It is open season on special prosecutors, with Kenneth Starr and Donald Smaltz taking it on the chin from a public weary of the open-ended cost and scope of their investigations. The irony of the two taking a public relations bath while President Clinton and former Agriculture Secretary Mike Espy skip merrily along is enough to make the GOP crazy -- or at least to stumble badly in midterm elections.
Sadly, evidence of wrongdoing by both Democrats is being overshadowed by flaws in the independent counsel law and by the perceived partisan nature of the probes. Even Smaltz, following his four-year, $17 million investigation of Espy that came up empty, says the controversial Ethics in Government Act that empowers special prosecutors should not be renewed next year. Yet he won several cases along the way to the Espy trial and reaped some $11 million in fines to offset the cost of his $17 million effort. In addition, the mere possibility of an independent counsel investigation may deter some wrongdoing among federal officials.Unfortunately, all such investigations are deemed partisan since they target members of a Republican or Democratic administration. Naturally, the party in power claims "witch hunt," while its opponent encourages thorough scrutiny from a supposedly independent source.
Republicans generally opposed the law when it was passed in 1978, following Watergate. They sang the same tune when Iran-Contra prosecutor Lawrence Walsh was investigating President Reagan and associates. Of course, now the shoe is on the other foot. But there is general bipartisan consensus that the law needs significant tightening,if not elimination. We agree.
The statute was created with good intentions, namely, to allow investigations independent of political influence, often impossible if conducted by the Justice Department with its allegiance to the president. Its potential fatal flaw is the granting of unlimited time and resources without strict accountability. Those weaknesses are reparable.
This lack of parameters and focus works against independent counselors and makes them vulnerable to charges of running amok without restraint. Appropriate constraints should be built into the system, while maintaining a form of independent-counsel inquiries. There will always be concerns about bias and inequity if probes are kept solely within the domain of the Justice Department.
Modifying the current statute should be relatively simple. All independent investigations in the future should have specific budget, time and scope restrictions. The flow of inquiries would then stay within a predetermined streambed without overflowing its banks without control or direction.