Passport case gets prosecutor Probe into search of Clinton files targets Bush aides

December 18, 1992|By David Johnston | David Johnston,New York Times News Service

WASHINGTON -- Attorney General William P. Barr has arranged the appointment of an independent prosecutor to conduct a criminal investigation of the State Department's search of Bill Clinton's passport files, lawyers and government officials said yesterday.

It was not immediately clear who would be the primary subjects of the criminal inquiry by Joseph E. diGenova, a former U.S. attorney for the District of Columbia, who was appointed by a federal appeals court panel in a sealed court document that has not been made public.

James A. Baker III, the White House chief of staff and former secretary of state, and two of his top aides have hired criminal lawyers to represent them in connection with the inquiry.

But it was not known whether Mr. Baker or either of the aides, Margaret D. Tutwiler, White House director of communications, and Janet G. Mullins, the White House political director, were under scrutiny.

The appointment of the independent prosecutor was made just days before the expiration of a law that requires such action if criminal conduct is suspected of a specific group of senior political appointees.

Thus, the inquiry for the first time exposes high-ranking White House and State Department officials to potential criminal prosecution in the passport affair.

Although the State Department has conducted its own investigation and Congress is now reviewing the records search, Mr. Barr's move would force Bush administration officials to explain their activities to a prosecutor armed with subpoena power and the threat of criminal indictments.

Mr. Barr's decision came as a shock to some of his conservative allies within and outside the government because as attorney general he has insistently criticized the law that authorizes the appointment of independent prosecutors, which expired Tuesday.

His decision also thrust President Bush's Justice Department into a case that deeply embarrassed the White House during the campaign.

Neither Mr. Barr nor other Justice Department officials would comment on the matter yesterday. But it seemed most likely that the attorney general had felt compelled to seek the appointment the prosecutor because the law that governs such appointments allows the attorney general little discretion in cases involving allegations against top political appointees.

Under the law, the attorney general must seek an outside counsel if he finds a credible allegation of wrongdoing against certain top administration officeholders, referred to by the Ethics in Government Act of 1978 as "covered officials," even if he does not suspect they broke the law.

In this case, the number of officials who fall into the "covered" category appear to be limited to a few senior White House aides in the executive office of the president, chiefly Mr. Baker and possibly Ms. Tutwiler and Ms. Mullins.

Under the law, once the attorney general determines that an independent prosecutor is warranted, he has no further voice in the selection, although he does determine the scope of inquiry. The special three-judge panel of the appeals court selects the prosecutor from a list it has compiled.

While the potential crimes under investigation remain uncertain, it is conceivable that the prosecutor will examine whether officials concealed their knowledge of the search or violated privacy laws that bar unauthorized disclosure of government records, including information gleaned from passport files.

The latest turn in the case followed a report last month by the State Department's inspector general that depicted a group of political appointees at the White House and State Department who sought to spread derogatory information about Mr. Clinton to news organizations during the campaign, hoping to find an excuse to rummage through government records for documents that might embarrass the Democratic candidate. In the end, the search turned up nothing.

The report found that State Department officials were responsible for the search, including two who were dismissed or demoted.

But it also indicated that senior White House officials, including Mr. Baker and the two aides, knew about the search of Mr. Clinton's files while it was being conducted but did nothing to stop it or to punish those responsible.

Mr. Baker, Ms. Tutwiler and Ms. Mullins have all hired lawyers to represent them in the matter.

The internal investigation by the State Department, which is being followed by an inquiry by the General Accounting Office, the investigative arm of Congress, shows that political appointees became involved in the passport search nearly from the start.

Sherman M. Funk, the State Department inspector general, said yesterday that he was unaware of the appointment of a special prosecutor. In his earlier report, he said that Mr. Baker knew of the search while it was in progress or within a few hours after it was finished.

Ms. Mullins and Ms. Tutwiler did not say exactly when they learned of the search and how much they knew about it.

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