The Independent Counsel Law: Is It Time to Fix the Fix?

Since its enactment after Watergate, the independent-counsel statute has alternately prompted urgent demands for the appointment of additional independent counsels and bitter complaints about the missteps, tardiness or political biases of those already appointed.

Last week was an occasion for both. Starting on Monday, Republicans led by House Speaker Newt Gingrich (R-Ga.) heatedly attacked Atty. Gen. Janet Reno for her refusal to seek the appointment of an independent counsel to investigate charges of improper Democratic fund-raising practices. Then, on Tuesday, while standing outside an Arkansas courtroom, Independent Counsel Kenneth W. Starr held yet another press conference touting the momentum of his Whitewater investigation. Both episodes serve as disheartening evidence that the independent-counsel system is presently failing its intended function: to insulate the administration of justice from the forces of partisan influence.

Two flaws have hopelessly mired the statute and its implementation in politics and partisanship. First, the statute is vaguely worded and is thus capable of both broad and narrow constructions. Second, resort to an independent counsel turns the normal prosecutorial model on its head: Instead of starting with a crime and looking for its perpetrator, an independent counsel starts with government officials under suspicion and then tries to pin a crime on them. Both factors subject the motives and integrity of the most important actors, the attorney general and each independent counsel, to harsh and exacting political scrutiny.

Take Reno’s case first. Despite GOP charges that she would be derelict in her duty unless she gave way to their demands for an independent counsel, Reno stood firm on the apparent recommendations of career Justice Department prosecutors. And she was right in doing so.

The statute instructs the attorney general to seek an independent counsel in those situations where there is specific and credible evidence of a violation of federal criminal law by a high-level official. Under the statute, it is not enough that a “covered official” may have committed a mistake or done something stupid, arguably distasteful or even improper. It’s not enough that someone else might have violated a law when an official was involved but not culpable. To get an independent counsel, there must be specific and credible evidence of criminal wrongdoing by that official.

Virtually all the fund-raising practices under review may well be awful in one sense or another, but at this point there is nothing that suggests illegality by a covered official. Reno addressed each item on the GOP list of charges--including Vice President Al Gore’s fund-raising calls from a White House office telephone; high-level solicitation of “soft-money” contributions; overnight stays in the Lincoln Bedroom or White House coffees as fund-raising inducements; efforts by foreigners to influence presidential and congressional elections, and coordinated fund-raising between the White House and the Democratic Party. In each case, she found no evidence of a criminal violation that would trigger the independent-counsel statute.

Faced with the plain terms of the covered-official provision, Reno’s critics next point to the statute’s so-called discretionary prong, which permits the attorney general to ask for an independent counsel if she concludes the Justice Department would face a political conflict of interest in conducting a probe. But the conflict-of-interest provision applies only when there is specific and credible evidence of criminal wrongdoing by a person not covered by the act--and where there is an actual conflict of interest (not just the appearance of one).

The conflict-of-interest provision does not come into play simply because White House officials stand accused of improper, but not criminal, behavior. Moreover, the Justice Department currently confronts no actual conflict of interest in prosecuting any of the non-covered individuals concerned.

Indeed, if just any accusation about improper White House activities were deemed to create a political conflict of interest for the Justice Department, a few loud voices in Congress and the media could take such an accusation and prevent the Justice Department from ever investigating White House-related allegations. Instead, career Justice Department prosecutors should play their law-enforcement role unless they find specific and credible evidence of criminal-law violations inside the White House. To some, this may be a narrow reading of the statute; but a broad construction would deny the Justice Department almost any role in investigating allegations of government wrongdoing.

In Starr’s case last week, he again called his own motives into question when he went out of his way to suggest to reporters that his Whitewater investigation not only was back on track but also had gained momentum. (To avoid a possible 84-year jail term, James B. McDougal has reversed his previous sworn testimony; as a consequence, he received only a three-year sentence.)

It was only two months ago that Starr allowed Pepperdine University to announce he would be walking away from a pending criminal investigation of the president and first lady of the United States. But then Starr reversed course under political and public pressure and remained at his post.

It’s a fact of life that Starr’s future actions will be interpreted against the concern that he has something to prove and a motive to rehabilitate himself. Almost any indictment he might bring would be met with questions about whether he has acted partly in response to his own personal and professional circumstances.

That is especially the case in light of the disclosure that Pepperdine’s public policy school, of which Starr is to be the founding dean, has been financed, in large part, by a private foundation controlled by Richard Mellon Scaife. Scaife is a key financial backer of conservative groups strongly hostile to the Clinton administration and among the leading sources of Whitewater conspiracy theories. According to press reports, the Scaife Foundation has contributed $1.1 million of the $2.75 million in start-up costs for Pepperdine’s new school

This is not the most responsible and credible way to investigate a sitting president.

These are not the kinds of political winds that should buffet the investigation of government officials.

There is a growing school of thought--increasingly bipartisan after the nation has endured both Lawrence E. Walsh, the independent counsel for the Iran-Contra affair, and now Starr--that we have misread the lessons of Watergate: that our system of checks and balances worked; that President Richard M. Nixon tried and failed to corrupt the internal investigation. Instead, we saddled ourselves with the independent-counsel system. And now, 20 years later, where is the evidence that independent counsels have accomplished anything that ordinary government prosecutors or congressional hearings could not have accomplished at less cost and less disruption?

Where is the evidence that the independent-counsel system functions above politics? It seems, instead, that the flaws in the independent-counsel system have undermined its central purpose of insulating the administration of justice from political influence--and that is why this law should be changed fundamentally or junked.