Bar Opposes Independent Counsels
Washington Post Staff Writer
Tuesday, February 9, 1999; Page A3
The American Bar Association, which led the drive for an independent counsel law more than 20 years ago, recommended by an overwhelming margin yesterday that Congress let it die.
Arguing that the law is too flawed to be fixed, the ABA's policymaking House of Delegates voted 384 to 49 at a midyear meeting in Los Angeles to oppose its renewal "in any form." It will expire June 30 unless Congress reauthorizes it, and even the law's defenders agree it needs "radical surgery" to survive.
The ABA's turnabout came in the midst of sharp criticisms of independent counsel Kenneth W. Starr's investigations of President Clinton as well as other inquiries of Clinton Cabinet members such as former secretary of agriculture Mike Espy and former secretary of housing and urban development Henry Cisneros.
Among the dangers inherent in the law, the ABA said in adopting a special task force report, were that an independent counsel, assigned to investigate one person, "will lose perspective," and that such open-ended inquiries, with neither time nor budgetary limitations, will wind up spending vast sums probing "minor matters" while their targets are forced to "mortgage their lives in response."
The ABA recommended that the law be amended drastically "if" Congress is determined to renew it. But ABA President Philip Anderson of Little Rock, Ark., indicated that in doing this, the group wanted primarily to have a say in forthcoming congressional hearings. Some members wanted to strike all the suggested amendments and recommend the law's demise, but this was defeated by a 311 to 116 vote.
Among the suggested changes were to make appointment of an independent counsel mandatory only in cases involving the president, the vice president, and the attorney general; to give the attorney general a role in recommending who the court-appointed independent counsel should be; to end the requirement for final reports that could prolong the inquiry and to keep such reports, if made, secret for 50 years unless the court decides otherwise.
"Kenneth Starr is certainly the poster boy for reform of the independent counsel act," said Neal Sonnett, a Miami defense lawyer who spoke for the ABA's criminal justice section. He said Starr's probe showed "prosecutorial power and judgment at its worst instead of its best."
Opponents of the recommendation to bury the law rather than amend it, such as Robert Weinberg, who teaches criminal procedure at the University of Virginia, agreed that Starr's actions in transmitting thousands of pages of secret grand jury testimony to the House Judiciary Committee and the committee's action in releasing them without careful review alarmed many ABA members.
"I don't think the vote would ever have come out this way if you had held it before Starr became independent counsel," Weinberg said.
Anderson said he recognized the ABA action was packed with "political implications," coming as it did near the end of Clinton's impeachment trial, but he said it was the group's last chance to speak up before the law expires. "The calendar got us," he said.
The Senate Governmental Affairs Committee is planning to start hearings in late February with its chairman, Fred D. Thompson (R-Tenn.), opposed to reauthorization. However, the Senate's chief Democratic expert on the statute, Sen. Carl M. Levin (Mich.), said he remained in the "amend it, don't end it" category.
"The politicization of the independent counsel law and the prosecutorial excesses of recent independent counsels have turned some of the law's strongest supporters into its opponents," Levin said of the ABA vote. "I'm not ready to close the door on this process, however, because done right, it serves a very important public purpose."
Sam Dash, former chief counsel of the Senate Watergate Committee and an architect of the law, said the excesses attributed to independent counsels are actually standard procedure in U.S. attorneys' offices throughout the country. If complaints are to be made, he said, they should be directed "at federal prosecutorial practices generally."
"The statute was necessary after Watergate," said Dash, who quit as Starr's ethics adviser in November to protest his "aggressive advocacy" of Clinton's impeachment. "It's necessary today."
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