THE VENDETTA CHINE

This monument to Lake will be controversial. Some will object that a Special Prosecutor Repeal Act should be dedicated to those who really inspired it: the independent counsels themselves, with their messianic complexes, their multi-million-dollar spending jags, and their years-long vendettas. Men like Iran-Contra counsel Lawrence Walsh. Or the latest nominee, Jim Lake’s buddy, Donald C. Smaltz. Others will favor the victims but ask, why Lake? Why not Mike Deaver? Or Ted Olson? Or Webb Hubbell? Or Margaret Tutwiler? Or Jim Guy Tucker? Or Elliott Abrams? A strong contender will be Elliott’s wife, Rachel Abrams, who voiced the bitterness that all those caught up in the special prosecutor system seem to share.

“I know something about Bill and Hillary Clinton right now,” she wrote, after a passel of special prosecutors were sicced on the Clintonites. “I know how their stomachs churn, their anxiety mounts, how their worry over the defenseless child increases. I know their inability to sleep at night and their reluctance to rise in the morning. I know every new incursion of doubt, every heartbreak over bailing out friends . . . every jaw-clenching look at front pages. I know all this, and the thought of it makes me happy.”

Rachel’s husband could be arrogant and unbending, but those are not crimes. His real sin was that he helped run a policy in Central America that the Democrats hated. Not content to tangle with Elliott Abrams solely in the political arena, the Democrats followed a strategy all too common in the 1980s: They agitated for the Iran-Contra prosecutor to investigate him. Ultimately, Abrams was adjudged to have given less than complete answers to a hostile congressional committee. A liberal Democratic lawyer in the special prosecutor’s office admitted to a grudge against Abrams; in any case, Walsh ended up with Abrams’s scalp, in the form of two misdemeanor pleas. The process took five years and cost Abrams hundreds of thousands in legal fees, so his wife’s outburst is understandable.

Others actually suffered ordeals even more Kafkaesque, as it became the fashion to try to criminalize policy differences between the parties. Theodore B. Olson incurred the wrath of Capitol Hill Democrats by formulating the Reagan administration’s policy regarding release of Environmental Protection Agency documents to congressional committees. When Judiciary Committee Chairman Peter Rodino didn’t like the regulations, he called for a perjury investigation of Olson. After a six-year inquiry, the special counsel announced almost reluctantly that she couldn’t charge Olson with a crime because he’d told the truth.

The special prosecutor law was enacted in 1978 as a belated response to Richard Nixon’s firing of an independent counsel looking into Watergate. The law was amended in 1983 and 1987; it expired but was passed again in 1993, and President Clinton signed it back into law.

Its laudable aim was to shield investigations of high officials from potential political interference. The rap against the law has always been that there seem to be no limitations on a special prosecutor. He reports to no one, has an unlimited budget, doesn’t have to stand for re-election. Conservative scholars such as Terry Eastland have questioned its constitutionality. The Supreme Court has been unwilling to throw it out, however. So special prosecutors remain free to engage in virtually unrestrained fishing expeditions, and no one answers the haunting question asked by acquitted former Labor secretary Raymond Donovan, “Which office do I go to to get my reputation back?”

In practice, what is strangest about the law is the capriciousness with which investigations expand to net particular individuals. Clinton confidant Webb Hubbell overbilled clients down in Arkansas and didn’t report all his taxes. Not great conduct, to be sure, but what exactly does it have to do with the alleged misuse of federally insured funds that Whitewater is supposedly about? And even if the allegations against Arkansas governor Jim Guy Tucker are true, they came to light only because his predecessor was elected president and an independent counsel was dispatched to dredge the swamp of home-state graft.

For his part, counsel Donald Smaltz was supposed to be looking into the relationship between Clinton’s first agriculture secretary, Mike Espy, and Tyson Foods, Inc., the poultry behemoth based in Springdale, Ark. So how did he come to nab Beltway Reaganite Jim Lake? It appears that one of Lake’s California agribusiness clients wanted to curry favor with the Department of Agriculture by funneling $ 5,000 to retire the campaign debt of Mike Espy’s brother, and Lake was willing to fudge the paperwork. Smaltz pumped up this misdemeanor into a felony using a dubious device increasingly favored by federal prosecutors (they tried it on Al D’Amato’s brother): the all-purpose wire-fraud statute. Another nagging question about Lake’s case is why, after he himself pointed out the transgression to Smaltz and received immunity for it, he was forced to plead guilty when Smaltz announced, 10 months later, that he was going after Lake’s firm. Was this fair? The question was put to Smaltz last week; himself immune to oversight, he felt free to decline any comment.

The larger question remains why an unfettered special prosecutor system still exists. It has been almost a year since the Republicans took over Congress and they’ve wanted to put a leash on these guys for a long time. What they will tell you is that their determination to rid the Republic of this scourge was lost somewhere between Newt Gingrich’s book deal, David Bonior’s braying about GOPAC, and Ross Perot’s contrived crusade to clean up politics. The truth is that they were enjoying entirely too much seeing the Clintonites squirm as a result of the appointment of a record number of special prosecutors.

Margaret Tutwiler, who was put through the wringer on the apparently bogus charge that she rummaged into Clinton’s passport file while serving the Bush administration, found this attitude shortsighted. She recounted running into then-White House communications director Mark Gearan at Logan Airport one day and buying him a drink at a time when Gearan was depressed over his own grand jury appearance and mounting legal bills courtesy of the Whitewater special prosecutor.

“Mark’s “crime” was showing up for 10 minutes at a meeting,” she said scornfully. “For the future of our country, we have to find a way to keep these partisan fights out of the criminal justice system.”

Well, Republicans, the occupant of the White House feels your pain on this one. He may have signed the updated special prosecutor law, but he has all but said he regrets it. He particularly dislikes the fact that the new bill makes the threshold so low for appointment of a prosecutor. Maybe this is the time to call a truce and pass a new scaled-down law under which political corruption could be probed by an independent counsel who reported to the attorney general and who had some constraints on his mandate. While they’re at it, congressional leaders may want to consider narrowing the legal definition of wire fraud and perhaps tighten the much-abused RICO racketeering statute as well.

Last year, before Donald Smaltz was even sworn in as a special prosecutor, I interviewed a well-connected Republican on this subject. He thought it unseemly and ultimately self-defeating for Republicans to rejoice in Clinton’s agony.

“It’s an outrage,” he told me. “The Republicans are stupid for caving in on this. They saw a chance for it to tie up Clinton, and they wink at the abuses. ”

This Republican never worked in the White House, though he was asked to. I asked him why. One factor, he said, was that he’d seen friends ruined and tormented by special prosecutors. “The reason I turned down Reagan and Bush four times was that I like my business,” he told me. “I like my freedom.”

But that was then. His name is Jim Lake.

Carl M. Cannon is the White House correspondent for the Baltimore Sun.