At the time he and two other judges were deciding who would handle a politically sensitive investigation of President Clinton, federal appeals court Judge David B. Sentelle met on Capitol Hill with a conservative Republican who led efforts to remove special counsel Robert B. Fiske Jr.
Sentelle and Sen. Lauch Faircloth (R-N.C.), who share roots in North Carolina Republican politics, confirmed that they met in mid-July, a time when Sentelle was considering whether Fiske would be permanently appointed the independent counsel in the Whitewater case. Legal experts yesterday questioned the wisdom of the meeting in view of the matter's political implications.
Faircloth, who condemned Fiske's early findings, wrote to Attorney General Janet Reno July 1 charging that Fiske's professional ties to former White House counsel Bernard Nussbaum presented at least an apparent conflict of interest that rendered him unfit for the job. That letter was followed by a July 13 appeal to Sentelle from 10 conservative Republican congressmen, who asked that Fiske be replaced.
Fiske's sudden ouster last Friday by the Sentelle-led three-judge panel stunned the White House and Democratic members of Congress and led to new charges of partisanship in the conduct of the Whitewater probe. The White House was still reeling at that time from two weeks of embarrassing congressional hearings on the Whitewater matter that had pitted Democrats and Republicans in a bitter fight over the propriety of back-channel communications involving a federal probe.
Sentelle's panel said it was removing Fiske, already nine months and $2.5 million into the investigation, because of an appearance of conflict because he originally was appointed by a member of Clinton's Cabinet, Attorney General Reno.
The partisan fight escalated with the panel's appointment of Kenneth W. Starr, an active Republican and U.S. solicitor general in the Bush administration. Starr publicly has criticized Clinton's claim of immunity in a sexual harassment lawsuit, and the Associated Press reported yesterday that he had agreed to donate his time to a conservative women's group to prepare a legal brief on the issue. But a lawyer in Starr's law firm, Kirkland & Ellis, said now that Starr has been appointed independent counsel, it will not represent the women's group. "We don't feel it's appropriate for the firm to be involved in any civil litigation directly involving the president," lawyer Jay Lefkowitz told AP.
Yesterday, Sen. Carl M. Levin (D-Mich.) again called on Sentelle's panel to reconsider the Starr appointment because of Starr's strong Republican connections.
Sentelle and Faircloth say that they did not discuss Fiske during their meeting. According to Sentelle, the two joined Sen. Jesse Helms (R-N.C.) for a lunch in which they talked about western wear, old friends and prostate problems.
"To the best of my recollection nothing in these discussions concerned independent counsel matters," Sentelle said in a written response to an interview request. "... Sens. Faircloth and Helms are old friends of mine and I lunch with one of them or both of them from time to time."
Faircloth refused to be interviewed about the meeting, except to say through aide John Preyer that "there was no discussion involving the court or the Senate and there is nothing more to comment on."
However, an individual who saw Faircloth and Sentelle board a tram underneath the Capitol complex said the two were involved in an "animated" discussion in which Faircloth did most of the talking. The individual spoke on condition of anonymity and said he called The Washington Post to report the discussion between Faircloth and Sentelle because he believed it was inappropriate.
A discussion of Fiske or the independent counsel decision would have been improper between a judge and a senator with a political interest in the outcome of the case, said New York University law professor Stephen Gillers. Democrats said Sentelle's and Faircloth's very presence together at such a pivotal time in the panel's decision-making raises questions about last week's action in replacing Fiske.
"The whole point of giving it to judges is that they will be immune from political influence," said Stephen Bundy, a law professor at the University of California at Berkeley. "Why else would they feel compelled to review Reno's judgment except that she is presumed to be politically influenced and he is not? Then we find this guy consorting with the leader of the opposing political faction... . At best, it appears to be improper."
"If you are concerned about an appearance standard, having Judge Sentelle, who is going to make this decision, having lunch with some of Fiske's leading critics is a terrible idea" regardless of what they were talking about, said Rep. Barney Frank (D-Mass.), one of the administration's chief defenders during the Whitewater hearings.
Sentelle, sponsored by Helms for appointment during the Reagan administration to the federal District Court in North Carolina and then to the U.S. Circuit Court of Appeals here, presides over the panel given authority to choose independent counsels under the recently revived independent counsel law. That law's reauthorization in June led the panel to review Fiske's appointment as head of the Whitewater investigation.
Until this week, when news organizations appealed to Sentelle's panel, letters it received regarding Fiske -- including the congressional appeal -- were not included in a public court file. The panel released all of its correspondence after members of Congress complained that the group's proceedings should be public.
Fiske's removal marked the second time that concern over his political ties doomed him with the federal government. His planned 1989 nomination as deputy attorney general in the Bush administration was also shot down by conservatives in the GOP.
As head of the Whitewater probe, his independence was under question from the start, in part because he at least appeared to be too close to Nussbaum, a fellow New York attorney. Fiske's initial findings -- that White House deputy counsel Vincent Foster committed suicide in Fort Marcy Park, and that the White House-Treasury meetings violated no laws -- caused further distrust.
When the independent counsel statute was reauthorized in June, allowing the three-judge panel to review Fiske's appointment, Faircloth was among the first to argue for Fiske's removal. While other Fiske opponents expressed their views in letters to Sentelle, Faircloth wrote to Reno, saying it would be improper to discuss the matter with one of the judges involved.
Gillers, who has followed the evolution of the independent counsel law, said the counsel appointment is a "judicial function" of the court, and consequently is bound by the rules prohibiting informal attempts to influence judges.
Gillers said the letters to Sentelle from members of Congress were "unseemly" given Sentelle's need to remain neutral.
"Especially here in this Whitewater case ... where everyone has insisted on acute sensitivity to appearance, it seems to me that anyone who presumes to write a letter should be aware of the appearance that gives," Gillers said.
Staff writers Ruth Marcus and Joan Biskupic contributed to this report.