Vol. 2 No. 12 (December, 1992) pp. 189-190

INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS by Katy Harriger. Lawrence: The University of Kansas Press, 1992. 270 pp. Cloth

Reviewed by David Neubauer, Department of Political Science, University of New Orleans.

INDEPENDENT JUSTICE, gracefully written by Katy Harriger of Wake Forest, provides a much needed study of special prosecutors in American politics. Using public documents and interviews with the participants, Harriger examines her central framework that "[t]he study of the use of special prosecutors is the study of the separation of powers writ small" (p. 9). Formalistic notions of separation of powers are rejected in favor of an orientation that is both flexible and embedded in "the complex set of relationships that make up modern American politics" (p. 11). Thus in each chapter she discusses central actors in the legal and political systems which, depending on the specific topic, include Congress, interest groups, the justice department, the White House, the judiciary, investigative agencies, private counsel, and the media.

Chapter 2 sets the stage by briefly surveying three official corruption cases in this century that led to the ad hoc appointment of special prosecutors: the Teapot Dome scandal of the 1920s, the tax scandals of the 1950s, and the Watergate scandal of the 1970s. Of special interest is that fact that on two occasions the president became so disenchanted with the process that he fired the special prosecutor. Most of the chapter, however, explores the relationship between the Watergate Special Prosecutor Force and other significant actors.

The Saturday Night Massacre was the "focusing event" that placed the issue of an independent counsel on the nation's agenda and led Congress to institute a major alteration in American politics -- the creation of special prosecutor completely independent of the executive branch. Chapter 3 provides a narrative of this five year effort which culminated in the creation of special prosecutor in 1978. This account of how a bill becomes a law, however, is heavy on details and short on insights. The emphasis is on how the final bill satisfied all the major actors, and therefore the conclusion is hardly surprising: "[t]he special prosecutor [law] ... attempted to strike a balance between the executive responsibility for enforcement of the laws and the congressional desire to ensure the appearance of independence..." (p. 70).

Chapter 4 on implementation and oversight asks why the 1978 independent counsel provisions have continued long after the specific scandal has disappeared. The answer centers on the enduring memories of Watergate, particularly the Saturday Night Massacre. A significant proportion of Congress sees the law as symbolically important "to ensure public confidence in unbiased law enforcement (p. 89).

But was the law constitutional? Chapter 5 probes the constitutional debate by tracing the legal history of MORRISON v. OLSON, a 7 to 1 decision which somewhat surprisingly upheld the constitutionality of the independent counsel. Harriger argues that the opinion in MORRISON was based on a more flexible approach to the separation of powers than the Court's previous decisions in INS v. CHADA and BOSWHER v. SYNAR, which were grounded in a more formalistic approach.

Chapter 6 focuses on prosecutorial discretion and the specific statutory scheme that requires a preliminary investigation by the department of justice. The bulk of the chapter discusses specific cases in which the attorney general and the department of justice exercised unreviewable discretion in determining that there were insufficient grounds for requesting the appointment of a special prosecutor. In short, the independent counsel is independent of the department of justice only after the department decides one is needed at all. Moreover, after a special prosecutor is appointed, the law, coupled with its interpretation (particularly by Meese), allows the attorney general to play a significant role in affecting the conduct and the outcome of

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the investigation. In several instances Meese defined the mandate so narrowly that the special prosecutor faced great difficulty in fully investigating the allegations. How accountable is the special prosecutor? This question lies at the core of the constitutional debate and Harriger effectively probes this question in Chapter 7. As in the other chapters she examines interactions of special prosecutors with other actors including the justice department, investigative agents, the judiciary, defense counsel, political actors and the press. She concludes the Congress plays an important role, particularly in using political pressure to influence the appointment of an independent counsel. Moreover, the "judiciary and defense counsel continue to interact with the independent counsel's office in ways that restrain the independent counsel from abusing power" (p. 165).

Chapter 8 entitled "symbols and politics" probes the interaction between mass public opinion and elite support for the special prosecutor. Among Washington elites, the special prosecutor has strong backing because it serves as a symbolic reassure of confidence in government. But the public shows little interest except on the rare occasion that a "scandal" in D.C. is transformed from a partisan affair to a symbolic issue (a battle between the "rule of law" and "abuse of power"). Stated another way, the institutionalization of special prosecutors has had little impact on public confidence in government.

The concluding chapter seeks to refocus the debate away from abstract constitutional doctrine and toward broader issues of public policy. The problematic nature of the special prosecutor is the focus. Iran-Contra highlighted the conflict between Congress' desire to inform while at the same time maintaining the prosecutor's options to press charges. These and other conflicts create "a situation in which the criminal investigation and prosecution ended up being relatively meaningless" (p. 204). Also of concern to Harriger is the fact that the special prosecutor reflects an institutionalized distrust among elites in the post- Watergate era, making the attorney general automatically suspect in any investigation of official wrong doing.

INDEPENDENT JUSTICE is partially successfully in moving discussions of the special prosecutor away from abstract constitutional notions and more properly locating it within the complex set of relationships of American politics. It is, in essence, a study of the history and implementation of a congressional act with a heavy emphasis on chronological narrative of key actions and debates. But the essentially institutional and legal analysis somehow omits the political dynamics surrounding the appointment and later investigations by the special prosecutor. I found little in the book that helped me understand current controversies. Why, when faced with a growing list of public scandals, did the Reagan-Bush administrations often fight against appointments of special prosecutors. Why, once appointed, did they wage a public war with the ongoing investigations? These omissions stem from the books too narrow focus on separation of powers. Perhaps what we need is a companion study of ethics in government focusing on the partisan use and misuse of allegations of governmental corruption, a subject not really treated in this book.