Revise the Law: The independent counsel statue needs specificity and restraints

Five years ago this August, several weeks after Congress had extended the independent counsel law for another five years, a three-judge panel appointed by Supreme Court Chief Justice William H. Rehnquist made a decision that marked the beginning of the end for the current statute. The judges replaced Whitewater prosecutor Robert B. Fiske Jr, who had angered Senate Republicans by concluding there was no basis for a criminal investigation into the president's failed real estate venture, with a largely unknown judge with no prosecutorial experience. Before he would come to the same conclusion as Fiske four and a half years later, this man, Kenneth W. Starr, came to embody everything that is wrong with the independent counsel law.

As a result of Starr's conduct during his investigation, it seems clear that Congress will not renew the law this year without substantial revisions. The most urgent flaw of the current statute is that the independent counsel, though himself appointed to oversee and investigate public officials, has no oversight himself. There was no one to monitor him as he spent more than $40 million on his campaign.

The first thing Congress must do is make the independent counsel accountable to someone. Currently, only the attorney general can dismiss independent counsels. But the attorney general is constrained by political considerations. She could hardly dismiss Starr, no matter how badly he conducted his investigation. Why not give the same three-judge panel that appoints independent counsels, or some other non-partisan body, the authority to remove them?

The attorney general should also have tighter control over the scope of future independent counsels' investigations. How Starr, appointed to investigate an Arkansas land venture, managed to get involved in the Lewinsky scandal continues to perplex many. No independent counsel should be a permanent institution; their investigations should be specific and subject to tighter and more regular scrutiny by the attorney general.

The process for selecting independent counsels must also be changed to prevent obvious partisans like Starr from conducting investigations of political opponents. Starr's connections to anti-Clinton groups and individuals--the tobacco industry and Richard Mellon Scaife, for example--should have immediately precluded him from the job.

Congress must also explicitly define the role of the independent counsel in impeachment proceedings. When evidence of possibly impeachable offenses surfaced last January, Starr conducted the investigation himself, instead of turning it over to Congress, as the independent counsel law requires. In the future, investigations that may lead to the national trauma of impeachment should be entrusted to the House.

In the face of the many flaws of the independent counsel statute, there are some in Congress who would rather just see the law expire instead of revising it. This would be a mistake. The basic principle of government oversight on which the law is based is a sound one and it is clear that an independent prosecutor law of some sort is necessary.

The independent counsel's office--like the presidency--should not be judged entirely on the people who hold it. Though Ken Starr's conduct has been outrageous, entirely scrapping the law he abused is no solution.