In early medieval Europe, it was customary to settle legal disputes with trial by combat. As might be expected, the outcome depended less on guilt or innocence than on the ability of the rival parties to use force and amass allies. One thousand years of political evolution, culminating in the Constitution of the United States, should have rendered such primitive methods obsolete. Yet the conflict between the Clinton White House and Independent Counsel Kenneth Starr brings to mind the legal system of 998 A.D. rather than that of 1998. Starr has advanced his case by usingsome say abusingthe coercive prosecutorial power granted him. And the Clinton administration has sought to win allies not by detailing the merits of its case but by appealing to partisan sympathies. To complete the irony, both opponents have revived the trial-by-combat method in the name of the Constitution and the rule of law.
For his part, Starr has hopelessly discredited the office of the independent counsel as it now exists. Arguably overstepping the usual bounds of prosecutorial discretion, and possibly violating the law as well, he has tossed Susan McDougal into prison for refusing to testify against President Clinton and wired Linda Tripp to tape-record Monica Lewinsky (apparently, Starr even wanted to wire Lewinsky to entrap the president himself). Any reasonable link to the Whitewater affair, which Starr was charged with investigating, vanished long ago. He is a right-wing Republican attorney intent on destroying the Clinton presidency by any means necessary.
The independent counsel lawthe legislation that has allowed Starr to carry on his partisan crusade using taxpayer dollarswas passed by Congress in 1978, in the aftermath of Watergate, to prevent abuses of power by the presidency. In the two centuries of the republic before the statute, which binds the attorney general to seek the appointment of an independent counsel whenever “specific” and “credible” evidence of wrongdoing by certain federal officials arises, federal special prosecutors had been employed exactly three times: during the Harding administration’s Teapot Dome scandal in 1923; the Truman administration’s tax scandal involving the IRS and the Justice Department in 1951; and the Watergate scandal. Now, 20 years after the law, inconclusive and trivial investigations have become a constant, dreary feature of American political life.
Even before Starr’s crusade, Lawrence Walsh’s Iran-Contra probe showed the dangers inherent in the statute. A disputed policy (in this case, a covert arms-for-hostages operation undoubtedly authorized by President Reagan) became criminalized, and the administrators of presidential affairs were sacrificed to protect their boss. The arbitrariness of the results made a mockery of justice: The convictions of both National Security Council aide John Poindexter and Lt. Col. Oliver North were set aside on a technicality, and national security considerations led to charges against Costa Rican CIA station chief Joseph Fernandez being dropped.
It took Starr, however, to confirm the darkest predictions made by critics of the independent counsel idea back in the 1970s. “I am a little concerned with the concept of the appointment of the office of special prosecutor with a sort of inquisitorial role,” said Sen. Charles Matthias back in 1974. Even the Watergate Special Prosecution Force warned in 1975 of the “great potential for a special prosecutor’s abuse of power. He can easily stretch from proper investigative techniques or attempt unfairly to widen the conduct of the persons included within a criminal sanction.”
The past two decades of petty inquisitions of both Republican and Democratic officials, at enormous expense in both taxpayer dollars and unfairly ruined reputations, have now culminated in Starrgate. The upside of the controversy over Starr’s abuses of the independent counsel statute is that it provides lawmakers in Washington with an occasion to rethink the question of how the executive branchwhich is charged with enforcing the lawscan itself be policed. Congress should start by refusing to renew the independent counsel statute when it comes up for reauthorization next year. The law was a disastrous mistake. However, we shouldn’t let the furor over Starr’s investigation obscure the fact that an institutional check on the presidency is still necessary.
Yes, that’s rightthe presidency, not the president. The president is an individual; the presidency is an institution. Or, to be more precise, two institutions: the executive branch, which was created by the Constitution and comprises the Cabinet agencies and independent agencies, and “the presidential branch,” the term political scientists use to describe the White House staff and the staff of the Executive Office (including officials in the National Security Council, the Office of Management and Budget, and the Council of Economic Advisors). The approximately 1,500 members of the presidential branch form a government-within-a-government, the miniature court of an elected monarch.
Unlike the Cabinet secretaries, White House and Executive Office aides are not confirmed by the Senate. This removes one of the major constitutional checks on presidential power. Furthermore, heads of executive branch departments must carry out their duties, which are defined by statute, under the supervision of Congress, the courts, and the White House; presidential aides serve only the presidentthe president as politician, not as chief magistrate. Often, their goal is not good government, but good press and good poll ratings for their boss.
And they are multiplying. The presidential court is a recent invention, having sprung up since the FDR and Truman administrations, and there are now more than three times as many officials working on the White House staffas distinguished from the executive branchas there are members of Congress. The Founding Fathers did not envision the creation of a presidential court of more than 1,000 people. They did not foresee Haldeman and Ehrlichman. This fourth branch of government, staffed by presidential loyalists, makes illegitimate partisan interference in the day-to-day operations of government practically inevitable. Increasingly, members of the presidential staff are serving as intermediaries between the president and the executive branch, a position from which they can pressure executive-agency officials into performing political favors for their master.
The attempt by Nixon staffers to enlist the aid of the CIA and FBI in the Watergate cover-up was among the gravest abuses of the Nixon presidency. More recently, allegations that Clinton’s presidential staff employees and CIA staffers lobbied the National Security Council on behalf of oil tycoon and big political spender Roger Tamraz, or that former Deputy Chief of Staff Harold Ickes succeeded in lobbying Interior Secretary Bruce Babbitt to make a ruling favorable to an American Indian tribe that had donated significant sums to the Democratic Party, demonstrate the perennial potential for this kind of abuse. Although the current independent counsel law is ill-conceived, some sort of institutional check on the presidential court is necessary to protect the integrity of the permanent federal bureaucracy from corruption by presidential flunkies. Even if every president could be trusted (which is highly unlikely), the same would not be true of the hundreds of presidential courtiersmany toiling in anonymity in the White House and the Executive Office buildings, unknown even to members of the Washington press corps.
