Consensus Won't Halt Debate on Counsels
By Dan Morgan and George Lardner Jr.
Democrats and Republicans are in unusual accord over their dislike for the statute, with a bipartisan array of senators and representatives convinced that the law has given independent counsels excessive authority to pursue official wrongdoing. The only uncertainty is whether Congress will allow the law to die when it runs out June 30 or make drastic revisions, such as imposing limits on the cost and duration of future investigations.
"For various reasons, there seems to be a bipartisan consensus that favors letting the statute expire," said Sen. Joseph I. Lieberman (Conn.), ranking Democrat on the Governmental Affairs Committee, which begins hearings on the law today.
Even so, the debate over extending the law will provide a forum to revisit the intense partisan wrangling that has accompanied some of the recent independent counsel investigations. Democrats, for instance, plan to raise new questions about Starr's prosecutorial tactics during the first few days of his investigation of President Clinton's affair with Lewinsky, according to sources.
Among the issues they want to explore are discrepancies between the sworn testimony of Starr and Lewinsky concerning a possible plan to have her assist government investigators by recording meetings with the president, his friend Vernon Jordan and secretary Betty Currie, according to sources.
"What happened with Lewinsky was an outrage," said Sen. Richard J. Durbin (D-Ill.), a member of the Governmental Affairs Committee. "It will be tough to suppress those strong feelings" at the hearings.
Starr has been invited to testify at the Senate hearings but has not given a definite response, according to committee sources.
For their part, Republicans will zero in on Attorney General Janet Reno's decision not to appoint an independent counsel to look into alleged campaign finance abuses by the Clinton administration. Sen. Fred Thompson (R-Tenn.), who was minority counsel during the 1973 Senate Watergate hearings and now chairs the Governmental Affairs Committee, has called Reno's decision "the final nail in the coffin of the independent counsel law."
"By refusing to apply the law in a classic case for which the law was designed, she has demonstrated [that] an attorney general can render the law a nullity," Thompson said. Although Reno has been responsible for seven of the 21 publicly known independent counsel investigations, Republicans charge that she has severely undermined trust in the law.
Reno is tentatively scheduled to testify before Thompson's committee on March 17. She has given no indication of her position or even if a Justice Department task force will have given its recommendations to her by then. The Clinton administration endorsed the last extension of the law five years ago.
Republicans were strong critics of the law when they controlled the White House from 1981 to 1993 and GOP officials were the principal targets. Since Clinton became president, independent counsels have investigated the president, his wife and five members of his Cabinet, and now most Democrats are having second thoughts.
One big question is whether the law can be amended in a way that would garner bipartisan support and pass constitutional muster. Some of the ideas being floated to rein in the law include requiring independent counsels to have prosecutorial experience; reducing the number of people subject to the law to the president and just several other officials; and transferring some of the powers of present independent counsels to a Senate-confirmed public integrity chief within the Justice Department.
Such an official could be appointed for a fixed term and could only be removed under extraordinary circumstances. But, unlike independent counsels, this official would have to live within the budgetary constraints of the Justice Department. Lieberman and Sen. Carl Levin (Mich.), another senior Democrat on the Governmental Affairs Committee, both support amending the present law rather than terminating it.
But the American Bar Association, along with many other members of Congress, favors scrapping the law and returning to the system in place at the time of Watergate, when the attorney general had sole authority for appointing special counsels to investigate high-level corruption.
Another sign of the law's unpopularity came at a press conference yesterday, as a leading Democrat, Sen. Christopher J. Dodd (Conn.), joined with Sen. Mitch McConnell (R-Ky.) to announce strong opposition to renewal. Dodd is former general chairman of the Democratic National Committee, and McConnell is chairman of the National Republican Senatorial Committee. The two have rarely if ever joined together on a highly charged political issue.
McConnell said he was reserving the option of trying to block renewal through the use of procedural tactics, including a filibuster.
But without some kind of legislation, Starr's investigation, along with four other independent counsel probes involving members of Clinton's Cabinet, could continue indefinitely under a "grandfather" provision in the expiring law. Although Thompson and Lieberman said yesterday that they opposed budgetary or time restrictions on those investigations, other senators are determined to place some constraints on Starr.
Durbin said he wants to halt funding for Starr and the other counsels after Oct. 1 unless they can justify continuing their work.
Although polls show that Americans have an unfavorable opinion of Starr, a survey this year by the Roper Center for Public Opinion Research found that two thirds of those questioned supported either renewing the law or modifying it. Only 20 percent favored its elimination.
"The statute was necessary after Watergate. It is necessary today," said Sam Dash, a Washington lawyer who was counsel to the Senate Watergate Committee and more recently was ethics adviser to Starr. "If they foolishly let it lapse because of a misunderstanding of what the statute says, they are only going to have to reenact it later."
A system for naming independent counsels was created in 1978, and it was the centerpiece of wide-ranging reforms growing out of the Watergate scandal that forced President Nixon's resignation.
The purpose was to avoid the appearance of a conflict of interest when the Justice Department was faced with the need to investigate high members of its own administration. But Congress recognized the sensitivity of the provisions by requiring that the independent counsel law be reauthorized every five years. The statute lapsed in 1992 but was reinstated in 1994 after President Clinton pushed hard to revive it.
Under present provisions, the attorney general must conduct a preliminary investigation after receiving specific allegations from a credible source that any of more than 70 high-ranking officials has committed a federal crime. The law also covers any other officials for whom a Justice Department investigation would pose a conflict of interest.
A special three-judge court designated by the U.S. chief justice appoints an independent counsel when the attorney general informs the court that an outside investigation is needed.
Democrats have attacked the appointments as partisan, a charge denied last month by David Sentelle, a federal appeals court judge for the D.C. Circuit who heads the special court.
Testifying today will be three former independent counsels, as well as former Sen. Howard H. Baker Jr. (Tenn.), who was ranking Republican on the Senate Watergate Committee, and Griffin B. Bell, President Jimmy Carter's first attorney general.
Staff writer Helen Dewar contributed to this report.
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