U.S. Reverses Position on Counsel Law
By Dan Morgan
The turnabout highlights the continuing deterioration of political support for a law that was once widely seen as necessary to ensure public confidence in the investigation of misconduct by high-level government officials. Now, however, critics say it has given too much unchecked authority and power to those appointed as independent counsels.
Many members of Congress in both parties have said the law should be scrapped or changed dramatically, but today's testimony by Deputy Attorney General Eric Holder will represent the first time the Clinton administration has gone on record against the statute. Holder is scheduled to lay out the department's position against renewal of the law before a hearing of a House Judiciary subcommittee, according to administration and congressional sources.
Holder "is going to state the independent counsel statute is fundamentally flawed and there is no way to adequately fix it," said an administration source.
Another source familiar with Holder's testimony said he will argue that there is no need for the law because the department has the capacity to investigate most official wrongdoing itself. The attorney general would also maintain authority to appoint special counsels whenever it was determined that it could be a conflict of interest for the Justice Department to conduct such an inquiry.
The Justice Department consulted with White House Counsel Charles F.C. Ruff about the testimony today, and the White House is allowing the department to speak for the Clinton administration on this subject, according to White House officials.
Republicans have long complained about the law, which was used to initiate investigations of key figures in the Reagan and Bush administrations. But Democratic discontent grew in the wake of the controversial impeachment proceedings against President Clinton that were set in motion by independent counsel Kenneth W. Starr's investigation of the president's affair with former White House intern Monica S. Lewinsky.
Before those proceedings, in fact, the Clinton administration was an enthusiastic proponent of the statute. In May 1993, President Clinton's newly installed attorney general, Janet Reno, made a strong pitch for renewal of the statute, which had lapsed in 1992. "It is my firm conviction that the law has been a good one, helping to restore public confidence in our system's ability to investigate wrongdoing by high-level Executive Branch officials," she told Congress.
In 1994, with Democrats in control of the White House and Congress, the statute was renewed for five more years. Reno subsequently recommended the appointment of independent counsels to investigate Clinton and five members of his Cabinet. But in the last 18 months she has drawn GOP fire for repeatedly refusing to seek an independent counsel to investigate 1996 presidential campaign finance abuses.
Reno was out of the country yesterday attending a conference in Peru. She is scheduled to testify on the law before the Senate Governmental Affairs Committee later this month. At that time, she will seek to explain the evolution in her thinking about the law, sources said.
Some congressional Democrats had been expecting the Clinton administration to support a reauthorization of the law, albeit with substantial restrictions on the independent counsel and greater leeway for the attorney general to decide whether to recommend such inquiries. They suggested that it might have been good politics for Clinton to suggest that the law itself was needed but had been badly mishandled by Starr.
The Justice Department's task force, sources said, considered a number of proposals for revising the law, ranging from limiting its coverage to the president, vice president and attorney general to setting time and budgetary limits on investigations.
But the task force concluded that none would address what administration officials see as too much unaccountable power in the hands of an official who is almost immune from dismissal.
That difficulty has been underlined in recent days by a new controversy over attempts by Reno to determine whether there may be "good cause" to dismiss Starr for overzealous conduct and possible withholding of information from the Justice Department about his office's contacts with lawyers helping in the Paula Jones sexual harassment lawsuit against Clinton.
At the urging of a conservative legal group, the special three-judge panel in charge of appointing independent counsels last week agreed to consider whether Reno's probe should be halted.
Sen. Carl Levin (D-Mich.), the Senate's chief Democratic expert on the statute, said he thought the panel's intervention was "outrageous" since there is no provision in the law allowing it to step into the dispute.
Levin and other Senate Democrats involved in the Governmental Affairs Committee hearings on the statute that began last week said yesterday that they want to question the judge in charge of the panel, David B. Sentelle of the U.S. Circuit of Appeals for the District of Columbia, about how Starr and other independent counsels were selected.
A spokesman for Sen. Fred Thompson (R-Tenn.), chairman of the committee, said the Republican majority is considering whether to seek testimony from the entire three-judge panel, as some Democrats have suggested.
Staff writer John Harris contributed to this report.
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