Some of these investigations, including that of Judge Starr, are criticized ... because they do seem to go on forever. Seven years in the case of Judge Walsh; nearly four years in the case of Judge Starr. Is there something peculiar to the institution independent counsel that makes them prone to just go on like this?

No. Independent counsel, as I've said on a number of occasions, including an Op Ed piece I wrote, is nothing more, nothing less than a federal prosecutor. So the real question you have to ask is when you have a similar type charge in a federal prosecutor's office, how long does it take?

Now, the comparison is not to be made with the ordinary case load of the U.S. Attorney's office, which has a whole number of bank robberies and frauds, tax evasions and those things [that can] take [a] long [time], and they're expensive. But not as long as, say, seven years or even four years. No. Ordinary federal prosecutors also handle high grade white collar crime, conspiracy crimes, involving thousands of documents, millions of [dollars] in fraud, conspiracies and sometimes very powerful people. And they usually are put in the hands... [of] a task force that works out of the Justice Department. Campaign financing, for instance, is in such a task force. It's going on and on, and it will go on. Now, you compare those cases - take Noriega, for instance, which was a separate task force. It took longer than Walsh even with much more money.

There are a number of cases you can find where, once it goes into a task force..., it starts small and gets big, because everything starts to come in. They get witnesses. They focus on people. They go to the smaller people first, and threaten them with conviction or even indict them and turn them on a plea so they can go up the ladder. This takes years, and it takes millions of dollars. They spend more frequently than an independent counsel. Nobody looks at that. They say, "Gee, look how long it's taking." Who does the assessment in the Justice Department? Do that. Find out how long and costly the similarly complex cases [are], and when I say complex, again, I'm not talking about historical cases. But when you deal with a white collar crime conspiracy that affects powerful people like the President or others in the White House, that case is going to take a long time, whether it's done by the Attorney General or by an independent counsel.....

What keeps an independent counsel busy is exactly what keeps a special task force prosecutor busy. And costs as much. And the problem, of course, is that you're dealing with a very difficult crime to prove, if there is a crime. And you're dealing with powerful people who have all the resources and techniques in their hands to delay you or to obstruct you....

But when it comes down finally to a prosecution, in so many of these cases, you end up with prosecutions, not of the original [crimes]... that were suggested in indictments and so on and in headlines, but so often on such matters as false statement in a disclosure form or false testimony to Congress, those narrow tiny little things. Why is that?

Well, that, again, we ought to be happy about, frankly, rather than concerned. Just because the allegations that led to the appointment of the independent counsel are great crime doesn't end up with an indictment of great crime, and a prosecution of great crime means that somebody professionally reviewed all of the evidence that they could get, and found that they can't establish that great crime.

But in the course of it, they come across maybe perjury, false statements under the False Statements Act, which is treated the same as perjury, and then the issue is, "Well, this isn't what I was put in business to do, and it's not the major event that caused me to be appointed. But now as a federal prosecutor, I've come across evidence that somebody has obstructed justice by perjury, has suborned perjury or has engaged in false statements."

Is that important? It's very important. It seems to me our system of justice can't exist if people could lie, if people could make false statements to the federal government. It's considered by the Justice Department a very serious offense. Frequently the Justice Department ends up only with prosecutions for false statements.

How important really to survival of the republic though?

Well, if we consider the administration of justice, meaning the enforcement of the criminal law both in state courts and in federal courts, to be important to the republic, which I think it is, then a willingness to obstruct that justice through lying - people lie to each other all the time, but under oath, we are expected to tell the truth - if you condone that, then in effect you destroy the ability of the adversary system in the calling of witnesses. Our whole justice system depends on proof under an adversary system in a court of law through witnesses.

What if most folks don't agree, though? What if most people say, "Ah! I would have told that same lie under the same circumstances. I don't care."

I can assume that were true, but I don't believe it. I believe that most people take perjury, not lying among people, but take perjury in court or before a grand jury very seriously. I don't believe it's the American standard to say that they don't care about that. I believe they do take it very seriously.

Otherwise I think that if they didn't take it very seriously and we developed a moral standard [of ] "So what?" I think Congress would change the law of perjury. It's there, and it's a five-year sentence, and I believe that every court, every judge in this land would tell you that they depend on the integrity of witnesses.....

Is it always the case that every independent counsel must always follow Department of Justice [prosecutorial standards]?

No. The statute says, "should follow, unless it interferes with his ability to do his independent prosecution." I read that, and I think every independent counselor reads that exception... as a real exception, but a very narrow one. As a rule you should have the United States Attorney manual with you, and check everything. But the way you get it, automatically almost, is that every special prosecutor, particularly I can speak about Ken Starr, hires as most of his prosecutors on loan Assistant U.S. Attorneys from U.S. Attorneys' offices all over the country. So he hires federal prosecutors, who are living everyday within the guidelines of the Justice Department. And therefore, you know, he builds it into his office....

