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ABA Chief Criticizes 'Prosecutorial Zeal'

By Walter Pincus and George Lardner Jr.
Washington Post Staff Writers
Friday, February 20, 1998; Page A10

The president of the American Bar Association yesterday criticized "the prosecutorial zeal" reflected in independent counsel Kenneth W. Starr's investigation of allegations that President Clinton had a sexual relationship with a former White House intern and tried to cover it up.

Without mentioning Starr or his investigation by name, ABA President Jerome J. Shestack asked a series of pointed questions about the inquiry at the closing session of a symposium on the Independent Counsel Act at Georgetown University Law Center.

"Does prosecutorial zeal justify sting operations and unauthorized wiretapping in order to leverage the hiding of noncriminal, sexual indiscretion into a criminal obstruction of justice?" Shestack asked in remarks that clearly referred to Starr's decision to have the FBI secretly record remarks by former intern Monica S. Lewinsky.

Shestack also challenged the attempt by Starr's prosecutors to encourage Lewinsky to accept immunity from prosecution in exchange for her cooperation when her lawyer was not present. "Are prosecutors entitled to ignore ethical prescriptions on the grounds that their pursuit of truth or common practice justifies departure from professional standards?" he asked.

At one point, the ABA president asked: "Is the special counsel a fourth arm of government lacking any meaningful accountability and realistically immune from removal?"

A liberal Democrat who held a human rights post in the Carter administration and was once a member of the Democratic National Committee's finance committee, Shestack also implicitly questioned Starr's ties to conservative groups, suggesting they undermine his independence. "Where a special prosecutor is seemed to have conflicts of interest because of client relationships or financial associations with partisan groups . . . then the question arises whether the prosecutor is truly independent."

The pointed words from Shestack came at a time when Starr's independent counsel investigation is facing mounting criticism from President Clinton's allies and as the three-judge panel that oversees independent counsels is preparing to name a new one to investigate Interior Secretary Bruce Babbitt.

One of the panels at yesterday's conference included two former special prosecutors arguing that the special court in charge of the appointment in the Babbitt case should avoid a partisan, active opponent of the administration.

Former independent counsel Joseph E. diGenova said the three-judge panel "must not pick" anyone "who even skirted partisan politics or was aligned with causes" antagonistic to those being investigated. A known opponent of the administration "puts at risk the investigative process" no matter what his other credentials might be, diGenova said.

Like the ABA president, neither diGenova nor Iran-contra independent counsel Lawrence E. Walsh mentioned Starr by name, but the standards they enunciated for choosing an independent counsel would have ruled him out.

From the day of his appointment in 1994, Starr has drawn criticism from Democrats because of his prior role in Republican politics as a potential Senate candidate, his public criticism of President Clinton's position in the Paula Jones sexual harassment case, and informal consultations he had with Jones's lawyers.

Starr was selected in 1994 by the same three-judge panel that will name the independent counsel for Babbitt. The chief judge of that court, U.S. Appeals Court Judge David B. Sentelle, stated publicly last June that he believes an independent counsel should come from a different party.

Speaking at the Fourth Judicial Circuit Conference in Homestead, Va., last year, Sentelle also said his panel's goal was to put officials investigated under the Independent Counsel Act "in the same position they would be if they had been in the prior administration and the present Justice Department was investigating them."

Sentelle said his panel maintains "a talent book, but it is by no means exclusive," which he and the two other judges, John D. Butzner Jr. of Richmond and Peter T. Fay of Miami, pulled together from their "institutional memories." He said recommendations also come from other judges and attorneys.

Attorney General Janet Reno asked Sentelle and his colleagues last week to name an independent counsel for a perjury investigation of Babbitt in connection with his role in a 1995 decision to kill an Indian casino project in Hudson, Wis.

Although most of the panelists yesterday supported the idea of independent counsels coming from the party out of power, diGenova was chosen by Sentelle's panel as a Republican to investigate the Bush administration's secret election-year review of State Department passport files of Clinton and his mother.

Walsh, another Republican who investigated the Reagan administration's Iran-contra affair, said any appointee should have prosecutorial experience -- which Starr, a former U.S. solicitor general, does not. "The independent counsel is not a place to start a prosecutorial career," he said.

Sam Dash, who was the chief counsel of the Senate Watergate Committee and is now the ethics adviser in Starr's investigation, criticized what he called the "exposure by the hour" approach to today's scandals.

© Copyright 1998 The Washington Post Company

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