The independent counsel statute is up for renewal this year but given the charges of abuse by Ken Starr and other prosecutors, many in Congress appear ready to scrap the law. Two legal experts and two former independent counsels debate what should be done with the law, following a background report by Kwame Holman.

MARGARET WARNER: Joining me now are two former independent counsels who also testified today: Former US Attorney Joseph diGenova examined allegations that Bush administration officials abused their access to passport files, and retired Judge Curtis von Kann investigated longtime Clinton associate Eli Segal for conflict of interest while he was head of Americorps. Neither probe resulted in any indictments. We also have with us two constitutional law professors: Ken Gormley of Duquesne University's School of Law; he recently wrote an extensive "Michigan Law Review" essay on reforming the independent counsel statute; and Kathleen Sullivan, who this week was appointed dean of Stanford University's School of Law. Congratulations, Kathleen.

KATHLEEN SULLIVAN: Thank you very much, Margaret.

MARGARET WARNER: Joe diGenova, today you argued very vigorously for scrapping this entire law. Make the argument for us.

JOE DI GENOVA: Well, I think it's Griffin Bell's argument. We survived just fine without this law for 200 years -- when we had a true constitutional crisis involving alleged abuses of power by a president of the United States, Richard Nixon, when a prosecutor was fired by the president, a regulatory special counsel was appointed. His name was Leon Jaworski; he conducted a thorough investigation without this statute, which led to the resignation of the president of the United States and the successful prosecution of a number of high level government officials. The bottom line is that the statute creates an incredible concentration of power with a very low triggering mechanism in the hands of someone who is completely unaccountable. It doesn't matter who's occupying the office, how good they are, or what their background is. In our constitutional scheme, that is a dangerous combination of factors, and what we ought to do is to allow the Justice Department to investigate thoroughly and, if they have a conflict, allow the attorney general to appoint someone. We've done it before, we don't need this statute to have it done correctly.

MARGARET WARNER: Judge von Kann, you argued today before the same senate panel that this law needs to be preserved in some fashion. Why?

CURTIS VON KANN: Well, Margaret, I think we have to recognize that this is a difficult problem, there's no perfect solution. We did survive for 200 years without it, we could survive again. But we had quite a crisis at the time of the Watergate proceedings, and for a while it was very unclear how it would come out. And, ultimately the congress and the country embraced this sort of mechanism. I think it has generally worked quite well. There have been 20 independent counsel and really criticism of only three or four. The work of the other 80 percent has been found acceptable, and that's a pretty good record in this controversial area. I think there's an advantage to having some mechanism in place so that everyone knows what the rules are and what the process is so that when the crisis blows up again, as it will at some point, we don't have to sort it out by an extemporaneous solution, we've worked out a solution in advance. No solution is perfect, I agree with Joe, this one has some drawbacks. But I think a carefully retooled independent counsel statute is on balance an asset.

MARGARET WARNER: Ken Gormley, you've also written in support of reforming it. Why do you think something like it is needed? What's wrong with the solution that Griffin Bell and Joe diGenova have just talked about, about going back to the old system?

KEN GORMLEY: Well, the old system, Margaret was the whole problem. The reason congress passed the independent counsel statute after Watergate was that President Nixon fired Archibald Cox, there was no machinery in place. And if you look at the history of that, Margaret, you would see that President Nixon came very close to aborting the whole Watergate investigation at that point. There was no mechanism in place, as Judge von Kann referred to. Nine days later, Congress sat down, Democrats and Republicans and decided we need something in place to deal with this extraordinary crisis where you have the president or some other top official in the executive branch being investigated by his own attorney general. And in Watergate, of course, the attorney general was part of the problem, was funneling information to the White House. I agree that there are lots of problems with this statute, I think all of us on this panel agree with that. I think we have to be very careful about scrapping it on the heels of a very difficult and divisive crisis like this scandal like the Lewinsky scandal. We have to sit back and make sure we don't do more damage by just getting rid of it and going back to the old system that caused the public mistrust and caused the problems in the first place.

