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April 17, 1999
Picking Prosecutors

By Robert Parry

Kenneth Starr may have given the coup de grace to the special prosecutor law, but U.S. Appeals Court Judge David Sentelle may have done more to doom the post-Watergate reform.

A protégé of Sen. Jesse Helms, R-N.C., Sentelle was the judge who ran the three-judge panel that picked Starr and other conservatives to investigate President Clinton and his senior aides.

Like Starr, Sentelle testified about the independent-counsel law before the Senate Governmental Operations Committee on April 14. While confining his comments to the nuts and bolts of the selection process, Sentelle dropped tantalizing clues about how conservative Republicans hijacked the special-prosecutor apparatus and turned it to their political advantage.

In his testimony, Sentelle acknowledged that he sought out Republicans "who had been active on the other side of the political fence" to carry out the investigations of Clinton and his administration. Starr and other Sentelle-picked prosecutors then transformed fairly petty transgressions into major federal criminal cases and even a constitutional crisis.

Most famously, Starr turned Clinton's lying about his sex life into only the second impeachment of a U.S. president. But two other Sentelle selections pushed the edges, too.

David Barrett, head of Lawyers for Reagan in 1980, indicted HUD Secretary Henry Cisneros for allegedly understating how much he had paid a mistress. Another conservative, Donald Smaltz, prosecuted Agriculture Secretary Mike Espy for accepting tickets to sporting events -- and lost.

Sentelle did not address the potential danger -- and injustice -- of picking a political enemy who might wage a legal vendetta against his target. Normally, the ideal prosecutor is considered to be someone who has no bias, either for or against the person under investigation.

Still, arguably, the single-most important decision that undermined the independent-counsel statute came in 1992 when Supreme Court Chief Justice William Rehnquist ousted a mainstream Republican senior judge, George MacKinnon., who had overseen the three-judge panel for six years. MacKinnon had offended conservatives by recruiting Lawrence Walsh to investigate the Iran-contra scandal.

Though a Republican, too, Walsh had proved more independent than the Reagan-Bush administrations had hoped and had broken through the Iran-contra cover-up by early 1992.

In that heated environment, Rehnquist, a conservative who had been elevated to chief justice by Reagan, opted to replace MacKinnon with Sentelle. [For details, see iF Magazine, Nov.-Dec. 1998.]

In naming Sentelle, who was then only in his 40s, Rehnquist brushed aside the one provision in the 1978 Ethics-in-Government Act that sought to ensure nonpartisanship. That was a mandate giving "priority" to senior and retired judges who presumably would be less ambitious and more judicious than younger judges in selecting powerful special prosecutors.

Sentelle was not only a junior judge but he was well known as an ideological partisan, having served as a Ronald Reagan convention delegate in 1984 and having named a daughter "Reagan" after the former president.

Sentelle had made his mark on the federal bench by helping to overturn Walsh's convictions of Oliver North and John Poindexter in 1990 and 1991, respectively.

Yet, in his Senate testimony on April 14, Sentelle insisted that he applied an evenhanded approach to selecting special prosecutors since he took over the three-judge panel in fall 1992. He said he picked conservative Republicans to investigate Democrats only because he felt that political adversaries would conduct better investigations and would have more credibility in findings of innocence.

Sentelle said he looked for prosecutors "who had been active on the other side of the political fence. … If possible, and we haven't always, but you want, if possible, to have somebody from the other side so that when they say, 'There is no wrongdoing here,' it has credibility."

But Sentelle applied a different standard in fall 1992 when a criminal case implicated senior Bush aides. That case -- the first referred to Sentelle's panel -- alleged that the Bush administration broke the law while engaging in a political dirty trick to influence the outcome of the presidential election.

The State Department's inspector general had found evidence that Bush officials illegally searched Bill Clinton's passport file and then leaked to the press a bogus criminal referral suggesting that Clinton had tampered with his file, supposedly to remove an incriminating document.

For this so-called "Passportgate affair," Sentelle selected GOP stalwart Joseph diGenova, who had served as a U.S. attorney in the Reagan administration. In other words, when the allegation implicated a Republican administration, Sentelle picked a prosecutor from the same Republican side of the political fence.

