SHOULD THE OFFICE OF THE INDEPENDENT COUNSEL BE ABOLISHED?


These interviews were conducted in 1998, before the expiration of the independent counsel statute on June 30, 1999.

DASH


The former chief counsel to the Senate Watergate Committee is considered the "father of the independent counsel law." Dash now teaches law at Georgetown University and, until November 1998, served as Ethics Advisor to Independent Counsel Kenneth Starr.


IMPACT OF SPIN

One example... of who the heroes are and who the villains are - Archibald Cox, my former labor law professor at Harvard, was the hero of Watergate. He had integrity. He was following his investigation as strongly and as best as he could, trying to determine if Nixon was involved in the coverup. And because he did too good a job he was fired. And we remember Archie Cox as the prosecutor of integrity. Now, let me switch and instead of Cox being appointed, Lawrence Walsh has been appointed special prosecutor in the Watergate era. He would have done the same job, would have got fired, and would be the hero. Let me place Archie Cox in Walsh's position in Iran-Contra. He would have been vilified and attacked and the rug pulled from under him, and he would be remembered always as a failed independent counsel. So it's not the character of the person. It's how he is portrayed by the spin artists and by others who don't know what he is doing himself, and therefore what that tells me is the statute is right. The procedure is right. It's necessary, but the person who takes it, runs the risk of losing reputation. But, you know, that is also one of the things professionals know they have to do.

It's inherent. It's particular of the job isn't it?

Particular of the job, particularly when you are an independent counsel charged with investigating the White House or the President. It's not as severe if it's a cabinet official, but if it's the White House and the President, what any independent counsel knows is... that there's going to be an effort to destroy him. Because if he's successful, he could destroy the President, only if he has the evidence, of course. But that doesn't matter. Even a President who may not even be guilty would want to do this. Because it interferes with his administration. It obstructs him in the things that he would want to do, and exposes him in the press. It's not a good thing that a President has to be President in the midst of that kind of an investigation. But then what's the alternative?

If there is a charge that involves the President, should the Attorney General investigate? Well, there have been a number of cases that have shown that if the Attorney General did in fact or assigns somebody to do it or Justice, and cleared the President, practically every newspaper in the country would have an editorial about a whitewash or coverup. No one would accept it. Even though the Attorney General or the Department of Justice lawyer acted with integrity and did the right thing.

And one of the important examples of this is Attorney General Meese in the Bush Administration was charged with a serious federal offense. And a very significant lawyer, Jake Stein in Washington, was appointed independent counsel. And he investigated it and concluded that there was no basis for prosecution.

Meese was not a popular Attorney General in this country. He was seen as a overreaching pompous persecutor. And here comes this highly respected lawyer and says that, "There is no prosecutable case." Well, everybody accepted it. There wasn't a single editorial or columnist who criticized that decision. Imagine if a U.S. attorney in the Justice Department or any Justice Department lawyer had come to the same conclusion.

There would be screeching all over this country about coverup and whitewash.

And so the value of the independent counsel statute, with all its flaws - no statute is perfect that's a human-made piece of law. But with all its flaws, it is the only way and the only alternative when serious charges are brought against the President or a high executive official for it to be investigated and still get the confidence of the public, despite the fact that in the intermediate periods the public may be misled and may be very critical of the independent counsel. They would be just as critical and be just as misled if this wasn't an independent counsel, but a regulatory special prosecutor appointed by the Attorney General.

If he was honest like Mr. Fiske and did his work well, he'd be getting close on the heels of the White House. And, again, that spin would occur, and he would be attacked and condemned no less than the present independent counsel. So what I'm saying is the public criticism, the public perception of an independent counsel may really reflect on how good a job he's really doing....


IC LAW PROMPTED BY WATERGATE

You're known as the father of the independent counsel statute. Tell me what it was that you all were actually hoping for, and to what degree?

