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Impartial Prosecutor Or Loose Cannon?

BORN of Watergate, died of Irangate: Will that be the epitaph for the independent-counsel law?

The statute that gave us headline-grabbing investigations of Carter aide Hamilton Jordan, former Attorney General Edwin Meese, and, most famously, a cast of thousands in the Iran-contra affair, was enacted in 1978 in the aftermath of the Watergate scandal. It expired last year, however, and congressional attempts to reauthorize the law - supported by President Clinton - have met with resistance, mainly from Republicans.

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Many Republicans despise the independent-counsel law after what they regard as the independent persecutions of officials in the Reagan administration. You might think that, with Democrats occupying the White House and executive branch, Republicans would be eager to unleash ``special prosecutors'' with unlimited time and money to probe claims of official misconduct.

If the independent-counsel law were still in effect, for instance, a hard-nosed lawyer almost certainly would be appointed to investigate allegations that Commerce Secretary Ron Brown took $700,000 from a Vietnamese businessman to lift the United States ban on trade with Vietnam. (Mr. Brown denies the reports.)

Even so, some Republicans in Congress and even some former Reagan-administration officials who were subjects of independent-counsel investigations oppose reenactment of the law. ``It results in substantial injustices to individuals and cost to the taxpayers,'' says Theodore Olson, a Reagan Justice Department official who ran up legal fees of $1.3 million defending against claims that he deceived Congress. After a two-year investigation, an independent counsel dropped the case. Mr. Meese, who was the subject of two independent-counsel probes, also opposes reviving the law.

Critics assert that independent counsels, who were appointed by a panel of judges to investigate claims of wrongdoing by high government officials, became loose cannons in the absence of political accountability. They also point to the cost of open-ended investigations. Independent counsel Lawrence Walsh's Iran-contra probe, now wrapping up after nearly seven years, has cost about $33 million.

The independent-counsel mechanism enjoys support on Capitol Hill, though. Bills to reauthorize the statute have been passed by committees in both houses and await floor votes.

``Watergate showed that in some special cases, you have to insulate prosecutions of government officials from politics,'' says Robert Evans, the director of the American Bar Association's Washington office. ``When there would be a clear conflict of interest in having the Justice Department investigate members of the administration, there needs to be another mechanism.''

The ABA favors the legislation - although it has proposed tenure and budget limits on independent counsels, subject to increase by Congress. The current bills do not include such measures but do contain tighter audit and spending controls.

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Katy Harriger, a political-science professor at Wake Forest University in Winston-Salem, N.C., who has written a book about independent-counsel investigations, also views the law as necessary to avoid conflicts of interest. She points to Iran-contra as the ``classic case'' in which an independent investigation was necessary to bolster public confidence in the administration of justice.

Professor Harriger says the law has been overused, though, and she would narrow its scope. Applying criminal laws to matters with policy implications, she says, too often ``shuts down policy debates and the political process.'' And she adds that career prosecutors in the Justice Department are able to impartially investigate most allegations against government officials, such as those leveled against Secretary Brown.

Some Republicans in Congress want to mandate that the statute will cover lawmakers as well as the executive branch. But Harriger calls the idea ``stupid,'' since there is no conflict of interest when US prosecutors investigate members of Congress.

``The Republicans are trying to blow it up,'' says Rep. Barney Frank (D) of Massachusetts, a supporter of the bill. He notes that the law always has given the attorney general discretion to apply it to members of Congress.

Congressman Frank predicts that the law will be reinstated, but probably ``not until February or March.''

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