The office of independent counsel is not supposed to be a popular post.
But Kenneth Starr's handling of the investigations into alleged wrongdoing by President Clinton has provoked widespread public disapproval and bipartisan calls for the powers of the office to be reexamined, if not curtailed.
Without mentioning Mr. Starr by name, Jerome Shestack, president of the American Bar Association, last week spoke of Starr's "prosecutorial zeal" and untouchability during a forum held to examine the independent counsel statute.
"Is the special counsel a fourth arm of government lacking any meaningful accountability and realistically immune from removal?" he asked.
Watching the watchdog
Final oversight, or who watches the watchman, has always been a vexing question in a democracy carefully embedded with checks and balances. The the independent counsel statute was enacted in 1978 to ensure impartial investigations of allegations of criminal misconduct by the president and other high-ranking officials. There are no limits on funding. And only the attorney general has the authority to fire an independent counsel, but the political fallout from such a firing makes it unlikely.
"There are no checks and balances in the system," says Abbe Lowell, a former prosecutor who served under the attorney general during the Carter administration. The oversight question is now sharply in focus as at least half a dozen entities seek explanation and accountability of the Office of the Independent Counsel (OIC) for leaks to the media.
"I don't think anyone ever thought before about who would investigate the investigator over anything other than money," says John Banzhaf, a law professor at George Washington University here, pointing to the unlimited funding special prosecutors are given to conduct their probes. Under the Federal Rules of Criminal Procedure, anyone from the prosecutor's office is prohibited from disclosing any information from grand jury proceedings.
Leading the effort to prove Starr's team leaked information to the press is the president's attorney, David Kendall, who has filed a complaint in a federal court, calling on the court to find Starr's office in contempt.
Complaint proceedings are conducted secretly. Under the process, the OIC is required to prepare a written response to the charges and file it with the judge hearing the case.
Meanwhile, Rep. John Conyers of Michigan, ranking Democrat on the House Judiciary Committee, and Sens. Richard Durbin (D) of Illinois and Robert Torricelli (D) of New Jersey also want the Justice Department to investigate the leaks of grand jury testimony.
Moreover, Senator Torricelli and Representative Conyers both suggest that Starr's probe is compromised by conflicts of interest. Starr's law firm once advised Paula Jones's litigation team. Moreover, Torricelli suggests Starr's team has coordinated its efforts with the Paula Jones legal team.
The Justice Department will not disclose if that requested investigation is under way, only that the letters of request have been received. The National Association of Criminal Defense Lawyers has also joined the fray, calling on the Justice Department to investigate while denouncing Starr for "unethical treatment" of potential witnesses in the Monica Lewinsky matter.
On another front, Professor Banzhaf has triggered a probe by the bar counsel of the District of Columbia and hopes to compel the Arkansas Supreme Court's committee on professional conduct to do the same. He wants the entities that regulate lawyers locally to determine if Starr or any of his deputy investigators have committed offenses that could result in their being disbarred.
"Like any other lawyer, he [Starr] is subject to ethics and enforcement of state bar procedures," says former independent counsel investigator John Douglass, who now teaches law at the University of Richmond, Va.
Unless evidence is found that someone on Starr's team leaked details of grand jury testimony to the media, history would seem to indicate that Banzhaf's backdoor effort may be as close as anyone gets to reining in this special prosecutor.
Similar issues of oversight were raised nearly a decade ago during the mother of all investigations, the $47 million Iran-contra probe of Lawrence Walsh. His seven-year odyssey examined charges that the Reagan administration sold arms to Iran, funneling the money to anti-Communist contra rebels in Nicaragua.
While he won 10 convictions, he faced objections over the scope and length of time involved in carrying out his duties. Sen. Bob Dole (R) of Kansas at the time asked the Justice Department to conduct an investigation of Mr. Walsh but was turned down.
More receptivity this time?
"It [criticism at the time] was largely driven by congressional Republicans, so it didn't have the same impact on the public that the current controversy has," says Wake Forest University (Ill.) political scientist Katy Harriger.
But public sentiment is not uniformly against Starr and his probe. Alfred Balitzer, a political scientist at Claremont McKenna College, in Claremont, Calif., doesn't see the need for special oversight of the special prosecutor. "What Ken Starr needs to do is finish up his investigation as soon as possible and be done with it," he says.
Even Starr has expressed concern about the potential flow of information from his team. "If there was an act of unprofessional activity, we will find it out," he vowed recently.
Contacted about the status of that internal investigation, Starr's office would not comment.
Some critics of the independent counsel statute say the real value of the cry for oversight is found in drawing attention to needed reform in the law when it comes up for renewal next year.
Some members of Congress are suggesting that the office of the independent counsel should be restricted by limiting the funding, curbing the scope of the investigation to a single charge, and setting limits on who can be investigated.