Was This A Bad Idea?

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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.