The Independent Counsel Statute Ends With A Whimper

Congress passed the Independent Counsel Statute in the wake of Watergate nearly 30 years ago. It last extended that statute in 1994, allowing it to lapse in 2004 by its own Sunset terms. Few mourned its demise.

Under that statute, the Attorney General of the United States was authorized to request a special panel of the United States Court of Appeals to appoint an 'independent counsel' to investigate and if appropriate prosecute alleged criminal activity of senior officers of the Executive Branch. 

The purpose of the statute was to insulate the independent counsel from political pressure while investigating potential corruption on the part of senior public officials, and to assure that the public was appropriately informed as to the results of such investigation.

The last investigation completed under that statute was David Barrett's investigation into certain extra—curricular activities of the Clinton Administration's HUD Secretary, Henry G. Cisneros, the former wunderkind Mayor of San Antonio. The activities included the support of a mistress. An indictment and conviction resulted for Cisnero's misrepresentations to FBI investigators as to the size of certain payments to his mistress. In January 2001, outgoing President Clinton pardoned Cisneros.

During the course of his investigation, Barrett petitioned the supervising Court of Appeals panel for additional jurisdiction to inquire into potential abuses by the Internal Revenue Service or potential obstruction of his investigation by others who might have been trying to save Cisneros' hide.  Barrett's petition was granted.

Barrett obtained no further indictments as a result of his additional jurisdiction.

Recently, after nearly 10 years of investigation, Barrett sought to make his entire report public.  Apparently a number of individuals and other parties objected to public release of the portion of the report dealing with the findings about Barrett's additional jurisdiction, because the Court of Appeals unanimously ordered that part of the report released only to certain members of the Senate and Congress.

As with past reports, the Court applied a four part test in determining what to disclose:

1) whether the subjects of the investigations have already been disclosed to the public;

2) whether the subjects do not object to the filings being released to the public;

3) whether the filings contain information which is already publicly known; and

4) whether the court filings consist of legal or factual rulings in a case which should be publicly available to understand the court's rules and precedents or to follow the developments in a particular matter.

Factors 1 and 3 had to be answered in the negative, because there were no indictments or trials respecting the section of the report dealing with Barrett's additional jurisdiction.

As far as factor 2 was concerned, the court made this interesting statement:

In the present case many commenters, either implicitly or explicitly, question the propriety of release. We therefore find that the second factor weighs against a release of that portion of the Report dealing with matters not explored in the criminal proceedings against Secretary Cisneros or anyone else indicted as a result of the investigation. Thus, we find that as to Section V of the Report, but not the balance of the Report, that factor weighs against release. As to the portions not contained in Section V, we do not find sufficient objection to warrant withholding of the Report.

Interestingly, the Court also apparently held that the commenters' identities should be kept from the public:

We therefore order that the Report of the Independent Counsel, together with commenters named in parts of the Report other than Section V, should be published to the public. With respect to Section V, the motion of the Independent Counsel is denied, and we order that Section V of the Report be not publicly disclosed. This same ruling applies to those comments directed to the material in that section.

The Cisneros conviction was in 1999.  Barrett's investigation has continued for an additional six years at a cost of nearly 12 million dollars.

It will be interesting to see what Congress does with all of the information about Barrett's additional inquiries.

And whether any 'anonymous sources' will enlighten the public as to how the additional 12 million dollars was spent in conducting that inquiry. 

Certainly, it would not be inappropriate to ask where was the 'bang' for our buck. It appears to have been only a whimper!

Jim Rhoads is an Atlanta attorney who posts regularly at YARGB.Blogspot.com.

Congress passed the Independent Counsel Statute in the wake of Watergate nearly 30 years ago. It last extended that statute in 1994, allowing it to lapse in 2004 by its own Sunset terms. Few mourned its demise.

Under that statute, the Attorney General of the United States was authorized to request a special panel of the United States Court of Appeals to appoint an 'independent counsel' to investigate and if appropriate prosecute alleged criminal activity of senior officers of the Executive Branch. 

The purpose of the statute was to insulate the independent counsel from political pressure while investigating potential corruption on the part of senior public officials, and to assure that the public was appropriately informed as to the results of such investigation.

The last investigation completed under that statute was David Barrett's investigation into certain extra—curricular activities of the Clinton Administration's HUD Secretary, Henry G. Cisneros, the former wunderkind Mayor of San Antonio. The activities included the support of a mistress. An indictment and conviction resulted for Cisnero's misrepresentations to FBI investigators as to the size of certain payments to his mistress. In January 2001, outgoing President Clinton pardoned Cisneros.

During the course of his investigation, Barrett petitioned the supervising Court of Appeals panel for additional jurisdiction to inquire into potential abuses by the Internal Revenue Service or potential obstruction of his investigation by others who might have been trying to save Cisneros' hide.  Barrett's petition was granted.

Barrett obtained no further indictments as a result of his additional jurisdiction.

Recently, after nearly 10 years of investigation, Barrett sought to make his entire report public.  Apparently a number of individuals and other parties objected to public release of the portion of the report dealing with the findings about Barrett's additional jurisdiction, because the Court of Appeals unanimously ordered that part of the report released only to certain members of the Senate and Congress.

As with past reports, the Court applied a four part test in determining what to disclose:

1) whether the subjects of the investigations have already been disclosed to the public;

2) whether the subjects do not object to the filings being released to the public;

3) whether the filings contain information which is already publicly known; and

4) whether the court filings consist of legal or factual rulings in a case which should be publicly available to understand the court's rules and precedents or to follow the developments in a particular matter.

Factors 1 and 3 had to be answered in the negative, because there were no indictments or trials respecting the section of the report dealing with Barrett's additional jurisdiction.

As far as factor 2 was concerned, the court made this interesting statement:

In the present case many commenters, either implicitly or explicitly, question the propriety of release. We therefore find that the second factor weighs against a release of that portion of the Report dealing with matters not explored in the criminal proceedings against Secretary Cisneros or anyone else indicted as a result of the investigation. Thus, we find that as to Section V of the Report, but not the balance of the Report, that factor weighs against release. As to the portions not contained in Section V, we do not find sufficient objection to warrant withholding of the Report.

Interestingly, the Court also apparently held that the commenters' identities should be kept from the public:

We therefore order that the Report of the Independent Counsel, together with commenters named in parts of the Report other than Section V, should be published to the public. With respect to Section V, the motion of the Independent Counsel is denied, and we order that Section V of the Report be not publicly disclosed. This same ruling applies to those comments directed to the material in that section.

The Cisneros conviction was in 1999.  Barrett's investigation has continued for an additional six years at a cost of nearly 12 million dollars.

It will be interesting to see what Congress does with all of the information about Barrett's additional inquiries.

And whether any 'anonymous sources' will enlighten the public as to how the additional 12 million dollars was spent in conducting that inquiry. 

Certainly, it would not be inappropriate to ask where was the 'bang' for our buck. It appears to have been only a whimper!

Jim Rhoads is an Atlanta attorney who posts regularly at YARGB.Blogspot.com.