Column: A case against independent counsels
Let me engage in a little prophesying. Lt. Gov. Brian Calley’s recent proposal for unelected, unaccountable, independent counsels is not just a political stunt. It is partially baked idea that is not only self-interested but also at odds with the road map for governance that the Michigan Constitution lays out.
The Calley proposal has a dubious lineage. It is a clone of the Ethics in Government Act of 1978, a post-Watergate monstrosity that created a federal independent counsel to gallop like a modern-day knight errant across the governmental landscape in search of the holy grail of high crimes and misdemeanors to prosecute. (Does Kenneth Starr’s multi-year, multimillion-dollar investigation of President Clinton come to mind?)
Indeed, the similarities are striking and so is the one monumentally significant difference. Consider first the similarities:
■Lack of accountability: Like the federal independent counsel, Calley’s independent counsels apparently would be loosely and mysteriously lodged somewhere in the executive branch. Effectively, however, these unelected Galahads would be accountable to no-one, not to Michigan’s constitutionally established and popularly elected attorney general and, ultimately, not to the people of Michigan.
■Unlimited discretion: Generally, prosecutors have wide discretion as to the criminal cases they bring, but practical limitations such as staffing concerns, docket size, budgetary constraints, and other factors normally serve to limit that discretion. Realistically speaking, however, independent counsels do not have such limitations. As Justice Scalia of the United States Supreme Court pointed out in his scathing dissent in Morrison v Olson, under such circumstances what difference does another year make?
■There’s always something: Justice Jackson of the United States Supreme Court cautioned prosecutors against “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.” And once that man or woman has been picked, there is always something to pin on the person in the bull’s-eye.
However, consider also the one huge difference between the use of independent counsels at the federal level and the use of them that Calley proposes in Michigan: The state constitution creates an autonomous and popularly elected attorney general, something that the U.S. Constitution does not do.
Calley has stated that his independent counsels “will operate with the same prosecutorial and investigative authority of the attorney general.” Thus, he would create a series of shadowy substitute attorneys general, in absolute derogation of our constitution. This is not a separation of powers problem; it is an outright declaration that the relevant provisions of the constitution simply do not exist.
Like the federal Ethics in Government Act, the proposed independent counsel statute is a political gambit. Simply put, it is constitutional nihilism.
The federal statute expired quietly in 1991. The Legislature should bury Calley’s proposed independent counsel statute next to it.
William C. Whitbeck served as a judge for nearly 17 years on the Michigan Court of Appeals. Recently, he served as a special assistant attorney general, advising Attorney General Bill Schuette on the Flint water crisis.