Investigated to Death

By Joseph E. diGenova

As independent counsel, I have just wrapped up a three-year inquiry into the State Department's search of Bill Clinton's passport file when he was a Presidential candidate. The investigation found no criminality, just political stupidity, in the Bush Administration.   It also found that there should have been no special counsel appointed.

Far too many special counsels have been appointed since 1978, when the Ethics in Government Act established them in the wake of Watergate. At present, four are looking into allegations of wrongdoing in the Clinton Administration, and a fifth is still probing Ronald Reagan's Department of Housing and Urban Development.

The power to investigate and prosecute is the power to destroy. When directed against an official by an independent counsel, who functions outside the standard constraints of executive branch accountability, such power is frightening.

An independent counsel statute is necessary for the rare occasions when constitutionality is threatened by the acts of a President or his close advisers or when conflict of Interest in the Justice Department is clear. The Iran-contra affair and Watergate justified special counsel. But determining whether Housing Secretary Henry Cisneros did not tell an F.B.I, background reviewer the total amount of money he gave his former mistress does not.

The law should be amended to make appointments of special prosecutors less common. The types of investigations should be sharply limited. And the grounds for undertaking them should be tightly restricted.

Under the law, anyone can go to the Attorney General and accuse a high-level Administration official of committing a crime. The law says that if the allegation is "specific" and the alleger "credible," the Attorney General must conduct a preliminary inquiry that involves only voluntary interviews of witnesses. If the Attorney General determines, according to the law that "further investigation is warranted," the appointment of an independent counsel must be sought. This is almost inevitable, given the limitations of the process. But if one is not appointed, career lawyers in the Justice Department can look into the matter.

In addition to the Cisneros inquiry, special prosecutors are looking into Whitewater, Commerce Secretary Ron Brown's financial dealings and former Agriculture Secretary Mike Espy's links to an Arkansas poultry processor. Since 1978 and before Mr. Clinton took office, 14 independent counsels had been appointed to investigate accusations involving Republican administrations.

I am a lifelong Republican. But my concern is not partisan. It's for the institution of the Presidency and the well-being of people who find themselves under the klieg lights. Mr. Clinton and the Presidency have been injured, and not just politically. When the public is told again and again that the Justice Department cannot be trusted to investigate a matter, the executive branch is hurt. And what about the emotional and financial cost to people caught up in the maelstrom? At great expense, lawyers must be hired, even by the most insignificant witnesses. The dire consequences of merely misspeaking, which could result in a false-statement charge, are high, given the prosecutor's vast powers. Careers are held captive, families are torn apart and the mental and physical health of those under investigation are put under strain. It is not unusual for people involved to lose their jobs, just when they need money to cover legal expenses.

If, under an amended statute, an Attorney General acted unwisely or unfairly and failed to seek the appointment of an independent counsel in appropriate circumstances, Congress and the press would surely raise the issue of accountability.

Democrats who stoutly defended the statute when Republicans held the White House now bemoan its application. The Republicans who criticized it then now defend its use. But the issues are too serious to be left to petty political maneuvering. Now that there has been bipartisan suffering, the President, members of Congress from both parties and the bar should face up to the problem.