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.
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. …