When Whitewater independent counsel Kenneth Starr veered to investigate allegations of a sexual relationship between President Clinton and a former White House intern, he kicked up a storm of questions about the law underlying such counsels' authority. Does the law allow a special prosecutor too much power? Is it a "monstrosity," as some critics claim, or a bulwark to the country's constitutional system? Should it be kept as is when it comes up for reauthorization next year, revised, or junked?
"Out of control" is largely a matter of perception. Certainly it seemed a leap for Judge Starr to move from his Whitewater probe of financial dealings in Arkansas to alleged White House sexual intrigues and inducements to perjury. The independent counsel law gives him wide leeway, however, and the link between the two probes was the involvement of Clinton confidant Vernon Jordan in allegedly buying silence with jobs for both Whitewater figure and former Justice Department official Webster Hubbell and former intern Monica Lewinsky.
But the question stands, have recent special prosecutors simply been given too much freedom to roam? They have, after all, little accountability and lots of budget. Critics have asserted that the independent counsel constitutes virtually a fourth branch of government, distorting the checks and balances built into the US system.
If the independent counsel law didn't exist, however, what reliable means would there be of getting to the bottom of allegations of executive-branch wrongdoing? Justice Department officials inevitably fall under a credibility shadow when investigating their boss in the White House, or higher-ups in their own department.
The best answer, we believe, lies in adjusting the law. Rein in independent counsels, to a degree, but maintain their ability to probe situations that defy objective investigation by other government officials.
For instance: Limit the scope of investigations to cover matters involving only high officials in the White House and the Justice Department. Limit the jurisdiction to allegations arising from activities while an individual is in federal office. Require the counsel to obtain fresh approval for new funds at regular intervals, perhaps every two years. Build in political balance in the panel of federal judges who select independent counsels. The latter might ease some charges of partisanship.
Congress needs to act on such reforms. Otherwise, Americans are likely to feel increasingly uncomfortable with a needed, but currently unrestrained, arm of government.