July 19, 2000

July 19, 2000 | Lecture on

Reflections on the Recent Past

It's a privilege to be back with my very good friends at The Heritage Foundation. And I am pleased to see Ken Simon, who through his generosity is making sure that the 500 interns who come to Heritage each year have a real introduction to our constitutional order. We used to say that people are policy. It takes good men and women to make policy, and the interns are the policymakers of the future.

I have known of Heritage for a long time. Heritage has been, from the outset, a powerful beacon. When I moved into the Reagan Administration and a Justice Department destined to be headed by General Edwin Meese, I really came to appreciate the substantive work of Heritage at a close, analytical level.

As the Reagan Administration was taking office, there were a lot of uncertainties on the part of the American people about various policies, both domestic and international. What I found, from the perspective of being in the attorney general's office, was that Heritage came forward with extraordinarily incisive and thoughtful analysis and with remarkable speed.

It's one thing to have ten or fifteen years to get a project done, but you could count on high-quality analysis from Heritage in a very short period of time. And so, to Ed Feulner, I want to say publicly that I kept those analyses close at hand when I served during President Reagan's first term. My colleagues at the Justice Department and I were really taken with the fact that the recommendations were not only comprehensive but also very specific. They had wonderful data to buttress them and were backed up with practical, common sense.

And each year Heritage followed up with those annual score cards and Mandate for Leadership, which I still find these many years later to be wonderful resources. Those recommendations were rooted quite soundly with a fundamental moral vision of freedom--freedom with responsibility.

Of course, that is exactly what the founding generation envisioned, and what James Madison envisioned so as to achieve a balanced government. Mr. Madison spent a good part of his young life studying, quite systematically, the rise and fall of ancient republics. I think that Mr. Madison would have done well at The Heritage Foundation and that, if here today, he would approve of what it is doing.

Balance, both in the new central government being proposed in Philadelphia and in the maintenance of the "federal structure," as we came to call it, with the states providing what Mr. Madison so aptly called dual security.

This is a great heritage that the founding generation gave to us, a free people. A grand tradition of liberty, but liberty within a federal republic where we look with pride to the role of the states, and of which Justice Louis Brandeis early in the last century (depending on how one counts) referred to as the laboratory of the states. This is a gracious and a good heritage. And how appropriate it is in a system of ordered liberty to have an institution that bears that great name proudly.

But these days the air is filled with talk of reform. There's little being said, other than at The Heritage Foundation, about our nation's heritage. Candidates at different levels are vying for the reform mantle. There's a rather eclectic political party of sorts that bears the name, and candidates are asking rhetorically, who is truly the reform candidate.

It brings to mind the reaction of the old crusty member of Parliament when debate was underway in the House of Commons. The debate turned to some new reform initiative and the old member got up and said, "Reform. Don't speak to us of reform. Things are bad enough as they are."

Now, don't get me wrong. We are--as people with God-given talent, intelligence, the ability to reason, and the capacity to hope--duty bound to work to make things better. Reform can be not only good but also vital for preserving heritage. This is, of course, the classic vision of Edmund Burke, whose message was this: Reform should take place, but it should take place within a structure of respect for tradition and existing institutions. Improve the human condition, but be mindful of the wisdom of past generations.

Families want to do well by their children, and political leaders, at their best, want to do what is good for their constituency, to live up to the public's trust, and to serve the well-being of what the Constitution describes with such simple majesty as "We, the people."

But reform that's undertaken without regard to our traditions can be not only rootless but also counterproductive. It can actually disserve commonly shared goals of practical, sensible government that genuinely serve the public interest. So in this season of reform, let me offer just a few modest reflections on this large subject.

You will no doubt be reminded of the old saw that applies fully to my ruminations, "Ah yes, he's a modest man and he has much to be modest about." So with that forewarning let me, without the slightest apology, say that at a very personal as well as professional level my wife, Alice, and I had occasion to live through what was seen as one of the great reforms of the post-Watergate era. It was a reform by a Congress--not the present Congress, let me be absolutely clear--but a Congress that in 1978 fashioned the Independent Counsel provisions.

My thesis is very simple: In an age when we worry, quite rightly, about cultural illiteracy, about large gaps in rudimentary knowledge of our history--our history as a nation--and about our lack of understanding of our constitutional traditions--indeed, of our very system of government--we would do well to pause and focus on the issue of constitutional literacy with respect to the structures of government that have served us so well.

Whether through ignorance or some other reason, the lack of understanding of our constitutional order and its emphasis on structure is disquieting to the point of alarm. And the story of the Independent Counsel Law is in large measure a saga of not paying heed to the issue of "structure."

