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Dec. 5, 1998

iF Magazine publishes honest, independent, investigative journalism.


‘Politicized’ Prosecutors

By Robert Parry

The late U.S. Appeals Court Judge George MacKinnon, a respected Republican who oversaw independent counsels from 1985-92, stated that he would not have picked Kenneth Starr to investigate President Clinton, according to MacKinnon's son.

The son, James D. MacKinnon, said Judge MacKinnon objected to Starr's appointment in 1994, in part, because of the appearance of partisanship arising from Starr's senior position in the prior administration.

Judge MacKinnon also expressed concern about Starr's frequent public appearances, which the judge felt "were wholly inappropriate for an independent counsel," James MacKinnon wrote in a letter to Rep. Barney Frank, D-Mass.

Judge MacKinnon "was always most careful to appoint independent counsels whose motivations could not be criticized," his son stated. "My father always felt that independent counsels and judges should be extraordinarily discreet with any public comments, and be as anonymous as possible and simply do their work." Judge MacKinnon died in 1995.

James MacKinnon wrote the letter about his father's views on Feb. 3, in response to comments made by Frank in a TV interview. But the correspondence was not made public at the time. James MacKinnon faxed me a copy of the letter on Dec. 2 after I contacted him while reporting about the politicization of the special prosecutor apparatus.

Judge MacKinnon's view is significant because MacKinnon was an old-line conservative Republican who jealously defended the impartiality of the special prosecutor system. MacKinnon was a friend of Richard Nixon who appointed MacKinnon to the federal bench in 1969.

MacKinnon's statements to his son also indicate that had he been re-appointed chief of the three-judge panel that picks special prosecutors in 1992, Starr likely would never have been assigned to investigate President Clinton. The political landscape might look very different today.

In 1992, for reasons that have never been explained, Supreme Court Chief Justice William Rehnquist replaced MacKinnon with one of the most right-wing judges in the federal judiciary, U.S. Appeals Court Judge David Sentelle.

By naming Sentelle, Rehnquist altered the political climate surrouding the selection of special prosecutors, effectively injecting conservative ideology into the process in a way that had been avoided during the previous 14 years.

With the Sentelle appointment, Rehnquist also ignored a provision in the 1978 Ethics in Government Act designed to safeguard the process against politics. The original law stipulated that "priority shall be given to senior circuit judges and retired judges."

The law’s drafters hoped that recommendation would prevent appointment of younger, more politically ambitious judges who might, in turn, use their position to advance a partisan cause.

Before Sentelle, the judges named to lead the special-prosecutor panel were all senior jurists known for their non-partisanship. Rehnquist broke with that tradition in naming Sentelle, who was an active junior judge then in his 40s.

A North Carolina Republican, Sentelle was seen as a hard-line conservative, a protege of Sen. Jesse Helms and a close ally of Sen. Lauch Faircloth, two of the Senate's most conservative members.

Before donning black robes, Sentelle also had been a Republican Party activist. He had served as chairman of the Mecklenburg County Republican Party and had been a Reagan delegate at the 1984 GOP national convention. Sentelle was so enamored of the former president that he named his daughter, Reagan.

Even after his appointment to the federal bench, Sentelle engaged in public writings harshly critical of liberals. In one article, Sentelle accused "leftist heretics" of wishing to turn the United States into "a collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially permissive state." [See the Harvard Journal of Law and Public Policy, winter 1991.]

Sentelle "takes politics seriously enough that he would do what it takes to make sure his party comes out on top," commented Ted Arrington, a professor at the University of North Carolina at Charlotte. [Legal Times, March 24, 1997]

By contrast, MacKinnon was cast more in the Eisenhower mold of reformist Republican who shunned overt partisanship. Some modern-day Republicans doubted his commitment to the ideological cause.

MacKinnon fell further out of GOP favor with his choice of Lawrence Walsh to investigate the Iran-contra scandal in 1986. Though a life-long Republican, too, Walsh refused to look the other way when he encountered what he considered significant crimes by President Reagan and his national security aides.

To the dismay of conservatives, Walsh pursued the scandal aggressively, winning convictions against White House aide Oliver North and Reagan's national security adviser John Poindexter. Walsh also squeezed guilty pleas out of other Reagan administration officials.

MacKinnon staunchly backed Walsh. But Reagan-appointed judges on the U.S. Court of Appeals in Washington bristled at the Iran-contra convictions.

In his book Firewall, Walsh called those judges "a powerful band of Republican appointees [who] waited like the strategic reserves of an embattled army."

A leader of this partisan faction was Judge Laurence H. Silberman, an obstreperous conservative. Silberman had served as a foreign policy advisor to Reagan's 1980 campaign and took part in a controversial meeting with an Iranian emissary behind President Carter's back during the Iran-hostage crisis.

At one point during the Iran-contra scandal, Silberman berated MacKinnon. "At a D.C. circuit conference, he [Silberman] had gotten into a shouting match about independent counsel with Judge George MacKinnon," Walsh wrote. "Silberman not only had hostile views but seemed to hold them in anger."

On the North appeal in 1990, Silberman teamed up with Sentelle to overturn North's convictions. Sentelle also served on a second three-judge panel that threw out Poindexter's convictions.

Despite the North-Poindexter setbacks, Walsh kept digging. By 1991, his investigators had discovered hidden documents revealing an elaborate Iran-contra cover-up. In effect, Walsh learned that North had told the truth when he claimed to be the "fall guy" for the scandal.

