John Q. Barrett

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The question of what to call Ken Starr is not merely a provocation to commentators across the opinion spectrum. It relates to a serious legal argument that was made in 1997 litigation involving Starr and his office. It also relates to a larger, more complicated issue under the current independent counsel law:' the allocation of power and authority between independent counsel, who are temporary prosecutors operating within jurisdictional limits, and the Attorney General of the United States, who continues during independent counsel investigations to serve as the nation's chief law enforcement officer and to head the United States Department of Justice, which is a central institution of the permanent United States government. ...

This Article considers the allocation of power under the independent counsel law between the Attorney General along with the Department of Justice and the independent counsel whose appointment the Attorney General has triggered. Although the law explicitly transfers much of an Attorney General's lawful power to an independent counsel, it does not go far enough in reallocating that power. Thus, it leaves a fundamental gap between what the current statute purports independent counsel to be and what it actually empowers independent counsel to accomplish. Part II of this Article reviews the current legal provisions, including the allocations to independent counsel of powers that ordinarily would belong to the Attorney General and the Department of Justice. Part III considers some instances in which the powers that the law or custom reserves to the Attorney General have been exercised to complicate or impede the work of independent counsel. Part IV proposes statutory modifications that would allocate further power to independent counsel. Part V considers some of the challenges that would arise and the political consequences that might flow from these proposed statutory modifications.

I conclude in Part VI that an empowered independent counsel might have better working interactions with an Attorney General and the Department of Justice, facilitating quicker and more satisfying outcomes to independent counsel investigations. In the alternative, even if empowering independent counsel vis-&-vis the Attorney General would result in more visible and frequent political showdowns-between Attorneys General and independent counsel or between Presidents and independent counsel-this too could be healthy for our larger governmental processes.