Fishman was an assistant U.S. attorney in New Jersey before joining the Department of Justice in late 1994. At Justice, Fishman served as a top deputy to Reno, advising on criminal justice policy, including the application of the independent counsel law. He left the Department at the end of last year and is now in private practice.

One of the things, as you know, we are interested in is the relationship between the independent counsels... and the Department of Justice.... Help me understand what, inside the Department of Justice, the view is of the independent counsel institutionally.

Costs and burdens?

You create a separate mechanism outside the Department of Justice - which is of course the intent of the statute - to deal with a potential or actual conflict of interest in the Department's handling of a particular case. To achieve that level of independence, you create what is in effect a small mini-Justice Department, with someone with almost [all] of the Attorney General's power to investigate and prosecute..., but somebody, because he or she is operating outside the regular channels of the Justice Department, who doesn't have any of the same constraints on the ways in which they proceed and the things they can do.

So, while intellectually, of course, the individuals in the Criminal Division and the Public Integrity section and throughout Justice understand that there is this need reflected by Congress for a thing called an independent counsel, is there a way to characterize for me, sort of, the institutional gut [feeling]? Is there any sort of territorial imperative at all going on?

I don't know if there is a territorial imperative. I think it is fair to say that all aggressive lawyers like to handle good important cases. And I think you will see, if you read the newspapers across the country almost any day, that one prosecutor's office or another may be tussling, usually in a friendly way, with another prosecutor's office over a particular case, and that sort of thing happens all the time. The people I know in the Public Integrity section... particularly Lee Radek, who is the Chief of that section, has a very strong commitment to making sure that the Department of Justice is perceived as fair and honest and above reproach. It is very important to him, and it is very important to the Attorney [General], and the way he conducts the Public Integrity section's business, the way he handles its responsibilities within the Department to make sure that the Act is implemented appropriately, is I think a real credit to the Department.

As the incoming Democratic administration, the new Democrat President and his new Democrat Attorney General, Janet Reno, come in, they are walking into a universe that has no independent counsel statute, and both advocated rather vigorously... for re-authorization of the Act. Why?

I know what I know from having read the Attorney General's testimony that she gave in 1994 and having talked to her about it shortly after I got there. She was mindful of the historical antecedents of the act and why it had been important in the first place to have it and I think she understood that public cynicism and any public mistrust of the most important kind of case that the Department of Justice can handle ultimately not only could undermine the public's confidence in that particular case, but have repercussions that went far beyond that for all sorts of matters being handled by the Department of Justice, by components such as the FBI and maybe by the legal system as a whole. I think at the time that was certainly her view....

Do you suppose when the question of re-authorization of the independent counsel act comes up next year, that the Department of Justice's testimony will be significantly different than it was when the last authorization question arose...? Is there anything in the experience of the last five years that will cause a recommended change [in the statute] from the Department of Justice?

I am reluctant to speculate on what the Attorney General will actually decide, but I think the kinds of things that people have been discussing in Congress for some time and in the media and at academic conferences, are such things as whether the number of covered persons is too large, particularly with respect to campaign officials and other issues.

Time and spending limits?

Well, time and spending limits are hard.... I think most prosecutors don't think that time limits are actually realistic. I think there is a real concern that if you put a time limit on a prosecutor that you run the risk of inappropriately tying his or her hands in a way that will allow people to delay and drag things out to overcome that. And the other problem of course is that if you put a time limit or a money limit on a prosecutor, you then inevitably have the question about who is going to decide to give an extension of time or money, and how much information do you have to give the decision maker in order to justify your request. Whoever the decision maker is, whether it is a court, or Congress, inevitably you will sacrifice not only some measure of independence with the independent counsel but also I think the appropriate closeness with which investigations are held and the information that is available publicly.

[The act] is re-authorized and Ken Starr is appointed by the Special Division of the court to replace [Bob] Fiske. Why did Fiske have such a broad charter?

I wasn't there when his charter was created, so I am only speculating, but there was an ongoing investigation that was being handled by the Department of Justice. He was not taking over at a stage comparable to the stage at which an independent counsel would ordinarily be appointed. As you know, ordinarily an independent counsel gets appointed at the end of what is called a preliminary investigation. At that point in time, no subpoenas have been issued, no witnesses have been given immunity, no plea discussions have taken place and the idea is that an independent counsel gets to write on essentially a clean slate with no strings, with respect to investigative steps. There are strings about the scope and jurisdiction that we can talk about later.

When Bob Fiske was appointed by the Attorney General, the U.S. Attorney's office in the Eastern District of Arkansas and then the Fraud Section of the Criminal Division had already begun investigative steps involving lots of those things. Subpoenas had been issued. Testimony had been taken. Witnesses were being interviewed. Plea discussions had taken place although I don't believe at the time that any pleas had been entered. Indictments had been returned by the U.S. Attorney's office in Arkansas, and so there were things that had already taken place and, I am speculating a little bit, but my guess is in order for Mr. Fiske to have the full breadth of what was going on, it was all turned over to him and it wasn't evaluated in terms of the rigorous requirement of the independent counsel statute which had lapsed.

I see, so when Ken Starr comes in as the statutory independent counsel, why was his charter so broad?

Again, I wasn't there but my recollection is that, during her testimony before the Congress on the re-authorization of the Act, the Attorney General represented that if the Act were reauthorized and she were called upon to appoint an independent counsel for those matters that we loosely refer to as Whitewater, that she would ask that the jurisdiction of the statutory independent counsel be the same as she had given to Mr. Fiske....

