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Our presidential historians, joined by Professor Katy Harriger, offer some historical perspectives on the role of the independent counsel.

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JIM LEHRER: The unique role of the independent counsel. Kwame Holman begins.

KWAME HOLMAN: Earlier this week Attorney General Janet Reno called for the sixth independent counsel to investigate potential wrongdoing by a Clinton administration official. Once named, the newest prosecutor will examine Interior Secretary Bruce Babbitt's sworn statement that there was no improper political influence involved in his department's decision to reject an Indian casino application. Indian tribes who oppose the casino contributed heavily to the Democratic Party. At a confidence-building gathering of department employees this morning Secretary Babbitt repeated what he told two congressional investigating committees; that he did nothing wrong.

SEC. BRUCE BABBITT: Something really is out of whack in this system of ours where we--simply say the facts will not suffice and we will pile one investigative process on top of another, and we'll just keep going endlessly on and on and on. The system is clearly--the times are out of synch, and so is the system.

KWAME HOLMAN: Over the last 20 years there have been 18 independent counsels who have spent more than $130 million. It was President Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox that prompted Congress to pass the Ethics in Government Act, which includes the independent counsel statute. The longest running independent counsel probe was Lawrence Walsh's seven-year, $47 million investigation of the Iran-Contra affair. That involved allegations the Reagan administration sold arms to Iran and used the proceeds illegally to fund the Nicaraguan Contra rebels. Walsh won 10 convictions, including that of National Security Aide Oliver North, although North's conviction later was overturned. Six others ultimately were pardoned by President George Bush. Current independent counsel investigations have produced indictments of former Agriculture Secretary Mike Espy for allegedly accepting gifts from a lobbyist representing an agriculture company and of former Housing & Urban Development Secretary Henry Cisneros on charges he lied about payments he made to a former mistress. Kenneth Starr was appointed in 1994 to replace Robert Fiske, who had begun investigating then Governor Bill Clinton's and Mrs. Clinton's real estate deal known as Whitewater. Over the last four years Starr's investigation has been expanded to include the suicide of former Deputy White House Counsel Vincent Foster, the firing of the White House Travel Office staff and how FBI files of permanent Republicans were used by the Clinton White House. On January 21st, it was revealed Starr was looking into charges President Clinton had encouraged former White House intern Monica Lewinsky to lie about an affair the two are alleged to have had. The latest investigation has intensified criticism maintained almost from the outset by the President that Starr is running a partisan vendetta.

JIM LEHRER: But you personally believe that that's what this is all about, is to get you and Mrs. Clinton?

PRESIDENT CLINTON: It's it obvious?

HILLARY RODHAM CLINTON: The great story here for anybody willing to find it and write about it and explain it is the vast right-wing conspiracy that has been conspiring against my husband since the day he announced for President.

JAMES CARVILLE, Democratic Political Strategist: This is a scuzzy investigation. And I guarantee you one thing; that when the facts come out, people are going to be repulsed by this.

KWAME HOLMAN: But Starr's supporter say his investigations, including the Lewinsky matter, are justified. Federal Appeals Court Judge Alex Kozinsky has known Starr for 22 years since the two were law clerks together at the Supreme Court. He told NewsHour correspondent Spencer Michels in San Francisco it's doubtful Starr has become overzealous.

JUDGE ALEX KOZINSKI, Federal Appeals Court: You put scruples and honesty, integrity above everything else. I've known him professionally; I've known him personally; I've known him big things and little things; and I've known him--I've never known him to be anything but straight. That guy thinks about whether it's the right thing to do before he thinks about anything else. Certainly, in his work as a judge, certainly his work as a lawyer, there's no ideology.

KWAME HOLMAN: Like the probes of other independent counsels, Kenneth Starr's investigation of President Clinton has no time limit and no precise cap on funding.

JIM LEHRER: Now, the overview perspectives of NewsHour regulars Presidential Historians Doris Kearns Goodwin and Michael Beschloss; author/journalist Haynes Johnson, joined tonight by Katy Harriger, professor of politics at Wake Forest University, who's written extensively on the independent counsel. Doris, first, remind us of what the general reasoning was behind--we know it began, as Kwame said, during the Nixon administration, but what was the premise on which independent counsels were created?