...[It's] frequently said that an independent counsel is not like any other prosecutor, because he's not accountable. He can do anything he wants. He has all the money in the world; all the time in the world to focus on a little guy and destroy him. And that's a bunch of nonsense.

Why?

Because, first of all, under the statute the independent counsel is subject to a number of scrutinies. [Under the] '94 act, every two years he has to justify whether he should continue or not. The Special Division can terminate it, if they don't think he's doing anything that's worth doing. He's subject to financial accounting, GAO internal accounting, by an internal comptroller [who] reports to Congress on how he is maintaining the spending limits of the Justice Department. He has to file other reports. He has to follow the guidelines of the Justice Department, both financially and in their practice.

Outside the statute, I say he's only a federal prosecutor. So he's controlled by the criminal rules of procedure. He's controlled by the Constitution of the United States; the Fifth Amendment, Sixth Amendment, Fourth Amendment, all of the things that prosecutors are controlled by.

He's controlled by the rules of evidence. He's controlled by the supervision of a judge, and the opposition of another lawyer who can keep him in check. And above it all, because he's an independent counsel and it involves the White House, he has a spotlight on him that no other prosecutor has.

Everything he's doing is being watched and reported. And I will tell you that every independent counsel, being appointed from a group of very successful lawyers, who perceive themselves as being bright and great and competent, care very much about how they're being reported.

And that perhaps is the strongest measure of accountability, the way the free press talk about him. But they're all together. And to talk about this as a monster who can do anything he wants without any accountability is sick and nonsense....

Of course, you are a person who brings to bear the stature of someone who not only knows history, but who has lived and helped to create the relevant history in the case of independent counsels. I wonder if you have had the occasion to reflect on the ironic fact of so many of the young people, so many of the figures that were in and around the cast of Watergate, have come back to play out in this current drama, yourself included?

Oh, yes. As a matter of fact, some of us played [it] out in other ways. You may know that in the summer around 1985 I was retained as chief counsel by the Senate of Alaska to impeach their governor then, Sheffield. And on the other side of me was Phil Lacovara, who had been in the Special Prosecutor's office. And I brought up with me some of my old staff from the Watergate Committee. As a matter of fact, there was a cartoon in Alaska at that time that showed a Western town with a saloon and two black-suited cowboys with low-slung holsters coming from either end of town. And it said, "Watergate Revisited." We were the hired guns brought into Alaska....

In any event, the reason is that not too many lawyers have had this very unique experience of particular congressional investigations involving the President, or special prosecutors, independent counsels. I teach a course here at Georgetown on congressional investigations. And we get into all of the details and drama of the tension between the independent counsel and the Congress. We go through actual investigations.

And I do it because I think it's important that some law students get to learn what is basically a very different role and basically a whole new set of skills that the average lawyer handling business cases, criminal cases and all, never has. And when they go into Congress, even representing witnesses, they make terrible mistakes. And it is an art form....

It's an art form and practice whose lessons were learned not only by those who would in fact be in the inquisitorial role, the investigative role, but also particularly in the defense role.

Yeah. The role of counsel in these investigations - particularly congressional committees - is one of the most difficult....

But in any event, even in these cases, it's very difficult for a defense lawyer representing a political leader like the President of the United States to advise that person to do what an ordinary criminal defendant should do.

Because even asserting or taking positions that you lawfully may take when you're the President may have an odor to it. And so how do you represent your client and advise your client? And what strategy do you use [so] that he's not seen, at least by the public, as some criminal defendant who is trying to hide the truth? It's a difficult job.

On the other side of that question, is it striking to you at all that so many of these people who grew up in the time - in fact, many of them decided to become lawyers, or those who were already young lawyers decided to enter politics because of Watergate when there was only one side to be on, which was the prosecutorial side - that so many of them have participated in the attack on the very totem, the icon of that time?

That's what we lawyers are all about. The good lawyer is trained - not that he has no integrity and he can switch back and forth like that - but we're trained that we are representatives of a client, and that our responsibility and duty is to provide for that client all the law permits him. Even though we don't like the client, even though we may even think the client is guilty, even though we despise the client, our service is to let the law work itself and not us be the judges as well as the defense counsel.

I've dealt with some prosecutors who tell me that they could never be a defense lawyer. And I said, "Then you're only half a lawyer." A good prosecutor ought to be able to move out into private practice and represent the kind of person he was prosecuting before. Not because he's changed his morals or his integrity. Because that's the service he can afford to make the adversary system work....

