The independent-counsel statute will expire on June 30 unless Congress acts. With the law under attack both by Democrats who formerly championed it and by Republicans who have never liked it, a diverse, bipartisan group may seek to salvage a slimmed-down version.

Some Senators, including Democrats Joseph I. Lieberman of Connecticut and Carl Levin of Michigan, and Republicans Susan Collins of Maine and Arlen Specter of Pennsylvania, seem to be groping for some way to avoid reverting to the pre-Watergate system, in which allegations of crimes by the President and his top appointees were disposed of by the Attorney General.

Several of the veterans of the independent-counsel wars who have testified in the four illuminating Senate Governmental Affairs Committee hearings held since late February have urged retention of the statute, albeit with major changes. One theme in this plea has been, in the words of Washington lawyer Nathan Lewin, that ”the concept of an independent counsel–not answerable to the Attorney General or the President–is essential for public confidence in government.”

The arguments for keeping some kind of court-appointed independent-counsel system are sincere, thoughtful–but, in my view, ultimately unconvincing. It is time to let this statute die, and to give the Justice Department’s prosecutors–a more honest and professional bunch than they are given credit for being–a chance to show they can do the job.

Two fundamental problems with the statute transcend such ephemera as Democrats’ hatred of its current personification, Kenneth Starr, and Republicans’ hatred of Iran-Contra Independent Counsel Lawrence E. Walsh.

The first problem is that the independent-counsel system has failed almost utterly to achieve its purpose of fostering public confidence that investigations of alleged high-level criminality are untainted by partisan bias.

The Supreme Court and the National Collegiate Athletic Association, like lots of institutions, have an awkward problem.

It’s what lawyers call ”disparate impact”: the statistical underrepresentation of black and Hispanic people among those found to be the best qualified for coveted positions ranging from elite law clerks to student-athletes.

Such disparities have spawned many a civil rights lawsuit, and in recent months have inspired a controversy over judicial hiring practices, complete with protesters led by the NAACP shouting ”discrimination” outside the Court.

Two recent developments should give the justices food for thought about how they and the rest of the federal judiciary might fare if–as Rep. Jesse Jackson Jr., D-Ill., recently proposed–they were subject to the same civil rights rules that they, and Congress, enforce against others.

First, on March 8, U.S. District Judge Ronald L. Buckwalter of Philadelphia voided the NCAA’s minimum test-score requirement for student-athletes on the ground that it subjected African-Americans to racial discrimination, in violation of federal civil rights law.

His reasons were that (1) a far smaller proportion of blacks (79.6 percent in 1997) than of whites (95.8 percent in 1997) have scored well enough on the tests to qualify under the NCAA rule’s cutoff score, and (2) the NCAA had not carried the (virtually insuperable) burden of proving to the judge’s satisfaction that the rule’s ”particular cutoff score” was sufficiently effective at improving graduation rates–its main purpose–to justify this disparate racial impact.

The NCAA is expected to appeal.

A March 5 federal appeals court ruling has propelled toward the Supreme Court a dispute that could have a major impact on the relative powers of Congress, the states, and the high court itself.

The immediate question is whether the 7-4 appellate decision was correct in striking down a provision of the Violence Against Women Act of 1994 (VAWA) authorizing alleged victims of ”crimes of violence motivated by gender” to sue their alleged victimizers in federal court. It was designed to help harmed women, ranging from abused wives to rape victims.

The more fundamental question is whether Congress enjoys a virtually unlimited power to regulate or punish private, noncommercial conduct traditionally governed by state law, as the four dissenters implied, or, contrarily, is subject to constitutional limits rooted in federalism and enforced by the courts, as the majority inferred from recent Supreme Court precedents.

The case is also a striking example of how politicized justice in America has become. The U.S. Court of Appeals for the 4th Circuit (in Richmond, Va.) decided it by a straight party- line vote: All seven judges voting to strike down the statute were named by Republican Presidents; the four dissenters, by Democrats.

On still another level, the facts dramatize either the need to provide federal remedies for women victimized by male violence or–depending on whom you believe in this she-said, he- said dispute–the dangers of presuming guilt when women (especially white women) accuse men (especially black men) of rape (especially in the Old South).

The plaintiff (Christy Brzonkala) claims that she was raped and verbally abused by two black football players (Antonio Morrison and James Crawford) in September 1994, when all three were students at Virginia Polytechnic University.

One of the most important questions raised by Juanita Broaddrick’s allegations is how we would react if someone just like her claimed to have been raped 21 years ago by (for example) George W. Bush, or Al Gore, or Henry Hyde.

Would the news media report the allegations? Should they? Does their handling of such cases hinge on neutral principles of evidence and fairness–or on the particulars of the accuser and the accused?

The answers are not self-evident. Much depends on the mass of details that should inform our necessarily subjective evaluations both of the importance of such allegations and of the probability that they are true.

