The spectre set loose in DC

The greatest legacy of the Nixon era may well be the creation and perpetuation of the independent counsel, that curious and constitutionally questionable creature that stalks the hallways of official Washington like some misbegotten spectre. As the Clinton administration is learning, this is a fearsome monster that neither knows nor respects partisan differences; everyone is fair game.

The slightest suspicion of wrong-doing is enough to trigger an investigation that is not bound by the ordinary constraints of law enforcement such as budgets and limited human resources. An independent counsel, once set loose, roams at will for as long as it takes to try to prove that those under suspicion, be they first ladies or cabinet secretaries, are indeed guilty as charged. The singleness of purpose and the seemingly endless resources of independent counsels have resulted in a new institution of government without limits. But very few independent counsels have actually delivered the goods. While many of those who have fallen under the unblinking scrutiny of these investigators have had their reputations tarnished if not ruined (as President Reagan's secretary of labor Ray Donovan said when exonerated: "Where do I go to get my good name back?"), only rarely has anyone actually been indicted and convicted of the crimes originally alleged. There may actually be convictions, but they are usually on charges far less serious than one would have thought appropriate given the time, energy and money expended on them.

Thus there is likely to be a growing cottage industry of self-justificatory books once the inquiry has been concluded. The most recent product of this new kind of "history" is Lawrence E. Walsh's Firewall: The Iran-Contra Conspiracy and Cover-up in which the independent counsel in the Iran-Contra investigation (as the cover of this book announces in small print) seeks to make his case in the court of public opinion. The problem with such books, as with accounts written by those on the receiving end of independent counsel's investigation, is that they inevitably tell only one side of the story. As Walsh himself points out in his preface, his official report contains over 1,000 pages of criticism of his interpretations and conclusions from those whom he investigated. Those complaints do not loom large in Firewall.

The facts of the Iran-Contra fiasco are relatively simple and straightforward. The United States allegedly traded arms to Iran in a bid to free American hostages; in turn, the profits from those sales, prohibited by law, were funnelled into secret accounts in order to help underwrite the Nicaraguan freedom-fighters known as the Contras. Some of those implicated in this scheme, like Lieutenant Colonel Oliver North, thought it simply a "neat idea". Others did not. The very notion of a group of rogue White House staffers undertaking to influence (if not make) foreign policy not only out of sight of Congress, but in direct defiance of its dictates, struck at the very heart of the rule of law. In the end, the question for the Iran-Contra investigators was the same as that of Watergate: what did the president know and when did he know it?

In the view of Walsh, President Reagan knew plenty and he knew it early on. To protect him and his administration, Walsh insists, his closest advisers (especially Attorney General Edwin Meese III and Defense Secretary Caspar Weinberger) circled the wagons, threw out a couple of sacrifices in the form of North and national security advisor Admiral John Poindexter, and then sealed their lips. By Walsh's calculation the result was nothing less than a criminal conspiracy and cover-up for which he eventually indicted Weinberger on felony charges that included obstructing a congressional investigation andperjury.

On Christmas Eve 1992 President George Bush issued a pardon to Weinberger and others Walsh had indicted, playing what Walsh calls the "last card in the cover-up" and one suspects that it was this act of political defiance that pushed Walsh to write this often-shrill account of the Iran-Contra mess. For it was at that point, Walsh concedes, that Bush became his "principal opponent".

It is precisely this pique and petulance than makes this a far more personal book than one might have hoped. (Does one really need to know, for example, how Walsh's "loneliness deepened" when he checked into his suite at the Watergate Hotel?) The defect of so personal an account (beyond the obvious "who cares?" problem) is that it misses the more important political and legal issues, those that are not most easily framed in the us-versus-them adversarial mode.

Those deeper political and legal issues have less to do with Walsh than the office he held for over six years. The independent counsel was created as part of the Ethics in Government Act of 1974 by a Congress still reeling from the disclosures about Watergate. With Nixon's attempted political use of the Justice Department and the FBI to bury what began with the shenanigans of the Watergate burglars - and ended only with his resignation - there was a general feeling that an independent prosecutor was essential in cases of wrong-doing in the executive branch. Otherwise, the president would be left free to investigate himself, a clear conflict of interest. Nixon's sacking of Archibald Cox during the "Saturday Night Massacre" only proved the point. But it did not take long for the independent counsel to become part of the institutional make-up of modern government. This position seems to have been secured when the Supreme Court of the United States ruled in Morrison v. Olson (1988) that, whatever the doubts about its political prudence, the independent counsel law was not unconstitutional. As a result, its use has become ever easier to initiate, and ever harder politically to resist.

The price paid for this new institutional weapon is public cynicism of the most corrupting sort. As Attorney General Janet Reno has been learning, the decision not to appoint an independent counsel looks itself like a cover-up. While maintaining that the Justice Department is quite capable of handling such inquiries as the current fund-raising scandals surrounding both the president and the vice-president, the attorney general finds the tide of public doubt rising around her. In the end, she will probably call for yet another independent counsel because she will lack both the political will and the political support to resist; the most unfortunate result will likely be one more book likeFirewall.

Gary McDowell is director, Institute of US Studies, University of London.