Part of all this has nothing to do with the subject matter or the interest of
the public for real. But it has to do with the art form for a committee and
its staff on how to frame the issue. Now why do you think Watergate got this
wonderful public attention and televised experience?|
We could have been just as boring. We could have been just as non- focused,
and if all we were talking about was a what third degree burglary...? But it
occurred to me as chief counsel, and it was the first time I did work as a
lawyer on the Hill, that "What's our purpose?" You have to ask the question
"What are we supposed to be doing?" Well, the law says that the committee
under the Constitution has to be a public-informing function. It must bring
the public up to speed in terms of what you know happened. So that the public
can respond to it through the political democracy....
So in order to do that, you had to define the subject matter. What would get
the public more concerned? Would it be the burglary, or if you were able to
show the American people a gigantic coverup, subornation of perjury, paying
cash hush money to burglars, and build that from the police up in a story that
reads like a detective story, as they're used to watching on TV, and bring them
over here, and it's still the same detective story, just as thrilling. In other
words, you don't change the facts. You tell it the truth, but you tell it in
the way the public is used to watching good drama.
Fred Thompson began his hearings by saying, "We're going to show that the
government of Communist China tried to influence our election.
He wasn't prepared to do that, number one. Number two, he didn't have
sufficient control over his investigation that I had in the Senate Watergate
Committee. Senator Ervin gave me complete control.
Which was important, wasn't it?
Absolutely. Or I wouldn't have stayed. I believe Senator Thompson wanted to
have good old hearings, and had wanted to go back and become something like
Senator Ervin was in the Watergate hearings. I really think he wanted to
expose it all. But he didn't conceptualize it right. He didn't conceptualize
it, and he could have... [by] telling the American people, "Your democracy is
being stolen from you. Your leaders are supposed to be your representatives.
You control it, because you're the ultimate sovereign. Your election doesn't
mean anything, because people with money stepped inside and substituted for
you." So it's the powers of money over the power of the voter, and that is a
dramatic story to tell the American people that they have disenfranchised.
But he wouldn't do that. He didn't think of it that way. He didn't plan it,
and he wanted to hit something sensational in the beginning about the Chinese.
But then never followed up. And he didn't follow up, because he had a
committee that controlled him. Really he had the leadership that controlled
him. Because they didn't want the true drama of campaign financing to get out
to the people, because then the outrage would pressure for campaign reform.
And they didn't want campaign reform. So he was hobbled.
But what I'm saying is it's not the subject matter itself. If this is a true
important investigation, if it involves matters that do have impact on the
people, then if you're running that investigation, you've got to identify that
and get it across. And there are ways to do it.
But the issues at stake - and for example I want to ask you about Monica
Lewinsky. But you know the defenders of the White House repeatedly find the
narrowest, smallest, most prurient object of Ken Starr's and say, "Oh, look,
this is all it is. It's just a land deal in far away Arkansas." Or, "It's
just his personal life. Why drag in the mother of an intern? Have mothers
testifying against daughters. How terrible it is." But are there in fact
issues of historic importance at stake in even such an undertaking as the
Well, first it's difficult for me to respond to that question, because to
respond to it fully, I would have to be talking on the merits of the
investigation, and I can't now in the role I play as... counsel to Ken Starr. I
suppose one has to look at what happened that put that investigation into
place. Initially it was the Attorney General of the United States, President
Clinton's Attorney General, who found there was specific and credible evidence
in the Whitewater matter that caused her to refer the matter to a special
division of the court, who appointed Ken Starr.
Now whether Ken Starr should have been the independent counsel or Fiske should
is under the bridge already. And Ken Starr isn't to be faulted for the fact
that he got appointed instead of Fiske. Nevertheless, there was a sufficient
enough matter that the Attorney General thought had to be investigated by an
independent counsel, that he was appointed. In the more recent investigation,
which has to do with Monica Lewinsky, the independent counsel under the statute
can't extend his investigation without approval of the Attorney General. And he
brought the matter, as he had to..., to the Attorney General, and the Attorney
General gave him that extension and referred it through the Special Division of
the court to Ken Starr. Now none of what I'm saying now speaks to historical
events, speaks to the kinds of things that are involved in Watergate.
But don't forget, the statute doesn't speak to those issues either. The
standard is "Is there a specific and credible charge involving certain covered
people?" And the President is one of them. And if there is, then immediately
the conflict of interest provisions come in. The Attorney General can't be
seen to do an honest job with it, even though she can. I think Attorney
General Reno is a person of honor and integrity and ordinarily could, but the
statute doesn't say that.
We are a government of law, not people. And it has to be written for all
Attorneys General. And there will be some who you wouldn't be able to trust.
What I'm saying is we don't look to the particular person at the time.
