WHere I Stand - Mike O’Callaghan: A true conservative warned us about special prosecutors

Saturday, Feb. 7, 1998 | 5:34 a.m.

MIKE O'CALLAGHAN is executive editor of the Las Vegas SUN.

SOMETHING GOOD oftentimes comes from uncomfortable and even painful situations. At least that is the philosophy of many Americans who have suffered physically or mentally. If this is true, then it has been necessary for many of them to stretch their imaginations to accept this philosophy of life, and there must have been other times they probably couldn't quite make that jump from bad to good.

Today, independent counsel Kenneth W. Starr is creating more than enough pain for the Democrats, as past independent counsels have created for Republicans. During past uses of independent counsels, the Republicans eagerly pointed to the waste of millions of taxpayer dollars and the abuse of power. The same charges are now being leveled against Starr. Both political parties have had enough facts and good reasons to make these claims.

It would be self-serving and difficult for me to accept any negative evaluation of independent counsels made today by a Democrat. Some of the same Democrats cheering on the use of independent counsels during the Reagan and Bush administrations are probably cringing as they watch Starr spend $40 million and jump from investigating a land deal to the personal and political lives of people who have only read about Whitewater and never been in Arkansas.

So how does a true conservative and legal scholar view the use of independent counsels? And when did he express these views?

Associate Justice of the U.S. Supreme Court Antonin Scalia carries the gold-plated credentials of a true conservative and exceptional legal mind. Scalia served in high White House and Cabinet positions during the Nixon and Ford years and was nominated to the U.S. Court of Appeals and the Supreme Court by President Ronald Reagan. Liberals may have disagreed with Scalia, but no reasonable person has ever questioned his integrity.

Scalia, when writing his dissent in Morrison vs. Olson during the October term 1987, made clear his many serious concerns about independent counsels or special prosecutors as they are also known. In 1940, long before such an animal had been created by Congress, Attorney General Robert Jackson, later to become an associate Supreme Court justice, warned an audience of federal prosecutors about the use of their powers.

Scalia quotes from Jackson's speech: "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor, that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

Later, as he discusses the special prosecutor, Scalia writes: "An independent counsel is selected, and the scope of his or her authority prescribed by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame.

"The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things, this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as 'picking the man and then searching the law books, or putting investigators to work, to pin some offense on him'? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad -- and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the attorney general, whereupon the whole process would recommence and, if there was 'reasonable basis to believe' that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same independent counsel.

"It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result -- the judges hostile to the administration, the independent counsel an old foe of the president, the staff refugees from the recently defeated administration -- there would be no one accountable to the public to whom the blame could be assigned."

Every one of these possible dangers have come true in the selection of Starr and the expansion of his powers. So, after both major political parties have been burnt to a crisp, will they finally rectify or eliminate a bad law? Scalia gives the most probable answer to this question:

"I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the president belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the republic with an institution that will do it great harm."

archive