Ride on Investigative Roller Coaster

He has been one of the most vilified special prosecutors of the last 20 years, attacked by other lawyers and critics as misguided, overbearing and excessively ambitious.

His name, however, is not Kenneth W. Starr.

Until the recent furor enveloped Starr’s investigation of President Clinton, another independent counsel, Donald C. Smaltz, had been a lightning rod for similar, and equally harsh, criticism.

During his first three years on the job, the Los Angeles attorney was under fire from foes who charged that he had ranged far beyond his legal mandate to investigate former Agriculture Secretary Mike Espy, squandering millions of dollars in the process.

In recent months, however, Smaltz has quieted some of his critics with significant achievements, showing that independent counsels often approach their targets by a circuitous route. And in Smaltz’s case, that road has been especially bumpy.

A few weeks after his appointment in September 1994, Smaltz raised eyebrows in official Washington by subpoenaing flight logs and personal notes of pilots working for Tyson Foods, the large Arkansas poultry processor whose owner is close to Clinton. Smaltz wanted to find out if, during Clinton’s tenure as Arkansas governor, cash bribes had been ferried to him from owner Don Tyson’s headquarters.

Attorneys hired by Tyson protested loudly that the subpoenas, as well as FBI interviews of company pilots, greatly exceeded Smaltz’s mandate to investigate alleged gifts to Espy from Tyson lobbyists. A federal judge agreed with them and took the rare step of curtailing Smaltz’s actions.

In another instance, U.S. District Judge John Garrett Penn clamped restrictions on subpoenas Smaltz directed at another food company, Sun Diamond Growers of California, after objections from defense lawyers. Penn said some of the eight years’ worth of phone records and financial documents sought by Smaltz were irrelevant to the Espy investigation.

The independent counsel suffered still another setback in the case of Henry Espy, Mike’s brother. In a pattern similar to other independent counsel investigations, Smaltz sought to pursue possible cases against people close to the prime target. But a federal judge in Mississippi, L. T. Senter, threw out all six criminal charges that Smaltz brought against Henry Espy relating to his unsuccessful campaign for a U.S. House seat.

More recently, another federal judge threw out Smaltz’s conviction of former Sun Diamond lobbyist Richard Douglas, a longtime friend of Mike Espy, on grounds that the case’s criminal charges were improperly filed in California.

Called before Congress in December, Smaltz gave a spirited defense of his right to expand his inquiry. He said the mandate he was given by a panel of U.S. appellate judges amounted to “very, very broad jurisdiction.”

Illustrating his point, Smaltz said that to investigate Mike Espy, “you investigate the givers as well as the receiver.” He said this technique justified his scrutiny of Tyson Foods and Sun Diamond Growers, both of which allegedly provided gratuities to Espy while he served in Clinton’s Cabinet.

Smaltz has faced some obstacles never encountered by Starr. Smaltz, for example, has been rebuffed repeatedly by Atty. Gen. Janet Reno in bids to expand his investigation, including efforts to determine whether Tyson Foods and Sun Diamond Growers paid gratuities to other officials besides Espy (an allegation both firms deny). But in April 1996, the special prosecutor won a significant victory from the U.S. appeals court panel that appoints independent counsels.

Over objections from Reno, the judges granted Smaltz an expansion of his authority to investigate “substantive evidence of violations” by some of Espy’s associates. The ruling also allows Smaltz and other independent counsels to apply directly to the appellate court for broader jurisdiction instead of channeling such requests through the attorney general, which had been the traditional approach and is the avenue Starr successfully has used to broaden his investigation of Clinton.

Nearing the peak of his climb, Smaltz in recent months has obtained a sweeping indictment of Mike Espy. Returned by a Washington-based grand jury, the indictment accuses Espy of accepting $35,000 in gifts and favors from companies that did business with his department, including Tyson Foods and Sun Diamond Growers.

The charges against Espy, who has pleaded not guilty, mark the 16th indictment to result from Smaltz’s investigation. Espy, who resigned from the Cabinet soon after Smaltz was appointed, is facing trial later this year.

Smaltz remains under attack by White House lawyers for his perceived preoccupation with Tyson Foods as well as Don Tyson’s lawyer, Tom Green.

Green has accused Smaltz of being “way outside the playing field” of his inquiry’s mandate.

Smaltz, however, has obtained a guilty plea from Tyson Foods and has extracted an agreement that the poultry giant’s executives will testify about $12,000 in gratuities that they allegedly provided Espy, which should strengthen the government’s case against the former agriculture secretary.

Although independent counsels often are criticized for overspending, Smaltz has gotten Tyson Foods to agree to a $6-million fine. That brings to $10.5 million the court-approved criminal fines he has obtained, almost matching the estimated $11.8 million his probe has cost.

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Profile: Donald C. Smaltz

Here is a short background of the independent counsel investigating former Agriculture Secretary Mike Espy:

* Age: 61

* Education: Bachelor’s degree, Penn State University, 1958; law degree from Dickinson School of Law, Carlisle, Pa., 1961.

* Government service: Assistant U.S. Atty. in San Diego, 1964 to 1966, and Los Angeles, 1967 to 1968. Appointed independent counsel Sept. 4, 1994.

* Private practice: Partner, Smaltz & Anderson, Los Angeles

* Specialty: Defense of those accused of white-collar crimes

* Quote: “It’s nice to be wearing a white hat again.”

Source: Los Angeles Times