The Spirit of a Law Takes a Drubbing : Barr spurns special-counsel investigation of policy on Iraq

What can be done when those who have supreme responsibility for executing the laws of a nation are accused of lawbreaking? In the United States, after then-President Richard M. Nixon and, among others in his Administration, then-Atty. Gen. John Mitchell sought to evade rather than enforce the law in the Watergate scandal, Congress passed the Independent Counsel Act.

By the terms of the law, passed by overwhelming majorities of both houses of Congress in 1978, Congress may petition the attorney general to appoint an independent counsel to investigate alleged wrongdoing within the executive branch. The independence of the counsel means that he or she reports neither to Congress nor to the Administration. The Independent Counsel Act, in 11 investigations over 14 years, has repeatedly proven its value by de-politicizing investigations that otherwise could have been corrupted by politics. Both Republicans and Democrats have benefited; the GOP’s Raymond J. Donovan and Edwin Meese III and the Democratic Party’s Hamilton Jordan and Tim Kraft all were investigated but not prosecuted.

Both Congress and the attorney general can, of course, conduct investigations of their own. The congressional investigation of the Iran-Contra scandal preceded the ongoing investigation by independent counsel Lawrence E. Walsh. Congressional investigations are, of course, not criminal investigations: Congress may not usurp the attorney general’s role by bringing charges in court. And such congressional probes are vulnerable to politicization, particularly when Congress and the executive branch are controlled by different parties. As for investigations by the attorney general, the fear, obviously, is that an official appointed by the President will put his boss’s interests ahead of the country’s.

On Monday, Atty. Gen. William P. Barr rejected the request of House Democrats for an investigation of their charge that the Administration broke laws in implementing its tilt toward Iraq before the Gulf War. Barr does not deny that the tilt was unwise, but, he says, “The letter (from the Democrats, requesting the inquiry) contains no specific information concerning crimes by any person, let alone any ‘covered’ person”; that is, any of about 50 Administration officials for whom appointment of an independent counsel is mandatory when requested.

Judiciary Committee Chairman Jack Brooks (D-Tex.) claims that Barr “has misconstrued--whether purposely or not--what is required under the independent counsel statute. The statute does not require Congress to present a signed and sealed indictment of criminal wrongdoing for the U.S. prosecutor to simply execute the next day.”

The letter of the law aside, we regret that the attorney general has misconstrued its spirit. Quite possibly, the worst that any Administration officials could be convicted of is atrocious judgment. But the best way to determine that is not a congressional investigation or an investigation conducted by the President’s appointee, the possibilities that remain now. Even if the House Democrats’ agenda indeed were political, the attorney general would have better frustrated that agenda--and better served the country--by acceding to their request for an independent counsel.