Starr tactics renew debate on role of special counsels

When Congress changed the job title of "special prosecutor" to "independent counsel" in 1982, it did so for a reason.

The idea, say legal experts, was to make clear that these investigators were not just prosecutors "out to get" a targeted government official.

Rather, the point was to make sure the investigator behaved in a neutral and independent manner, just as interested in showing innocence as in demonstrating guilt.

"Ironically, Archibald Cox [the first Watergate special prosecutor] was much more an independent counsel than a special prosecutor in his approach to the job," says Ken Gormley, a law professor at Duquesne University in Pittsburgh and author of a new biography about Mr. Cox.

And, he continues, Kenneth Starr, the independent counsel investigating President Clinton, is behaving much more like a "prosecutor" than an impartial investigator.

Whether or not Mr. Starr has overstepped his mandate is open to interpretation. The resignation last Friday of Sam Dash, Starr's ethics adviser, over the independent counsel's testimony before Congress boosts the White House argument that the former judge was overzealous.

But if nothing else, the world of independent counsels, post-Starr, will never be the same. After next June, there may not be any more independent counsels, if Congress chooses not to reauthorize the law. At the very least, experts expect changes to the law to curtail the ability of these special counsels to investigate almost without limit.

In the meantime, though, Attorney General Janet Reno has the ability to call for the appointment of three more independent counsels in the next two weeks: one to investigate Vice President Gore's fund-raising practices in the 1996 campaign; another to investigate whether former White House aide Harold Ickes committed perjury over involvement with the Teamsters Union; and a third to look into Clinton's use of campaign funds for television ads in the 1996 campaign.

A decision is due today on the Gore matter. The Ickes decision is due Nov. 30. And the Clinton matter will be decided Dec. 7.

If new independent counsels are appointed in any of these cases, especially those involving the president and vice president, they will face a brave new world of heightened attention to tactics, any perceived impartiality, and their own political backgrounds. After what Starr has been through, his supporters ask, why would anyone be willing to take on such a role?

STARR'S critics say he has brought such opprobrium upon himself, by allowing his prosecutors to use tactics that, even if allowable, didn't play well - such as forcing Monica Lewinsky's mother, Marcia Lewis, to testify about her daughter and then threatening to prosecute Ms. Lewis in order to get Ms. Lewinsky to cooperate.

In an odd way, the resignation letter of Mr. Dash, a Democrat who has advised Starr on ethics, serves as a seal of approval on everything Starr and his team did before his testimony before the House Judiciary Committee last Thursday.

"My decision to leave has nothing whatsoever to do with the many unfounded and misinformed attacks on your conduct as independent counsel," Dash wrote last Friday.

What led Dash to resign was Starr's decision to appear before the committee and, Dash wrote, "serve as an aggressive advocate for the proposition that the evidence in your referral demonstrates that the president committed impeachable offenses."

Some legal experts have questioned why Dash would make a distinction between Starr's decision to advocate impeachment in his report to Congress - called the referral - and his willingness to do the same in a live appearance before the judiciary committee.

Others note that, when invited, Starr had to appear before the committee under the rules of the independent counsel statute. Committee Chairman Henry Hyde (R) of Illinois said he would have subpoenaed Starr if he declined to come voluntarily. But what's at issue is Starr's testimony in the chamber.

"It's perfectly acceptable to go and respond to questions," says Stephen Saltzburg, a law professor at George Washington University here.

But, he continues, "no prosecutor's job is to go out and make a public argument about someone having committed crimes. It's even questionable whether he should have put in all the details in the report he submitted, as opposed to simply referring to the charges."