The Special Prosecutor: It's a Law We Don't Need

August 14, 1994|By THEO LIPPMAN JR.

The stormy, partisan Washington reaction to the decision by a three-judge panel there to oust one Whitewater independent counsel, Robert B. Fiske Jr., and replace him with another, Kenneth W. Starr, came, coincidentally but appropriately, in the week the nation was noting the 20th anniversary of the resignation of President Richard M. Nixon because of Watergate.

It is often forgotten that the investigation and prosecution of the Watergate burglary and its subsequent cover-up was not carried out under the law that now covers such independent prosecutions. Instead of a special prosecutor or independent counsel reporting only to a panel of judges, the Watergate prosecutors reported to the attorney general, who reported to -- President Nixon. Not very independent on paper, but it was the most successful such prosecution in history. Subsequent prosecutions of this sort have taken longer, spent more money and produced fewer important convictions.

Two prosecutors

I say "prosecutors" because there were two. Nixon fired the first, Archibald Cox, when he began to get too close to the president's own criminality.

The public and political reaction to the firing forced President Nixon to agree to the appointment of a successor to Mr. Cox, Leon Jaworski. After the reaction to the Cox firing, the president dared not dump Mr. Jaworski, no matter how close he got. Eventually, Mr. Jaworski's Office of the Watergate Special Prosecutor not only helped force President Nixon from office but convicted a host of powerful figures, including the White House chief of staff; the president's chief domestic adviser; two of the principal White House counselors; Nixon's personal lawyer; the former attorney general who had become director of the Nixon campaign committee; and the campaign's deputy director.

In light of that and other actions against high-level officials by the Justice Department (yes, Spiro Agnew, whom I'll get to in a moment), it seems to me that there is no need for the arrangement we have now. That is a system in which when there is a believable accusation against someone close to the president (or the president, himself) the Justice Department bows out and turns oversight of the investigation and, if deemed necessary, the prosecution to three unelected judges. Those judges also select the special prosecutor. They are answerable to no one insofar as whom they select to serve as special prosecutor, nor to how and why they choose that person, nor to how they oversee the investigation. ("Special prosecutor" and "independent counsel" are interchangeable terms. Both have been used in the U.S. Code. For consistency, I'll use the latter.)

Under the law, enacted in 1978 and re-enacted periodically, including this year, an independent counsel who was allowed by the judges to run amok can be removed by the attorney general for "good cause." But that's a tough standard to meet. The independent counsel in the Iran-contra affair ran amok -- spent $37 million in seven years, let an assistant run the office, and ended up with practically nothing to show for it (minor convictions of four minor players in the drama). The judges never reined him in; no attorney general dared fire him.

An independent counsel has had more success in prosecuting influence-peddling at the Reagan Department of Housing and Urban Development, but to date only mid-level or lesser officials have been convicted, and the investigation, in its fifth year, goes on.

The problem with independent counsels, however, is not their cost, their length or their meager results, but that they wield enormous power without the sort of normal political restraint this country has always insisted on in its prosecutors. A government has no more awesome power than that of being able formally to accuse and prosecute a citizen for a crime. Always before the independent counsel statutes, the individuals exercising that power have been answerable to the people. Indirectly in the case of U.S. attorneys, who can be fired by elected presidents. Directly in Maryland and other states, where prosecutors are answerable to the people at the ballot box.

The federal judges who control independent counsels hold unelected office for life. Some lawyers believe this is an unconstitutional arrangement. They argue that the Constitution requires a president -- and only a president -- to "execute" the laws. The Supreme Court rejected that argument in 1988, despite its being endorsed in a brief by three former attorneys general: Edward Levi, Griffin Bell and William French Smith. Another former attorney general, Nicholas Katzenbach, called for abolition of the independent counsel law in an article later.

The rationale for having an independent counsel is that a president can't be expected to investigate his friends and colleagues, much less himself. But the United States got along fine without this being a problem for nearly 200 years.

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