing the statute to lapse, Congress has necessarily subjected the public to the observance of a prosecutorial process strewn with conflicts of interest, as well as individual defendants to investigations and prosecutions pursued by interested prosecutors. Instead, through statutory modification, the coveted balance between independent counsel liberty and accountability can be effectively achieved. I will demonstrate how, through a proposal I initially presented in the Harvard Journal of Law and Public Policy, this balance can be achieved and the statute salvaged. To this end, I commence with a historical retracing of the statute, from its inception in 1978 through its last reauthorization in 1994. Thereafter, I will discuss and critique the leading argument presented in opposition to statutory renewal during the congressional reauthorization hearings in 1999. Finally, I will reintroduce my proposal for statutory reform and proceed to critique it in light of Morrison v. Olson, the United States Supreme Court case which upheld the statute's constitutionality. Through a detailed dissection of the opinion, I will demonstrate not only the proposal's constitutionality, but also how the proposal effectively regulates independent counsel activity, preserves independent counsel liberty, and ensures appearances of propriety.