Accused of ‘Cheap Shot’--and Timidity : McKay Takes Heat From Both Sides in Meese Case

Hard-working, mild-mannered and substantially inexperienced in criminal law, independent counsel James C. McKay has been clubbed from both sides in his 14-month investigation of Atty. Gen. Edwin Meese III.

He has been accused by Meese and his attorneys of taking “a cheap shot” at great public expense and he has been faulted by Meese’s critics for not seeking indictments.

The 70-year-old McKay, defending the mammoth report in which he charged that the attorney general probably committed three felonies and a misdemeanor but did not warrant prosecution, asserted Monday that “I am confident that we did not waste any government funds, any taxpayers’ money.”

His dual probe of Meese and former White House aide Lyn Nofziger, authorized by a special panel of three federal judges, had cost $1.7 million by the end of June.

‘Pretty New at This Game’

Characteristically cautious and self-effacing--”I’m pretty new at this game,” he acknowledged at one point--McKay said at a news conference that he had simply decided to treat Meese as if he were a private citizen.

“If this were an ordinary person, would he be prosecuted?” McKay said. “We concluded that he probably would not.”

In April, less than a month after he resigned as head of the Justice Department’s criminal division, William F. Weld outlined to President Reagan a detailed case for the indictment of Meese. McKay, who had decided by then that Meese should not be prosecuted, on Monday dismissed Weld’s assessment, saying he “did not have all the facts.”

However, several Justice Department lawyers contended that McKay--whose experience at a blue-chip Washington law firm was in litigating civil, not criminal matters--lacked aggressiveness as a prosecutor. One, speaking on condition that he not be named, maintained that, if Iran-Contra independent counsel Lawrence E. Walsh had been in charge of the Meese case, the attorney general might be in prison by now.

‘Cheap Shot’ Asserted

On the other hand, Meese and his attorney, Nathan Lewin, blasted McKay for overdoing his investigation and wrap-up report.

Lewin called it “a cheap shot . . . born of frustration” for McKay to charge that there were “probable violations” while admitting that the case was not strong enough to bring an indictment.

A defense attorney who requested anonymity said he believes that McKay underwent a change of heart between the time he decided to prosecute Nofziger on illegal-lobbying charges--gaining a conviction on three counts--and his more recent decision not to go after Meese.

Nofziger’s attorneys had accused McKay and his three assistant prosecutors of blowing completely out of proportion Nofziger’s lobbying of former White House colleagues in violation of a conflict-of-interest statute.

McKay startled some onlookers in February when he termed the just-announced guilty verdict against Nofziger “a little bit depressing, frankly.”

‘Tremendous Responsibility’

“He had never convicted anybody before,” a colleague said. “He is a very nice, very decent, very hard-working fellow. But until you’ve been in that situation, it doesn’t necessarily hit you what a tremendous responsibility you have.”

McKay himself acknowledged Monday that the use of “prosecutorial discretion”--whether to seek an indictment--was the “toughest mental decision that I had to make.”