Court Says Special Prosecutor Overstepped the Mark

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The New York Sun

A federal court took a swipe yesterday at a former independent counsel, David Barrett, concluding that his investigation extended into areas unlikely to produce charges of criminal conduct.

Mr. Barrett was appointed in 1995 to examine allegations that a secretary of housing and urban development, Henry Cisneros, lied to the FBI about payments he made to a mistress. The Clinton Cabinet member pleaded guilty in 1999 to a misdemeanor count of making false statements to a government official, but the probe continued as Mr. Barrett explored allegations that officials at the Internal Revenue Service and the Justice Department blocked possible tax charges against the former Cabinet member for political reasons.

“The matter looked into in the IC’s ‘obstruction investigation’ appears to have been nothing more than a ‘bureaucratic conflict,'” the three-judge panel wrote, in a decision ordering the government to pay $22,390 in attorneys fees incurred by an IRS lawyer caught up in the probe, Martin Needle.

The judges, David Sentelle, Peter Fay, and Thomas Reavley, compared Mr. Barrett’s line of inquiry to an effort by the Iran-Contra independent counsel, Lawrence Walsh, to investigate aid to the Nicaraguan rebels as a criminal conspiracy. “The situation here appears to be analogous,” the judges wrote.

The court’s opinion adopted wording and reasoning from the Justice Department, which backed Mr. Needle’s effort to recover his legal fees. The department described as a “bureaucratic conflict” a dispute in which a criminal investigator for the IRS in Texas objected to the transfer to Washington of an investigation into Mr. Cisneros’s tax payments.

“It is exceedingly unlikely that the core allegations that gave rise to the independent counsel’s investigation with respect to IRS employees would have led to an investigation by an ordinary prosecutor,” the Justice Department told the court.

Asked in an interview about the judges’ claim that his office’s probe strayed into non-criminal matters, Mr. Barrett said, “We respectfully disagree with the conclusion of the court.”

Mr. Barrett told The New York Sun that the Justice Department’s dismissiveness was to be expected because his investigators were looking into whether lawyers at the department were lenient toward political allies. “DOJ had a horse in this race and that was to prove that they had done their job fully and completely,” he said.

The former independent counsel said he had no objection to the government paying Mr. Needle’s fees but did not believe it was obliged to do so. Witnesses and targets of federal investigations are generally not reimbursed, but the independent counsel law, which expired in 1999, allowed for compensation under some circumstances.

Mr. Barrett’s investigation formally ended earlier this year in the face of pressure from Congress to bring an end to the decade-long probe, which cost about $23 million. Democrats painted the inquiry as a vendetta against backers of President Clinton who pardoned Mr. Cisneros in 2001, and his backers. Yesterday’s unanimous opinion was striking because two of the three judges were appointed by Republican presidents.

Mr. Barrett denied any partisan motivation. “We urge that there be a very, very thorough investigation of the procedures of the Internal Revenue Service and its way of handling sensitive political personnel,” the attorney said.

The New York Sun

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