Power Shifts to Reno Without Special Counsel
By Roberto Suro
The regulations, which the Justice Department released in draft form yesterday, give Reno sole authority to appoint and remove special counsels for investigations of alleged wrongdoing by the president and other top executive branch officials. Moreover, Reno will exercise veto power over indictments, appeals and other major investigative steps taken by special counsels.
If he had operated under the new regulations, for example, Starr would not have been able to compel testimony from Secret Service personnel in the Monica S. Lewinsky investigation last summer. Because he was a fully independent prosecutor, Starr was able to go to court and eventually prevail over Justice Department objections that taking such testimony would dangerously chill the close relationship between the Secret Service and the president it protects.
Under Reno's regulations, a special counsel would be obliged to seek and accept the Justice Department's guidance on such matters. "One prosecutor can become overly concerned with their own single investigation, losing sight of national concerns, and that's why the regulations ensure that the necessary expertise and national perspective are applied to such decisions," said a senior Justice Department official. Starr and four other existing independent counsels will continue to operate under the former statute.
Congress enacted the Ethics in Government Act in 1978 as a post-Watergate reform, creating the independent counsel process to prevent the conflicts of interest that develop when attorneys general investigate the presidents who put them in office. Over the past 21 years, independent counsels – appointed by a special panel of judges and operating without any direct supervision – have become an influential and virtually permanent feature of the national government.
The act requires Congress to reauthorize the independent counsel process every five years or it will automatically expire. In 1992, Republicans blocked reauthorization of the act in response to what they perceived as excesses and unfairness in the Iran-contra investigations of the Reagan administration. The Clinton administration and congressional Democrats successfully pressed to renew the independent counsel provisions in 1994.
This year, Reno and Starr led the way in arguing that the law should be allowed to lapse because it had failed to achieve its most important objective. Although they differed in how they assessed the blame for this failure, both agreed that public confidence in the possibility of impartial investigations of top political figures had actually declined as a consequence of controversial investigations by a number of independent counsels. Few in Congress disagreed, and the law was allowed to expire.
Before the enactment of the independent counsel law, during the 18-month lapse in the early 1990s and again now, presidents, Cabinet members and other top officials have been treated like ordinary citizens whose alleged misdeeds are investigated by the Justice Department. When there is an apparent conflict of interest, longstanding practice allows an attorney general to appoint an outsider to take over the probe. Six such special investigations were authorized prior to the enactment of the independent counsel law, the first during the presidency of Ulysses S. Grant.
Reno indicated in early spring that she intended to exercise considerable control over special counsels, and the new regulations did not spark widespread complaints in Congress after senior lawmakers were briefed on their contents yesterday.
Rep. George W. Gekas (R-Pa.), a senior member of the House Judiciary Committee who held hearings on the Justice Department's plans for a post-independent counsel era, was "pretty happy" with the regulations, according to a spokesman.
But Sen. Joseph I. Lieberman (D-Conn.), one of a small bipartisan group of senators seeking reauthorization of a modified independent counsel law, argued that under Reno's regulations, "the special counsel will barely have more autonomy than the average Department of Justice prosecutor."
Under the new regulations, a special counsel investigating the president will have to follow the same rules as a federal prosecutor investigating a county sheriff when it comes to notifying the Justice Department of plans to take potentially controversial steps such as indicting an elected public official.
A senior Justice Department official said that the attorney general would have the power to reject proposed indictments and that there would be no way for a special counsel to appeal such a decision. However, the official added that this power would only be exercised in "extraordinary circumstances" and that the views of the special counsel would be given "great weight."
Granting such power to the attorney general marks a break with the precedents set prior to the enactment of the independent counsel law.
"During Watergate there was no guideline or requirement that the attorney general approve of any indictment," said Richard Ben Veniste, who was the equivalent of a special counsel during the Watergate investigation. He noted, however, that President Richard M. Nixon exercised a much rawer form of oversight on Oct. 20, 1973, when he demanded the firing of the first Watergate special counsel, Archibald Cox, in the infamous "Saturday Night Massacre." It was that turn of events that inspired enactment of the independent counsel statute in the first place.
© 1999 The Washington Post Company