An alternative to the special counsel law

May 18, 1999|By Bob Dole and George J. Mitchell

IT IS now obvious Congress will not renew the Independent Counsel Act when it expires next month. Although we held different views about the act when we served in the Senate (Mr. Dole opposed, and Mr. Mitchell supported, the last reauthorization), we agree that an alternative is required to fill the vacuum that will follow its demise.

The law's underlying purpose remains a vital one: to insure that allegations of criminal wrongdoing by high government officials are adequately investigated and prosecuted. The key is to find a system that accomplishes that aim while retaining both the independence and the accountability of investigators.

Bipartisan approach

To construct a sensible alternative that meets these goals, we convened a bipartisan group (brought together by the American Enterprise Institute and the Brookings Institution) to consider the history of the act, the 20 investigations it has spawned since 1978 and the way allegations of governmental misconduct were handled before an independent counsel law existed. Our efforts led to the following conclusions, which we will detail in a public report today.

First, we should let the Justice Department do its job. With rare exception, the public interest is best served when criminal matters, including those involving government officials, are the responsibility of the regular offices of the Justice Department. Some past investigations by independent counsels could have been handled that way without diminishing public confidence.

Second, we should return the full authority to appoint a special counsel to the U.S. attorney general. Originally passed in 1978 in the wake of Watergate, the Independent Counsel Act not only limits the discretion of the attorney general to decide when and whether to appoint an independent counsel, but also leaves the decision of whom to appoint to a panel of three federal judges. Yet the history of political scandals shows that attorneys general have usually succeeded in identifying cases that warrant the appointment of special counsel. History also shows that attorneys general have understood the importance of selecting counsels who command public confidence.

For example, the independence and integrity of the two Watergate special prosecutors, Archibald Cox and Leon Jaworski, both appointed before the Independent Counsel Act was on the books, were never questioned.

Similarly, there was wide praise for Attorney General Griffin Bell's selection of Paul Curran to investigate alleged financial misconduct in the Carter White House. When Mr. Curran cleared President Carter, announcing that he had accounted for "every nickel and every peanut," his conclusions were accepted by Republicans and Democrats alike.

Another remedy

If an attorney general refuses to appoint a special counsel when the circumstances justify one, the ultimate remedy is in the political process. The president can direct the attorney general to take the appropriate action and can fire him or her if necessary. Congress can hold oversight hearings. The press and other observers can highlight the attorney general's failure to act responsibly. And, of course, there is no substitute for an informed public whose electoral judgment is the most effective check on the abuse of power.

Third, we must heed another Watergate lesson: don't start the trip without a road map. The two Watergate special prosecutors operated under carefully negotiated regulations issued by the attorney general.

These regulations guaranteed the independence of the special prosecutors, made clear the scope of their jurisdiction and investigative powers, and sharply restricted the ability of the attorney general and the president to remove them. The regulations assured the public that a genuine conflict of interest had been resolved and that allegations of high-level misconduct would be pursued.

Janet Reno and future attorneys general should build on the Watergate experience by setting regulations that establish guidelines for future special counsels.

Finally, the attorney general's regulations should strike the right balance between independence and accountability. The assurance of independence from political pressures, first provided in the Watergate regulations and strengthened in the Independent Counsel Act, is crucial. And special counsels, once appointed, should be removed only for "good cause" during an investigation.

But we also believe the attorney general should have the responsibility to decide at designated intervals -- say, two years after a special counsel is appointed, and then annually -- whether an investigation should continue.

If the decision is to end an investigation, the reasons should be reported to Congress, so that the attorney general is publicly accountable for that critical decision.

It is essential to learn from our entire history, not just recent history. From that perspective, we believe it is wise that both attorneys general and special counsels adhere to well-balanced regulations that assure fair and independent investigations.

That is the surest way of promoting public confidence that the law will be applied impartially to the highest government officials.

Bob Dole, a Republican, and George J. Mitchell, a Democrat, are former Senate majority leaders.

Pub Date: 5/18/99

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