Keeping counsels

The 1978 Independent Counsel Act was spawned in the post-Watergate era of reform. It came of age with Iran-Contra. If Congress chooses, it may die with Whitewater.

Now that independent counsels have poked, prodded and embarassed Republican and Democrat administrations alike, there is a widespread, across-the-aisle movement in Congress to let the act expire of natural causes when it comes up for renewal later this year. There can be no greater indicator of the poisoned political atmosphere than this: The sole manifestation of bipartisanship in Washington is a cooperative effort to kill the only real guarantee the public has that the executive branch does not have complete control of investigations into its own wrongdoings.

The ICA must be reauthorized every five years; the current authorization runs out June 30. The clock is ticking and Congress has a choice: let the law lapse for good or let it lapse with a firm commitment to re-enact it with necessary revisions as soon as possible.

Republicans have long complained that the Iran-Contra investigation was nothing more than an attempt to turn a foreign policy disagreement into a crime. Now Democrats say the Whitewater investigation was allowed to become an inquisition into personal matters. Both parties claim that independent counsel investigations are too long, too expensive, too political. Nowhere else, critics say, does a prosecutor have the power to turn the investigation of a specific allegation into a personal smear campaign.

The numbers, though, simply do not back up the witch-hunt charge. Since 1978, 21 IC investigations have been launched. Of the 15 completed, 11 resulted in no criminal charges. Ten were wrapped up in less than two years. Four remain sealed to protect the privacy of individuals involved. Four accounted for more than 85 percent of the $150 million spent overall.

But it’s the long, drawn-out, expensive exceptions that have attracted all the attention, so it is there that Congress should look for amendments to fix the law. Suggestions put forth by some former ICs and pre-1978 special prosecutors include: Reduce the number of administration officials subject to these investigations from 70 to a more manageable number at the top level only; restrict the timeframe to events that occured only while that official was in office and cover only activities that involve government action or money; give the attorney general more power to conduct preliminary investigations and to prevent the expansion of an IC investigation; enhance accountability by requiring ICs to provide annual reviews of on-going investigations; prevent stagnation by rotating membership on the three-judge panels that oversees IC investigations.

And so on. The point made by those who would amend the ICA is that there is nothing so broken it cannot be fixed. The point made by those who would scrap it is that the conditions that led to Watergate, the Saturday Night Massacre and a full-blown constitutional crisis weren’t so bad after all. Not much of a choice.