The possible conflict of interest that can result from the necessity
for an Attorney General, a political appointee, to investigate members
of the Administration, potentially even the President, is a perennial
subject of disputation and Constitutional controversy. It has been
resolved traditionally through two means, Congressional investigation
and criminal investigations. A third element that cannot be
overestimated is the effect of a persistent press/media in ferreting
out fresh leaks that provide evidence for further inquiries. Any
appearance of an investigative whitewash is inevitably
counter-productive, leading to charges of cover-ups and even more
intensive scrutiny. There are always a few Senators and
Representatives of the Administration's party who will cross the aisle
and support a Congressional investigation in those circumstances. It
happened during Watergate. It happened during Teapot Dome.
Furthermore, the CIA as an institution has powerful friends on the
Hill who are always willing to press the Agency's agenda, which, at
the moment, appears to include some measure of revenge for the outing
of its operative and the exposure of one of its cover businesses.
Some background on the Office of Independent Counsel.
PBS - Frontline
"Secrets of an Independent Counsel."
"Can the public trust the executive branch of government -- the
President and his appointed officials, including the Attorney General
-- to investigate itself fully and fairly?
From the early days of the American republic, concerns of this kind
have led Presidents to appoint special prosecutors charged with
rooting out high-level official corruption. Special prosecutors have
investigated such notorious cases as the 1920's Teapot Dome bribery
and corruption affair and the tax scandals of the early 1950's.
However it was the wide-ranging investigation of Watergate and the
Nixon administration which convinced the public of the need for
someone *independent* of the executive branch to lead an investigation
of the government's upper echelons."
Unwise Counsel: How to Rein in the Next Ken Starr
"The biggest revelation of the Starr probe has nothing to do with
Clinton, however. Ken Starr has proven that the independent counsel
system is broken. It is fundamentally at odds with the balance of
power system set up in the Constitution, and it creates an incentive
for the independent counsel to continue investigations long after they
should have been concluded.
The office of the independent counsel is a legal anomaly in America.
Unlike all other prosecutors, the independent counsel is free of
budget constraints, political supervision, and requirements for
prosecutorial discretion. The job itself was created by the 1978
Ethics in Government Act. Every president (including Jimmy Carter) has
opposed the law because it creates an executive office with no
accountability to the president, Congress, or any other official
authority. Once an attorney general authorizes an investigation, the
only way it can end is by Congress refusing to budget money for its
continuation, or for the independent counsel to choose to conclude it
him- or herself."
"Unfortunately, the lesson learned after the Cox firing was the wrong
one. The system wasn't broken - Nixon was. When Nixon was removed, the
system righted itself.
Before Watergate, the system had worked reasonably well. Special
prosecutors were appointed by the attorney general, and were
accountable to the Justice Department, which was in turn responsible
to Congress and the president. Executive authority over the prosecutor
rested with the attorney general, a presidential appointee who is
typically subjected to a high degree of public accountability."
"Teapot Dome also demonstrated the strength of the system in the face
of an even greater challenge: a corrupt attorney general. President
Warren Harding's attorney general, Harry Daugherty, was a political
appointee and friend of Harding's from his days as an Ohio pol.
Daugherty was heavily implicated in the cover-up of Interior Secretary
Albert Fall's bribe-taking in connection with the Teapot Dome Naval
oil reserve in Wyoming. (The word "cover-up" was invented to describe
Both Fall and Daugherty tried to stymie and block a congressional
investigation into the Harding administration. Congress has the power
of subpoena as well, and when Fall and Daugherty sought to obstruct
justice to avoid testifying truthfully, members of both parties sought
their resignations. Both were out of office within a year - forced out
by political pressure they had initially tried to withstand. A special
prosecutor was appointed and Fall wound up in jail. If Harding had
lived, he might have been impeached as well."
On the mutability of political fortunes.
