No longer can it be said that nothing good came out of Whitewater, Monica and impeachment. On June 30, the independent counsel statute -- under which Kenneth Starr and his predecessor gumshoes were appointed -- will die an unmourned death, and we can go back to constitutional government.
I say "back to constitutional government" advisedly, because the fundamental problem with this law was not that Starr abused it or, as conservatives would have it, that Iran-contra independent counsel Lawrence Walsh went off on a vendetta. No, the fundamental problem is that it offends the constitutional principle of separation of powers and damages the political accountability that underlies our whole system of government.
The statute in question was created in the aftermath of Watergate, when a Democratic Congress decided it would not trust future Republican administrations to investigate their own wrongdoing. So it set up an elaborate system in which the attorney general, at the bidding of Congress, could call for an independent counsel from outside the Justice Department to investigate and, if necessary, prosecute crimes by high-ranking government officials -- the president, the vice president and Cabinet members.
In passing the law, the Democrats ignored the fact that the work of investigating Watergate had been done by two special counsels -- Archibald Cox and Leon Jaworski -- named by and responsible to the attorney general.
The distinction between an independent counsel and a special counsel may seem trivial, but it goes to the heart of our system.
The office of an independent counsel is, in effect, a fourth branch of government, accountable to no one. It has its own staff, its own budget and its own mission -- conceived in practice as turning over every rock that could be concealing scandal. The investigations can go on forever. It has been more than four years since independent counsel David Barrett was named to check out Housing and Urban Development Secretary Henry Cisneros. Cisneros has been retired from government since 1997, and his trial -- on the monumentally unimportant charge of understating to the FBI the amount of payments he was making to a near-bankrupt former mistress -- is still somewhere in the future.
In a ringing dissent from the dubious 1988 Supreme Court decision upholding the statute, Justice Antonin Scalia said that "two centuries of history have shown" the Founders' wisdom in declaring unambiguously that "the executive power shall be vested in a president of the United States." Only when the president, elected by the people, must take responsibility for all the decisions his subordinates make -- including the way they use their vast discretionary power to investigate and prosecute lawbreaking -- can there be real political accountability. As Scalia said, "when crimes are not investigated and prosecuted fairly . . . the unfairness will come home to roost in the Oval Office."
In seeking to guarantee stern action against suspect high officials, Congress fatally muddled that principle of political accountability. Under the expiring law, it is up to the attorney general to decide if an independent counsel is needed. Picking that counsel is left to three judges. And then what happens to the case is left to the untrammeled discretion of that counsel.
Sen. Fred Thompson of Tennessee, the Republican chairman of the Senate committee that held exhaustive hearings this spring on renewing the independent counsel statute, made the sound point that the current system almost guarantees partisan attacks on the credibility of the independent counsel and leaves that counsel politically unprotected. Thompson, after noting that Congress had fiddled with the law every five years when it came up for renewal, said, "we have yet to come up with the right mix of words and provisions. . . . The problem is that the Constitution says that the executive part of government is to be run by the executive -- and that includes the prosecution of federal criminal cases."
When the law expires this week, the authority for naming special counsels will return to the attorney general. Thompson advocates passing a new law directing the attorney general to set guidelines for future special counsels, and says those guidelines should be reviewed and reaffirmed by Congress.
But beyond that, he says, Congress should not intrude on the prosecutorial duties of the executive branch. That same view was expressed earlier by former attorney general Griffin Bell, former Republican Senate leaders Bob Dole and Howard Baker and former Democratic Senate leader George Mitchell.
They are right -- and Congress is right to let this turkey die.