Time to revive the independent counsel statute.
There is now credible evidence that President Trump pressed then- FBI Director James B. Comey to end the investigation of Michael Flynn, the administration’s first national security advisor. If true, Trump could be guilty of obstruction of justice. But there is no mechanism in place to ensure a truly independent inquiry of this or other possibly illegal actions by high-level Trump officials.
Congress should therefore renew the independent counsel statute providing for the appointment of a special prosecutor, one who cannot be fired by the president or the attorney general.
On Wednesday, Deputy Atty. Gen. Rod Rosenstein announced he was appointing former FBI Director Robert S. Mueller III as independent special prosecutor to take over the Justice Department investigation of Russian meddling in the 2016 election. Without the protection of the independent counsel law, however, Trump can fire Rosenstein and Mueller.
Nor is an investigation by Congress or an independent commission enough. Criminal charges, if warranted, cannot be brought unless there is a prosecutor.
Only a special prosecutor appointed under the auspices of a new independent counsel law can thoroughly investigate the many serious allegations swirling around this administration, and then prosecute if necessary. To name one irregularity beyond Trump’s possible obstruction of justice, it appears that Attorney General Jeff Sessions violated federal law by lying to Congress about his contacts with Russian officials. Additionally, there is the question of whether Flynn violated federal law by not registering as an agent of a foreign government and not disclosing payments he received.
The original independent counsel law was inspired by Watergate.
The scandal implicated top-level officials from the Nixon administration and the Campaign to Reelect the President. Attorney General Elliot Richardson appointed Archibald Cox as a special prosecutor, and he obtained a federal court order requiring Nixon to produce tapes of White House conversations. Nixon refused to comply and ordered Cox not to seek additional tapes. Cox insisted that the President obey the subpoena and any subsequent ones.
Nixon responded by firing Cox. Only the resulting firestorm, during which top members of the Justice Department courageously defied the president by resigning in the Saturday Night Massacre, forced Nixon to appoint a new special prosecutor, Leon Jaworski. Jaworski’s investigation ultimately produced evidence that Nixon had engaged in illegal obstruction of justice and led to the only resignation by a president in American history.
These events taught Congress the need for a reliable mechanism to guarantee the independence of such investigations in the future. The Ethics in Government Act of 1978, which was revised several times, addressed the problem by providing that investigations of high government officials and their close associates be conducted by a truly independent official, one named by a panel of judges and judicially protected from arbitrary removal.
In 1988, in a 7-1 opinion, the Supreme Court upheld the constitutional validity of the law as a legitimate response to the “conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers.”
The statutory independent counsel mechanism was not perfect. For example, when Lawrence Walsh investigated the Iran-Contra affair, the Reagan administration managed to block part of his work by refusing to reveal classified documents.
Nonetheless, the system worked: The Iran-Contra investigation resulted in seven guilty pleas and two jury convictions that survived appeals. Moreover, when Executive Branch officials such as Edwin Meese III and Theodore Olsen were cleared by independent counsel investigations, those results had a credibility that would otherwise have been lacking.
From a congressional viewpoint, the real problem was that the system worked too well. Republicans were particularly upset about the Iran-Contra investigation. Democrats complained about Kenneth Starr’s inquiry into Whitewater, which expanded to include potential perjury and obstruction of justice by President Clinton arising out of his relationship with Monica Lewinsky.
The result was that, as Clinton’s extra-marital affair became the subject of highly-publicized impeachment proceedings, the parties colluded to allow the independent counsel statute to die in 1999.
Congress should on a bipartisan basis now correct its bipartisan mistake and enact a new independent counsel statute. Trump, who says that there has been no wrongdoing by his administration, should sign it. If he vetoes it, Congress should override his veto.
Erwin Chemerinsky is Dean and Professor, University of California, Irvine School of Law; Eric M. Freedman is Professor of Law, Hofstra Law School
