Paul Fishman


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.

In the face of the barrage of criticism, the almost violent language used by the defenders of the President directed at Judge Starr, and in some cases, against Donald Smaltz, and even in some cases, against David Barrett, should [Janet Reno] have stood up and publicly defended the integrity of the independent counsels?

Their personal integrity? I don't know whether she should have or not. This is an Attorney General who has on the wall of her office a quote by Abraham Lincoln, which I can't recite to you verbatim, but basically, wildly loosely translated says, "If you can't stand the heat, get out of the kitchen...." Basically the Attorney General knows that what comes with public life, what comes with high profile public life, what comes with making hard, sometimes unpopular decisions that involve great judgment and great discretion, [is] that you will make people mad and that they will sometimes question your motives and they will sometimes question your intent, and without making this discussion seem like an apologia for the Attorney General, there is so little ambitious and ego-oriented about her, that it actually I think doesn't bother her the way it might bother other people. So I am not surprised that she doesn't do that, because I am not sure she would find it appropriate for people to do it for her....


One of the less amicable intersections between that particular independent counsel, Smaltz, and the Department of Justice regarded Smaltz's interest in the Blackley piece of the Espy investigation, Ronnie Blackley being Mike Espy's former chief of staff. Mr. Smaltz found what he believed was compelling reason to pursue it. The Department of Justice opposed it. Why?

As you know... some of the facts are still sealed. And in fact the briefs themselves have been unsealed except for certain facts that Mr. Smaltz, I guess, believes would disclose aspects of his investigation. But Mr. Smaltz, sometime in late 1995, early 1996, came to the Department with certain allegations and he wanted to discuss them with the Department and found out what the Department's view of those allegations was and whether the Department thought it would be appropriate for him to handle them or not, and that is the kind of informal consultation that I was speaking of before, that goes on with great frequency between independent counsels and the Department of Justice.

It became clear in the course of those discussions that the Department and Mr. Smaltz had different views of who was the appropriate prosecutorial investigative body to handle the allegations that Mr. Smaltz had uncovered and had to do with the case that he ultimately prosecuted, involving farm subsidy application fraud by some farmers in Mississippi. After Mr. Smaltz got an inkling that the Department was not inclined to share his view, he invoked a provision of the statute pursuant to which he can go directly to the Special Division of the court that appointed him and ask for its blessing to say that something is a related matter to what he is already investigating. The Department opposed that application.



They opposed the application basically for two reasons. One is, it was the considered judgment of the prosecutors in the Department who reviewed the evidence that Mr. Smaltz had presented that the matter was not sufficiently related to what Mr. Smaltz was already doing, and the Department believed that since it was outside the scope of Mr. Smaltz's jurisdiction, that it was appropriately the Department's role to investigate those matters. The second was that the Department believes that in order for the independent counsel act to be constitutional, the gatekeeper for an independent counsel's jurisdiction must be the Attorney General of the United States. When the Supreme Court upheld the constitutionality of the Independent Counsel Statute, in a case called Morrison v. Olson, one of the issues that the Supreme Court dealt with was the circumstances under which it is appropriate for judges to decide how much jurisdiction a prosecutor gets. What the independent counsel act involves is the Attorney General giving up her power to another person in the executive branch. But the people who appealed the constitutionality of the statute and the Supreme Court were concerned that if judges were the people who were making that decision, who were slicing off part of the Attorney General's power, that that might violate the separation of powers clause of the constitution.

The Department took the position, with respect to Mr. Smaltz's application, [that] even though the independent counsel statute says that Mr. Smaltz can go to the court to get this jurisdiction, to get something declared related if the Attorney General doesn't agree, then you have violated the principle of separation of powers, because it is the Attorney General whose power is being essentially given up to the independent counsel.

So Smaltz is going after Blackley. Smaltz is going for this prosecutorial territory, if you will, bypassing the Department of Justice and going straight to the Special Division of the court, [and this] was a diminution of the Attorney General's gatekeeper role.

Right, and in the Department's view, actually suspect constitutionally.

But it was already a decided issue by the Supreme Court, wasn't it?

