Terry Eastland, formerly of the Reagan Justice Department, has written a learned book explaining that, according to the Constitution, embarrassing crimes in an administration can only be investigated by prosecutors on a leash held by the President whom those crimes embarrass. Eastland’s target is Title VI of the Ethics in Government Act of 1978, which provides for court-appointed independent counsels (special prosecutors) to investigate allegations of wrongdoing by high-ranking executive officers. In the eleven years since the act was passed, there have been at least nine investigations, including those of former Attorney General Edwin Meese III, Lieutenant Colonel Oliver North, and former National Security Advisor John Poindexter. The statute, which limits the power of the attorney general to remove an independent counsel, originated after the “Saturday Night Massacre” of 1973, when Solicitor General and Acting Attorney General Robert Bork fired Watergate special prosecutor Archibald Cox, who had presumed to request Nixon’s White House tapes. (Bork’s superiors. Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, had resigned rather than aid Nixon in suppressing the investigation by firing Cox.)

The independent counsel law applies only to members of the executive branch. Eastland sensibly suggests that it be amended, so that independent counsels can investigate wrongdoing in Congress and the judiciary as well. Eastland argues, with some justification, that liberal Democrats in Congress have used the independent counsel law to harass executive officers of whose policies they disapprove.

Eastland’s other practical arguments against the statute are less persuasive. Since 1979, the total cost of all independent counsel investigations has been only $20 million. In the past several years alone the Reagan and Bush administrations have reportedly spent $40 million to catch D.C. Mayor Marion Barry smoking crack with his girlfriend, a police stooge. While the Reagan administration burned mountains of tax dollars to catch Barry, “Silent Sam” Pierce, the former secretary of HUD, reportedly gave away up to $8 billion worth of contracts and other favors to Republican contractors and allies. The Pierce scandal makes any suggestion that an administration can be counted on to police its own look rather dubious.

Eastland also attacks independent counsels because, after lengthy initial investigations, they sometimes decide not to press charges. “Expect as a result of an investigation—even one that does not result in indictment—some damage to your reputation, more than would have occurred under normal circumstances.” Therefore there should be no independent counsels. Because innocent people are sometimes falsely suspected, should no one be prosecuted for murder? “Ordinary citizens do not experience this kind of investigation.” Eastland does not believe that high-ranking executive branch officials should be held to higher standards than the taxpayers who pay their salaries. It is difficult for Americans outside of the Beltway, however, to weep for the tainted reputations of deputy attorney generals and such, who should find it relatively easy to lick their wounds in big firms in Washington and Wall Street. (At any rate, individuals who are not indicted are reimbursed for all of their legal fees.)

Eastland notes that the independent counsel in the North investigation “persistently tried to subpoena the Canadian ambassador to the United States; although in the end the district court held that his subpoenas violated diplomatic immunity, a great deal of expensive diplomatic china was broken in the process.” Once we begin to abolish domestic institutions because they irk the Canadians, where will we stop? There is no check on executive corruption and tyranny that a President cannot characterize as interference with his foreign affairs powers.

Even weaker than these practical arguments are Eastland’s constitutional criticisms of the independent counsel statute. But then, few statutes are so obviously constitutional as this. Article II says that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint” federal officers, except that “the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, in the heads of departments.” Congress in 1978 thought it proper to vest the appointment of independent counsel, an inferior officer, in the courts of law. End of case. That is what, in effect, the 7-to-1 majority of the Supreme Court, in an opinion written by conservative Chief Justice William Rehnquist, decided in 1988 in Morrison v. Olson. Only Justice Scalia disagreed, in a dissenting opinion marred by significant errors of historical fact (he relies on the discredited scholarship of Chief Justice Taft in a 1926 opinion about presidential removal power, and he claims that prosecutorial discretion has always been considered an executive prerogative, an assertion true neither for Britain, many of the American states, nor the federal government itself).

Eastland’s suggestion that the independent counsel is not an “inferior officer,” because the attorney general cannot remove him at will, is too sophistical even to rebut. A more serious constitutional argument holds that the Constitution, through the “executive power” and “take care” clauses of Article II, vests the President with arbitrary and illimitable control over all federal officers. (Not only the independent counsel statute, but the fixed term of the FBI director, violates this royalist ideal.)

Under the kings of Britain, royal governors had often refused to execute the laws of colonial assemblies, or had executed them “unfaithfully.” The Article II clause charging the President to “take care that the laws be faithfully executed” is a warning to the President to obey the laws passed by Congress, not a grant of arbitrary power to quash any federal investigation he dislikes. Furthermore, the Constitution provides numerous hints that the President’s “executive power” does not give him arbitrary control over all federal administration or law enforcement. Why, for example, if the President is master of all executive officers, did the Framers have explicitly to give him this power to “require the opinion in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices”? The impeachment power is another example. Congress can impeach the President or any other federal officer. Finally, of course, the Constitution allows Congress, by law, to assign the appointment of inferior officers to heads of departments or the courts, rather than to the President. In the 18th century, the power of removal was widely thought to be an incident of the power of appointment. Indeed, there would be no reason to permit other officers or courts to appoint federal officials, if the President, by virtue of a plenary power of removal, became their arbitrary master, once they were appointed. You obey the fellow who can fire you, not the fellow who earlier got you the job. However 20th-century judicial activists such as Taft and Scalia have misinterpreted it, the appointment clause makes sense only as a check on presidential removal power. Case dismissed.

Eastland has tried valiantly to make the weaker appear to be the stronger case. In the final analysis, though, his argument amounts to saying, in fancy language, that Ed Meese can only be investigated by a lawyer who owes his continued employment to Ed Meese. Particular features of the independent counsel law can be criticized, especially the fact that it does not apply to Congress. The principle behind the independent prosecutor statute—that the targets of investigations should not control the investigators—is fundamental to the rule of law.

But that is the old conservative learning. The new strict construction, as practiced by born-again Republican fans of the presidency created by Woodrow Wilson and FDR, holds that the constitutional powers of any branch of government that the Republican Party does not control shall be strictly construed as narrow exceptions to the vast, awe-inspiring, and plenary power of whatever branch the GOP does temporarily dominate. “There is insufficient appreciation in today’s political culture for the origins and delicate character of executive power (not to mention its importance to limited government),” writes Eastland. “Executive poppycock,” that great conservative lawyer Sam Ervin once snorted. “Divine right went out with the American Revolution.” The cold truth is that no one on the right would spare a moment for hyper-subtle, paradoxical, and farfetched constitutional arguments for illimitable presidential law enforcement powers if we had a Democratic President. One day we will. For that occasion, the Democrats, if they are clever, will keep a library of polemics such as this, with which to taunt their Republican adversaries in Congress.

 

[Ethics, Politics, and the Independent Counsel: Executive Power, Executive Vice 1789-1989, by Terry Eastland (Washington, D.C.: National Legal Center for the Public Interest) 187 pp., $10.95]