Amid widespread criticism surrounding the high-profile investigation of President Clinton by independent counsel Kenneth Starr, sentiment is growing in Congress to allow the 20-year-old independent counsel statute to expire.
The prospect of abandoning the law in June raises important questions of how investigations of high-level executive branch officials will be carried out in the future.
"If we don't reauthorize it, there will come another Watergate or Iran-contra," and the law "would be replaced in one fashion or another by something else," says John Douglass, a University of Richmond law professor and former independent counsel lawyer.
As Senate hearings on the statute opened yesterday, experts and senators from both parties attacked the Watergate-inspired law as costly, ineffective, and overly broad. The law has been detrimental to its goal of better government ethics, they said.
"I long ago concluded that this statute is unworkable ... and represents very poor governmental policy," former Attorney General Griffin Bell told hearings before the Senate Governmental Affairs Committee.
There is "a growing feeling" among Senate Republicans and Democrats "that the law ought to expire," said Sen. Mitch McConnell (R) of Kentucky.
"The Independent Counsel Act, while well intended, has been a failure," agreed Sen. Christopher Dodd (D) of Connecticut, noting that the law has cost $150 million for 20 investigations, most of which returned no indictments.
Even backers of the law indicate that its prospects for reauthorization are dim. "There is not a whole lot of support right now out there for it," says an aide for Sen. Carl Levin (D) of Michigan, who favors revising the statute.
The White House and Justice Department have also both indicated the law, at a minimum, needs revising.
Controversy over the statute has existed since it was enacted after the 1974 Watergate scandal in a bid to free investigations of misconduct by high government officials from political interference. The law now requires the attorney general to apply for a federal judges panel to appoint an outside prosecutor when substantial evidence exists of crimes by the president, vice president, Cabinet officers, and top aides in the White House and other key agencies.
Two broad dilemmas lie at the heart of the problems with the statute. On one hand is the question of what balance to strike between the independence and accountability of the appointed prosecutor. On the other is how to grant the attorney general the discretion to make fair and necessary appointment decisions while minimizing the potential for conflict of interest.
Currently, much criticism among members of Congress, former prosecutors, and legal experts centers on the idea that the statute is biased toward granting too much independence to the prosecutor and too little discretion to the attorney general.
Such criticism has grown with the four-year-old, $40 million Starr investigation, but was also directed at earlier probes. Lawmakers "are so upset about Starr, and probably to a lesser extent about me," says Lawrence Walsh, the independent counsel during the 1986 Iran-contra investigation.
As a result, some lawmakers favor narrowing the law's scope. Proposals include:
*Restricting the legal mandate of the independent counsel.
*Limiting the targets of a mandatory investigation to the president, vice president, and attorney general.
*Setting limits on the time and money spent on investigations.
Moreover, critics say the triggering mechanism for the law is too low. They favor making it easier for the attorney general to reject calls for a court-appointed prosecutor to take over a Justice Department probe.
Other lawmakers and experts, however, say the law should be scrapped altogether.
The nation was better served by the system of special prosecutors that existed during previous scandals, they argue. In the Teapot Dome flap of the 1920s, the tax scandal of the 1950s, and Watergate, for example, the president appointed special prosecutors to investigate allegations of wrongdoing by executive-branch officials.
Pressure from the public and media helped ensure such probes were thorough, they argue. "Our system managed to ferret out corruption reasonably well in the 180 years prior to enactment of the independent counsel law; Watergate and Teapot Dome are just two examples," Senator Dodd said.
In returning to the old system, the country might see an increase in the appointment of special prosecutors, according to Kathleen Clark, a legal ethicist at Washington University in St. Louis.
But some influential senators, including Sen. Fred Thompson (R) of Tennessee and Sen. Joseph Lieberman (D) of Connecticut - the ranking Republican and Democrat on the Senate Governmental Affairs Committee conducting the hearings - indicated yesterday that some mechanism would be needed to replace the existing law.
"Can the executive branch be trusted to investigate itself for potential criminal wrongdoing?" asked Senator Lieberman.
While noting the current law is flawed, Senator Thompson also complained that Attorney General Janet Reno declined to seek an independent counsel to probe alleged illegal campaign fund-raising by Clinton and Vice President Al Gore.