The independent counsel statute has been one of the most-if not the most-controversial federal laws of its time. A presence on the national stage for twenty years, it will expire on June 30, 1999, unless Congress affirmatively acts to save it. As the other articles in this issue of Law and Contemporary Problems attest, the statute's future seems bleak, perhaps even if substantial revisions are made. Numerous other sources also have heaped praise, criticism, and everything in between upon the statute. A law with so dark a beginning and so storied a political history may be doomed to extinction. Among all of the political upheaval over the independent counsel statute since its enactment, politicians, legal scholars, and laypersons alike often cannot help but lose sight of one aspect of the statute that has remained unchanged-it is a statute that, like any other, generates law by its existence and through its interpretation. Unlike the other currently available sources on the statute, this article is not a normative critique of the law, a review of the politics surrounding the statute, or a history of investigations under the statute. Instead, it provides a comprehensive legal history of the independent counsel statute from its inception in 1978 until its apparent last hurrah in 1999. The article's purpose, therefore, is to set forth the law that the statute has created, but to allow others to evaluate for themselves the merits of the statute and the praises and criticisms of it in this volume and elsewhere. The article proceeds in four parts. Part II briefly summarizes the history of the statute and outlines its current provisions. Part III analyzes the statute's triggering mechanisms, the procedures by which an independent counsel appointment is or is not made. Part IV addresses the complex relationships between an independent counsel and other relevant actors in the political system: the public, the "Special Division of the Court" that oversees independent counsel investigations, the Attorney General and the Department of Justice, and Congress. Part V focuses on a specific legal issue of great importance to the statute's past and future: the role of the independent counsel in the history and practice of the government's evidentiary privileges, including the attorney client privilege and the President's executive privilege.
Benjamin J. Priester, Paul G. Rozelle & Mirah A. Horowitz, The Independent Counsel Statute: A Legal History, 62 LAW & CONTEMP. PROBS. 5 (1999).