Senate Chair Favors Ending Counsel Law
Washington Post Staff Writers
Friday, December 11, 1998; Page A29
The 20-year-old independent counsel law that has been the bane of the Clinton presidency will be allowed to expire next year if the leading Senate Republican with jurisdiction over the statute has his way.
"Each side [Republican and Democrat] has had a dose of it," Sen. Fred D. Thompson (R-Tenn.) said in an interview yesterday. "I think there'll probably be an attempt to save it, but it's probably going to be difficult to save it in remotely the same form."
As Thompson was considering what to do about the law, on the other side of the Capitol Republican members of the House Judiciary Committee were preparing to vote for articles of impeachment against President Clinton growing out of an independent counsel's investigation.
Thompson, chairman of the Senate Governmental Affairs Committee, said he would hold hearings next year, perhaps in February and March, on how the often-amended law has worked since it was first passed in 1978 and would give fair hearing to those who favor amending and extending it. But he added: "I think they've got their work cut out for them."
"I'm not sure the thing is fixable," he said.
The independent counsel statute was enacted in the wake of the Watergate scandals after President Richard M. Nixon ordered the dismissal of special Watergate prosecutor Archibald Cox over his refusal to drop a subpoena for Nixon's incriminating White House tapes. Cox was working under a special appointment from Attorney General Elliot Richardson. Nixon's wish that the attorney general fire Cox resulted in the "Saturday Night Massacre" -- Richardson's resignation and the dismissal of his top deputy as well as Cox -- and triggered the drive for Nixon's impeachment.
The 1978 law was designed to insulate investigations of alleged criminal conduct by the president and other high-level federal officials from the dangers of another "massacre." Appointments are made by a special three-judge panel under elaborate rules administered by the attorney general.
There have been at least 20 such appointments, with both Republican and Democratic presidents, Cabinet members and other officials as their targets. Total costs of these investigations now stand at more than $130 million. Five independent counsels are currently at work, investigating Clinton and four present or past members of his Cabinet.
Thompson expressed chagrin that while all these inquiries are underway, Attorney General Janet Reno has refused to seek an independent counsel to investigate allegations of presidential campaign financing abuses in 1996, which he called "the largest scandal certainly in decades."
Thompson said Reno's refusal to act is "probably the final nail in the coffin of the independent counsel law" because it demonstrates that the attorney general can ignore it, even in cases for which Thompson said it was clearly designed.
Once a counsel to the Senate Watergate committee, Thompson said he thinks it would be best to revert to the ad hoc system that was used in the Watergate scandal and others, such as the "whiskey ring" of President Ulysses S. Grant's administration. In those cases, special prosecutors were appointed in response to public pressure.
Thompson said he would consider a law, in place of the independent counsel act, that might specify the conditions under which such appointments would be expected. But he said the beleaguered history of the independent counsel law shows the futility of trying to set up "fail-safe supersystems" that "never seem to work."
Republicans blocked the renewal of the independent counsel law in 1992 after both the Reagan and Bush White Houses had been the targets of such investigations, most notably in the Iran-contra scandal of the late 1980s. But in 1994, with Clinton in the White House, they joined a bipartisan effort to reauthorize the law and to include members of Congress as potential targets. Unless reauthorized again, the law will expire June 30.
Thompson said that he has already told Senate Majority Leader Trent Lott (R-Miss.) of his views and does not expect much pressure to extend the legislation.
But the Senate's chief Democratic expert on the law, Sen. Carl M. Levin (Mich.), believes it could be saved with "radical surgery." If that fails, an aide to Levin said, the senator thinks a new mechanism must be set up to deal with any allegations against the president, the vice president and the attorney general.
Levin believes that "just letting the law expire is not a responsible solution," the aide said.
Changes in the law, the Levin aide said, could include limiting its coverage to the president, vice president and attorney general and limiting investigations to alleged criminal conduct during an official's term of office or run for office.
Thompson, however, said the law has been amended repeatedly over the years and still isn't working properly. He said Congress has too often abdicated its own responsibilities, and he cited the House impeachment inquiry's reliance on evidence compiled by independent counsel Kenneth W. Starr as an example. In passing the independent counsel law in 1978, Congress gave independent counsels the duty of reporting to the House any credible and substantial information that may constitute grounds for impeachment.
"We're always looking for a magic bullet and absolving ourselves of the tough stuff," Thompson said.
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