The background need not be rehearsed here. You know it. You either lived through it or you know about it through your own reading. But the burden of Watergate generally, and the Saturday Night Massacre more specifically, hung very heavily over the country. The reform ushered in by the new law in 1978, urged by the then newly elected reform president, would strip the attorney general of discretion in the conduct of sensitive investigations of high-level, executive-branch officials. It would take away, as former Attorney General Meese said in his gracious introduction, the attorney general's appointment power and give it to a special division of judges.

Now this approach is entirely understandable given the exigencies of the time. The intent was for no more Saturday Night Massacres. What's more, wrongdoing in the executive branch would be aggressively ferreted out through the use of the criminal justice system as opposed to a heavy reliance on congressional oversight.

Though well intended--no doubt, the sentiments were noble--the approach, however, was quite wrong-headed as a matter of policy, and it turned its back on a tradition of muddling through in a classic representative democracy sort of way. That is to say, the spirit of reform at the time demanded that there be a law that addressed, with particularity, each aspect of whether, when, and how to manage an investigation of a senior executive-branch official. Now as a point of history, our nation had worked its way over time through some pretty rough patches, going all the way back to the less-than-immaculate administration of Ulysses S. Grant.

It had done so by summoning, on an ad hoc basis, an outside prosecutor, typically someone from the opposing political party of the incumbent administration. Now this historic method, for all of its faults and for all of its shortcomings, did rely on the discretion of the attorney general, and it worked reasonably well. But that history of practical wisdom and practical experience was overborne by Watergate and the Saturday Night Massacre.

This new Independent Counsel Law, upon its passage, was immediately mocked. With its dragnet approach grabbing, of all things, the rather undignified issue of whether President Carter's chief of staff, Hamilton Jordan, sniffed cocaine at Studio 54 in New York City. Now this is not desirable conduct, indeed, it is criminal in nature, but in all, the allegations seemed to lack the dignity, the gravitas , of a matter that should trigger a law enforcement equivalent of a nuclear war.

The "triggering" of this hair-trigger was seen as not a good thing. So Congress began over the years addressing this aspect of the problem by coming in after the fact to make curative amendments.

But the reactions over time were entirely instrumentalist, never returning to first principles or the founding generation's vision of the structural integrity of our government. We saw solutions such as: Let's cut back on the scope of offenses and let's cut back on the range of persons who are covered by the statute. The debate winded its way through a very contentious 21-year history with many of the persons in this room urging that it not be re-authorized.

Now, as I suggested, much of this exercise was aimed at controlling the attorney general's discretion. But it was a cruel illusion as the controversy in recent years over the campaign finance investigation has so clearly shown. As this audience knows, the distinguished director of the FBI recommended, based on his assessment of the facts and his understanding of the law, that an independent counsel be appointed in that matter. So too did the attorney general's own designated head of the campaign task force, Charles LaBella. Both, of course, had been very experienced federal prosecutors. Judge Freeh had been an assistant U.S. attorney as well as an FBI special agent before he was elevated to the bench a number of years ago. And seconding these impressive recommendations came a variety of other voices, including some respected and thoughtful voices in Congress.

Even editorial pages weighed in, but the attorney general would not and did not. The result was that the Independent Counsel Law, on close examination, actually embodied a false promise to the American people by purporting to control the attorney general's discretion, but when push came to shove the promise was an empty one, and so it had to be in order to accommodate what the reformers in 1978 tried largely to ignore.

The structure of our Constitution and its firm insistence on the decidedly non-parliamentary separation of powers intended for the legislative power to be important. It was to be Article I, it was to be the voice of the people, but it was not to be supreme. It was, rather, to be coordinate and balanced, as Mr. Madison had urged.

In the early 1980s, one of my great friends and General Meese's predecessor, the late Bill Smith, made a careful study of the statute. He came to the view, supported by the Office of Legal Counsel and others, that the Independent Counsel provisions, which at the time were up for re-authorization--the initial five-year period was about to expire--are unconstitutional and bad policy. And this view was shared fully by the White House under President Reagan and by the President himself.

For our very brief reflections, the pivotal point of Attorney General Smith's analysis was that the statute represented an unconstitutional intrusion by Congress into the domain of the executive branch, a violation of our heritage--our heritage of separated powers. This foreshadowed the great dissent by Justice Scalia, in the case upholding the statute's constitutionality ( Morrison v. Olson ).

Attorney General Smith's view was that this was, in effect, a power grab by one branch tearing at the fabric of another branch and thus affecting and compromising our constitutional order. In his view, the reformers of 1978 had ignored structure. It therefore bears repeating, as I bring these reflections to a close, that at this nation's founding structure was seen as the fundamental safeguard of liberty. It was for that reason that at the Constitutional Convention Mr. Madison objected to George Mason's proposal for a Bill of Rights. Mr. Madison greatly admired Colonel Mason, who had drafted for his beloved Virginia the much admired Virginia Declaration of Rights. Mr. Madison had nothing against Colonel Mason or the Declaration or the proposed Bill of Rights, save for the fact that he viewed it as unnecessary because "structure" would provide protection for the liberties of the people.

