Excerpted From: Roscoe C. Howard, Jr., Wearing a Bull's Eye: Observations on the Differences Between Prosecuting for a United States Attorney's Office and an Office of Independent Counsel, 29 Stetson Law Review 95 (Summer, 1999) (283 Footnotes) (Full Document)
Public servants respond to a higher calling. In deciding to enter public service, individuals agree to forsake personal rewards, to ignore the personal pleas of friends, acquaintances, and special interests, and to work for the common good of the community. Federal public servants work for the good of the entire nation, not for the individual interests of a person or a narrow constituency.
When a public servant ignores an oath to uphold and abide by the law, he or she invites scrutiny by those supposedly being served: the public. Plato's suggestion of death without ceremony is not tolerated in this country as the punishment for such transgressions, but a thorough investigation and public trial provide the public with confidence that our government is one of laws and not of individual men and women with their own personal agendas. Some punishment for those convicted should follow. “A government of the people, by the people, [and] for the people” should not stand as some empty mantra to days long past.
The Independent Counsel Law (the Law) provided for the appointment of an independent prosecutor when these transgressions were committed by a public official close to the President. The independent counsels appointed to handle these investigations frequently called on attorneys from the Department of Justice, particularly Assistant United States Attorneys (AUSAs), to handle the investigations and trials that might result. These federal prosecutors were used because of their experience in federal investigations and their ability to provide a typical federal investigatory approach to the independent counsel's office. However, service with an office of independent counsel brought a degree of scrutiny, criticism, and volatility to which many federal prosecutors have not been exposed, and thus, was not “typical.” It was as if you suddenly wore a “bull's eye” as you conducted the investigation.
In my seven years as an AUSA, first in the District of Columbia and later in the Eastern District of Virginia, I was trained to handle sophisticated and complex criminal investigations and trials. Usually the job was one that I could pursue with relative anonymity. Although these cases often made the news and were discussed within the community, the nature of the work and repetition of the offenses kept any single case out of the news cycle after an arrest was made, or indictment returned, until there was another press release on the matter by the office.
When I began in 1991 as an Associate Independent Counsel with the Honorable Arlin M. Adams's office investigating former Secretary of Housing and Urban Development, Samuel R. Pierce, Jr., I was struck by the amount of mail that came from the public protesting the investigation. Two pieces of mail in particular made an impression on me. Both came to my attention because I was the prosecutor handling the trial of an African-American real estate developer in Fort Worth, Texas, to which the pieces of mail were referring. The first came from a former member of the House of Representatives who decried the handling of the investigation and the apparent racial bias of the prosecutor in the investigation. The second came from a well-known civil rights organization suggesting that the prosecution was racist and all allegations against the developer were unfounded. These charges were ironic because I am an African-American and a supporter of the civil rights organization that sent the second letter.
In 1997, when I took a leave of absence from my teaching position at the University of Kansas School of Law to work in Independent Counsel Donald C. Smaltz's office, I noticed the same sort of public protest to the investigation into former Secretary of Agriculture A. Michael Espy's allegedly taking gifts and favors from agriculture businessmen. However, this protest came in a different sort of venue. During a weekend visit home to Kansas from the Independent Counsel offices in Alexandria, Virginia, I approached two of my neighbors in a local doughnut shop to say hello. When they asked what I was doing, my subsequent explanation was met with dismay from one of my neighbors' dining companions. In a loud, confrontational voice, she voiced her displeasure with the Independent Counsel's work, told me that the investigation was “ridiculous,” and asked how could I justify spending millions of dollars investigating whether someone took football tickets. I was taken aback by her comments, not so much by the fact that her reaction was negative, but more by the fact that this individual had knowledge of the investigation. My response, I believe, addressed her concerns, but it struck me that it was an experience that I had never had while I practiced with the Department of Justice. This unfamiliarity also was true for the mail I received while with the Independent Counsel's Office investigating Secretary Pierce.
Although I was frequently confronted while in the U.S. Attorney's Office in both the District of Columbia and the Eastern District of Virginia, the confrontations were usually initiated by individuals who were directly connected to the investigation and trial. I believe most AUSAs receive some mail concerning investigations they are conducting. However, my experience, again, was that this mail was from individuals either connected to the investigation, or from the immediately affected community.
In this article, I will explore some of the reasons for the differences in treatment and public reaction between the Department of Justice (especially the U.S. Attorneys' Offices) and the Offices of Independent Counsel. This article represents my observations and discussions that I have had with former colleagues.
Part II of this article discusses the appointment of Special Prosecutors before the enactment of the Independent Counsel Law and after its passage. Part II also describes how the Law was designed to function. Part III discusses the availability of prosecutorial discretion in independent counsel investigations, and the differences between independent counsel grand juries and grand juries who work with AUSAs. Part IV discusses investigating individuals whose government positions make them celebrities, while Part V explores the effect of media scrutiny on federal investigations by both independent counsels' and U.S. Attorneys' Offices. Finally, Part VI sets forth the reasons for the high costs of independent counsel investigations.
[. . .]
Our government's legitimacy is based largely on its accountability to the American people.... [W]hen there are allegations of misconduct within the branch which has the responsibility for prosecuting such activities, this accountability has the potential to break down, and, in doing so, threatens the very integrity and legitimacy of the United States government. The independent counsel law plays a critical role in maintaining this integrity and accountability.
The work of the independent counsels provided the public with a sense that government officials would not cover up the misdeeds of one of their own. High-ranking officials would be investigated and tried for crimes they committed while in public service. When handled by an independent counsel, the investigation and trial became a very different and expensive proposition. However, I believe it is a necessary proposition. We should not forget our lessons from history: some of those presented with power will abuse it. They should not be investigated by their own.
Professor of Law, The University of Kansas. A.B., Brown University, 1974; J.D., University of Virginia, 1977.