Special Investigations Scrutinized

ARE independent counsels a vital bulwark against wrongdoing in the United States executive branch? Or are they out-of-control prosecutors on a witch hunt against presidential appointees?

Those are the questions congressmen, editorial writers, and the public at large will be asking this year as Congress considers whether to reenact a law that allows the attorney general to ask a panel of appellate judges to appoint an independent counsel to look into alleged malfeasance by top executive-branch officials.

Three independent counsels, appointed before the law expired on Dec. 15, 1992, are still in business: Lawrence Walsh, investigating the Iran-contra affair; Arlin Adams, looking into alleged corruption at the Reagan-era Department of Housing and Urban Development (HUD); and Joseph diGenova, appointed just one day before the law expired to investigate the State Department's pre-election search for President-elect Clinton's passport file. Law came after Watergate

The independent-counsel law was passed in 1978. At the time, memories of Watergate and the "Saturday Night Massacre" - when President Nixon fired special prosecutor Archibald Cox - were still fresh. Congress sought to prevent a future president from firing a prosecutor investigating top-level misconduct.

Many of the 14 independent counsels, however, have been heavily criticized for being too zealous in pursuing public servants.

Only three of those investigations have resulted in convictions, but all of them have tarnished the reputations of those under investigation.

For example, Raymond Donovan, who was secretary of labor under Ronald Reagan, was investigated for alleged ties to organized crime.

Eventually, independent counsel Leon Silverman cleared him of the charges, but the former Cabinet secretary asked plaintively: "Where do I go to get my reputation back?"

The basic problem with the law, says Terry Eastland, a former official in the Reagan Justice Department, was that it allowed a special prosecutor virtually unlimited time and resources to work on one case.

"Independent counsels are so single-minded that they do not proceed according to the standards that would guide ordinary prosecutors," says Mr. Eastland, now a fellow at the Ethics and Public Policy Center in Washington. "They can indict almost anyone. The problem is getting juries to agree."

Charges of excessive zeal most often have been directed at Mr. Walsh, who has spent over six years and $33 million investigating the Iran-contra affair. But similar criticisms have been leveled at other independent counsels.

All the criticisms of Walsh are "equally applicable" in the HUD case, attorney Martha Rogers says. She defended Lance Wilson, a former HUD official who was indicted on 28 felony counts of influence-peddling but convicted of only one crime last week.

"Unlimited resources and time and not having to worry about any other cases create an abuse of the process," Ms. Rogers says.

But advocates of the independent-counsel law argue that it is an important protection against forcing the Justice Department to investigate other executive departments.

"When a president is in power, the attorney general should not have to make politically embarrassing decisions about prosecuting members of the administration," says Rep. Barney Frank (D) of Massachusetts.

For example, Representative Frank asks whether Reagan's attorney general, Edwin Meese III, could have investigated misconduct by top Reagan aides Michael Deaver and Lyn Nofziger. Messrs. Deaver and Nofziger were convicted by independent counsels on charges related to influence-peddling, although Nofziger's conviction was overturned on appeal.

Frank adds that, although convictions resulting from independent-counsel investigations are few and far between, that should not be a reason for letting the law die. "Having someone investigated and found not guilty is one of the functions of the independent counsel," he says.

But opponents of the independent-counsel law contend that there are so many problems inherent in special prosecutions that the job of investigating misconduct would better be left to the Justice Department. A `fundamental flaw'

Former Reagan Solicitor General Charles Fried, who unsuccessfully argued before the US Supreme Court that the independent-counsel law was unconstitutional, points to what he says is a fundamental flaw of these prosecutions.

Most of the independent-counsel investigations are headed by eminent-looking senior jurists, such as Walsh. But these individuals have little or no prosecutorial experience and often stay aloof from the day-to-day operations of the investigation.

In practice, independent-counsel offices are often run by assistants who are "young, ambitious, ruthless people determined to make a personal reputation," says Mr. Fried, now a professor at Harvard Law School in Cambridge, Mass. "The staff who do the work are people with axes to grind, and it's hard sometimes [for the independent counsel] to keep control."