Reformers tend not to admire structure. To a true and bold reformer structure seems at best irrelevant, and at worse it stands in the way. Let us get at the problem by asking should not the felt necessities of the present age trump 18th century formalistic notions of structure? As to the Independent Counsel provisions as well as the role of the executive branch in general this has to be said: In the 1970s, voice after voice urged the reformers to proceed with caution and with attention to structure.

Even that elegant centrist, the late Elliott Richardson, warned the reformers that the thick of Watergate should not blind them to the fundamental structure of our government. Mr. Richardson insisted in his testimony that structure demanded the preservation, along with political accountability, of the prerogatives of the executive branch, of the president, and of the attorney general. If they fail to live up to their solemn obligations, hold them accountable, but don't rob them of the power rightly vested in them.

To be sure, significant reforms did get achieved under the reform system, and the investigation, which I was privileged to lead for longer than I had anticipated, did secure 14 convictions, including those of the sitting governor of the state of Arkansas, the former associate attorney general of the United States, chief justice for a period of the Arkansas Supreme Court, and the co-owners of Madison Guaranty Savings and Loan in Little Rock, Arkansas. We were also called on to, in the exercise of our judgment, put before the House of Representatives and, in particular, before the committee chaired so ably by Congressman Hyde, the referral that concluded, sadly for the presidency, and sadly really for the country, that the President had engaged in serious misconduct. This same conclusion was soon reached in a matter of a very few months by Chief Judge Susan Webber Wright of the United State District Court in Arkansas, Eastern District.

The mechanism of the statutory independent counsel was indeed a powerful engine for engaging in thorough fact finding. But upon reflection this could have been done, and in fact was done, under that tried-and-true system of allowing the attorney general to make a decision whether to appoint an independent counsel or a "special prosecutor" but then being held accountable to Congress and ultimately the American people under that system of Attorney General appointment. We saw this in the 1970s with the investigation of President Carter's finances by an appointee of Attorney General Griffin Bell, a close confidant of President Carter.

And so the American people will go to the polls this year, and the debate in the meantime will swirl. Who is the true reformer? Who's more like Teddy Roosevelt or FDR or Ronald Reagan? You choose your favorite reformer. I think I know who might win the balloting.

And yet I recall so vividly Attorney General Smith's judgment about a favorite deregulatory device of that time--a legislative veto that enabled a single House or, indeed, a single committee of Congress to declare invalid any set of regulatory regulations--that this device, sensible and practical though it was, was nonetheless unconstitutional in so far as it flew in the face of structure.

This was a venerable device in terms of gaining control of the bureaucracy. It was in the Republican platform in 1980, its supporters in both political parties were legion, and it had the delicious smell of a sagebrush rebellion about it. But President Reagan didn't flinch when presented with his duties as our Chief Magistrate. To his credit, he listened with respect to the solemn judgment that this device he had championed was, upon reflection, unconstitutional.

President Reagan did not take the matter under advisement, there were no focus groups, there were no polls. It was quite simple. The Constitution trumped policy, even good and sensible policy. And happily, in short order, the Supreme Court ratified the President's somber judgment that the device he had personally championed suffered from a fatal defect under our structure, that it violated the fundamental structural requirement of bi-cameralism and the presentment of a bill to the president. Good idea, bad law--inconsistent with our constitutional heritage.

At the close of the Constitutional Convention, that wise octogenarian, Benjamin Franklin, appeared on the streets of his beloved Philadelphia. He had said very little inside; he was deferring really to the 30-something crowd led by Mr. Madison. General Washington, presiding with dignity, had said virtually nothing. But those 30-something folks, those policy wonks, had done their homework, and all was well. Dr. Franklin was pleased with the product of the deliberations. So, as he was leaving the hall, suffering uncomfortably, we are told, from gout, he was confronted by one of the leading matrons of the city. She was curious about what had been wrought inside. "What kind of government have you given us, Dr. Franklin?" she inquired. His reply came quickly: "A Republic, madame, if you can keep it."

This is our heritage.

Judge Kenneth W. Starr served as Independent Counsel from August 1994 to October 1999. Currently, he is an adjunct professor at New York University School of Law and a distinguished visiting professor at George Mason University School of Law while on leave of absence from the firm of Kirkland & Ellis, P.C., where he is a partner. Judge Starr spoke at a meeting of The Heritage Foundation's President's Club on May 15, 2000.