There’s Use and There’s Abuse

The independent counsel statute reflects Congress’ belief that in some cases a presidential administration can’t be entirely trusted to investigate itself impartially. The statute requires that if an attorney general finds an allegation of wrongdoing by a member of the executive branch to be credible, the FBI must investigate. If that produces evidence of possible illegality, the attorney general must petition a special three-judge panel to appoint an independent counsel. Since the law was enacted in 1978, 18 independent counsel investigations have been completed. In more than 60% of them the official under investigation was cleared. Almost invariably, the process takes a long time and runs up very large legal bills. Is it worth it?

Some former independent counsels who met recently under the auspices of the American Bar Assn. generally agreed that the law is worth keeping. Their concern was with its overuse. They said, and we agree, that the law ought to be employed only in rare cases where the president or his closest associates may have seriously misused federal power. By this standard the Whitewater investigation being conducted by special counsel Kenneth W. Starr would not be taking place, since it focuses mainly on allegations dating from a time well before Bill Clinton became president.

Support for the independent counsel law tends to shift with political fortunes. In the 1980s, when officials of Ronald Reagan’s administration were under investigation, Republicans often denounced the independent counsel as persecutory. Now, with three special counsels investigating Clinton administration officials, Republicans find value in the law and, indeed, are calling for its wider application, while Democrats, led by the president, sometimes criticize how it is being used.

We think that in lesser cases the Justice Department should be trusted to go after alleged wrongdoing. If the Justice Department fails to act despite indications that it should, Congress can be counted on to shine its own investigatory spotlight on alleged misdeeds within the executive branch.