Columns » Ernest Dumas

Death of justice


Did I mention that the Republicans had dealt a mortal blow to the principle of an independent and impartial federal judiciary in the Clinton years? Once the White House decided in the 1980s that the judiciary was key to the Republican Party's fortunes and began insisting, wherever it could, not merely on a conservative legal faith when it chose federal judges but rabid party allegiance, the time would inevitably come when politics would routinely supplant principle in the halls of justice. It arrived when an appellate panel that was picked for its partisanship removed the special prosecutor in the Whitewater investigations and replaced him with Kenneth W. Starr, a man with a famous animus toward President Clinton and a closetful of conflicts of interest. A score or more of court orders afterward sanctioned Starr's abuses and expanded his authority. But some are unpersuaded. What would they make of the second phase of Judge David Sentelle's supervision of the Clinton investigations? Sentelle, who named his daughter Reagan after the man who rewarded his political support with a judgeship in 1985, has chaired the three-judge panel named by Chief Justice William Rehnquist to supervise special prosecutor investigations since 1992 and picked Starr. Sentelle presides over the determination of who gets reimbursed for legal fees incurred when they were swept up innocently in independent counsel investigations. Remember that Presidents Reagan and Bush I had their share of independent counsels, which produced a number of indictments and convictions. Iran-Contra was the most famous. The independent counsel law permits reimbursement of legal fees to those who, it turned out, were innocent but had to hire legal help in the process. How would you guess Sentelle's men treated the requests first from Reagan, Bush and their friends and then the Clintons and the people who were caught up in one of those investigations? The Republicans regularly got their money and the Clintons and the scores of associates with rare exception were spurned. Reagan was awarded $562,111 to pay lawyers who represented him in the investigation that resulted in the conviction of his national security adviser and a deputy for running an illegal foreign operation and lying about it. Reagan didn't recall being told what his office was doing. President Bush was given $272,352 to pay lawyers who represented him in the investigation of his Christmas 1992 pardon of former Defense Secretary Caspar Weinberger and others indicted in Iran-Contra. Clinton and his wife submitted bills totaling $3.8 million associated with investigations that did not involve the Monica Lewinsky affair. Sentelle allowed a few thousand dollars for lawyers to review Starr's final report and denied the other 98 percent. Scores of others have received nothing or very little. Take the case of Bruce Lindsey of Little Rock, a close Clinton friend and White House adviser who was investigated by Starr and the FBI for about two years for checks he wrote to campaign workers as treasurer of Clinton's campaign for governor in 1990. Sentelle came up with a doctrine in 1994 for determining who among the innocents deserved to be reimbursed. If a U.S. attorney would have questioned a person if there had been no independent counsel law, he or she isn't entitled to be reimbursed. If they would not, reimbursement is allowed. Then he arbitrarily decided that no Justice Department attorney would have ever investigated Iran-Contra because no one had paid any attention to the federal law Reagan's office violated, so they were all reimbursed. He decided that Whitewater and the half-dozen other issues that triggered special prosecutor investigations in the Clinton years would have been investigated anyway by U.S. attorneys. Never mind that the Justice Department was investigating Iran-Contra when the special prosecutor was appointed and that a Republican U.S. attorney at Little Rock had decided Whitewater was not worth investigating. Never let facts get in the way. Even that was too brazen for Bruce Lindsey's case. Sentelle's panel concluded that, OK, Starr should have stopped pursuing Lindsey for the old Arkansas campaign after it was crystal clear that he had done nothing wrong. Sentelle decided they should have stopped after, say, 18 months and he allowed Lindsey $27,992.14 of the $245,000 he incurred. George W. Bush is loading up the courts with Sentelle clones. Two nominees to join Sentelle on the D.C. Court of Appeals, the nation's second highest court, deserve mention. Thomas W. Griffith was discovered to have been practicing law for years without a license - first in the district and now in Utah. But look, he meets the real test. He is a member in good standing of the Republican National Lawyers Association and he was the Republican lead counsel in the Senate impeachment proceedings - illegally, of course. Brett M. Kavanaugh, 38, has trifling experience in a court of law but he does claim to have helped write Starr's final report arguing for Bill Clinton's removal from office. And he had argued against executive privilege for Clinton and, as a staff secretary in Bush's office, argued for it for Bush. Perfect credentials.

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