The influence of the presidential monarchy is most insidious, and potentially most damaging to the public trust, when it extends into the Justice Department. The attorney general is responsible for supervising the impartial administration of justice by federal law enforcement officials. At the same time, he or she is also a political appointee and is expected to be part of the president’s partisan teameven to serve as the president’s attorney. An attorney general cannot be counted on to remain unbiased while investigating possible criminal or unethical activity on the part of his or her boss and colleagues.
And the threat posed by a corrupt or excessively partisan attorney general is genuine. Attorney General Harry Daugherty resigned as a result of the Teapot Dome scandal. During the Truman tax scandal, Attorney General Howard McGrath fired the special prosecutor for being too zealouswhereupon Harry Truman fired McGrath. Later, as a result of Watergate, Attorney General John Mitchell went to prison.
Former Sen. Paul Simon, writing in the New York Times in February, suggested removing this potential conflict of interest by making the Justice Department an independent, nonpartisan agency. In Simon’s plan, a bipartisan panel appointed by the president and the judiciary committees of the House and Senate would submit three nominees to the president, who would then choose one of them for the post. Confirmed by the Senate, the attorney general would serve for 10 years. “We could then repeal the independent counsel statute,” writes Simon, who admits that his vote for it in 1978 “was a mistake.” Others, including Sen. Sam Ervin, chairman of the Senate committee that investigated Watergate, have made similar proposals.
The idea is compelling. In many states, the governor and the attorney general are elected separatelywith no evident negative effects for the administration of justice. And then there is the FBI director, whose legitimacy is enhanced by a 10-year term and independence from the White House. An independent attorney general serving for a fixed 6-year or 10-year term might be an equally good idea.
Some claim that federal officials with a degree of independence from the White House will run amuck without oversight from the administration. But every one of the executive branch scandals of the past generationfirst and foremost, Watergatehas involved the fact or suspicion of abuse of executive branch agencies by the president and his close aides, for personal or partisan reasons. Presidents and their minions are much more likely than heads of federal departments to run roughshod over the law.
The second best alternative to an independent Justice Department is to replace today’s ad hoc independent counsels with employees of a permanent Office of Independent Counsel, an idea that was first proposed in 1974 by Sen. Alan Cranston. Many others have endorsed the notion, too: Ervin’s Senate Watergate Committee proposed an Office of the Public Attorney; former Kennedy legal counsel Theodore Sorenson suggested a Counsel General; and Washington lawyer Lloyd Cutler, in his version of the proposal, came up with the rather grim title of Public Prosecutor.
Whatever it is called, such an office would be a grand improvement over the current situation. Instead of reauthorizing the independent counsel statute next year, Congress should create a permanent, nonpartisan Office of Independent Counsel, with a small staff of full-time federal attorneys. This would put an end to private-sector lawyers like Kenneth Starr dabbling in governmentwrecking while making a lucrative living on the side.
Like all federal agencies, a permanent independent counsel’s office would have to work within a budget. During the Iran-Contra investigation, Walsh spent a total of $47.9 million. And as of March of last year (the latest figure available), Starr had spent almost $26 million.
As the legal scholar and former Reagan Justice Department official Terry Eastland has noted, the agency would develop an institutional memory, and “a larger prosecutorial universe would serve to check the occupational hazards of single-minded prosecutorsthose of too narrow a focus, of diminished perspective, of preoccupation with one allegation, or suspect to the exclusion of all else.” Moreover, strict limits could be imposed on the discretion of the permanent independent counsel, and the counsel’s subordinates, in order to prevent endless fishing expeditions by Captain Ahabs obsessed with bringing down this or that white whale.
The argument I’ve made against a presidency bloated with obsequious lackeys may sound like just another harangue against “big government,” but it’s not. There is no contradiction in favoring a strong federal government with a limited presidency. In the 19th century, members of the Whig Party such as Daniel Webster, Henry Clay, and the young Abraham Lincoln favored both a powerful, activist national government and a president who reignedbut did not ruleover highly autonomous executive departments. The Whig Party was formed as a reaction to the excesses of Andrew Jackson, whose conception of the president as an elected monarch with a direct mandate from the people has influenced the Rooseveltian presidency of the 20th century.
Thanks to the prestige of FDR and his most popular successors, elite opinion is still solidly in favor of an immensely powerful presidency. Policy wonks, law professors, editors, and journalists generally prefer strong presidents and activist judges, who can write their pet projects into law by decree, over a powerful Congress, which may delay or dilute the reforms they favor. Besides, executive branch officials and federal judges are more likely than popularly elected members of Congress to have gone to expensive schools with the journalistic-intellectual elite.
If every president had the integrity of Franklin D. Roosevelt, additional institutional checks on the presidency would not be needed. Unfortunately, just as the office of the independent counsel was bound to be abused sooner or later by a Kenneth Starr, so the Rooseveltian presidency sooner or later was bound to be abused by a Richard Nixon. The presidency and the independent counsel act both need to be reformed to minimize the potential for abuses by the bad at the expense, if necessary, of the prerogatives of the good.
Michael Lind is a contributing editor at Harper’s Magazine. This article is the third in a four-part series on democratic political reform in the United States.