Senate panel spotlights independent counsel law
Statute must be re-authorized by June or expire
February 24, 1999
WASHINGTON (AllPolitics, February 24) -- The Senate Governmental Affairs Committee began hearings Wednesday to determine the fate of the Independent Counsel Act. If Congress does not act, the statute will sunset on June 30.
In the wake of Independent Counsel Ken Starr's investigation of President Bill Clinton, and the president's impeachment and trial, there is little enthusiasm for a provision that many on Capitol Hill have long disliked. If the law is not dropped completely this year it will certainly be reformed.
Opening the hearings, Committee Chairman Fred Thompson (R-Tennessee) said the "knee-jerk reaction based upon recent circumstances" to abolish the statute is premature. But he said "the burden of persuasion rests with those who want to retain the statute."
The act was written in the wake of Watergate to create a politically independent check on the president and top appointees. It has been changed significantly over the years in reaction to the most recent cases.
"We've either got to fix it or drop it and look for another mechanism," said Sen. Carl Levin (D-Michigan), a principal author of the 1978 statute.
Thompson said the panel's series of hearings on the issue will look at further reforms for the law. "You know, hope springs eternal with regard to our ability to tinker and solve the problems," he said.
Though Sen. Joseph Lieberman (D-Connecticut) said he feels the "burial of the independent counsel law would not serve the interests of the American people," and echoed Thompson's call for a careful look at the law.
"I hope that we can let go of the anger and the passions and some of the divisions that have consumed us in recent times, because the independent counsel law is not about sex scandals and spin doctors and mud throwing," Lieberman said.
The first two witnesses, former Senator and Reagan White House Chief of Staff Howard Baker and Carter Administration Attorney General Griffin Bell, urged the committee to allow the statute to expire.
"My own view is that the act ought to expire. We ought to write out a clean slate. We ought to cool off," Baker said, "Let some time go by so we can consider the relative merits of the proposals that will no doubt be presented."
Baker helped shepherd the Reagan White House through its Iran-Contra investigation and as a senator co-chared the Watergate hearings which spawned the idea of an independent counsel. But he could not offer any suggestion of how to replace it.
Bell, as attorney general, named the first independent counsel but does not think anyone would miss it: "... the mere fact that it's constitutional, does not mean that it's good policy."
If the statute is renewed it will likely be pared back to limit investigations to no more than a handful of officials -- the president, vice president and attorney general. Senators who would like to save it also suggest time and expenditure limits to avoid the wide range Starr obtained for his investigation of the Clintons.
Two of the three former independent counsels, who testified on the day's second panel, told senators that there was merit in mending the statute with strict limits.
"I would limit it to the president, vice-president, attorney general, members of the cabinet, and perhaps the heads of the FBI and CIA," suggested Arthur Christie, the first prosecutor appointed under the act.
"I suggest it be limited only to offenses committed in the covered offices, not to prior offenses," former independent counsel Curtis von Kann said.
Though Clinton's administration has felt a great deal of the brunt of the independent counsel statute over the past six years, the president said Wednesday that he would reserve comment on whether the law should be allowed to run out.
"I do have some ideas about it, but I think it would be better for me, at this time, to say less so others can say more," Clinton said at a news conference with the president of Ghana, Jerry Rawlings.
White House officials have previously said that at a minimum the law needs reform. And Vice President Al Gore told CNN the administration is "going to pay close attention to those hearings on Capitol Hill," but has not yet taken an official stance on whether the independent counsel statue should be renewed.
"Obviously there are reasons to have it, but obviously there have been some abuses and so we want to approach this evaluation carefully," said Gore, who could ultimately be impacted by Congress' decision if his 2000 presidential bid is successful.
Both Gore and Clintons' 1996 fund-raising activities were investigated by the Justice Department to see if independent probes were necessary. Reno ruled multiple times that there is not enough evidence to trigger the independent counsel statute.
There are currently five active independent counsel investigations of the Clinton administration, including Starr's. In addition to Clinton, five members of his cabinet have been investigated.
They include former Agriculture Secretary Mike Espy who was recently acquitted; Labor Secretary Alexis Herman; Interior Secretary Bruce Babbitt; former HUD Secretary Henry Cisneros; and the late Commerce Secretary Ron Brown. The Brown inquiry was closed following his 1996 death.
The investigation of Espy by Independent Counsel Donald Smaltz has also been a target of criticism. Espy was cleared of all 30 criminal charges last December.
In total, the seven investigations of the Clinton Administration has cost more than $70 million dollars.
The independent counsel statute has long been a source dissatisfaction for both Republicans and Democrats, though it was tested and found constitutional by the Supreme Court.
Congress' frosty regard for the law began when Starr was still on the bench of the U.S. Court of Appeals in the 1980s. Republicans were the first to complain of the law's abuse during Independent Counsel Lawrence Walsh's seven-year Iran-Contra investigation. The controversy prompted Congress to let the law lapse for 18 months during the early 1990s.
Ironically, it was Clinton who successfully campaigned for the statute's renewal in 1994. Little did the president know he'd be embarrassed and impeached as a result of Starr's investigation.
The law requires the attorney general to seek the appointment of an independent counsel when there is substantial and credible evidence of a crime by any one of 49 top federal officials, including the president.
A panel of three federal judges then picks an attorney for the job. The prosecutor has an unlimited budget to hire aides and investigate his target -- a frequent point of criticism. Starr, for instance, has spent nearly $50 million on the Clinton investigation.
With approval from the attorney general and the appointing judges, the independent counsel can broaden investigations far beyond the original mandate, another target of the law's critics. That is how Starr's investigation of the Clintons' Whitewater land deal came to include the Monica Lewinsky scandal.
The Senate hearings could last well into the spring, and the House plans similar proceedings. Thompson has talked with Starr about his testifying though it is unclear if that will happen.
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