[Congressional Record Volume 144, Number 129 (Thursday, September 24, 1998)]
[Senate]
[Pages S10915-S10916]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               [From the New York Times August 11, 1998]

    Former Special Counsels See Need To Alter Law That Created Them

                          (By Todd S. Purdum)

       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 criminalizing conduct other 
     prosecutors would most often not bother with. But as Kenneth 
     W. 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 E. 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 Mr. Starr's investigation, virtually all of them also said 
     that wide experience as a criminal prosecutor or a defense 
     lawyer--which Mr. 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 K. 
     Deaver, a former top aide to President Ronald Reagan who was 
     accused of lying about his lobbying activities after leaving 
     office.
       ``However,'' Mr. 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 H. Christy was appointed in 1979 to 
     investigate accusations that Hamilton Jordan, President Jimmy 
     Carter's 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 B. 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 Mr. Starr instead, but Mr. Fiske had 
     essentially all the same powers.
       Five investigations of Clinton Administration officials, 
     including Mr. Starr's, still await outcome, and Ms. Reno 
     remains under intense pressure to ask the judicial panel for 
     yet another independent counsel, 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 H. Brown after 
     Mr. Brown's death in a plane crash in 1996.


                  Enormous Power And Intense Isolation

       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 universe of solitude and solemn 
     responsibility.
       ``In terms of individual power, I never had anything like 
     this,'' said Mr. Walsh, who had served as a Federal district 
     judge and Deputy Attorney General in the Eisenhower 
     Administration. ``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.' ''
       When Mr. Fiske set up shop to investigate Whitewater, he 
     forsook the companionship of the only four friends he had in 
     Little Rock, Ark., who all happened to be leading lawyers 
     with ties to the city's political and legal establishment.
       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. Those incentives: simply the intense political 
     pressure and public scrutiny that surround any appointment, 
     and the requirement that the prosecutor produce a detailed 
     report justifying all the effort.
       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 C. 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 
     Mr. 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 DiGenova, 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 
     Mr. DiGenova, who argues that once the law is invoked, 
     prosecutors are forced to bring ``an unnatural degree of 
     targeted attention'' to the case.


                Discretion That Cuts In Either Direction

       Mr. Fiske, who like Mr. Walsh and Mr. 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 campaign officials now automatically 
     covered, also worries about the potential for abuse.
       ``Once the person is selected, it's like recalling a 
     missile,'' Mr. Fiske said. ``You can't recall it, and it's 
     kind of unguided, except by its own gyroscope. And so all 
     these things are judgment calls.''
       But like his colleagues, he emphasized that a prosecutor's 
     wide discretion ultimately cut both ways. He recalled that 
     David Hale, a former municipal judge in Arkansas, having 
     pleaded guilty and begun cooperating in the Whitewater case, 
     provided much useful information, along with some that seemed 
     far afield.
       ``There were a lot of other things that David Hale told us 
     that we could have investigated under our charter,'' Mr. 
     Fiske 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 from a 
     credible source specific 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,'' Mr. 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. Mr. Seymour also rejected 
     complaints of unbridled power, saying he had had no more 
     leeway as independent counsel than he had earlier had as 
     United States Attorney in Manhattan in the Nixon 
     Administration.
       ``The United States Attorney for the Southern District has 
     almost unlimited

[[Page S10916]]

     power,'' Mr. 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 
     President Clinton, Mr. 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 unholding 
     the independent counsel law. And though she ultimately 
     brought no charges after a 30-month, $1.5 million 
     investigation, she, like some of her colleagues, said that 
     very result underscored one of the most important features of 
     the law: enhancing the public's confidence that nothing has 
     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.' ''
       Mr. Fiske, too, said that in the absence of an independent 
     counsel 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, Mr. Walsh said, the independent 
     counsel law should not apply. Rather, the solution should be 
     to extend the statute of limitations for any such crimes and 
     investigate after the official leaves office--a suggestion 
     that Ms. Morrison seconded while acknowledging that this 
     could pose its own problems, in terms of stale evidence or 
     lost witnesses.


