Bush Proposal Would Curb Special Prosecutor Powers

The Bush Administration is proposing to use its new ethics reform legislation as a vehicle to reduce substantially the independence of the special prosecutors appointed to investigate government wrongdoing.

The changes, some of which have been sought for years by executive branch officials, are designed to give the Justice Department more control over the prosecutors, known formally as independent counsels. Several members of the Ronald Reagan Administration were investigated by independent counsels.

At the same time, Bush is proposing that special prosecutors, not the Justice Department, investigate allegations of wrongdoing by members of Congress in the same way that they investigate top executive branch officials. That decision came despite serious reservations by Atty. Gen. Dick Thornburgh, who has argued that his department’s Public Integrity Section is fully able to handle investigations of members of Congress.

The proposed changes could be highly controversial in Congress. In the past, Congress has rejected repeated attempts by the executive branch to obtain more control over the prosecutors, contending that independence is essential to avoid conflicts of interest.

Among other changes, the Administration proposal would remove an independent counsel’s power to hire his own staff and would give the attorney general substantial control over who could be appointed as an independent counsel. The counsels are selected by a special judicial panel after the Justice Department determines that an inquiry is warranted.

The special prosecutor law was passed after the Watergate scandal of the 1970s because of concerns that the attorney general, appointed by the President, could not always be counted on to investigate fully allegations against other senior presidential appointees.

White House counsel C. Boyden Gray, in an analysis of the proposed legislation that his office prepared, argued that “there is a comparable argument that could be made that Department of Justice investigations of powerful individuals in the legislature can be extremely awkward.”

Thornburgh, by contrast, in a statement issued Wednesday, noted that the “established system for handling allegations of wrongdoing by members of Congress . . . has worked well for many years” and that 20 members of Congress, including some powerful committee chairmen, have been convicted of criminal offenses since the Public Integrity Section was established in 1976, when Thornburgh headed the department’s criminal division.

During the Reagan Administration, independent counsels twice were appointed to investigate Atty. Gen. Edwin Meese III, former White House aides Lynn Nofziger and Michael K. Deaver, national security advisers Robert C. McFarlane and John M. Poindexter and NSC aide Oliver L. North.

Meese, after the second investigation of his affairs, issued a regulation shortly before he resigned extending the special prosecutor law to Congress. Thornburgh revoked that rule Wednesday, saying that the issue should be left to Congress to decide, now that Bush had made a legislative proposal.

The proposals to reduce the independence of the special prosecutors appear near the end of Bush’s 100-page ethics package. Among other changes, an independent counsel would be barred from publicly releasing a report on an inquiry unless the subject of his investigation is indicted. Meese reacted angrily last year after independent counsel James C. McKay, while deciding against indicting the then-attorney general, criticized him sharply in his report.

The proposed changes also would give the attorney general substantial power over the scope of an independent counsel’s investigation. Currently, that power is held by the special judicial panel that appoints the prosecutors.

The Reagan Administration made several attempts to restrict the authority of independent counsels, going as far as the Supreme Court in an attempt to have the law establishing special prosecutors declared unconstitutional. And in the Jimmy Carter Administration, then-Atty. Gen. Griffin Bell argued against the prosecutors.