These interviews were conducted in 1998, before the expiration of the independent counsel statute on June 30, 1999.
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.
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
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
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
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
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
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
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....
...[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.
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
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
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 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.
...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.
Which might well happen to an ordinary prosecutor?
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.
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
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
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.
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
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.
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.
Mr. Smaltz, I would like to begin by asking you why you have chosen to speak
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
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
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."
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
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....
[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
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
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.
donald smaltz & the espy case .
office of the independent counsel .
tapes & transcripts .
frontline online .
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