The independent counsel law, I am convinced, is unconstitutional and unwise. But the Supreme Court has upheld the law, and Congress is unlikely to repeal it. So, when the law is up for renewal in 1999, the question will be whether the law can be usefully reformed or, if not, what can be put in its place.
If we are going to keep the statute, the number of "covered" people (there are now roughly 70) should be greatly reduced. Only the most important executive figures should be covered: the president, vice president and a few key Cabinet officers, such as the attorney general. There is no good reason to suppose that the Justice Department would fail to investigate and prosecute most of the other officials now covered.Also, the attorney general should have more discretion in deciding whether to refer a case for appointment. The attorney general should have subpoena power during the preliminary investigation to be able to make that decision on the basis of better information. The attorney general should not have to refer an allegation that, even if true, the Justice Department would not normally prosecute. And the standard for referral - the attorney general must ask for a special counsel unless there are no reasonable grounds to believe that further investigation is warranted - should be loosened.
Reforms that try to mi-cro-man-age the work of a counsel - such as Archibald Cox's proposal to limit an independent counsel investigation to one year subject to court extension - have much less merit. Requiring independent counsels to work on their assignments full-time is worth consideration. But it must be noted that investigations move according to their own pace, and there may be some dead time for a full-time counsel even as the FBI or others conduct interviews and gather evidence.
My preference would be to replace the independent counsel with a new Office of Special Counsel within the Justice Department to handle allegations against many of those now covered by the law. The office would be headed by someone nominated by the president subject to Senate confirmation and given a 10-year term like the FBI director's.
This proposal would do away with many of the issues now drawing the attention of reformers. The judiciary would not have to be involved, and the counsel would be full time.
He or she would have the power needed to make better informed decisions at every stage of an investigation. Most important, such an office, staffed with attorneys working on a broader range of cases, would be able to make the critical decision whether actually to seek an indictment in a more well-considered fashion.
Terry Eastland is a fellow at the Ethics and Public Policy Center. Distributed by Scripps Howard News Service.