DORIS KEARNS GOODWIN, Presidential Historian: Yes. I think it's so important to recreate the drama of that moment because we just sort of shorthand it when we say the Cox massacre that night. What had happened is after Attorney General Mitchell was indicted and Richardson was about to be nominated as a new attorney general, the Congress required him to appoint a special prosecutor before they would send his nomination forward. He appointed Cox, who interestingly was a Democrat and the Republicans were upset to some extent that he had once worked for John Kennedy and that his partisanship might be too clear. So this has always been a problem. But he, instead, went and was very discreet, worked very slightly during the summer, but then he was the one who found about the tapes, the tapes come forward, he goes to Judge Sirica to get an order for those tapes to be released, and Nixon refuses to release the tapes until finally he makes an agreement saying he'll release a summary of the tapes and Sen. Stennis will decide whether it's a real summary or not. Cox then refuses that agreement, goes to a defiant press conference at which point Nixon orders the Richardson--the attorney general to fire him. He refuses to fire him and then he resigns, himself, so then it goes down to Ruckelhaus, the next guy. Ruckelhaus refuses to fire him, and he is fired, himself. Finally, they get to the solicitor general Bork who does agree to fire Cox, and that produces an outrage in the country and in the Congress who begins to introduce the articles of impeachment and even begin to introduce a bill which is so incredibly interesting to take the attorney general out of the President's cabinet and put him in the judiciary, which is where the framers originally thought of maybe putting him. They wanted an independent person in the judiciary but they put him in the President's cabinet, and they introduce an independent counsel bill. Finally, they get a special prosecutor, and that is Jaworski--and Nixon accepts that he will come back; he turns the tapes over; Jaworski does a very good job. But that anger is still there, and several years later the independent counsel law is born out of the whole Nixon fiasco. Sometimes they say hard cases make bad law. In this case this drama did, in fact, create probably a bad counsel law.

JIM LEHRER: And, Professor Harriger, the idea, the premise was that an administration cannot investigate its own wrongdoing, is that it, that's what came out of that, and that's what has guided this ever since?

KATY HARRIGER, Wake Forest University: Right. I mean, the presumption was that there was a conflict of interest any time the attorney general had to investigate his superior or her superior. And by extension, the assumption was that really any time they had to investigate someone in the executive branch, where there might be some political fallout or damage, with those allegations that they had a conflict of interest.

JIM LEHRER: And in the Nixon case there were allegations that the attorney general was, in fact, too political to do this; that they really did have to have an independent counsel of some kind?

KATY HARRIGER: Well, sure. I think that Klindinse, Richard Klindinse, was alleged to have been feeding information to the White House about the investigation that was going on, and, of course, he was part of that first group of people that was forced to resign. And so there was some real distrust of the Department of Justice generally as a result of that.

JIM LEHRER: As a matter of history, Michael, how did these kinds of things get resolved before Nixon, before there was, in fact, special prosecutors and independent counsels?

MICHAEL BESCHLOSS, Presidential Historian: It tended to be done within the Justice Department. And they didn't oftentimes do a good time. One example is the administration of Harry Truman, who we think of rightfully as a very honest President and almost the incarnation of integrity, but we sometimes forget that in the late Truman administration there were serious allegations of fairly high level corruption and influence peddling. Truman actually got his attorney general to appoint someone to advise him on what should be done. The attorney general didn't like it and actually dragged his heels, and so that nothing really was done against the people who were possibly responsible for this corruption. The same thing happened to an extent in the Eisenhower administration. Dwight Eisenhower's chief person, Sherman Adams, the assistant to the President, equivalent to what we would now call chief of staff, was accused of having taken favors and property from someone with interests in front of the government.

JIM LEHRER: Famous Vicuna coat.

MICHAEL BESCHLOSS: Vicuna coat, absolutely, and free hotel rooms from a man named Bernard Goldfine of New Hampshire. Adams finally had to resign. There was no legal action taken against him. We later discovered that Adams had actually taken hundreds of thousands of dollars from Goldfine, and that was in late 1950's dollars. Had there been an independent counsel at the time, that would have come out, and that would have actually been investigated and gone through the legal process, so the point is before the moment of Cox and Jaworski these things were really not very well done at all.

JIM LEHRER: What do you think of the basic premise behind this, Haynes, that it is really impossible for a Justice Department, anybody's Justice Department, to investigate their own?

