Restoring the Ethics in Government Act

May 14, 2018 | In 1978, Congress passed the Ethics in Government Act as a response to the abuses of the Nixon Administration. Among its most important provisions was the creation of the Independent Counsel. The Independent Counsel provision provided immense power to investigate high level government officials up to and including the president. Because the provision was far from perfect and no one was truly happy with how the power was executed, Congress ultimately made the bipartisan decision to let the provision expire in 1999, leading to the current Special Counsel regulations that govern Robert Mueller and his current investigation of the 2016 election. Although the current regulations are powerful, they confer less authority and provide less protection than the former Independent Counsel provision. The current abuses by the Trump Administration and potential abuses by future administrations demonstrate the inadequacy of the current regulations and reinforce the need for a modern Independent Counsel law.

Limitations on Power

There are two important limitations on the power of the Special Counsel as opposed to the Independent Counsel. First, the Special Counsel is under the indirect control of the Attorney General, a political appointee, and, consequently, the President. Second, the Special Counsel only exercises the power of a United States Attorney. This mandates compliance with the U.S. Attorneys’ Manual, which requires consultation with officials in the Department of Justice for a variety of actions. Further, the Special Counsel must provide the Attorney General with updates regarding “significant events” that happen in the course of their investigation. This could mean substantial problems for the investigation depending on who the AG or other officials in the DOJ are, given that they could potentially delay authorization for certain acts, e.g., certain wiretaps,  or not give it altogether.

These limitations can be contrasted with the Independent Counsel, who, subject to a narrow exception, exercised the full authority of the Attorney General with respect to their investigation. As a result, the Independent Counsel was subject only to Congressional oversight, something that other high-level executive branch officials are subject to as well. This allowed to Independent Counsel substantially more freedom to act outside of institutional and political constraints, which can be an advantage when investigating high-level officials like the president.

Lack of Protection

Just as the Special Counsel regulations provide more of a check on power, they also provide little protection against being removed and no recourse if removed. The regulations provide that the Special Counsel may be removed only by the AG for “misconduct, dereliction duty, incapacity, conflict of interest, or for other good cause.” Further, the regulations explicitly say that they do not “create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.” In other words, the Special Counsel may be fired for any reason that the AG deems “good cause,” and then cannot challenge the removal through a civil suit or an internal administrative action at the DOJ, and the AG cannot be held liable, except through removal by the President or impeachment by Congress, for any improper removal. If this sounds like these regulations create the possibility for another Saturday Night Massacre, you are not wrong.

On the other hand, the Independent Counsel could be removed in two ways: First, through the impeachment process. Second, by the AG, for “only for extraordinary impropriety, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such special prosecutor's duties.” Additionally, the statute provided for judicial review, allowing the ousted Independent Counsel to challenge the removal through a civil action wherein reinstatement as Independent Counsel was a remedy explicitly provided for.

Problems and Improvements

Despite the deficiencies with the current regulations, the Independent Counsel provision was far from perfect. Toward the end of its time as law, it faced numerous criticisms, from the method of appointment and overuse to excesses by the Independent Counsels themselves. Some of the criticism was legitimate and some was partisan, but reenacting the law is a viable solution and better than the previous solution of simply letting the law expire. A bipartisan bill that recently passed a vote by the Senate Judiciary Committee providing for the review of any termination decision by a three-judge panel is a good start, although it does not remedy all of the problems with the current regulations, such as the need to strengthen the Special Counsel’s power.

Donald Trump’s sustained and intensifying attacks on the judiciary, the DOJ, and Robert Mueller himself do not inspire confidence in those that value the independence and protection of the process, regardless of if anything comes from Mueller’s investigation. These attacks on the rule of law, combined with the inadequacy of the current regulations should inspire everyone to call for the reenactment of an improved and modernized Independent Counsel law. Given the current Congress’ propensity to simply eat up whatever the Administration decides to feed them, that law will probably not be forthcoming. That shouldn’t stop citizens for advocating for it, however. After all, the midterms are coming, and given the results of the past election, stranger things have happened.

Jordan Paul is a law student at the University of Arizona and a graduate of the University of Portland's political science program.

The views expressed in this piece do not necessarily reflect the views of other Arbitror contributors or of Arbitror itself.

Official White House photo by Lawrence Jackson.