Was This A Bad Idea?

The questioning of his star witness was already going poorly when independent counsel Donald Smaltz dumped a glass of water on the computer equipment. As Smaltz tried to make light of the situation, the liquid seeped into the circuitry, shorting out the only high-tech courtroom in Washington's federal courthouse and forcing a recess in the trial of former Agriculture Secretary Mike Espy.

Last week the jury did a more deliberate version of the same thing, and it was Smaltz who got zapped. After an exhausting seven-week, 70-witness trial, the jury took just nine hours to short-circuit his case against Espy, rejecting all 30 remaining counts of a kitchen-sink indictment. The verdict was not just a repudiation of Smaltz's four-year investigation into gifts Espy received from people his department regulates. It could also be read as a repudiation of the very statute that made Smaltz's wild prosecutorial ride possible. And when that independent-counsel statute comes up for renewal by Congress next year, Smaltz will have contributed much to its potential demise. "I'm reminded of the saying that just because everybody's against something doesn't mean it shouldn't be defeated," says Senator Fred Thompson, the Tennessee Republican who will hold hearings on the statute early next year.

But even now, Smaltz's performance--on top of Kenneth Starr's--has changed the dynamic at Janet Reno's Justice Department. Officials there tell TIME that her reluctance to call for counsels to look into Vice President Al Gore, former deputy chief of staff Harold Ickes and the President in connection with the campaign-finance mess comes in part from seeing what other prosecutors have done.

Complaints about the statute are familiar: Too many people are potential targets because it covers so many levels of government; the threshold of evidence requiring the Attorney General to call for an independent counsel is far too low; there is little accountability for the lawyers heading the probes until the very end, after they've had vast resources and all the time in the world to stalk their quarry.

Like most bad laws, this one began with good intentions. Twenty years and 20 independent counsels ago, Congress passed the statute to prevent a repeat of the Saturday Night Massacre. Nixon's firing of Watergate special prosecutor Archibald Cox made people realize that investigators had to be walled off from the investigated. So the new statute gave a special three-judge panel the power to name independent counsels when the Attorney General said it was necessary and made the counsels virtually unfireable.

The statute drew bitter criticism early on. The first five independent counsels brought no charges against the subjects they were pursuing, but one target, former Labor Secretary Raymond Donovan, was fuming at the end of a long legal journey in which he was cleared. "Which office do I go to to get my reputation back?" he famously said when he was acquitted of other larceny and fraud charges that had forced him out of office. Another Reagan Administration official investigated (and eventually cleared) in a separate probe, Assistant Attorney General Theodore Olson, battled the law's constitutionality all the way to the Supreme Court, where he lost.