Senate Coalition Might Save Counsel Law
Washington Post Staff Writer
Thursday, March 18, 1999; Page A2
With the independent counsel law due to expire June 30, key members of the Senate Governmental Affairs Committee expressed uneasiness yesterday about turning over to Attorney General Janet Reno most of the power for investigating cases of misconduct by high government officials.
Unless Congress acts, the Justice Department will automatically assume responsibility for probing cases of high-profile corruption, except when Reno appoints a special counsel of her choosing to look into such matters. But as that prospect draws nearer, there are signs that a coalition of Republicans distrustful of Reno and Democrats with memories of Watergate may be forming around proposals to salvage the law or at least preserve some of its principles at the Justice Department.
"When the attorney general says give me even more discretion and I'll do the right thing . . . based on some of our experiences, that causes me some concern," said Governmental Affairs Committee Chairman Fred D. Thompson (R-Tenn.), who has said in the past that he leans toward letting the 21-year-old independent counsel law die.
Sen. Arlen Specter (R-Pa.), who supports reauthorization of a revised independent counsel law, declared that "as the hearings have progressed, some have begun to rethink their opposition."
As the committee held its third in a series of hearings on the law yesterday, varying degrees of support for the independent counsel law, or concern about the impact of simply allowing it to die, were heard from a bipartisan group, including Susan Collins (R-Maine), Joseph I. Lieberman (D-Conn.), Carl M. Levin (D-Mich.), and Daniel K. Akaka (D-Hawaii).
"The basic function of the law is still a valid one," said Lieberman, the panel's ranking Democrat.
That position was, however, strongly challenged by Reno, the committee's principal witness yesterday. Reno testified that the law, under which Kenneth W. Starr investigated President Clinton's affair with former White House intern Monica S. Lewinsky, was "structurally flawed and those flaws cannot be corrected within our constitutional framework."
At the same time, Reno indicated reservations about several proposals that have been put forward for increasing public confidence in the independence of Justice Department investigations of high-level officials, if the independent counsel law expires.
She described as "unworkable" a proposal that would give the department's Public Integrity Section new status and independence while it probed misconduct by senior administration officials. Asked about the proposal to appoint the head of the Public Integrity Section for a fixed term of five or seven years, subject to Senate confirmation, Reno said it would "create far more problems than it would solve."
She also expressed doubts about a plan by Common Cause, the public interest advocacy group, giving new powers to the assistant attorney general in charge of the Criminal Division. Drafters of the proposal included Archibald Cox, the first Watergate special prosecutor, Harvard Law School professor Philip Heymann, who have reversed their early support for the independent counsel law.
Their proposal would give the head of the criminal division almost complete independence from the attorney general during investigations of high-level misconduct. Reno said their idea was "interesting," but cautioned that limiting the power of the president or the attorney general to remove the head of the criminal division might interfere with the chief executive's constitutional duty to faithfully execute the laws.
"It is a difficult issue and I don't think that moving the boxes around is going to solve the problem," she said.
During several hours of questioning, Reno passed up several opportunities to provide concrete examples to buttress her concerns about the workings of the independent counsel law. Reno declined comment when asked by Levin for examples of independent counsels failing to follow Justice Department policies – an oblique reference to Starr's handling of the initial phase of his investigation of the Lewinsky matter.
She explained that she did not want to say anything that could be construed as interfering in Starr's continuing investigation.
Thompson made clear that his confidence in Reno's willingness to investigate Clinton and his close friends after the law expires in June had been shaken by her refusal to recommend an independent counsel to look into alleged White House fund-raising abuses in the 1996 election.
Instead of seeking an independent counsel, as FBI Director Louis J. Freeh recommended, Reno set up a task force within the department to investigate campaign finance abuses.
Democrats who once supported the independent counsel law are moving to cut off funding to Starr and other outside counsels and shift their probes to Justice at the end of the year.
Sen. Richard J. Durbin (D-Ill.) and several other Democrats hope to accomplish this by introducing an amendment to a money bill. With no Republican sponsors, it has little chance of passing.
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