Imprudence and Partisanship: Starr’s OIC and the Clinton-Lewinsky Affair

Abstract

The Independent Counsel Act expired on June 30, 1999, largely unmourned. The performance of independent counsels, it was widely said, had shown the prescience of Justice Scalia's dissent in Morrison v. Olson. The statute gave the counsel's office no other job than to investigate and prosecute a designated target. The counsel was unconstrained by budget, other tasks compelling a sense of priorities or proportion, competing political concerns, or any time-table to complete his work. He had access to the full terrifying machinery of the criminal process: to subpoena individuals to testify before grand juries; to threaten indictments or grant or withhold immunity; to prosecute witnesses for perjury or false statements if not told what he wanted to hear; and to call upon FBI agents and private investigators without limit and turn them into great armored tanks to run the state's investigative authority through the lives of targets, witnesses and their families and friends, shattering their privacy and their reputations and bankrupting them with lawyers' fees. The appointing judges of the Special Division might select as counsel a political enemy of the Administration he was supposed to investigate. If he ran amok the Attorney General would risk a "firestorm" of public criticism if she tried to remove him for cause. Yet so concerned was the statute to make him independent that he could operate without any real supervision or check on his abuse of office.