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| PROSECUTION OR PERSECUTION? | |
 December 3, 1998 
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| JIM LEHRER: Now the perspectives of three former independent counsels. Lawrence Walsh investigated the Iran-Contra matter; James Brosnahan was one of his deputies; James McKay investigated alleged ethics violations against former Reagan administration officials Edwin Meese and Lynn Nofziger. | | ||||||||||||
 JIM
LEHRER: Mr. Brosnahan, just picking up on the point that Mr. Smaltz just made
that regardless of what the end result was - an acquittal in his case - it was
worth the money and worth the time because of the message it sent - would you
buy that as a premise for an independent counsel investigation? JAMES BROSNAHAN, Former Deputy Independent Counsel: Well, I don't think it's a very good premise. I'm sure that there were convictions and that some good will come out of it, but the issue really boils down to four main points: who's doing the prosecuting, how long do they do it, what are the crimes, and who's being prosecuted. And I think that it takes too long, there are too many people being prosecuted, and my - the heart of my concern is that the people doing the prosecuting aren't always people that are right at the heart of prosecutorial judgment. Mr. Starr is probably the most visible example of that at the moment. He has never rendered a judgment at the trial court level on a criminal level before he sent his report. So I reluctantly concluded - even though my time with Judge Walsh was most enjoyable, and we fought together, and I have great respect for Judge Walsh, but even though that is true, I finally concluded some months ago that this statute should be abolished. JIM LEHRER: Why? |  | |||||||||||||
| Abolish the independent counsel office? | ||||||||||||||
| JAMES BROSNAHAN: Because for 170 years the country survived quite well without it, because the special prosecutors are not accountable to anybody, because the investigations take too long, cost too much, and there is no proof that the courage or independence or lack of political partisanship on the part of an independent prosecutor is greater than the professionals, some of whom I know who are in the Department of Justice in Washington, and almost all of whom have tremendous integrity. JIM LEHRER: Judge Walsh, what do you think? Do you think it should be scrapped? Do you agree with your former colleague?
JIM LEHRER: Excuse me. Not members of the cabinet - LAWRENCE WALSH: No. JIM LEHRER: -- beyond the attorney general? LAWRENCE WALSH: That's right. I think the - the intimacy among cabinet members and sub cabinet members has diluted by the size of our government. And I think the attorney general should make the decision whether or not she thinks she has a conflict of interest. I also think that the statute should be limited to misconduct involving the power of office. In Iran-Contra that Jim and I were on we were dealing with the misuse of power by the president and by some of his very high subordinates. It should not include misconduct of a personal nature. It should not include misconduct before a person went into office, before election, or before appointment. These matters should be dealt with by the suspension of the statute of limitations and then handled by a regular prosecutor after the term of office is over. This is not to protect the individual involved but to protect the United States from the abuse of it's presidency and from - which I think we're - we've been witnessing. JIM LEHRER: All right. Mr. McKay, where do you come down, scrap it or change it?
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| JAMES
McKAY, Former Independent Counsel: Well, I come down certainly not to scrap it.
