Was This A Bad Idea?

By Viveca Novak

The questioning of his star witness was already going poorly when independent counsel Donald Smaltz dumped a glass of water on the computer equipment. As Smaltz tried to make light of the situation, the liquid seeped into the circuitry, shorting out the only high-tech courtroom in Washington's federal courthouse and forcing a recess in the trial of former Agriculture Secretary Mike Espy.

Last week the jury did a more deliberate version of the same thing, and it was Smaltz who got zapped. After an exhausting seven-week, 70-witness trial, the jury took just nine hours to short-circuit his case against Espy, rejecting all 30 remaining counts of a kitchen-sink indictment. The verdict was not just a repudiation of Smaltz's four-year investigation into gifts Espy received from people his department regulates. It could also be read as a repudiation of the very statute that made Smaltz's wild prosecutorial ride possible. And when that independent-counsel statute comes up for renewal by Congress next year, Smaltz will have contributed much to its potential demise. "I'm reminded of the saying that just because everybody's against something doesn't mean it shouldn't be defeated," says Senator Fred Thompson, the Tennessee Republican who will hold hearings on the statute early next year.

But even now, Smaltz's performance--on top of Kenneth Starr's--has changed the dynamic at Janet Reno's Justice Department. Officials there tell TIME that her reluctance to call for counsels to look into Vice President Al Gore, former deputy chief of staff Harold Ickes and the President in connection with the campaign-finance mess comes in part from seeing what other prosecutors have done.

Complaints about the statute are familiar: Too many people are potential targets because it covers so many levels of government; the threshold of evidence requiring the Attorney General to call for an independent counsel is far too low; there is little accountability for the lawyers heading the probes until the very end, after they've had vast resources and all the time in the world to stalk their quarry.

Like most bad laws, this one began with good intentions. Twenty years and 20 independent counsels ago, Congress passed the statute to prevent a repeat of the Saturday Night Massacre. Nixon's firing of Watergate special prosecutor Archibald Cox made people realize that investigators had to be walled off from the investigated. So the new statute gave a special three-judge panel the power to name independent counsels when the Attorney General said it was necessary and made the counsels virtually unfireable.

The statute drew bitter criticism early on. The first five independent counsels brought no charges against the subjects they were pursuing, but one target, former Labor Secretary Raymond Donovan, was fuming at the end of a long legal journey in which he was cleared. "Which office do I go to to get my reputation back?" he famously said when he was acquitted of other larceny and fraud charges that had forced him out of office. Another Reagan Administration official investigated (and eventually cleared) in a separate probe, Assistant Attorney General Theodore Olson, battled the law's constitutionality all the way to the Supreme Court, where he lost.

Lawrence Walsh's probe of the Iran-contra allegations ratcheted up the debate about the statute because he spent so much time and money on the job. Walsh was the first independent counsel to conduct a wide-ranging and costly ($47 million) investigation. It resulted in seven guilty pleas and four convictions (two were overturned, and George Bush pardoned six of the targets). There has been grumbling about various probes since Walsh's, but only Starr's ever expanding Whitewater investigation, which is likely to exceed the cost of Walsh's inquiry, has been so castigated.

Still, while Starr and his investigation are better known, it is Smaltz who is cited as the best example of the statute's weaknesses by those who closely follow the law. In September 1994 he was assigned to investigate whether Espy, the first black to hold the job of Agriculture Secretary, illegally accepted gifts--luggage, sports tickets, entertainment--from people and agribusinesses he regulated. Smaltz was almost immediately criticized for his freewheeling tactics. His team asked former friends and employees of chicken king Don Tyson whether they knew of any hookers or homosexual activity at events that took place long before Espy held office. Smaltz subpoenaed the names of 2,000 Tyson workers who had filed worker's compensation claims against the company on the theory that they might be more willing to expose its underside. He ordered up Sun-Diamond Growers lobbyist Richard Douglas' phone records dating back to 1987--though Espy didn't take office till 1993--and his passports since 1978. At least one judge quashed some of Smaltz's subpoenas. Several of his lawyers quit because they were concerned about the prosecutorial standards of his office.

The indictment itself showed a prosecutor pushing the envelope. Smaltz said Espy illegally took $35,000 in gifts--but Smaltz valued at $6,000 four tickets to an inaugural ball that Espy could have had free, and he chalked up against Espy $3,200 given to Espy's girlfriend for a plane ticket. Smaltz even hit Espy with criminal charges for mailing reimbursement for some gifts he acknowledged he shouldn't have accepted.

Smaltz's case was so weak that Espy's lawyers decided not to put on a defense. Douglas, an old friend of Espy's who was meant to be the prosecution's strongest witness, turned on Smaltz on the stand and said he'd agreed to become his "puppet" only after three years of "storm-trooper" tactics by the independent counsel. "God knows, if I had $30 million, I could find dirt on you, sir," Douglas told Smaltz in front of the jury. (The amount Smaltz actually spent, through March, was $17.5 million.)

In the course of his investigation, Smaltz did gain 15 convictions or guilty pleas from individuals and companies, including Tyson Foods, which agreed to pony up $6 million for giving Espy things like two football play-off tickets, a couple of limo rides and a $1,200 scholarship for his girlfriend. Smaltz uncovered evidence that at least one of the firms that provided benefits to Espy did so hoping to curry favor with him. And there is no doubt that Espy shouldn't have taken some of the gifts. But Smaltz's critics maintain that Espy's misguided behavior hardly warranted such weighty criminal charges. At trial, Smaltz failed to show that Espy had rewarded any of his gift donors. Though the law doesn't require an explicit quid pro quo, Smaltz had to demonstrate that Espy knew the givers were trying to influence him. Smaltz didn't.

If he has done little to boost support for the statute, the same might be said of independent counsel David Barrett. He was appointed to investigate Housing Secretary Henry Cisneros' misstatements to FBI agents about payments to a former lover. But it's the former lover, Linda Jones, who landed in jail, and the case against her was based on false statements made on a mortgage application. "The problem with the statute is that the prosecutors, with unlimited resources and unlimited time, become obsessed with bringing down the people they are mandated to pursue," says Espy lawyer Ted Wells.

Even the American Bar Association, which took a strong hand in crafting the original statute, may change its position in February, when its house of delegates will vote on an A.B.A. task-force report that recommends scrapping the law. If it must be kept, the task force argues, only the President, Vice President and Attorney General should be covered by it. Also, the Attorney General should have a role in selecting the independent counsels, and the Justice Department should not be tied to a hair-trigger threshold of evidence in deciding whether a counsel should be appointed. Other critics argue that the law should apply only when the alleged wrongdoing occurred while the official was in office.

An alternative, if the statute is junked, is the existing law allowing the Attorney General to appoint special prosecutors in rare instances; they have marginally less independence but have worked well in the past. Leon Jaworski was the Watergate special prosecutor after Cox. "Archibald Cox got fired, yes, but there was a hue and cry, and Leon Jaworski was appointed almost immediately," says Jim Cole of the A.B.A. task force. "He had all the power he needed and was bulletproof." Besides, few can believe that politics is absent from the process now. Seven of the 11 judges who have served on that special panel have been Republican appointees, and the vast majority of independent counsels with party affiliations have been Republicans.

As Congress moves to rethink the statute, Espy is preparing to salvage his reputation. This week he will finally see his portrait, warehoused while the investigation dragged on, hung alongside those of other former Agriculture Secretaries. A White House spokesman said he didn't know if Clinton would attend the ceremony. Now, more than anything else, Espy wants to be the first witness at hearings next year on the future of the law that turned his life upside down for four years.