The stormy, partisan Washington reaction to the decision by a three-judge panel there to oust one Whitewater independent counsel, Robert B. Fiske Jr., and replace him with another, Kenneth W. Starr, came, coincidentally but appropriately, in the week the nation was noting the 20th anniversary of the resignation of President Richard M. Nixon because of Watergate.

It is often forgotten that the investigation and prosecution of the Watergate burglary and its subsequent cover-up was not carried out under the law that now covers such independent prosecutions. Instead of a special prosecutor or independent counsel reporting only to a panel of judges, the Watergate prosecutors reported to the attorney general, who reported to -- President Nixon. Not very independent on paper, but it was the most successful such prosecution in history. Subsequent prosecutions of this sort have taken longer, spent more money and produced fewer important convictions.

Two prosecutors

I say "prosecutors" because there were two. Nixon fired the first, Archibald Cox, when he began to get too close to the president's own criminality.

The public and political reaction to the firing forced President Nixon to agree to the appointment of a successor to Mr. Cox, Leon Jaworski. After the reaction to the Cox firing, the president dared not dump Mr. Jaworski, no matter how close he got. Eventually, Mr. Jaworski's Office of the Watergate Special Prosecutor not only helped force President Nixon from office but convicted a host of powerful figures, including the White House chief of staff; the president's chief domestic adviser; two of the principal White House counselors; Nixon's personal lawyer; the former attorney general who had become director of the Nixon campaign committee; and the campaign's deputy director.

In light of that and other actions against high-level officials by the Justice Department (yes, Spiro Agnew, whom I'll get to in a moment), it seems to me that there is no need for the arrangement we have now. That is a system in which when there is a believable accusation against someone close to the president (or the president, himself) the Justice Department bows out and turns oversight of the investigation and, if deemed necessary, the prosecution to three unelected judges. Those judges also select the special prosecutor. They are answerable to no one insofar as whom they select to serve as special prosecutor, nor to how and why they choose that person, nor to how they oversee the investigation. ("Special prosecutor" and "independent counsel" are interchangeable terms. Both have been used in the U.S. Code. For consistency, I'll use the latter.)

Under the law, enacted in 1978 and re-enacted periodically, including this year, an independent counsel who was allowed by the judges to run amok can be removed by the attorney general for "good cause." But that's a tough standard to meet. The independent counsel in the Iran-contra affair ran amok -- spent $37 million in seven years, let an assistant run the office, and ended up with practically nothing to show for it (minor convictions of four minor players in the drama). The judges never reined him in; no attorney general dared fire him.

An independent counsel has had more success in prosecuting influence-peddling at the Reagan Department of Housing and Urban Development, but to date only mid-level or lesser officials have been convicted, and the investigation, in its fifth year, goes on.

The problem with independent counsels, however, is not their cost, their length or their meager results, but that they wield enormous power without the sort of normal political restraint this country has always insisted on in its prosecutors. A government has no more awesome power than that of being able formally to accuse and prosecute a citizen for a crime. Always before the independent counsel statutes, the individuals exercising that power have been answerable to the people. Indirectly in the case of U.S. attorneys, who can be fired by elected presidents. Directly in Maryland and other states, where prosecutors are answerable to the people at the ballot box.

The federal judges who control independent counsels hold unelected office for life. Some lawyers believe this is an unconstitutional arrangement. They argue that the Constitution requires a president -- and only a president -- to "execute" the laws. The Supreme Court rejected that argument in 1988, despite its being endorsed in a brief by three former attorneys general: Edward Levi, Griffin Bell and William French Smith. Another former attorney general, Nicholas Katzenbach, called for abolition of the independent counsel law in an article later.

The rationale for having an independent counsel is that a president can't be expected to investigate his friends and colleagues, much less himself. But the United States got along fine without this being a problem for nearly 200 years.

In the year before Watergate revelations forced Richard Nixon from office, the Nixon Department of Justice investigated and was prepared to take to trial Spiro Agnew for criminal violations that occurred before he became Mr. Nixon's vice president. Career and political appointees, especially in the U.S. attorney's office here, were allowed to proceed to the point where the vice president agreed to resign and accept conviction on a charge of tax evasion.

Then there's Watergate, itself. Independent counsels who were given some -- but far from complete -- freedom from control brought about the great roundup in the Nixon White House five years before the Independent Counsel Act became law.

Were special prosecutors needed?

One school of thought holds that even if Mr. Cox and Mr. Jaworski had not been exempted from normal chain-of-command direct oversight within the Justice Department, or even if they had never been hired and their positions created, the same results might have ensued. According to this theory, the U.S. attorney's office in the District of Columbia was well into an investigation of highest-level crime in the White House when the Senate Judiciary Committee came up with the idea of a special investigator with special status for Mr. Cox, a Harvard professor. It is a matter of fact that Mr. Cox relied on preliminary work by the U.S. attorney's office.

A second false note in the supporters' rationale for an independent counsel is their claim that it is narrowly written to apply only to certain high-level officials. But in fact in the Iran-contra and the HUD scandals, private citizens who held no offices and were not friends of high-level officials were investigated and in some cases prosecuted.

A third thing wrong with this loaded weapon is that it has such a "hair-trigger" that it can coerce an attorney general into seeking an independent counsel even in a case that on its face seems to be not worth pursuing. A flimsy charge that Carter White House Chief of Staff Hamilton Jordan used cocaine would fall into that category (he was cleared).

So might the charges of accepting illegal gifts made against Secretary of Agriculture Mike Espy, which brought a request for an independent counsel last week. Attorney General Janet Reno explained that she was asking for an independent counsel investigation even though a Justice Department investigation had found no evidence that Mr. Espy had broken the law. Why go on? Because there was no "clear and convincing evidence that [he] lacked [criminal intent]," which she believes is required to avoid an independent counsel probe. He's guilty until proven innocent.

A fourth problem with the independent counsel law is that it serves to bring about exactly the opposite of its intent, insofar as public perception of justice is concerned. By saying, in effect, that the Department of Justice cannot be trusted to investigate fully and honestly crimes by high-level officials, this statute sends a message to the public that the institution is, if not corrupt, corruptible.

Last year, Sen. Thad Cochran, a Mississippi Republican, proposed that instead of the independent counsel statute that was about to be passed, Congress ought to say that when a conflict of interest arose in connection with a prosecution, the attorney general should nominate a person to be an independent counsel. That person would be confirmed by the Senate. He or she would be an independent prosecutor and decision-maker, but ultimately accountable to the executive branch, and would have to use some Justice Department staff (career members of the Public Integrity Section), and could be removed by the attorney general.

The Senate voted his proposal down. Democrats opposed it, 51-3. Some of them are no doubt having second thoughts. A highly partisan lawyer and former Reagan and Bush official has been chosen to investigate Whitewater. He is answerable only to a judicial panel led by a judge who also is a strong Republican partisan. Bill Clinton's worst enemy should be uneasy about such a system.

I= Theo Lippman Jr. writes editorials for The Baltimore Sun.