I don’t like being accused of changing my position depending on whose (political) ox is being gored. The fact is, Kenneth Starr’s mandate was quite clear. He was operating within the well-known boundaries of a law specifically passed by Congress to govern the kind of investigation he was pursuing. Of course, Republicans opposed renewing that law in 1993, at the beginning of the Clinton presidency. But Bill Clinton and Janet Reno thought it was vital to the maintenance of public trust in government, and Democrats, then in the majority in Congress, agreed. So it was renewed and provided the structure for the Starr and other investigations of the Clinton years.
After Lewinsky, of course, Clinton and his party had a different view on the IC law, so in 1999, they finally agreed with Republicans to let it lapse. But what to do after that? There would clearly be accusations of public wrongdoing in the future, and how should they be handled? Congress held hearings to explore the question, and the administration came up with a structure for what is sometimes called a regulatory independent counsel, which would be subject to greater executive branch supervision than the old independent counsels in future investigations. It was a reasonable solution to a perennially difficult problem.
So what happened in the CIA leak case? The Bush Justice Department could have followed that structure. But it chose not to. Instead, John Ashcroft threw the political hot potato to James Comey, who in turn threw it to his friend Patrick Fitzgerald, giving him virtually absolute power to determine his own course: “I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.” Was that extraordinary, and new? Ask David Barrett if he would have liked to have had that authority. But he did not, because the independent counsel law placed limits on investigations that Fitzgerald does not face.
In sum, in the Clinton investigations, Republicans didn’t like the independent counsel law, but it was the law. In the Fitzgerald case, it’s just improvisation.