So [you] arrive at the Department of Justice, independent counsels are beginning to sprout out like mushrooms after a storm and cut back to Arkansas.... Donald Smaltz is up and running, establishing a little office there in Fayetteville, Arkansas, and beginning to look into Don Tyson and Tyson Foods. Was there at this point a dawning recognition inside the Department of Justice that Don Smaltz might perhaps be a little too unrestrained in his pursuit?

I am very reluctant to characterize Mr. Smaltz and his activities except to the extent that they have already been the subject of discussion on the public record by the Department. There were press reports about things he was doing. But in terms of the Department taking any steps, nothing like that was going on.

No, no, I don't mean any steps. I just mean, the Department of Justice first of all has just emerged from a period where there was no such thing as an independent counsel, and now we have a new administration and now we have re-authorization of independent counsel [statute]... now there is a new independent counsel called Donald Smaltz and he is in Arkansas and he is not just investigating Espy, but this other guy, and his quotes are coming up in news magazines and Tyson is fighting back. The Department of Justice must have had some feeling about it, some reaction to it.

You speak of the Department I think somewhat more monolithically than is appropriate.

Let's put it another way. The Department of Justice, the Attorney General and various heads of divisions and subordinates who advise the Attorney General, were fixing to be in a position, come January 1995 and almost monthly thereafter, to make decisions about the breadth, scope and propriety of the independent counsels. I guess what I am getting at is, and it is obvious, not only have we been told by someone who was involved at the Department of Justice, but it is plain that the Attorney General at least began to have a recognition that maybe, at least in the case of Smaltz and perhaps others, there needed to be some imposition of guidance if not control or limitation. And I am wondering is, did that dawning realization begin to show itself in the fall of '94 with the Tyson piece, or when exactly?

I think institutionally, the issue has been around for a lot longer than that and doesn't relate to any particular independent counsel. If you look at the testimony that the Attorney General gave in the late spring or early summer of 1994 on the re-authorization, you will see that she alluded in that testimony to problems or contentious relationships that had existed between various independent counsels and the Department of Justice in prior administrations. I think over time there has been a recognition that independent counsels whose jurisdiction is defined at a particular point in time, but who carry on as prosecutors and uncover things or look for things, can approach the margins of their jurisdiction. Sometimes rapidly, sometimes more slowly. There are a number of cases that were reported in the mid-80's in which courts, the D.C. circuit, I think it was, referred to the fact that an independent counsel has wide parameters but very hazy borders about the limits of his or her jurisdiction. It is not a new issue about the extent to which an independent counsel can go beyond his or her core jurisdiction or original charter. And it is very important, as the Attorney General recognized in her testimony, and as the Department has made clear over time, that there be an ongoing consultative dialogue between the Department and the independent counsels to make sure that every body knows sort of what the outer limits of jurisdiction are and to make sure the Department of Justice can play its appropriate role in defining that jurisdiction.

We know publicly that he wrote a letter asking for expansion. We know that a month later, public record, she said no. Was it something she even considered?

I can tell you from having sat through hundreds of meetings with the Attorney General, that there is nothing she signs that she doesn't consider carefully and well. It would be a huge mistake for anybody to think that this Attorney General takes any of these responsibilities lightly, and I don't mean to suggest that that is what you are saying, but she is very much personally involved in every major decision that gets made with respect to an independent counsel and every thing she signs....

But there are different ways to consider such a question. "No, we are not going to give him expanded jurisdiction. Now how should we phrase it and how will it play politically?" That is one way to spend a month thinking about it. I guess what I am really asking is, was it your memory that there was genuine debate over the merits of expansion on that first request?

As I said, I don't remember that particular first request and I don't think I was involved in reviewing it. But I know from having been involved in numbers of other similar requests from Mr. Smaltz and from other independent counsels, sometimes referrals that were initiated by the independent counsels themselves, sometimes ones that were initiated by the Department, that they are always debated and always discussed with this Attorney General, with head of the Criminal Division, with the Public Integrity section, at great length and on the merits.

 [On the merits of the particular case, rather than on standing positions certain people had about the independent counsel?]

People don't have general standing positions for and against. I think it is a completely wrong assumption to think that there is anybody who is always for or against....

But generally speaking [staff members] became pretty pronouncedly hesitant about recommending appointments, seeking the appointments of, and approving expansions of independent counsel?

I don't think that is right. Expansions and related matters are two different things. I am certainly not going to characterize any individual's particular views. But the fact is, in a situation like this, in which you would have to apply the law to the facts on each one that comes in, whether it comes from the independent counsel or arrives in a letter from Congress, or from a newspaper article or through an anonymous tip, in many of these instances, there are legitimate honest disagreements among lawyers and agents about whether the facts warrant a particular outcome. There have been some that are quite clear. You get to a point on some of these in which it is absolutely clear that the standard for the statute has been met and there is no choice but to seek an independent counsel, and everyone agrees. There are others in which it is clear that the standard hasn't been met and everyone agrees. But I would say, in a substantial number of them, there is an honest disagreement among lawyers who are charged with the responsibility for evaluating these things, both career folks and political appointees, who have an honest disagreement about whether the facts in a particular situation warrant a referral or warrant an expansion or warrant the appointment of an independent counsel. Ultimately, it is the Attorney General of the United States who makes that decision and in every situation I have seen, she steps up to the plate, talks to everyone who wants to be heard about that particular decision, and then makes the call the way she thinks it should be made.

What factors influence those differing views?

I think the factors that influence different views depend on the situation. In the case of a related matter, there are a number of factors.... Are there overlapping witnesses? Are there overlapping legal theories? Is the allegation related to somebody who is a covered person? There are a variety of factors that prosecutors will use in trying to make a determination about whether two things have something to do with each other, and whether they are so closely intertwined, or whether they actually advance the independent counsel's investigation in a way that is contemplated by the purpose underlying his or her appointment. That evaluation goes on every time.