By John F. Harris
Cutler told Clinton not to worry. The law would work fairly, he said, not as a political weapon against the administration.
That story from four years ago, confirmed by Cutler and others, was making the rounds at the White House last week, recounted by Clinton aides with large measures of sarcasm and irony. Attorney General Janet Reno's decision Monday to seek an independent counsel to examine allegations against Labor Secretary Alexis M. Herman, assuming the request is approved, would bring to seven the number of counsels appointed to examine Clinton, his Cabinet secretaries or other senior aides.
Not surprisingly, a law that Clinton supported and signed is now reviled at the White House by nearly everyone from the president down. The next question is: What does Clinton want to do about it?
The 20-year-old independent counsel statute comes up for reauthorization next year. Clinton, according to several people familiar with his thinking, nurses strong grievances against a law he believes has led to out-of-control prosecutions against himself and aides, but so far has avoided a public recital of his complaints.
Some aides said they will urge him to remain on the sidelines of what is certain to be a rising debate about the future of the independent counsel law. According to this view, any criticism from Clinton, despite his strong feelings, would seem self-serving.
Other aides predict the administration may well take a vigorous role in the debate. Still undecided, however, is whether Clinton would seek to let the independent counsel statute lapse or seek to modify what many leaders in both parties consider its deficiencies.
While Clinton has shied away from criticizing the law, some of his subordinates have not. Among the problems cited by White House deputy chief of staff John D. Podesta are that the process by which independent counsels are selected by a judicial panel has become politicized, that the law requiring the attorney general to seek a counsel is too easily triggered, and that once counsels are appointed it is too easy for them to expand their jurisdictions.
"Whether you can salvage the statute given the problems is not something we've fully debated," Podesta said.
In the past, White House aides have vented their rage anonymously against Reno for what they consider her excessive willingness to recommend appointment of independent counsels. Last week, there were few of those recriminations. Clinton aides said they have come to believe the problem is less with Reno than with the law, which gives her little discretion in whether to seek an independent counsel if there are allegations against a covered official that cannot be clearly disproved during a preliminary investigation.
In the case of Herman, who is accused by an African businessman of participating in an influence-peddling scheme while serving on Clinton's first-term White House staff, Reno said the initial inquiry found "no evidence clearly demonstrating Secretary Herman's involvement." Herman has denied the allegations.
"I think that the president is certainly concerned about the application of this law and what the law requires," White House press secretary Michael McCurry said, defending Herman and the administration's broader ethics record. "I think the shortcoming is not in the performance of the people who serve the administration. The shortcoming is in the requirements of the statute."
Even some Clinton aides acknowledge an irony in their antagonism toward the independent counsel statute. Many were vigorous supporters of the law when Republicans held the White House and scoffed at the protests of various Reagan and Bush administration officials that the independent counsel law was an invitation to excessive or unaccountable prosecutions.
Cutler himself, in an interview last week, said the Clinton administration's experience has transformed his view of the law. Back in 1994, when Clinton reauthorized independent counsels, most people viewed the issue through the prism of Watergate. When President Richard M. Nixon ordered the firing of Archibald Cox, a special prosecutor who served at the pleasure of the attorney general, it highlighted the need for more independent inquiries, Cutler said.
For a while, he added, the law seemed to work roughly as intended. "Up to that point, there had been no runaway independent counsel," said Cutler, offering a judgment with which Republican critics of Iran-contra prosecutor Lawrence E. Walsh would heartily disagree. At the time of the 1994 reauthorization, Cutler recounted, Clinton was especially concerned about whether the Whitewater prosecution would become more partisan. Recalling his reassurances to Clinton, Cutler confessed that he was surprised when Robert B. Fiske, the Justice Department special counsel who had been looking into the matter, was replaced by Kenneth W. Starr.
Although Cutler testified in favor of the original independent counsel law in 1978, he said he has concluded the cure is worse than the disease. "I'd rather let it die," Cutler said, and go back to having the Justice Department oversee high-level corruption probes in the executive branch.
Erwin Hargrove, a presidential scholar at Vanderbilt University, said after a decade in which both parties have rejoiced at seeing administrations of the other party tormented by investigations, a consensus seems to be emerging for new limits on independent counsels. "It may be," he predicted, "that an implicit peace agreement can be reached."
© Copyright 1998 The Washington Post Company