So the Department of Justice basically took Judge Starr's side on that. But Judge Starr had left undisturbed the Attorney General's role as gatekeeper in that matter too. He had gone to her, consulted with her, asked her opinion. She and the Department of Justice had made that decision.

Absolutely. My point is partly the gatekeeper function is very important as a constitutional matter and to make sure that the statute is appropriately administered. But I can't understate what I think the importance is of the Department's coming in on the side of Mr. Starr. Because I think some people have gotten the mis-impression that because the Department opposed Don Smaltz on this particular application that the Department of Justice somehow is being obstructionist in these matters. To the contrary, the Department's obligation and responsibility is to make sure that the statute is enforced correctly, and in a situation in which the correct answer for the Department is to support an independent counsel; it does that....

What would you say if I told you that Donald Smaltz believed that he is not only serving the narrow purpose of an independent counsel prosecuting these narrow issues that he has been appointed to investigate, but also a broader purpose, a higher calling, that in fact, in many cases, he is there to shine a light for the Department of Justice, to show the way?

I don't know if he has actually said that. I think that the role of an independent counsel is necessarily circumscribed by the purpose of the statute, and the purpose for which the independent counsel is appointed, which is to conduct a particular investigation or series of investigations and if warranted, to prosecute people for violating the law.

Nothing more? Nothing less?

No, I think that pretty much encapsulates it.

Suppose you have an independent counsel who is energetic and inventive and innovative and finds new ways to bring prosecutions that perhaps the Department of Justice Criminal Division had [not] thought of on its own?

It depends what you mean. If you mean untested legal theories... there are prosecutors who use those all the time. There was somebody who first prosecuted a case under RICO.... That is an innovative thing, but that happened on consultation with the organized crime section of the Department of Justice who was charged with the responsibility for making sure that the RICO statute was implemented consistently and appropriately. I think Congress was quite clear when it wrote the independent counsel statute and passed it that both because of the requirement that independent counsels consult with the Department of Justice, and with respect to the requirement that independent counsel follow the policies of the Department of Justice unless, in the words of the statute, "to do so would be consistent with the purpose of the appointment." Those things, I think militate very strongly in favor of consultation between an independent counsel and the Department on something like a legal theory.

But would... Donald Smaltz be correct in seeing himself as standing in the Attorney General's shoes, as being in essence her equal?

He is clearly not her equal for constitutional purposes. He is an inferior officer for constitutional purposes within the meaning of the Constitution. She can fire him for cause. But he is right to a certain extent, because within the limited sphere of his jurisdiction, every independent counsel is like an Attorney General, with the ability to pursue various things and take them to certain places.... It is critically important to the successful implementation of the statute that because the independent counsel is so powerful in that limited sphere that the jurisdiction be observed as crafted, and that is why the Department is so rigorous in making sure that independent counsel, if possible, don't go beyond their jurisdiction until they have consulted with the Department....

Is it your sense that [Janet Reno] liked Don Smaltz?

I have absolutely no idea whether she likes Don Smaltz or not.

Ever hear her talk about him?

I've heard the Attorney General talk about a lot of people. But, the Attorney General is not somebody who ever-- I can't say ever-- but very rarely says a disparaging word about anyone.

How about a good word?

She says good words about the people around her to whom she is close. But, she is not somebody who is prone to say to volunteer comments or criticisms about people with whom she's not working all the time.

Did you ever hear her characterize Smaltz in any way?

I don't think so.

You know her. How do you figure they would have gotten on?

Well, I don't know him, actually, so, it's sort of hard for me to say. The Attorney General is somebody who actually likes a lot of very different people. If you look at the people who surround her and the people who she takes advice from, it's a very, very diverse group with lots of very different personalities. There are some people who are very cerebral. And there are some people like me who are very gregarious. And the people who have to be pressed to share their opinions. And other people who volunteer them without being asked. And one of the wonderful things about the Attorney General is that she actually is not very judgmental about the people who surround her. Which is something that I find sort of extraordinary.

But, she has a temper. We know that from the profile we did about her down in Florida.

She has a temper, a little bit....

Generally in the hall and around the water cooler, how to people feel about Smaltz in the Justice Department?

I can't speak for anybody else and I have never met the man so I don't have a fully formed opinion.

What is your impression of him?

