How History Will Judge Him

(2 of 3)

In particular, the impeachment has given new energy to a far-reaching, and largely unnoticed, structural change in the American polity: the institutionalization of the prosecutorial culture. This rests on two laws Congress passed in 1978 in a well-intentioned but misguided effort to immunize the republic against another Watergate.

One is the independent counsel act, the law that permits Kenneth Starr to conduct dragnet investigations into private lives, taking as much time as he wants, spending as much money as he wants, inquiring into whatever excites his prurient curiosity--and all without visible accountability. Starr usurped congressional prerogatives when instead of following Leon Jaworski's Watergate precedent of submitting his findings in a neutral form and allowing the House of Representatives to make its own judgment, he shaped them into a demand for impeachment. From compliant judges he obtained rulings that turn White House lawyers, aides and even Secret Service personnel into potential informers for any independent counsel. There is no one in the White House with whom Presidents will be able to discuss confidential problems without fear of subpoena (except for their spouses, who presumably cannot be required to testify).

The second statute is the Inspector General Act, which gives autonomy to the inspectors general of Executive departments and agencies, enables them to effectively abridge due process in their investigations, and makes them more answerable to Congress than to their nominal superiors. They too do their dirty work without serious accountability.

Under the Inspector General Act, anonymous denunciations thrive in Washington as they have rarely done since the Council of Ten in the Venice of the doges. Like road-company Kenneth Starrs, inspectors general and their flatfoots roam through the private lives of public officials. The idiotic pursuit of the diplomat Richard Holbrooke, our proposed ambassador to the United Nations, a man who has spent most of the past 40 years working for the government only to have his whole life investigated anew, is the latest dismal consequence of uninhibited and unaccountable prosecutorial authority.

These two laws were passed with benign intent. The independent counsel act was designed to facilitate the appointment of impartial special prosecutors. The Inspector General Act was designed to protect patriotic whistle-blowers who seek to reveal malversation in government. But what these laws have in fact done is to create a fourth branch of government--powerful, unaccountable and wonderfully designed to make it hard to recruit people for public service and easy to intimidate them once they are serving. A priority for the 106th Congress should be the dismemberment of these institutional manifestations of our prosecutorial culture. Abolishing the fourth branch of government would benefit future Republican as well as Democratic administrations.