In 1992, Walsh confronted former Defense Secretary Caspar Weinberger with evidence of his role in the cover-up. When Weinberger refused to admit he had lied about his knowledge of Reagan's Iran-contra decisions, Walsh indicted Weinberger on perjury and obstruction charges.

The Weinberger indictment touched off a conservative firestorm against Walsh and, less visibly, against his protector, Judge MacKinnon. Walsh's breakthrough on the cover-up threatened to tarnish Reagan's legacy and complicated President Bush's re-election strategies in 1992.

Rehnquist, a conservative Republican who had been elevated to the chief justice spot by Reagan, moved to replace MacKinnon. In an interview, Walsh told me that he received a call from MacKinnon sometime in early 1992 with the news that Rehnquist was easing MacKinnon out and bringing Sentelle in.

"He [MacKinnon] was giving me a heads up," Walsh said, adding that it was clear that MacKinnon would have liked to continue in the post. "He really loved that job," Walsh said.

Rehnquist has never explained his reasoning for replacing MacKinnon. But the supposed rationale for picking Sentelle was that he had some prosecutorial experience while other judges didn't.

The law, however, says nothing about a background as a prosecutor. The law does grant "priority" to senior and retired judges, a provision Rehnquist ignored.

Since his appointment, Sentelle has steered nearly all sensitive investigations into the hands of partisan Republicans.

In late 1992, when the Bush administration was caught searching Clinton's passport files looking for derogatory information, Sentelle's three-judge panel handed off the investigation to GOP stalwart Joseph diGenova, who found no wrongdoing by his Republican associates.

After Clinton's inauguration, Sentelle's panel kept picking Republicans for high-profile cases. David Barrett, head of Lawyers for Reagan in 1980, was named to pursue allegations that Housing Secretary Henry Cisneros had understated how much money he had paid a mistress.

Barrett built the case into an 18-count felony indictment, which is still pending. [For a critical review of this case, see The New Yorker, Nov. 30, 1998.]

Another Sentelle appointee, Donald Smaltz, amassed a 30-count indictment against Agriculture Secretary Mike Espy for accepting free tickets to sporting events and other favors. On Dec. 2, a federal jury in Washington acquitted Espy on all counts, a verdict that sparked new questions about the overreach of Sentelle's prosecutors.

But Sentelle's most controversial special prosecutor was Kenneth Starr. When the Whitewater issue bubbled to the boiling point in early 1994, the independent law had lapsed. So, Attorney General Janet Reno picked Republican Robert Fiske to investigate.

Fiske made progress in the Arkansas phase of the inquiry but annoyed some conservatives by concluding that White House deputy counsel Vincent Foster had committed suicide in July 1993. Some conservatives were pushing vague conspiracy theories about Foster's "murder." One of the conservatives angered by Fiske's findings was Sen. Faircloth, Sentelle's friend.

After a Capitol Hill lunch with Helms and Faircloth, Sentelle ousted Fiske and arranged the appointment of Starr in August 1994. Starr's selection prompted complaints from some Democrats because Starr had served as solicitor general for President Bush and was an active Republican. Starr also had assisted the Paula Jones legal team with a friend-of-the-court brief against Clinton.

But Sentelle's choice stuck. Over the next four-plus years, Starr's investigation careened through a variety of allegations against the president -- Whitewater, the Travel Office firings, the FBI's delivery of GOP personnel files to the White House and, finally, the Monica Lewinsky matter.

As the investigations dragged on, other concerns about Starr arose, particularly whether he had become obsessed with pinning some crime on the president to justify the expensive investigation.

Starr did conclude that there was no case to be made against Clinton on Whitewater, Travelgate and Filegate -- but he kept those decisions secret until his November testimony before the House Judiciary Committee.

With the start of the Lewinsky scandal in January, however, Starr finally felt he could make an impeachment case against Clinton. But Starr's single-mindedness drew more Democratic complaints.

In the early days of the scandal, Rep. Frank commented on the different standards applied by MacKinnon and Sentelle.

“Look at the contrast,” Frank said. “When Judge MacKinnon appointed an independent counsel to investigate Ronald Reagan in Iran-Contra, Lawrence Walsh, he picked a Republican who had served in the Eisenhower administration. The analogy here would have been somebody from the Kennedy or Carter administrations to investigate Clinton.” [NBC’s Meet the Press, Jan. 31, 1998]

In writing to Frank, James MacKinnon stated, "You are correct. He [Judge MacKinnon] was always most careful to appoint independent counsels whose motivations could not be criticized."

According to MacKinnon's son, another part of the judge's opposition to the Starr appointment was the appearance that Starr might be "using his office to promote himself. He [Judge MacKinnon] did not conclude that was the case, but he was very uncomfortable with the appearance."

The history of the past six years might have been very different if MacKinnon had remained in charge of special prosecutors in 1992. Clearly, Kenneth Starr would not be appearing before the House Judiciary Committee making the case for impeachment.

But a larger question might be whether Rehnquist's political loyalty to the Reagan administration -- rather than a commitment to impartial prosecutions -- led to Sentelle replacing MacKinnon.

That question could be phrased another way: Did Rehnquist and Sentelle effectively rig the special-prosecutor apparatus starting in 1992 to protect Republicans and to punish Democrats?

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