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Efficiency, Ethics of 1978 Independent Counsel Law Questioned : Congress: Critics who want to kill the measure cite the $33-million Iran-Contra case as example of excess.


WASHINGTON — In the aftermath of the Watergate scandal, a formal process for investigating executive branch abuses was enacted by Congress to ensure that no President would come as close as Richard M. Nixon had in placing official wrongdoing above the law.

But now, 14 years after the special prosecutor provisions were adopted as part of the Ethics in Government Act of 1978, critics are fighting to kill the law. Unless Congress votes to reauthorize the act, it will expire in December.

The critics contend that special prosecutors, known today as independent counsels, represent a noble experiment that did not work. They say the process has proved too costly, has achieved paltry results and has made criminal cases out of political judgment calls. They argue that seemingly interminable investigations have damaged innocent individuals and have permitted--even encouraged--independent counsels to operate free of the restraints that apply to other federal prosecutors.

"The problem with the (independent counsel) statute now is that there's no accountability," Atty. Gen. William P. Barr said. "Individuals are set up as a power unto themselves. There have to be some constraints."

Advocates of the law insist that such a mechanism remains the only hope for impartial justice when the conduct of high government officials is called into question.

The independent counsel law "serves an essential role in helping maintain public confidence in the administration of justice," said Samuel Dash, a Georgetown University law professor who served as chief counsel of the Senate Watergate committee.

Perhaps the most celebrated--and criticized--case is the Iran-Contra investigation headed by independent counsel Lawrence E. Walsh. While the Iran-Contra probe produced more indictments and convictions than any other, it also consumed the most time and money--nearly six years and $33 million. Walsh called a halt to the inquiry Thursday.

Walsh's probe was stymied in part by the inability of prosecutors to crack the shield of "national security" that prevented them from presenting key evidence about the Ronald Reagan Administration's arms sales to Iran and the diversion of profits to Nicaraguan Contras.

Critics also cite other, lesser-known investigations as examples of independent counsel excesses.

One involved Theodore B. Olson, a senior Justice Department official in the Reagan Administration who was accused of misleading Congress in 1983 about the handling of documents involved in an Environmental Protection Agency scandal over alleged mishandling of the federal Superfund program to clean up toxic waste.

The investigation lasted nearly three years. During that time Olson took to jogging by flashlight in the middle of the night to prevent the process from "consuming me emotionally." Eventually, he was exonerated.

Some of the law's defenders concede that the present system needs new safeguards. But they say the years since Watergate have been replete with instances, topped by the Iran-Contra affair, of high government officials violating federal laws or using their power to protect individuals whose conduct has been called into question.

Defenders of the law argue that only a prosecutor independent of the Justice Department has the credibility to investigate such politically sensitive allegations and to decide whether or not to bring charges. Indeed, veteran prosecutors say that deciding not to prosecute is often tougher than electing to file charges.

The very difficulties that Walsh and other independent counsel have sometimes encountered in building cases is in itself proof of the need for the current system or something like it, defenders say. Without the law, they argue, high officials could abuse their offices with little fear of being called to account.

"The independent counsel statute is essential to having a fair and publicly credible system for ensuring that the highest-level officials in the executive branch are held accountable for criminal wrongdoing and are subject to the rule of law," declared Common Cause, the citizens lobby, in a recent fund-raising letter.

The concept of calling in a prosecutor from outside the system to probe major Administration figures predates the 1978 ethics law. Indeed, the two greatest White House scandals of this century--Teapot Dome and Watergate--were investigated by special prosecutors appointed by presidents under public pressure.

Teapot Dome, which came to characterize the cronyism and corruption of the Warren G. Harding Administration, involved the secret leasing of Naval petroleum reserve lands by Interior Secretary Albert B. Fall to private companies. The scandal was uncovered by a Senate committee after Harding's death in 1923.

Fall tried to defend his actions, but the public was outraged by disclosures that he had accepted $400,000 from oilmen to whom he had awarded the leases. Harding's successor, Calvin Coolidge, was forced to appoint special prosecutors to examine the affair.

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