WASHINGTON -- When Deputy Attorney General Eric Holder told a House Judiciary subcommittee this week that the Justice Department now believes the Independent Counsel Act to be "fundamentally flawed" and should be allowed to expire, he took pains not to target the performance of independent counsel Kenneth Starr in his investigation of President Clinton.

But Mr. Holder then proceeded to cite as flaws a number of problems that were conspicuously raised by Mr. Starr's conduct in his long inquiry that led to the president's impeachment.

Because under the statute, any independent counsel is "largely insulated from any meaningful budget process, competing public duties, time limits [and] accountability to superiors," Mr. Holder said, the law "eliminates the incentive to show restraint in the exercise of prosecutorial power."

Without saying so, that observation was clearly an indictment of Mr. Starr's $50 million bill for investigating Mr. Clinton and the open-ended nature of his nearly four-year inquiry, from Whitewater to Monica Lewinsky.

Mr. Holder also cited pressure on any independent counsel, without mentioning Mr. Starr, to bring indictments. "An independent counsel who does not indict faces criticism for wasting both his time and the taxpayers' good money," the deputy attorney general said. "As the old adage, adapted from Mark Twain, goes: 'To a man with a hammer, a lot of things look like nails that need pounding.' "

That certainly describes the complaint of Mr. Clinton, his lawyers, political aides and congressional Democrats against Mr. Starr. Mr. Holder didn't encounter much disagreement on these points, even from Republicans. But Mr. Holder's companion proposal to simply put the responsibility and function of investigating high government officials back into the Justice Department with no adjustments to deal with the "fundamental flaws" he talked about did not sit well with some subcommittee Republicans.

Rep. Lindsey Graham, the baby-faced, self-styled champion of common sense from South Carolina, noted that after the 1978 independent counsel law last expired in 1992, the Clinton administration asked that it be reauthorized (as was done in 1994), but now wants it axed. "Is it because people don't like Ken Starr, or is it something structural?" he asked.

Sensing the current law's demise, Mr. Graham said: "We're about to let this one go." But he wanted something from Mr. Holder that would indicate what would replace it.

The original catalyst for an independent counsel law was the famous "Saturday Night Massacre" of 1973, when then-President Richard Nixon ordered the firing of special prosecutor Archibald Cox in the Watergate investigation. It was done, but public opinion forced Nixon to accept another prosecutor, Leon Jaworski, who finished the job that led to Nixon's resignation. Those who want to see the current law lapse point to that experience to argue that it really isn't needed -- that an attorney general can simply appoint an independent counsel and remove him for "good cause" if his performance warrants.

But Democratic Rep. Anthony Weiner of New York pointed out the practical reality that rules against removing an independent counsel. While an attorney general can fire one for "good cause," he noted, it is very difficult to do so "without looking like you're trying to impede the investigation." So, he said, "there's no check on the independent counsel."

Mr. Holder replied that it would be "difficult, but not impossible" to fire one, and if the attorney general "believed there was good cause," the head of the Justice Department "would not hesitate to do so."

Subcommittee chairman Rep. George Gekas of Pennsylvania joined Mr. Graham in asking Mr. Holder to present a specific Justice Department proposal for handling investigations of high government officials if the current law is allowed to expire after its five-year authorization ends on June 30. Mr. Holder was reluctant: "We don't want to negotiate against ourselves" after arguing that no new mechanism is needed, he said.

As Mr. Graham indicated, the current statute seems doomed. But the Republicans aren't likely to let the process of investigating accused high-level officials simply go back to pre-Watergate days, when the problem was not enough independence for the investigator, not too much.

Jack W. Germond and Jules Witcover write from the Washington Bureau.

Pub Date: 3/05/99