But the working presumption, I submit, should be that allegations as ancient as Broaddrick’s–even those that seem plausible–are neither newsworthy nor of public importance. That is, unless the available evidence, including character evidence, very strongly suggests that they are more probable than not.

The reason for this is not merely that a ”she-said, he- said” standoff can be neither proved nor disproved with complete confidence so many years after the event, given the unavailability of eyewitnesses, medical records, and the like. Clinton defenders and others seem a bit off the mark in arguing that Broaddrick’s charges can never be proved with the kind of rigor required in actual criminal prosecutions.

The uncomfortable truth is that in acquaintance-rape prosecutions, we rarely have eyewitnesses, dispositive documentary evidence, or other proof strong enough to dispel all doubt–even when the woman goes to the police immediately.

Men go to prison for rape all the time based on the uncorroborated testimony of a woman who claims that she did not consent when the man says that she did. Mike Tyson, for one. And men are acquitted all the time in similar cases. William Kennedy Smith, for one.

What do Rep. Charles B. Rangel (D-N.Y.), former Attorney General Edwin Meese III, the American Bar Association, a federal prisoner named Rita Gluzman, and Kenneth Starr’s more ardent critics have in common?

All have arrived at the view that the criminal justice system has become an engine of often irrational excess. And all, to varying degrees, are right.

Congress, President Clinton, his predecessors, their counterparts in the states, and the American people have over the past 30 years or so created a system that routinely federalizes the prosecution of crimes better left to state and local authorities, wastes tax dollars on unneeded prisons, and frequently veers into grotesque cruelty.

The most clearly wronged victims of these malignant trends are not those pursued by Starr, but the many thousands of young people who have seen their lives wrecked by the draconian, Clinton-supported mandatory minimum prison terms that Congress has adopted for nonviolent, relatively minor drug crimes. Many of these prisoners are doing five, 10, even 20 years. A hugely disproportionate number of them are from poor black and Hispanic families.

This racially skewed incarceration boom got a big push in 1986 and thereafter from congressional Republicans and Democrats alike. It was embraced by Clinton.

The reason for this bipartisan love of locking up is pure political opportunism: While hammering small-time drug defendants has little or no impact on the drug trade or on violent crime, the public’s lust for punishment means that bad policy makes good politics.

”I question the efficacy of incarcerating thousands of poor, nonviolent, first-time drug offenders who are illiterate, addicted, and unemployable,” Rangel said in a letter published in the Feb. 22 Wall Street Journal.

Amid ever-more-disingenuous diversions by President Clinton’s apologists–ranging from Senate Minority Leader Tom Daschle to the front page of The New York Times–the last hope for bringing the Senate trial to a tolerably honest, tolerably bipartisan conclusion has come into focus.

The hope is that the Senate Republican leadership will insist, with the help of at least a few honest Democrats, upon something close to the tough ”findings of fact” that have been circulating lately among Senators.

One draft approved by the leadership would have the Senate find that ”the House managers have established to the satisfaction of the Senate” that the President 1) ”willfully provided false and misleading testimony” to the grand jury under oath, and 2) ”wrongfully engaged in conduct to delay the discovery, and cover up the existence, of evidence and to alter testimony related to a federal civil rights lawsuit and a United States grand jury investigation.”

How could any honest Senator vote against such findings? Their factual accuracy has been established by overwhelming evidence. They stop short of convicting (or acquitting) the President of any crime–a mark of considerable restraint, considering the weight of the evidence against Clinton. They would allow Senators to vote their consciences, first on the evidence, then on the ultimate issue of whether it warrants removal. They would appropriately clarify the real meaning of the apparently preordained vote to leave the popular President in office.

As Sen. Joseph Lieberman, D-Conn., said on Jan. 31 on ABC’s This Week: ”Several of us have said (that the President) was false and misleading, he acted to cover up, some have said he lied under oath, and if that’s what the findings say, then I for one would be hard-pressed to vote against it.”

After somehow stumbling into inconvenient alliance with right-wing Republicans on the matter of our slightly reprehensible-but-utterly-indispensable President, I wish to announce that I have seen the light. I am repenting my sins, returning to my Democratic roots, and seeking solidarity with my progressive brethren.

I hereby commit myself to the Democratic credo. I’m not interested in those old, annoying questions: What did the President know and when did he know it? Or what did he do and why did he do it? Or anything else at all. Just don’t wanna know.

Don’t wanna know if he lied under oath. Or how many times. Don’t wanna know if he coached Monica Lewinsky and Betty Currie to lie. Don’t wanna know whether someone else who got caught doing stuff like that would be in the Big House, not the White House.

Don’t wanna know what the Constitution and precedents really say about whether such things are impeachable. Don’t wanna hear any nasty old witnesses–don’t wanna be confused with the facts.

