THOSE WHO were keen to see the independent counsel law expire should take a look at the regulations Attorney General Janet Reno promulgated to replace it. The message Congress sent with its refusal to reauthorize some form of the statute is that it has no interest in trying to write the rules for sensitive investigations of high-level wrongdoing. The executive branch is, therefore, free to do as it pleases. Ms. Reno has done just that. Her rules roll back the traditional independence special prosecutors have been given, allowing the attorney general considerably greater authority over their investigations.
In the past, regulatory special prosecutors have been afforded considerable distance from the Justice Department. The major check on them by the executive hierarchy was the ability to have them fired. Another check was that they were selected by the attorney general, not a special court. In most other senses, however, the special prosecutor was independent of the department.
Ms. Reno's new regulations, however, give the Justice Department considerable power to supervise special counsels. Some of this is good. The rules require unambiguously that special counsels "shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice" and "consult with appropriate offices within the department for guidance with respect to established" policies and practices. This is an appropriate response to the ambiguity in the now-lapsed statute that permitted independent counsels to do essentially as they pleased.
Other aspects of the Reno rules, however, give the attorney general a veto over investigative and prosecutorial decisions of a special counsel. They require the prosecutor to give her notice of major events in the course of his investigation. They also permit her to "request that the special counsel provide an explanation for any investigative or prosecutorial step" and order it reversed if she "conclude[s] that the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued." The rules would give an unscrupulous attorney general latitude to interfere with a supposedly independent investigation.
The department's eagerness to curtail the independence of the independent counsels is understandable. Several such prosecutors have brought cases the department never would have contemplated and, in losing those cases, established bad law. The problem of the runaway independent counsel is real. But these rules tack hard in the other direction, arguably responding to the statute's excess of independence by prescribing an excess of accountability.
This tension is unresolvable, and whether these rules represent a workable balance can only be answered in practice. Moreover, there is an ever-present check on Ms. Reno's authority to assert this power: Congress still can write a law. If it does not do so, members' complaints in future cases will ring a little hollow.