Independent counsel: No more, no less a federal prosecutor

Georgetown Law Journal, Jul 1998 by Dash, Samuel

The Final Report, however, hardly created a ripple of favorable public opinion or acknowledgment when it was publicly released on January 19, 1994. This is hard to understand. Much was riding on this report. It was Walsh's chance finally to tell his story. He had been publicly criticized and vilified by President Bush, Justice Department officials, Republican congressional leaders, defense lawyers and conservative newspaper columnists as an irresponsible persecutor. Even less-biased commentators complained that Walsh had kept the investigation going too long (over six years), had spent too much money (over $37 million) and, unlike the Attorney General, had been accountable to no one.32

This criticism was based not on any failure by Walsh to fulfill the mandate given to him by the Special Division of the court. Rather, the conduct and accomplishments of Walsh and his staff in the OIC had been grossly and unfairly distorted and misrepresented. Hence, the question I raised at the beginning of this case study: Why was this Final Report not fully aired by the Congress and not widely communicated and explained to the American people? For I believe, if it had been, the public perception of Walsh's performance as independent counsel would have been quite different.

The answer may lie in the success of the campaign to demonize Walsh. By the time of his Final Report, Walsh had become so unpopular and discredited that even supportive members of Congress wished to avoid him and the Report. Likewise, the print and broadcast media had become disenchanted with Walsh, mostly because of the torrent of criticism that they had reported and partly believed. Therefore, with some editorial exceptions, they were disinclined to give much space or analysis to his Report. It had become tainted. This is shameful, because I believe that the Final Report would convince a fair and objective reader that the destructive attacks on Walsh were unsupported and false.

No one should have expected that this three-volume Report would be seen by more than a handful of citizens, let alone be read by a significant number. That is why it was so important for journalists to educate the public about Walsh's accounting in his Final Report. Congress had abdicated its educational function; journalists also failed in their role, which they often tout, of informing and educating the public.

A fair question is how can Walsh's Final Report be a credible response to his critics, since, at best, it must be self-serving? His supporters might wish that, to some extent, it were. They were frustrated when Walsh steadfastly refused to answer his critics during his investigation. At last, in his Report, his supporters hoped, he would do so with a vengeance. To the contrary, Walsh and his staff maintain a professional stance in the Report-to a fault. With the exception of the catchy headings, which appear to be an afterthought, the Report is tediously factual, written with no attempt to dramatize, or even to interest, and clearly with no overt design to defend Walsh against the attacks made against him. However, it is essentially this dry recitation-of the conduct of the investigation, the uncovering of the incriminating facts, the handling of the prosecutions and the crippling obstructions and obstacles Walsh encountered-that is so compelling. The Final Report describes an internally persuasive story of professional prosecution that is incompatible with the behavior and motives ascribed to Walsh.