Policing Executive Branch - at What Price?

HILLARY RODHAM CLINTON, black-clad and resolute, strode past a wall of cameras last month to do something no first lady had ever done before: testify before a federal grand jury.

It was the most dramatic example yet of the power of the 1978 Independent Counsel Statute - a law devised after Watergate to ensure that administration officials, from the president down, could be impartially probed.

Although Kenneth Starr's Whitewater inquiry enjoys bipartisan support, and Mrs. Clinton's testimony sparked little outrage, some in Congress argue that independent counsels are being appointed too often, and granted too much power.

The result, they say, is that such investigations have grown costly and partisan, often exposing subjects to undue character attacks and enormous legal bills.

As Congress decides this week whether to extend its own Whitewater investigation, and jury selection begins in the trial of a trio of Clinton associates in Arkansas, questions about the law are bubbling up, and with them, calls for rethinking the way the executive branch polices itself.

''This is a bad law and it needs to be changed,'' says Joseph DiGenova, a former special prosecutor.

''I don't believe in feasting on the bodies of public officials,'' he says. ''It discourages good people from coming into public service.''

Of the 17 independent counsel investigations since 1978, the four still under way are aimed at members of the Clinton administration. They include Whitewater, and probes of former Agriculture Secretary Mike Espy, Commerce Secretary Ron Brown, and Housing and Urban Development Secretary Henry Cisneros.

According to estimates by the General Accounting Office (GAO), more than $95 million was spent on independent counsels from 1985 to March 1995, not including the subsequent costs of the four current cases.

The GAO estimates the monthly cost of the Whitewater investigation at $978,000 - a rate that could push it beyond the $47 million Iran-contra probe during the Reagan administration.

At a hearing last week held by the House subcommittee on crime, Arkansas Rep. Jay Dickey, a Republican, asked: ''What benefits have we received from all this? How many convictions? Has it been worth it?''

According to Representative Dickey, the independent counsel statute has, over the years, ''whetted the appetite of an element in our society which feeds on scandal and destroyed lives.'' He says it has also become a political tool for the party that does not occupy the White House, has diverted money from more worthwhile governmental pursuits, and told aspiring politicians they ''should opt out of public service lest they be attacked and destroyed financially, personally, politically, and even spiritually.''

Dickey is not alone in his assessment. At the hearing, Illinois Republican Rep. Henry Hyde urged fundamental reforms. Under the current law, he noted, any time a ''specific'' charge is made by a ''credible'' source against an administration official, the Justice Department must initiate a preliminary investigation to determine whether there is sufficient evidence that the subject may have violated any federal law.

If the attorney general determines that a Justice Department investigation could present a conflict of interest, an independent counsel is appointed. Representative Hyde argues that under these rules, ''mere allegations, assertions, rumor, or hearsay'' can easily prompt a costly inquiry.

In some cases, Mr. DiGenova says, an independent counsel is vital: such as in the Whitewater and Iran-contra cases, where the highest levels of the administration are involved and constitutional issues are at stake.

But in other cases, DiGenova says, such as his investigation into the alleged State Department search of Mr. Clinton's passport file during the 1992 election, the Justice Department should handle the job.

Hyde, who sponsored a failed 1994 reform bill, says one problem with the law is that counsels are not required to set limits on the scope of their inquiries. While they may begin investigating one offense, they are free to search a subject's past for others.

Another problem, he says, is that the counsel is only reappointed every two years, and that Congress has never imposed spending limits. His proposal would require Congress to pass specific appropriations for an investigation after two years.

In addition, DiGenova says, independent counsels are only paid part-time wages and continue to work on other legal cases. A recent article in the Nation raised questions about a possible conflict of interest involving Whitewater counsel Starr and his outside dealings with the Resolution Trust Corporation. On legal advise, Starr says he won't quit the Whitewater investigation.

But the most pernicious effect of the law, opponents say, is its effect on those who come under the microscope. The law does not provide money to pay the legal bills of those accused - even if they are not indicted.

President Clinton already owes more than $2 million for legal fees associated with Whitewater, and Margaret Williams, the first lady's chief of staff, has set up her own legal defense fund to offset more than $250,000 in bills. Clinton adviser George Stephanopolous owes about $60,000.

The lone dissenter at the hearing was Lawrence Walsh, the Iran-contra independent counsel. He argued that limiting the scope of an investigation would be counterproductive, as would any provision that placed time or monetary limits on probes.