Putting Law and Politics in the Right Places—reforming the Independent Counsel Statute

When a public official exercises judgment to make a discretionary decision of some significance, taking into account any factors her own common sense, experience, and understanding of the public interest consider relevant, and subsequently is called to account for the soundness of the decision, she performs one of the paradigmatic acts of politics. When a public official makes a decision because it has been mandated by a prior binding command, and subsequently is called to account only for whether the decision in fact complied with that command, she performs one of the paradigmatic acts of law. The fundamental flaw in the independent counsel law—not the only flaw, but the root of many of its problems—consists of its attempt to convert a political decision, the decision whether to refer a case of public corruption to an investigator outside normal prosecutorial offices, into a legal one. When the Independent Counsel Reauthorization Act of 1994 (“the Act”) expires on June 30, 1999, it should not be reenacted unless this flaw is eliminated. Our existing law enforcement institutions have ample integrity and resources to investigate wrongdoing by high political officials. Whenever the Attorney General or the President reaches the political judgment that someone outside normal investigatorial channels ought to be asked to conduct a particular investigation, he or she has the authority to act on that judgment and to appoint such an investigator. Even if concern about the ultimate accountability of the President or the Attorney General for such investigations lingers, the mandatory referral mechanism of the Act is a poor way to address those concerns. A better ap-