Does the Federal Government Need an Independent Counsel?
06 February 2006
by Michelle Calderon, staff writer for AnaiRhoads.org
Former Secretary of State Henry Kissinger believed in the concept that people who commit crimes can be tried wherever they are found (Roth, 2001). Ideally, in the American criminal justice system, citizens are bound by the laws and punished for injustices done to society. While the system is quite complex, it is yet from being perfect. Many feel those of high powered positions are "above the law". Still more complex are the jurisdictions over crimes that involve actors of the system: specifically, the executive branch of the government. However, as Kissinger believes, people of influence and power are not and should not be immune to the consequences of their crimes.
The Watergate scandal led to public perceptions that high-level administrators were covering up crimes. In 1978, Congress drafted the Ethics in Government Act, creating a special prosecutor (later changed to Independent Counsel) to investigate individuals holding or formerly holding certain high positions in the federal government and in national Presidential election campaign organizations. Its purpose was to ensure the rule of law, to check abuses of power in the executive branch, and to restore public confidence in government after the Watergate scandal (Roth, 2001).
The role of the counsel is to investigate any allegations of criminal conduct on the part of the President, his cabinet secretaries, top White House aides, and the like. An independent counsel can only be appointed by the attorney general and a special three-judge panel on a federal court. While the President may remove and fire an independent counsel for "good cause," the reasoning is subject to judicial review and the attorney general’s approval (the same attorney general who appointed the counsel in the first place). As the president could not easily dismiss the counsel, the general feeling was that independence of the office would ensure impartiality. Members of Congress have viewed the law as a way to ensure public confidence in unbiased law enforcement.
However, there have been many critics of this law.
The Independent Counsel enjoys the same powers that the Justice Department would have in any criminal investigation. They have the power to compel testimony from people, haul them in front of grand juries, charge people with crimes, grant immunity, enter plea bargains, and make deals. However, this special prosecutor could investigate allegations of any misconduct with an unlimited budget and no deadline. Even what turns out to be trivial charges can result in lengthy investigations. There is evidence of the financial impactan independent counsel has on society. A survey done last year of independent legal firms revealed costs that ranged from $160 an hour to $234 and hour. It is probable that changing from County Counsel to an independent counsel would result in higher costs (Lehrer, 1998).
Additionally, the Department of Justice feels that its career officials can conduct independent investigations of suspected criminal wrongdoing free of partisan pressure. More so, the Constitution envisaged this country having three separate branches of government that would check each other and prevent abuse of power. Those opposed to the idea of an independent counsel feel we have a fourth, unelected, unaccountable lawyer who happens to be of the other party from the President, who is sitting there investigating anything that comes along. Still, critics charge that independent counsels have unchecked powers. Probably most importantly, the independent counsels have rarely gained convictions against high ranking federal officials (Harringer, 2000).
For example, independent counsel Donald Smaltz indicated Agriculture Secretary Mike Espy of accepting bribes, but the jury acquitted. Probably most scandalous is the attempted impeachment of Bill Clinton initiated by the independent counsel, Kenneth Starr for the sexual allegations with Monica Lewinsky (Roth, 2001).
The problem here is that this is act is a political reflection where the party in charge is being challenged by the other party. Considering the percentage of convictions and the costs at stake during such investigations, there is no indication of the real advantage to having an independent counsel.
References:
Harringer, K. (2000). Independent Justice: The Federal Prosecutor in American
Politics. Retrieved February 3, 2006.
Lehrer, J. (1998). The Independent Counsel. Retrieved February 3, 2006.
Neubauer, D. (2002). America’s Court and the Criminal Justice System (143-144).
Roth, K. (2001). The Case for Universal Jurisdiction. Foreign Affairs Volume
September/October 2001. Retrieved February 3, 2005.
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