The Wrong Counsel for the Case

August 16, 1994|By BENJAMIN BYCEL

LOS ANGELES — Los Angeles.--Will Robert Bork be appointed the new special prosecutor in the inquiry regarding Agriculture Secretary Mike Espy?

If last week's selection of Republican stalwart Kenneth Starr as the special prosecutor for Whitewater indicates how the three-judge panel makes decisions, the selection of Mr. Bork might not be as absurd as it sounds.

The judges are supposed to make their selection from a list of senior attorneys with judicial or prosecutorial experience and reputation for impartiality.

Somehow within these guidelines, the judges managed to select an attorney with no prosecutorial experience and with the appearance of a conflict of interest that should disqualify him from heading such a politically loaded investigation.

Granted, an appearance of conflict is often different from an actual conflict of interest, but the judges who appointed Mr. Starr made a point of stating that the Special Prosecution Act ''contemplates an apparent as well as actual independence on the part of the counsel.''

Further, the judges said that they had appointed someone who would not be subject to the ''perceptions of conflicts.''

But how independent can Mr. Starr be if, as the press has reported, he recently discussed with other lawyers plans to file a brief opposing President Clinton's legal position in the sexual harassment case filed by Paula Corbin Jones?

This single act alone, which may be an actual conflict, should have disqualified Mr. Starr under the appearance-of-conflict standard, but there is more. In selecting him, the judges noted that it would be ''in the best interest of the appearance of independence contemplated by the act that a person not affiliated with the incumbent administration be appointed.''

Did the court overlook that it was Bill Clinton who defeated Mr. Starr's last boss, George Bush? That Mr. Starr was solicitor general in the Bush administration, chief of staff to William French Smith, President Reagan's attorney general, and a Reagan appointee to the federal Court of Appeals?

Appearance of independence means more than just independence from the targets of the investigation. A truly impartial special prosecutor must also be independent from those who could benefit most from the outcome of the investigation.

Many Washington insiders, including prominent Democrats, view Mr. Starr as a man of integrity who would be able to overcome his partisan background and be fair and impartial. But it defies common sense and ambition to believe that he would be able to reconcile his loyalty to the Republican Party, his career and his duties as an independent prosecutor.

If he is perceived by his own party to be tough on the Clinton administration, it certainly would help his chance to become attorney general or a Supreme Court justice in the next Republican administration.

But if Republican leaders, especially the conservative wing, believe that he was soft on the president, it would not enhance his status within the party. Hardly the scenario for an independent prosecutor.

The subjects of the investigation are entitled to some assurances that the special prosecutor will not try to settle old political scores at their expense. Equally important, the American people who are footing the bill for this operation are entitled to have a truly nonpartisan, independent prosecutor.

Can one be found? Yes, if the judges were willing to look outside the Washington Beltway.

There are hundreds of current and former U.S. attorneys and local prosecutors capable of handling this type of case. While these men and women may have nominal political affiliation, their careers have not been, like Mr. Starr's, entangled with the office of the presidency.

What the judges did by appointing Mr. Starr is to further muddy Whitewater and to give the Clinton administration a chance to yell foul. They should not make the same mistake when they choose the next special prosecutor.

Benjamin Bycel, executive director of the Los Angeles City Ethics Commission, wrote this for the Los Angeles Times.

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