Lewinsky’s Legacy May Be End of Independent Counsel Office

The first casualty of the Monica S. Lewinsky matter may not be the president but rather the office of independent counsel.

Even before the latest allegations arose, many legal experts were calling the independent counsel law a disaster and urging that it be revised or repealed.

Now the public’s apparent revulsion over reports that independent counsel Kenneth W. Starr is looking into allegations that a presidential affair was covered up may finally prompt a change.

“I don’t fault Ken Starr so much for this, because he is operating under a flawed system,” Georgetown University law professor Susan Bloch said.

The law has created special prosecutors “who know no limits and are focused on just one person,” Bloch said. “I think it’s doing great damage to the office of the presidency.”

In the wake of the Watergate scandal that drove President Nixon from office, a reform-minded Congress passed the Ethics in Government Act of 1978. It created a special, ostensibly nonpolitical, process for looking into serious criminal charges involving the president and other top government officials.

In practice, it has triggered a series of long, costly and far-ranging investigations based on charges that often seem driven more by politics than by crime. The record includes major investigations that arose over minor charges, political disputes that were turned into criminal cases and long-forgotten inquiries that have never quite ended.

Republicans who felt the sting of independent counsels in the 1980s were the first to sound an alarm.

In 1983, Reagan administration attorney Theodore B. Olson testified before a House committee looking into alleged GOP corruption in the Environmental Protection Agency. Afterward, Democrats who controlled the committee alleged he had failed to turn over some handwritten notes along with documents that were subpoenaed.

Under pressure, the attorney general called for an independent counsel. For several years, Olson worked under the cloud of a criminal investigation and spent $1.5 million in legal fees defending himself.

He unsuccessfully challenged the law in the Supreme Court. Finally, in 1989, independent counsel Alexia Morrison announced somewhat grudgingly that Olson’s original testimony was “literally true” and did not warrant criminal charges.

Last week, Olson noted wryly that the Republicans’ earlier complaints about the independent counsel law are suddenly getting a public airing.

“We said it was terrible law, that it was eroding the executive branch, that it was extremely difficult to live under. And no one paid attention then,” he said.

The Democrats who wrote the law insisted on its renewal in 1994, even though GOP leaders such as former Sen. Bob Dole of Kansas favored allowing it to lapse.

As a result, Clinton administration officials have now felt its sting.

Former Housing Secretary Henry G. Cisneros has been the target of a $6-million independent counsel probe and an 18-count indictment that arose when his former mistress revealed that the former San Antonio mayor had not disclosed the full extent of payments he had made to her.

Former Agriculture Secretary Mike Espy is at the center of a $12-million independent counsel investigation stemming from allegations he accepted Super Bowl tickets, limousine rides and other favors from lobbyists for companies in the agriculture business. The charges levied against him do not accuse him of providing favors in return for the gifts, only that he wrongly accepted them.

Under the law, independent counsel investigations are not limited in time or money. A decade after President Reagan left the White House and Samuel R. Pierce departed as secretary of Housing and Urban Development, an independent counsel is still looking into alleged wrongdoing at HUD during the Reagan-Pierce era.

Even before Starr’s move into the Lewinsky case, the Whitewater probe had come to symbolize some of the problems with the law.

Starr’s investigation began as a look into the involvement of Clinton and his wife, Hillary Rodham Clinton, in the collapse of Madison Guaranty Savings & Loan of Little Rock, Ark., and possible obstruction of justice and false statements arising out of the investigation. It has metastasized into a $30-million inquiry that has examined, among other things, whether Mrs. Clinton lied about the firing of seven White House travel office staffers and whether the suicide of the deputy White House counsel and a longtime Clinton friend, Vincent Foster, was really suicide.

When Starr learned that former White House aide Linda Tripp had tape-recordings that suggested a sexual affair and perjured testimony involving the president and Lewinsky, a former White House intern, he obtained the authority to expand his investigation to cover the matter.

Former Watergate prosecutor Richard Ben-Veniste said the tightly focused investigations envisioned in the law have in practice become unlimited and endless.

“If the American people had to choose, I don’t think they would subscribe to the notion of putting one person in charge and giving him unlimited budget to investigate the president of the United States for his entire term of office,” said Ben-Veniste, who served as Democratic counsel during the Senate’s Whitewater probe.

A Senate committee is planning to hold hearings this summer on the independent counsel law. Unless renewed by Congress, the law expires next year.

Some have suggested small, technical changes. Time limits could be put on investigations, and fewer officials could come under the jurisdiction of independent counsels.

A more fundamental proposal calls for the creation of a nonpartisan office of public integrity that would exist outside the day-to-day supervision of the attorney general. Because this office would have several cases to pursue, rather than just one, it would be less likely to turn minor matters into multimillion-dollar investigations, its advocates say.

The most far-reaching but simple change would repeal the law and return to having the attorney general and Justice Department investigate criminal allegations.

Proponents of this idea cite the history of Watergate. They note that Nixon was driven from office by political pressure, not by an independent counsel appointed by an panel of judges. Nixon himself appointed a special prosecutor in the case, an authority that presidents would retain.

The most powerful argument for returning to the former system of checks-and-balances was written a decade ago by Supreme Court Justice Antonin Scalia, the sole dissenter in the Olson case.

Scalia envisioned unfairness with a system in which “judges hostile to the administration, the independent counsel an old foe of the president, the staff refugees from the recently defeated administration” could combine to bring a criminal case against the chief executive.

“There would no one accountable to the public to whom the blame could be assigned,” Scalia wrote.

For Clinton administration officials, his prediction has proved prophetic.