The past year’s carnival of national scandal-with all its noisy displays of lechery and hypocrisy, leaking and lying-left few public figures with their dignity intact. Particularly in the nation’s capital, there aren’t many who today seem wiser rather than more foolish. But now, as Congress considers what to do about the statute that created this depressing spectacle, it should heed the words of one man whose stature actually has increased: Antonin Scalia, the Supreme Court Justice and conservative idol who warned long ago against the potential excesses of an independent counsel.
To enhance his already brilliant reputation Mr. Scalia needed to do nothing but anticipate this moment, when liberals and conservatives both must acknowledge the prescience of his 1988 opinion in Morrison v. Olson. The conclusion of that landmark case-brought to the high court, ironically, by Theodore Olson, bosom friend and staunch defender of Kenneth Starr, but back then the target himself of an independent counsel probe-saw seven Justices validate the constitutionality of the independent counsel law.
Alone in dissent, Mr. Scalia predicted the nefarious misuse of the independent counsel’s unchecked power by implacable partisans from a previous Administration. He had to wait only a decade for the misbehavior of Mr. Starr to prove him a prophet. (In the meantime, Mr. Scalia mistakenly endorsed the unanimous 1997 opinion that permitted Paula Jones’ lawsuit to proceed against a sitting President, but that was a separate travesty.)
Another ironic footnote is that the majority opinion upholding the independent counsel in Morrison v. Olson was written by Chief Justice William Rehnquist. Probably the Chief Justice did not foresee the moment when, resplendent in his comic-opera costume, he would adjudicate the farcical Senate trial of a Democratic President. Yet it was Mr. Rehnquist’s own manipulation of the Independent Counsel Act’s provisions that led to the impeachment of Bill Clinton.
It is true that Mr. Rehnquist executed his undemanding duties in the Senate with dispassionate fairness. Unfortunately, any useful examination of the independent counsel statute requires scrutiny of Mr. Rehnquist’s role in its perversion.
To understand why he bears so much blame for the continuing Starr inquisition, it is necessary to know that independent counsels are appointed by a panel of three Federal judges, who are in turn appointed by the Chief Justice and known as the “Special Division.” That process worked reasonably well until 1992, when Mr. Rehnquist abruptly removed George MacKinnon, an old-line Nixon Republican, as the Special Division’s presiding judge. MacKinnon, since deceased, had made the unforgivable error of appointing Lawrence Walsh to investigate the Iran-contra scandal. Fearless to a fault in the eyes of many fellow Republicans, Mr. Walsh doggedly uncovered the criminal activities of the Reagan Administration and convicted at least some of the culpable officials. He also dared to reveal that George Bush, among others, had lied about their knowledge of those crimes.
To replace MacKinnon, Mr. Rehnquist carefully chose David Sentelle, a right-wing hothead and Republican activist from North Carolina who was elevated to the judiciary in 1985 under the patronage of his political mentor, Senator Jesse Helms. By picking Mr. Sentelle-who by then had served just a few years on the bench-the Chief Justice ignored an important section of the Independent Counsel Act that plainly demands preference for senior and retired judges in appointments to the Special Division.
The consequences of this irresponsible choice were entirely predictable: Mr. Sentelle named Republicans to investigate Republicans, and Republicans to investigate Democrats-and the more partisan the better. Most egregiously, Mr. Sentelle engineered Mr. Starr’s takeover of the Whitewater probe from Robert Fiske in August 1994. He did so only days after lunching with Senators Helms and Lauch Faircloth, harsh critics of the insufficiently ferocious Mr. Fiske. The ensuing outcry didn’t dissuade the Chief Justice from endorsing that impropriety by reappointing Mr. Sentelle to head the Special Division. And of course Mr. Starr then proceeded with his legal jihad against the Clintons.
Despite that awful example, letting the Independent Counsel Act simply expire next June may still be worse than trying to repair it. Public hearings about Mr. Starr’s depredations are essential, anyway, and could inspire amendments to prevent the kind of abuse he now personifies.
Putting him in the pillory, however, won’t remedy the statutory flaw that enabled him to fulfill the ominous prediction made by Mr. Scalia 10 years ago: “An independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration …?” Mr. Scalia surely intended no reference to the Chief Justice, despite their bitter disagreement over Morrison v. Olson. But his words all too accurately describe both Mr. Rehnquist and Mr. Sentelle. We must have no more overweening prosecutors chosen by the likes of them.