General Practice, Solo & Small Firm DivisionMagazine

Volume 15, Number 3
July/August 1999

The Demise of the Independent Counsel -- Legislative Update

E. E. Anderson

During the hearings on what became the Ethics in Government Act of 1978, then-Senator Charles Mathias (D-MD) foresaw a controversy: "I am a little concerned with the concept of the Office of Special Prosecutor with a sort of inquisitorial role."

He continued, "This could have some backlash of a serious nature, this office could, over a period of time, acquire a connotation which could be as serious as the problems it is meant to cure, and the Inquisitor of the Special Prosecutor could get a disproportionate kind of influence." A strong proponent of the legislation, Senator Sam Ervin (D-NC) said the proposed legislation would remove politics from the administration of justice.

In 1992, Republicans became incensed when an independent counsel issued a report that questioned the truthfulness of President Bush, just before the election he lost to President Clinton. The Republicans blocked the reauthorization of the law. Attorney General Janet Reno testified in 1993 before the House Judiciary Committee, arguing that the statute had been effective in preventing conflicts of interest in investigations of high-level executive branch officials. In 1994, 18 months after the Republicans blocked reauthorization, the law was reenacted. P.L. 103-270 was passed, renewing the Independent Counsel Act.

Following the bill’s reenactment, the statute took center stage with the appointment of Kenneth W. Starr by a three-judge federal court panel as the Whitewater Independent Counsel. In his five-year stint as an Independent Counsel, Starr’s investigation expanded greatly, finally resulting in the filing of impeachment charges against President Clinton in the House of Representatives. During this entire period, Starr and the statute became the focus of many critics in the administration. Starr later testified before Congress that "the assaults took a toll. A duly authorized federal law-enforcement investigation came to be characterized as yet another political game." He concluded, "Law became politics by other means."

So what is the fate of the Independent Counsel Act? At its February 1999 Midyear Meeting, the ABA House of Delegates, by a vote of 384-49, opposed the reauthorization of the Act. On March 10, 1999, ABA President Philip S. Anderson told the House Judiciary Subcommittee on Commercial and Administrative Law, "The public clearly believes that, rather than ensuring that all people are treated equally before the law, the statute has caused those subject to its purview to be treated in a far more hostile and unbalanced way." While recognizing the ABA’s earlier strong support for the enactment of the law, he did point out that in 1982, 1987, and 1993, the ABA had recommended extensive changes to the act, but despite some revision, the law was so seriously flawed that it should be allowed to die on June 30, 1999.

Testifying before the Senate Government Affairs Committee, Reno admitted a change of heart at the Justice Department: "We at the department have come to believe that the act’s goals have not been well served by the act itself, and that we could do better without a statute."

Although not a supporter of the act, Committee Chair Fred Thompson (R-TN) expressed his concern about leaving the decision on how to investigate high officials entirely to Reno’s successors. An article in the Wall Street Journal expressed similar misgivings, noting that the Public Integrity Section of the Justice Department had failed to file a report required by the statute to Congress since 1996, and that the Justice Department’s violations of the Vacancy Act had enraged even Senator Robert C. Byrd (D-WV).

In the House, some holdouts remained for maintaining the law with restrictions. They supported a revised statute. Representative George W. Gekas (R-PA) remarked, "I’m worried sick about the prospect of its dying without a developed mechanism in place." In the Senate, Senators Lieberman (D-CT), Collins (R-ME), Spector (R-PA), and Levin (D-MI), fully expecting the statute to expire on June 30, nonetheless began to draft a reauthorization bill, whose details at this time are largely unknown. The chances for passage of such a reauthorization bill are slim, especially in light of Starr’s testimony to Congress that it should let the act expire, at least temporarily, "for a cooling-off period, or perhaps more aptly, a cease fire."

Retired Regular Officers Pay Caps May End

Retired regular officers of the uniformed services, including those in the Army, Navy, Air Force, Marine Corps, the Public Health Service, and the National Oceanographic and Atmospheric Agency, have strenuously objected to the restrictive pay provisions of the Dual Compensation Law of 1964. Under that law, retired regular officers working for the federal government were restricted to receiving the first $2,000 of their retired pay, and one-half of the remainder. This restriction was intended to keep their total pay near that of enlisted retirees (who had no restriction) working for the government. With cost-of-living and pay increases, the restriction today amounts to $10,450, plus one-half of the remainder. There is also a second limit on total pay that is currently set at $110,700 a year, the ceiling of a Level V employee. Neither of these laws applies to retired reserve officers or retired enlisted personnel.

To correct this inequity, Senator Michael Crapo (D-ID) introduced in February an amendment to the Soldiers’, Sailors’, Airmen’s and Marines’ Bill of Rights Act (S.4) that would rescind both compensation restrictions for regular officers. The financial loss to a retired regular officer who accepts federal employment is roughly $10,000 to $20,000 a year. Senator Crapo’s amendment was adopted on February 23, 1999, by a vote of 87-11. In addressing the Senate, Senator Crapo commented: "In fact, because of this law, many of them are discouraged from seeking employment from the federal government. I have been unable to find one good reason to explain why we should want our law to discourage retired members of the uniformed services from seeking full-time employment with the federal government. It deprives them of an important opportunity for employment and it deprives our government from their able expertise and service."

