The death this week of Janet Reno, President Bill Clinton’s first attorney general, recalls the era of the failed independent counsel law. The law was passed in 1978, and Congress declined to reauthorize it in 1999, when Reno was still the attorney general. A product of Watergate and the infamous Saturday Night Massacre in particular, the law provided for a system of court-appointed counsels who could be assigned the task of investigating allegations of executive-branch criminality. We needed more ethical behavior on the part of our highest-ranking executive officers, said the earnest supporters of the Ethics in Government Act. What we definitely got were more investigations than would have occurred under normal processes.
Under the law, attorneys general had the crucial responsibility for deciding whether to seek a court-appointed counsel. A president could remove such a counsel only for good cause. The appointment and removal provisions (together with more minor provisions) were intended to make the counsels “independent” of the administration and thus more able to investigate a case and bring charges, if they believed them warranted. Their work also would be more credible than if government lawyers handled the case.
The attorneys general under Presidents Carter, Reagan, and Bush asked for a total of nine independent counsels. Most of the investigations targeted Republicans from the Reagan and Bush administrations. Republicans hated the law while Democrats were largely happy with it. Controversy over the law abounded, and its future was in doubt. In 1988, the law drew a legal challenge from former Justice Department official Ted Olson, a Reagan appointee, whom an independent counsel investigated but declined to prosecute. In Morrison v. Olson the Court upheld the law, but not before Justice Scalia, in one of his greatest dissents, had explained to his colleagues why the measure violated the Constitution’s separation of powers.
The statute was up for reauthorization in 1993, and a Democratic Congress favored it strongly. President Clinton sent his new attorney general to Congress to testify in its favor. She assured the country that “the costs and burdens” of the act were far outweighed by the “need” for it, adding that her “firm conviction” is “that the law has been a good one.”
It was clear that only when Democrats finally “experienced” the work of independent counsels that they might change their view of the law. That happened, as Kenneth Starr conducted the investigation of “Whitewater” and other matters—a probe that drew intense Democratic objection and led to Clinton’s impeachment. When the statute came up for another reauthorization in 1999, Attorney General Reno sent deputy attorney general Eric Holder to Congress to advise of the administration’s new position—in opposition to the law: “It takes a close-up view of the operation[of the law] to understand that it has serious flaws,” he said.
Lacking support in both parties, the law, in its 21st year, was not renewed.
