All or Nothing, or Maybe Cooperation: Attorney General Power, Conduct, and Judgment in Relation to the Work of an Independent Counsel
This Article considers the allocation of power under the independent counsel law between the Attorney General along with the Department of Justice and the independent counsel whose appointment the Attorney General has triggered. Although the law explicitly transfers much of an Attorney General's lawful power to an independent counsel, it does not go far enough in reallocating that power. Thus, it leaves a fundamental gap between what the current statute purports independent counsel to be and what it actually empowers independent counsel to accomplish. After an introduction in Part I, Part II of this article reviews the current legal provisions, including the allocations to independent counsel of powers that ordinarily would belong to the Attorney General and the Department of Justice. Part III considers some instances in which the powers that the law or custom reserves to the Attorney General have been exercised to complicate or impede the work of independent counsel. Part IV proposes statutory modifications that would allocate further power to independent counsel. Part V considers some of the challenges that would arise and the political consequences that might flow from these proposed statutory modifications. I conclude in Part VI that an empowered independent counsel might have better working interactions with an Attorney General and the Department of Justice, facilitating quicker and more satisfying outcomes to independent counsel investigations. In the alternative, even if empowering independent counsel vis-a-vis the Attorney General would result in more visible and frequent political showdowns—between Attorneys General and independent counsel or between Presidents and independent counsel—this too could be healthy for our larger governmental processes.