An Original Model of the Independent Counsel Statute

Abstract

The independent counsel statute may have expired, for now, but debate over whether to enact some form of replacement for the controversial Watergate-era legislation will continue to spark activity in Congress. Professor Gormley, author of 'Archibald Cox: Conscience of a Nation' (the biography of the first Watergate Special Prosecutor), traces the history of the statute back to its origins after the infamous 'Saturday Night Massacre,' in which Cox was fired by President Nixon. He concludes that the independent counsel law strayed from its original noble purpose; rather than creating a cautious mechanism designed to deal with extreme (and rare) cases, it transformed itself into a runaway statute creating the equivalent of a permanent special prosecutor (which Congress specifically set out not to create). Professor Gormley proposes over a dozen specific reforms that would restore the lapsed statute to its original laudable purpose. He suggests that Congress should move cautiously and slowly, and replace the independent counsel law with some workable set of rules, rather than abandoning it completely. Otherwise, we will be forced to reinvent some version of the independent counsel law, when the next scandal in the executive branch reaches a crisis stage.