And therefore without answering the question as to whether this is a very grave
thing in the history of America, it fits the standard of the independent
counsel legislation. Requires an independent counsel, and requires an
independent counsel to be thorough and get all the evidence he can....
But doesn't that make it therefore a matter of grave historical importance?
I mean the very fact of an independent counsel, looking into possible crimes
committed by the President of the United States...?
It should. I know that's what's happened. And I know part of it is how the
appointment of an independent counsel is reported as though something very
unique has happened, that some grave historical incident has happened.
And basically it's nothing more than the Attorney General saying, as a private
lawyer, a private lawyer in a law firm, if a client came to that lawyer to be
represented and the lawyer is somewhat on the other side and has conflicts,
that lawyer would say, "I can't represent you, but I'll refer you to some
lawyers who could."
Well, in a nutshell that's exactly what the independent counsel legislation
is. It doesn't create historical crises.... The fact that Attorney General
under the statute decides that there is specific and credible evidence, and
that there is need for further investigation and therefore there must be
appointed an independent counsel, doesn't say anything more than, "I can't do
it. Somebody else ought to do it. But somebody else ought to do it with the
same rationale, the same professionalism, the same discretion as I have.
And if there's nothing there, throw it out. If there is something there,
investigate, indict and prosecute."
But it's merely a mechanism within the federal prosecution system to take away
from the Justice Department those things they would have a conflict of interest
in prosecuting.... It could be something that is of historical importance like
Watergate. But it could be an ordinary federal crime that isn't that
important, and that the federal prosecutors would handle almost everyday.
And suppose it is an ordinary federal crime that isn't that important that
federal prosecutors would handle everyday, except for the fact that there is
this special conflict of interest?
And there usually are high powerful people on the other side. The only
difference between the ordinary federal crime - for instance, failing savings
and loan institutions were going on all over the country, around this time.
There were prosecutions by U.S. attorneys, the Keating prosecution and others.
They got attention, but they weren't focused as this.
But once you connect the President in an allegation to the owners of the
failed savings and loan, then you at least create a much more bigger dynamic in
terms of attention and interest and scandal.... But it's still an ordinary
You mentioned the fact that Janet Reno made the unprecedented step of going
before Congress and testifying... for the reupping of that statute which had
been allowed to expire. To the degree that she embodied the Justice
Department, that enthusiasm for the independent counsel institutionally, in the
last year since she made that appearance, seems to have been mitigated by
experience, does it not?
No. I don't think so. I've talked to her recently. She has been accused
actually of appointing too many independent counsel.... The Attorney General,
as the Supreme Court said in the Morrison case, does have the final decision.
It's unreviewable. Even though the statute says that "she shall," there's no
one who can review her, and if she decides not to appoint an independent
counsel, as she did in the campaign financing..., it's unreviewable....
But I think, except for the campaign financing, and there's a good reason for
that, Janet Reno has followed the statute religiously. And where her staff
have given her sufficient information that there's specific and credible
information... she has come through and lived up to the statute. I think that
she was justified in not appointing an independent counsel in the campaign
financing, because it had become so political before it had even got to her.
And the whole purpose of the statute is to take it out of politics, that the
very appointment would be a response to a political pressure. And I think she
saw it that way...
But isn't that part of the trick? Isn't that how you beat an independent
counsel? You make it so intensely political that it would be impossible to do?
... She began considering it... at a moment when her boss, the President of the
United States somehow forgot to mention whether or not he planned to include
her in his next cabinet. And hung her out to dry, as she was making the
decision, for weeks.
I think this was a personal decision on herself. She has real guts, Janet
Reno, and I think she made a decision that she was being overly pressured by
the Republican Congress.
Not pressured by the White House?
Oh, who knows? But I don't believe that would have affected her. I know her
too long. I was Chairman of the American Bar Committee review of our Bill of
Rights protections. And I asked Janet to serve on that committee, because she
was then State District Attorney of Miami. And this is an iron woman, a woman
with compassion, a woman who believes in our justice system, but a woman of
great integrity. And I don't believe that she would take orders from the White
[Independent counsel] start out with just a narrow mandate, and they broaden
it. Well, that may be a criticism of federal prosecution, but any good federal
prosecutor..., when they go into an investigation, they suddenly see other
parts to it and other parts to it. And their duty is to follow the evidence
where they find it. And so it's not unique to the independent counsel. It's
part of good investigation and prosecution. Now some things may be so
unrelated that if an Assistant U.S. Attorney comes across it, he refers it back
to the U.S. Attorney's office to be assigned to another Assistant U.S.
And the independent counsel can refer back to Justice matters that don't
involve covered people, but a crime he has now come across that would not
create a conflict, and then Justice picks it up.
But do you think that there has been a sense of independent counsel's going
so far afield that the Justice Department has felt obliged to sort of rein them
in from the start by giving them a narrower jurisdictional charter?