Some opinions of John Wesley Dean, former Counsel to President Richard
PREDICTING PRESIDENTIAL SCANDALS: Looking At Bush's New Vulnerability
By JOHN W. DEAN
"Teapot Dome became a scandal in 1923. While the Democrats did not
control the U.S. Congress, their success in the 1922 mid-term
elections had emboldened them. Then, unexpectedly, Harding died.
Within months of his death, the corruption surfaced. No one knows what
might have happened had Harding lived, and many believe the highly
popular president would have dismissed the culprits, and promptly
prosecuted them, thus saving his own reputation and legacy."
Report by the Brookings Institution and American Enterprise Institute,
commissioned by a bi-partisan committee headed by former Senators
George Mitchell and Bob Dole.
Report and Recommendations
"At times, extraordinary mechanisms are required to deal with
conflicts of interest, mostly of a political nature, that call upon
the Department of Justice to investigate high ranking officials of an
administration (or campaign officials who helped to elect it) of which
the Attorney General is a part. These political conflicts threaten
public confidence in the impartiality or vigor of investigations by
regular officers and personnel of the Department of Justice. The Act's
attempted solution was to establish detailed rules to govern
appointments of independent counsel and to divest the Attorney General
of the power to select them.
The Act reflects a post-Watergate view that the Attorney General could
not be trusted to resolve political conflicts of interest. The history
of earlier cases, and also of some recent ones not covered by the Act,
shows that Attorneys General can succeed in identifying cases that
warrant appointment of special counsel. History also shows that over
time they have understood the need to select counsel who command
public confidence. We recommend that responsibility for identifying
the need to appoint special counsel and for selecting those counsel be
restored to the Attorney General.
Once an Attorney General appoints a special counsel to resolve a
conflict of interest, the public should be assured that the conflict
is genuinely resolved. The challenge of any system for independent or
special counsel is to strike the right balance between sufficient
independence and sufficient accountability, so the public is assured
that an inquiry is both credibly and responsibly resolved.
On the bedrock issue of independence, we recommend that the grant of
independent authority to special counsel be essentially that provided
in the Watergate Special Prosecution Force regulation, as strengthened
and carried forward in the Act and the Department of Justice's current
independent counsel regulations. This would include authority for a
special counsel, without approval of the Attorney General or other
Justice Department officials, to conduct grand jury proceedings, frame
and sign indictments, contest privilege assertions, conduct trials,
and appeal decisions, all subject to regular Department standards.
We endorse the proposition, validated by history, that once a special
counsel is appointed to resolve a conflict, the counsel should be
removed and replaced only for good cause during the course of an
investigation. But we have also concluded that at designated
intervals, first, two years after a counsel is appointed and then,
annually, an Attorney General should have the responsibility to decide
whether to terminate an investigation. In either case? removal and
replacement of a special counsel for cause or termination of an
investigation after a periodic review?the Attorney General is
politically accountable for the decision, the reasons for which should
be explained in a report to Congress. In a number of other specific
areas, we recommend enhancing the Attorney General's ability to check
the costs and scope of an appointment.
There is a strong public interest in attempting to strike a balance
between independence and accountability in regulations published in
advance of the immediate need to appoint a special counsel in a
particular matter. Among other reasons, public trust in an
investigation will be enhanced if it is conducted under rules that are
the product of careful, balanced consideration, rather than primarily
the politics of the moment. Accordingly, we recommend that Congress
enact legislation requiring, but not prescribing the content of,
Justice Department regulations covering special counsel
investigations. The Attorney General's exercise of that responsibility
should be illuminated by public discussion. To that end, we have
included illustrative regulations to describe major points,
recognizing that actual text may be drafted in various ways."
"First, public trust in impartial federal law enforcement must begin
with a Department of Justice headed by an Attorney General with proven
integrity and independence. When regular Justice Department authority
is displaced, we risk uneven application of the law and a weakening of
the Department. It is important, therefore, to bolster public
confidence in the Department of Justice, thereby reducing the need to
resort to special mechanisms for investigations. While we do not
recommend any particular proposal for better insulating Justice
Department decisions from suggestions of political influence, we do
underscore the indispensable importance of each Attorney General's
integrity and independence.
