The Independent Counsel (IC) statute,1 designed to restore public trust in the impartial administration of criminal justice after Watergate, ultimately fueled rather than quieted the perception that partisan politics drives the investigation of high-ranking government officials. Congress, in an inspiring display of bipartisanship, bid it a muted farewell. The statute's fate was sealed by the enormous controversy surrounding the investigation conducted by Independent Counsel Kenneth Starr.
Although Start did not bring criminal charges against President Clinton, his office went pretty far in that direction, committing considerable enforcement resources to that end,2 bringing criminal charges against people believed to have information that would implicate Clinton, and deploying arguments of prosecutorial prerogative that have significantly changed the legal landscape.3 Like many others, we have found this exercise of prosecutorial power terribly troubling. Also troubling, however, is the difficulty we (and others) have had in identifying "neutral principles "4 of prosecutorial discretion that Starr violated. The standard criticisms of Starr's investigation do not meet that measure. The standard criticisms of the IC mechanism generally, though possessing greater force, are similarly unsatisfying. This essay, written from the perspective of two former federal prosecutors,5 springs from our effort to identify the fundamental shortcomings of the IC concept, particularly as manifested in the Starr investigation, and to decide whether efforts to cure those shortcomings with a new and improved version of the IC approach are warranted.
H. Geoffrey Moulton Jr. & Daniel Richman,
Of Prosecutors and Special Prosecutors: An Organizational Perspective,
Widener L. Symp. J.
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