Don’t Throw Baby Out With Bathwater

Twenty years ago, a reform-minded Congress, shaken by the jarring experience of Watergate, approved a series of laws that marked the beginning of what was to be a new era of government accountability. One of those laws, the independent counsel statute, was meant to reassure a skeptical public that criminal investigations of those at the highest levels of power would be insulated from the political influence of the very people under suspicion.

At the time, the memory of Archibald Cox’s firing by Richard Nixon five years earlier was fresh and seemed reason enough for the statute, since that episode launched a profound constitutional crisis and demonstrated just how far one president was prepared to go to stop an investigation of his administration. Now, the bitter controversies surrounding the work of independent counsels Lawrence Walsh and Kenneth W. Starr appear to have created a bipartisan coalition to terminate the law.

But if two decades of wear and tear have taken their toll on the independent counsel statute, the underlying principle behind it remains as powerful as ever, perhaps more so. Public confidence in government is severely depressed. Cynicism and doubt fueled by warring political parties and divided government are epidemic. And the most damning evidence is plainly before us: Public participation at the ballot box is at its lowest level in half a century, ranking the United States 137th out of 163 world democracies in voter participation. This seems a poor time to kill a statute that can sustain what faith the public still has left in honest, accountable government.

The independent counsel statute should be changed to reflect what experience has taught us over these last 20 years, for at times it seems to have become a vehicle for, rather than a protection against, the abuse of power. But the value of an executive branch investigator protected from conflicts of interest and political influence is still too essential to relinquish.

So what should be done? An independent counsel law is most effective when used for significant investigations and least effective when used to pursue flimsy charges. To limit use of the law, Congress might raise the evidentiary threshold for appointing an independent counsel and reduce the number of executive branch officials--which now numbers 240--who fall under its jurisdiction.

As the law now stands, the attorney general must request an independent counsel if there are “reasonable grounds to believe that further investigation is warranted.” Perhaps that hair-trigger threshold should be raised to “probable cause” or “reasonable grounds to believe a crime has been committed.”

We might also consider limitations on an independent counsel’s ability to expand his or her jurisdiction beyond the scope of the original investigation. The statute now requires the attorney general to give “great weight” to such a recommendation and to reach a decision within 30 days. This permits an independent counsel to leapfrog from one matter to the next--witness Starr’s progression from investigating Whitewater to Travelgate to Filegate to Monica Lewinsky--in essence becoming the subject’s permanent personal inquisitor. One solution would be for the statute instead to establish a presumption against expansion of jurisdiction and require appointment of a separate independent counsel if evidence of additional criminal behavior by the same subject surfaces.

Perhaps we might decide to establish a special office within the Department of Justice. The office might be headed by a public prosecutor who is confirmed by the Senate but who would be protected from summary dismissal by the attorney general to guarantee his or her independence.

These are just a smattering of the ideas that have been floated in answer to the many critics who question the sweeping powers ceded to independent counsels over the years. But they are ideas bred from 20 years of experience and built on the admirable service records of most of the independent counsel, who, not coincidentally, have been neither controversial nor well known.

I have no doubt that if we fail to craft a workable substitute to the independent counsel, down he road, we’ll find ourselves in a crisis similar to Watergate or Iran-Contra or Whitewater, with a public skeptical of the legitimacy of the criminal process and, possibly, with a president or attorney general more interested in his or her own career than in getting to the facts. Then, we will wish that in 1999 we had done more to preserve the bedrock democratic principle of the rule of law, that is, the ability to independently prosecute even our most powerful officeholders.