October 25, 2005,
EDITOR'S NOTE: Late yesterday, Byron York reported that the court which oversees independent counsel David Barrett has ordered the release of Barrett's report on the Henry Cisneros investigation. The report has been finished since August 2004, but some Clinton-era officials, apparently worried that the report would cast them in a negative light, have filed a number of secret motions with the court to delay its release. Yesterday, after Iowa Republican Sen. Charles Grassley asked the court for a copy, the judges issued a decision that would release part of the report to the public, and all of the report to Congress. For those who might be a little fuzzy on the details of Barrett's ten-year investigation, Byron looked into the matter in the June 2, 2003, issue of National Review:
Remember Henry Cisneros? Of course; he was the once-rising Democratic star who became Bill Clinton's first secretary of housing and urban development. Here's a tougher one: Remember Linda Medlar? In case you've forgotten, she was Cisneros's mistress the woman at the center of the scandal that brought him down.
Now the bonus question. Remember David Barrett? Unless you follow such things very, very closely, you probably won't be able to recall that he was the independent counsel appointed to investigate the Cisneros case. Barrett was sworn in on May 24, 1995, to investigate allegations that Cisneros lied to the FBI about payments he had made to Medlar. The Barrett investigation reached its peak over four years later, on September 7, 1999, when Cisneros pled guilty to a misdemeanor and agreed to pay a $10,000 fine.
What few people realize is that, nearly four years after achieving the main objective of his investigation, Barrett is still in business today. Now writing his final report, Barrett was still working on live, investigative matters until only a few months ago. His report will likely be finished by the end of the year, a testament either to the corruption of the Clinton administration or to the lunacy of the independent-counsel law. Or, perhaps, both.
The only notice the public has had that Barrett is still going has been a series of audits by the General Accounting Office. These audits are required by the independent-counsel statute (which has, of course, expired, though existing investigations like Barrett's were allowed to continue). The most recent audit, covering the six-month period that ended on September 30, 2002, showed that Barrett's office spent $1,019,438 during those months $502,696 for salaries and benefits, $266,450 for rent and utilities, $146,695 for investigators and expert consultants, $82,970 for "administrative services" (a fee the independent counsel pays to the Administrative Office of the U.S. Courts), $18,643 for travel, and $1,984 for office supplies.
In papers filed at the time with the three-judge panel that oversees his office, Barrett estimated that he would spend another $1 million in the next six months, the period ending on March 31 of this year. That means his investigation is spending money at a rate of $2 million per year; the total cost for his eight years of work is estimated at $19 million.
All of which inevitably raises the question of whether Barrett's work is worth the expense. What is he investigating? And why has he done it for so many years?
The answers are cloaked in prosecutorial secrecy. But we know that Barrett, originally assigned to examine the Cisneros/Medlar payoffs, twice received permission from the panel to expand his investigation. By March 1997, Barrett was conducting in the words of one of the judges overseeing independent counsels "an apparently wide-ranging probe of government officials who might, in [Barrett's] view, have sought to shield Mr. Cisneros."
At issue, apparently, was the Internal Revenue Service and Cisneros's tax records. In October 2000, the Wall Street Journal reported that, as early as 1997, Barrett "had wanted to look into allegations that Mr. Cisneros failed to report income from speeches. Investigators suspected that Mr. Cisneros had signed over checks from speaking engagements to his mistress." But the Clinton Justice Department moved in to limit Barrett's access to Cisneros's tax records.
A legal fight ensued.
And that's about all that has been reported. Nevertheless, from discussions with people who have some knowledge of the situation, a bit more can be said. It is true that Barrett's expanded investigation involved a look at the IRS and the Justice Department. Apparently, the office of independent counsel felt it had a serious and credible whistleblower with information about alleged efforts to protect Cisneros and other political figures and to stymie the Barrett probe. What followed was essentially hand-to-hand combat between Barrett's office and the Clinton Justice Department, as Barrett sought more information and the department fought to keep it from him. That situation continued beyond the 2000 election, with Republicans in control of the Justice Department, until Barrett finally gave up.
According to papers made public in March, Barrett told the court that his office had "ceased all investigative and prosecutorial activities and does not intend to initiate any others." (He evidently made that decision sometime between last September and March, but exactly when is not clear.) Barrett further told the court that his primary remaining responsibility was writing the final report of his investigation.
That report could be quite controversial. Some people familiar with the situation believe the Justice Department barred Barrett from investigating things that, in the words of one source, "cried out to be investigated." This would include actions by the Justice Department itself and the report may say so. "The Department of Justice is incapable of investigating itself, and you can carve that in granite," says the source. (A current official at Justice insists, "Nobody here was attempting to protect the Clinton administration from an investigation.")
It could be that Barrett was overreaching. Certainly one of the three federal judges who oversee his office has expressed serious reservations. In court papers filed in June 2001, Judge Richard Cudahy wrote that "whether a cost-benefit analysis at this point would support Mr. Barrett's efforts is a question to which I have no answer." But Cudahy added that the judges could do almost nothing to stop Barrett. "The [independent counsel] law literally construed may be that Mr. Barrett can go on forever," Cudahy wrote, "so long as he claims or shows active grand jury activity, no matter how unpromising. Who is to contradict his evaluation that what he is doing is full of promise?"
It should be noted that Cudahy is a Carter appointee who sometimes made trouble for independent counsels investigating the Clinton administration. In 1999, he voted (unsuccessfully) to shut down the Kenneth Starr investigation, and in 2000 he leaked information that then-independent counsel Robert Ray had started a new grand-jury probe into whether Bill Clinton could be indicted after he left office. (Cudahy later apologized for "inadvertently" releasing the information.)
Still, Cudahy has raised legitimate questions. Barrett will have to present some very good reasons for conducting such a long investigation, especially one whose primary goal was achieved in September 1999, when Cisneros pled guilty. It could be that Barrett is right even Cudahy conceded that the "continuation of Mr. Barrett's efforts may indeed justify these lavish expenditures if there is any prospect of unearthing skullduggery by officials to help Mr. Cisneros."
When Barrett hands in his final report, the three-judge panel will have to decide whether to release it publicly. If there was ever a case in which the public had a right to know how its money has been spent and how its prosecutors have exercised their power, this is it. Maybe the investigation was a wild goose chase. If so, the public should know about it. But if the Justice Department obstructed a legitimate inquiry, the public should know that, too. Reputations are at stake maybe more than just David Barrett's.
Byron York, NR's White House correspondent, is the author of the new book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.