Well, it's a brief story, and it all goes back to what has been remembered in history as the Saturday Night Massacre. When Professor Cox, who was then special prosecutor appointed by Attorney General Elliot Richardson, was trying to get from the President, the White House tapes.... My staff uncovered the White House tapes, and I subpoenaed the President and so did Archie Cox.

And the President turned us down, but then told the Attorney General, "Hey, doesn't this guy work for us? Tell him to get off of it." And, of course, Cox said, "With all integrity and my duty and my oath of office, I must pursue it." And the President then ordered that Cox be fired. And, of course, Richardson refused, because he had made a promise to Cox and also to the Senate, Ruckelshaus, who was the deputy, refused and ultimately it fell to Bork.

And that was a shocker for all of us. If you were there at the time, and saw what happened, that the President of the United States, being the target under investigation could fire the prosecutor, that's investigating him, there was something wrong in the system of justice.

I decided then to meet with Ervin, and say that our very first recommendation of the Senate Watergate Report has to be the creation of an institution where the President will not have the power to fire arbitrarily the prosecutor, and that he shouldn't be appointed by the President. He should be appointed by a court.

If you read our first recommendation, it was there. We initially recommended a permanent public attorney. But after reviewing that, and some of the hearings before the Congress on that recommendation, we came to the conclusion that you wouldn't get your best lawyers being willing to put that much time in. You would get some young lawyers, bright, but maybe too ambitious. We were looking for the lawyers to take this job [who had], as it were, already made it. They were mature, experienced partners in big law firms, and they didn't need to persecute anybody in order to build themselves up.... We were looking for the ones who have got there already. And an ad hoc, case by case, independent counsel really fit the bill.

So that recommendation was not only approved by the full consent of the Watergate Committee, but Senator Ervin introduced it in the Watergate Reform Legislation. And I testified at all of the hearings on it, which ultimately led to the first statute being enacted in 1978.

And the statute was in that sense literally a direct result of Watergate?

Yes.

And as you have seen it in its various manifestations, as embodied by, I guess, more than a dozen now independent counsels that have come since, has it been more or less operating as you all envisioned it?

Yes. There are a number of evaluators who have looked at it over time, and every one of them really, except in recent times, has found that the independent counsel legislation has worked just as it planned to, and has served a very important function in preserving the confidence of the public in the administration of federal criminal justice. In all cases it recognized that it was good.

Janet Reno, when she became Attorney General, testified before the Congress when the Reauthorization Act of 1994 occurred, and she said to the committee that conflicts of interest that an Attorney General faces when they are being asked to investigate their President or other high cabinet officials in the same administration are insurmountable. And there's no way that you can do that as an Attorney General, and she favors and accepts the independent counsel legislation.... She's the only Attorney General that ever did that by the way, because most Attorneys General read the statute as an insult to them. It sort of said, "We don't trust your integrity." And the real reason, I've always explained to them, and some of them were people of high caliber, that this has nothing to do with your integrity, it has to do with public perception of justice. And even though you would have the integrity to do it, the public won't believe it. You'll either do an honest job, and find that there's no basis for prosecution, and the public will accuse you of coverup. Or in order to not be accused of coverup, you'll bend over backwards in a case where there shouldn't be a prosecution, and you'll get an indictment just to sort of show everybody that you're not controlled by the President. And that's unfair. That's not just. So you can't do it. Or at least be perceived to be able to do it....


WHY DO IC INVESTIGATIONS TAKE SO LONG?

Some of these investigations, including that of Judge Starr, are criticized ... because they do seem to go on forever. Seven years in the case of Judge Walsh; nearly four years in the case of Judge Starr. Is there something peculiar to the institution independent counsel that makes them prone to just go on like this?

No. Independent counsel, as I've said on a number of occasions, including an Op Ed piece I wrote, is nothing more, nothing less than a federal prosecutor. So the real question you have to ask is when you have a similar type charge in a federal prosecutor's office, how long does it take?