HAYNES JOHNSON, Author/Journalist: Well, if you take that point of view, you assume that the system, itself, doesn't work; that nobody's accountable; that you have to have some sort of god-like figure that can create some divine power to solve all of our problems. What it seems to me, Jim, what we've got here is an old American strain, fundamentally at the core of our country is concern over power. That's what our revolution was all about--the abuses of power; and we go through these continual cycles of reform and repression, reform and reaction. And we keep winding up with the question about who watches the watchman. That's where we are today. I suspect most people in this country are wondering how do we get from here to there? All of a sudden we're investigating acts that took place 20 years ago that were not about the acts of a sitting President. We're investigating sexual allegations that may not even be a federal crime, or a crime at all perhaps. And so these things seem to expand and grow and grow like amoebas, and I think there is a real problem about reining in the old American tradition of reining in power. And I think you can investigate yourself if you've got good people. If you don't, there are remedies for it. You remove them, you have extra people, and you can appoint outside counsels without this separate extra-legal group that now seems to be operating.

JIM LEHRER: Yes. Professor Harriger, the key word here is independent, is it not? I mean, that was the whole--that's the whole point of this, that they want something or some person or some group of people are truly independent, cannot be touched by presidents, attorney generals, and others, right?

KATY HARRIGER: Right. I mean, the assumption I think that Congress had was that in order to reassure the public that these investigations were, in fact, impartial that there had to be someone that the president didn't control doing the investigation. And that was the lesson of the Saturday night massacre. The President can't control the independent counsel. And so the independence is the key, I think, or at least Congress assumed it was--the key to having the public be willing to accept the outcome at the end, whether they decide that there is nothing there and that no prosecution is necessary, or they decide that prosecution or, in the President's case, impeachment is necessary.

JIM LEHRER: Now, Doris, some people are arguing now that maybe there's such a thing as too much independence.

DORIS KEARNS GOODWIN: Well, you know, there may be a sense in which it's understandable how after that Nixon problem, there was this impulse to create the independent prosecutor. What's harder for me to understand, however, is that after the experience of that independent prosecutor for the last 15 years, when it came up for renewal in 1994, because the bill had actually expired, creating the one post Nixon, that the Congress didn't spend the time to try and figure out, okay, we've lived with this thing for 20 years, what's gone right with it, what's gone wrong? Maybe it shouldn't have an unlimited budget; maybe it shouldn't be able to target people without having enough of a bill of particulars to begin with. Maybe there has to be some absolute clarity that the person is independent and doe have a partisan kind of cast to it because it's lost some of its legitimacy. You figure they could have done something. In fact, it's interesting because President Bush begged, or so I understand, Clinton not to sign the reauthorization. But at that point it had been mostly Republicans that had been hurt by it, and I think Clinton problem caught in the middle of a campaign where he had been a fan of the independent counsel did go for it. But you would hope that at least this whole mess that we've got now would make them say when it comes back again in 1999, do we want it in this form, do we need it? Michael's right. We need something perhaps more independent than a special prosecutor, but I don't think we need this thing now. It's become permanent embattlement. It's led to cynicism about the country, about the government, lack of proportion, Whitewater versus campaign finance, the latter, really important, got no outrage because we were so tired of Whitewater. Something's amiss.

JIM LEHRER: But, Haynes, back to your point, that some people would argue that cynicism or the lack of faith and confidence in the government requires that there be something independent.

HAYNES JOHNSON: There's no way--

JIM LEHRER: An attorney general or a president could get away with it--

HAYNES JOHNSON: Yes, it is, Jim, and the paradox is that what we're seeing now is going to sow more cynicism about unchecked power, looking into this and that, and how do we get from here to there. There are some simple remedies to this situation. Archibald Cox, for whom all of this flows, Lawrence Walsh was Iran-Contra prosecutor, are arguing that you can radically shrink the power of this act. You can limit it to specific acts, crimes that were supposed to have been alleged to have been committed during an act of the public office of three named people, only three people: the president, the vice president, and the attorney general. You can limit the money and the time and go for that and then reach a resolution. That seems to me reasonable.

JIM LEHRER: But, Michael, the idea behind this is that the confidence of the American people is what this whole thing is about.

