The Independent Counsel Act expires on June 30, 1999. Should it be extended? Extended with modifications? Radically reformed? Or should it be allowed to sunset with nothing put in its place? To answer these questions, we need to address some more fundamental questions: (1) Do we truly need an independent office to investigate alleged wrongdoing by high-ranking officers of the executive branch? (2) If so, what are the options for the organizational structure of such an office? (3) By what criteria should the different institutional options be evaluated? (4) Under these criteria, which option represents the best, or perhaps more realistically, the least-worst choice?
The great danger is that the fate of the independent counsel law will be determined not by grappling with these fundamental questions, but out of a reaction, or more accurately over-reaction, to recent controversies involving the independent counsel. The history of the Independent Counsel Act, which has been revised at roughly five-year intervals since it was first adopted in 1978, has consistently been one of tacking back and forth in response to the most recent episodes involving investigation of executive branch officials.
The original Act of 1978, of course, was passed in response to Watergate, and especially the famous "Saturday night massacre" that resulted in the firing of special prosecutor Archibald Cox. The basic features of the Act – appointment of the independent counsel by. a special Article III judicial panel and the restriction on any removal of the counsel by the Attorney General except for "good cause" – were designed to assure that. never again would an independent prosecutor be subject to executive branch interference analogous to President Nixon's firing of Cox.
Thomas W. Merrill,
Beyond the Independent Counsel: Evaluating the Options,
St. Louis U. L. J.
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