In the aftermath of Watergate, Congress passed the independent-counsel law in 1978. It aimed to prevent conflicts of interest in which an administration, through its Justice Department, investigated itself.
The law provides that when a president, vice president, Cabinet official, or certain others close to the administration are accused of wrongdoing, the attorney general may request that a panel of three federal appellate judges appoint an independent counsel to examine the allegations. If the counsel finds evidence of impeachable offenses, he is to turn it over to the House of Representatives.
Many Republicans have long viewed the law as a tool of Democratic Congresses to harass GOP presidents. Some still fume over independent counsel Lawrence Walsh's Iran-contra investigation, which indicted former Defense Secretary Caspar Weinberger days before the 1992 election. (President Bush headed off a trial with a pardon.) Democrats now have their own complaint. They're upset over what they see as overzealous probes of President Clinton and former Agriculture Secretary Mike Espy. Lawmakers from both parties have made it clear they're in no mood to renew the soon-to-expire law.
Sadly, they are right. Despite its authors' good intentions, the law has effectively created an unaccountable fourth branch of government subject to no budgetary or time limits. It creates every incentive to bring charges, however flimsy. None of the proposed tinkering will change this.
The attorney general can name an independent counsel accountable to her at any time. This option could be strengthened by requiring consultation with an adviser insulated from politics. Also, both houses of Congress retain oversight power and can investigate on their own. These mechanisms did the job during Watergate. They can do the job now.