Prosecution among Friends: Presidents, Attorneys General, and Executive Branch Wrongdoing

By David Alistair Yalof | Go to book overview

chapter 6:
What’s a Little Prosecution among Friends?
A Framework for Political Analysis

On April 7,1995, Independent Counsel Joseph DiGenova filed his final report in the case of Elizabeth Tamposi and the passport search scandal. DiGenova had spent more than two years investigating allegations that Bush administration officials had encouraged State Department officials to conduct an illegal search of Bill Clinton’s passport file during the 1992 general election campaign. DiGenova’s report included several strong statements criticizing the State Department’s mishandling of the passport matter at “virtually every step,” though in the final analysis he concluded that no criminal acts had actually been committed by State Department personnel or anyone else involved.1 As significant as DiGenova’s specific findings in the passport files case were, however, what drew the most attention was his overall commentary on the use of the independent counsel law in this and other cases where the alleged crimes seemed minor: “A substantial case can be made that had the … investigation been conducted in a more deliberate fashion, with greater attention to the facts developed, no referral to the Department of Justice would have been made, and no independent counsel would have been sought or appointed.”2

DiGenova’s analysis of the circumstances that led to his own appointment, which was critical of the reasons for resorting to an independent counsel, was strikingly candid. Most independent counsels seek to justify their role in the process by following every lead—no matter how small—and by conveniently ignoring significant considerations (such as the dollar cost of the investigation or the political costs already borne by the targets) that under normal circumstances would militate against continued aggressive investigation of charges by prosecutors with limited resources. Yet DiGenova stunningly did just the opposite, albeit after his office had spent $2.2 million in taxpayer money to reach his unusual conclusion.

DiGenova’s criticism of the earlier phases of the investigation focused on the mostly chaotic efforts of State Department Inspector General Sherman Funk to

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