MARGARET WARNER: Kathleen Sullivan, how would you address this question? I mean, the original issue was public mistrust. Do you need an independent counsel statute to address that?

KATHLEEN SULLIVAN: I don't think so, Margaret. I would agree with Joseph diGenova and Attorney General Bell that the best solution here is to scrap the statute -- let it lapse, don't try to rearrange the deck chairs on the "Titanic", let it go down. And I would say that it's essentially for the reason we are a system of checks and balances, and this is an office that is unchecked and unbalanced, and I think in answer to your question, it's really unnecessary. The answer to a great constitutional cataclysm like the Watergate events is public scrutiny, a free press, congressional oversight, and ultimately the political safeguards of the impeachment process. And for low-ranking officials, the Department of Justice has done an admirable job of pursuing public integrity prosecutions and avoiding public corruption in government, so for high-ranking official, the free press and congress are good enough, for low-ranking officials, the Justice Department is good enough, and special prosecutors appointed within the Justice Department will be fine without this statute. We will do fine without this statute.

MARGARET WARNER: But staying with you, what's so terrible about keeping this statute?

KATHLEEN SULLIVAN: Well, no matter how much you tinker with it, if you cut back the time, the budget, restrict the scope of the jurisdiction of the independent counsel, anytime you're working backwards from the person to the crime, rather than as ordinary prosecutors do from the crime to the person, there are all the bad incentives that were talked about today, the incentive to be too zealous, to be unfair, to not take account of what the public thinks are the most important problems really warranting this kind of great public expense.

MARGARET WARNER: Judge von Kann, what about that point, Justice Scalia in the Supreme Court opinion that upheld this law in 1988, he dissented, as you know, he raised that question that the independent counsel statute really creates a mechanism that then goes after one person in search of a crime. Can you retain the independent counsel statute, as you'd like to do, and not have that happen?

CURTIS VON KANN: Well, I think that's somewhat overstated. When any of us are appointed independent counsel, we aren't told go look into X's life and see if you can find any crimes. There's a specific matter referred to in the appointment order, and it's usually fairly limited. I think in many cases the problems have been an independent counsel who expanded their jurisdictions into a lot of other areas. I think if you stick to the assignment you're given, it is not any different really than many other prosecutors having a particular matter brought to their attention that they have to investigate.

JOE DI GENOVA: I think the problem is I don't necessarily disagree with what Curt just said, but inherent in the statute is this focus, this targeting of a particular individual to the exclusion of all other work. You know, in a regular US Attorney's Office, a US Attorney has to make choices, how many investigations they can pursue, how deeply they can go into something. And the reason is they have a lot to do, they have a lot of cases. When you give an independent counsel one case, and give him or her the resources necessary to do it, you must allow them to do their job. And if they're going to be competent and fair to their mandate, they have to investigate. That is a prescription for a kind of intrusiveness that the Congress would never tolerate if it involved itself. I think what's important to understand here is that the basic federal investigative process is tremendously intrusive as a whole. When you focus it on one person with one investigator for one crime, you create a danger that is unacceptable in our form of government, and you strip the constitutional balance away from the individual and the state. It's just not a very good idea.

MARGARET WARNER: Mr. Gormley, how do you respond to that intrusiveness argument?

KEN GORMLEY: Well, I agree that that's true in the large run of these cases. I think that we could have had a statute built by this framework and have it apply only to a couple of the most extreme cases. I think that's what Congress envisioned when it passed, or when it debated this thing at least in the first place. So, yes, we all agree, I think, that you shouldn't sick this person on a target and just let them go. One of the big problems with the way this statute has developed has been that we have no leash on the independent counsel. And when Congress devised this, it was specifically concerned about putting a jurisdictional limit on this independent counsel and saying you can only go this far. Unlike any other prosecutor, this is your job and that's as far as you can go.

MARGARET WARNER: So what - let me interrupt for a second - so what you would do if you were going to try to fix this law and restore some of those leashes, what would be the three most important-- we can't go through all of them-- but the three most important things you think would have to be done?

