Counsel law slips away unmourned

July 05, 1999|By Jack W. Germond and Jules Witcover

WASHINGTON -- The end of June marked the end of the independent counsel law that led, among other things, to the impeachment of President Clinton. It is a death that will go unmourned not only at the White House but generally throughout the political community as a questionable tool for the search of corruption in high places, often in questionable hands.

Many legal scholars challenged the constitutionality and wisdom of the law from the outset of its enactment in 1978. It was a direct outgrowth of the Watergate scandal, in which an incumbent attorney general, John Mitchell, was directly involved with President Richard Nixon in abuses of executive power and the subsequent cover-up.

Archibald Cox, the first special prosecutor appointed in the Watergate investigation prior to any independent counsel law, was summarily fired by Nixon in the infamous Saturday Night Massacre of late 1973, as Mr. Cox was getting too close to the truth. A second special investigator, Leon Jaworski, finished the job, but the whole experience convinced the Democratic-controlled Congress that such matters could no longer be trusted to a Justice Department under control of a possibly corrupt president.

Ten years after enactment, a federal appeals court declared the new law unconstitutional as a legislative invasion of presidential "prerogatives and responsibilities," but five months later the Supreme Court upheld the act by a 7-1 vote. The lone dissenter, Justice Antonin Scalia, quoted in Bob Woodward's new book, "Shadow," called the act "frightening," observing that "only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation."

Some 20 independent counsels were appointed under the law, but it was the most prominent of them, Kenneth Starr, who put a face on Justice Scalia's concerns. Mr. Starr's Whitewater investigation of nearly five years was not the longest -- Lawrence Walsh spent seven on Iran-contra -- but it was by far the most controversial.

Starr's terrier-like pursuit of Clinton was defended by Republicans but castigated by Democrats, starting with the first lady, Hillary Rodham Clinton, who charged him with fronting "a vast right-wing conspiracy" against her husband. The fact that he nailed Mr. Clinton on key facts in the case was overcome, however, by public aversion to Starr and the persuasive case of congressional Democrats that Clinton's sins did not rise to the level of an impeachable offense. The whole experience, however, did doom the independent counsel law. Even Mr. Starr testified before Congress that it was flawed and should be allowed to lapse. Even as he was accused by critics of running wild with its open-ended mandate, Mr. Starr criticized the law as trying to "cram a fourth branch of government into our three-branch government" and said, even as he criticized Attorney General Janet Reno, that special counsels should be subject to the jurisdiction of the Justice Department, as in pre-Watergate days.

Right now there seems little taste for anything but a quiet burial of a law whose remedies were seen as bad as the political illnesses it was meant to cure.

As a result, the Justice Department will get a second chance to prove its ability to be a nonpartisan investigator of corruption in the highest places, in an always partisan political atmosphere.

Jack W. Germond and Jules Witcover write from the Washington Bureau.

Pub Date: 7/05/99

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