I don't think because you've had perhaps a bad experience JIM LEHRER: You were an independent counsel and Ed Meese - Edwin Meese was the attorney general when you investigated him. JAMES McKAY: That's correct. Prior to that, we had Mr. Nofziger. But the fact is that Mr. Meese, himself, asked that an independent counsel be appointed. And we determined that we would not recommend the prosecution of Mr. Meese. And I'm confident that had that decision been made by a high official in the Department of Justice, the public would not have accepted it. The fact of the matter is the public did accept it. I think the statute has a place. I agree with Judge Walsh that we need to limit the coverage, we need to do other things - a number of things to improve the statute. It ought not to be so easy to trigger an investigation, for example. And I think that it ought not to be so easy for an independent counsel to expand his or her jurisdiction. I think the time comes when you've got to stick to your guns, and independent counsel should learn to say no, in my opinion. JIM LEHRER: But your point boils down to that it's an appearance problem, rather than a reality problem, in terms of investigating high government officials. JAMES McKAY: Well, it's more than appearance. I think if the Justice Department had investigated Mr. Meese, the whole department would have been in turmoil, whereas, with us we had a very good working relation to the Justice Department; things went very smoothly. I just don't think things would have gone so smoothly had this investigation been conducted by the Department of Justice. JIM LEHRER: Mr. Brosnahan, how about that, that the independent counsel has a purpose? |  | |||||||||||||
| The independent counsel's purpose. | ||||||||||||||
| JAMES BROSNAHAN: He certainly has a purpose, and Mr. McKay served with great distinction in that office, and he discharged the hardest part of prosecuting, which is prosecutorial judgment. So in that particular case and in Judge Walsh's case, it was fine. But there's no responsibility on the part of the independent prosecutor. They're not responsible to anyone; they're not elected officials, number one; and they're not appointed by elected officials. And I think we've seen, especially over the last year and a half, that the attorney general is not responsible for this. If Janet Reno was responsible, there could be a much more meaningful bringing to bear of the public attitudes about this whole thing than what we have seen in the case of Mr. Starr. So that's the - the biggest problem is the lack of responsibility.
JAMES BROSNAHAN: Well, I think the Espy case is a very good example. Sherman Adams - you go back to the Eisenhower days and to the Truman days where there were some problems. The attorney general would have to conduct an investigation to determine whether there were really, really real crimes against Espy. And I would have a lot of confidence in the judgment of the attorney general and the public responsibility for that determination would be clearly with the attorney general, who is responsive to the president. If it became - and the press always needs to be mentioned affirmatively in this analysis, because the press is not known to underestimate the presence of crime, and they are the great watchdog. And so the administration would be responsible for either covering something up, or proceeding with a real case, but it would be done by full-time, professional prosecutors exercising their judgment. JIM LEHRER: Judge Walsh, what about that question? That is the number one criticism that's made of independent counsels. It was made of you when you were operating in Iran-Contra. It was, of course, made of Kenneth Starr now. Is that - you're answerable to nobody - and nobody is responsible, you're an independent form of government, in fact - that's the big criticism. LAWRENCE WALSH: I agree with what Jim has just said about the Espy matter. But now coming to your question, I think that the fact that the independent - you can't have an independent counsel and have him responsible to somebody. You have to choose what you want. If you want independence, you'll get it. And that means you're going to have a person in office with whom the public may at times disagree. But I think that the precaution that should be taken is, for heaven sake, to put in that office someone who has had prosecutorial experience, someone who has had to review cases and has even had to stand up before a jury and sustain an acquittal. Then he knows what it's like. But to put someone in that office who's never even tried a case is where the problem comes. JIM LEHRER: Mr. McKay, what about in your case - in the Meese case - you recommended against prosecution. What is the attitude that goes with being an independent counsel? That's another part of the criticism, is that when you're an independent counsel, you feel like you've got to come up with something. | ||||||||||||||
| Pressure to prosecute? | ||||||||||||||
| JAMES McKAY: That is such a bunch of baloney. The first 18 independent counsels that were appointed - and I don't know what's happened since - 11 of them did not recommend prosecution. And I, for one, never, never felt that I had to come up with these - a prosecution. And I don't think that anyone - as Judge Walsh has suggested - who's had prosecutorial experience and who is - I was in the US attorney and I had handled the number of cases for defendants - anyone who's had experience in this line is not going to take that point of view. We were under - we were required to follow the guidelines of the Department of Justice, and I had many meetings with the people in the criminal division of the Justice Department, and I don't believe anyone who takes this job seriously takes that attitude. And I don't think you can really point to any independent counsel. They say that, but it's never been proven, and I just don't think it's true at all. JIM LEHRER: Did you feel truly independent as you went about your business? JAMES McKAY: I didn't feel truly independent. I had the public - I had Judge McKenna to report to. JIM LEHRER: Who was Judge McKenna? JAMES McKAY: He was the head of the independent counsel panel. JIM LEHRER: Right. JAMES McKAY: I felt very much responsible to the public. I felt that was in a fishbowl being watched by Congress. We had to report to Congress. We had to give audits, and I - I did not feel independent in the sense that I was just rushing off and doing anything that I wanted to do willy nilly - not at all. JIM LEHRER: Judge - yes. Yes, sir.
