Nixon's revenge

It's time to do away with the misbegotten Independent Counsel Act

Whenever anyone has proposed seriously to do away with the Independent Counsel Act, its defenders have invoked the malignant spirit of Richard Nixon as their argument for keeping it on the books. Samuel Dash -- who earned his stripes investigating the Nixon White House, and who helped draft the independent-counsel law -- wrote recently on the New York Times op-ed page that, if the law were abolished, there would be "no way to investigate possible crimes by the President." By this line of reasoning, the Trickster would have gotten away, free to break into his enemies' psychiatrists' offices and to bomb hapless Third World countries in secret until the natural expiration of his term, in January 1977.

The problem with this logic is that Nixon and his gang were thrown out of office in 1974, four years before the Independent Counsel Act became law. Pre-independent counsel, the system for dealing with corrupt presidents worked reasonably well. Since then, it hasn't worked at all.

Now, with the law coming up for renewal once again this June, Congress has an opportunity to do the right thing. Our elected representatives shouldn't extend the law. Neither should they attempt to reform it. Rather, they should abolish it -- drive a wooden stake through its heart, to kill it off once and for all.

Much sport has been made of the Clinton administration's turnabout following Ken Starr's abusive, sex-obsessed investigation. In 1993, the administration persuaded a reluctant Congress to extend the law. This time, the White House is pushing for its extinction. But if Bill Clinton has an obvious personal interest in wanting to make sure we won't see the likes of Starr again, he's nevertheless correct in his newfound belief that an unaccountable prosecutor, with an open-ended mandate and an unlimited budget, is incompatible with the tenets of democracy. Just ask the American Bar Association, whose House of Delegates recently voted to do away with the law.

Nor is Clinton's the first administration bedeviled by a runaway independent counsel. During the presidencies of Ronald Reagan and George Bush, independent counsel Lawrence Walsh's investigation of the Iran-contra affair degenerated into a pointless, endless witch hunt. Bush was able to finish it off only by pardoning former defense secretary Caspar Weinberger -- charged with a peripheral, dubious crime -- just before the expiration of his presidency. To date, the most valuable airing of Iran-contra remains Oliver North's testimony before a House committee -- testimony Walsh tried to prevent, for fear that it would hamper his prosecution of North.

Which brings us back to Nixon. It was the righteous application of politics -- not the avoidance of politics the Independent Counsel Act promises but can't deliver -- that brought Nixon down. Special prosecutor Archibald Cox was appointed by Nixon himself, under heavy pressure from Congress -- not by a secretive panel of judges, as was Starr. And when Nixon fired Cox, in the infamous Saturday Night Massacre, the resulting political outcry forced Nixon to replace Cox with an equally tough prosecutor, Leon Jaworski, setting in motion the chain of events that led to Nixon's resignation.

Thus, the specter of Nixon argues not for the retention of the Independent Counsel Law but, rather, for its abolition. Ever since Nixon's resignation, misguided reformers have been trying to take the politics out of democracy. The result: Ken Starr. Your witness.

What do you think? Send an e-mail to letters[a]phx.com.