I’m pleased to join with my colleague Senator McConnell this morning. To announce that we support the expiration of the independent counsel act.

This law has been a noble experiment - an experiment that has been tried, and that has failed. It deserves a peaceful demise and an honorable burial.

This statute is doing immense damage - to the constitution’s critical checks and balances, to respect for the rule of law, to respect for the ideal of public service, and to the reputations of individuals who seek to serve in high-level government positions.

This law has not simply been ineffectual. It has had an effect directly contrary to its lofty purposes. Instead of restoring public trust, it has sewn cynicism. Instead of taking politics out investigations, it has politicized the criminal law enforcement process. Instead of improving political discourse, it has criminalized the political process.

I speak today with no small amount of regret. In previous years, I supported the reauthorization of this act. But I have come to view its flaws as inherent in the structure of the act itself, incapable of being excised. Moreover, those flaws are not merely tolerable imperfections. They offend principles that are rooted in our constitution and that are fundamental to the integrity of our system of government.
The independent counsel act has in effect established a fourth branch of government - called the independent counsel. Career prosecutors cannot pursue one case to the exclusion of all others. They are restrained by limited budgets, multiple cases, and their own judgment as to how to best act in the interests of justice.

An independent counsel is subject to no similar restraints. As former senator howard baker and former attorney general griffin bell recently reported, an independent counsel is in practice a mini-department of justice -- free of the attorney general’s routine oversight, blessed with nearly unlimited resources, and created solely to prosecute a particular person or persons.

The net result is that the act creates dangerous incentives for zealotry. Rather than encourage restraint and perspective, it encourages the independent counsel to abandon good judgment and go for broke.

More often than not, what breaks is not a worthy case but a person’s reputation. Careers can be damaged beyond repair just by being named a target of an investigation. A small fortune can be spent over a period of years to defend oneself.

It is worth noting that, according to CRS and the GAO, 13 of the 20 independent counsel investigations launched since the act’s enactment over 20 years ago - costing some $150 million and counting -- have failed to return any indictments. That means that nearly 2/3 of these investigations have dug dry holes.

We can - and we must - police official wrongdoing in a way that doesn’t ignore the constitution, grind up individual reputations, breed distrust of political and legal institutions, deter worthy individuals from serving in government, waste tax dollars, and focus public attention on scandals rather than policy. Our system managed to ferret out corruption reasonably well in the 180 years prior to enactment of the independent counsel law; watergate and teapot dome are just two examples.

The independent counsel act - while well-intended - has been a failure. The quality of justice will certainly not suffer - and may well improve -- by allowing it to expire.