Senators Express Desire to Fix, Not Scrap, Counsel Act

Both Republican and Democratic members of a Senate committee rejected arguments Wednesday from President Clinton’s personal attorney that the law establishing independent counsels is “fatally flawed” and ought to be scrapped when it expires June 30.

Sen. Fred Thompson (R-Tenn.), the chairman, was joined by other members of the Governmental Affairs Committee in saying that they agreed with some suggestions from the attorney, Robert S. Bennett. But all wanted to fix the law rather than let it expire.

Bennett contended that his views on scrapping the controversial law are his own and do not necessarily reflect the president’s. But the Justice Department’s No. 2 official, Eric H. Holder Jr., told a House subcommittee Tuesday that the law should be abandoned. Holder said he represented the administration’s point of view.

Thompson, however, cited a need for the law, saying that “the public expects some kind of mechanism” to guarantee an independent investigation of high government officials.

“We can’t go back again,” he added, referring to the situation 21 years ago when no provision existed for the court-approved appointment of outside special prosecutors.

Similar views were expressed by the only other committee members to speak at the hearing: Democratic Sens. Carl Levin of Michigan and Joseph I. Lieberman of Connecticut and Republican Sens. Arlen Specter of Pennsylvania and Susan Collins of Maine.

Lieberman said that, despite the law’s serious flaws, he would like “to assure that, in fact, independent investigations are conducted.” Justice Department inquiries fail to achieve “credibility with the public,” he said.

“We ought to try to salvage the Independent Counsel Act,” Specter interjected. Complaining that inquiries under the law have been too lengthy and too costly, he said an 18-month time limit should be established as a starting point.

Despite such proposals for revision, opposition to the law in any form--fanned by independent counsel Kenneth W. Starr’s long investigation of Clinton--appears to be growing.

Bennett, a prominent Washington defense lawyer who has represented other famous clients in independent counsel investigations, including former Defense Secretary Caspar W. Weinberger during the Iran-Contra scandal, said the special counsel statute has become “a nuclear weapon in the arsenal of partisan politics.”

“Rather than ensuring that public officials are not treated with kid gloves, the Independent Counsel Act has become a vehicle for subjecting them, and those around them, to seemingly perpetual scrutiny more intense than any private citizen would have to endure,” Bennett said.

But attorney Nathan Lewin, who represented Atty. Gen. Edwin Meese III in another investigation during the Ronald Reagan administration, testified that “some law, even if imperfect, is better than none.”

Lewin said that, when a high administration official is cleared--as was Meese--of wrongdoing by an investigator who is not beholden to the Justice Department, the exoneration is “conclusive in the public mind.”

About half of the 20 special counsels who have been appointed under the 1978 law have wound up clearing the officials they investigated.

Lewin said he agreed with Bennett, however, that the current law allows overly broad jurisdiction to special counsels and permits them to expand ongoing investigations into areas not envisioned in their original mandates. He cited Starr’s inquiry in the Monica S. Lewinsky case as an example of this, noting that it had no relevance to the Whitewater real estate transactions he was named to investigate.

Robert B. Fiske Jr., who preceded Starr as a Whitewater special counsel, told the hearing that officials subject to such investigations should be limited to the president, the vice president and the attorney general. The act now covers more than 100 people in government, including all Cabinet members and many White House officials.