Alternative Sought for Independent Counsel Law

House Republicans, frustrated by the administration’s turnaround on the independent counsel law, directed the Justice Department on Tuesday to come up with a new plan for ensuring that accusations against top officials are fully investigated.

The move capped an afternoon-long hearing before a House subcommittee on the future of the independent counsel law, as Atty. Gen. Janet Reno’s top deputy urged Congress to let the much-maligned measure die because it has become rife with politics.

Approved in its current form in 1994, the independent counsel law is set to expire June 30 unless Congress authorizes it again. The law, designed to ensure impartial investigations of executive branch officials accused of public misconduct, has been widely criticized in the wake of independent counsel Kenneth W. Starr’s broad, $40- million review of President Clinton.

The Senate opened hearings on the law last week, and Tuesday’s House session was the first in a series of hearings in that chamber on the topic that probably will stretch over several months. With opposition to the law growing both in Congress and the administration, the key question now appears to be whether the statute can survive in any form.

A fundamental issue in the review of the law is the one raised by GOP panel members: What would replace the current system?

Deputy Atty. Gen. Eric H. Holder Jr. testified that lawmakers should simply allow the process to revert to the era before Watergate reforms, when the attorney general held the power to investigate high-level corruption and--if necessary--appoint a special prosecutor.

But Republican lawmakers clearly were unsatisfied. Rep. George W. Gekas (R-Pa.), head of the House Judiciary subcommittee, said that he was “worried sick” about the prospect of letting the law die without a formal investigative mechanism in place.

Gekas and fellow Republicans sparred repeatedly with Holder over the reasoning behind the administration’s new position, asking why Justice Department officials lobbied strongly for the law in 1994 but were now moving to scrap it.

“Is it because some people don’t like Ken Starr?” Rep. Lindsey O. Graham (R-S.C.) asked pointedly. Gekas and Graham were among the House managers who pressed the impeachment case against Clinton.

Holder stressed several times that the Starr investigation had nothing to do with the administration’s reversal. Rather, he said, the rethinking was the result of “our increased familiarity with the act”--and its many flaws--in the last several years.

“The Justice Department has reluctantly come to the conclusion--and I must emphasize reluctantly--that there are fundamental structural flaws with the act,” he said.

Among the law’s problems, Holder said, are that it covers too many administration officials, gives the attorney general too little discretion in determining whether to recommend an independent counsel, and gives the outside counsel unbridled authority and unrestricted funds.

Holder said that the mechanism encourages an outside prosecutor “to investigate the most trivial matter to an unwarranted extreme.” Adapting a quote from Mark Twain, he said: “To a man with a hammer, a lot of things look like nails that need pounding.”

In the years before the original law was passed in 1978, the Justice Department prosecuted Spiro T. Agnew, Nixon’s vice president, and Carter administration budget director Bert Lance, and it investigated other matters involving administration figures, Holder said. That process can work again, he added.

But Republicans pressured Holder repeatedly to spell out exactly how the department would avoid succumbing to political pressures. A frustrated Gekas ultimately directed Holder and the department to develop a plan within 30 days.

Holder agreed to comply, although he told reporters later that he was unsure how the administration could meet the panel’s demand.

The Supreme Court also cast a skeptical eye on the law Tuesday in its review of a four-year, $20-million investigation conducted by independent counsel Donald C. Smaltz.

The primary target of the inquiry, former Agriculture Secretary Mike Espy, ultimately was acquitted, but Sun-Diamond Growers of California was fined $1.5 million for showering Espy with such gifts as luggage, free meals and tickets to tennis matches.

Smaltz had argued that the giving of gifts, no matter how small, to a high-ranking federal official is a federal crime.

During oral arguments, several justices wondered aloud whether this was truly a case of Washington corruption or instead a prosecution of trivial pursuits.

“Why does this make sense?” asked Justice Stephen G. Breyer. “If the people in the old age center send a present to a senator [because he has supported legislation for the elderly], that’s a crime? Why should we give prosecutors such broad discretion to prosecute this sort of thing?”

Justice Sandra Day O’Connor asked whether “baking brownies” for a government official might be a crime. Other justices asked whether taking someone to a football game or accepting a free meal could be illegal.

At issue is the Illegal Gratuity Act, a good-government measure passed in 1962, which makes it a crime to give “anything of value to any public official for or because of any official act.”

The case before the high court (U.S. vs. Sun-Diamond Growers, 98-131) turns on the last phrase. The independent counsel had no evidence that the California growers had given gifts to Espy because they expected him to perform any “official act.” Smaltz said it was enough to show that the gifts were given to Espy because of his position as Agriculture secretary.

Last year, a U.S. appeals court overturned the conviction of Sun-Diamond Growers because its gifts were not linked to Espy’s performance of any official act.

The justices seemed to signal Tuesday they will probably uphold that ruling and rein in the use of the law.