Get your own Free Home Page
(1) The Inspector Javert Syndrome
The investigation of Attorney General Meese began with an allegation that Mr. Meese had, through a personal friend named E. Robert Wallach, provided illegal assistance while he was Counselor to the President to a business called the Wedtech Corporation. The written referral to Mr. McKay stated that he should investigate whether the federal conflict of interest law, 18 U.S.C. 201-211, or any other provision of federal criminal law" had been violated by Mr. Meese�s "relationship or dealings at any time from 1981 to the present" with the Wedtech Corporation, Mr. Nofziger, E. Robert Wallach, W. Franklyn Chinn, and/or Financial Management International, Inc.
Under this broad charter, Mr. McKay proceeded to a thorough investigation of the Wedtech allegations. His Final Report acknowledged that he not only tried to identify any official acts performed by Mr. Meese for Wedtech, but also "to conduct a full investigation of Mr. Meese�s financial affairs from 1981 through 1986." The Attorney General cooperated fully, and even came to the United States District Court to testify before the grand jury. Mr. McKay�s final report declared that "the investigation into Wedtech-related and Meese Partner matters was substantially complete by the end of November 1987."
This was six months after the investigation began, and it should have ended there. But Mr. McKay apparently believed it was his job to investigate not merely the particular allegation, but every possible allegation that might be made against Mr. Meese involving any of the other names in the referral. And, before concluding his task, he went beyond even that limitation to conduct a total investigation of Mr. and Mrs. Meese�s finances and other possible conflict-of-interest allegations.
Victor Hugo created an unforgettable character in Les Miserables � the inspector who hounds Jean Valjean all his life because he is convinced that the theft of a loaf of bread should not go unpunished. Some Independent Counsels have taken on the role of Inspector Javert and treat the government official who is the target of their initial authorization as a quarry who, they feel, should be hunted down. The ABA Sections on Criminal Justice and Litigation said in their recent report that the assignment of an Independent Counsel "too often appears to be investigating an individual rather than a crime."
That, to my mind, was the largest flaw in the investigation of Attorney General Meese. It was shocking to be told, after the Wedtech phase of the investigation was totally put to rest, that Mr. Meese would have to refute allegations concerning (1) a proposed "Aqaba pipeline project" that had absolutely nothing to do with Wedtech, (2) other investments involving Mr. Chinn, (3) the Attorney General�s participation in telecommunications matters at the Department of Justice, (4) the funding of Mrs. Meese�s job at the Multiple Sclerosis Society, and (5) the accuracy of the Meeses� 1985 tax return.
Authorizing a government prosecutor to investigate an individual, rather than a crime, is plainly contrary to fundamental principles of American justice. There is probably no person alive � and surely no person who has accomplished enough in his or her lifetime to be considered for a Cabinet post or an equivalent top-level government appointment � who could not be faulted for some misstep in public or private life. We do not knowingly empower Inspectors Javert to find skeletons in the closets of public officials.
The Independent Counsel law must be amended in a clear and forceful manner to prevent this kind of expansion of authority. At present, the law favors broad definitions of the jurisdiction of an Independent Counsel and liberal extensions of authority. The presumption should be reversed. An Independent Counsel should be authorized to investigate a specific allegation that has survived the preliminary steps described in Sections 591 and 592. He should not be able to extend that investigation to any other conduct unless it is part of one single continuing offense. There must be an absolute prohibition against granting an existing Independent Counsel any authority to expand his investigation beyond the specific allegations that he was initially authorized to investigate. If an Independent Counsel comes across a new charge � such as Mr. Starr did when Linda Tripp came to him in January 1998 with allegations and evidence of perjury and obstruction of justice in the Lewinsky matter � the entire investigation should be referred immediately to the Attorney General and, if appropriate, assigned thereafter to another Independent Counsel.
In the case of the Lewinsky allegations, the evidence presented suddenly to Mr. Starr by Linda Tripp on January 12, 1998, was, I think, very serious, and it justified prompt law-enforcement measures. The Lewinsky investigation would not have garnered the criticism it has received if that investigation had been conducted, on an emergency basis, by Department of Justice personnel and thereafter under the aegis of a different Independent Counsel. It is clear that the Department of Justice was not eager to handle this "hot potato" and gladly referred it, as it was entitled to do under existing law, to Mr. Starr.
I should note, at this point, that I do not join the chorus of disapproval that is being heard frequently with regard to Independent Counsel Starr. I know and have great respect for Kenneth Starr, whom I retained to represent me personally in an appeal that he undertook before being invited to serve as Independent Counsel. The investigative and prosecutive measures that his Office has taken are all too familiar to me. During three decades of representing targets of federal criminal investigations, I have seen much more serious violations of fairness and decency by federal prosecutors at various levels. I wish all my clients were treated with the respect and forthrightness that Mr. Starr and his staff showed to the targets of their investigation.
I believe that the Inspector Javert Syndrome can be cured and prevented by amended statutory provisions, and I propose language accomplishing that result in an Appendix to this Statement.
Get your own Free Home Page