To many of us, including many who have worked in the independent counsel's office, it seemed clear long ago that the independent counsel statute is a dubious idea. But why exactly is the statute so bad? After all, are independent counsel investigations really more aggressive than the often bare-knuckled Justice Department investigations of political figures such as Mayor Marion Barry or Rep. Joseph McDade? The answer is almost certainly no, as any honest defense lawyer would concede. But there is a deeper structural flaw with the statute. It permits Congress to enlist an outside agency within the executive branch (the independent counsel) to conduct an intensive investigation of a president or his administration and then report to Congress and the public on the results. The statute thus allows Congress to avoid its own investigative and oversight responsibilities and thereby avoid (or at least defer) responsibility for unpopular or politically divisive investigations. The Lewinsky matter is the clearest example yet of this unfortunate phenomenon. To begin with, after allegations of presidential obstruction of justice landed in the public domain in January 1998, the House did nothing for nearly eight months, but instead deferred to the independent counsel's investigation. That is not what the Constitution contemplated. When Congress learns of serious allegations against a president, it must quickly determine whether the president is to remain in office, for only Congress (not an independent counsel) has the authority to make that initial and fundamental decision. In the Lewinsky case, for example, the House Judiciary Committee could have questioned Monica Lewinsky, Betty Currie, Vernon Jordan and perhaps even the president in early 1998 (an approach this author publicly advocated at that time), granted immunity where necessary and gotten to the truth. There simply was no need for this mess to have occupied the country for 13 months. The constitutional confusion continued when the independent counsel submitted his referral to Congress in September. Consistent with the independent counsel statute, the referral identified several possible "grounds for impeachment," the statutory prerequisite for an independent counsel to directly submit grand jury information involving presidential misconduct to Congress. But that raises a serious question: Why does the statute authorize an independent counsel, a member of the executive branch, to describe the possible grounds for impeachment of the president, a decision in the exclusive province of Congress. (Disclosure: I worked on that part of the independent counsel's referral that identified possible legal grounds for impeachment.) The constitutional confusion persisted after the referral arrived in Congress. Most assumed that the Judiciary Committee would, at a minimum, carefully review the referral before authorizing any public release. Some thought that the committee might not release materials submitted by the independent counsel at all, but instead simply use the referral as a springboard to plan and conduct its own investigation. Indeed, the Rodino Judiciary Committee apparently never released the 1974 Jaworski referral, and the Senate Judiciary Committee carefully guards the somewhat analogous FBI background reports on presidential nominees. In this instance, however, after an overwhelming bipartisan vote, the House publicly released the independent counsel's report without even reviewing it beforehand -- notwithstanding widespread recognition that the referral necessarily would describe extraordinarily sensitive evidence and personal information. The House's immediate and unscreened release of the referral and subsequent release of truckloads of sensitive grand jury material -- the president's grand jury videotape, grand jury transcripts, the Tripp-Lewinsky audiotapes and the like -- obviously caused unnecessary harm to Congress, the presidency, the independent counsel and the public discourse. The referral process also exposed yet again the fundamental flaw in the statute's requirement that independent counsels file substantive reports, as opposed to simply providing Congress raw evidence. The reports divert attention from the evidence to the perceived accuracy and fairness of the report. Because independent counsel cases involve political figures, the prosecutorial reports are inevitably attacked as politically motivated documents. We now have plenty of examples: the McKay report (attacked as unfair to Edwin Meese), the Walsh report (attacked as unfair to presidents Reagan and Bush) and the Starr report (attacked as unfair to President Clinton). Congress's original conception of independent counsel reports -- that the independent counsel's recitation and interpretation of the evidence would be accepted as gospel by all -- reflects a post-Watergate naivete that has been flatly disproved by two decades of experience. In this case, moreover, the House's massive public release of the referral and backup evidence not only was unwise on its own terms, but also suggested that the independent counsel -- not the House -- was defining the impeachment process. Of course, after the public release of the referral, many believed that constitutional normality would return -- that the Judiciary Committee would conduct its own investigation and probe witnesses directly, a seemingly necessary ingredient before impeaching and removing a president of the United States. But that, too, never happened. Instead, to the chagrin of constitutional purists, both the House and the Senate rendered their judgments without a full and independent congressional investigation in either body. So now that it is over, whom do we blame for the morphing of constitutional roles we witnessed over the last year? No one can legitimately blame the independent counsel: He followed the statute and the mandate given him by the attorney general and three-judge court (Sam Dash's reinterpretations notwithstanding), and it obviously was not his role to tell the House that it should be more aggressive in conducting its own impeachment process. Nor can one place much criticism on the House Judiciary Committee, for it deferred to a process seemingly ordained by the independent counsel statute. Rather, the blame lies squarely on the independent counsel statute itself -- the hydraulic force that facilitated, and even caused, the unfortunate blending of constitutional roles throughout the impeachment process. Yet another reason to end this statute and revert to a system more closely resembling the tried-and-true discretionary system of administration-appointed special prosecutors -- one in which Congress does its job and oversees the executive. To be clear, my criticism of the process the country underwent over the past year is not to say whether President Clinton should or should not have been removed from office. One can argue that the president would have been removed had the proper constitutional process been followed. Alternatively, one can argue that he never would have been impeached. Regardless, the procedure that Congress followed in this case, pursuant to the independent counsel statute, was deeply flawed in that it required a single quasi-executive branch officer -- who was, on the one hand, defenseless against relentless and orchestrated political assaults and, on the other hand, unaccountable to the people -- to define the impeachment process. The writer, a Washington attorney, served as an associate counsel for independent counsel Kenneth W. Starr.