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August 11, 1998

Ex-Independent Counsels Have Mixed Thoughts About the Job

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    They are a rarefied roster of not quite two dozen, the men and women who have served as independent counsels investigating high government officials over the last 20 years. They have delved into accusations of everything from cocaine use by a senior White House aide to perjury, influence-peddling and favor-trading, and have produced decidedly mixed results, from no indictments to convictions to reversals on appeal.

    Some of them have been harshly criticized for taking too long, spending too much or seeking to criminalize conduct that is rarely prosecuted. But as Kenneth Starr's investigation of President Clinton has moved from scrutiny of a tangled real estate investment to intimations of intimacy with an intern, the law that created independent counsels has come under attack as almost never before.

    Interviews in the last week with seven of the people who have held the job since that law, the Ethics in Government Act of 1978, was adopted in the wake of Watergate produced broad consensus that the statute was needed but might have to be overhauled if it was to be renewed by Congress when it expires next year.

    The former counsels were unanimous on one point: All were glad to have served. But a majority also said that as currently written, the law covered too many officials and too many potential acts of wrongdoing, and left the attorney general too little discretion about when to invoke it.

    "It should be limited to activities that occur in office," said Lawrence Walsh, who spent six years and $40 million investigating the Iran-contra affair and whose suggestions for changes were among the most sweeping. "It should be limited to misuse of government power and should not include personal mistakes or indiscretions. The enormous expense of an independent counsel's investigation and the disruption of the presidency should not be inflicted except for something in which there was a misuse of power. That's not out of consideration for the individual; it's out of consideration for the country."

    And while the former counsels generally declined to comment on Starr's investigation, virtually all of them also said that wide experience as a criminal prosecutor or a defense lawyer -- experience that Starr does not have -- should be a requirement for the job.

    "I believe strongly in the concept of an independent counsel to guarantee public confidence in the impartiality of any criminal investigation into conduct of top officials in the executive branch of our government," said Whitney North Seymour Jr., who won a perjury conviction against Michael Deaver, a former top aide to President Reagan who was accused of lying about his lobbying activities after leaving office.

    "However," Seymour continued, in comments generally echoed by his colleagues, "appointments to that position should be limited to lawyers with proven good judgment and extensive prior experience in gathering admissible evidence, developing corroboration and satisfying the trial standard of reasonable doubt. We simply cannot afford the spectacle of on-the-job-training in such a sensitive position."

    Since Arthur Christy was appointed in 1979 to investigate accusations that Hamilton Jordan, President Carter's White House chief of staff, had used cocaine at Studio 54 -- a case that ended with no indictments -- there have been a total of 20 independent-counsel investigations, some conducted by more than one prosecutor. The names of the targets of two investigations in the Bush era, and the counsels who conducted them, were sealed by court order. One investigator, Robert Fiske Jr., was appointed by Attorney General Janet Reno in 1994, at a time when the law had expired, and was replaced four years ago last week by a three-judge federal panel that chose Starr instead, but Fiske had essentially all the same powers.

    Five investigations of Clinton administration officials, including Starr's, are still pending, and Ms. Reno remains under intense pressure to ask the judicial panel for yet another prosecutor, to look into campaign finance abuses. No effort was made to interview those conducting active investigations, or the counsel who ended his investigation of Commerce Secretary Ronald Brown after Brown's death in a plane crash in 1996.

    A common theme in the remarks of the seven former counsels who agreed to be interviewed was the momentous power and isolation of the job, a parallel universe of solitude and solemn responsibility.

    "In terms of individual power, I never had anything like this," said Walsh, who had served as a federal district judge and, in the Eisenhower administration, deputy attorney general. "Night after night, I'd wake up in the middle of the night. I kept a notebook by my bed, and the only way I could get back to sleep was to write down whatever was bothering me. I'd worry about my travel expenses, thinking, 'This is going to seem very high."'

    Fiske forsook the companionship of the only four friends he knew he Little Rock, Ark., who all happened to be leading lawyers there, when he set up shop to investigate Whitewater.

    Scholarly critics of the independent counsel law, including a Supreme Court justice, Antonin Scalia, have argued that it creates built-in incentives for prosecutors to pursue evidence and avenues of inquiry that law-enforcement officials might otherwise decide were never likely to bear fruit. The incentives: simply the intense political pressure and public scrutiny that surround any appointment, and the requirement that the prosecutor produce a detailed public report justifying the findings.

    That concern was also common among the former prosecutors themselves.

    "There ought to be some way to limit the ability of an independent counsel to expand his or her investigation, to keep their eye on the original target they were initially appointed to investigate," said James McKay, whose conviction of Lyn Nofziger, a former Reagan aide charged with violating ethics laws on lobbying, was overturned on appeal after an inquiry that lasted 14 months and cost $3 million. "When you think of how the Starr investigation started with Fiske and Whitewater and now what's become of it, it just seems that there should be some way to have prevented that from occurring."

