The independent counsel statute, which brought us Judge Lawrence Walsh to persecute Reagan administration officials and Judge Kenneth Starr to do likewise to the Clinton administration officials, expires June 30. Good riddance.
But not everyone is ready to let the statute die. Carl Levin, D-Mich., and the Washington Post, say "mend it, don't end it." Still others, including the legal affairs journalist Stuart Taylor and former deputy independent counsel Julie O'Sullivan, say the statute should be allowed to expire. Yet, even the American Bar Association, an early proponent of tinkering with the Constitution through an independent prosecutor law, is wringing its hands at the Frankenstein monster it helped create.
All sides agree that the current independent counsel law suffers from major flaws. Now that's true bipartisanship. And it was acquired the hard way: Both sides' political allies got impaled. But the point is, the Constitution works, and second-guessing the Founders has not panned out. This law abuses the separation of powers, which the founders carefully laid out, thus undermining the Constitution.
This experiment with the independent counsel statue has come at a heavy cost to the country in dollars, certainly, but also in terms of destroyed lives and reputations, and unbridled public distrust. Seven years and $48 million dollars later, Judge Walsh bagged several Reagan officials in some connection with Iran-Contra. Five years and $40 million dollars later, Judge Starr has also gotten a number of convictions and plea bargains, some even having to do with Whitewater. Meanwhile, according to the Congressional Research Service, 13 of 20 special prosecutors have brought no charges in their investigations, while still others have seen convictions overturned.
Those who want only to "repair" the independent counsel statute miss the point. Yes, the statute allows prosecutors broad discretion, unlimited time and money a combination no other prosecutor enjoys. But this law represents a failed attempt to rewrite the constitutional system of checks and balances among the separated, co-equal branches of the government.
Rather than trying to fix the independent counsel law, Congress should let it expire. The statute came about as one of the Congressional reforms in the wake of Watergate. Such attempts to improve upon the Constitution have proven disastrous, and it took an independent counsel investigation of a Democratic president before the law's creators began to admit how misguided the measure is.
In the case of Watergate, the constitutional system worked just fine. The president overstepped his bounds by firing special prosecutor Archibald Cox. Leon Jaworski was appointed special prosecutor, the House took up impeachment proceedings, and President Nixon eventually resigned. And by no means is a special prosecutor necessary; career Justice Department lawyers could conduct such as investigation.
Besides criminalizing political differences, which are better fought in the court of public opinion than in a court of law, the independent counsel statute breeds public cynicism and undue mistrust of government. The very law intended to remove politics from the process of investigating public corruption at the highest levels of government instead led to the triumph of politics over law. Can any attorney general receive marginally "credible evidence" against "covered persons" and not appoint an independent counsel? Any decision invites charges of partisanship and politicization of the process.
In recognizing the damage wrought by the independent counsel law, "reform" minded liberals, as well as conservatives, may acquire new-found respect for the Founding Fathers and the Constitution they crafted.
Clinton supporters who now loathe Judge Starr the same way Reagan supporters loathed Judge Walsh may have gained new-found respect for Justice Antonin Scalia. In his dissenting opinion in Morrison v. Olson, in which the Supreme Court ruled the independent counsel law to be constitutional, Scalia wrote: "The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us . . . ."
Those who would attempt to tinker with the independent counsel statute should remember the old commercial for a margarine that tasted like butter: "It's not nice to fool mother nature." In the same way, it's not wise to second-guess the Founding Fathers.