An Unmourned Death

The independent counsel law is scheduled to lapse in June and the signs are that Congress intends to let it expire quietly, a victim of the investigatory excesses and expensive failures that it gave rise to. The law dates from 1978, four years after Richard M. Nixon was forced to resign the presidency because of the Watergate scandal. There was general agreement at the time that a politically appointed attorney general has an implicit conflict of interest when it comes to investigating high administration officials. In such cases a respected outsider should be chosen to determine whether laws had been broken and whether prosecution was warranted.

Last December the bipartisan National Commission on the Separation of Powers reached the same conclusion that many in Congress were coming to. It found the independent counsel law seriously flawed and a marked departure from the standards of the criminal justice system. There are “no realistic fiscal or time constraints on the counsel . . . there is no way of correcting the inherent absence of fairness from the procedure itself--chiefly the isolation of the putative defendant from the safeguards afforded to all other subjects of federal criminal investigation.”

The sweeping powers granted by the law mean that many people other than the 49 holders of high office specifically named in the statute as falling under the counsel’s purview can be caught up in the investigative net. As Kenneth W. Starr’s five-year, $50-million and still uncompleted investigation of President Clinton has shown, individuals never charged with a crime can nonetheless be forced to spend tens of thousands of dollars in legal fees simply to try to assure that their rights are protected.

But if the independent counsel law is headed for a largely unmourned extinction, the question of how best to deal with possible wrongdoing in high places remains. In most cases, Justice Department professionals should be able to fairly investigate criminal allegations against members of an administration. When the president, the vice president or the attorney general falls under suspicion, Congress should provide a means to separate an investigation from potential political influence. In all circumstances, investigations should be limited in time and scope and restricted to acts committed in office, not earlier. Nixon’s abuses of power showed why an independent counsel law was needed. Starr’s abuses of power have made clear why it’s time for the statute to pass into history.