Impeachment and the Independent Counsel: A Dysfunctional Union

By Gormley, Kenneth | Stanford Law Review, January 1999 | Go to article overview

Impeachment and the Independent Counsel: A Dysfunctional Union


Gormley, Kenneth, Stanford Law Review


When Independent Counsel Kenneth Starr submitted to Congress a report of his investigation of President Clinton and defended that report in testimony before the House Judiciary Committee, Professor Ken Gormley was in a unique position to comment on the implications of the statutory authorization for Starr's report. Having just published a biography of Watergate Special Prosecutor Archibald Cox, Professor Gormley is expert not just in the history of the independent counsel statute but also in the careful consideration that Cox and others since him have given to their appropriate roles as special prosecutors. Professor Gormley, along with Cox and Stanford Law School professors Gerald Gunther and Pamela Karlan, took part in a panel discussion at Stanford Law School on October 15, 1998, entitled "The Future of the Independent Counsel" This discussion was part of a tribute to Cox on the occasion of the twenty-fifth anniversary of his firing by President Nixon in the fall of 1973, in what has come to be known as the "Saturday Night Massacre." In this special commentary, Professor Gormley expands upon an argument he made at that tribute: that Starr's report and its political aftermath reveal previously unrecognized flaws in the independent counsel statute. Section 595(c), the provision that mandates independent counsels to submit to Congress any "substantial and credible evidence" related to impeachment, raises particular problems. Professor Gormley argues that it is likely that sitting presidents are constitutionally immune from criminal prosecution while in office and it is therefore improper for them to be subjected to the prosecutorial powers of an independent counsel, simply as a vehicle to gather impeachment-related material for Congress. Further, Gormley argues, the impeachment referral provision represents an impermissible congressional usurpation oft he power of the independent counsel--an executive officer--by making him a pre-impeachment deputy of the legislature. It thus constitutes an improper evasion of Congress' political accountability in the Framers' plan for impeachment. Professor Gormley concludes by offering specific suggestions for curing these serious defects in the independent counsel statute when the act sunsets next dune. The reader should note that this issue of the Stanford Law Review went to press on December 10, 1998, as the House Judiciary Committee debated whether to approve articles of impeachment against the President.

INTRODUCTION

Just when we thought we had unearthed all of the many flaws in the independent counsel law,(1) the recent issuance of the Start Report(2) of Whitewater Independent Counsel Kenneth Start and his testimony in Congress(3) supporting the movement to impeach President Clinton have exposed another constitutional defect in the statute. It interfaces in a dangerous fashion with the impeachment provisions of the U.S. Constitution. The congressional oversight provisions of the independent counsel statute include section 595(c), which mandates that "[a]n independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel's responsibilities under this chapter, that may constitute grounds for an impeachment."(4) This referral provision, which has been contained in the Watergate era statute since its adoption in 1978, was added to ensure that the product of an independent counsel's work would be available to Congress in the event a criminal investigation led to an impeachment inquiry.(5) Yet as recent events have revealed, if the principal target of a special prosecutor's investigation happens to be the President, serious problems lie beneath the surface of the referral provision's seemingly benign language. This commentary will argue that where the President's conduct is at issue, it is constitutionally improper, as well as unwise as a policy matter, to allow the independent counsel to interact with the legislative branch in the fashion that section 595(c) dictates.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Impeachment and the Independent Counsel: A Dysfunctional Union
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.