Was This A Bad Idea?

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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.)