Whitewater may not be Watergate, but the Clinton White House has apparently surpassed even the Nixon White House in generating billable hours for the Washington white-collar defense bar.

At last count, nearly 40 current and former officials of the Clinton White House alone have found it necessary to retain counsel. The Clintons and at least one senior aide have also created the first legal defense funds in history for incumbent executive branch officials-an unfortunate precedent, but perhaps a necessary one.

The legal travails of the Clintonites, and of some Reaganites before them, raise a long-term problem that Congress needs to solve, lest it plague future administrations, too.

In the words of Alan Morrison of Public Citizen Litigation Group, "Some provision must be made so that vulnerable public officials not be left without means to defend themselves and that they not have to beg for money from those who appear before them or who otherwise are affected by their official actions."

The essential problem is that anyone taking a senior governmental position these days, especially in the White House, may end up in need of legal counsel no matter how honorably she conducts herself.

That wasn’t true 20 years ago. It’s a consequence of our current culture of hair-trigger resort to criminal investigations as the ultimate weapon in partisan warfare, and of the vast resources available to independent counsel to turn over every rock in search of evidence of crime. Government service, at least in the White House, now carries a significant risk of being hauled before congressional committees and grand juries, grilled under oath, and perhaps even accused of perjury or other crimes.

Amid the politically tinged investigations of Whitewater and other Clinton scandals, even mere witnesses cannot safely submit to questioning without legal representation. And those who are under suspicion need very expensive lawyering.

So it is that Margaret Williams, chief of staff to first lady Hillary Rodham Clinton, has incurred a crushing $250,000 in legal fees, mostly after coming under intensive investigation for possible perjury. She has started a legal defense fund. George Stephanopoulos, a senior adviser to the president, plans to do the same, to help pay almost $60,000 in fees.

In this they join the president and first lady, who established the Presidential Legal Expense Trust in June 1994, but who are still $1 million to 2 million in debt to law firms because the fees are mounting far more rapidly than are gifts to the trust.

(With the Clintons estimated fees already soaring above $3 million, of which the trust has so far paid only $541,000, the Clintons would be even deeper in debt but for the payment of more than $890,000 by two insurers to Skadden, Arps, Slate, Meagher & Flom, for the defense of the Paula Corbin Jones sexual harassment suit, under a tort liability umbrella policy that the Clintons bought years ago.)

Never before has an incumbent president, or any incumbent White House official, been driven to pass the hat in this fashion. Several Reagan administration officials did so, but only after leaving office.

In Congress, on the other hand, the legal defense fund is an established institution, having been used by more than 25 members, notably including Sen. Alfonse D’Amato (R-N.Y). But the congressional example only underscores the unseemliness of such legal defense funds for incumbent officials. "Most gifts to members of Congress are not motivated by warm feelings of friendship," as Morrison puts it, "but by cold calculations of the benefit that the member can confer on the donor."

But even government ethics purists like Morrison are hesitant to condemn officials who resort to defense funds to pay for legal counsel that, in the current climate, they desperately need.

What choice does an official have if she comes under investigative scrutiny? Should she go nakedly unrepresented before hostile squadrons of lawyer-investigators? Hire counsel and watch her life’s savings go up in smoke? Saddle herself with huge long-term debts to a private law firm?

The reality is that for most people, it would be financially catastrophic to have to retain a first-rate defense lawyer for a prolonged investigation, let alone a prosecution. That’s why most big private companies provide, through insurance or otherwise, for payment of any job-related legal fees incurred by their directors and officers.

The government should do the same. It’s hard enough attracting good people into public service given the other sacrifices involved, without asking them to risk being bankrupted by legal fees as well. And the makeshift private and public expedients that have been worked out so far to cope with the legal-fee problem are highly unsatisfactory.

Legal defense funds are regulated too loosely- under a confusing patchwork of statutes, House rules, Senate rules, executive branch regulations, and Office of Government Ethics opinions-to avert the risk of conflicts of interest and favor-seeking.

Members of Congress typically raise money for their legal defense funds from the same regulated interests that bankroll campaigns. And as a legal matter, the Presidential Legal Expense Trust would be free to take gifts in unlimited amounts from lobbyists and others who might hope for something in return. The trust does not do so because it has wisely refused to accept more than $1,000 per person per year; has shunned corporate, union, and PAC money; and, in a belated concession to critics, has stopped taking money from registered lobbyists. It has also publicly reported contributors’ names and acquiesced in a debatable ruling by the Office of Government Ethics that the trust may not solicit contributions.

These restrictions have minimized the risk of conflicts of interest and favor-seeking. But they have also come close to crippling the trust’s ability to raise enough money to make a dent in the Clintons’ fee obligations.

So legal defense funds aren’t very much help, because they can’t raise enough money unless they resort to shaking down special interests.

The independent counsel statute provides for governmental reimbursement of lawyers fees under limited circumstances; the Clintons and others now under investigation by Whitewater Independent Counsel Kenneth Starr may someday qualify. But any reimbursement is likely to be too little too late for some and nonexistent for others.

That’s because the statute provides for a special court to reimburse "reasonable" fees only at the end of the investigation, only for "subjects" and "targets" of the investigation (and not mere witnesses) who have, not been indicted, and only to the extent that the fees would not have been incurred but for the statute.

Congress needs to do better than this. One step in the right direction would be to make the fee provision more generous. It should require the government to pay the reasonable fees of all those investigated by independent counsel, witnesses as well as subjects, unless they are convicted of crimes.

Alan Morrison has another promising idea: Congress should emulate the private sector by setting up, and partially funding, a mandatory insurance program to pay for private counsel for all senior executive branch officials-and perhaps members of Congress-who come under any form of criminal or congressional investigation. If this were done, Morrison says, legal defense funds for incumbent officials would become unnecessary and could be banned.

Morrison suggests that federal officials could be assessed for as much as half the premiums for such legal-fee insurance, with the government picking up the balance. That may not be realistic: Only a limited number of officials, in the White House and other high-risk positions, are likely to be at serious enough risk of prosecutorial scrutiny to warrant docking their salaries for legal-fee insurance. There may not be enough of them to raise much money in premium payments.

But even if the government has to pay the lion’s share of the premiums, the insurance concept is attractive both because of its private sector analogues and because insurance companies are experienced at reining in lawyers who charge unreasonably grandiose fees, as some in the white-collar bar do.

The insurance coverage should still be generous enough to provide first-rate defense lawyering for officials who are subject to being investigated with the special vengeance for which independent counsel are known.

At some point, of course, the voters might stand back and question why they should pay millions upon millions of dollars, year in and year out, for government-financed independent counsel and government-financed defense counsel to fence with one another every time there’s a whiff of scandal in the air. And then the voters might decide to wind down the machinery of scandal by repealing the independent counsel statute.

That might not be such a bad idea.