Stop the Independent Counsel Fight

December 19, 1997

Almost six months ago, Sen. Fred Thompson (R-Tenn.), chairman of the committee charged with investigating campaign fund-raising abuses in the 1996 campaign, opened the Senate hearings with a dramatic charge that the Chinese government had conspired to influence the U.S. elections.

Although a provocative start to an inquiry that seemed unlikely to garner much public attention, Thompson’s thunderclap proved counterproductive. It set an inappropriate and impossibly high standard for judging the committee’s work, and it led to the devaluation of the committee’s impressive cataloging of the collapse of campaign finance regulation in 1996.

Last week, Rep. Dan Burton (R-Ind.), chairman of the House Government Reform and Oversight Committee, made a comparable blunder. Intent on relaunching the campaign finance abuse hearings that have been plagued by partisanship and farce, Burton zeroed in on the much-publicized dispute between Attorney General Janet Reno and FBI Director Louis Freeh over whether to appoint an independent counsel to investigate White House fund-raising practices.

Burton’s effort to use Freeh to embarrass Reno and force her to reconsider her decision not to call for an independent counsel failed. The two Justice Department officials expressed their mutual admiration and minimized their differences. Freeh refused to discuss why he favored the appointment of an independent counsel (and supported Reno’s decision to keep his memorandum to her confidential). But he did tell committee members it was not because he believed any particular person had committed a crime. Hardly the basis for holding the attorney general in contempt of Congress.

While the Burton panel’s political agenda was foiled, its failure might well presage a much-needed return to regular order on the investigation and prosecution of potential wrongdoing by high-ranking public officials. The Justice Department inquiry can now proceed at full speed, avoiding the months if not years of delay that would inevitably have accompanied the launching of a new independent counsel.

The visibility of this investigation and the permeability of the Justice Department mean it would be suicidal for the White House to try to influence that inquiry in any way. Strong cases against individuals for violation of laws prohibiting foreign contributions and for using conduits can be mounted to collect information about whether high-ranking officials in the White House, the Clinton-Gore campaign or the Democratic National Committee encouraged or approved this illegal behavior.

Evidence can be collected and weighed by seasoned investigators and prosecutors. Decisions can be made according to standard departmental practices, not by an independent counsel who would be appointed by a judicial panel tainted by ideological bias and who would have an ever-expandable agenda, an unlimited budget, and a strong incentive to bag its prey. This makes a mockery of the underlying rationale for an outside counsel.

The discomforting truth is that the independent counsel statute has been politicized beyond recognition. Designed to ensure a trustworthy investigation of wrongdoing by high officials, it has become the weapon of choice in the partisan wars of Washington.

When a Republican was in the White House, Democrats were champions of the independent counsel law and quick to demand its use at the slightest provocation. Now, with Bill Clinton as president, Republicans have become born-again advocates of the law, discovering almost daily new grounds for its use to investigate Democratic misdeeds. This is part of a broader criminalization of political conflict, in which the destruction of one’s opponent is preferred to engaging him or her on policy differences.

A de-escalation in the investigative arms race would be good for our public life and well received by Americans, who accurately see this Washington game for the partisan charade that it is. And without a continuing melodrama over an independent counsel, Congress will have one less excuse for avoiding its essential task—rewriting the campaign finance laws that were shredded during the 1996 campaign.