ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, December 1, 1996 TAG: 9612020056
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: NEIL A. LEWIS THE NEW YORK TIMES
After Watergate, the idea of having prosecutors who were independent of the White House look into allegations of high-level wrongdoing seemed an obvious, even compelling, innovation.
Now, two decades later, there is a deep and increasingly angry division among lawyers, White House officials and many in Congress over whether the law that allows for such independent prosecutors has proved more trouble than it is worth.
Far from creating a class of investigators immune from criticism, the law has led to political fighting that has grown through the years.
Saturday, Commerce Secretary Mickey Kantor defended Attorney General Janet Reno and criticized what he implied was an anonymous White House whispering campaign seeking her ouster.
Just the day before, the Justice Department that Reno leads turned down a third request to appoint an independent counsel to investigate Democratic Party fund-raising.
Kantor did not say Reno was a must for President Clinton's second-term Cabinet. But he said on CNN's ``Evans & Novak'' the decision about keeping Reno should be made regardless of the Justice Department's role in investigating suspected illegal campaign activities.
``The Department of Justice has to be seen as something that represents the best interests of the American people. It's really the people's counsel,'' Kantor said. ``It can't ever be seen as political. It can't ever be seen as partisan.''
Reno's decision to deny a request from Sen. John McCain, R-Ariz., for a new counsel is just Republicans' latest regarding independent counsels.
Also, one of Clinton's political advisers, James Carville, has attacked Whitewater independent counsel Kenneth Starr as a partisan Republican abusing his powers in order to undermine the president.
The independent prosecutor law was intended to ensure confidence in the criminal justice system by avoiding the appearance of conflicts of interest.
Since the law's enactment in 1978, there have been 17 independent counsel investigations, with an estimated cost of at least $115 million. Ten ended with no indictments and little question about political favoritism. Four others, including Whitewater, continue.
There were several convictions in the Iran-Contra investigation, although some were overturned on appeal. Michael Deaver, an aide to President Reagan, was convicted of perjury. Another Reagan aide, Lyn Nofziger, had his conviction on conflict-of-interest charges overturned.
Still, some of the law's severest critics are a bipartisan group with an unusually close view of the situation: several former independent counsels. They say the law has not increased public confidence in the government, but has led to broad, even bloated, investigations that can hobble an administration and subject minor figures to persecution.
The most hotly contested part of the law is its ``trigger provisions,'' which spell out circumstances under which an attorney general should put it into effect. The statute obliges the attorney general to ask a special three-judge panel to appoint a special prosecutor if there are reasonable grounds to believe ``specific, credible allegations'' made against senior officials in any of hundreds of categories.
In announcing Reno's decision Friday, the Justice Department cited the trigger provisions, saying that none of the allegations involved high-level officials covered by the law. She said the matter would be handled by career prosecutors in the department.
Reno displeased some White House officials when she sought counsels in previous cases in which the officials thought a strong argument could have been made that the law did not apply.
Republicans have suggested that Clinton has left Reno's future uncertain - he has not said whether he wants her back in his second term - to pressure her not to seek a counsel in the campaign fund-raising case.
Reno acknowledged the conflicting pressures when asked about the case last month. ``You are damned if you do, and damned if you don't,'' she said. ``I get criticized for doing one thing. I get criticized if I don't do another thing.''
Nonetheless, some former independent counsels believe the law's threshold for when a counsel can be named is too low. Joseph E. diGenova, a former U.S. attorney who served as an independent counsel (the name is interchangeable with special prosecutor) from 1992 to 1995, said the law had allowed investigators to ``feast on the bodies'' of public officials.
DiGenova complained that it required independent counsels to be appointed even when there were only sketchy, minor allegations, thus producing a proliferation of special prosecutors that suggested that corruption was rampant.
``The routine use of the statute has undermined public confidence,'' he said. ``Instead of being reserved for those rare moments when there could be a constitutional crisis, it trivializes the use of independent counsels.''
``The statute,'' he said, ``should be restricted to the president, vice president and the attorney general and their families.''
DiGenova investigated charges that officials in the Bush administration had illegally searched passport files to obtain confidential information about Clinton, who was then a candidate for president. He concluded that no crime had been committed, brought no indictments and instead apologized to the officials on behalf of the government.
At a recent seminar sponsored by the American Bar Association, several prominent lawyers said that despite its problems, the law was needed although it should be modified to limit its use.
Archibald Cox, who was a special prosecutor for Watergate before the independent counsel law was enacted, was a living reminder of the problems that existed before the guarantee of independence. When President Nixon found Cox was getting too close to uncovering evidence of wrongdoing, he had him dismissed.
``It seems to me the public needs the assurance that the individual investigating high officials is truly independent,'' Cox said. But he agreed the law should be changed so that prosecutors would be appointed only to investigate a limited number of people and would have to be full-time employees. He suggested that the law be amended to deal only with crimes involving abuse of power in federal office.
At any given time in the law's history, one party has been complaining about prosecutorial zeal and the other defending investigative independence, depending on who is in office. Many of the Democratic attacks on Starr, for instance, echo earlier Republican criticism about the prosecutor in the Iran-Contra investigation, Lawrence Walsh.
Rep. Jay Dickey, R-Ark., said he will reintroduce legislation that would sharply limit independent prosecutors to rein in the ``uncontrolled power that an independent counsel has.''
The Associated Press contributed to this story.
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