INDEPENDENT-COUNSEL LAW IS FINALLY UNDERSTOOD

This past week saw an interesting spectacle in Washington. Independent counsel Kenneth Starr went before a Senate committee to testify to his long-held belief that the independent counsel law under which he was appointed is unconstitutional. An Associated Press report on the hearing is misleading, leaving the impression that Starr is an inconsistent latecomer to this view, now widely shared among elite Washington circles. Starr's position is consistent with his opposition, together with that of most conservatives, to the independent-counsel law.

This measure was passed in 1978 by a liberal Democratic Congress over conservative and Republican opposition. As liberals gleefully used this weapon against hapless officials of the Reagan and Bush administrations, conservatives warned throughout the 1980s that the prosecution power properly belonged under executive-branch control through the department of justice. They further warned that this counsel would effectively constitute a fourth branch of government, unaccountable to anyone. As independent counsels were deployed to spend millions against Ed Meese, Iran-Contra defendants and many others, congressional liberals and their media allies looked on approvingly.

It took the deployment of a series of independent counsels against Clinton administration officials for establishment Washington to suddenly become converts to the dangers of out-of-control prosecutions. Back in 1988, in a lonely dissent from a Supreme Court majority that upheld the law against constitutional challenge, Justice Antonin Scalia wrote, "How terrifying it must be" to have an independent counsel loosed upon you, with nothing to do but rummage through the details of your life until he finds something to charge you with. If Ken Starr's tenure did nothing else, it made liberals converts to the Scalia vision of this misguided law. We say, let it lapse on schedule this June, and don't renew it.