By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, March 9, 2004; Page A01

A little-known Washington court that oversees the investigations of presidents has approved more than a million dollars in legal-fee reimbursements for Republican administration officials caught up in the probes while rejecting similar requests from Clinton-era officials.

The three-judge panel has in recent months rejected the bulk of five requests for reimbursements totaling $5.5 million from former president Bill Clinton and associates involved in the Whitewater independent counsel investigation. It has granted small parts of three requests worth $114,000, or about 2 percent of the total.

After the Iran-contra independent counsel investigation of the Ronald Reagan and George H.W. Bush administrations, the court ordered government repayment of $1.5 million to 17 Republican officials and associates. It rejected five requests worth about $1.5 million, mostly from people who did not qualify because they had been indicted.

In a series of decisions over the past decade, the panel has justified the disparity in writing. It said the Iran-contra figures were unnecessarily embroiled in a highly unusual probe, whereas the Whitewater figures were properly interrogated in an investigation that ultimately uncovered federal crimes.

Democrats and academics who have studied the court disagree. "The partisan pattern is undeniable," said John Q. Barrett, a St. John's University law professor who was a lawyer in the independent counsel's office for the Iran-contra investigation. "Republican petitions have been getting reimbursed. And people connected with Democratic administrations are getting turned down. And it makes the court look bad."

But Michael A. Carvin, senior partner at Jones Day and a Reagan administration Justice Department official who has advised clients on the Independent Counsel Act, called allegations of partisan bias "utterly unjustified paranoia." Carvin said the judges have correctly noted the differences in the two investigations.

The three-judge court, officially called the Special Division of the U.S. Court of Appeals for the D.C. Circuit, is headed by U.S. Circuit Judge David B. Sentelle. The folksy, cowboy-boot-wearing North Carolinian, known as "Judge Dave" around the federal courthouse, credits a conservative icon, former senator Jesse Helms (R-N.C.), for launching his career. Sentelle named his daughter Reagan, after the president who put him on the federal bench in 1985.

Sentelle, 59, appointed by Chief Justice William H. Rehnquist to head the panel starting in 1992, has handled requests for repayment stemming from the two most wide-ranging and costly investigations in the independent counsel's 25-year history. Each lasted seven years. Sentelle and his two colleagues on the panel, retired judges Peter T. Fay, 74, a Nixon appointee of the U.S. Court of Appeals for the 11th Circuit, and Thomas M. Reavley, 83, a Carter appointee of the U.S. Court of Appeals for the 5th Circuit, have declined to comment on their decisions.

The court was established to select independent counsels and oversee their work. Even though the independent counsel law expired in 1999, the court continues to weigh a number of fee requests.

Under a 1982 amendment to the law, public officials pulled into investigations but never charged with crimes can be reimbursed for legal bills if they show that a career prosecutor would not have pursued a similar investigation or delved as deeply.

The goal was to protect government employees if a politically driven counsel, with no limits on time or cost, unfairly pursued them. It was sparked by a $200,000 independent counsel investigation into allegations -- later proved to be fabricated -- that President Jimmy Carter's chief of staff, Hamilton Jordan, had snorted cocaine at the New York nightclub Studio 54. Justice Department policy at the time frowned on investigations of personal drug use.

The Iran-contra investigation, led by independent counsel Lawrence Walsh, opened in December 1986 and focused on whether Reagan's administration had covered up the sale of arms to Iran to finance contra rebels in Nicaragua. The probe cost taxpayers $47 million.

Two CIA officials and two White House aides, Marine Lt. Col. Oliver L. North and Navy Rear Adm. John M. Poindexter, were convicted in the coverup, though their convictions were overturned by higher courts. Then-Defense Secretary Caspar W. Weinberger was indicted but pardoned before his trial by President George H.W. Bush.

The Whitewater investigation, led chiefly by Kenneth W. Starr, began in August 1994 as a probe of Bill and Hillary Clinton's role in a failed Arkansas savings and loan. Starr ultimately alleged that Bill Clinton gave false testimony to conceal a sexual relationship with White House intern Monica S. Lewinsky.

It cost $71 million and led to the convictions of Clinton's business partners, James and Susan McDougal and Jim Guy Tucker, former governor of Arkansas. Webster L. Hubbell, a former associate attorney general, and 11 others pleaded guilty to a variety of crimes.

President Clinton was impeached by the House of Representatives and acquitted by the Senate. He later admitted to giving false and misleading statements under oath.