What would your reaction be if one result of this episode that is unfolding now were that the attack on Ken Starr and the attack on the independent counsel were so effective that next year the independent counsel statute was not renewed or was seriously amended?

I don't believe that Congress will fail to reauthorize the independent counsel statute... but if it happened I think it would be a terrible mistake....

It's very difficult in this moment right now to find very many defenders of the independent counsel on Capitol Hill.

[Opponents of the independent counsel must ask themselves] "What's the alternative?" If you don't have an independent counsel and you have something like this come up, either the Attorney General is going to do it - and nobody is going to accept that - or the Attorney General will appoint a regulatory special prosecutor and he is going to be no different than an independent counsel, if he's honest and he's good. But he can be fired more easily than an independent counsel.

So why do you want to go back to Watergate again? Why not stay with what we have, and if there are some loose ends, improve them? What my worry is thSpecial DivisionSpecial Divisionat because of so many allegations that are untrue - and particularly the reference to unaccountability and spending too much money - that if they rein the independent counsel and the legislation too tight as to time limit and as to funds, they will make him probably so handicapped that it's not worth having him. Because everybody knows - and it was proved in the recent campaign financing investigation under Chairman Thompson - that if you put a deadline on something good defense lawyers know how to stall you until it's over. And there shouldn't be such deadlines. Yes, there ought to be review of the independent counsel for his diligence and for his effectiveness. But that's already built into the law both from the Special Division and by the Attorney General. Now, I think that we ought to rely on the fact that Attorneys General, even though there's a political fallout, if they have got an independent counsel that is doing terrible things, [will] fire him.

And you believe this Attorney General would have?

I think she would.

And you are the ethics advisor to this independent counsel, Judge Starr. And if he had been behaving in such an egregiously out-of-control manner as has been suggested in some of the more heated rhetoric, could I guess that we would have heard from you by now?

Well, I shouldn't answer the question, but I want to. And that I would have been out there long ago. He knows that and I know that. And the role I'm playing, by the way, should be understood to be somewhat unique. There's nothing in the statute that calls for an independent counsel to have an independent counsel in a sense. And I think that it is... symptomatic of the concern and public feeling that was directed at the court and the appointment of Ken Starr, that he himself realized that he needed to be able to gain the confidence of the public in his investigation. And - although he's the independent counsel and any decision he makes is final and he doesn't have to listen to me at all - nevertheless, put himself in a situation where he consulted with me and got my advice.

Do you have moments where you have second thoughts about having accepted this job?

Yes and no. Not because of the job itself and what I'm doing and what impact I'm making on decisions. Only a halfway yes on the basis of how it's been depicted. It has been depicted to some extent that I'm fronting for him; I'm his public relations guy and I only want to make him look nice. It's so unlike the reality of what actually goes on.

But there are people who told me that I have hurt my reputation. There are judges and lawyers I respect all over the country [who have] written me, "For God sakes, Sam, get out of it; you're hurting yourself." They should know me better, that if I believe, based on my own integrity, that what I am doing is right and is supporting the importance of the statute, then I don't worry about what people say. If I were to worry about that I wouldn't have even done Watergate.

I don't need to worry about that. I'm not trying to run for public office. I've made my reputation. I love being a professor with all of its independence. And so, sure, I care when I get such letters, but I realize that most of those letters are backed by opinions based on information that is misinformed in the public. And I try to assure them, but I can't assure everybody.

You must have the temptation to educate.

Well, I do. And I tried that a few years ago. It was two years ago when I was quoted speaking frequently; to the New Yorker Magazine, and to almost any journalist who wanted to talk. Because I realized there was a misunderstanding among the public and the journalists on the difference between moral ethics, philosophical ethics, and legal ethics. Legal ethics is a very technical professional thing. It has nothing to do - well, it should have something to do, but it isn't exactly like moral ethics or philosophical ethics. Basically, legal ethics deals with the role of the lawyer for the client and what he should do and what he should not do. And there were all kinds of questions concerning Ken Starr's private practice and a number of other things of that kind. Which both legally under the statute and under Congress' intent, and ethically under laws of professional conduct, were ethically right. And I was supporting those.

And all kinds of questions, "Well, my God, what kind of an ethics adviser is he? You can do anything with Sam Dash and he'll say it's okay." And even the New York Times had an editorial that said they disagreed with my ethical decision. And I joked a little, saying to somebody that I appear in court all over this country as an ethics expert testifying in court, and judges have asked me what certain courts have said, but they've never asked me what does the New York Times say about that issue.