No. I don't think it works that way, because I think every time an independent
counsel has gone beyond the official original mandate, he could only do that
with the approval of the Attorney General and the Special Division of the
court. So it isn't as though he's free to do these things, which makes him
unaccountable. No. He can't do it without permission. So he has to come back
for permission. And the Attorney General can say "No, this is something we can
handle." Or "It's not worth doing."
As, in fact, the Attorney General did in the case of Donald Smaltz and Mr.
Ronnie Blackley.... In that particular case the Department of Justice
fought his wanting to expand the prosecution to include Mike Espy's chief of
staff. Now, his charter was to investigate Espy. He gets out there and finds
a couple of things. He finds Espy was taking gratuities from this guy Tyson.
"Let's go look into Tyson Foods." Justice says no... We know, in fact, a
little bit about that, and Donald Smaltz did as you suggest a prosecutor would
do. He has the commission. He's supposed to look into Espy taking gratuities,
literally does that. He's taking them from Don Tyson. He moves down to
Arkansas, begins investigating and believes he has a really important, really
interesting line of evidence, comes back, as you say he must to the Department
of Justice, and says, "Look. I want to look into Tyson Foods, and this guy,
As it happens, Tyson is not a man without influence and friends. He mounts
a lobbying effort on Capitol Hill, literally gets legislation introduced to
amend your independent counsel statute. He literally sends representatives
over to the Justice Department to lobby there inside the Justice Department -
who knows whether or not he had contact with the White House, but in fact we
know he was a friend of Bill. And in fact Smaltz arrives at Justice, opens the
door, and is told by a meeting that included the Attorney General, the Deputy
Attorney General, the head of the criminal division, the head of public
integrity and others, "No Tyson." Is that not to be taken as an effort to rein
in an independent counsel and narrow his scope?
No. I think however the merits go on that, and whether Smaltz was right and
the Justice Department was wrong, that kind of interaction, and that kind of
decision making is what keeps this statute constitutional. Because if the
Attorney General didn't have that ultimate decision, rightly or wrongly, the
Supreme Court would have held that this was a violation of separation of
powers. You were giving too much power to the Congress and to courts. And
they were taking over the executive function.
So Justice fought Smaltz, and decisively so, on the expansion to Tyson,
which raised this whole question of the language being the term "expansion" on
the one hand versus "referral" on the other. The interpretation being that if
you seek an "expansion," you need the Attorney General's endorsement,
unreviewable if she says no. But if it's a "related matter," then you can just
on your own go get it with the endorsement of the Special Division.
You can, but... I think that most, if not all, independent counsel bend over
backwards on those issues and go back to the Attorney General and get a
confirmation that it is related....
Two exceptions that strike me as being important that I can think of. One
was when the regulatory independent counsel, Fiske, snatched the Webb Hubble
piece of the Whitewater case, completely unrelated to the land deal or Jim
McDougal and Madison Guarantee, as a related matter. And the other was Smaltz
going straight to the Special Division and getting the Blackley piece without
asking Justice's permission, and Justice as you know, not only didn't give it,
but fought it.
Those are problems. In Fiske's case, it's difficult to compare what Fiske does
with an independent counsel, because he wasn't under a statute, he was the
regulatory special prosecutor for the Attorney General. So, assumingly... they
are closer together than the independent counsel, who is supposed to be
separate and apart from the Attorney General.
I honestly think [expanding an investigation without going through the
Department of Justice is] a mistake. It's not a question of criticizing any
particular independent counsel, but I believe even though one could read the
statute as permitting the doing of that investigation under the "related"
reference so that it's still part of the same mandate, that an independent
counsel ought to have sufficient accountability to be able to communicate that
to the Attorney General. It will have to be a strange case in which the
Attorney General will say, "No. That's not related." I think there is a way,
that even if the Attorney General says no, you can go to the Special Division
of the court, [and] the court could approve it.
Which is why presumably Ken Starr came to the Attorney General on the
related matter of Monica Lewinsky. As it happened the Department of Justice
said, "No. That's not a related matter. But we will see it as an expansion."
And do you think that that approach by this independent counsel was at all
informed by earlier experience, namely Donald Smaltz saying, essentially, to
the Department of Justice, "We don't need you. We can go straight to the
Again, without getting into the specifics of independent counsel Starr, he has
from the very beginning followed that procedure. He comes from the Justice
Department. He was Solicitor General of the United States. He has great
respect for the Justice Department, and he believes that even though he's an
independent counsel that on questionable matters of that kind, he ought to
always consult with the Attorney General. And so I don't believe it was
impacted all by what happened with Smaltz or anything else like that. I think
that that's his view of his responsibility. And I think it would be a view of
most experienced lawyers, who were put in that position. I would do