Dig And Delve Independent Counsels Not Meant For Trivial Matters Con: Few Citizens Care Abour Officials’ Peccadillos

Two counts of the indictment drawn by an independent counsel against Henry Cisneros charged that he lied when he said he had two extramarital affairs in the years before he became secretary of housing and urban development. The charge is that he slept with more than two women outside his marriage.

That is the level of triviality to which the great original purpose of the independent counsel has been reduced. It is a reductio ad absurdum.

The idea of the independent counsel or special prosecutor was introduced in the federal government to deal with the most profound of problems: misuse of the power of the state. It was an addition to the checks and balances devised by the framers of the Constitution to prevent abuse of power.

Watergate called the office into being and exemplified the reasons for it. A president had used the powers of the White House to cover up a crime, attempting to corrupt the FBI and the CIA to that end. Moreover, officials of the Justice Department had bent to the president, showing themselves unfit to conduct the investigation. A special prosecutor was essential.

The other great occasion for an independent counsel was the Iran-contra affair. Here a president, or perhaps members of his staff using his powers, had violated an act of Congress in order to pursue an unauthorized war. It was the gravest of challenges to our constitutional order. In the end it proved beyond even the grasp of an independent counsel, hobbled as he was by unfavorable court rulings and the successor president’s use of the pardoning power.

Challenges of that order justified the extraordinary role of an independent counsel, unconstrained as he is by budgetary and other executive branch controls. But it is hard - I think impossible - to justify creating such an office in order to investigate the truth of an official’s account of his sex life.

The special prosecutor in the Cisneros case, David M. Barrett, worked for two and one-half years and spent $4 million. Last week he obtained from a grand jury an 18-count indictment focusing largely on charges that Cisneros lied to FBI agents and Congress about the amount of money he had paid to a former mistress.

The indictment said Cisneros told investigators in 1993, falsely, that he had paid the woman no more than $10,000 a year and that the payments had stopped. Prosecutors said the amounts were much larger, continued into 1994 and were designed to buy her silence and thus protect Cisneros’ chance of nomination to the Cabinet and confirmation by the Senate.

If American society had not developed its latter-day zeal to hold the sex lives of officials up to Puritan standards, I doubt that Cisneros’ would have become an issue. In most other countries, no one would care. In fact, I doubt that most Americans care. Most rate President Clinton highly in his job despite charges about his past personal life, and the same would no doubt be true of President Kennedy despite lurid tales of his sexual behavior.

Most of the charges against Cisneros relate to tawdry personal business. But there is a more serious charge: that he asked two former subordinates in a company he ran to lie about his extramarital relationship and promised them Government jobs if they did.

In any event, there is nothing about any of the charges against Cisneros that required an independent counsel. The public integrity section in the Justice Department handles such matters all the time - and far more serious cases of official corruption. It could have dealt with anything in Cisneros’ life that rose to the level of a federal crime.

There is a special danger in the role of an independent counsel. Other prosecutors have responsibility for dealing with a great range of crimes. They have to make choices, in terms of seriousness, about which to investigate and prosecute. An independent counsel has only one main subject to justify his existence, and the temptation to charge and overcharge must be great. It takes someone of great discipline not to prosecute.

From the beginning, the independent counsel idea has had its critics. They thought it gave too much uncontrolled power to one lawyer, and violated our constitutional separation of powers by having him appointed by judges. Those doubts were silenced by urgent occasions for an independent counsel. They cannot be ignored now.

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