               One Common Theme: Disdain for Partisanship

       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 President 
     Richard M. 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,'' Mr. 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.''
       Mr. 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.''
       Mr. DiGenova contended that the aftermath of Mr. Cox's 
     dismissal demonstrated that the independent counsel law was 
     not needed, since the Watergate inquiry continued under a new 
     special prosecutor, Leon Jaworski, until Mr. Nixon's downfall 
     four years before the law was enacted.
       ``There's no way that a sitting President can possibly 
     prevent his own investigation by firing anybody,'' Mr. 
     DiGenova said, ``because the political process will not 
     permit it.''
       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.''
       ``A Rarefied Roster'', independent counsels, the years of 
     their appointments and the results of their investigations.
       1979, Arthur H. Christy, investigated accusations of 
     cocaine use by Hamilton Jordan, chief of staff to President 
     Jimmy Carter. No indictments.
       1980, Gerald Gallinghouse, investigated accusations of 
     cocaine use by Tim Kraft, President Carter's campaign 
     manager. No indictments.
       1981, Leon Silverman, investigated alleged mob ties of 
     Raymond J. Donovan, Labor Secretary to President Ronald 
     Reagan. No indictments.
       1984, Jacob A. Stein, investigated alleged financial 
     improprieties of Attorney General Edwin Meese 3d. No 
     indictments.
       1986, Whitney North Seymour Jr., won perjury conviction of 
     Michael K. Deaver, former White House deputy chief of staff 
     under President Reagan.
       1986, Alexia Morrison, investigated accusations that former 
     Assistant Attorney General Theodore Olson was deceptive about 
     documents withheld from Congress. No indictments.
       1986, Lawrence E. Walsh, investigated the sale of weapons 
     to Iran and the diversion of some profits to Nicaraguan 
     rebels. Obtained many convictions, some overturned on appeal, 
     others leading to pardons by President George Bush.
       1987, James C. McKay, won conviction of Lyn Nofziger for 
     violating ethics law on lobbying. Conviction was overturned 
     on appeal, and Mr. McKay decided not to retry case. 
     Investigated Mr. Meese on accusations related to the collapse 
     of Wedtech, a military contractor. No indictments.
       1987, Carl Rauh, James Harper, investigated the finances of 
     W. Lawrence Wallace, a former Assistant Attorney General. No 
     indictment.
       1989, Name of independent counsel and target sealed by 
     court order. No indictment.
       1990, Arlin M. Adams, Larry D. Thompson, investigated 
     variety of scandals involving the sale of favors in the 
     Department of Housing and Urban Development. Several 
     indictments and convictions.
       1991, Name of independent counsel and target sealed by 
     court order. No indictment.
       1992, Joseph DiGenova, investigated possible abuse of 
     passport files by Bush Administration officials. No 
     indictments.
       1994, Robert B. Fiske Jr.,* Kenneth W. Starr, conducted 
     inquiry into Whitewater real estate deal, since expanded to 
     include several other investigations, some still ongoing.
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     *Appointed by Attorney General Janet Reno during a period 
     when the independent counsel law had lapsed.
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       1994, Donald C. Smaltz, won indictment of former 
     Agriculture Secretary Mike Espy on charges of receiving, and 
     covering up, favors from companies doing business with the 
     Government. Trial pending. Mr. Espy's former chief of staff 
     was convicted of lying to investigators.
       1995, David M. Barrett, investigated accusations that Henry 
     G. Cisneros, the Secretary of Housing and Urban Development, 
     lied to the F.B.I. about payments he made to a former 
     mistress. Won indictment of Mr. Cisneros on 18 felony counts. 
     Trial pending.
       1995, Daniel S. Pearson, investigated Commerce Secretary 
     Ronald H. Brown's personal finances. Stopped after Mr. Brown 
     was killed in a plane crash in Croatia.
       1996, Curtis Emery von Kann, investigated Eli J. Segal for 
     conflict-of-interest accusations involving fund-raising for a 
     private group while he was head of the Americorps national 
     service program. Investigation ended in 1997 without any 
     action.
       1998, Carol Elder Bruce, appointed to investigate whether 
     Interior Secretary Bruce Babbitt broke the law in connection 
     with his testimony to Congress about an Indian casino 
     license.
       1998, Ralph I. Lancaster Jr., appointed to investigate 
     accusations that Labor Secretary Alexis Herman engaged in 
     influence-peddling solicitation of $250,000 in illegal 
     campaign contributions.

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