Espy Prosecutor Rethinks His Mandate

Fresh from a devastating defeat in his prosecution of former Agriculture Secretary Mike Espy, independent counsel Donald C. Smaltz said Thursday that he favors scrapping the controversial act under which he was appointed and replacing it with a new system for investigating allegations against senior federal officials.

In the process, he joined the growing ranks of those who say that the Ethics in Government Act, which authorizes the appointment of independent counsels, should not be renewed--or should be overhauled--when it expires next year.

Nonetheless, a somber Smaltz defended his handling of the Espy case and a four-year, $20-million investigation that led to 15 convictions and $11 million in fines and penalties but came up empty on a 38-count indictment against its prime target. He rebutted criticism that he had overreached in charging Espy with violating federal law by accepting $33,000 in gifts from parties regulated by the Agriculture Department.

“It’s hard not to prosecute these kinds of violations,” Smaltz said in an interview in his Virginia office overlooking the Potomac River. “It’s not just the taking of a thing of value. It’s the continual taking of a thing of value, and then it’s the pattern of lies and deceit.”

Espy, 45, a former Democratic congressman from Mississippi and the first African American to head the sprawling Department of Agriculture, announced that he would step down in late 1994 amid disclosures that he had received tickets to sports events, air fare and other favors from lobbyists and agribusinesses. Smaltz, a Los Angeles attorney, was appointed in 1994 to investigate the allegations.

Portrayed as Official With His Hand Out

During a seven-week trial, Smaltz called more than 70 witnesses, seeking to portray Espy as an official with his hand out from the moment he took office. Espy’s attorneys, who countered that the gifts were from friends to whom Espy showed no favoritism, called Smaltz’s case “a joke” and presented no witnesses in Espy’s defense. The jury in U.S. District Court here deliberated for two days before acquitting Espy on Wednesday.

Although some previous independent counsels have not sought indictments or have had convictions overturned, this marks the first time under the 1978 law that a special prosecutor brought charges against the official he was named to investigate without winning conviction on at least one count. Four other such investigations of current or former Clinton administration officials are ongoing and Atty. Gen. Janet Reno is weighing two more.

Some close observers have contended that Smaltz should not have prosecuted Espy, given the relatively small sums involved and the lack of evidence that the gifts influenced any official acts. They have said that, although Espy may have exercised poor judgment, he paid a stiff and appropriate price when he was forced to relinquish his Cabinet post.

Stanley Brand, a Washington attorney who served as counsel to House Democrats, said Smaltz sought to lower the bar so that even gift-giving to an official without evidence of influence peddling would be subject to prosecution.

Others, however, maintained that Smaltz had a solid case, particularly on counts brought under the strict 1907 Meat Inspection Act and those charging Espy with failing to disclose gifts on his financial reports. They said the verdict suggests it might be difficult to convict other appointees of President Clinton in heavily minority and Democratic Washington.

‘Juries Do Make Political Decisions’

“Clinton . . . is very close to this jury pool in terms of policy and ideology,” said James A. Thurber, director of the Center for Congressional and Presidential Studies at American University. “Juries do make political decisions.”

Espy, for his part, said of Smaltz: “He’s not unlike any other schoolyard bully.”

Smaltz said the special counsel law should be shelved and responsibility for prosecuting senior government officials given to a special Justice Department unit headed by a presidential appointee who would be confirmed by the Senate for a set term. He said such a unit should handle public corruption cases involving the executive branch, Congress and the judiciary.

Smaltz’s reason runs contrary to the common complaint that the law gives prosecutors too much power and provides too few safeguards. “It’s too easy to derail an independent counsel investigation,” he said, citing numerous challenges to his jurisdiction and the intense criticism leveled at independent counsel Kenneth W. Starr during his investigation of Clinton.

Smaltz, 62, said he came to Washington four years ago intending to conclude his investigation in six months but found that the initial evidence was “only the tip of the iceberg.” Among those he successfully prosecuted is Tyson Foods Inc., the Arkansas-based poultry company, which pleaded guilty to providing gifts totaling $12,000 to Espy and his girlfriend, including tickets to a presidential gala in 1993 and to a Dallas Cowboys playoff game. The company paid a $4-million fine and contributed $2 million to Smaltz’s inquiry.

Smaltz also won convictions against Sun Diamond Growers of California, a fruit and nut cooperative, for giving Espy gratuities worth $5,911, including tickets to the U.S. Open tennis tournament and luggage.

The U.S. Court of Appeals overturned this conviction, saying corporations that bestow favors on powerful officials cannot be prosecuted without evidence that they sought a specific favor in return. Smaltz, who disagrees with this interpretation, has appealed the decision to the Supreme Court, which has agreed to hear the case.

Prosecution witnesses from both Tyson and Sun Diamond in Espy’s trial said there was no ulterior motive when they gave the secretary favors. And Richard Douglas, a longtime Espy friend who had been a Sun Diamond vice president, testified that Espy was being held to a higher standard as the first black Agriculture secretary.

Smaltz asked U.S. District Judge Ricardo M. Urbino three times to instruct the jurors--11 of the 12 were African American--not to consider race as a factor. Urbino declined.

“In my judgment, race affects every issue in this country today,” Smaltz said in the interview. “We were concerned about it or we never would have made the motions.”

Smaltz said he also felt that Starr’s perjury allegations against Clinton--and the lack of public outcry about the matter--hampered his efforts to convict Espy for lying about the gifts. “The swirl of political events could not have been worse for the government.”