Thursday, January 26, 2006
By ROBERT LITT
WASHINGTON POST
An independent counsel has issued a report claiming that officials of the Clinton administration blocked his investigation into allegations of tax violations by former housing secretary Henry Cisneros. Although these sensational charges have been trumpeted by partisans as evidence of Democratic corruption, they are completely false.
I know; I was there.
The independent counsel, David Barrett, was appointed to investigate charges that Cisneros had lied about payments he made to his mistress. (After investigating this charge for several years, Barrett meekly allowed Cisneros to plead guilty to a misdemeanor charge with a promise of no jail time.)
In 1997 Barrett came to the Justice Department, where I was serving in the Criminal Division, and asked permission to expand his case to investigate whether Cisneros had evaded income taxes over four years. The law allowed the attorney general to grant him that jurisdiction if there were "reasonable grounds to believe that further investigation" of possible tax violations was needed.
Nonpartisan career lawyers in the department's Criminal Division and in the Tax Division studied the independent counsel's application in great detail over several weeks. They met with his office, reviewed documents and interviewed witnesses. Each of them concluded that, with the exception of a single year's tax return, there were no reasonable grounds to investigate Cisneros for tax violations.
Legal errors
These career lawyers found that the independent counsel's submission was full of legal and factual errors. For example, the independent counsel claimed that Cisneros had failed to report over $100,000 in income during 1991, but he was unable to produce evidence that there was any unreported income at all.
The conclusions of the career lawyers were reviewed in detail by other officials including myself, up to the attorney general. Every single lawyer in the Justice Department who reviewed this matter concurred in the analysis. As a result, Barrett's jurisdiction was expanded to permit him to investigate one tax year, for which there was barely adequate evidence -- although as it turned out, he never brought any tax charges.
Ironically, jurisdiction to investigate one year's tax violations in effect permitted the independent counsel to investigate all tax years. Under established legal principles, evidence of conduct in one year can be relevant to show tax evasion in another year. Everyone at the department recognized this; apparently, the independent counsel did not.
Far from conspiring to block the independent counsel from investigating tax violations, therefore, the Justice Department bent over backward to permit him to do so. Attorney General Janet Reno had no hesitancy in recommending the appointment of independent counsels when the facts justified it: She sought a half-dozen independent counsels during her tenure. As for me, it has been reported that I recommended appointment of an independent counsel to investigate Vice President Al Gore. Had the law and the facts justified it in this case, the attorney general would have granted the independent counsel's request.
In short, there was no conspiracy, no outside political influence, no improper conduct. There was only a good-faith evaluation of the facts and the law that produced a different result from the one the independent counsel desired. Even the Bush administration told Barrett that there was "no actual evidence" of a conspiracy to obstruct justice.
Unfounded investigation
It is the independent counsel's behavior that warrants examination here. His completely unfounded investigation into the alleged obstruction of justice lasted over six years and cost the taxpayers tens of millions of dollars -- even though the issue was simple and straightforward, and even though the statute of limitations expired during his investigation. In that time he never contacted me or any other Justice Department lawyer to find out what we had to say. At the same time he apparently required one IRS lawyer to testify almost 30 times . His investigation might still be going on if the court that oversees independent counsels had not ordered him to stop.
Sadly, this independent counsel seemed unable to recognize that different lawyers could reach different conclusions in good faith. Instead, he decided that everyone who disagreed with him could only be corrupt. He did not let the complete absence of evidence to support that fantasy deter him from smearing nonpolitical government lawyers, who have devoted their careers to serving the public, without hearing their side of the story. That's the real scandal.
X Litt, a Washington lawyer, served from 1994 to 1999 in the Justice Department, where his last position was principal associate deputy attorney general.