The Brookings Institution and the American Enterprise Institute

Project on the Independent Counsel Statute: Report and Recommendations

Preface: Robert Dole and George J. Mitchell, Co-Chairs

The two of us took different positions on the Independent Counsel Act when we served in the Senate. We have shared, nevertheless, a conviction that the vital goal of achieving public confidence in the impartial administration of justice requires special attention to the manner of conducting investigations and prosecutions, if necessary, of offenses by high officials. In anticipation of the Act’s scheduled sunset on June 30, 1999, we concluded we should try, to the best of our abilities, to contribute to the public consideration of improvements to it.

At our request, the American Enterprise Institute and The Brookings Institution, each of whose nonpartisan public policy studies we have long respected, agreed to organize this Project on the Independent Counsel Statute and to lead a major research effort that has informed our work. Of course, the recommendations in the report are those of the individuals who are subscribing to them and not of any organization.

We had planned that the Project would not take a position on the threshold question of whether the statute should be allowed to expire or be reauthorized in some form. Our original purpose was to recommend revisions to the Act, if Congress chose to take that course. It is now evident that the political branches have answered the reauthorization question: the Act will not be renewed. The focus of our report is thus now on the inescapable question of what should follow next month’s final sunset of the Act.

We requested a bipartisan group of eight distinguished citizens, with broad experience both in and out of government— Zoë Baird, Drew S. Days, III, Carla Anderson Hills, Bill Paxon, John G. Roberts, Jr., David E. Skaggs, Dick Thornburgh, and Mark. H. Tuohey III—to participate in this endeavor. We are grateful for their time and invaluable wisdom and are pleased to join them in the unanimous recommendations that follow.