Voices as diverse as defenders of President Clinton, conservative columnist Bob Novak and a former Republican attorney general, are saying the independent counsel law is flawed and we should get rid of it.
The problems created were evident before the appointment of Kenneth Starr and before the Clinton administration.I voted to create the office when I served in Congress, and I now view that as a mistake. But it will not be repealed - and should not be repealed - unless we provide greater assurance of independent conduct by the attorney general.
No one in government should be given a blank check, and that is what we have done with independent counsels. Those who abuse the public trust should be pursued vigorously, but the attorney general and U.S. attorney's should do that.
After John F. Kennedy's election in 1960, Robert Wallace of his staff, who had headed the successful key West Virginia primary for JFK, called and told me the president-elect was considering naming Robert Kennedy as attorney general. He wanted to know my reaction.
I told him it did not strike me as a good idea because there should be some distance between the president and the attorney general, given the immense law enforcement powers of the attorney general. As it turned out, Bobby Kennedy did an excellent job, but the basic thesis of my objection remains sound.
With jurisdiction over federal prosecutions, the FBI, the Immigration and Naturalization Service and much more, the attorney general should be clearly independent of partisan politics.
The ideal type of appointment came with President Gerald Ford's naming of Edward Levi, who had been president of the University of Chicago and former dean of the law school there. No one felt he made decisions on a political basis.
We have had other good attorneys general, and I would count Griffin Bell, Richard Thornburgh and Janet Reno among them. But we have also had people in that position whose No. 1 agenda was political.
How can we assure independent conduct by the attorney general?
We could ask the president and members of the Senate and House Judiciary committees to appoint a blue-ribbon panel to recommend three outstanding possibilities to the president. The president could designate one or reject all three and ask for new names. Once designated, the nominee would need a two-thirds vote from the Senate to be confirmed - and would serve 10 years. Then the independent counsel law could be repealed.
The new procedure should commence with the election of the next president, and those who are now serving as independent counsels should continue their service until their work is finished.
This type of change is needed for the attorney general who heads our Justice Department even if we had no problem with the independent counsel. But we do not need independent counsels with unlimited resources, heading a small army of law enforcement personnel pursuing people with expenditures in time and money out of all proportion to the offense that may have been committed.
There is no constitutional barrier to such a change for the attorney general's appointment. The president does need legal advice, but he has a legal counsel on the White House staff who can provide that.
When citizens look at the Department of Justice, they should feel that what emerges is justice without political taint. Our system needs to be improved.