The Ethics Backlash and the Independent Counsel Statute

Abstract

In this Article, Professor George D. Brown explores the role of the Office of Independent Counsel and the current ethics backlash surrounding its reauthorization. He examines the historical development of the institution through the accounts of two previous "special prosecutors,” Archibald Cox and Lawrence Walsh. Professor Brown also explores the arguments of critics who call for the institution's abolition and counters with his own call for change and renewal. As an alternative to renewal, he suggests a short-term extension, a "cooling off' period to permit Congress to take a detached look at the independent counsel.

Professor Brown observes that the current reauthorization debate arises in the midst of a counterrevolution in government ethics. Despite this ethics backlash, he suggests that the statute be modified without severely altering the role of the independent counsel. Professor Brown continues by examining current proposals to revise the Office of Independent Counsel, which include: limiting the covered crimes; reducing the number of covered persons; modifying the role of the attorney general; specifying the qualifications of the independent counsel; limiting the cost and duration of investigations; changing the manner in which the independent counsel reports its findings to Congress and the judiciary; and limiting expansion of its jurisdiction. Professor Brown concludes, however, that whatever the fate of the offered revisions, it is essential that the Office of Independent Counsel remain "independent.”