Now, the comparison is not to be made with the ordinary case load of the U.S. Attorney's office, which has a whole number of bank robberies and frauds, tax evasions and those things [that can] take [a] long [time], and they're expensive. But not as long as, say, seven years or even four years. No. Ordinary federal prosecutors also handle high grade white collar crime, conspiracy crimes, involving thousands of documents, millions of [dollars] in fraud, conspiracies and sometimes very powerful people. And they usually are put in the hands... [of] a task force that works out of the Justice Department. Campaign financing, for instance, is in such a task force. It's going on and on, and it will go on. Now, you compare those cases--take Noriega, for instance, which was a separate task force. It took longer than Walsh even with much more money.

There are a number of cases you can find where, once it goes into a task force..., it starts small and gets big, because everything starts to come in. They get witnesses. They focus on people. They go to the smaller people first, and threaten them with conviction or even indict them and turn them on a plea so they can go up the ladder. This takes years, and it takes millions of dollars. They spend more frequently than an independent counsel. Nobody looks at that. They say, "Gee, look how long it's taking." Who does the assessment in the Justice Department? Do that. Find out how long and costly the similarly complex cases [are], and when I say complex, again, I'm not talking about historical cases. But when you deal with a white collar crime conspiracy that affects powerful people like the President or others in the White House, that case is going to take a long time, whether it's done by the Attorney General or by an independent counsel.....

What keeps an independent counsel busy is exactly what keeps a special task force prosecutor busy. And costs as much. And the problem, of course, is that you're dealing with a very difficult crime to prove, if there is a crime. And you're dealing with powerful people who have all the resources and techniques in their hands to delay you or to obstruct you....


CHECKS ON THE IC

...[It's] frequently said that an independent counsel is not like any other prosecutor, because he's not accountable. He can do anything he wants. He has all the money in the world; all the time in the world to focus on a little guy and destroy him. And that's a bunch of nonsense.

Why?

Because, first of all, under the statute the independent counsel is subject to a number of scrutinies. [Under the] '94 act, every two years he has to justify whether he should continue or not. The special division can terminate it, if they don't think he's doing anything that's worth doing. He's subject to financial accounting, GAO internal accounting, by an internal comptroller [who] reports to Congress on how he is maintaining the spending limits of the Justice Department. He has to file other reports. He has to follow the guidelines of the Justice Department, both financially and in their practice.

Outside the statute, I say he's only a federal prosecutor. So he's controlled by the criminal rules of procedure. He's controlled by the Constitution of the United States; the Fifth Amendment, Sixth Amendment, Fourth Amendment, all of the things that prosecutors are controlled by.

He's controlled by the rules of evidence. He's controlled by the supervision of a judge, and the opposition of another lawyer who can keep him in check. And above it all, because he's an independent counsel and it involves the White House, he has a spotlight on him that no other prosecutor has.

Everything he's doing is being watched and reported. And I will tell you that every independent counsel, being appointed from a group of very successful lawyers, who perceive themselves as being bright and great and competent, care very much about how they're being reported.

And that perhaps is the strongest measure of accountability, the way the free press talk about him. But they're all together. And to talk about this as a monster who can do anything he wants without any accountability is sick and nonsense....


SHOULD THE IC LAW BE REAUTHORIZED?

What would your reaction be if one result of this episode that is unfolding now were that the attack on Ken Starr and the attack on the independent counsel were so effective that next year the independent counsel statute was not renewed or was seriously amended?

I don't believe that Congress will fail to reauthorize the independent counsel statute... but if it happened I think it would be a terrible mistake....

It's very difficult in this moment right now to find very many defenders of the independent counsel on Capitol Hill.

[Opponents of the independent counsel must ask themselves] "What's the alternative?" If you don't have an independent counsel and you have something like this come up, either the Attorney General is going to do it - and nobody is going to accept that - or the Attorney General will appoint a regulatory special prosecutor and he is going to be no different than an independent counsel, if he's honest and he's good. But he can be fired more easily than an independent counsel.

