Should Congress Adopt a New Independent Counsel Statute? The Policy Issues

Having addressed the constitutional issues, I now turn to the policy issues  Would it be a good idea to have a new IC statute?  This is a complicated issue and not one I have fully made my mind up about.  But if Congress were to enact a new IC statute, I believe there is a reform that would significantly improve its operation as compared to the old statute.

The biggest problem with the old IC statute is the incentives it gave to the IC.  If one is appointed to be an IC, there is a sense in which one is only successful if one hauls in a big fish – if one prosecutes and convicts someone for a significant crime.  Moreover, the IC has only one task – to investigate a single target – in contrast to a normal prosecutor who has many other possible prosecutions to investigate.  Consequently, the IC has more time and resources to devote to the one target.  These considerations provide the IC with an excessive incentive to prosecute the person they are investigating.

There is a way to address this problem.  There should be two ICs that undertake the task of investigating and prosecuting an official.  The first IC’s job should be to investigate.  At the conclusion of his investigation, he should issue a report which makes the following determinations: (1) whether there were any violations of federal law, and if so, (2) whether based on normal standards of prosecutorial discretion, those violations should be prosecuted.  If the prosecutor concludes that violations should be prosecuted under (2), then he refers these violations to the second IC, who can only prosecute these violations.

The key discretionary decisions about whether to prosecute will then be made by a person who will not actually be doing the prosecuting and will not really derive fame from the prosecution.   The first IC’s time in the spotlight will be with the issuance of his report.  And that report will be judged based on how persuasive it is.  Members of different political parties will no doubt view the report through their own partisan lenses, but there will not be an inherent bias in favor of prosecution.  In fact, there is at least one factor arguing against further prosecution.  If the first IC authorizes the prosecution, then the second IC will get the attention and the first IC may be forgotten.

I believe that this separation of the investigation from the prosecution function would address the most significant incentive issue that afflicted the operation of the IC under the old statute.  Whether this is a sufficient to make the IC a desirable institution is another question.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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