The New York Times
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January 19, 2006
Inquiry on Clinton Official Ends With Accusations of Cover-Up
By DAVID JOHNSTON and NEIL A. LEWIS
WASHINGTON, Jan. 18 - After the longest independent counsel investigation in history, the prosecutor in the case of former Housing Secretary Henry G. Cisneros is finally closing his operation with a scathing report accusing Clinton administration officials of thwarting an inquiry into whether Mr. Cisneros evaded paying income taxes.
The legal inquiry by the prosecutor, David M. Barrett, lasted more than a decade, consumed some $21 million and came to be a symbol of the flawed effort to prosecute high-level corruption through the use of independent prosecutors.
Mr. Barrett began his investigation with the narrower issue of whether Mr. Cisneros lied to the Federal Bureau of Investigation when he was being considered for the cabinet position. He ended his inquiry accusing the Clinton administration of a possible cover-up.
His report says Justice Department officials refused to grant him the broad jurisdiction he wanted; for example, Attorney General Janet Reno said he could look at only one tax year. And after Internal Revenue Service officials in Washington took a Cisneros investigation out of the hands of district-level officials in Texas, the agency deemed the evidence too weak to merit a criminal inquiry, a conclusion strongly disputed by one Texas investigator.
Former officials of the Justice Department and the I.R.S. dismissed Mr. Barrett's conclusions in appendices attached to the report, saying the findings were the product of an inquiry that was incompetently managed from the start.
After being indicted on 18 felony counts, Mr. Cisneros pleaded guilty in 1999 to a misdemeanor charge of lying to investigators. He was later pardoned by President Bill Clinton.
Mr. Barrett kept his office open more than six years after the law that created the independent counsel system was allowed to die. Lawmakers in both parties had wearied of the many inquiries that had failed to achieve the goal of removing political influence from criminal investigations of administration officials.
Some Republicans long contended that efforts to close down Mr. Barrett's operation were motivated by an effort to suppress information about the Cisneros investigation that could reflect badly on Mr. Clinton and his wife, Senator Hillary Rodham Clinton.
But to Democrats and other critics of independent counsels, Mr. Barrett's inquiry has stood as a prime example what went wrong with an important post-Watergate law. That legislation allowed prosecutors, outside the Justice Department's traditional criminal justice bureaucracy, and armed with virtually unlimited time and money, to pursue their subjects into areas few federal prosecutors were likely to venture.
The final report, scheduled to be made public on Thursday, discusses in detail why the office remained in operation for so long: an intense behind-the-scenes clash between senior Justice Department officials and Mr. Barrett, who was trying to explore possible obstruction of justice within the Justice Department and the I.R.S.
A copy of the report was obtained by The New York Times from someone sympathetic to the Barrett investigation who wanted his criticism of the Clinton administration to be known. On Wednesday, Mr. Barrett declined to discuss the report, saying he would not talk about it until it was officially made public.
The report reveals little new about the accusations that led to Mr. Barrett's appointment - that Mr. Cisneros misled investigators about payments to a former mistress. Those issues were the subject of news accounts during the 1990's.
But it was not widely known that Mr. Barrett believed that Mr. Cisneros's handling of the payments to the former mistress might have violated tax laws or that he suspected Justice Department and I.R.S. officials of criminal obstruction to help Mr. Cisneros avoid scrutiny. The New York Daily News reported on Wednesday that Mr. Barrett would issue a report alleging a Clinton administration cover-up of Mr. Cisneros's tax problems.
The report included statements, in appendices, from former Justice Department and I.R.S. officials sharply disputing Mr. Barrett's assertions. In addition, Barry S. Simon, a lawyer for Mr. Cisneros, said in a letter dated Nov. 8, 2005, and included in the report, "Materials that are now being publicly released are simply an effort to 'try' the case that" Mr. Barrett's office could not win in court.
Mr. Barrett's 746-page report said that the tax and obstruction phase of the inquiry ended without a definitive conclusion, but it declared: "These agencies' treatment of possible charges against Cisneros was at best questionable and at worst represented serious wrongdoing. There seems to be no question that Cisneros was given special consideration and more limited scrutiny because of who he was - an important political appointee."
Justice Department officials who disputed Mr. Barrett's findings portrayed his investigation as deeply misguided and said the tax case against Mr. Cisneros had little merit. They suggested that the prosecutor had turned his disappointment in his inability to prove the obstruction allegations into unprovable theories.
Robert S. Litt, one of the Justice Department officials involved, wrote in a comment letter on May 31, 2005, that he was allowed to read only edited parts of the report but that he concluded that the report was "a fitting conclusion to one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement."
Mr. Litt defended his evaluation of Mr. Cisneros's tax case, asserting that every Justice Department lawyer who had reviewed the case agreed with the conclusion. He said in his letter that Mr. Barrett's accusations of obstruction were "a scurrilous falsehood."
In his effort to explain his time-consuming inquiry, Mr. Barrett asserted that he was slowed by reluctant witnesses and impeded by Justice Department officials. He suggested that those officials had grown resistant to referring issues to outside prosecutors because of the number of cabinet officers already being investigated by special prosecutors at the request of Ms. Reno.
In the case of Mr. Cisneros, Ms. Reno agreed to expand the scope of Mr. Barrett's inquiry to possible tax violations but limited the investigation to a single tax-reporting year, a move that the report suggests effectively killed the investigation.
Mr. Barrett concluded that "in the end enough high-ranking officials with enough power were able to blunt any effort to bring about a full and independent examination of Cisneros' possible tax offenses in the face of what seemed to many to be obvious grounds for such an inquiry."
Mr. Barrett said I.R.S. officials in Washington took over a district-level inquiry in Texas into Mr. Cisneros's taxes and concluded that there was insufficient evidence to go ahead with a criminal investigation. But in a 1997 memorandum protesting the decision, an I.R.S. investigator in Texas said there was evidence that Mr. Cisneros had diverted substantial parts of his speaking fees in the early 1990's to the former mistress, without the knowledge of co-workers.
But other I.R.S. and Justice Department officials said that a fairly complete listing of Mr. Cisneros's income from various sources was available to his accountants, whom he relied on to prepare his tax returns. That would have made it impossible to sustain a prosecution, they said.
The prolonged investigation and the Barrett report have been the subjects of intense partisan battles. Democrats have asserted that the investigation was kept alive in hopes of developing and propagating accusations about the Clinton administration, while Republicans have said that supporters of Mr. Clinton and Senator Clinton were eager to suppress Mr. Barrett's inquiries. Mrs. Clinton, a potential presidential contender in 2008, is up for re-election this year.
Initially, the panel of three judges that oversees the lingering issues involving the independent counsel law agreed in October to the public release of Mr. Barrett's report but said the section with accusations about Clinton officials must be deleted.
But after Congressional Republicans attached a rider to a Department of Housing and Urban Development spending bill requiring publication of the full report, the judicial panel in November ordered a full disclosure.