So why do you want to go back to Watergate again? Why not stay with what we have, and if there are some loose ends, improve them? What my worry is that because of so many allegations that are untrue - and particularly the reference to unaccountability and spending too much money - that if they rein the independent counsel and the legislation too tight as to time limit and as to funds, they will make him probably so handicapped that it's not worth having him. Because everybody knows - and it was proved in the recent campaign financing investigation under Chairman Thompson - that if you put a deadline on something good defense lawyers know how to stall you until it's over. And there shouldn't be such deadlines. Yes, there ought to be review of the independent counsel for his diligence and for his effectiveness. But that's already built into the law both from the Special Division and by the Attorney General. Now, I think that we ought to rely on the fact that Attorneys General, even though there's a political fallout, if they have got an independent counsel that is doing terrible things, [will] fire him.

And you believe this Attorney General would have?

I think she would.

HEYMANN


Heymann was a top assistant to Watergate Special Prosecutor Archie Cox. He later served in the Justice Department during the Carter Administration and, in 1993, held the number two post at the Department under Janet Reno. He left Justice in 1994 and now teaches law at Harvard University.


DIFFERENCE BETWEEN IC AND FEDERAL PROSECUTOR

...The symptoms that we've got that something is going wrong with the independent counsel statute is that we have very long investigations. Whitewater has been going on since early 1994, and it's now spring of 1998. The Iran-Contra investigation cost 40 million dollars. This one has cost 25 or 30 million dollars already. Independent counsel seem to be [bringing] in charges that other people might not bring in....

Closely related is that the independent counsel seem to go after other people, trying to make a case against the main target. Cisneros' girlfriend and her friends...it looks like a very rough business.... They look to many people like "We've got somebody out there with a hunting license who is going to shoot at other people along the way to get at the target, who is one of the 75 high level officials."

What's the problem? The individual, the independent counsel, has only one case - Starr has three cases but only one defendant - [he] has none of the time pressures or the money pressures or the traditions that keep an ordinary prosecutor, as aggressive as they are, somewhat in line because there are other cases out there. There are more serious matters out there. There are other defendants out there.

But another way of putting it is we've come to expect the independent counsel to get to the bottom of the facts. That's just a mistake. What the independent counsel is supposed to be doing is supposed to be making the prosecutorial judgment that will be made if it was anybody else, if it wasn't the President, wasn't the First Lady, wasn't the secretary of HUD. The independent counsel is supposed to be deciding, "Is this a case that an ordinary prosecutor would prosecute?" An ordinary federal prosecutor.

No tougher, no easier, no favors, no penalties. You can't penalize high level officials by treating them more severely than anyone, else especially with matters that have nothing to do with office. But what we are getting is a sense that scandal, if it has any criminal angle to it - Monica Lewinsky, inducing perjury - scandal has to be gotten to the bottom of.... Here's what we haven't gotten. We haven't gotten any independent counsel who has received one of these grants of power from the court who will look at what he got, say, within a week [and say], "Even if this is true, it's not a federal case. Closed."

Which might well happen to an ordinary prosecutor?

Exactly....

Now if you are going to get officials treated no better and no worse than anyone else, particularly with regard to crimes that don't involve office in any way, somebody has got to exercise the same discretions, the same judgment, the same decision. "Is this worth a federal prosecution? Is it worth the disruption of lives and the cost? Is it worth fighting this investigation?" Somebody has got to exercise the discretion that a prosecutor normally exercises. In reality, the Attorney General doesn't do it, and the independent counsel doesn't do....

The guy who is going to have the next crucial moment like Archie Cox's moment when Archie Cox said, "I am just doing my duty" is the person who is appointed independent counsel and within a week says "I'm closing this case without resolving the scandal because it doesn't deserve an expensive federal prosecution, and it wouldn't be fair because we wouldn't do it to anyone else." That person will be the next hero of the independent counsel.


