THE PERIL OF PROSECUTORIAL PASSION

By Viveca Novak/Washington

What do you call someone who works in secret with a multimillion-dollar budget, pressures wives to testify against their husbands, compels state agencies to turn over the names of thousands of workers who might have a grudge against their employer--all in order to learn whether a Cabinet member got some free football tickets and a few other gifts? The answer: independent counsel Donald Smaltz, who has become a walking, talking argument for changing the way this nation investigates its high public officials.

Whitewater's Kenneth Starr is the independent counsel Democrats love to hate. But Smaltz has the distinction of making even the most neutral lawyers argue that Attorney General Janet Reno should think twice before triggering any more such appointments. Smaltz was asked to determine whether former Agriculture Secretary Mike Espy took favors from companies, including chicken-processing giant Tyson Foods, that had business before his department. But after spending more than $9 million, Smaltz has compiled a record that shows the perils of prosecutorial passion. Last week he suffered his most serious rebuke, when a federal judge granted a new trial to convicted Tyson lobbyist Jack Williams. Reason: Smaltz's prosecutors had failed to tell Williams' lawyers that one of their main FBI witnesses had admitted lying under oath in an unrelated matter. (A Smaltz spokesman said the lack of disclosure was unintentional.) Last month the judge in another case related to the Espy probe refused to give a convicted defendant the prison time requested by prosecutors, sentencing him instead to a year in a halfway house and implying that Smaltz had been overzealous. In March a federal judge threw out Smaltz's case against Espy's brother Henry, saying the government didn't have enough evidence to prove that he had defrauded federal election authorities or lied to get a bank loan when he tried to win Michael's old House seat.

Smaltz has scored some successes. He has snagged plea bargains or guilty verdicts in eight cases, including the conviction of Sun-Diamond Growers, a California raisin-and-nut cooperative, for, among other things, giving Espy luggage, meals and transportation. But even before his recent big losses, lawyers were complaining that Smaltz and his deputy Ted Greenberg have acted like wayward cowboys. Hiram Eastland, a lawyer representing former Espy aide Ron Blackley, says Smaltz's lawyers put Blackley's wife on the stand and tried to get her to testify against her husband despite the long-standing marital-privilege doctrine. He says they also hauled the aide's son out of college midterms, sent him before a grand jury and threatened him with perjury to pressure his father into a plea bargain. Starr has had to tell Smaltz to back off from delving into issues involving Clinton. Some FBI agents and several attorneys have left the investigation because of what they considered its excesses. Two former Smaltz staff members have told TIME the counsel took liberties with government resources by regularly asking employees to watch his home while it was being cleaned. Smaltz's spokesman says such charges are "without merit."

Smaltz is now deciding on his final indictments before wrapping up by summer. He has granted chicken tycoon Don Tyson immunity from prosecution for anything but perjury; and last week Tyson testified for a third day before a grand jury. Smaltz's next targets? The likeliest include Tyson Foods, company spokesman Archie Schaffer, lobbyist Jack Williams (in a new indictment) and of course Espy. Attorneys for those parties say they expect no letup from the man who has given his staff watches that bear his name, the independent-counsel seal and the words IN RE MICHAEL ESPY.

--By Viveca Novak/Washington