Restraint Urged on Changing Counsel Law
By Dan Morgan
Former senator Howard H. Baker Jr. (R-Tenn.), who was vice chairman of the Watergate committee in 1973-74 and later Senate majority leader, urged Congress to let the independent counsel law expire on June 30 rather than try to fix it in the emotionally charged aftermath of the Clinton impeachment and acquittal.
"Passions are still high, and the political component of this thing is still prominent," said Baker after leading off a day of testimony before the Senate Governmental Affairs Committee on the future of the 21-year-old statute. Baker played a key role in advocating post-Watergate reforms and has previously supported the statute.
His go-slow proposal appeared to be a welcome one to the committee members after a round of opening statements revealed disarray and deep disagreements within Republican and Democratic ranks over the question of whether to revise the statute or let it die. The absence of any detectable ideological groupings on the issue was in stark contrast to the partisan impeachment proceedings.
The hearings, which will continue over the next seven weeks, are taking place against a backdrop of continued tensions over Starr's operations. This week, the three-judge court that appointed Starr threatened to halt a Justice Department probe of Starr's handling of initial contacts with Lewinsky.
On the Democratic side, Sens. Joseph I. Lieberman (Conn.) and Carl M. Levin (Mich.) leaned toward trying to overhaul it, to curb excesses by future prosecutors. But two of their Democratic colleagues, Sens. Richard J. Durbin (Ill.) and Robert G. Torricelli (N.J.), vowed to fight any attempt to save it.
Independent counsels, said Durbin, are "unchecked, unbridled, unrestrained and unaccountable."
"This law cannot be repaired. It is fundamentally, institutionally flawed," Torricelli said. Although the attorney general may remove an independent counsel "for cause," Torricelli said, the political reality is that this power is "theoretical. It does not safeguard."
Republican committee members seemed equally split on how to proceed. Committee Chairman Fred D. Thompson (R-Tenn.) said the "burden of persuasion rests with those who want to retain the statute, even with significant changes."
But several other Republican members, including Sens. Arlen Specter (Pa.), Susan Collins (Maine) and Pete V. Domenici (N.M.), all leaned toward retaining but significantly changing the statute.
A system for appointing independent counsels was set up after Watergate in 1978 to avoid the appearance of conflict of interest that would arise when the Justice Department investigates high-level officials in the attorney general's own administration.
Under the current law, a special three-judge court appoints an outside prosecutor when the attorney general informs it that a preliminary investigation of any of more than 70 top executive branch officials suggests a federal crime may have been committed.
Democrats, once the strongest supporters of the process, have had second thoughts in the wake of Starr's investigation of Whitewater and Clinton's affair. As of November, Starr's investigation had cost $40.8 million, according to the Justice Department.
Several senators and witnesses yesterday advocated letting the statute die and returning to the pre-1978 system that allows the attorney general to appoint a special prosecutor to investigate high-level corruption. Griffin B. Bell, attorney general under President Jimmy Carter and counsel to President George Bush in the Iran-contra investigation, urged that approach, saying, "We've tinkered and tinkered about long enough."
Bell noted that a special counsel appointed by the attorney general had investigated alleged money-laundering involving Carter's peanut warehouse and ended up "accounting for every peanut."
Similarly, he said, Attorney General Janet Reno originally assigned the Whitewater investigation to a special counsel, Robert B. Fiske. Fiske was delving deeply into the matter when the three-judge court replaced him with Starr in August 1994 on grounds that Fiske was tainted because he had been appointed by Reno.
Democrats subsequently accused Starr of partisan bias against Clinton.
Short of returning all authority to the attorney general, several senators and witnesses indicated interest in creating a powerful new, quasi-independent office at the Justice Department to probe cases now handled by the independent counsel.
The idea for an office of public prosecutor in the Justice Department, appointed by the president for a fixed term and confirmed by the Senate, was originally broached by Baker in the Senate Watergate committee report in 1974.
Curtis Emery von Kann, a former independent counsel who investigated and cleared Clinton administration appointee Eli Segal in 1997, advocated keeping the statute but writing in a number of reforms.
These included time limits on the investigations and more frequent rotation of the appointing judges. But another former independent counsel, Joseph E. diGenova, spoke out for elimination of the statute.
Whatever the outcome, Democrats are determined to put some restraints on Starr and four other independent counsels who are investigating cases involving members of Clinton's Cabinet.
Torricelli said it was "fair and just for this Congress to give current independent counsels 90 days or as long as six months to conclude their investigations or transfer them to special prosecutors within the Justice Department who would restore a system of accountability."
"I'd like to say to Judge Starr and all the other counsels, your days are numbered," Durbin said.
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