WHEN THE independent counsel law expires tomorrow, few will mourn its passing. A consensus has developed that the law is worse than the condition it was intended to remedy. This pendulum swing will last until the next time Congress becomes dissatisfied with the way the Justice Department conducts a politically charged investigation.
The problem with the current law is that it assumes the department is untrustworthy in a wide array of situations, whereas in fact the number of cases that pose serious conflicts for the attorney general is small. The law strains constitutional norms and creates a class of prosecutors who effectively answer to nobody in order to keep the attorney general away from a group of investigations that include many the Justice Department is competent to handle.
On the other hand, cases in which an attorney general's impartiality is a serious question do exist, and it is crucial that some mechanism permit impartial investigation, prosecution and exoneration.
There is no wholly satisfactory answer, but having no statutory scheme is almost as bad as having a faulty one. The best answer is a law far less ambitious than the current one that would give the attorney general wide discretion on when to seek an independent counsel and some say in who that investigator is. This model would simultaneously ameliorate the current law's structural defects and reduce the number of independent counsels investigating trivial allegations.
The bipartisan Senate proposal by Sens. Susan Collins, Arlen Specter, Carl Levin and Joseph Lieberman is a step in the direction of a more modest and focused law. It would reduce the number of officials covered and put time limits on independent counsel probes. In the current political climate, it's unlikely to receive serious consideration, nor is it precisely the balance we would prefer. But when the pendulum swings again, it will be a good place to restart the conversation.