AT THE END of this month, the independent counsel law will expire, leaving Kenneth Starr and his fellow special prosecutors as statutory orphans. The law permits him to continue operating, but it also seems to give him discretion to refer back to the Justice Department matters he regards as substantially completed.
In our view, Mr. Starr should make aggressive use of this power and wrap up his investigation by the time the statute expires. The fruitful part of his lengthy probe is over. Continuance of his office serves little purpose other than to erode confidence in the ability of independent counsels ever to finish their tasks.
With his decision last week not to retry Susan McDougal and Julie Hiatt Steele, Mr. Starr has only three items of business remaining. All can either be adequately addressed quickly or referred back to the Justice Department.
The first of these is the two pending indictments of Webster Hubbell. The Starr team handling these cases could be shifted to Justice. While this might formally present a conflict -- Mr. Hubbell was, after all, the associate attorney general -- the problem is more theoretical than real. The cases against Mr. Hubbell have already been filed, and the political pressure on the department to prosecute them adequately would ensure that they would not be punted.
Similarly, Mr. Starr should not maintain his investigation in order possibly to indict Mr. Clinton after he leaves office. It is clear that the Whitewater portion of his investigation has not yielded adequate evidence to justify prosecuting the president. Mr. Starr can simply announce that he intends no further indictments in that area or on the FBI files or White House travel office matters. Moreover, whatever Mr. Starr believes about the constitutionality of prosecuting a sitting president, it would be folly to try to do so in the context of the Monica Lewinksy matter. He should announce that he has no intention of trying, and he can certainly leave it to the Justice Department (under whatever administration) to decide whether Mr. Clinton should be prosecuted for perjury or obstruction of justice after he leaves office.
The law does not actually require the voluminous final reports of some of Mr. Starr's predecessors. Given that much of his investigation has already become public as a result of his prosecutions and the impeachment hearings and trial, a quick, skeletal report would even be preferable.
We have disagreed with decisions and actions Mr. Starr has taken. Some of his prosecutions, particularly those of Mr. Hubbell and Ms. Steele, have seemed excessive, and some measures taken in the Lewinsky investigation seemed unnecessarily aggressive. Still, he has done a better job under difficult circumstances than many of his detractors will acknowledge.
Using the expiration of the statute to cede his remaining business back to the Justice Department would be a graceful exit strategy for someone whose work seems substantially done. If he does decide to stay on, he owes some explanation as to why.