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  •   Espy Case Heightens Criticism on Counsel Law

    Donald C. Smaltz
    Independent counsel Donald Smaltz. (Ray Lustig — The Washington Post)
    By John Mintz and Bill Miller
    Washington Post Staff Writers
    Friday, December 4, 1998; Page A16

    The clear-cut acquittal of former agriculture secretary Mike Espy has intensified a chorus of complaints from lawyers and members of Congress about the independent counsel law, which they predict could be significantly weakened or even rejected when it comes up for renewal next year.

    Espy's acquittal Wednesday on all 30 criminal charges brought against him by independent counsel Donald C. Smaltz came against the background of an already bitter controversy concerning independent counsel Kenneth W. Starr. His Whitewater-and-perjury probe of President Clinton, it is felt by many in Congress, has contributed to a new nastiness in Washington and the criminalization of what many consider normal politics.

    Members of Congress have expressed particular alarm about the low threshold for kicking off independent counsel probes, their longevity and their cost -- for example, the $62 million spent examining the Clinton administration through March. Lawmakers may tweak the statute to deal with these issues and leave it in place, but some on Capitol Hill think they will decide not to renew it.

    A consensus has taken shape, meanwhile, among defense attorneys, bar groups and career prosecutors in the Justice Department that too many independent counsels have become obsessed by their narrow missions, bullied their targets, got diverted by tangents and wasted the public's money. Exhibit A for legal critics is Smaltz, who spent more than $17 million pursuing Espy for accepting gifts such as football tickets and dinners.

    But critics of the independent counsel law charge other current-day independent counsels, too, with excessive zeal. One is David M. Barrett, who has spent several years investigating former Housing and Urban Development secretary Henry Cisneros for lying to the FBI about how much money he paid a former mistress. Barrett has insisted that he must prosecute crimes discovered along the way, but his detractors have criticized his decision to prosecute the mistress, her sister and her brother-in-law for crimes such as lying on mortgage documents.

    "It's an investigation that a regular federal prosecutor would spend virtually no time on," said E. Lawrence Barcella, a veteran federal prosecutor who has defended numerous targets and witnesses in independent counsel cases. "It's simply mind-boggling that this case went forward."

    The independent counsel law, passed in the late 1970s amid a post-Watergate sensitivity to public corruption, has been re-extended with ever-greater margins in Congress every five years, culminating in a 356-56 House vote in 1994.

    Republicans were the first to gripe about the law, in the 1980s when independent counsels targeted aides to President Reagan. The GOP most loved to hate independent counsel Lawrence E. Walsh's $47.4 million investigation of the Iran-contra scandal. Now Democrats seethe over Starr's $33 million investigation of Clinton.

    But legal lobbyists and congressional staff members say there is one big reason why Congress may not extend the "i.c." statute, up for its regular five-year renewal in 1999: With a wide-open presidential election in 2000, both parties fear what an independent counsel could do to their president.

    "Neither party wants to hand this tool to its adversary," said one lawyer who has testified on the question in Congress.

    A triumphant but exhausted Espy, interviewed yesterday at his lawyer's office, recalled that as a House member from Mississippi, he voted in favor of the independent counsel act. "I regret that vote," he said, adding that he intends to push former colleagues to drastically change or abolish the law next year.

    "I have to bite my tongue here and not say much about Mr. Smaltz," said Espy, who on Wednesday likened Smaltz to a schoolyard bully.

    "The problem with this statute is that when a prosecutor is mandated to pursue one individual, and is given unlimited resources and unlimited time, it is inevitable that it will become a witch hunt," said Espy's attorney, Ted Wells.

    Not everyone condemned Smaltz's pursuit of Espy. Defenders pointed out that since his appointment by a special three-judge panel in 1994, Smaltz has won convictions against 13 corporations and individuals, including poultry giant Tyson Foods Inc., and has secured $11 million in criminal fines.

    "Call me old-fashioned, but I think when a cabinet secretary receives tens of thousands of dollars in gifts and favors from people regulated by that secretary, it should be investigated and, if proven, prosecuted," said Charles Lewis, executive secretary of the Center for Public Integrity, which monitors the influence of money in government.

    "What's the threshold of being unacceptable? -- -$50,000? $100,000?" Lewis asked. "Does anyone find it odd that all these firms stand convicted of giving gratuities to a public official, but the official gets off? The moral, it seems, is it's better to receive than to give."

    Legal organizations have recommended numerous reforms of the independent counsel law, such as limiting those officials covered to the president, vice president and attorney general, instead of the entire upper ranks of the executive branch; allowing the Justice Department to do more thorough probes before being required to determine whether an independent counsel is needed; and ending the requirement that counsels must write a report after their investigations.

    "The statute has worked relatively well over the 20 years, and most independent counsels have declined prosecution," said lawyer Irvin Nathan. "Their declinations have been beyond reproach. But if the Justice Department had declined those prosecutions, there would have been allegations that facts were brushed under the rug. . . . Without the statute, we'd have political chaos."

    Barcella, however, was more skeptical of the law.

    "Independent counsels are one-trick ponies, assigned to look at one person, so they do one trick," he said. "They end up thinking the crime they're looking at is equivalent to genocide. . . . The first victim of every independent counsel investigation is perspective."

    © Copyright 1998 The Washington Post Company

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