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Reform Gone Awry

Bill Clinton has one thing right: The independent counsel statute was a bad idea.

12:00 AM, Jun 23, 2004 • By TERRY EASTLAND
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BILL CLINTON'S book release is giving him more chances to take shots at the man who spent five years investigating him, Kenneth Starr. Starr resigned in 1999. That same year the independent counsel law, under whose authority he worked, was allowed to expire.

Whatever you may think about the charges that Starr was asked to probe, or about the investigations themselves, the demise of the independent counsel law was a welcome event. The law had proved a classic case of reform gone awry, and when the time came to legislate its extension in 1999, few in Congress were willing to speak on its behalf.

Congress first passed the law in 1978, with fresh memories of Watergate and President Nixon's firing of the special prosecutor he had named to conduct the probe, Archibald Cox. Cox wanted tapes of the president's conversations with aides--tapes, the world would later learn, that implicated him in the cover-up of a so-called "third-rate burglary" of Democratic offices in the Watergate complex.

President Nixon declined to hand the tapes over, but Cox won a court order directing him to do so. When the president refused to comply, Cox announced that he would seek to have the president held in contempt. President Nixon then ordered his dismissal.

To many in Congress, the firing taught that outside prosecutors needed enough independence from an administration so that they could truly probe charges of misconduct. The independent counsel law took the appointment power away from the executive and lodged it in a special court even as it also sharply limited the president's authority to remove the prosecutor.

Those provisions contemplated a more relentless pursuit of executive malfeasance than had been seen before in our politics.

During the law's 21 years, the Justice Department conducted more than 40 preliminary investigations of alleged misconduct and concluded that at least 20 charges merited "further investigation" by a court-appointed counsel. A number of individuals were indicted and some convicted. And Bill Clinton became the subject of an extraordinary impeachment referral sent to the House of Representatives by Starr.

During the Clinton years, people once enamored of the law found themselves recalling what President Gerald Ford's wise attorney general, Edward Levi, had said back in 1976: that the law would create opportunities for "actual or apparent partisan influence in law enforcement," publicize and dignify "unfounded, scurrilous allegations," result "in the continuing existence" of a "multiplicity" of independent counsels, and promote "the possibility of unequal justice."

Levi failed to add that the law would weaken presidencies to an extent not contemplated by the original constitutional design.

The law would still be on the books today had Democrats not had a change of heart. Mainly Democrats pressed for its extension in 1983, 1987, and 1994.

Not until a Democratic president actually experienced the probings of a "multiplicity" of independent counsels did Democrats lose their enthusiasm for the law. In December 1996 Bill Clinton, regretting that he had signed the 1994 extension, said the costs of the law had come to outweigh its benefits. A self-interested statement, you could say, but he was right.

Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.