[Mb-civic] A Fake Cisneros Scandal - Robert Litt - Washington Post Op-Ed

[William Swiggard]

A Fake Cisneros Scandal
There Was No Coverup

By Robert Litt
Monday, January 23, 2006; A15

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.

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.

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 -- surely a record in 
any federal criminal investigation. His investigation might still be 
going on if the court that oversees independent counsels had not ordered 
him to stop. And yet his report contains no evidence supporting his 
scurrilous charges.

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.

The writer, a Washington lawyer, served from 1994 to 1999 in the Justice 
Department, where his last position was principal associate deputy 
attorney general.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/22/AR2006012200952.html
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