For the next three weeks, Congress will debate whether to renew the Independent Counsel Act. Since the Iran-Contra scandal in the mid-1980s, Republicans have opposed the law, and after Kenneth Starr, most Democrats have become opposed to it also. Allowing it to lapse is the right choice.
On June 30, the independent counsel law will expire if it is not specifically renewed by Congress. While the Starr investigation allowed most Americans to see the inherent problems with the law, many representatives and senators have been urging its removal for years. The law was created after the Watergate investigations, during which then-President Richard Nixon summarily dismissed his prosecutor, Archibald Cox. The law makes it such that the only person with the power to dismiss an independent prosecutor is the attorney general. It also gives the power to appoint the counsel not to the attorney general, but to a panel of three federal judges. While well-intentioned, the law creates many more problems than it fixes.
The biggest problem with the law is that the independent counsel answers to no one. The U. S. government is set up with checks and balances, and the independent counsel law subverts the basic principle of the system. If Attorney General Janet Reno does not appropriately perform her job, Congress can impeach her, as they have sometimes threatened to do. But if an independent counsel abuses her power, it is almost impossible to remove her. Theoretically, the Department of Justice could call for her removal, but to do that would require yet another independent counsel and another investigation.
The independent counsel law has also spawned many ridiculous, yet costly, investigations. For instance, one independent counsel spent a great deal of time investigating whether an aide to Jimmy Carter had used drugs. Perhaps illegal, but hardly a matter of national security, and also nothing the Department of Justice couldn’t handle.
Allowing the law to expire would not mean that only the Department of Justice could investigate the president or any of the other more than 70 offices covered by the law. If the Department of Justice feared it would not be able to investigate an allegation fairly due to political pressure or any other reason, it would still have the option to appoint an independent counsel, who could be fired by the president. However, any president who followed the course of Nixon would be presumed guilty by the public. Because of the possibility of impeachment, it is unreasonable to believe the attorney general, faced with disturbing allegations of wrongdoing, would refuse to appoint an independent counsel.
These days, there are few issues about which both the Republican and Democratic parties agree. While it may have taken a combination of both Iran-Contra and Monica Lewinsky to get Republicans and Democrats to agree, the time is right to let the independent counsel law die. If necessary, an investigator outside the Department of Justice can be assigned, but no longer will an investigator have almost absolute investigative power over any U. S. citizen. The law was created to guarantee an additional measure of accountability for our elected officials. Unfortunately, it created an unelected position with no accountability at all.