Move grows to clip special counsels' reach

Nonpartisan commission calls for narrowing independent counsel law

The independent counsel law was never meant to create a zealous office of prosecutors, boring away interminably at executive branch oversight.

By nature, the process of vigorously scouring the actions of those covered by the law - the president and 48 other officials - is a contentious, often ugly one.

Even more than claims that independent counsels like Kenneth Starr and Donald Smaltz are overzealous, a nonpartisan commission report finds the statute to be dangerously tilting the balance of power between the president and Congress.

Observers say it's the first salvo in the soon-to-heat-up debate over whether to abolish or amend the independent counsel law as its five year renewal period nears.

As the United States emerges from an era fraught with scandal allegations and epic investigations, an avalanche of scholarship and public opinion on how to best provide executive oversight is expected once Congress settles the impeachment matter.

Commission findings

Those getting an early start on the debate are not mincing words.

"Terminate the statute," says Kenneth Thompson, who served as commission coordinator for a who's who of legal and political figures examining the statute.

The blue-ribbon panel also includes former Sen. Howard Baker (R) of Tennessee, who served as chief of staff to President Ronald Reagan; Griffin Bell, attorney general during the Carter administration; and William Barr, his counterpart in the Bush administration.

Conducting its work at the Miller Center at the University of Virginia in Charlottesville, the commission recommends replacing the current statute with narrower law.

"It's a no man's land in terms of the Constitution," Mr. Thompson says of the statute.

In the report, Mr. Baker suggests the oversight function be limited only to the president, vice president, and attorney general. It would be up to the attorney general to name outside counsel and the Justice Department to investigate charges of wrongdoing.

Judge Bell also criticizes the statute's mandate of filing a final report detailing the investigation and explaining expenses. But Bell believes the lengthy reports "can suggest guilt," even if there is no indictment in a case.

Espy acquittal fuels debate

The need to address the issue was buttressed again last week with the overwhelming exoneration of Mike Espy. The former Agriculture secretary was cleared of all 30 counts brought against him by independent counsel Smaltz.

Smaltz spent $17 million prosecuting Mr. Espy for his acceptance of gratuities, such as football and air tickets, from entities his department regulated.

Smaltz's recent comments regarding the Espy case, that "the actual indictment of a public official may in fact be as great a deterrent as a conviction of that official," added to the zealous image earned by independent counsels.

"It should be revised," said the Espy jury forewoman of the independent counsel statute following their verdict.

Also controversial is snagging peripheral players in prosecutor's wide investigatory nets.

While independent counsels often cite successful convictions of lesser players, the malfeasance often is unrelated to the principal investigation.

Independent counsel David Barrett is still engaged in a multi-year investigation of former Housing and Urban Development Secretary Henry Cisneros. The probe centers on how much Mr. Cisneros paid a former mistress.

Mr. Barrett has prosecuted the mistress and two of her family members for unrelated crimes.

There are those who believe no statute is needed at all, pointing out the presidency survived for 170 years without one. Independent counsels, they argue, answer to no one, their probes cost too much, and take too long.

Passed in 1978 with the memory of Watergate still fresh in the minds of the nation, the independent counsel law has been an ongoing experiment. While the attorney general has the power to fire an independent counsel, political realities generally make that option untenable.

Despite failure over the years to figure out who should watch the watchman, Congress has continued to reauthorize the statute every five years in June with strong majorities. The last time the House voted on the issue, it passed by 356 to 56.

During independent counsel Lawrence Walsh's still unsurpassed $47 million, seven year investigation of the Reagan White House for selling arms to Iran and funneling the money to anti-Communist contra rebels in Nicaragua, Republicans declared the law unfair.

At the time, Sen. Bob Dole (R) of Kansas asked the Justice Department to investigate Mr. Walsh. His request was denied.

Pragmatists undaunted

Despite flaws in the law, some pragmatists believe the need for tight oversight is still necessary.

Just "because you've had perhaps a bad experience with this statute, you shouldn't throw the baby out with the bath water," former independent counsel James McKay said recently on PBS. "The statute is here to stay. The reasons for wanting the statute in the first place still exist."

In the coming months, the statute's mechanics are likely to be tinkered with.

Starr spokesman Charles Bakaly admits there are "a lot of structural problems" associated with reworking the statute.

Mr. Bakaly hints that once Starr moves on from his current post, he will have plenty to say.

"Judge Starr, in the past, questioned the law and the constitutionality," Bakaly says. "As we go into 1999 when it will be discussed and considered whether to reauthorize it, he may have more official views."