Bill Clinton's political future is now in limbo, awaiting the delivery to Congress of a report by Independent Counsel Kenneth Starr. Starr's future - or more precisely the future of the independent counsel - is already hotly debated. Starr's performance erases any doubt that the 20-year-old independent counsel statute needs to be changed.
To vest an individual with virtually unlimited police powers but leave him accountable to no one flies in the face of the basic principle of American constitutional government, which is that all power is limited and balanced. Our system divides power among three branches of government and provides for the greatest concentration of power in the president. In Starr's regime we have seen what was supposed to have been a limited mandate veer out of control through the manipulation of circumstances. We have seen an unelected official - a part-timer, no less - take upon himself the power to control the president.Starr draws his authority from the judicial branch which, by design, is the least accountable of the three. He was appointed by life-tenured judges. Their job security is supposed to insulate them from partisan politics, but tenure can also have the unintended effect of insulating partisan motives. Federal judges determine the scope of an independent counsel's investigative authority. In Starr's case, it has been allowed to burgeon from allegations of financial improprieties in Arkansas decades ago - apparently a dead end so far as it pertains to the Clintons - into the slow rubbing of America's collective nose in facts about their leader that no people need or want to know.
FROM LOGICAL TO ILLOGICAL To be fair, Starr's expedition from Whitewater to Monica was not without a certain logic. The prosecutor alleges that the Arkansas investigation dragged on so long without resolution because Clinton shrewdly used the powers of the presidency to prevent Starr from reaching the truth. A common thread runs from alleged job offers to former state troopers to retainers for an indicted former law partners and ultimately to a job for the former intern-lover facing a subpoena to testify for Paula Jones' lawyers.
Starr will probably attempt to show that the president's impeachable ``misdemeanor' is a long pattern of violations of the trust of voters. Apparently, he will charge that Clinton has used the resources of his office to frustrate the judicial process by lying, concealing evidence and manipulating witnesses. This could include anything from Hillary's missing files to Monica's missing T-shirt. (One can't help but recall Nixon's missing 17 minutes of tape.)
So that's the logic of Starr's $40 million journey. But it's a stunning example of a rational process leading to an irrational result: A presidency teetering on the brink of extinction not so much because presidential powers were abused, but because the president stupidly committed adultery in the White House then lied about it.
To be sure, it is no trivial thing when the president tells a calculated lie, under oath and bald-faced, on national television, even if the lie is about a subject that is nobody's business. Once a leader has lied for his own benefit, trust cannot be repaired.
But it's also true that had it not been for the Supreme Court's regrettable decision to let Paula Jones' dubious sexual harassment lawsuit go forward, the subject of Monica Lewinsky would never have come up and the president would not have felt the need to lie about her.
This is what happens when you unleash a pack of unsupervised hounds in the neighborhood. Even the most disciplined dog will follow its nose into some garbage cans.
Do we need independent counsels, or has the post-Watergate remedy become a burden and a self-fulfilling prophesy? The Founders gave us an intricate system of checks and balances carefully designed to handle misconduct. James Madison wrote in ``Federalist No. 51':
``It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? ... A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.'
Watergate gave rise to the independent counsel law, an ``auxiliary precaution' unknown to Madison. Yet Watergate was also a validation of Madison's precautions. Public opinion, the Congress, the press and respected nongovernmental leaders all combined to expose and deal with an abuse of presidential power. Was the expensive and cumbersome addition of independent counsels really necessary? It seemed so at the time, but 20 years of experience have shown the drawbacks.
An independent prosecutor may - or may not - be above politics, but lacking a normal prosecutor's diverse and heavy workload, he may lose perspective and turn a legal molehill into a volcanic national crisis. Conventional prosecutors must set priorities, concentrate on what's important and work quickly. As Starr has shown us, an independent counsel can make a career out of a fairly minor matter.
PERHAPS AN OMBUDSMAN? Our three constitutional branches can, if the public demands it, adequately provide Madison's ``auxiliary precautions' against corruption. But if more is needed, particularly for objective fact-gathering, we might look to the Swedish ombudsman as a model.
In its pure, native form, the ombudsman is an office of the highest integrity, objectivity and competence. His independence is beyond question and his words carry the greatest possible weight. He has but two powers:
To investigate charges of official corruption, misconduct or incompetence;
Nothing more is needed.
Could such a thing work in cynical America? Probably not without modification. We are, sadly, no longer a trusting country. But as a complement to the investigative and impeachment powers of Congress, the courts and the executive branch, a true ombudsman might, in time, help restore this country's lost faith in public servants.