By Drinan, Robert F.
National Catholic Reporter , Vol. 35, No. 2
I have a confession to make. As a member of Congress, I voted for the creation of the office of independent counsel. Deep in the midst of the Watergate crisis, I thought I was doing the right thing. I and my colleagues, however, were wrong.
I was there in June 1974 when the Rodino Committee voted to approve three grounds for impeachment. Indeed, I helped start the process since on July 31, 1973, I filed the first resolution of impeachment against President Nixon. When the measure for a special prosecutor immune from political control came before us, I supported it.
The special prosecutor made sense in 1975. The concept was that we would prevent another situation like the one in which Nixon canned prosecutor Archibald Cox in the infamous "Saturday night massacre." Cox was closing in on the truth of Watergate, and Nixon's action was a naked attempt to save his own hide.
In other words, the independent counsel seemed like a good idea at the time. The law authorizing it has lapsed once, but was revived by Congress. Would that the then Democratic-controlled Congress had never done so!
I now feel that Congress overreacted to Watergate. The people involved in that series of tragedies were punished, and a total of 28 lawyers were disbarred or disciplined. But the fever of post-Watergate morality led Congress to believe that a new series of checks on the executive branch should be created.
Many of those devices were helpful, such as ethics officials in every major federal agency. But the law that created the independent counsel was ill-advised and possibly a violation of the separation of powers.
One of the 20 cases initiated by an independent prosecutor ended up in the United States Supreme Court in the decision Morrison v. Olson. Olson, hounded by a special prosecutor but later vindicated on all counts, charged that the statute authorizing special prosecutors was unconstitutional.
The Supreme Court sustained the statute with only Justice Antonin Scalia in dissent. In his opinion, he claimed that the statute violates the separation of powers and gives broad and unenumerated rights to a person appointed by judges to serve in the executive branch of government. Scalia predicted awful things to come, and he was prophetic.
I'm not sure Justice Scalia is right as a matter of constitutional law, but the statute is clearly a bad idea. It was the result of lawmakers seeking to rectify a situation by a new legal arrangement. There was no one around at the time to point out that the cure would be worse than the disease, but it certainly has been.
Ken Starr was appointed under questionable circumstances and encouraged by ultra-conservative forces to employ aggressive tactics far beyond anything intended or even imagined by those who enacted the law. …