THE LAW : Special Prosecutor: A Search With No Limits

Americans are increasingly cynical about politics and distrustful of their leaders, and special prosecutors, ironically, are one reason why. Intended as an extraordinary measure, special prosecutors are now commonplace in official Washington. And there is almost no stopping an independent counsel once he is put in place. A seemingly narrow mandate to investigate specific allegations against specific individuals can easily become a roving commission to hunt for any wrongdoing not only by the named individual, but also by relatives, friends, associates, even his successor.

Whitewater Special Prosecutor Kenneth W. Starr was appointed to investigate President Bill Clinton and Hillary Rodham Clinton. In 3 1/2 years of investigations and two rounds of congressional hearings, no one has alleged that either of the Clintons committed any crimes. But that hasn’t kept Starr from being a very busy man.

Last week, a federal judge handed Starr his sharpest rebuke to date. Judge Henry Woods threw out the fraud indictment Starr brought against Gov. Jim Guy Tucker of Arkansas because the underlying events--the 1987 bankruptcy of a cable TV business--had nothing to do with the Clintons, the Whitewater real-estate development, Madison Guarantee Savings & Loan, the thrift operated by their partners, or anything else Starr was charged with investigating. Tucker is the highest-ranking elected official indicted by this special prosecutor, and continues to face other charges related to non-Whitewater real-estate deals that were at least financed by Madison Guarantee.

The independent-counsel law, which dates from Watergate, was intended to ensure that Administration misconduct would not be papered over by investigators who worked for the Administration. It was not intended as a license for fishing expeditions into the lives of anyone who has ever come into contact with someone in public life.

In Tucker’s case, according to his lawyers, the Whitewater special prosecutor had subpoenaed 100,000 to 150,000 documents dating back to 1965--including the governor’s law-school transcript. Tucker has charged that the attack on him is politically motivated, and that Starr himself is compromised because major private clients of his have clashed publicly with the governor. But whether the charges are motivated by politics or zealousness, the underlying question remains the same: What does it have to do with Whitewater?

According to Starr, he gets to decide that. In papers filed before Woods, Starr took the position that the court that was to hear the case against Tucker lacked the power to decide whether it had been brought properly; that he had earlier received Justice Department approval to investigate Tucker, and that such determinations are not subject to judicial review. Atty. Gen. Janet Reno, in papers filed before Woods, took the same position. The judge didn’t buy it: “I cannot accept the proposition that a citizen can be put on trial in my court for a loss of his liberty, and that no court has the power to determine whether there is jurisdiction to proceed in the matter.”

Earlier this summer, another federal judge stepped in to limit an investigation of alleged wrongdoing by former Agriculture Secretary Mike Espy, who resigned last year after allegations that he had received free travel and football tickets from Tyson Foods. The Espy special prosecutor, Los Angeles attorney Donald E. Smaltz, makes Starr’s efforts look limited.

Smaltz issued subpoenas for the passports, tax returns, phone and bank records of an executive at Sun Diamond Growers because he is a friend of Espy’s. In his search for disgruntled former employees of Tyson, he asked for the records of the Arkansas Workers Compensation Board. He even sought the memoirs of a woman whose father worked for Tyson two decades ago, and had a falling out with the company. He also demanded to know whether Tyson officials had ever arranged for prostitutes for any corporate guests. Chief Judge John Garrett Penn of the U.S. District Court of Washington ruled that Smaltz’s requests went beyond his legal jurisdiction, and refused to enforce at least some of the subpoenas.

Starr is seeking expedited review of Woods’ decision to dismiss the indictments of Tucker. He may well prevail; the laws have been written and constructed to prevent another Saturday Night Massacre--where Watergate Special Prosecutor Archibald Cox was fired at the direction of President Richard M. Nixon. Woods’ decision hardly constitutes that sort of interference. But even if Starr’s legal argument carries the day, it hardly validates the far-flung approach he has taken to an investigation that, to begin with, has nothing to do with the alleged abuse of presidential power. At least Lawrence E. Walsh’s Iran-Contra investigation had that going for it.

Calling for a special prosecutor has become just another partisan weapon to turn every embarrassment into a potential federal case. Do we really need a special prosecutor to look into who paid Espy’s fare to the Super Bowl--a gift that would have been perfectly appropriate were he still a member of Congress? Do we really need a special prosecutor to investigate how much money Housing and Urban Development Secretary Henry G. Cisneros agreed to pay his former girlfriend, or why he tried to downplay his obligations to her?

The proliferation of special prosecutors reveals more about the ease with which they are appointed--and the intensity of partisan politics--than the ethics of our leaders. Most observers agree that politics today is, in many respects, far cleaner than it used to be; and many of the worst abuses--large soft-money contributions by interested parties and lobbyists writing legislation to govern their own industries--are perfectly legal. But the partisan pitch is more intense, and refusal to appoint a special counsel is almost always met with cries of cover-up.

Worse, once a special prosecutor is appointed, he has, as Starr himself acknowledged in a speech last summer, “a huge amount of unchecked discretion.”

In America today, the power to investigate is the power to destroy. The broad wording of the federal mail- and wire-fraud statutes makes it easy: If you’ve ever lied on the phone, or even been intentionally ambiguous, you could technically be guilty of the federal crime of fraud. Of course, most prosecutors are too busy dealing with real crime to go looking for technical cases that might be considered fraud. But not special prosecutors.*