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From Outlook
The Problem Isn't in the Starrs But in a Misguided Law

By Gerard E. Lynch
Sunday, February 22, 1998; Page C03

opinion
The independent counsel seemed like a good idea at the time, and still seems right to many people. Because the prosecutors of the Department of Justice report to the attorney general, and ultimately to the president, the assumption is they have a conflict of interest when a criminal investigation implicates the president's closest advisers, or even the president himself. So Congress's solution was to take that investigation away from the professional prosecutors, and create instead an indepen- dent lawyer -- who will hold the big shots to the same standards as other people, avoid the appearance of partisanship, get out the whole truth and purify the government of corruption. The problem is it doesn't, and can't, work.

In fact, the routine use of independent prosecutors undermines the equal enforcement of criminal law rather than promotes it, without eliminating the appearance of political motivation. And no prosecutor should be asked to perform the essentially po litical tasks of exposing scandals and purging bad public officials. Criminal justice is supposed to punish those who violate fundamental rules and to protect the public from dangerous people -- not to decide who should be president.

To see why independent counsel investigations work so badly, we have to understand how criminal prosecution really works. Enforcing criminal law is not a technical process in which lawyers simply size up the evidence and decide whether a person has violated a statute. Our criminal laws extend well beyond basic crimes such as murder, rape and armed robbery, where everyone would agree that all the guilty who can be caught should be prosecuted. Some criminal laws involve the violation of administrative regulations, such as those involving election finance, the environment or banking. Some (like the mail fraud statute) are deliberately vague or very broad. To make sure that crooks can't glide through the loopholes, they cover far more behavior than we really think worthy of jail. Some (simple possession of marijuana) are politically controversial. Others (unauthorized commercial use of Smokey Bear) are just silly. We don't really expect all these laws to be enforced to the hilt.

Deciding when to invoke criminal law involves discretion and sensitivity to community norms. Such decisions are driven, in the world of ordinary prosecutors, by severe resource constraints. The question is not whether the business executive who lies in a civil lawsuit is, in the abstract, worthy of prosecution: It's a question of how much time police, lawyer and judge can devote to such cases, as compared with violent crimes. Ultimately, how prosecutors answer these questions are political judgments, for which they are accountable to the public (directly for elected district attorneys; via the elected president for appointed federal prosecutors).

Independent counsels are not accountable to anyone. Their judgments float free of resource constraints, of the constant comparison of varied cases and of electoral checks. Given the full inves tigative power of the state, a broad statute book and unlimited resources, a prosecutor can develop at least the suspicion of a criminal case against just about anyone. And the isolated and politicized context of an independent counsel investigation provides an incentive to do just that. If an alleged crime (a young woman lying about her sex life in a civil trial that has nothing to do with her?) seems too trivial to pursue, an independent counsel cannot simply turn his attention to more serious matters without seeming to condone illegal behavior. Thus, political figures subject to the independent counsel law are not held to the same standard as others, but are vigorously pursued in matters that in other circumstances would be unlikely to merit prosecutorial attention.

Maintaining the appearance of nonpartisanship is equally problematic. Ordinary defendants and representatives of alleged victims frequently charge prosecutors with political motivation. We usually assess such accusations by looking at the ordinary prosecutor's entire record. If the complaint is legitimate, we will see a pattern of overzealousness or timidity in particular matters. The prosecutor, moreover, can make tough decisions, knowing that they can be judged across many prosecutions.

But the special prosecutor has no record to protect him. There's only this one case. And since the case is surrounded by partisan energy, he will necessarily be accused of partisanship. The appearance of political motivation is generated not by the identity of the prosecutor, but by the identity of the target. As the experience of both Iran-contra counsel Lawrence Walsh and Kenneth Starr demonstrates, an aggressive investigation of the president ensures that evaluation of one's performance will divide along party lines. A reputation among elite lawyers and judges for integrity and good judgment is no protection in a political war.

Getting out the whole truth, on the other hand, is not the business of a criminal prosecutor at all. Our criminal justice system is not designed for political exposes but to determine whether particular people have violated specific laws. Investigations proceed in secrecy, to protect the reputations of those who are not charged. Even when this system works at its best, it is ill-suited to doing the work of journalists and congressional committees in exposing broad patterns of abuse of power.

The effort to fill that role distorts the criminal process. An ordinary prosecutor would be unlikely to use the intrusive powers of the grand jury (calling a mother to testify about her daughter, for example) to establish the facts about a case that may possibly prove unworthy of prosecution. An independent counsel is under pressure to do so, since a decision not to prosecute will only appear justified if he can say he left no stone unturned. A regular prosecutor would be justifiably criticized if he accompanied a decision not to bring charges with a report of personal opinion that the suspect was actually guilty but the crime could not be proven. The independent counsel law encourages prosecutors to do exactly that.

Finally, the independent counsel law contributes to our regrettable tendency to turn political housecleaning into a matter of criminal law. Whether the president should be turned out of office is, in the deepest sense, a political judgment, to be made by the people and their representatives. It is not a question of technical guilt under criminal law, to be decided by lawyers.

The present controversy is a perfect example of this tendency. Some may believe that a politician's sex life is his business, and that to lie about it is somewhere between a forgivable natural response and an admirable defiance of an improper inquiry. Others may think a president should uphold the highest standards of personal morality. But neither group should care whether, under the stringent standards of criminal law, a technical perjury can be proved. Who should go to jail and who should hold high office are correctly decided by different standards.

We could, of course, just leave all this to our regular agencies of law enforcement and political scandal. The Justice Department's professional prosecutors have a pretty good record of pursuing serious crimes even by high officials, and if they are hampered by partisan intervention from the White House, the normal political and journalistic process will almost always expose the scandal. Wrongdoing that is too trivial -- or too important -- for the cops and prosecutors is best left to the ordinary process of democracy. In the rare cases that require an independent prosecutor, the political process can generate one. But a law that triggers unaccountable prosecutors wielding infinite resources whenever there is a plausible allegation of a technical crime is misguided.

Ken Starr isn't the problem. The sorry record of independent counsels past and present shows that the institution itself is unnecessary and counterproductive.

Gerard Lynch is the Paul J. Kellner professor of law at Columbia University.

© Copyright 1998 The Washington Post Company

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