Starr says it was the law's fault

Independent counsel: Remedy never worked right, but the need that produced it will remain.

April 16, 1999

THE FIRST reaction to Kenneth W. Starr's testimony, recommending the office of independent counsel cease to exist, is that if even he is not for it, the institution cannot survive.

Mr. Starr, however, strains credibility when he suggests that every criticism heaped on him was caused by the failings of the 1978 independent counsel law and a voracious press. He takes no responsibility for the relentless quest for anything negative about President Clinton, for invading the private lives of people far removed from anything he was authorized to investigate, for pressure tactics that have defendants in peripheral cases claiming that he was trying to extort perjury harmful to the real targets. You don't have to buy such self-exculpatory pleading to see good sense in much of Mr. Starr's testimony to the Senate Government Affairs Committee. In fact, Mr. Starr's testimony is remarkably parallel to that given before a House subcommittee in March by former Attorney General Benjamin R. Civiletti, who believes that the law "is hopelessly flawed and cannot be repaired."

Mr. Civiletti said the act's requirements, including publicity, deny equal justice for all including the innocent; that it is subject to partisan manipulation to provoke investigations; that it has expanded its focus from major crimes of corruption to more trivial complaints; that there are neither accountability nor the restraints normally on federal investigators; and that attorneys general have appointed successful outside counsel without such a law.

But the likelihood of an overly political or ethically deficient attorney general in the future calls for perfecting rather than ending the law.

Creating an office that is independent but also accountable sounds like a contradiction. It would be extremely difficult to reconcile the two. Mr. Civiletti says it would be impossible. So, now, does Mr. Starr.

"Let the statute lapse," Mr. Starr says. To which he adds the wisest words in his testimony: "and then reassess after the current intensities have passed . . ." In other words: Don't kill it; give it a rest, and reflect.

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