From the WSJ Opinion Archives
FROM THE ARCHIVES
Who Got Weinberger?
(Editor's note: This article originally appeared in The Wall Street Journal, June 24, 1992. Mr. Abrams is now the now the senior human-rights adviser in President Bush's National Security Council.)
The case called U.S. v. Weinberger presents a problem. We all know who Weinberger is, but who is "U.S."? Who made the decision that the government of the United States should accuse the former secretary of defense, a man known for his flinty integrity, of the crimes of perjury and obstruction of justice?
A grand jury? Let's put that notion aside. As anyone with criminal law experience knows, virtually all grand juries do what the prosecutors tell them to do. The Office of Independent Counsel, not the grand jury, made the decision to indict.
So, is it Lawrence Walsh who did this? After all, he is the independent counsel. He was chosen, in compliance with the post-Watergate Ethics in Government Act, to wield the immense power of that position. A three-judge panel, called the Special Division of the United States Court of Appeals for the District of Columbia Circuit, selected him, a man now 80 and presumably beyond ambition, because of his long experience as deputy attorney general of the United States and president of the American Bar Association. As Mr. Walsh was to be an "independent" counsel--independent of the constraints, rules and precedents that limit the discretion of U.S. attorneys and other professional prosecutors--one can only assume that the three judges carefully selected someone whose age and temperament would control his passions.
When I dealt with Mr. Walsh's organization last fall in the negotiations that led to my plea of guilty to two misdemeanor counts of withholding information from Congress, Mr. Walsh was spending three days a week in Oklahoma, his home, and four in Washington. Even then it seemed to me that he was no longer in charge: One could argue with him, and shake him a bit, but then the staff would rush in, take him away for a private "caucus," and return with Mr. Walsh turned around. Mr. Walsh's career may have been behind him, but these young guys needed scalps, they needed pages for their scrapbooks, and some 80-year-old could not be permitted to stop the fun and games just because he had doubts or second thoughts or believed something might just be too close to the line.
Now Mr. Walsh is, for all practical purposes, retired. He returns to Washington from Oklahoma only occasionally, in order to visit the real independent counsel: "Deputy" Independent Counsel Craig Gillen. Mr. Walsh admits as much. He told the Legal Times last week, "Craig is running the office. I rarely make a suggestion."
The answer to the question, "Who is the U.S. in U.S. v. Weinberger?" can now be given. On our television screens last week, we saw the men who decided to indict Caspar Weinberger standing before cameras outside the courthouse. The oldest was Mr. Gillen, now 40, and with him were two assistants younger than he. The more experienced lawyers who worked for Mr. Walsh when he began more than five years ago are long gone. The average age of the staff keeps declining. It is now truly Mr. Gillen's shop.
Fifty years ago, Robert Jackson, then attorney general and soon to go on to the Supreme Court, said that "the prosecutor has more control over life, liberty and reputation than any other person in America." Mr. Gillen, who earns $101,404 per year, now holds in his hands more raw power than most senior corporate or government officials could ever dream of.
What is it like to work in the Office of Independent Counsel? It must be quite a lark. Jeffrey Toobin, who worked for Mr. Walsh and then wrote about it (against Mr. Walsh's protests) in "Opening Arguments" (Viking, 1991), was paid more than $70,000 when he started at age 26: That figure is about twice what he would have got at the Justice Department. The atmosphere was revealed by Mr. Walsh himself in a comment made last year to the Washington Times. Asked about Mr. Toobin, he groused, "He missed his target. He was supposed to get Abrams. We hit the target after he left." Target practice!
And of course, the types who might slow things down--people over 50, or even 60, or those with some actual experience in government or national security affairs--are not allowed near the place. Moreover, the usual choices faced by a prosecutor--how to allocate scarce resources, what priority to give competing cases, how seriously to treat technical violations--are absent. There's unlimited time, unlimited money and the thrill of the hunt.
I believe that the three Special Division appellate judges would have choked had anyone predicted this outcome five years ago, when they selected Mr. Walsh to direct the Iran-Contra investigation. But today, this small team indicts at will and nobody can stop it. The Department of Justice is debarred from interfering. The Ethics in Government Act gives to the Office of the Independent Counsel the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice."
The normal controls of a U.S. Attorney's office, including supervision by the attorney general and the long experience of career prosecutors, are absent. There appears to be no adult supervision. And the team need not even answer press criticism, since it can hide behind the authority of Mr. Walsh, who still bears the title of independent counsel.
But where is he? Isn't the job important enough to require his presence in the office? If pressing family obligations require him to remain in Oklahoma, if he can no longer bear what he described to the Legal Times as "the stress of being away from home," does not duty require him to resign?
There is considerable irony here. In upholding the independent counsel statute in the 1988 case Morrison v. Olson, the Supreme Court spent page after page arguing whether the independent counsel was an "inferior officer," subordinate to executive branch power, who might constitutionally be appointed by members of the judiciary. Then, the three judges of the Special Division carefully chose among the nation's lawyers to find the one they considered best suited to serve as independent counsel in this case.
Yet in the end, it all amounts to nothing. Nine lawyers, of whom Mr. Gillen is the oldest, now constitute the Office of Independent Counsel. No Special Division chose them. And if they are "inferior officers," nobody has yet identified the authority to which they consider themselves inferior. Whatever one wishes to call this, it is not a system of justice.
