'Managers' Question Shift on Counsel Law
By Dan Morgan
The concerns came at a House Judiciary subcommittee hearing at which Deputy Attorney General Eric H. Holder Jr., reversing a long-standing Clinton administration policy, called for termination of the law under which Clinton and five members of his Cabinet have faced lengthy investigations.
If the law expires, he said, the attorney general has adequate authority to appoint a special counsel if it appears a Justice Department investigation of high-level misconduct could pose a conflict of interest. That was the system used until 1978, and from 1992 to 1994, when the law lapsed briefly.
But the prospect of Attorney General Janet Reno regaining full responsibility for deciding how to proceed in corruption cases that could involve the president upset Reps. George W. Gekas (R-Pa.) and Lindsey Graham (R-S.C.), both of whom were House managers in Clinton's Senate trial.
"I'm worried sick about the prospect of it [the law] dying without a substitute mechanism in place," said Gekas, chairman of the Judiciary subcommittee that oversees the independent counsel law. "I am not ready to rely on a fallback to the Department of Justice, without regulations, without a plan, without the possibility of regulating the conduct of an independent counsel."
Gekas asked Holder to provide the subcommittee with a "detailed plan" within 30 days, describing what will happen on the day after the law expires.
Graham questioned the motives behind the Justice Department's about-face, after having strongly supported reauthorization of the law in 1994, when a Democratic-controlled House approved renewal of the statute, 317 to 105.
Some Republicans who voted against reauthorization then are open to extending it, while long-standing supporters, such as the American Bar Association, favor termination.
Graham, noting that "some people don't like [independent counsel] Ken Starr," said: "We need to figure out why we're all changing our positions. ... We need to be honest with the American people."
But it was clear from the responses of several House Republicans, as well as Democrats, that proponents of a new mechanism face an uphill fight in the House.
Rep. Jay Dickey (R-Ark.) called for broad changes in the law, limiting its scope and curbing the power of counsels. In Arkansas, a major focus of the investigations of Starr and another independent counsel, Donald C. Smaltz, the law had been "like a tornado hit, like Sherman's march to the sea," Dickey said.
Rep. Steve Chabot (R-Ohio) said he had "serious questions" about the independent counsel's accountability.
Holder said the Justice Department concluded that the law has "failed to accomplish its primary goal: the enhancement of confidence in the rule of law by the American people. ... The act was supposed to increase trust in our government. In fact it has diminished it."
Among other problems, Holder cited lack of budgetary or time constraints on an independent counsel, lack of accountability and the extreme difficulty that an attorney general would have removing an independent counsel, even though she has the authority to do for "good cause."
Last week, the three-judge panel that appointed Starr in 1994 ordered Reno to respond to a petition from a conservative legal group demanding that a Justice Department investigation of Starr be halted.
Holder told Rep. Jerrold Nadler (D-N.Y.) that he did not believe that the conservative Landmark Legal Foundation had standing to file the petition.
Holder said the Justice Department has no intention of ceding any of its authority to Starr.
He said the department was not negotiating with Starr about who would conduct the probe. "We have met with Judge Starr to allow him to express his concerns," Holder said. But he added that the decision as to how to proceed with the investigation "will be done by the Justice Department, the attorney general and the attorney general alone."
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