JIM LEHRER: Well, starting with you, Mr. Brosnahan, Mr. McKay said a moment ago that he thought that despite all of the problems, all of the controversy that has arisen about independent counsels, the Espy case being the latest event to happen that raises the issue, that the independent counsel is going to remain; it may be changed, but it's going to stay. How do you read that? |  | |||||||||||||
| How to change the law. | ||||||||||||||
| JAMES BROSNAHAN: I read it that when this Congress, as presently constituted, takes it up in June of '99, they will not renew it. That has happened before. It doesn't mean it's the end of it, but it means that I forecast for the benefit of you that it's - that it's not going to be renewed in 1999. I don't think that's going to happen. But secondly, we should focus and I'd like to raise the fact that it's between abolition and cutting way back. But one of the things that has to be cut back is the removal of the judges from the appointment process. There's been great controversy about that, and it does not benefit the federal judiciary to be part of this political problem. And that is one thing that would have to be amended, if it's to be continued. JIM LEHRER: Who should do it then? JAMES BROSNAHAN: Well, it would - you could have a permanent office. There are defects with that plan, but you could have a permanent office; you could have the attorney general make the appointment. JIM LEHRER: You mean - excuse me - a permanent office of independent counsel who - JAMES BROSNAHAN: You could do that. JIM LEHRER: Let's say a case would come to them, and they might - JAMES BROSNAHAN: Yes. JIM LEHRER: -- pick Jim McKay to do it, or they might pick Lawrence Walsh, or they might pick you, right? JAMES
BROSNAHAN: Yes. But you could do that - JIM LEHRER: Judge Walsh, what do you think about getting the judges out of this? LAWRENCE WALSH: I mentioned a suggestion of Lloyd Cutler, a former counsel to President Carter. He suggests that at the beginning of a presidential administration 25 persons be appointed and confirmed by the Senate as potential independent counsel to be selected then by the person with the power of selection, so that at least you're going to have a panel of qualified people from whom to select. Now, once that's done there's less danger, I think, in leaving the appointing power where it is with judges. The problem with leaving ordinarily it would be the attorney general who would make the appointment, but I'm impressed with Jim McKay's point, that for credible - credibly exculpating a person, an appointee of an attorney general may have less credibility than a person appointed by a judicial panel. JIM LEHRER: Judge Walsh, where do you come down on the question of whether or not the controversy surrounding particularly Kenneth Starr is going to result in the abolition of the independent counsel? LAWRENCE WALSH: It certainly has endangered it, but I hope that the statute can survive with radical changes that we've indicated. JIM LEHRER: All right, gentlemen, thank you all three very much. | ||||||||||||||
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LAWRENCE
WALSH, Former Independent Counsel: I understand his view very clearly, but I think
it should be saved with radical changes. I think it applies mandatorily to too
many officials. It should be limited to the president, vice president, and attorney
general. 
with this statute you should throw the baby out with the bath water. I think that,
practically speaking, the statute is here to stay. I think the reasons for wanting
to have the statute in the first place still exist. I believe it's a matter of
appearance. I don't think it's a practical matter. A member of the Department
of Justice can, for example, investigate the attorney general, such as I had to
do. And it's worthy of - 
JIM
LEHRER: What would you replace it with? In other words, forget the president and
the Kenneth Starr issue for one, but let's say you had a member of the cabinet,
the Espy case, like - that just came to a conclusion yesterday. How would you
handle that then without an independent counsel?
LAWRENCE
WALSH: A big difference between independent and irresponsible; that's the point
Jim is making. 
I'm
not proposing that but in the literature there's a lot of talk about that. I don't
think that would work very well. I think the attorney general could make an appointment
of an independent prosecutor but my point is - I suppose a negative point - that
the federal judges are the last people in this world that should be drawn into
a political situation. And the appointment of Mr. Starr is an example of that
problem.