Independent Counsel Law Faces Reform--Or Demise


Kenneth W. Starr has been one of the costliest, most controversial and longest-serving independent counsels. And he may just be the last.

Starting today, Congress begins a review process expected to dramatically alter--or simply scrap--the Watergate-era law that created the powerful prosecutorial post. The two political parties--starkly divided over the impeachment of President Clinton sparked by Starr’s investigation--share almost universal disdain for the statute that set that inquiry and others in motion.

The problem, say the critics, is that the investigations tend to last too long, cost too much and stir up too much political fury.

A flurry of reform proposals is circulating on Capitol Hill to rein in future independent counsels through budgetary restrictions, time limits and a reduction in the number of targeted officials. But as likely as fine-tuning is the outright death of the statute, which is set to expire in June.

“Our view is this is not fixable, not salvageable and ought to fade off into the history books,” Sen. Christopher J. Dodd (D-Conn.) said Tuesday at a news conference. At his side was an ideological opposite, Sen. Mitch McConnell (R-Ky.), who harbors equal antipathy for the statute.


The Senate Governmental Affairs Committee today conducts the first hearing on whether it is worth keeping on the books after spawning 20 investigations over 20 years. No vote is required to kill the law. It will lapse if no action is taken.

Despite widespread negative reviews for how the law has worked out in practice, the concept behind it continues to have proponents.

Lawmakers passed the statute in 1978 to ensure impartial investigations of alleged wrongdoing by the president or other top government officials. It is inappropriate, backers contend, for the attorney general--who is appointed by the president--to investigate his or her boss, fellow Cabinet members or party brass.

“I, for one, don’t believe that anything would be gained by abandoning this law . . . but surgery to the statute is probably in order,” said Sen. Joseph I. Lieberman (D-Conn.), one of those searching for a compromise.

If reform of the existing law fails, some lawmakers talk of creating a new approach within the Justice Department for handling sensitive political cases. One proposal would set up a special unit insulated from the attorney general.

But if no consensus emerges, the system would revert to the way it was during the “Saturday night massacre” in 1973, when then-President Nixon ordered the firing of Watergate Special Prosecutor Archibald Cox. The attorney general could still appoint outside prosecutors--such as Cox--to handle touchy cases, a practice that dates back to the “whiskey ring” scandal during President Grant’s administration in 1875.

But the supposed buffer from politics created under the independent counsel statute would be gone (though Starr’s investigation and the four other ongoing independent counsel reviews--including inquiries focusing on Interior Secretary Bruce Babbitt and Labor Secretary Alexis M. Herman--would be allowed to run their course).

“I doubt that it will survive,” said George Washington University law professor Stephen A. Saltzburg, a former assistant independent counsel. “I think the lesson of the last 15 years or so is that we don’t trust it. Wittingly or unwittingly, the independent counsel becomes a player in a political drama.”

As lawmakers decide their next step, they are looking for guidance from former independent counsels--as well as from the many government officials who have been on the receiving end of the inquiries.

Today’s Senate hearing will feature Joseph E. diGenova, who investigated whether Bush administration officials improperly released passport information about then-candidate Bill Clinton in 1992, and Curtis von Kann, who investigated the head of Clinton’s AmeriCorps program.

DiGenova’s mind is made up. “I think it’s a very bad statute that’s beyond repair,” he said. “Something this fundamentally flawed should never have been enacted.”

“The law is in jeopardy,” agreed former independent counsel Lawrence E. Walsh, whose Iran-Contra investigation in the late 1980s was criticized by Republicans as excessive. “The only question is does it get a radical change, or does it get thrown out altogether?”

Sen. Fred Thompson (R-Tenn.), a critic of the law who will head the Senate review, said that he intends to invite Starr and Robert S. Bennett, one of Clinton’s personal lawyers, to provide their insight on the law.

Critical to the upcoming debate will be the stance of the Justice Department, which implements the statute. Department sources said that there have been signs of “deep divisions” among some of Atty. Gen. Janet Reno’s top deputies over whether the statute can be fixed through reforms. Officially, the department says that it has ruled nothing out.

Department officials opposed the entire concept for years, arguing that it represented an unwarranted infringement on their powers. But Reno broke ranks in 1993, when Congress was debating whether to renew the statute, arguing that it offered a way to ensure public confidence in investigating administration figures.

Reno, berated by Republicans the last two years for refusing to seek an outside counsel in connection with alleged Democratic campaign fund-raising abuses, mostly has kept silent in the current debate. But recent reports that she may appoint a prosecutor within the department to investigate how Starr handled aspects of his Clinton inquiry provided additional fodder for the law’s critics.

The one point Reno has made is that Congress should consider imposing budget restrictions on outside counsels--whose operations have run into the tens of millions of dollars. “Everybody in government has to live by a budget, and I think it’s important that there be budget provisions for independent counsels,” she said recently.

The American Bar Assn. weighed in earlier this month, reversing its long-time support for the statute and urging that it be allowed to die. Saltzburg, who headed an ABA task force that looked at the issue, said the statute has set too low a bar for bringing in an outside counsel.

In complaining about the law now, some lawmakers acknowledged that they have nobody to blame but themselves.

“Let me offer an apology to my constituents for voting in favor of the independent counsel law in its current form--a law that has given one person an unlimited budget, unlimited scope, unlimited time and an unlimited ability to hurt people and to hurt them badly,” Sen. Barbara Boxer (D-Calif.) said during final deliberations in Clinton’s impeachment trial.

She is by no means alone in her second thoughts. Many of the lawmakers now crying the loudest for reform of the law--especially Democrats--led the way for its passage. An idea that made sense in theory, they now say, has floundered in practice.

The two parties differ, of course, on the poster child for abuse.

It had been Republicans complaining most about the independent counsel statute--particularly during Walsh’s six-year, $48.5-million investigation of the Reagan administration’s covert sale of U.S. weapons to Iran and its use of the proceeds to support the Contras in Nicaragua.

But in the wake of Starr’s investigation of Clinton--which so far has lasted 4 1/2 years and cost $50 million--many Democrats are equally intent on scrapping the law.

Watch video of Sens. Christopher J. Dodd and Mitch McConnell as they announce their opposition to continuing the Independent Counsel Act. It’s available on The Times’ Web site: