Last month, Attorney General William Barr announced that a special counsel would conduct a probe of the House of Representatives' bank. The statute establishing truly independent special counsels -- for example, Lawrence Walsh in the Iran-contra investigation -- does not apply to probes of congressional misdeeds. But even special counsels answerable to the attorney general, as is his choice in this case, Malcolm Wilkey, can be independent. Remember Archibald Cox? He was in that situation and pushed the Watergate investigation so far President Nixon ordered him fired.
If Mr. Barr displays Cox-like independence, his work will not be suspect. If on the other hand he appears to be engaged in a political fishing expedition manipulated in any way of, by or for the administration, it would backfire to the detriment of President Bush and the Justice Department, not to mention Mr. Wilkey.
Some Democrats suspect Mr. Wilkey of just that, now that he has subpoenaed all the House bank's records for the period under investigation. House Republican Leader Bob Michel also has expressed concern about the scope of the investigation. He does so out of concern for institutional prerogatives. (He bounced or kited no checks.) He agrees with House speaker Tom Foley, who argues that there is a constitutional issue involved -- the separation of powers -- and that the House must refuse the executive branch's intrusion into legislative affairs for the good of the House of Representatives.
That's what Richard Nixon said (he was protecting future presidents) when he refused to turn over his tapes to the House Judiciary Committee. The Supreme Court said the Nixon argument rested on "an archaic view of the separation of powers as requiring three airtight departments of government" and rebuffed the president. We think it would again in a case like this one. A court challenge would drag out, and the House might even win (though we doubt that), but the House would take a public relations beating in the meantime.
Mr. Foley would harm his party, and his institution even more, by stonewalling or engaging in some limited modified hangout than he would by seeing to it that the House is forthright and forthcoming. What he and especially Mr. Michel ought to do is work with Mr. Wilkey to establish ground rules that give him all the information he needs to conduct his investigation while at the same time assuring innocent members protection from guilt by association, innuendo and invasions of privacy.