What Should Congress Do About the Independent Counsel Act?

A November 17 Associated Press report reveals that Democrats in Congress are having second thoughts about the idea of independent prosecutors. Over Republican objections, Democrats put the Independent Counsel Act into effect in 1978. With the ongoing investigations of members of the Clinton administration by prosecutors appointed under the act, today's Democrats want to scuttle the law when it comes up for renewal next year. According to the AP report, Sen. Robert Torricelli (D-NJ) said, "This is one issue on which the Republicans were right, and we were just wrong. The independent counsel statute is dead."

That's great. Conservatives have never supported this law, and ought to go along with the liberals' efforts to kill it. On the other hand, the law was put in place to solve a very real problem: the absurdity of the executive branch investigating its own top officials. The law provides for pursuing potential crimes of the 50 highest executive branch employees, from the president on down. If we won't have the independent counsel law, surely we need something to replace it. In the waning years of the most corrupt administration in American history, this should be more obvious than ever.

Responsibility for overseeing the executive branch lies with the Congress. Note Article II, Section 4 of the Constitution: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." An impeachment inquiry is an investigation into whether there is sufficient evidence for an official to be tried in the Senate. According to Article I, Section 2, such investigation is the duty of the House: "The House of Representatives ...shall have the sole Power of Impeachment."

The Independent Counsel Act unconstitutionally gives the attorney general, an appointee of the president, the responsibility to ask a federal court to appoint a special prosecutor for the purpose of investigating a federal official. This procedure involves both the executive and the judicial branches in the decision of whether to investigate, and what to investigate. It leaves out the one body that has the constitutional power to make these decisions: the House of Representatives.

Once the act is allowed to expire, according to the AP article, "...such investigations would be handled by the Justice Department. The attorney general would retain authority to turn an investigation over to a special prosecutor in the manner followed in the Watergate probe of President Nixon." This procedure is even worse than the one specified by the Independent Counsel Act: it passes the entire responsibility for investigating executive branch officials to that branch itself.

So what should Congress do to replace the current law? The way they discharge many of their other duties is to establish committees. That would work in this case too. The House of Representatives should establish a permanent Impeachment Committee to deal with its responsibilities under Article I, Section 2. There has been enough corruption among federal officials in every administration in this century to keep such a committee just as busy as the agriculture or commerce committees.

Impeachment has been sadly under-utilized throughout our nation's history. The writings of the Founders indicate that they expected it to be used much more frequently. A permanent committee for that purpose could serve as the starting point for curbing all sorts of federal government abuses.