Second, the nation needs to examine what it expects of the criminal
justice system, as applied to high officials. Too often, political
institutions turn to the criminal justice system when civil or
administrative actions against public or campaign officials, or
accountability through the political process, may provide more fitting
responses. These issues are beyond this report's ambit, but even the
best system for investigating or prosecuting wrongdoing by high
officials will remain under strain unless a better balance between
criminal and non-criminal remedies is established."
"The May 1973 appointment and chartering of a Watergate Special
Prosecutor occurred in the special circumstance of a confirmation
process. On April 30, President Nixon had announced the resignation of
Attorney General Richard Kleindienst and those of the President's
closest White House aides, H.R. Haldeman and John Ehrlichman. He also
announced the dismissal, in effect, of White House Counsel John Dean.
These actions left the Department of Justice leaderless and confirmed
for the public and the Congress that the Watergate matter had reached
into the White House.
At the same time, the President announced his intention to nominate
Elliot Richardson to succeed Kleindienst as Attorney General. It
rapidly became clear that the Senate Committee on the Judiciary would
impose a condition for Richardson's confirmation, namely, appointment
of a special prosecutor who would operate under a charter of
As a threshold matter, Congress had to decide whether the Attorney
General should appoint a special prosecutor under existing law or
whether new statutory authority should be enacted to place the
appointment responsibility elsewhere. Since creation of the Department
of Justice in 1870, the Attorney General has had standing statutory
authority, now in 28 U.S.C. ß 515, to retain a counsel as a "special
assistant to the Attorney General" or as a "special attorney." Under
that or related authority, special counsel or prosecutors were
appointed within the Department of Justice in 1875 to help conduct the
Whiskey Ring revenue fraud prosecutions in the Grant Administration
and in 1952 in response to Truman Administration tax scandals. Insofar
as new legislation was concerned, Teapot Dome provided a model for a
special law that authorized the President to appoint, with the
Senate's advice and consent, special counsel who would operate outside
of the Department of Justice.^*(5)*
As applied to Watergate, the Teapot Dome model would have required the
House and Senate to pass legislation vesting appointment of a special
counsel or prosecutor in a President whose own White House had become
the subject of inquiry. Instead, using the opportunity presented by
President Nixon's nomination of a new Attorney General, the Senate
Judiciary Committee assured itself about the conduct of the
investigation that would be conducted by a special prosecutor chosen
by the Attorney General under existing statutory authority."
"^*(5)* In Teapot Dome, a Senate investigation unearthed evidence of
bribery of at least one cabinet secretary in the leasing of federal
oil reserves. There were demands for civil actions to cancel the
leases and for criminal prosecutions. There were also reservations
about Attorney General Harry Daugherty's willingness to prosecute the
matter. As a result, Congress passed legislation in February 1924 to
authorize the President to appoint, with the Senate's advice and
consent, special counsel to take charge?outside of the control of the
Attorney General?of civil and criminal litigation arising from the
scandal. The following month, President Coolidge dismissed Daugherty,
who had been appointed, as were the other officials in the scandal, by
President Harding. Although the immediate reason for proceeding
outside the Department of Justice was resolved by the Attorney
General's dismissal, the two special counsel, a Republican and a
Democrat, continued on the basis of their statutorily granted
independent authority through the more than six years of litigation
The Department of Justice's Special Counsel Regulations: A Description
Basically, when a scandal becomes large enough, the political pressure
for the Attorney general to appoint an Independent Counsel or for the
Congress to begin hearings becomes irresistible. There is not only a
pattern of behavior in an Administration, which is simply exemplified
by a scandal, but there is a pattern in the unfolding of scandals
throughout the history of the Republic. History suggests that what has
happened in the past will be repeated in the present and future.