MICHAEL BESCHLOSS: That's--

JIM LEHRER: All right. Lawrence Walsh, which everybody's talked about, Iran-Contra, became a very controversial person. And when he came out with his report, it was torn apart politically, just like any other political document. Kenneth Starr's in the middle of a political storm now, as much as a legal storm. What's the difference?

MICHAEL BESCHLOSS: That's the problem, because this was always a critique of what had happened to attorneys general and the Justice Department. Could Robert Kennedy, for instance, have investigated his brother if there was a serious charge against John Kennedy when he was attorney general? Pretty doubtful. Could John Mitchell, Nixon's former campaign manager, have done the same? Also pretty doubtful. But now there is the same kind of cynicism growing about the independent counsel. Take Lawrence Walsh--investigated Iran-Contra, yet, three days before the election in 1992, when Bill Clinton and George Bush in some polls were neck in neck, the Friday before the election, Lawrence Walsh releases information that suggests that George Bush had not been truthful about Iran-Contra. From that moment, Bush's poll numbers began sinking through that Tuesday. Many Bush people feel that Walsh's timing helped them lose that election. Now there is a lot of cynicism about Kenneth Starr, whether he has a similar political agenda from the other side. So, oddly enough, we now have a mirror image of the old charges about attorneys general.

HAYNES JOHNSON: Jim, just listening to Michael, it seems to me what we have is the question of discretion and judgment. That's at the heart of whomever is going to be appointed to any of these jobs. You have to rely upon their good judgment and care with which they apply the law, particularly with the power to investigate elements that might shake and affect the direction of the country.

JIM LEHRER: Professor Harriger, you've studied this thing. Have you--can you figure out a way through all of this that it might work and do all the things we've been talking about, give it a fair and non-political investigation of legitimate charges against people in power and then have results that would be welcomed, or accepted by the American people?

KATY HARRIGER: Well, you know, one of the ironies, I think, of the history of its implementation is that in all the cases where you did have, I think, public acceptance of the outcome were really cases where the public had really very little knowledge. So most of those 18 cases are pretty much off the public's radar screen, and it's really Iran-Contra and Whitewater where you actually have some recognition of the significance that--

JIM LEHRER: Let's go through some of that. For instance, you're talking about even the Espy case and of course, that has not been resolved yet.

KATY HARRIGER: Right.

JIM LEHRER: Cisneros has not been resolved.

KATY HARRIGER: Right.

JIM LEHRER: What are some of the others that you would mention on your list?

KATY HARRIGER: Well, there were two investigations of Ed Meese, one of which got some attention because it came up during his confirmation process, but the other really very little; an investigation of Michael Deaver, an investigation of Lynn Nofsiger, both of whom were prosecuted. Way back into the Carter administration was two allegations of cocaine use. So really pretty minor cases that didn't get very much attention outside the beltway and which were resolved fairly quickly and where the outcome was widely accepted by people who were paying attention as impartial. So the two cases where you get the real controversy and you realize the real political nature of this office involve the President. I think that the idea that we should shrink its coverage significantly is a good one, but frankly I don't think the republic would fall apart if we didn't have one. I think the history suggests that when the public's sufficiently upset and concerned about impartial investigation and when the press is helping the public feel that way, that you do get independent counsels appointed even without a statute.

JIM LEHRER: Yes. Do you have a feeling, Doris, that this is going to change?

DORIS KEARNS GOODWIN: I do think so now. I mean, I think certainly when it comes back up again in 1999 for debate, this widespread sense, I think what's really fueling it this time too is when special prosecutor Cox was working on the early Watergate stuff, there were very few leaks that came out of his office. It was pretty quiet, as I said, that summer, until the tapes thing exploded. And I think what you've got now is this incestuous combination between the media, the leaks, and this independent counsel and even the political process that may be leaking on their side. So we've got this fourth branch. It used to be said that the media was the fourth branch. Now, this sort of independent counsel is like the fourth branch. Somewhere there has to be some limits on the discretion that's used and the quiet that is--or the secrecy that is employed. People's lives are being destroyed by this thing right now, and it's not only Starr's fault; it's the process, itself, that's gotten screwed up. So I think hopefully we're not going to--if this thing comes to some resolution, we're not going to forget how badly we felt about it and just say, okay, let's go on and reauthorize it because it's easy.

JIM LEHRER: Okay. Well, look, we have to leave it there. Thank you all four very much.

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