Time for an Independent Counsel
Congressional leaders are calling for the appointment of a special counsel to investigate possible perjury charges against Alberto Gonzales. As we saw during the Watergate scandal, the executive branch cannot be counted on to investigate itself.Watergate led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Jimmy Carter asked Congress to pass a law authorizing the appointment of a special prosecutor to investigate and prosecute unlawful acts by high government officials. The bill empowered the attorney general to conduct a preliminary 90-day investigation when serious allegations arose involving a high government official. President Carter, who signed the bill in 1978, declared, “I believe that this act will help to restore confidence in the integrity of our government.”
Under the act, the attorney general could drop the investigation if he determined it was unsupported by the evidence. But if he found some merit to the charges, he was required to apply to a three-judge panel of federal court judges who would appoint a special prosecutor to investigate, prosecute, and issue a report.
The referral clause of the independent counsel statute provided, “An 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.” But Congress, reacting to Kenneth Starr’s witch hunt which led to Bill Clinton’s impeachment, allowed the independent counsel statute to expire by its own terms in 1999.
With the death of the independent counsel statute, the pendulum had swung back. By failing to renew the act, Congress returned the investigation of high government officials to pre-Watergate policies. Once again, the power to appoint an independent counsel would rest with the executive branch, that is, the attorney general. The Department of Justice drafted a set of regulations to guide future investigations.
Now the attorney general, not a three-judge panel, has the authority to appoint and remove special counsel to investigate top government officials. He exercises power over indictments and other prosecutorial actions, and the special counsel remains accountable to the attorney general. He can block “any investigative or prosecutorial step” he deems “inappropriate or unwarranted.”
Justice Department regulations call for the appointment of an outside special counsel when (1) a criminal investigation of a person or matter is warranted, (2) the investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating division of the Department of Justice would present a conflict of interest for the Department, and (3) under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. When these three conditions are satisfied, the attorney general must select a special counsel from outside the government. (28 C.F.R. 600.1, 600.3 (2007).)
In light of material inconsistencies in Alberto Gonzales’s testimony before Congress, a criminal investigation is warranted. Gonzales, who is suspected of committing perjury, has a conflict of interest. The public interest requires that the highest prosecutor in the land be brought to justice.
Congress should appoint a permanent special counsel to investigate and advise Congress about misconduct by high government officials, beginning with Alberto Gonzales. That procedure should lead the House Judiciary Committee to initiate impeachment proceedings against Gonzales.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and President of the National Lawyers Guild. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, was just published. Her articles are archived at http://www.marjoriecohn.com.
But how would that make the Democratic congress look like it’s powerless before the juggernaut minority? There are many MANY routes congress could take to end this travesty of an administration, but the choose not to. It’s better for them if they just pretend to be impotent and collect checks from those who write big ones.
Memo to Gonzo: don’t go fishing with Dick’s friend Al…
The trouble with this idea is that if the Democrats advocate this admittedly right position today, then they may be expected to adopt other admittedly right positions in the future, but for which they may not have the courage.
Therefore, in order to prevent unrealistically sensible expectations in the future, they may have no choice but to take decisive inaction now.
Congressman Inslee is ready to file impeachment papers to remove Gonzales. That is the way to do it. No need to make a new law and have it danced around and shot down by the president. Just go straight after Gonzales. Then, when done using him as good warm up act, do the same with Bush and Cheney.
Impeachment: it’s what’s for breakfast, lunch, and dinner for the foreseeable future.
Start with Gonzo, go on to the VP and then on to Chimpo. Once you start gaining evidence it will be a “slam dunk”. An example must be set for future tyrants. You will not be allowed to abuse power…ever!
The real problem lies with the Democrats, who prefer to be labeled cowards and spineless than for the truth to ever come out. Of course they’re not cowards or spineless, they are accomplices of corruption and war crimes, scheming and conniving profiteers. They belong in the Hague along with Cheney and the Unelected Chimp.
I’m believing we have 8 years to clean house and save our democracy. Vote against all incumbents this and the next election. We need statesmen/women, NOT another politician. I also believe a movement to change the voting date to a FULL weekend and during spring/summer/fall, NOT during the middle of winter is necessary.
Conflict of interest is the polite way of putting it! AS a book I bought in London stated, “WHO GUARDS THE GUARDS?” This is precisely the thing the authoritarians have postured to create, a set of conditions that present a veneer of legitimacy as they offer all the postures of pretense when it comes to genuine LAW-based accountability. Makes you miss the guillotine…
hi all - guess what happened this morning? Inslee just put his bill to impeach Gonzales on the table. Here’s more about what it says -
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House Democrats calling for Gonzales impeachment inquiry
Brett Murphy at 10:27 AM ET
[JURIST] A group of US House Democrats said Monday that they plan to pursue a resolution instructing the House Judiciary Committee [official website] to launch an investigation into whether to impeach Attorney General Alberto Gonzales [official profile; JURIST news archive]. Rep. Jay Inslee (D-WA) [official website], sponsor of the resolution, and six co-sponsors plan to introduce the measure to investigate whether Gonzales has been truthful about the Bush administration’s expanding domestic surveillance program [JURIST report]. The White House has said that this is just another “partisan attack,” but Inslee defended the move, saying that “it’s indefensible to treat the truth with such cavalier disregard when talking to the American people and Congress.”
And they’ve actually done it. There’s a press conference about it on c-span, audio and video -