KEN GORMLEY: Well, the first thing with respect to the independent counsel himself or herself, there should be a presumption against expanding jurisdiction. We have seen that an independent counsel as in the Starr investigation who acts aggressively can expand jurisdiction from Whitewater to Lewinsky, totally unrelated fairly easily. That's completely contrary to what congress intended. We should narrow the list of the people covered by the statute to just a couple, president, vice president, attorney general. All the rest I agree with Professor Sullivan can be and should be handled by the Justice Department, and make the threshold very high so it's very hard to trigger this mechanism in the first place. Finally, the special court Congress I think envisioned, someone has to mind the store, Margaret. And I think everyone realizes that having an unaccountable fourth branch of government is bad, is wrong, is unconstitutional. Well, the someone who congress envisioned was this special court. At least they have to be able to have some rules and some procedures to follow so that they can keep the independent counsel in check. I think that that has completely collapsed, and I think that some rules and procedures have to be established or otherwise I'd agree with all the other panelists. If there's no rules and if there are no checks on the power of this court, I'd say junk the statute myself.

MARGARET WARNER: Kathleen Sullivan, would those kind of checks work?

KATHLEEN SULLIVAN: They're not enough. I think Mr. Gormley's very reasonable suggestions can't cure the statute of the fundamental taint, which is it is not accountable to the people or the person in the office is not accountable to the people, and there's an inevitable taint of partisanship that has infected this process. It was a noble idea 20 years ago but it turned out that in some sense the cure has been worse than the disease. But if you're going to fix it, there's one important I'd add to Mr. Gormley's list. You've got to take the impeachment referral power out of it. We saw --

MARGARET WARNER: You mean a referral to Congress.

KATHLEEN SULLIVAN: The referral to Congress. Congress should handle it impeachment investigation proceedings separately from the Executive Branch, and having the independent counsel send the reports over to Congress is one of the most dangerous features of the current statute.

KEN GORMLEY: I agree with that.

MARGARET WARNER: Judge von Kann, pick up on something Kathleen Sullivan just at least eluded to, which is this was designed to take politics out of the process of prosecuting against allegations of high political officials. Is that possible, or did we just substitute a different kind of politics?

CURTIS VON KANN: Well, I think anytime you have a highly-charged case, the investigation is going to be controversial, whether it's done by a prosecutor appointed under this act or a special prosecutor, as Jaworski was. That was a controversial matter as well. I think Professor Gormley's suggestions are good, I'd add two more. I would suggest that when a president takes office he would send to the -- he or she -- to the Congress a list of 10, 15 names of proposed independent counsel, and that those would be subject to Senate confirmation. And once that list is compiled, future selections would be made from a list which has been in effect blessed by the White House and Congress. I think that would do a lot of depoliticize the selection of counsel. And with this, Joe and I have a disagreement. I would also put a time limit on the performance of independent counsel. I don't think we can allow these investigations to go on for seven and nine years, as some of them have. I think at some time you have to draw an arbitrary time limit. I would make it two years. And I know that would require in some cases that people work real hard and fast and deal with some obstructionist tactics and go to the court quickly to get relief, but I think it could be done and the courts could help do it if they realized there was a time limit ticking.

MARGARET WARNER: All right. What do you make of all these suggestions, Joe diGenova, to mend it, to fix it?

JOE DI GENOVA: I don't think they'll work, and I think Congress has made that decision. And the reason is, is the one that you gave is really the fundamental issue. The criminal justice investigation process should not be political. When you have this statute sitting there to be used for high-level government officials, which has a very low triggering mechanism which forces the attorney general to seek the appointment of an independent counsel unless she can certify no further investigation is required, that trigger is so low, that what it does is, it allows members of congress to use the committee process to make political allegations of criminality, for the attorney general's hand, create the atmospherics around the charging process that are absolutely the antithesis of what we need in a constitutional structure. You cannot fix that. And if you put limitations on like time and budget, people will then delay the investigation, obstruct it. I think what Senator Cleland today said was the thing that struck me most; he said, you know, he said, as the drunk said on the "Titanic", I wanted ice with my drink, but this is ridiculous.

MARGARET WARNER: All right. On that note, we'll end it there. Thank you all four very much.