Especially don’t wanna hear that inconvenient Sid Blumenthal. Don’t wanna hear the ”very heartfelt story,” in Blumenthal’s words, that Clinton told him last Jan. 21 (the day the Lewinsky story broke). Don’t wanna hear about Clinton’s telling Blumenthal that ”Monica Lewinsky came at me and made a sexual demand on me.” Don’t wanna hear about Clinton’s saying that when he rebuffed the trollop, she ”threatened him” and ”said that she would tell people they had an affair, that she was known as ‘the stalker’ among her peers and that she hated it….”

I feel better already. I’m a Democrat again!

I have good news for the Senate. And for the House. And even for those who (unlike me) want President Clinton censured rather than removed from office.

The news is that a reinterpretation of the Constitution, based on a close textual inspection, shows clearly that even if two-thirds of the Senators vote to convict Clinton of perjury or obstruction of justice, they will still have the option of letting him finish his term while (if they wish) censuring him. While Rep. Lindsey O. Graham, R-S.C., has publicly so hinted, this view flies in the face of the conventional wisdom, which is that Senate conviction of an impeached President automatically removes him from office.

But the conventional wisdom is dead wrong. And so is the related notion–almost universally espoused in academia, in journalistic writings (including my own, until now), and in the legal briefs of both the President and the House managers–that a President can be impeached, convicted, and removed only for ”treason, bribery, or other high crimes and misdemeanors.”

Have I gone nuts? A fair question. But I’ll bet that you will be driven toward the same conclusion if you study the relevant text of the Constitution (quoted below), and especially if you go on to read a pathbreaking but largely unnoticed scholarly paper by a law professor named Joseph Isenbergh, of the University of Chicago. His reinterpretation unlinks conviction from removal, and unlinks impeachment from ”high” crimes as well.

First, however, clear from your mind the fog of academic and journalistic commentaries, the out-of-context fragments of the Framers’ debates that pervade such commentaries, and the litter of confusing precedents that accompany them; instead, focus like a laser on the bare, unadorned words of the Constitution’s most relevant impeachment clauses, reading them anew in the sequence in which they appear.

Consider some wise words of great consequence for two critical issues now pending before the Senate. The first issue is whether President Clinton’s alleged perjuries and obstructions of justice rise to the level of impeachable ”high crimes and misdemeanors.” The second is whether the allegations of prosecutorial misconduct by Independent Counsel Kenneth Starr are relevant to the Senate trial.

The wise words: ”It is incumbent on the Senate to fulfill its constitutional responsibility and strip this man of his title. . . . An individual guilty of such reprehensible conduct ought not be permitted to exercise the awesome powers which the Constitution entrusts to (him). . . .”

And: ”(His) contention seems to be that but for a vast conspiratorial vendetta, his innocence would have been proven or the charges would never have been brought. . . . He suggests that federal prosecutors pursued him so relentlessly and unscrupulously that they bargained for perjured testimony (and) that exculpatory evidence was withheld and . . . witnesses . . . intimidated. . . . If the claims have merit, steps should be taken to rectify the wrong. Remedial measures, however, will in no way abrogate the finding that (he) has engaged in impeachable conduct.”

Thus spake then-Senator Al Gore, in 1986, during the impeachment trial of U.S. District Judge Harry E. Claiborne for lying on two tax returns by grossly understating his income–that is, for lying to the government about a private matter involving no abuse of his official powers.

In removing Claiborne by a 90-7 vote, the Senate ruled that criminal lies about private matters amount to high crimes and misdemeanors.

Much ink has been spilled about the felt need of all civilized people to avoid the ”agony” of having (gasp!) witnesses testify about (eek!) facts in the well of the Senate.

Hide in your homes! Lock up your children! Smash your TV sets! The Great Trauma is coming! Monica is marching on the Capitol–and she’s going to go on and on for months about . . . I Can’t Bear To Say It!

Well. I am told by two of the 13 House managers who will prosecute the case that their witnesses should take only a week or two, and that their direct examination of Monica Lewinsky about what President Clinton called their ”inappropriate, intimate” contacts will probably go something like this: Q: Ms. Lewinsky, did you give sworn testimony on Aug. 6 and 20 to the grand jury convened by Independent Counsel Kenneth Starr, and on Aug. 26 in a deposition taken by his staff?

A: Yes.

Q: And do you have with you the official transcripts of that testimony?

A: Yes.

Q: Have you reread them today?

A: Yes.

Q: Are they an accurate account of your testimony in every respect?

A: They are.

Q: In particular, is your testimony in these transcripts entirely accurate as to details of the 10 meetings during which you had sexual contacts with the President, and he with you, between November 1995 and March 1997?

A: Yes.

Q: And is your current recollection of those 10 meetings consistent with that testimony in every detail?

A: Yes.

Q: And how detailed is your current recollection of those 10 meetings?

A: Very detailed.

Q: Thank you. I have no further questions on that subject.