My impression of Mr. Smaltz? He is apparently a very aggressive prosecutor who is interested in bringing cases and prosecuting people who he thinks have violated the law. His theory of what is a related case is not consistent with what the Department's is. There is a game that people play these days, "6 Degrees of Separation From Kevin Bacon," in which people name a movie star or person in the entertainment industry, and see if the other person with whom they are playing can get to a movie in which somebody was with Kevin Bacon within 6 degrees.

You have to be careful in evaluating related cases that you don't get into a situation like that. The danger with the related case issue is that at some point, you will get to a place that is too distant from the person who is the subject of the original referral to say that it is really related.... Since the time [the act] was passed and for the last ten or twelve years during the application of it, with which I have now become familiar, there has been considerable tension in interpreting the act, about how many degrees of separation from the subject of the referral is appropriate. There was just a fundamental disagreement between Don Smaltz and the Department of Justice over... whether there were actually connections with respect to that one matter.

I think it would be sad to let that particular disagreement between smart, reasonable people be the hallmark of a relationship that has otherwise been characterized by pretty good cooperative and communication.

Yes, but... it isn't very much of a stretch if you are examining Espy and Tyson - Tyson is the giver, Espy is the taker - to, say, want to examine the behavior of the giver and to discover within a week that the giver is giving money to Bill Clinton, to want to go for that. That is not six degrees of separation, that is right there in your face.

The question isn't whether you should want to go for that.... The hypothetical you posited - I am not sure that those are actually the facts of the case. But all prosecutors want to go wherever the evidence leads them. That is the hallmark of a good aggressive prosecutor. In the context of the independent counsel statute, though, that is not what the law provides. The law provides that because the independent counsel is established for a particular purpose that he doesn't necessarily get to go wherever the evidence takes him and if he wants to, he has to jump through certain hoops or take certain steps to be able to do that. And that is where the fundamental disagreement is here. It is not over whether things should be investigated. It is not over whether people should be investigated or prosecuted who have violated the law. The only question is, who should make the decision about who gets to do that?

One of the things we keep wrestling with is the idea of the independent counsel as this sort of moral absolutist in a society [that is] increasingly more relativist. I don't mean to be real high falutin' about it, but do you see the distinction?

Between?

Is Don Smaltz one of our Cromwells? Is Ken Starr one of those people? And are they an endangered species in a society that is increasingly finding bright white lines harder to draw and live with?

I don't know whether they see themselves that way or not. I don't think that is the function of the independent counsel. The function of the independent counsel is to take the prosecutorial discretion that is ordinarily invested in the Attorney General of the United States and apply it to a particular set of facts and circumstances.

I don't know that that involves a crusade or should. In fact, I don't think it should involve a crusade. I think that there is a risk, and I don't say this about either Mr. Smaltz or Mr. Starr, because I don't want to comment on their particular investigations, but there is a risk with an independent counsel, who has essentially unlimited resources and an unlimited budget, and unlimited time to conduct an investigation, that... people might get prosecuted who might not otherwise get prosecuted, because independent counsels don't have to make the same choices that ordinary Assistant United States Attorneys or Justice Department lawyers have to make. If a U.S. attorney in a particular district has 25 Assistant U.S. Attorneys and X number of FBI agents in the district, that U.S. Attorney has to decide that the particular case... will have an assistant U.S. Attorney or two assigned to it for some period of time and if it doesn't go anywhere, or even if it does, that additional resources simply won't be available. If the resources are assigned, then other things will go uninvestigated and unprosecuted, and we pay people in the Department of Justice and they get appointed by the President of the United States to make those kinds of judgments.

An independent counsel in some ways has the luxury and the curse of not having to make those kinds of judgments because at the end of the day, they can continue to investigate down as many avenues as they think is appropriate or necessary without having to make those choices. Some people think that is a good thing, and some people think that is a bad thing. But there is no question that at the end of the day it distorts the decision making process from what it would otherwise be in the absence of an independent counsel.

What is wrong with a crusader if the crusade is for truth and justice and the facts?

The goal of an independent counsel generally is to investigate whether certain people committed crimes and, if they did, to prosecute them and if they didn't, to decline prosecution. That is what prosecutors do. That is what the Attorney General does. That is what the people who work for the Attorney General do. It is not the province of the Department of Justice to pronounce moral judgments, to decide whether people are good people or bad people. It is simply to enforce the law and to make decisions about whether particular people should be investigated, and if so, whether they should be prosecuted at the end of the day.