One Prosecutor Shouldn't Kill Off a Valuable Law

Louis Fisher, a political scientist, writes on executive-legislative relations

Critics of the Independent Counsel Act urge its repeal because of the risk of overzealous prosecution. The statute supposedly enables an independent counsel to target an individual and use unlimited funds to indict him. No doubt the potential for abuse is great for any prosecutor, including those in the Justice Department. Improvements can be considered when the statute comes up for reauthorization next year. The emotional and financial cost of defending oneself is huge, even when there's no indictment.

But the record of the statute does not support the claim of extravagant prosecution. From 1978 to the present, independent counsels have investigated 19 controversies. No indictments were brought in 11 of them. The investigation of Commerce Secretary Ronald H. Brown was closed after his death in a plane crash in Croatia. In most cases, no charges are brought by independent counsels.

The first two investigations involved allegations of cocaine use by Hamilton Jordan and Tim Kraft, aides in Jimmy Carter's White House. There were no indictments. Independent counsels investigated Labor Secretary Raymond J. Donovan, Atty. Gen. Edwin M. Meese III and two former assistant attorneys general: Theodore B. Olson and W. Lawrence Wallace. Meese was investigated a second time. None of these cases resulted in indictments. In 1986, an independent counsel won a perjury conviction of Michael K. Deaver, former White House deputy chief of staff under President Ronald Reagan. A year later, Lyn Nofziger's conviction for violating a lobbying law was overturned on appeal and the case was not retried. This first decade contains no evidence of rampant, bare-knuckled prosecution.

The major investigation in the 1980s was by Lawrence E. Walsh into the Iran-Contra affair. Over the years, Walsh obtained many convictions and guilty pleas. There should be no question about the seriousness of the crimes and the scope of the scandal. Complaints have been made about the time it took and the level of expenditures, but much of the delay and cost came from the complexity of the case and the withholding of key documents by the administration. The initial investigations by Reagan and Congress were limited. Under extraordinarily difficult conditions, Walsh was asked to do a job and did it. We would have learned more had President George Bush not pardoned six men, including three from the Central Intelligence Agency and former Secretary of Defense Caspar W. Weinberger.

In the 1990s, no indictments resulted from an investigation into possible abuse of passport files by Bush administration officials. In two other investigations, sealed by court order, there was no indictment. No indictment was brought against Eli J. Segal, former head of President Bill Clinton's national service organization.

So where's the evidence of heavy-handed prosecution? An independent counsel won several convictions in the widespread scandals affecting the Department of Housing and Urban Development. There should be little doubt about the need for that investigation. The current probe by independent counsel Donald C. Smaltz into allegations of criminal activity in the Agriculture Department has already resulted in indictments and guilty pleas. Corruption within executive departments must be fully investigated to serve as a deterrent to other agencies and regulatory bodies.

What is left? Independent Counsel David M. Barrett is investigating allegations that Henry G. Cisneros, former HUD secretary, lied to the FBI about payments to a woman. The indictment handed down last December includes counts of conspiracy against several others. Cisneros has pled not guilty and is awaiting trial. Another independent counsel will be appointed to investigate Secretary of the Interior Bruce Babbitt.

That leaves independent counsel Kenneth W. Starr. His initial probe of the Whitewater real estate deal has expanded many times, but in each instance the Justice Department has gone to the special panel of federal judges to advocate the expansion. Atty. Gen. Janet Reno and three judges have agreed each time to widen Starr's field of inquiry. His investigation now includes disputes about the White House Travel Office, FBI files and other matters, including allegations of a sexual relationship between Clinton and former intern Monica S. Lewinsky. Like Walsh pursuing Iran-Contra, a great deal of the expense, delay and burdens of Starr's investigation comes from factors beyond his control, including noncooperation by his targets.

Even if Starr has overstepped at times (although some prosecutors say that he follows standard investigative techniques), why should the record of a single prosecutor cast doubt about the value of the independent-counsel statute? Two decades of experience provide no pattern of reckless and insensitive prosecution.

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