SPECIAL PROSECUTOR LAW HAS PROBLEMS, CRITICS SAY.

Byline: Neil A. Lewis The New York Times

After Watergate, the idea of having special prosecutors who were independent of the White House look into allegations of high-level wrongdoing seemed an obvious, even compelling, innovation.

Now, two decades later, there is a deep and increasingly angry division among lawyers, White House officials and many in Congress over whether the law that allows for such independent prosecutors has proved more trouble than it is worth.

Far from creating a class of investigators immune from criticism, the law has led to political fighting that has grown through the years.

One of President Clinton's political advisers, James Carville, has attacked Whitewater independent counsel Kenneth Starr as a partisan Republican trying to undermine the president and abusing investigative powers.

Republicans also have their complaints, most recently over Attorney General Janet Reno's decision Friday to deny a request from Sen. John McCain, R-Ariz., for a new counsel to investigate Democratic fund-raising.

By one reckoning, the law has done what it was meant to do: ensure confidence in the criminal justice system by avoiding the appearance of conflicts of interest.

Since the law's enactment in 1978, there have been 17 investigations by independent counsels, estimated to have cost a total of at least $115 million. Of those, 10 ended with no indictments and little question about political favoritism. Four others, including Whitewater, are ongoing.

There were several convictions in the Iran-Contra investigation, although some were overturned on appeal. Michael Deaver, an aide to President Ronald Reagan, was convicted of perjury. Another Reagan aide, Lyn Nofziger, had a conviction on conflict-of-interest charges overturned.

Still, some of the law's severest critics are a bipartisan group with an unusually close-up view of the situation: several former independent counsels. They say the law has not increased public confidence in the government, but has led to broad, even bloated, investigations that can hobble an administration and subject minor figures to persecution.

The most hotly contested part of the law is its so-called trigger provisions spelling out circumstances under which an attorney general should put it into effect. The statute obliges the attorney general to ask a special three-judge panel to appoint a special prosecutor if there are reasonable grounds to believe ``specific, credible allegations'' made against senior officials in any of hundreds of categories.

In announcing Reno's decision Friday not to pursue the appointment of an independent counsel to look into Democratic fund-raising, the Justice Department cited the trigger provisions, saying that none of the allegations involved high-level officials covered by the law. She said the matter would be handled by career prosecutors in the department.

Reno made some White House officials unhappy on earlier occasions when she sought independent counsels in cases in which the officials thought she need not have done so.

Republicans have suggested that President Clinton has left Reno's future uncertain - he has not said whether he wants her back in his second term - as a way of pressuring her not to seek a counsel in the fund-raising case.

Reno acknowledged the conflicting pressures when asked about the case early this month. ``You are damned if you do and damned if you don't,'' she said at a news conference. ``I get criticized for doing one thing. I get criticized if I don't do another thing.''

Some former independent counsels believe the law's threshold for when a counsel can be named is too low. Joseph E. diGenova, a former U.S. attorney who served as an independent counsel from 1992 to 1995, said the law had allowed investigators to ``feast on the bodies'' of public officials.

DiGenova complained that it required that independent counsels be appointed even when there were only sketchy, minor allegations, thus producing a proliferation of special prosecutors and giving the impression that corruption is rampant.

``The routine use of the statute has undermined public confidence,'' he said. ``Instead of being reserved for those rare moments when there could be a constitutional crisis, it trivializes the use of independent counsels.

``The statute should be restricted to the president, vice president and the attorney general and their families.''

DiGenova investigated charges that officials in the Bush administration illegally searched passport files to obtain confidential information about Bill Clinton, then a candidate for president. DiGenova concluded that no crime was committed, brought no indictments and instead apologized to the officials on behalf of the government.

At a recent seminar sponsored by the American Bar Association, several prominent lawyers said the law is needed but should be modified to limit its use.

Archibald Cox, who was a special prosecutor for Watergate crimes, is a living reminder of the problems that existed before the independent-counsel law was enacted to guarantee some investigative freedom. When President Richard M. Nixon found Cox was getting close to uncovering evidence of wrongdoing, he had Cox dismissed.