IS THE DOJ TRYING TO REIN IN THE IC?

About Fiske/Starr going to Webb Hubbell. It seemed that after that, some of these dangerous risks of a wide ranging, never ending [investigation by a] special prosecutor became apparent with the Justice Department. Subsequent charters were written much more narrowly, and as we've seen, the process that the Attorney General herself went through in deciding whether or not there should even be independent counsel became much more tortured, [with] the result, at least in the case of campaign finance scandals, that... one wasn't appointed. Do you have a sense that that is going on? That Justice in fact on its own, procedurally [in the] appointment of independent counsels, is trying to kind of rein in the institution?

Justice Departments have never liked independent counsels. It's a little bit of an offense to the department, and to the career service [people], particularly when you are dealing with people less than the President, less high status, and when you are dealing with events that are not the biggest crimes in the world.... Sure, I think they will try to pull him a little. But the Attorney General gave the Monica Lewinsky thing with a fairly broad charter to Ken Starr. I think we would all be better off if it had been given to someone else....

Is there any chance at all, just a guess of course, Professor, but any chance at all that the independent counsel statute as stands will be renewed next year in this political climate?

The question is how devious the political figures want to be. If it looks like it would still be useful to go after democratic administrations, the republicans would be in favor of it. If it was a republican administration, the democrats would be in favor of it....

But I actually think [what's] likely to happen [is] a narrower statute that applies only to President and the vice President and applies only to crimes in office. That would pick up Watergate, which is the most serious by far, and that would get rid of Whitewater as a crime not in office, as an old crime....

FISHMAN


Fishman was an assistant U.S. attorney in New Jersey before joining the Department of Justice in late 1994. At Justice, Fishman served as a top deputy to Reno, advising on criminal justice policy, including the application of the independent counsel law. He left the Department at the end of last year and is now in private practice.


DEBATE OVER THE RE-ENACTMENT OF THE STATUTE

There is... considerable movement on the Hill for the independent counsel statute to at least be radically repaired, if not eliminated altogether. There are a number of Congressmen... who have introduced bills to do precisely that. There are others who are introducing or contemplating introduction of legislation to eliminate the Act altogether.... I think most people are looking at this very systemically and there will be, I think, as soon as the next Congress convenes in January of 1999, a very serious, spirited, vigorous and perhaps even acrimonious debate in Congress about whether there should or should not be an independent counsel and if there should be a statute, how it should be amended.

The statute doesn't have a lot of constituents on the Hill.

That may be. I certainly haven't done a head count and there certainly are a lot of people who are criticizing the act of late. There have been people who criticized it loudly before, and I don't know where ultimately the Department or the Administration will come down on that.

You would allow that the statute, the institution of the independent counsel is now more remarked upon for its flaws and short-comings and its imperfections than it is for its strength?

I suppose that is right, but that is not infrequently the case with various pieces of legislation, that people get exercised about the bad things before they have thought about the good things. I think there are very good things about the statute. At the moment there are things that are bad about the statute that seem to be getting a lot of play and I think lots of serious people are having very serious discussions about what are the imperfections that have been magnified over the last several years, are ones that really overwhelm the positive benefit that the statute has.

How do we get to that place? How do we get to the place, where from a moment in the late 1970's where the institution of the special prosecutor was seen as such a valuable thing that we should literally write it into law, to now, when it is almost impossible to find anybody who stands up and speaks for the statute?

