Washington: Sen. Rob Portman is one of the smartest people in the U.S. Senate. But last week he floated a suggestion that makes you wonder why bad ideas in Washington never seem to go away.
During an appearance on This Week with George Stephanopoulos, the Ohio Republican said a “special counsel is going to end up being necessary” to investigate why the Internal Revenue Service targeted conservative organizations seeking tax-exempt status.
One of his aides insisted that Portman wasn’t exactly calling for a special counsel, only that one might eventually be named. But for us veterans who have witnessed independent and special counsels running amok during the past few decades, the very idea ought to scare Americans.
Who can forget in 1994 when a panel of federal judges tapped former Solicitor General Kenneth Starr to investigate whether President Bill Clinton and first lady Hillary Rodham Clinton had done anything wrong with their involvement in a convoluted land deal in Arkansas when Clinton was governor?
Three years later, much like Captain Queeg searching for the culprit who had stolen the strawberries, Starr was still digging away.
By then, however, the investigation had morphed away from a land deal into whether Clinton had lied under oath about a sexual relationship he had with White House intern Monica Lewinsky. Then it snowballed into the first Senate trial of a sitting president in more than a century.
It would be one thing if Starr were the exception. But he has been the norm.
In the wake of the Watergate scandal when President Richard Nixon fired independent prosecutor Archibald Cox, Congress in 1978 approved a law requiring a panel of federal judges to select an independent counsel who would be free from presidential interference.
The law carried the grandiose label of “Ethics in Government Act,” although some wags suggested it should have been called the “Unemployed Lawyers Relief Act.”
Soon the nation was tormented by former U.S. Deputy Attorney General Lawrence Walsh’s 1986 investigation into whether President Ronald Reagan had violated a congressional law by selling arms to the Contra rebels in Nicaragua.
Six years later, on the weekend before the 1992 presidential election, the counsel’s office indicted former Defense Secretary Caspar Weinberger — who had opposed the arms sale — on a charge of making false statements. After losing the election to Clinton, President George H.W. Bush pardoned Weinberger.
The law peacefully expired at the end of 1992. But proving beyond a reasonable doubt that you should be careful what you wish for, Clinton pushed in 1994 to reauthorize the law.
With bipartisan relief, the law expired at the end of 1999. But even then, Washington couldn’t quite drive a stake through the heart of independent prosecutors. The law was replaced by the Justice Department’s office of special counsel, which allows the attorney general — rather than judges — to name a special prosecutor.
So in 2003, the Justice Department selected Patrick Fitzgerald, a federal prosecutor in Chicago, to find the official in the Bush administration who leaked to news organizations the name of CIA agent Valerie Plame. Two years later, Fitzgerald indicted Scooter Libby — an aide to then-Vice President Dick Cheney — on charges of perjury and obstruction of justice.
And — just in case you have forgotten — Libby wasn’t the leak.
As far back as 1988, when the Supreme Court upheld the constitutionality of the independent-counsel law, Justice Antonin Scalia perceptively warned in his dissent that “what would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to (the independent counsel) be an investigation that ought to go on for another year.
“How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile,” Scalia wrote.
Remember: We have been warned.
Torry is chief of the Dispatch Washington Bureau. He can be emailed at firstname.lastname@example.org.