Inside The War Over Independent Counsels

Underneath the high-volume rhetorical war playing out over the independent counsels, there has been an ongoing, less noticed, "war of words" between the Department of Justice and several sitting independent counsels, such as Donald Smaltz.

Smaltz has been particularly rankled by comments, attributed to top-level Department of Justice officials questioning the qualifications and professionalism of the independent counsels themselves. In particular, two New York Times articles in November, 1997 suggested that Reno's negative experiences with independent counsels had, in part, swayed her view of the institution and led her to look very narrowly at the need for an independent counsel investigation of the campaign finance controversy.

The intensity of the inside war can be seen in this confidential letter from Smaltz to the Attorney General expressing his "extreme concern and indignation" with statements by Justice Department officials.

December 5, 1997


The Honorable Janet Reno
Attorney General of the United States
United States Department of Justice
10th and Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear General Reno:

I write to express my extreme concern and indignation with recent press reports that attribute to high Justice Department officials statements impugning the competence and motives of independent counsels appointed at your request (myself included), and even of the Special Division of the United States Court of Appeals for the District of Columbia Circuit that appoints independent counsels. Such statements, aside from being extremely unprofessional, seriously impede the accomplishment of what should be our common goals, namely, effective law enforcement and the detection and deterrence of public malfeasance.

In some of these statements to the press, you and other top Justice officials have directly disparaged the abilities of the independent counsels and their staffs. For example, the New York Times of November 26, 1997, reported:

Ms. Reno's unwillingness to seek an independent prosecutor in the campaign finance case appears to be shaped by her experiences -- almost all bad from her point of view -- with other outside counsels appointed at her request since she took over in 1993 . . . .

. . .

[I]n recent years, top advisors to Ms. Reno have complained bitterly about the quality of independent prosecutors . . . .

. . .

[Some Justice Department] officials regard four of the five

independent prosecutors appointed under Ms. Reno as overzealous amateurs who have tried repeatedly to expand jurisdiction . . . .

. . .

[S]ome lawyers who have worked with the Attorney General in recent years have said she seems to impose a higher standard as dissatisfaction with the counsels has increased.

Such statements, coming as they do from federal prosecutors and apparently sanctioned at the highest level, are nothing less than shocking. They threaten to undermine the efforts of the independent counsels in the already difficult job of prosecuting public corruption. Imagine, for example, the possible effect of such statements on jurors in our trial in the District of Columbia of a former high official of the Department of Agriculture, which was in progress when this issue

of the Times hit the stands.[1] Moreover, what will the future prospective venire imagine, suppose, or believe when they learn that the case they are summoned to hear is an independent counsel case?[2]

These remarks are also particularly unsettling because the overwhelming majority of the attorneys in the independent counsel offices are detailed from the Department of Justice and the United States Attorney offices, and a significant portion of the remainder are former Justice Department employees or AUSAs. Similarly, most of the investigators in the independent counsel offices are on detail from the FBI or other federal investigators agencies. Disparaging the

quality of personnel in the independent counsel offices brings disrepute upon the department and those enforcement services from which they are drawn.

Equally disturbing is the public criticism of the Special Division, and especially Judge Sentelle, head of the Special Division, attributed to Justice Department officials. For example, the same New York Times article reported the following remarks:

[S]ome Justice Department officials have derisively dismissed the suggestion that the outside prosecutors selected by Judge Sentelle's panel are in fact any more independent than Ms. Reno.

. . .

Democrats have complained that Judge Sentelle, an appointee of President Ronald Reagan, is a North Carolina supporter of Republican Senator Jesse Helms . . . .

As of officers of the court, we know that it is highly improper to attack members of the judiciary in the press, particularly because they are institutionally unable to respond in kind. The fact that an attorney does not agree with decisions made by a court or an individual judge, even those fulfilling extraordinary functions such as the members of the Special Division, does not justify such ad hominem attacks.[3]

Finally, the recent news reports, including the December 1, 1997 New Yorker magazine article "Janet Reno, Alone,"[4] show Justice Department officials attacking independent counsels by publicly airing past disputes between the departments and independent counsels, myself included. For example, the New York Times of November 29, 1997, reported:

[T]he independent counsel who is said by officials to most irritate Justice Department is David M. Barrett . . . . Law-enforcement officials said he had fought with Ms. Reno about expanding his jurisdiction and has delved into matters far from the original accusations against Mr. Cisneros. At one point Mr. Barrett wanted to investigate how Ms. Reno and her aides decided to deny him an expansion of his charter, officials said.

