ABA Likely to Urge Repeal of Independent Counsel Act

WASHINGTON —  The American Bar Assn., the lawyers group that first called for independent counsels as a means to fully and fairly investigate charges involving high government officials, is expected to vote today in favor of abolishing the Independent Counsel Act.

“It’s a good idea that didn’t work,” said James M. Cole, a defense lawyer in Washington and a former Justice Department official. “The problems with this statute didn’t start with [Kenneth W.] Starr,” he said, referring to the lawyer who has spent nearly five years investigating President Clinton.

In 1978, four years after the Watergate scandal drove President Nixon from office, Congress passed the new law as a good-government reform.

Because the independent counsels were named by judges and were separate from the Justice Department, they were said to be free of political conflicts of interest.

In practice, however, the law has spawned a series of long, costly inquiries, many of which carry a strong whiff of politics.

The law expires in late June unless Congress reauthorizes it.

The ABA’s House of Delegates, which is meeting in Los Angeles, will vote today on a resolution that urges the death of the statute.

The group’s president, attorney Philip S. Anderson of Little Rock, Ark., says he expects the resolution to pass easily.

“We promoted its adoption after Watergate because we thought it would restore public confidence in our system of justice and because it would remove politics from the investigation of high administration officials,” Anderson said. “We have concluded it has not done either.”

The ABA’s recommendations on legal matters carry some weight in Congress, although the group has no official role in the outcome of the debate.

The demise of the Independent Counsel Act is now seen as likely because both Republicans and Democrats have felt its harsh sting.

During the 1980s, Republicans close to President Reagan first complained that Congress had created a monster.

When powerful Democrats on Capitol Hill lodged allegations against Reagan aides, the attorney general was forced to launch several independent counsel inquiries.

For example, former Reagan administration attorney Theodore Olson came under investigation for several years over charges he failed to turn over some handwritten notes involving legal advice he gave to officials of the Environmental Protection Agency. Eventually, the allegations were dropped, but not before Olson and many others became convinced the law was unfair.

Since 1993, Democrats have been stung as well. At least half a dozen Clinton administration officials, as well as the president himself, have come under investigation. The only Clinton-era probe to end involved former Commerce Secretary Ron Brown, who died in a plane crash.

The law “was supposed to take politics out of the system. Instead, it is used now as a political threat, even when it involves a case that normally wouldn’t merit prosecution,” said Cole, who worked in the Justice Department’s public integrity section.

If the Independent Counsel Act were repealed, the public integrity section would again have the responsibility for looking into allegations involving administration officials.

This special division of lawyers has maintained a sterling reputation for fairness and impartiality. Its lawyers prosecute politicians around the nation who are charged with violations of the public trust, such as bribery or accepting illegal contributions.

In extraordinary cases--particularly if an allegation is lodged against the president--the attorney general is authorized to appoint a special prosecutor from outside the Justice Department.

This system has worked well in the past. In 1973, Nixon was prosecuted by Houston attorney Leon Jaworski, a special prosecutor named in the wake of the firing of Harvard law professor Archibald Cox, the first Watergate special prosecutor.

From the start, Clinton allies viewed Starr as biased. And the Independent Counsel Act, which was supposed to insulate these special probes from political conflicts, had instead tainted Starr with a perceived political conflict.