Years ago, long before Washington turned against the independent counsel law, I wrote a newspaper piece captioned, “A Joe McCarthy Special Prosecutor?”
The piece may have been a bit alarmist, but I take some satisfaction in the memory. I simply conducted a thought experiment. I tried to imagine what it would be like if a headstrong, self-promoting lawyer were appointed a special prosecutor and pushed the envelope of the law’s powers to the limit--even as, a generation ago, the infamous Wisconsin senator had turned an innocuous Senate investigating subcommittee into a dangerous instrument of political terrorism.
Fortunately, the danger was and is largely hypothetical, though less so after Kenneth Starr’s excesses. But the point remains: In a constitutional system relying upon checks and balances, good intentions alone--the usual excuse for this statute--can never license the creation of a device so liable to licentious abuse.
You might have thought that as much would have been obvious 10 or 20 years ago, when this law entered our political universe as part of the post-Watergate Ethics in Government Act of 1978. But no; it was defended by too many for too long because, in part, partisan congressional majorities of both parties found it a handy instrument for torturing presidents and because, in Washington, good intentions matter more in the short term than bad results.
I pause here to note that there is a short honor roll of those who saw the danger from the outset. The most eminent was Justice Antonin Scalia of the Supreme Court. When that court placed its casual imprimatur on the law in the 1988 case of Morrison vs. Olson, Scalia vigorously dissented. Among other flaws, he noted that special prosecutors would tend to concentrate on targeted persons rather than on suspected offenses of lawbreaking. And he was right. Starr’s dogged pursuit of President Clinton, from Whitewater to Travelgate to Filegate to Monica Lewinsky, over five years and more than $40 million, constitutes a telling vindication of Scalia’s central point.
The fact is that while it masquerades as a bulwark of the rule of law, the independent counsel statute has proved to be a facilitator of the rule of lawyers. Indeed, there were times in the past six years when it looked as if presidential government would have to be adjourned lest it interfere with all the special legal investigations of Clinton and his cabinet.
But there are more fundamental constitutional reasons why this law should never have been enacted and should now be allowed to die. The independent counsel statute has been a sour experiment in what the late Richard Hofstadter, the eminent Columbia University historian, used to call “improving on the founding fathers.” In that respect, it is of a piece with such devices as the 22nd amendment, other mandatory term limits and the unending stream of proposals for mandating a balanced federal budget--every one of them professions of elitist doubt that the voters really know what is good for them or how to achieve it within the normal processes of politics.
Like those constitutional tinkerings, the special prosecutor law adds redundant wheels and levers to the framers’ elegant constitutional design.
In the framers’ lost 18th century world, the overriding model was the Newtonian cosmology, the “clock universe” whose stability flowed from a balance, an equipoise, of conflicting forces. The framers had that model much in mind when they divided and distributed powers among three balanced branches of government. They assumed, correctly, that misbehavior in any of the three would generate resistance and political correction by the other two--for every action, an equal and contrary reaction, just as Dr. Newton’s theory predicted. For two centuries, congressional inquest and judicial discipline, aided by a free press, sufficed to expose and correct abuses of presidential power--more swiftly, and at far lower cost per culprit, than any “independent counsel” in the past 20 years.
This elegant and functional machinery served us well for two centuries. Then came Watergate. And while Watergate ended in self-correction, and was among the historic triumphs of the framers’ design, moralistic politicians of the day misread the “lessons” and added an additional--and redundant--wheel.
When the current law expires in June, we can rid the constitutional structure of this debilitating excrescence. We can do so by simply doing nothing. As former Sen. Howard Baker Jr. said the other day, registering his own pointed objections to the law, all we have to do is “cool it.”