. . .

After repeated clashes with independent prosecutors, Ms. Reno and her advisors have grown disillusioned with many aspects of the independent counsel law, say Justice Department officials, current and former.

. . .

Ms. Reno's disputes with independent prosecutors, waged largely in closed arguments and sealed court documents, are emerging as a sobering experience that is shaping her views . . .

. . .

Mr. Smaltz has aggressively urged Ms. Reno to broaden his jurisdiction since his appointment in 1994 . . . . He tangled with her once over whether he could expand his charter to investigate Tyson to see whether it had given unlawful gratuities to other officials. Ms. Reno barred a broader inquiry.

As should be obvious, the proper place to resolve such disputes is in private and, if necessary, before the courts -- not in the press. That is how we have always attempted to resolve such disputes between our office and yours but, apparently, some members of your staff appear to believe that these are political matters to be decided by attempts to influence public opinion. The only conceivable result from such tactics can be to undermine respect for, and the effectiveness of, law enforcement and the fair administration of justice.

In this regard, I would remind you that we have had continuing concerns regarding leaks from your office to the press about confidential communications with our office. See my letter to you of February 24, 1995, a copy of which is attached. The quoted passages raise these same concerns once again.[5]

In summary, I am deeply troubled at the recent efforts of you and your subordinates to disparage independent counsels and the Special Division in the press. If you are dissatisfied with an independent counsel and you believe you have good cause to fire him, that is a right you have under 28 U.S.C. § 596. Alternatively, you may have the Special Division terminate his investigation under § 596(b)(2). If you are dissatisfied with the Independent Counsel Statute, the place to address any perceived problems is in Congress.

Attacking the independent counsels and their staffs, who are carrying out tom the best of their abilities the investigations that you earlier set in motion, by definition independently of the perceived needs and desires of the Department of Justice, serves to undermine the cause of law enforcement, generally, and the fair administration of justice, particularly. After all, Ms. Reno, we who are independent counsel in fact took the same oath you took and are certainly no less

well-intentioned than you!

I sincerely request that in the future you direct the officials who work for you to temper their public remarks, and to present any concerns or criticisms to our office or the offices of the other independent counsels so that any genuine problems that arise can be addressed directly and not become the subject of political grandstanding.

Finally, I speak only for myself and copy only those persons whose names are shown below. I hope that we can resolve these concerns inter se.


Donald C. Smaltz
Independent Counsel


Confidential Copies:

The Honorable Kenneth W. Starr
The Honorable David M. Barren
The Honorable Daniel S. Pearson
Michael E. Shaheen, Jr., Counsel,
Office of Professional Responsibility


Cf., ABA Model Rules of Professional Responsibility, Rule 3.6, Trial Publicity:

(a) A lawyer who is participating, or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

[2] This office currently has three indictments pending two of which are in this District, with more to follow.

[3] Cf., ABA Model Rules of Professional Responsibility, Rule 8.2, Judicial and Legal Officials:

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, ajudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.


This article, which relies in significant part on an interview[s] with you and others at DOJ states: "Reno, meanwhile, has quietly -- and unsuccessfully -- made an effort to rein in some of those far flung prosecutions. Some suggest that this setback to Reno's authority may be affecting her current decisions." (p. 45) (emphasis added)

[5] "Dear General Reno:

I wrote to appraise you of a concern that has just come to my attention this afternoon which I believe requires immediate investigation by the Department.

Today, my office received a call from a respected member of the press. During the course of the conversation with Charles Bakaly, Deputy Independent Counsel, that press representative inquired:

'about a letter from me to you requesting an expansion of jurisdiction over Tyson Foods and attributed to you a position similar to that expressed in your letter to me dated February 17, 1995.'

Our office has gone to great lengths to maintain our original letter from Elizabeth Taylor to Lee Radek (indeed we labeled it with a 6(e) designation). We similarly maintained your response in secret.

You are undoubtedly aware that Tyson Foods has been engaged in a well orchestrated campaign to convince the public, Congress and others that I am acting in excess of my jurisdiction in the course of my investigation. The unauthorized release of not only the fact but also the nature of communications between my office and yours concerning jurisdictional issues when 6(e) materials are involved may well constitute a federal criminal offense. Accordingly, by this letter to you I am requesting the Department of Justice to undertake an investigation as to the source of the release of this confidential information."


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