The Supreme Court decided that the act itself was constitutional, but when the Supreme Court decided, there were numbers of aspects of the independent counsel statute that were attacked before the Supreme Court declared it constitutional. One of them was whether the judges could appoint a prosecutor and the Supreme Court decided that was ok. There were a variety of other issues that were raised and one of the issues that was raised was whether, if the court, the three judges who appoint the independent counsel, describe the independent counsel's jurisdiction or set it down on paper, or determine what it is, that that exercise of power is not appropriately within the scope of the judiciary to do. What the Supreme Court said was, that it found that because the Attorney General presents to the court the facts and circumstances justifying the appointment of an independent counsel, and provides a suggested jurisdictional statement, that the court's setting the jurisdiction of the independent counsel, is "incidental" to its appointment of the independent counsel. The Department's view is that if the independent counsel is allowed to go to the court that appointed him and said, "Whether the Attorney General says yes or not, I want you to give me this power...," that no longer then is incidental to its appointment power and is in fact a much more substantive decision being made by the court and by the judges who appoint the independent counsel, and one that really, in constitutional terms, belongs to the Attorney General of the United States.

The Department of Justice made this argument and lost.

It actually didn't lose on that ground. As we discussed before, there is language in the order appointing Mr. Smaltz that is more expansive regarding his jurisdiction than applies to other independent counsels. The court found that the matter that Mr. Smaltz wanted to investigate was within the original jurisdiction that he had been given when he was first appointed and so it actually didn't decide the constitutional question. The law is already clear, that if he asks the Attorney General, and she says no, he can't then go to the court. So the question is, if he doesn't go to the Attorney General, and instead just goes right to the court, what is the answer?

He did bypass the Attorney General and he did go right to the court and he did get the expansion that he wanted, or the inclusion of this new prosecutory turf.

The court determined that he already had the jurisdiction as a related matter.

What is the effect of his win there?

It is hard to say. I would expect that the Department would argue in the next case that it was fact specific and that the Court's holding is limited to this particular case.... It may not have any real precedential value in the next case. So I think this issue, to answer your question, will surface in 1999 when the re-authorization of the independent counsel act comes up and the Department is asked to present its views to the Congress on this particular provision of the statute. I think if the Department continues to support the same position, it will say that it is unconstitutional for the independent counsel to be able to go directly to the court.

And who at the Department articulates that view?

I can't tell you who will articulate actually in front of congress. It may well be the Attorney General....

But who articulated it back [during the discussion of jurisdiction over] Blackley?

The brief was filed by the Department of Justice. It was signed by Jack Keeney, who was then the Acting Assistant Attorney General, and still is the Acting Assistant Attorney General in charge of the Criminal Division, and by the Public Integrity section. I don't remember who in the Public Integrity section signed it.

Do you remember what the nature of the debate had been... or was the unanimity of thought on this issue?

I can't honestly tell you whether there was complete unanimity. This issue was discussed at length with many components of the Department of Justice, not just the Criminal Division but lots of people who were familiar with the independent counsel act and the Constitution and the separation of powers clause and after considerable discussion, and I am not going to say debate, but considerable discussion, the brief was filed.

Did the Department of Justice recognize any downside in fighting the independent counsel on this issue?

I think there is always a risk that people are conscious of, that if the Department takes a position in court that is different than the position taken by the independent counsel, there is a risk that the Department or the Attorney General will be criticized by the public, by the press, by members of Congress for doing something that is at odds with what the independent counsel was trying to do. I think that is unfortunate, but I think people are aware that it happens. It has happened in other instances.

Is there a risk that the Department will thereby be emboldening potential targets of the independent counsel to declare, "Wait a minute, I am beyond your reach. The United States Department of Justice is even trying to rein you in."

I don't know whether people will be emboldened to make that argument. It may provide them another avenue. It turns out in the wake of this particular debate, the defendants made the motion unsuccessfully.

They did make the motion.

Sure they made the motion. But the fact is, the Department has a responsibility to make sure that this statute and every statute in which it has an interest is administered appropriately, fairly, and lawfully. But that doesn't automatically mean that there is going to be a knee jerk response on the Department's part to come in opposed to independent counsel. If you look at, for example, the Tucker case. As you know, the case in which Governor Tucker, the President's successor in Arkansas, was investigated and prosecuted by Ken Starr. That matter was referred as a related matter by the Department to Mr. Starr and after the matter was referred as a related matter, Mr. Tucker challenged the independent counsel's ability to investigate him. He made the argument that because it was not, in his view, related to Mr. Starr's underlying jurisdiction that it was not appropriate for Mr. Starr to investigate and prosecute him. The Department took the position that the Attorney General's decision to refer this matter to Ken Star, was unreviewable and that position was sustained by the Eighth Circuit Court of Appeals.



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