I don't know. I haven't been following it sufficiently long to be able to answer that question. If you go back to a time that generated the statute, in which there was an Attorney General who ultimately left office under a cloud, John Mitchell, and who was prosecuted, and a President who fired the special prosecutor, and you had a Department of Justice in which lots of people on the Hill, and I guess across the country, had little or no confidence. You are now in a situation, and although she is my friend and I am very fond of her [and] therefore say nice things about her, I think it is also fair to say that you have an Attorney General now whose personal integrity is virtually beyond question by everyone who has ever dealt with her, and I think that, without comparing her to other Attorney Generals, many of whom I have known and some of whom I am friends with, she has added a luster, I think, to the Department that I think has been wonderful for the Department. She is hugely admired by the people who work for her, and while people on the Hill may disagree with certain judgments she has reached about the independent counsel statute and its application to particular cases, I think you would be very hard pressed to find people in this town or elsewhere who think that she doesn't make those decisions because she thinks they are right and does it for the right reasons. I think, in some sort of backward way, that has actually played some role in the comparison between the Department and the independent counsel statute. Not that the people who are independent counsel now aren't fine lawyers and smart men and very talented. But people see Janet Reno and I think they say, "She can do this."

You are right. The circumstances are very different. There was a disgraced Attorney General and there was a President who fired his independent counsel. But what you have now is a disgraced No.3, and in prison, Webb Hubbell. What you have now is no Saturday Night Massacre, but you do have a First Lady going on national television and attacking the integrity of the independent counsel, and the federal judges that appointed them.

I think there is no question that we [have] reached a not very happy point in our national discourse about the investigation and prosecution of cases.... And I think that is very unfortunate. I think, having sat in the Department of Justice and having endured the slings and arrows that were thrown at the Department over the last several years, I can tell you that that has a negative impact on people in that job. Not because they think that they aren't as good as they thought before, but because they know that whenever those sorts of criticisms are bandied about publicly, that it inevitably has some undermining effect on public confidence generally in what people in the Department do for a living. I think that is a very unfortunate side effect of the debate that we have had over the last several years about the merits of the independent counsel statute and the merits of particular appointments.

SMALTZ


A former assistant U.S. attorney and experienced white-collar defense lawyer from California, Smaltz was named independent counsel to investigate the Secretary of Agriculture Mike Espy's alleged acceptance of illegal gratuities. His investigation began in September, 1994, and is ongoing.


INSTITUTION OF IC UNDER ATTACK

Mr. Smaltz, I would like to begin by asking you why you have chosen to speak out now.

There are a couple of reasons. The first is that the only sense that the public has of the independent counsel statutes is what they get from the talking heads or commentators, in dribbles and drabs and snatches of info here, info there. A lot of that information is just plain wrong. Secondly, the institution of independent counsel, I think, is in severe jeopardy. It is under attack. It is under attack from a very very powerful source, the most powerful source in the world, in my judgement, and that is the chief executive of the United States. The President has chosen to publicly attack, condemn, criticize or ridicule, trivilize the independent counsel statute.

That is very unfortunate. That statute is one of the laws of our country that deals with the enforcement, a mechanism for enforcing the criminal law. As Chief Executive of this nation, the President is sworn to uphold that law and it is shocking that he now has chosen the avenue of publicly attacking it and condemning it and castigating it and has hired guns who do the same thing. And those hired guns are lawyers, the James Carvilles and James Blairs....

There are condemnations from the Attorney General that we have seen. The Attorney General in fact has used or has authorized her surrogates to publicly condemn the independent counsel as incompetent, as a bunch of raving lunatics, related somehow with very partisan right wing politics, which is very untrue. And it is unfair. The statute doesn't seem to have any real spokespersons for it and there is a very compelling case to be made for it. I don't think I am the person to make that case, but certainly I am a voice, I have a voice. I have the experience and I can at least recount that for you and for the rest of the American public that watches your show.

This assault of which you speak and which sometimes seems omnipresent, why do we, the political culture... countenance this attack on the independent counsel from the White House and from the top echelons of power?

I don't know the answer to that question. I wish I did. But I think there are a couple of factors going now that didn't exist back when the independent counsel statute was born, which was right after Watergate. Watergate confirmed what history had taught us to the prior 100 years from Grant's administrations through Nixon's, that a President who appoints an independent counsel can fire the independent counsel, and will, whenever the independent counsel gets too close to the nerve endings of the President.