In November 1993, Sentelle's panel, in awarding $40,000 in fees to retired Air Force Col. Robert C. Dutton, said no prosecutor would have pursued the center of Walsh's inquiry: violations of the Boland Amendment, which barred spending government money to overthrow the Nicaraguan government.

Barrett said this decision was wrong in two ways. First, Justice Department prosecutors were actively investigating Boland violations before Walsh. Second, Walsh indicted Iran-contra figures for federal crimes, such as lying to Congress and theft, that would have been pursued by prosecutors.

Still, the Dutton decision set the standard, prompting repayment to Reagan of $562,000 and Bush $272,000, or 75 percent and 59 percent of their legal fees, respectively.

Ten years later, Sentelle's panel of judges decided career prosecutors would have followed much the same path as Starr did in Whitewater, the costliest of all independent counsel probes. The court denied the Clintons all but 2 percent of their request for $3.55 million in fees.

"We harbor no doubt that in the absence of the independent counsel statute the allegations surrounding the Clintons . . . would have been similarly investigated and prosecuted by the Department of Justice," the judges wrote.

Kathleen Clark, a law professor at Washington University in St. Louis who has studied the division's record on fees, calls that "difficult to reconcile with reality."

"It's absurd to think the Department of Justice would have spent seven years and millions of dollars and dozen of prosecutors investigating Whitewater, Madison Guaranty, Vince Foster's death, the travel office of the White House and the allegations of false statements in the Paula Jones civil suit," Clark said.

David E. Kendall, the Clintons' chief attorney in Whitewater, agrees.

"Does anyone who didn't dwell in a cave from 1994 to 2001 really believe that the $70 million, seven-year Whitewater investigation would have been conducted as it was, but for the Independent Counsel Act?" Kendall asked. "To just state that question answers it."

Carvin disagrees, saying Clinton ultimately admitted to giving false statements under oath. He said debating the exact hours and dollars another prosecutor would have spent on the case is "getting into fairly arcane minutiae."

The panel has been consistent in rejecting the claims of indicted people, whom the law automatically bars from reimbursement. It turned down Reagan's deputy director of CIA operations, Clair George, who was indicted for lying to Congress and later pardoned by President George H.W. Bush, just as it turned down Susan McDougal, a business partner of the Clintons in the Whitewater deal, who was indicted but pardoned by Bill Clinton.

But the judges ruled last month that Lewinsky did not qualify for fee repayment despite her assertion that her responses to a civil suit never would have been prosecuted if the answers did not involve a sitting president. The judges wrote that they would also have had to reject automatically any fees the former White House intern incurred after she signed an immunity agreement with Starr, because she was then no longer an official "subject" of the probe.

Similar issues received different treatment in the past. The division found Reagan was entitled to legal expenses incurred throughout the Iran-contra investigation, which ended in 1994, even though Walsh notified the former president in July 1992 that he was no longer a subject of the investigation. And, the panel awarded legal fees to Edwin Corr, Reagan's ambassador to El Salvador, deciding that the kind of immunity deal he had with Walsh did not assure him of safety from charges.

Former Clinton White House adviser Bruce Lindsey, who was denied most of his $245,000 fee request, said the rejections penalize public employees of modest means -- the opposite of what Congress intended by allowing reimbursement.

"It makes it more difficult certainly for people who are not wealthy to go into government if the first thing they have to do is hire a criminal defense lawyer," Lindsey said.

The vague reimbursement law forces the judges to rely on their gut instincts about a prosecution's merits when considering fee requests, some experts say. Barrett said the "automatic reimbursement" era of Iran-contra was the judges' way of saying Walsh had gone too far and swept up too many public servants in his investigation.

Katy J. Harriger, a political science professor at Wake Forest University and author of a book on the independent counsel's office, said that to consider fees, judges are pressed to engage in "pure speculation" about whether a typical prosecutor would have viewed a matter as seriously as the counsel did.

Academics note that Sentelle's panel criticized Walsh's investigation and moved to shut it down. Later, Sentelle's panel chose Starr, a former federal judge who was solicitor general in the first Bush administration, to run the Whitewater investigation and gave him wide leeway.

"It does depend largely on whose ox is being gored," Harriger said. "The people who thought Iran-contra was a totally bogus case by and large thought Whitewater and Lewinsky were a fabulous case. And vice versa."

Clark says the panel, with its unsigned opinions, has made its view crystal clear: "It's real simple," she said. "Starr good, Walsh bad."