Counsel Law Exhumed, for Now
By Dan Morgan
But to prove the law is still not dead and buried, a Senate committee yesterday heard testimony from five veteran white-collar criminal attorneys who proposed improvements ranging from having senators nominate independent counsels from their home states to putting an 18-month time limit on investigations.
"It's too early to begin preparing eulogies," said Lieberman, ranking Democrat on the Governmental Affairs Committee, which resumed hearings on the fate of the law under which independent counsel Kenneth W. Starr investigated Clinton's affair with Monica S. Lewinsky.
Unless Congress reauthorizes the law before it expires June 30, responsibility for appointing outside investigators to look into high-level government misconduct will revert to the attorney general.
Committee Chairman Fred D. Thompson (R-Tenn.) has said he favors that approach but joked yesterday that there is so much opposition to the law that he is "starting to reassess my own position."
Of the five attorneys who testified yesterday, three of them, including Robert S. Bennett, Clinton's personal attorney in the Paula Jones sexual harassment case, favored returning authority to the attorney general. But their views were balanced by those of Henry Ruth, who served on the Watergate Special Prosecution Force, and Nathan Lewin, who represented then-Attorney General Edwin Meese III before the independent counsel in 1987-88.
Ruth and Lewin both defended the law and urged senators not to lose sight of its importance in the emotion-charged aftermath of Starr's investigation of Clinton.
"Is there any real likelihood that the case against the president . . . would have gone as far as it did if the prosecutor was not totally independent?" Lewin wrote in prepared testimony. "The pressure on a prosecutor who was subject to Justice Department oversight would surely have overcome any inclination to investigate further."
Ruth, who represented President Jimmy Carter's chief of staff, Hamilton Jordan, in the first independent counsel investigation in 1979-80, argued that a person of unquestioned independence was needed when the target was someone close to the president.
Ruth noted that just four of the 20 investigations have accounted for 85 percent of the costs. Eleven have been concluded without charges being pressed.
But New York attorney Robert B. Fiske Jr., who was appointed by Attorney General Janet Reno to undertake the initial investigation of Whitewater while the independent counsel law had lapsed in 1994, said he functioned "100 percent as effectively as if I had been appointed pursuant to the [independent counsel] statute."
When the law was reauthorized in 1994, the Justice Department recommended that Fiske be named independent counsel. But the special three-judge panel that is charged with making such appointments overruled Reno and replaced Fiske with Starr, to eliminate any "perception of conflict" of interest.
The present, highly secretive process by which the three-judge panel selects counsels is one of many aspects of the law in need of improvement, witnesses said. Lewin suggested that senators create a roster of potential independent counsels, drawing on the top prosecutors in their states.
Bennett, who represented former defense secretary Caspar W. Weinberger in the independent counsel investigation of the Iran-contra scandal, urged sweeping changes if the Senate decided to repair rather than end the law.
He said the procedures by which previous counsels were selected would make a fruitful line of the committee's future inquiry.
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