Back in the time the statute was born, when Nixon was in office and his alleged crimes were being contemplated or discussed publicly, there were a lot of things that galvanized public opinion against the President. The country was in a great deal of turmoil. We had Vietnam. We had a lot of social unrest. That social unrest doesn't exist today to the same extent. There are no major issues. There appear to be almost no major political issues that sharply divide the country like Vietnam. I think because the economy is a good as it is, the people just aren't that interested as long they are making a relatively good living, as long as Voltaire said, their bellies are full, the people aren't apt to revolt.

Also I think the President has done an excellent job here of shifting the focus away from crimes that were being investigated by each one of the independent counsel. But, in the President's case, the crimes that the independent counsel there is investigating relate to obstruction of justice and subornation of perjury and lying in connection with what happened in Casa Grande or Whitewater. Somehow the public perception is that now the independent counsel, Kenneth Starr, is investigating the President's sex life. Well that is not it all. He seems to be investigating the offenses of subornation of perjury and whether anyone was asked to lie, obstruction of justice, whether anyone deliberately destroyed documents and things like that. But the whole thrust of his investigation and to a lesser extent, other independent counsels investigations, gets sort of lost in the mix. The effort is always to confuse the issue, to trivialize it, to condemn it, to hope that you are going to make it go away. And thus far, they have been pretty successful.

I want to ask you two questions about the intensity of the criticism, "the war," as James Carville put it, on the independent counsel. Is it unprecedented in its ferocity?

To my knowledge it is. You saw a lot of politicalization of the independent counsel office charges particularly after Judge Walsh indicted Cap Weinberger two or three days before the '92 election. There were charges [that] the independent counsel was acting as a political entity here and was doing this for political reasons. But that politicalization of the independent counsel, if it was raised to a new high with regard to Judge Walsh, has been ratcheted up many, many notches by the current administration, where the efforts appear to be directed by the White House..., sending [Carville] out there to criticize, publicly chastise, and do everything possible to demean the efforts and the personality [of Ken Starr]. If you can't discredit the investigation because of where it's headed or the results it has, you attack the character of the person in control.

Is it working?

Ken Starr's got an impeccable reputation, he had that before he took this job. He was Mr. Clean in Washington, DC. He was a fellow who both parties selected to review Bob Packwood's diaries, a very, very sensitive thing that the Senate had to face. And they looked around for the fairest person. He was recognized throughout the country as being an outstanding solicitor general. He was known in this area as being a very, very fine judge. He gets this job and suddenly you have public opinion polls who are telling us he only has a public approval rating of 11 percent. It's below Saddam Hussein's.

Now, look, there's something wrong with this picture, right? OK? We're not political - We are not running for political office, independent counsel. What are people doing taking public opinion polls? I mean, why is that relevant? But that's the way the opponents of the investigation have been able to focus and frame the issues.

And so, what is the effect of that?

Well, the effect of that, in addition to chilling the investigation, is to cause the institution of independent counsel to be discredited. And that's an unfortunate day, I mean, I think, for the country. This institution was designed to investigate corruption, to ensure that full and thorough investigation would be made of the facts. And if there was no basis to indict, say so. If there was a basis to indict, indict.

Now we have [people] saying, "Ah, the institution is out of control, it's a bad institution, and we shouldn't have it."


EFFECT OF PUBLIC OPINION ON THE IC

Having effectively brought the institution of the independent counsel to a state of regard that ranks below, in the public view, that of Saddam Hussein, does that have an effect on an independent counsel's process?

I think it depends on the individual. But I think there's some influence in every individual. And the question is, to what extent? It may cause an independent counsel to want to close down his investigation sooner rather than later. It may cause an independent counsel to forego going down after a particular lead or not. It may foreclose an independent counsel from asking questions in the grand jury that he might have otherwise would have asked. And so, does it have an inhibiting effect? I think it probably does. What's the extent of that effect? It depends on the individual counsel.

