Impeachment and the Independent Counsel: A Dysfunctional Union

Abstract

In this article, Professor Gormley examines the interplay between the independent counsel and the impeachment mechanism, in the context of the recent scandal involving President Clinton. He concludes that the impeachment-referral provision contained in Section 595(c) of the independent counsel statute--which mandated that the independent counsel submit to Congress any "substantial and credible evidence" related to impeachment--obliterated carefully established boundary lines between the executive and legislative branches of government. First, it encouraged the special prosecutor to gather impeachment-related material for Congress (published in the form of the Starr Report), even though the independent counsel was most likely not constitutionally empowered to indict or criminally prosecute a sitting President. Second, the impeachment-referral provision caused the independent counsel to wear two incompatible hats: one as a detached criminal prosecutor, and the other as a pre-impeachment deputy for the House of Representatives, a function at odds with responsible prosecutorial decision-making. Third, the referral provision allowed Congress to evade its own responsibility for initiating impeachment proceedings, thus sidestepping the political accountability that the Framers carefully placed in the House of Representatives with respect to impeaching high government officials.