February 28, 1999

How The Independent Counsel Office Could Be Improved

The antidote for Watergate, a two-bit burglary, 24 years ago was creation of “independent counsels.” Proposed antidote for Whitewater, a.k.a. Monica-gate, is abolishment of that office.

In the rush to punish Independent Counsel Kenneth Starr, thereby “healing” the nation, we may be unfortunate enough to get what the so-called moderates in Congress pray for.

Alas, those who are ignorant of history are doomed to live it again.

We have had the equivalence of independent counsels since the administration of President Ulysses S. Grant following the Civil War. We will continue to have them if the present law is scrapped.

The difference between then and now is that “special prosecutors” originally were appointed by U.S. attorneys general. The obvious partisanship of Watergate led Congress to place selection in a panel of three Federal Appeal judges.

This process is under attack because it is perceived to have been partisan in the appointment of Starr. Two of the judges were appointed by Republican presidents. Starr, a former judge, was Republican. Ergo, say Clinton advocates, the office of independent counsel was biased.

How the decision of three judges can be evenly split, and an independent counsel neutered, is a challenge beyond resolution. Yet, no one trusts an attorney general, appointed by a president, to conduct an impartial investigation of that president.

Starr has been the principal target of the White House hit squad since git-go. He is on the hot seat now because of accusations his office leaked sensitive information to the press.

The evidence? A packet of news clippings attributing statements to “sources close to the investigation.” The three judges, a year ago, dismissed charges of counsel office leaking. Nevertheless, Attorney General Janet Reno revived the charge in the midst of the Senate impeachment trial of Clinton. The only leaker known for sure is Sidney Blumenthal, a White House “communication specialist.”

At the moment, Sen. Fred Thompson, chairman of the Senate’s Government Affairs Committee, is conducting hearings to decide whether to abolish, revise or replace the independent counsel law. Majority sentiment by legislators, administration and public opinion polls seems to be in favor of killing the law. However, there is strong argument for fixing it.

Howard Baker, former senator during the Watergate hearings and President Ronald Reagan’s chief of staff during the Iran-Contra prosecution, recommends that everyone cool it. He recommends the act be allowed to expire on schedule June 30, and then taken up for revision and renewal next year.

The law did expire for 18 months in 1992 but was revived in 1994 and signed into law by Clinton.

It is not likely the law, once more squashed, will ever again be re-enacted. Nonetheless, an independent mechanism is needed to investigate crimes and misdemeanors -- high and low -- by the highest, executive department officials.

This is particularly pertinent since the standard for perjury and obstruction of justice by presidents has been set lower than for ordinary citizens. According to opinion polls, 83 percent of the public, and a large part of Congress, believe this. They just don’t think kings, emperors and presidents should be held accountable for it.

The concept of accountability for presidents, attorneys general and cabinet officers is more needed now than ever before. A number of good suggestions have been advanced.

Most interesting is a proposal to establish an Independent Counsel Court comprised of a dozen high-level prosecutors. They would be former federal judges with not less than ten years experience, appointed to the special court by the president and approved by the Senate.

If this sounds like the procedure for selecting Supreme Court judges, that’s the whole idea. When an independent counsel is requested by the attorney general, or by simple majority of both houses of Congress, a member of the special court would be chosen by lot. Remaining court members would judge the conduct and jurisdiction of the independent counsel.

The Congress, presidents and attorneys general would continue to be free to petition the Supreme court for rulings on counsel actions.

Thus, the presidency would be accountable -- as all other officials -- but as far removed from partisanship as possible in a representative democracy.

Spin doctors, leakers, pundits, pollsters, talking heads and demonizers would still find gainful employment -- but this is the American way.

By Lindsey Williams, columnist for Sun Coast Media Group newspapers