Then, despite clear evidence that Clinton's privacy rights had been trampled in an attempt to fix the outcome of a national election, diGenova cleared his Republican colleagues of all wrongdoing. He even chastised the State Department's inspector general for raising the suspicions in the first place.

In his April 14 testimony, Sentelle offered a misleading explanation for the Passportgate exception to his rule of adversarial prosecutors. Sentelle maintained that the Passportgate probe was as much directed at Clinton's potential criminality as that of Bush officials -- and therefore it was unclear whether a Republican or a Democrat should be chosen.

"In that one, we had the potential for both sides being under investigation," Sentelle told the senators. "It started with allegations concerning -- false allegations, as it turned out -- concerning Bill Clinton's passport." That was an apparent reference to the rationale used in the bogus criminal referral that Clinton might have removed a rumored letter in which Clinton tried to renounce his citizenship during the Vietnam War. There was never any evidence that such a letter existed.

Sentelle then added that the accusations against Clinton were "followed up with misconstrued allegations concerning what a Republican official did with Bill Clinton's passport." That was a reference to a late-night search of Clinton's files, the drafting of a phony criminal referral against Clinton and the illegal leaking of the confidential referral to the press in a bid to damage Clinton's candidacy. There was no question that those Republican offenses had occurred.

"So," Sentelle continued in his explanation, "at that time, we had a hard time figuring out who was going to be embarrassed the most."

In reality, however, there was no question who should have been "embarrassed the most." The State Department's inspector general focused only on the real actions of the Bush administration, not on the manufactured suspicions about Clinton.

Still, in his Senate testimony, Sentelle not only equated the two sets of charges but apparently judged the anti-Clinton suspicions the more serious, because Sentelle's panel picked a Republican to handle the investigation, someone "active on the other side of the political fence" from Clinton, not Bush.

Sentelle also stretched his argument about the need for Republicans to investigate Democrats by invoking Attorney General Janet Reno as an advocate for his position. Citing Reno's testimony to the Senate committee on March 17, Sentelle stated that "General Reno alluded to that concept when she was here recently."

Reno did testify that if she were choosing an independent counsel, "I'd look for a former U.S. attorney who served in a Republican administration." But she made clear that was only one of many criteria. She cited other standards that would have excluded Starr and other ideological partisans chosen by Sentelle's panel.

Reno said she would seek a lawyer "who had experience as a prosecutor and preferably had experience as an assistant U.S. attorney in the actual trial of cases. I would look for somebody who had the time to do it the right way. I would look for somebody who had not expressed themselves on the subject or on points of law in any way that would indicate a bias.

“I would look for somebody who didn't have an association or conflict with the subject of the investigation. I would look to people that I had a regard for, people who were neutral, who weren't involved in politics, to discuss with them the abilities and the talents of that prosecutor."

On the selection of Starr, Sentelle's testimony also contained an important contradiction of his earlier public statements about a controversial lunch he had with Sens. Helms and Lauch Faircloth, R-N.C., in summer 1994.

At the time of the lunch, the initial Whitewater special prosecutor Robert Fiske was working under an interim appointment by Reno. She had chosen Fiske, a moderate Republican, during a lapse in the special prosecutor statute.

Helms and Faircloth -- Sentelle's close political allies -- were critics of Fiske. Faircloth especially was furious with Fiske for concluding that White House deputy counsel Vincent Foster had committed suicide in July 1993. Faircloth and some other conservatives were promoting wild suspicions that Foster had been murdered.

Prior to his Senate testimony on April 14, Sentelle had insisted publicly that "nothing in these [lunch] discussions concerned independent counsel matters." But in responding to a senator's question, Sentelle admitted that the topic probably did come up.

"They [Helms and Faircloth] may have said, 'Have you appointed an independent counsel yet?' And I would have said, no. There may have been some discussion in one sentence of had we done it." [WP, April 15, 1999]

But Sentelle's contradiction raised another question not pursued by the committee. The one-sentence inquiry suggested that Helms and Faircloth had talked with Sentelle about the possible removal of Fiske before the lunch.

Indeed, Sentelle's testimony suggested that he might have been lobbied more than he has admitted. Shortly after the lunch, Sentelle's panel fired Fiske and replaced him with the more conservative Kenneth Starr.

The pursuit of President Clinton was on in earnest.

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