Independent Counsel Law Is Set to Lapse
By Helen Dewar
Abandoned by all but a few of its earlier supporters, the law will expire at the end of this month. With little more than three weeks to go, neither house of Congress has taken even the first formal step to extend the law's life.
At least for the time being some say until the next big scandal responsibility for appointing outside counsels to investigate misconduct by top government officials will revert from a panel of federal judges to the attorney general, who held this power before the independent counsel law was passed in 1978 as a result of the Watergate scandal.
In the Senate, a bipartisan group of four members of the Governmental Affairs Committee plans to confer in hopes of developing a legislative proposal to retain independent counsels but with some constraints on their operations, such as spending limits and procedural safeguards.
And in the House, a Judiciary Committee panel headed by Rep. George W. Gekas (R-Pa.) plans to hold a hearing next Friday on a plan to write into law rules governing the appointment of special counsels by the attorney general.
Of the two approaches, a law to codify the appointment of special counsels by the attorney general recommended by an independent commission headed by two former Senate majority leaders, Republican Robert J. Dole (Kan.) and Democrat George J. Mitchell (Maine) appears to have the best chance of eventual passage, some lawmakers have said. But even that is no sure bet.
In any case, no official action on either proposal has been scheduled, and the chances that Congress might enact something before the end of the month are "somewhere between nil and nowhere," according to a staffer involved in the process.
Congress's failure to act arises out of a number of factors, particularly frustration with the conduct of many investigations. Critics cite costs (a total of $148.5 million as of March 31, according to the Congressional Research Service), the length of the probes (Starr has been investigating the Clintons since 1994), lack of accountability and unchecked prosecutorial power. Many lawmakers argue that the law, designed to increase Americans' confidence in their government's integrity, has actually helped undermine it.
Many Republicans have long opposed the law, which was passed in response to the "Saturday Night Massacre" firing of Watergate special counsel Archibald Cox for his probe of President Richard M. Nixon and was later used to launch investigations of key figures in the administrations of Presidents Ronald Reagan and George Bush. Democrats' ardor for the law cooled rapidly when it was employed against Clinton administration officials, including Clinton himself, whose impeachment by the House last year was based on Starr's investigation of the president's relations with Monica S. Lewinsky.
Even Starr has urged that the law be allowed to lapse, providing a rare point of agreement between him and his severest critics.
Nor is there any consensus as yet about changes that could make the law work better, although the four senators who would mend, not end, it Susan Collins (R-Maine), Carl M. Levin (D-Mich.), Joseph I. Lieberman (D-Conn.) and Arlen Specter (R-Pa.) hope to craft them soon.
Any sense of urgency about letting the law die is tempered by the fact that it was allowed to lapse for 18 months without serious repercussions before its most recent reauthorization, in 1994. Instead, according to many lawmakers, there is a profound sense of fatigue stemming from the Starr probe and other recent investigations.
"People are sort of exhausted now with all that's happened with Starr" and other issues that have arisen since the Senate trial that resulted in Clinton's acquittal, said Specter. "Everyone's attention has been diverted, but just wait until there is another need for an investigation and you'll have a real clamor," he added.
Attorney General Janet Reno needs no new congressional authority to name special counsels, and the Justice Department has already outlined the procedures she would follow in doing so, including budgetary and jurisdictional constraints.
But many lawmakers like the idea of writing the rules into law. Under proposals outlined by Dole, who opposed the independent counsel law, and Mitchell, who supported it, the attorney general would be required to promulgate rules for the appointment of an outside counsel when a departmental investigation invites a conflict of interest.
The counsel would have independent authority to conduct grand jury and other proceedings but must comply with Justice Department procedures, jurisdictional limits and budgetary rules. A counsel could be removed only for cause, but the attorney general could decide at specific intervals whether to end a counsel's probe.
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