Kenneth Starr gave the Independent Counsel a bad name. But he was preceded by an Independent Counsel that took his job seriously. In 1986, Attorney General Edwin Meese put Lawrence E. Walsh in charge of investigating the Iran-Contra affair. He did not issue his final report until 1993. At the end of his report he had a chapter called Concluding Observations. Walsh looked back at the obstacles his office had faced and he ruminated on the role of Congress and the necessity for an Independent Counsel. It’s worth revisiting as we consider the situation we find ourselves in today (emphasis mine).
The path Independent Counsel embarked upon in late 1986 has been a long and arduous one. When he hired 10 attorneys in early 1987, Independent Counsel’s conception of the operational conspiracy — with its array of Government officials and private contractors, its web of secret foreign accounts, and its world-wide breadth — was extremely hazy. Outlining an investigation of a runaway conspiracy disavowed by the President was quite different from the ultimate investigation of the President and three major agencies, each with the power to frustrate an investigation by persisting in the classification of non-secret but embarrassing information. Completing the factual mosaic required examining pieces spread worldwide in activities that occurred over a three-year period by officials from the largest agencies of government and a host of private operatives who, by necessity, design and training, worked secretly and deceptively.
Given the enormous autonomous power of both the Legislative and Executive branches in the modern state, the rightly celebrated constitutional checks and balances are inadequate, alone, to preserve the rule of law upon which our democracy depends.
As Watergate demonstrated, the checks and balances reach their limits in the case of criminal wrongdoing by Executive branch officials. The combination of an aggressive press, simple crimes, the White House tapes, and principled defiance by Department of Justice-appointed counsel all combined to bring Watergate to its conclusion without an independent counsel statute. It was apparent then, however, as it should be now in light of Iran/contra, that the competing roles of the attorney general, as a member of the Cabinet and presidential adviser on the one hand and chief law enforcement officer on the other, create an irreconcilable conflict of interest.
As Iran/contra demonstrated, congressional oversight alone cannot make up for deficiencies that result when an attorney general abandons that law-enforcement role in cases of Executive branch wrongdoing. Well before Attorney General Meese sought an independent counsel in December 1986, he had already become, in effect, the President’s defense lawyer, to the exclusion of his responsibilities as the nation’s top law enforcement officer. By that time, crucial documents had already been destroyed and false testimony given.
Congress, with all the investigatory powers it wields in the oversight process, was not able to uncover many of these documents or disprove much of that false testimony. That inability is structural, and does not result from ill will, impatience, or character flaw on the part of any legislator. With good reason, Congress’s interest in investigating Executive branch wrongdoing extends no farther than remedying perceived imbalances in its relations with the Executive branch. Except in the case of impeachment, Congress’s interest does not, and should not, extend to the law-enforcement goals of deterrence, retribution and punishment.
In normal circumstances, these law-enforcement goals are the province of the Justice Department, under the direction of the attorney general. As the chief law enforcement officer of the United States, the attorney general represents the people of the United States — not the President, the Cabinet or any political party. When the attorney general cannot so represent the people, the rule of law requires that another, independent institution assume that responsibility. That is the historic role of the independent counsel.
We tend to put a lot of hope in the efforts of people like Leahy, Waxman, and Conyers. And we get frustrated when they are unable to accomplish more. We may even be frustrated that they do not attempt more. But Walsh makes some important observations. This one is of particular interest:
Congress’s interest in investigating Executive branch wrongdoing extends no farther than remedying perceived imbalances in its relations with the Executive branch
Of course, this is except in the case of impeachment. During Iran-Contra a decision was made not to pursue impeachment, and that meant the primary goal was to get Reagan to stop disobeying the law and dissuade future administrations from setting up alternative drug and weapon fueled appropriations processes.
Current Congressional investigations seem to be following a similar path. If we can get Bush to use the FISA courts, stop torturing people, give detainees due process, etc., that is supposed to be enough.
And then we have this Attorney General. Walsh’s points about the responsibilities of the Attorney General seem especially relevant to our present predicament.
