Senators Dole and Mitchell Announce Bipartisan Group’s Recommendations

Former Senators Bob Dole and George Mitchell announced today that a bipartisan project they headed unanimously recommends actions that Congress and the Attorney General should consider to assure public confidence in investigations concerning high officials after the expiration of the Independent Counsel Act on June 30.

The report recommends restoring full power to the Attorney General to appoint special counsels to investigate allegations of high-level misconduct. It also recommends that special counsel should operate under a charter of independence to assure that sensitive investigations are free of political influence. It “urges the Attorney General to recognize the indispensability of independence to the very purpose of the appointment of special counsel.”

To provide clear ground rules for the future, Congress “should enact legislation that requires the Attorney General to issue standing regulations on the conduct of the special counsel investigations.” Overall, the group concluded, “There is a strong public interest in attempting to strike a balance between independence and accountability in regulations published in advance of the immediate need to appoint a special counsel in a particular matter.”

The bipartisan group was convened by the Brookings Institution and the American Enterprise Institute at the request of Dole and Mitchell. It included Zoë Baird, Drew S. Days, III, Carla A. Hills, Bill Paxon, John G. Roberts, Jr., David E. Skaggs, Dick Thornburgh, and Mark H. Tuohey III. In a preface to the report, Dole and Mitchell expressed their gratitude for the “invaluable wisdom” of the members of the bipartisan group. The report’s recommendations were announced at a news conference at the National Press Club.

In a preface to the report, Dole and Mitchell noted that the project originally intended to offer recommendations on how the Independent Counsel Act might be improved if the Congress reauthorized it. “It is now evident that the political branches have answered the reauthorization question: the Act will not be renewed,” Dole and Mitchell wrote. “The focus of our report is thus now on the inescapable question of what should follow next month’s final sunset of the Act.”

The group noted that the expiring Independent Counsel Act reflected the post-Watergate view that an Attorney General would face an unacceptable conflict of interest if required to investigate allegations against a President to whom the Attorney General reported or a fellow cabinet member.

However, the historical record shows that Attorneys General have been able to identify situations when appointment of a special counsel from outside the Department was necessary, and to choose a person of integrity and independence. The group concluded, “We recommend that responsibility for identifying the need to appoint a special counsel and for selecting those counsel should be restored to the Attorney General.”

On what it called “the bedrock issue of independence,” the group recommended that any future special counsel have essentially the same authority as provided in the Watergate Special Prosecution Force regulation, the Independent Counsel Act, and in the Justice Department’s current independent counsel regulations.

“This would include authority for a special counsel, without approval of the Attorney General or other Justice Department officials, to conduct grand jury proceedings, frame and sign indictments, contest privilege assertions, conduct trials, and appeal decisions, all subject to regular Department standards,” the group said. And a special counsel should be removed during the course of an investigation only for “good cause.”

There should, however, be moments of clear accountability, the report concluded.

For instance, the group recommended that at designated intervals — initially two years after a special counsel was appointed, and then annually — “an Attorney General should have the responsibility to decide whether to terminate an investigation.”

In case of removal or termination, the group recommended, the Attorney General should be required to file a report with Congress explaining the reasons. The group also recommended a number of measures giving the Attorney General authority to check the costs and scope of any future special counsel investigation.

The full report is now available online.