Independent Counsel the Controversy Involved

Independent Counsel

The controversy involved in whether the federal government requires an independent counsel is a fiercely debated multifaceted issue. Proponents on both sides of the argument cite financial, judicial, legislative, and administrative natured issues to back up their sentiments. As far as fairness and accountability to the entire American populace are concerned, an independent counsel is a necessary component to an effective government that exercises fair judgment when some of its most executive members are called into question for criminal activity.

The executive branch, most particularly the Attorney General and the President, have it in their best interests to not discover criminal wrongdoing on the behalf of the upper echelons of government (Kavanaugh, 1998). This type of discovery would have devastating effects on public approval and credibility of the president, both among Congress members and the American population at large. Furthermore, a ripple effect would ensue in which the entire political party along with their economic, social, military and diplomatic policies would be adversely affected. Therefore, an independent counsel is necessary on the grounds of prevention of conflicts of interest both for the president and for the Attorney General (Kavanaugh, 1998). The current system of independent counsel employed by the federal government was established through the Ethics in Government Act of 1978.

Opponents to the establishment of an independent counsel argue that there are serious problems inherent to the process of the selection and executions of such a system, such as the contradictory nature of the appointment provisions or excessively lengthy investigations. Kavanaugh (1998) suggested that these perceived problems are mostly due to the strained relationship between the President and the independent counsel. This author goes on further to present six proposals as to how the President's role in independent counsel investigations could be clarified in order to maintain and preserve this necessary judiciary body. These proposals were aimed at achieving a reduction on the number of investigations and would serve to expedite investigations that are deemed necessary.

The first proposal suggested by Kavanaugh (1998) was that the provision for the appointment of an independent counsel should be changed by Congress to a process that is based upon nomination by the President and confirmation by the Senate. This would result in increased public credibility and would reduce attacks made upon the independent counsel by the executive branch in regards to being "politically motivated" (Kavanaugh, 1998). The second proposal stated that the decision as to whether or when an independent counsel needed to be appointed would be at the absolute discretion of the President (Kavanaugh, 1998).

The third proposal suggested that Congress should ensure that the President and the Attorney General solely define and monitor the jurisdiction of the independent counsel, emphasizing the importance of how the responsibility for these jurisdictions should be on these officials that are publicly accountable, rather than on any court (Kavanaugh, 1998). The implementation of this proposal would greatly expedite investigations by special counsel (Kavanaugh, 1998). Fourth, the statutory reporting requirement should be eliminated by congress so that financial and time resources could be saved (Kavanaugh, 1998).

Kavanaugh's (1998) fifth proposal maintained that it should be established by Congress that the President can only be indicted after a voluntary leave of office or impeachment. Some may argue in favor of the "practical displacement theory" which is based in the thought that the independent counsel is essentially a substitute for impeachment, because it allows Congress to achieve certain political ends that are usually pursued through impeachment without having to actually impeach the President (O'sullivan, 1998).