Starr Search May Be Last Gasp for Independent Counsels

By the time Kenneth W. Starr is done, the unchecked power of special prosecutors may be too.

Effectively, the independent counsel system has created an extra branch of government, without restraints that apply to elected officials and their appointees.

The law giving independent counsels unlimited budgets, tenure and broad authority expires in 1999. There were proposals for an overhaul long before Starr got another expansion of his Whitewater franchise to cover allegations that President Clinton had a sexual affair with a former White House intern and tried to get her to lie about it under oath.

Clinton vehemently denies the allegations.

But the whole operation, including a tape-recorded sting--”consensual monitoring,” in Starr’s words--raises new controversy about the powers Congress voted 20 years ago to independent counsels.

Ironically, it lapsed for 18 months because Senate Republicans, angry at the way the system was used against their presidents, blocked an extension in 1992 with a threat to filibuster.

By then, Clinton had been elected president, and he favored renewing the law. Now his administration is the target, in four cases including Whitewater, and the GOP is demanding the appointment of others on campaign fund-raising abuses and assertions of misconduct involving two Cabinet members.

A product of Watergate, the independent counsel system was to be used in dealing with credible allegations that a crime may have been committed by a top federal official, about 70 people under current law.

The attorney general decides whether an accusation meets that test and, if so, recommends the appointment of an independent counsel to a panel of three federal appellate judges.

Once the counsels are in, there’s no limit on their time or budget. They can be fired for cause by an attorney general who would dare the firestorm that it would ignite. As a practical political matter, it can’t be done.

Richard Nixon tried to get rid of the Watergate special prosecutor in 1973, and the scandal that eventually drove him from office only got worse. Another prosecutor took over. The law wasn’t even on the books then: Both Watergate prosecutors were appointed by the attorney general, with powers used only five times before Watergate, in extraordinary scandals like Teapot Dome.

Nor was there an independent counsel law when Clinton, under political pressure, told Atty. Gen. Janet Reno to appoint an outside prosecutor in the Whitewater case. Indeed, Clinton has said that if the law had been in effect early in 1994, there wouldn’t have been one because the threshold set by statute hadn’t been met.

When Congress renewed the law later that year, it included a provision to keep the Republican prosecutor Reno had named, but the three judges overseeing the system replaced him with Starr anyway.

Since Starr took over that summer, the Whitewater investigation had cost more than $32 million. He has had its mandate expanded far beyond the Arkansas land deal that began it, four times now, including the Lewinsky case.

He went to the attorney general with the sex and cover-up charges, and she approved the latest expansion. There wasn’t much choice: to have said no would have invited a political eruption.

Starr’s role is certain to be at issue when the law comes up for extension next year. There will be proposals to reduce the number of officials it covers; set time limits subject to court extensions; require investigators to be full-time prosecutors, without the private law practice Starr has retained; or end the whole thing.

Before Starr took the Whitewater post, he advised attorneys for Paula Jones on her sexual harassment suit against Clinton; testimony in that case led to the current one. He announced a year ago that he would resign as prosecutor to become dean of Pepperdine Law School in Malibu, a job that turned out to have been endowed by a conservative financier and Clinton foe. Starr reversed himself and said he’d stay in Washington; Pepperdine is holding the job open for him.

His performance was argued on opening day in the Senate. Sen. Patrick J. Leahy (D-Vt.) denounced his tactics and said the whole independent counsel system has “been corrupted and no longer serves its intended purpose.”

Leahy called the Starr operation “partisan, unjustified, demeaning.”

So Sen. Arlen Specter (R-Pa.) telephoned Starr, who, of course, denied it.

Walter R. Mears, vice president and columnist for Associated Press, has reported on Washington and national politics for more than 30 years.