Men in black (robes)

A legal affairs reporter says that if you're looking for a "conspiracy" to bring down President Clinton, you might start with the head of the United States Supreme Court.

By Bruce Shapiro
Published February 5, 1998 1:00AM (UTC)
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It's blow-back time. Independent Counsel Kenneth Starr's spectacular abuses of prosecutorial power and massive ethical breaches have now infected many of his liberal critics with a reckless hysteria of their own.

At issue is the Independent Counsel Act -- the 1978 law designed to prevent repeats of "Saturday Night Massacres," like Richard Nixon's firing of Watergate prosecutor Archibald Cox. Now, with the American public recoiling at Starr's tactics in the Monica Lewinsky affair, there are calls for the abolition of the whole institution.


"Now I know its creation was a mistake," declared former-Sen. Paul Simon of Illinois, who voted in favor of the original law. In the Washington Post, University of Chicago law professor Cass Sunstein called the statute "a catastrophic failure," while liberal New York Times columnist Anthony Lewis prostrated himself before Supreme Court Justice Antonin Scalia, who years ago wrote a lone dissent against the Independent Counsel Law.

But this sudden rush to judgment, and the solution proposed -- to abolish the office "as quickly as possible" in Sunstein's words -- betrays a dangerous misunderstanding of the problem, and is doing the public interest no favors.

Some of the hysteria can be laid at Hillary Clinton's door, specifically her portrayal of a "vast right-wing conspiracy" with Kenneth Starr at the center of the web. But the reality is much narrower. The underpinning of Starr's investigation-turned-inquisition is located in a narrow, more discrete chain of decision making that, in some ways, is much more disturbing than the first lady's broad-brush picture.


Under the 1978 law, the chief justice of the Supreme Court names a "Special Division" from the U.S. Court of Appeals in Washington -- more commonly known as the "three-judge panel" -- that in turn selects independent counsels when called upon to do so by the Justice Department.

The system worked pretty well throughout the Reagan and Bush years: The Special Division chose largely non-partisan prosecutors, many from the relatively objective environs of academia and most from the same party as the administrations they were investigating (e.g., Iran-contra counsel Lawrence Walsh). As a result some of the seamier practices, especially of the Reagan years, were exposed -- the HUD scandal, Iran-contra, domestic sleaze involving presidential appointees. Altogether, they obtained convictions of 27 Reagan administration officials, with just three (including Oliver North's) overturned on appeal.

This changed dramatically after Clinton's election. In 1994, Chief Justice William Rehnquist -- the outspoken conservative and former Nixon solicitor general who was given the court's top seat by Reagan -- named Judge David Sentelle as chair of the Special Division. Last year, Rehnquist reappointed Sentelle, who's a crony of North Carolina's far right-wing Sens. Jesse Helms and Launch Faircloth, despite the fact that Sentelle was widely criticized for his apparent conflict of interest. The Sentelle panel had appointed Starr just after Sentelle lunched with Faircloth, who'd long been calling for the head of Starr's predecessor as Whitewater independent counsel, Republican Robert Fiske.


While the president's allies have focused on Sentelle's role in replacing Fiske, few have noted the broader changes Sentelle has wrought. "A gross misunderstanding has arisen ... as to the meaning 'independent,'" Sentelle boldly declared in 1996. The term, according to Sentelle, merely means, "independence from the administration under investigation, not an independence from the entire American political system."

Sentelle put that philosophy into effect -- not just with former Reagan-Bush Justice official Starr but with David Barrette, the independent counsel appointed to investigate HUD secretary Henry Cisneros. If anything, Barrette's "independence" is even more compromised than Starr's: He's a developer and GOP activist who garnered scads of HUD contracts under Reagan.


Throughout the Clinton administration, Rehnquist and Sentelle have made it clear that independent counsels are likely to be appointed from the most hostile and ethically compromised corners. And just to complete the circle, should Clinton be impeached, his Senate trial would be presided over by ... Chief Justice William Rehnquist.

Viewed along this Rehnquist-Sentelle axis, it's clear that the current "scandal" stems from a corrupt and conflict-laden appointment process. Rather than abolish the office altogether, reforms are needed to reestablish the office's credibility. New York University legal ethics professor Stephan Gillers suggests taking the chief justice out of the process entirely and rotating the Special Division's membership. It is clear from Whitewater that time limits on investigations need to be set. In addition, some special appeal rights for the targets of investigations ought to be weighed as a counterbalance to the office's unique power.

If anything, the nation needs independent counsels now more than ever. The escalating presence of big money in politics makes it increasingly unlikely that the Justice Department can be trusted to investigate its White House bosses, or that Congress will be inclined to pursue corruption involving large donors.


As alarming as is Starr's handling of his office, it is no reason to throw the baby out with the bath water. In time, when the current smoke clears, perhaps there will be a need for an independent counsel to investigate Kenneth Starr.

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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Bill Clinton Department Of Justice Hillary Rodham Clinton