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Publication Date

3-1998

Document Type

Article

Abstract

The current "feeding frenzy" around the campaign finance scandal invites us to reflect upon the importance of the past. The independent counsel provisions of the Ethics in Government Act are the product of a particular time and sequence of events that determined their shape and continue to influence their implementation. If we want to understand the current controversy surrounding Attorney General Janet Reno's interpretation of the independent counsel provisions, we must look back at the legislative history of those provisions and the larger history of the time.

When we look back, we can see that the issues at the center of the debate about the provisions today were there from the start. The difficult choices that faced the lawmakers then are no less difficult today. In response to the Watergate scandal, Congress sought to write a constitutional statute that balanced the competing values of independence and accountability in a political climate of deep partisan and public distrust. Could Congress create an officer independent of the executive branch without running afoul of the constitutional scheme of separation of powers? Would an officer wielding prosecutorial power independent of the executive branch be an unaccountable persecutor of vulnerable public officials? Could Congress create an arrangement that removed politics from the consideration of criminal allegations against executive branch officers? Could an independent counsel arrangement help restore public confidence in government in the wake of Watergate? The question we must ask ourselves today is not whether Congress could or should have come up with different answers then but whether twenty years later, in a political environment even more steeped in distrust, we can imagine any other balance among these interests.

In this Article, I use the history of the independent counsel provisions to frame the current controversies surrounding the arrangement. I begin with a brief discussion of the uses of special prosecution arrangements prior to Watergate, followed by a fuller discussion of the influence of the Watergate scandal on the creation of the 1978 provisions. After an exploration of the various issues debated by Congress before passage of the provisions, I consider the way in which the implementation of the Act shaped the debates at each consecutive reauthorization in 1982, 1987, and 1994." Finally, I return to the present, linking this history with the current controversies about the Attorney General's discretion, the independent counsel's independence, and the alternatives to the independent counsel in a climate of distrust.

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