Impeachment and the Independent Counsel: A Dysfunctional Union

Abstract

When Independent Counsel Kenneth Starr submitted to Congress a report of his investigation of President Clinton and defended that report in testimony before the House Judiciary Committee, Professor Ken Gormley was in a unique position to comment on the implications of the statutory authorization for Starr's report. Having just published a biography of Watergate Special Prosecutor Archibald Cox, Professor Gormley is expert not just in the history of the independent counsel statute but also in the careful consideration that Cox and others since him have given to their appropriate roles as special prosecutors. Professor Gormley, along with Cox and Stanford Law School professors Gerald Gunther and Pamela Karlan, took part in a panel discussion at Stanford Law School on October 15, 1998, entitled The Future of the Independent Counsel. This discussion was part of a tribute to Cox on the occasion of the twenty-fifth anniversary of his firing by President Nixon in the fall of 1973, in what has come to be known as the Saturday Night Massacre. In this special commentary, Professor Gormley expands upon an argument he made at that tribute: that Starr's report and its political aftermath reveal previously unrecognizedflaws in the independent counsel statute. Section 595(c), the provision that mandates independent counsels to submit to Congress any substantial and credible evidence related to impeachment, raises particular problems. Professor Gormley argues that it is likely that sitting presidents are constitutionally immune from criminal prosecution while in office and it is therefore improper for them to be subjected to the prosecutorial powers of an independent counsel, simply as a vehicle to gather impeachment-related material for Congress.