    Joseph Di Genova, who ultimately brought no charges after a three-year, $2.2 million investigation into accusations that senior Bush administration officials improperly sought information from Bill Clinton's passport files during the 1992 campaign, was the sole former prosecutor to condemn the law altogether, and he said it should not be renewed.

    "All of the usual governors, both legal and practical, are absent, because of the special nature of the statute," said DiGenova, who argues that once the law is invoked, prosecutors are forced to bring "an unnatural degree of targeted attention" to the case.

    Fiske, who like Walsh and DiGenova thinks any law should cover investigation of only the president, the vice president and the attorney general rather than the 75 or so senior government and party officials now automatically covered, also worries about the potential for abuse.

    "Once the person is selected, it's like recalling a missile," Fiske said. "You can't recall it, and it's kind of unguided, except by its own. And so all these things are judgment calls."

    But like his colleagues, Fiske emphasized that a prosecutor ultimately had wide discretion over what to pursue, and he recalled that after David Hale, a former municipal judge in Arkansas, had pleaded guilty and begun cooperating in the Whitewater case, he provided much useful information, along with accusations that seemed far afield.

    "There were a lot of other things that David Hale told us that we could have investigated under our charter," he recounted "but I just said, 'This is too far removed from what we were supposed to be doing."'

    Several of the prosecutors expressed concern that the current law led too easily to the appointment of independent counsels. Every time the attorney general receives "specific and credible" allegations of wrongdoing by an official covered under the act, she has 30 days to decide, without compelling anyone's testimony, whether a preliminary investigation is warranted. If she concludes that it is, then she must decide within 90 days whether there are "reasonable grounds" to believe that further investigation is warranted. If there are, she must apply to the special three-judge court for appointment of an independent counsel.

    "That time limit now is too brief," McKay said.

    But one of the former prosecutors, who spoke only on the condition of anonymity, said that the law was sound as written and that complaints that it invited prosecutorial vendettas were overblown. Seymour also rejected complaints of unbridled power, saying he had had no more leeway as independent counsel than he had earlier had as U.S. attorney in Manhattan in the Nixon administration.

    "The United States attorney for the Southern District has almost unlimited power," Seymour said. "How the responsibility is carried out is another question."

    Similarly another former independent counsel, Alexia Morrison, said that the law did not need any major changes and that "there's been a very successful campaign to lay faults at the foot of the statute when in fact it is conduct that got us here." Asked whether she meant conduct by Clinton, Starr or both, Ms. Morrison simply repeated her assertion.

    It was Ms. Morrison's investigation into whether Theodore Olson, an assistant attorney general in the Reagan administration, misled Congress in a dispute over toxic waste cleanup that led to the 1988 Supreme Court ruling upholding the independent counsel law. And though she ultimately brought no charges after a 30-month, $1.5 million investigation, she, like many of her colleagues, said that very result underscored one of the most important features of the law, because it enhanced the public's confidence that nothing had been covered up.

    "There are a heck of a lot of very troublesome investigations that have been resolved without bringing any criminal charges," Ms. Morrison said, "and there was not a situation in which anyone came back and said, 'That's outrageous."'

    Fiske, too, said that in the absence of such a law, there would seldom be significant public controversy if high officials were charged and brought to trial, whatever the outcome, but that "the problem is when the case isn't brought" because a prosecutor decides there is not enough evidence or likelihood of success. "In many respects," he said, "that is where you need the independent counsel most of all."

    But for alleged misdeeds that may have occurred before a senior official took office, Walsh and Ms. Morrison said, the solution should be to extend the statute of limitations for any such crimes and investigate after the official leaves office, though Ms. Morrison acknowledged that this could pose its own problems, in terms of stale evidence or lost witnesses.

    In one way or another, all the former counsels who were interviewed deplored the partisanship now surrounding an office that grew out of bipartisan concern over Nixon's "Saturday night massacre" of the first Watergate special prosecutor, Archibald Cox, and the two highest officials of the Justice Department.

    "It's become so politicized now," McKay said, "that the ins hate it and the outs love it just for the purpose of bringing the ins down. That's the part that will turn the public sour."

    Seymour agreed, saying: "It plainly has gotten a bad name. And that comes from the public perception of recent events, and I think that's unfortunate."

    DiGenova contended that Cox's dismissal was the exception that proved the rule, particularly since the Watergate inquiry continued under additional until Nixon's downfall. "There's no way that a sitting president can possibly prevent his own investigation by firing anybody, because the political process will not permit it," he said.

    Ms. Morrison said it remained unclear whether the public would continue to support the law.

    "I think most of the previous independent counsels have been able to achieve a result with a general sense of public confidence that the way they got there was appropriate," she said. "But hold your breath. It may be that Starr can spin out a report that tells an incredibly interesting tale that puts the lie to most of the procedural and substantive assaults on him. On the other hand, if it looks like he hasn't produced so much, and has used an elephant gun on a flea, then maybe that won't be so well regarded."

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