Impeachment and the independent counsel: A dysfunctional union

When Independent Counsel Kenneth Starr submitted to Congress a report of hi s 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 Stair's report. Having just published a biography of Watergate Special Pro secutor Archibald Cox, Professor Gormley is expert not just in the history of the independent counsel statute but also in the careful consideration th at Cox and others since him have given to their appropriate roles as specia l prosecutors. Professor Gormley, along with Cox and Stanford Law School pr ofessors Gerald Gunther and Pamela Karlan, took part in a panel discussion at Stanford Law School on October 15, 1998, entitled "The Future of the Ind ependent Counsel." This discussion was part of a tribute to Cox on the occa sion of the twenty-fifth anniversary of his firing by President Nixon in th e fall of 1973, in what has come to be known as the "Saturday Night Massacr e. " In this special commentary, Professor Gormley expands upon an argument he made at that tribute: that Starr's report and its political aftermath r eveal previously unrecognized flaws in the independent counsel statute. Sec tion 595(c), the provision that mandates independent counsels to submit to Congress any "substantial and credible evidence" related to impeachment, ra ises particular problems. Professor Gormley argues that ii is likely that s itting presidents are constitutionally immune from criminal prosecution whi le in office and it is therefore improper for them to be subjected to the p rosecutorial powers of an independent counsel, simply as a vehicle to gathe r impeachment-related material for Congress.