Twenty years of experience under the law, however, has revealed a series of significant problems in the operation of the current Act, with the consequence that the public has lost confidence in the very law principally intended to bolster public confidence in investigations involving high level officials. Some faults of the current Act are correctable by amendment, but two serious problems are institutional. First, politicians belonging to the party not in control of the Executive Branch find demands for appointment of an Independent Counsel to be almost irresistible as potential bombs to toss into the ranks of the party in control of the Executive Branch. Second, the appointment itself and the assembling of a special staff dedicated to a single investigation encourage the relentless pursuit of every avenue possible, no matter how unpromising, that might lead to the conviction of the President or another high official. This almost irresistible tendency is encouraged by the absence of any criteria other than indictment, impeachment and conviction by which to demonstrate success.
Few individuals can resist the temptation.
But conversely, to allow the Act to expire without replacement would leave the nation without assurance that the investigation of any serious charges of criminal misconduct by the President or other top officials would be free from suspicion of politics or personal interest. We outline below a proposal that we believe is the best means to address this problem while avoiding the difficulties that have emerged under the existing independent counsel mechanism. Our proposal is to return cases against high Administration officials to the Criminal Division of the Justice Department, but to strengthen the independence of the Criminal Division by enacting measures to insulate the Assistant Attorney General in charge of the Criminal Division from interference by the Attorney General or other Justice Department officials, from the White House or from Congress, while also ensuring there is a public check on the Assistant Attorney General to guard against undue favoritism to the official under investigation. This proposal is based on rules promulgated by Attorney General Griffin Bell in 1979, while he headed the Department of Justice during the Carter Administration. Attorney General Bell, through internal departmental regulations, vested final review of all prosecutorial decisions, including against the highest level officials, in the Assistant Attorney General for the Criminal Division, with only an exceedingly narrow exception.