Jewish World Review Sept. 26, 2000 / 25 Elul, 5760
The end of the independent counsel is a vindication for those who sought to protect the executive office
http://www.jewishworldreview.com -- TO MOST OBSERVERS, the news that independent prosecutor Robert Ray has exonerated President Bill Clinton in the matter of Whitewater represents an ending to the peculiarly impenetrable scandal over the Clintons' Arkansas real estate dealings.
Mr Ray's absolution does mark an ending, but to a drama far larger than anything taking place now. If politics are theatre, then Whitewater is the final act of a tragedy about that great American institution - the presidency. The constitutional drama began as far back as Richard Nixon. Its theme is simple: that the independent counsel office itself damages the presidency, and with it, the polity.
Consider Act I, Watergate. The curtain rose to reveal a paranoid and arrogant Nixon ensconced in the Oval Office. Next, the Washington Post revealed that five men employed by the Nixon campaign had broken into Democratic headquarters.
Elliot Richardson, the attorney-general, appointed a special prosecutor to investigate. But that special prosecutor reported to the Justice Department, which in turn reported to the president.
The president ordered the Justice Department to halt the probe. Both General Richardson and his successor resigned in protest. The third man in the chain, Robert Bork, obeyed the president - and the law.
Nixon's efforts failed. Public outrage was so strong that the Justice Department soon appointed another special prosecutor, who provided evidence to an eager Congress.
At the Judiciary Committee, a cast including an attorney named Bernard Nussbaum and a young Hillary Rodham built their case. Even though Congress was Democratic and the White House Republican, investigators piously characterised their work as non-partisan. The phrase that rang from the stage was: "It was not the crime; it was the cover-up."
In the end the creaky system functioned: Nixon resigned. But the memory of the Saturday Night Massacre, as the Justice Department resignations were known, convinced a now ethics-obsessed nation that the executive branch needed further restraining. It elected Jimmy "I will never lie to you" Carter, who in 1978 signed the Independent Counsel law. The law created a court-appointed independent prosecutor with broad authority to investigate and prosecute.
The existence of the office gave lawmakers a relative advantage against the executive, not to mention fodder for hearings. The independent counsel law generated investigation upon investigation. Inquisitors routinely conducted wide ranging, multi-year probes. Though many targets were cleared, all were damaged. As Ray Donovan, a labour secretary, said after his exoneration: "Where do I go to get my reputation back"?
Act II in our play was the bitterest of these investigations, the Iran-Contra affair. Staffers in a Republican administration - this time Ronald Reagan's - secretly sold arms to Iran, then funnelled the money to the Contras in Nicaragua. Eventually Iran-Contra got its own independent counsel in Lawrence Walsh, and the Democratic Congress mounted hearings. Years of investigation brought the convictions of John Poindexter, the national security adviser, and Oliver North. Mr Walsh's attorneys laboured so long that, by the time they came to question President Reagan, he had Alzheimer's disease.
In those post-Watergate years, the accusers still moved with enormous confidence. When the Reagan White House nominated Robert Bork to the Supreme Court, lawmakers recalled his dutiful work at the Justice Department and rejected him so venomously that they turned his name into a verb. But even then there were critics. Some complained about the arrogance of independent prosecutors. Others rightly noted that prosecution in matters like the Iran-Contra affair criminalised what were essentially foreign policy differences.
The Supreme Court let the Independent Counsel law stand in a case called Morrison v Olson. But in a dissent, Justice Antonin Scalia noted that the decision interfered with the president's con-stitutional authority to "take care that laws be faithfully executed"; the law, he said, was "an open invitation for Congress to experiment".
This it continued to do, right into the late 1990s. Now it was Congress that was Republican, while the White House was occupied by a Democrat - the conveniently fallible Bill Clinton. Mr Clinton, more than any president before him, was of the Watergate generation, as were his wife and colleagues. The irony of this reversal did not elude the parties involved. Bob Woodward, the journalist and author, reports that Mr Nussbaum warned Mr Clinton that "you'll never be the same" once prosecutors got involved. Mr Clinton himself was wary, asking, when it came time to reauthorise the independent counsel law, "Do I have to"?
Such fears were justified. The same Hillary Rodham whose office once demanded tapes from Nixon now found herself "losing" documents demanded by her investigators. In the end, Kenneth Starr, the independent counsel, did not find enough Arkansas wrongdoing to convict Mr Clinton. But he did catch him lying under oath in the Monica Lewinsky cover-up.
If there was hostility in the Republicans' impeachment, can it be surprising? The time had come for revenge. Like any good drama, this one yielded a powerful lesson: the independent counsel was trouble. Last year, Congress and the White House let the dread law expire. The end of the independent counsel is a vindication for those who, in the Watergate years, sought to protect the executive office.
Today Mr Clinton's supporters are some of the most vehement opponents of the law. Even
those who feel the case against Mr Clinton was weaker than that against Nixon now
recognise that this hardly mattered, once the process took
JWR contributor Amity Shlaes is a columnist for Financial Times
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