He went on to say, "This amendment would fix this inequity, and give retired officers equal pay for equal work from the federal government, and it gives the federal government access to a workforce that currently avoids employment with the federal government." Carl Levin (D-MI), while agreeing with the thrust of the amendment, voiced a concern about "whether or not the amendment addresses the administrative cap that exists on salaries here in the Senate, and I understand there is a similar administrative cap that exists in the House as well." He was concerned that changing the law would just create another inconsistency between Congress and the executive branch. Senator Crapo replied, "This amendment simply eliminates the dual compensation prohibition in the statute. It does not specifically address the administrative cap that Congress has on top of that limitation placed on those who seek employment with Congress. While it does not eliminate the caps the House and Senate have placed on their employees, it does solve the problem for retired regular officers of the uniformed service who choose to work in other branches of government."

The Under Secretary of Defense for Personnel has testified that DOD would support the legislation, but the White House and the Office of Personnel Management have not yet formulated a position on the legislation. In the House, no companion bill to S.4 has been adopted, but H.R. 606 has been introduced, a bill that would lift the 1994 dual compensation restriction for only regular officers retiring after the law was passed.

Judicial Nominations Again Stalled

In "Legislative Update," Winter 1998, we reported Attorney General Janet Reno’s dissatisfaction with the delay in the nominating process of Article III judges. Speaking before the Annual Meeting of the ABA House of Delegates on August 5, 1997, she accused the Republicans of creating a vacancy crisis. She outlined the many vacancies on the federal bench and spoke of the judicial emergencies. Senator Orin G. Hatch (R-UT), Chair of the Senate Judiciary Committee, responded, calling Reno’s analysis "incomplete, factually inadequate, and ultimately misleading." He said that the "current vacancy rate [101] doesn’t even approach the 142 vacancies in August 1991 or the 117 in August 1992 when the Democrats controlled the Senate."

In the last Congress, the Senate confirmed 73 judges, an exceptionally high number, and if President Clinton continues on his present pace, he will approach or exceed the number of judges President Reagan appointed to the bench. Between the two presidents, they have appointed more than 80 percent of all federal judges.

However, in this Congress, Senator Hatch has not scheduled even a single hearing on judicial nominations. What has caused this failure? It appears that it revolves around the pending nomination of Ted Stewart, Chief of Staff to the Governor of Utah and a conservative, to the federal district court.

Although Stewart’s name is currently only in the pre-nomination process in Utah, he is under attack from environmental groups who criticize his strong support of mining and development interests. These groups have expressed their strong concerns to the White House. They are openly critical not only of the president’s lack of persistence in pursuing the confirmation of other, more liberal appointees but also of his willingness to make deals with the Republicans—appointing a conservative judge as quid pro quo for the confirmation of a liberal one. While the environmentalists are bombarding the White House, they are also filling the airways and newspapers in Utah with strong criticism of Stewart. However, Senator Hatch remains deeply committed to Stewart’s appointment and has said that "things can get rough around here" if the president does not pick Stewart.

Some nominations have been stalled for a few years. Perhaps the most notable one is Judge James A. Beatty, Jr., of North Carolina. His appointment for a seat on the 4th U.S. Circuit Court of Appeals would have placed the first black judge on that court. He was first nominated in December 1995, but despite renewals each successive session, his case has never been up for a vote. His name does not appear on the nominations submitted by President Clinton in January 1999, so it appears the White House may have given up on this struggle.

While the president is under fire from liberals for his lack of commitment to his nominees, the Justice Department argues that it works very hard through quiet negotiations to get the president’s nominations confirmed. The confirmation of so many judges during the last term seems to support the Department of Justice, but the increased number of confirmations may be due to Chief Justice Rehnquist’s complaints about vacancies and the effect on the judicial process. But for now, it appears that Senator Hatch has placed a hold on all confirmations, at least until President Clinton decides whether to nominate conservative Ted Stewart.

A Partial Government Shutdown?

As indicated in "Legislative Update," January/February 1999, because of a dispute between Republican and Democratic representatives on census sampling, funding for the Departments of Commerce, State, and Justice was provided only until June 15, 1999. At that time, funding ceases unless a new agreement is reached. With that day quickly approaching, the House Government Reform Committee has approved, largely along party lines, seven bills involving the 2000 census. Commerce Secretary William Daley has stated that President Clinton will veto three of them. One of the three is H.R. 472, a bill giving local governments 45 days to review and challenge census results before they become permanent. Democrats contend that it would delay completion of the count and would not result in any more accuracy. On April 14, the House passed H.R. 472 by a vote of 222-206. The other two bills in question are H.R. 429, requiring the printing of the short census form in 34 languages, and H.R. 928, mandating a second mailing of census forms.

Despite these efforts, Congress must still agree on fiscal 1999 appropriations for Commerce, State, and Justice. Republicans have indicated that they will insert language in any such appropriations bill prohibiting the use of sampling for any purpose. Clinton has indicated he would veto any such bill, and this could lead to a partial federal government shutdown.

While Democrats eagerly look forward to another shutdown, as they benefited greatly from the last one, Republicans are intent on not taking the blame for it. Speaker J. Dennis Hastert (R-IL) has asked former Representative Bill Paxton of New York to prepare a strategy for explaining a partial shutdown. He has also met with the Republican leadership and media experts to develop a plan for such an emergency situation. Yet on April 14, a spokesperson for Speaker Hastert indicated that GOP leaders may extend funding for those departments to September 30, the end of the fiscal year. This could be accomplished through language in a supplemental spending bill. We must now wait to see whose knees buckle first, the Republicans or the Democrats.

E. E. Anderson, a retired general in the U.S. Marine Corps, is the director of the ABA General Practice, Solo and Small Firm Division’s Solo and Small Firms Division.

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