Reno's Dependent Counsel

Article excerpt

What will it be like after the Independent Counsel Act expires on June 30? Die-hard critics and defenders of the law alike have assumed that the Justice Department, if confronted with credible accusations against a President or other high-level official and persuaded to appoint an independent counsel on its own authority, would endow that counsel with independence and job safeguards substantially as potent as the 1978 act provided. The availability of a strong appointive independent counsel system, such as that used to name the Watergate prosecutors and the first Whitewater prosecutor, Robert Fiske, is often cited by opponents of the act to show that the act's provision for court-appointed investigators is not necessary.

The Clinton Justice Department has no such vision for July. Attorney General Janet Reno, not content to reverse her glowing endorsement of the law in 1994, has floated new regulations that would authorize her to veto indictments proposed by any counsel she appoints-and to fire the counsel at will.

Existing Justice Department rules promise independence. They give the Attorney General's appointees unbounded authority to bring indictments and require "good cause"-evidence of serious dereliction of duty-to fire them. The new rules would subordinate such appointees, now to be called special counsels, to the status of the ninety-three US attorneys around the country, who serve at the pleasure of the President. Those are ninety-three good jobs, but they are neither independent nor safe. In one of her first acts in 1993, Reno fired seventy-seven US attorneys in a single day because their political party did not please the President.

Some independence. If the proposed new rules, outlined in a letter to Representative George Gekas, the chairman of the House Judiciary Subcommittee on Commercial and Administrative Law, had been in effect during Watergate, the dishonorable firing of Archibald Cox would have been perfectly legal. It was the Saturday Night Massacre that convinced Congress to engrave the independent counsel function in statute law rather than in easily rescinded department regulations.

But don't we all want to tether the independent counsel in light of our ordeal with Kenneth Starr, who now tells us he has always thought the act was unconstitutional? The answer is that significant restraints on Starr's excesses were in place during his entire tenure. Both Justice and the courts simply failed to monitor and police those excesses and conflicts of interest or even to inquire about them. …