I'm just a kid from the sticks of Pennsylvania who got here via California, so I don't have the same sensitivity, I don't think, to some of this criticism. I mean, I think if you aspire to go on from this job to any other job, you'd be very conscious of your image. And I don't have any aspirations. I don't want to go on the bench. I just want to go back to Los Angeles with my family. But if I had wanted to go on the bench, it could torpedo that. I mean, look at Ken Starr. He was on the short list of, what, the last two Supreme Court appointments? Whether he could get on there now, I don't know. And I'm not predicting one way or the other. I think, in the end, you have to judge the independent counsel by what did their investigation uncover? And that's the measure.


IC CAN'T FIGHT BAC

But this relentless, sustained, ferocious attack on the independent counsel plainly has the effect of at least turning public opinion, which, in turn, has more than one obvious political consequence. The act itself may not be renewed when Congress considers it next year. And in the case of Ken Starr's inquiry, the political well has been poisoned a little bit when he does, if he does, present evidence of his undertaking to the House of Representatives. So what I'm asking you is whether this very public, very intense war on the independent counsel can be almost as effective as a Saturday night massacre?

Absolutely. Independent counsel is in no position to fight back. He doesn't have the ability to hire public relations people. He doesn't have the ability to go out and make statements. He is forbidden from disclosing what's happened during the course of his investigation, particularly if it's grand jury matters.... A person could get on the court house steps - and you very, very often see it here - and they say, "Ah, I've been before the grand jury and the prosecutor asked me X and Y and Z, here's what I told him." If that is the baldest face of lies, the baldest-faced lie that that person is telling, the independent counsel can't do a darn thing. No federal prosecutor can, because what goes on before the grand jury is absolutely secret. The prosecutor's lips are sealed. The grand jurors' lips are sealed. The [stenographic] reporters' lips are sealed. The only person in the grand jury process whose lips aren't sealed is the witness. And the witness knows that....


SHOULD THE AG STICK UP FOR THE INDEPENDENT COUNSEL?

[There are some that say] that the main reason that the independent counsel is going to die, if it dies within the next year, is that this institution will go down because it has become a weapon of abuse.

I don't think it's a weapon of abuse. If anyone's to be complaining, I think it's the independent counsel. I think the independent counsel statute probably won't be reenacted. And I think that if it's perceived as a failure, that's entirely due to the tremendous effort on the part of the President, who is able to significantly deflect the investigative efforts and the prosecutorial efforts of Mr. Starr, and convince the public through this constant barrage

of attacks by James Carville and others that what is being investigated is Mr. Clinton's sex life, and that's trivial, when, in fact, what's being investigated is obstruction of justice and subornation of perjury, the very same crimes that were being investigated in the Watergate matter.

It's true that the independent counsel statute will probably not be reenacted, but not because it's a failure. It's going to be because the Presidents have figured out how to defeat it. And I think that's unfortunate because the President is sworn to uphold the law and in these continual attacks that have occurred and are reoccurring in an effort to discredit the investigation and thus chill it, the public has lost confidence in the independent counsel's

office as an institution, and that's unfortunate. It's unfortunate for the republic because who now will investigate the allegations of public corruption?

Just imagine, had there been no independent counsel statute, what would the situation in the country be today? Stop and think. We've had the allegations against he President and then there's a whole variant of those that are within Mr. Starr's jurisdiction. Now, you had the allegations against Espy, you had the allegations against Cisneros, you had the allegations against Brown, you had the allegations against Hazel O'Leary. Who's going to investigate that? Stop and think a moment. What confidence should the public have in government...?

Most of the legislators today who are responsible for bringing the independent counsel statute into being back in 1978, they were all veterans of Watergate. But now in the current crop of legislators, very, very few have any real notions of Watergate except what they read in the history books, or maybe saw on the Internet or what have you. But they didn't live through it and they don't realize the significance of the statute. And it'll be an interesting time to see what's going to substitute for the independent counsel statute, if there is a substitute.

 


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