Long before anyone knew about Monica Lewinsky, the independent counsel law was under fire. Democratic defenders of President Clinton were angered by Kenneth Starr's probe back when "Whitewater" was a headline. Republicans blasted the system during Iran-Contra.
Now the law has taken a direct hit with the acquittal last week of former Agriculture Secretary Mike Espy. The jury rejected multiple charges that Mr. Espy had illegally taken gifts from companies with an interest in his department's policies. The charges were brought by independent counsel Donald Smaltz.
Mr. Smaltz argues, with some force, that his investigation garnered more than $11 million in penalties from companies that made gifts to Mr. Espy and sent a signal that such currying of official favor won't be tolerated. But the prosecutor spent $17 million over four years and in the end had nothing that would stick against his main target.
Espy, decrying his ordeal at the hands of Smaltz, wants to be the lead witness when Congress considers extending the Ethics in Government Act next year. That law, passed in the wake of Watergate, provides for highly autonomous independent counsels who can't be fired by the executive branch. Indeed, their freedom to spend time and money, and to expand their mandates, underlies a growing consensus that the law should be overhauled, or simply scrapped.
This task demands care. The law has had a mottled history, sometimes applied too broadly, sometimes not broadly enough. (We would still like to see an independent counsel probe 1996 White House fund-raising practices.) But its fundamental purpose is sound - to ensure that charges against high federal officials can be investigated free of political interference.
Fixes like retaining independent counsels but limiting their budgets or scope of inquiry are problematic - how do you arbitrarily limit prosecutors and still let them do their jobs? Perhaps a permanent office of independent counsel could be placed within the Justice Department, with a director appointed for a long enough term (like the Federal Reserve chairman) to insure real independence.
Remember, the misdeeds of Watergate were laid bare without today's free-ranging independent counsels. That's not an argument for doing away with all provision for such prosecutors. It does suggest that their expansive powers under the current law - which encourage prosecution no matter how slight the prospect of conviction - can safely be reined in.
But, certainly, the ethical awareness that shaped the law must be preserved, even if the statute isn't.