February 24, 1999
Kwame Holman has a report on the independent Counsel law, followed by analysis from two legal experts and two former independent counsels.
JIM LEHRER: The independent counsel law: Kwame Holman begins our coverage.
KWAME HOLMAN: The Senate Governmental Affairs Committee called a hearing today because the independent counsel law, which allowed Kenneth Starr and 19 other prosecutors to investigate top federal officials, is about to expire. The committee gathered to consider whether the statute originally enacted in 1978 should be renewed, reformed, or retired. Committee Chairman Fred Thompson of Tennessee voiced the unanimous view among committee members who spoke that the law has problems.
SEN. FRED THOMPSON: I think, as we all know, the Independent Counsel Act was born out of legitimate concern that basically is when the Justice Department is investigating its own or a superior - in the case of the president -- that there is an inherent conflict of interest, and therefore the response was that perhaps we ought to set somebody up who is independent. The only problem with that is that in our system of government nobody is independent. And if somebody is truly independent, they are probably a danger. So we have struggled with the act over the last 20 years, and I think many now are questioning the fundamental concept that the act has been based upon.
KWAME HOLMAN: Michigan Democrat Carl Levin, the principal author of the current independent counsel law, argued some of the appointed prosecutors have abused their powers. He used Kenneth Starr as an example.
SEN. CARL LEVIN, (D) Michigan: We've had an independent counsel, Kenneth Starr, who has spent four and a half years and over $40 million investigating the president, but only 25% of the American people have confidence in his investigation.
KWAME HOLMAN: Other committee Democrats said such problems convinced them the independent counsel statute should be dropped.
SEN. RICHARD DURBIN, (D) Illinois: Four years ago I voted to reauthorize this law. A number of my Republican colleagues came to me and said there had been excessive efforts made under this law that cannot be justified. I thought they overstated the case. They did not. And I sit here today readily acknowledging to the chairman and other members of the panel that I made a mistake in that vote.
KWAME HOLMAN: Mississippi's Thad Cochran was one of many Republicans who warned against passing the independent counsel statute in the first place.
SEN. THAD COCHRAN, (R) Mississippi: It's a temptation to say I told you so. And I'm not going to say it. But when we had this bill up for reauthorization last time, some of us made a very strong effort to amend and to reform and change the proposed bill. But we failed. 29 votes were cast on the floor of the senate in favor of an amendment I authored, and I'm not saying that we ought to go back and resurrect that amendment and pass it, because I'm not sure it goes far enough. We were trying to seek a way to improve the accountability of the independent counsel, whoever that counsel would be, appointed under the statute, and also to have some limitations on budget and other restraints that we thought might be an improvement. But we failed. Here we are again, and I'm leaning toward the position that some have already taken publicly and that's just to let the thing die and let's go back to where we were before we adopted an independent counsel statute. And that's where I lean today.
KWAME HOLMAN: However, the committee's top Democrat, Connecticut's Joseph Lieberman, argued an independent counsel law, in some form, should be retained.
SEN.JOSEPH LIEBERMAN, (D) Connecticut: I just don't think we should walk away from the noble goal that motivated our predecessors in congress to pass the independent counsel statute 20 years ago, namely maintaining the public's trust in our government by providing that the rule of law reaches even to our most powerful leaders.
KWAME HOLMAN: Michigan's Levin suggested several ways to reform to the independent counsel law.
SEN. CARL LEVIN: I believe that we should consider keeping it only if major changes are made such as the following: Requiring selection of independent counsels with significant prosecutorial experience who have had little or no partisan political involvement and no real or apparent conflicts of interest; two, applying the statute only to crimes that are allegedly committed while the person is in office; three, limiting an independent counsel's office to three years, after which time any ongoing investigation would revert to the Justice Department unless the attorney general determined that extending the independent counsel office was essential to the public interest.
KWAME HOLMAN: The committee called on two men with extensive histories with the independent counsel issue. Former Majority Leader Howard Baker was on the senate Watergate Committee, and Griffin Bell was attorney general when the original independent counsel statute was enacted. Both said they opposed renewing the current law.
FORMER SENATOR HOWARD BAKER, (R) Tennessee: I have reluctantly concluded at this time that I am not capable of making a recommendation on what ought to happen. So instead I recommend to the senate, to this committee that we cool it; we think about it for a while; we let the temper of these times subside. There's no absolute urgency in passing anything, and indeed, come June of 1999 and the act expires, there is no national cataclysm, there is no problem that can't be addressed in the ordinary constitutional form. But that does not mean that we cannot continue to address this issue and come up with our best judgment, your best judgment on what ought to happen.
KWAME HOLMAN: Griffin Bell, however, said the statute should be done away with for good.
GRIFFIN BELL, Former U.S. Attorney General: What would be substituted for the statute if it were to expire? Our response is that we would go back to the system that we have always had, and under which the Watergate prosecution was conducted, the Teapot Dome Oil scandal was handled, the Carter peanut warehouse was investigated, and even Whitewater was being investigated by Bob Fiske, all appointed by attorneys general. That was a system we had. It lasted for about 200 years. Nothing terrible ever happened in this country, every problem we had was dealt with. So I think that the Department of Justice is perfectly adequate to handle any investigation.
KWAME HOLMAN: At a press conference this afternoon with the visiting president of Ghana, President Clinton was asked about the independent counsel statute. He said he wanted to wait before offering his opinion.
PRESIDENT CLINTON: I think for right now what I would like to say, because I have been, to put it mildly, closely involved with the operation of the statute, that I think I would like to leave the maximum amount of time for others to make their opinions known and to feel free out of -- without any reference to anything we might say, to do that.