Espy case shows backlash against prosecutor law


WASHINGTON -- Mike Espy clearly was wrong when, as secretary of agriculture, he accepted $34,000 worth of sports tickets, luggage, air travel and other gifts from people representing companies that he regulated. Espy himself says that he had "lapses of judgment" in taking gratuities that have brought convictions or huge fines for the gift-givers and some of his associates.

Well, why, then, did a jury here find Mr. Espy not guilty on all 30 corruption charges brought against him by independent counsel Donald C. Smaltz?

No race card

The simplistic answer, leaped to quickly by some, is that the jury was dominated by black people who believe that black officials in positions of real power are always targeted by those who resent blacks in power. But those who followed this case closely say the so-called "race card" had nothing to do with the verdict.

Some say that the jury was simply reflecting the nationwide revulsion to the Independent Counsel Act, a post-Watergate assault on official corruption that has produced some frighteningly arrogant, overreaching prosecutors, most notably Mr. Smaltz and Kenneth Starr, the latter of Whitewater and Monica Lewinsky notoriety. Mr. Smaltz was slapped down by the courts at least twice for going beyond his mandate, and, like Mr. Starr, was severely criticized for appearing to be power-hungry, out of control and vesting his entire ego and reputation on bringing down a top federal official.

Still others say the jury cleared Mr. Espy because, while he did have ethical lapses, there was no proof that he had committed a crime. Mr. Smaltz never produced a single claim, let alone evidence, that Mr. Espy had taken any official act to reward those who gave him tickets to such things as a U.S. Open tennis tournament, Dallas Cowboys games or the basketball games of the Chicago Bulls.

Smaltz case

The "unlawful gratuity" statute under which Mr. Smaltz sought to jail Mr. Espy makes it a crime to give, offer or promise "anything of value" to a public official "because of any official act performed or to be performed." Mr. Smaltz so clearly failed to meet that requirement of the law that Mr. Espy's lawyers simply let him put on 70 witnesses, then rested their case without calling a single defense witness.

Some observers were left saying that "it ought to be a crime" for an independent counsel to spend four years and $17 million prosecuting such a weak case.

I think the jury was also influenced mightily by a feeling that is growing across the nation: We have gone to absurd lengths -- even gone a bit crazy -- in laying on ethical restrictions that make it extremely difficult to get good people to engage in public service.

Taking $34,000 worth of gratuities is clearly out of bounds, but does anyone think that we guarantee honest government by forbidding an official to accept a lunch that costs more than $25? Or a seat at a Super Bowl game?

Mr. Espy's lapses in judgment may in fact flow partly from the fact that the hound's tooth requirements laid on the executive branch don't apply to the lawmakers in Congress who take junkets and accept a variety of gifts. Mr. Espy had served in Congress for six years before encountering the executive branch rules, which he reportedly dismissed as "a bunch of junk."

The Espy case has reinforced the lesson Mr. Starr has taught us so painfully -- that in the Independent Counsel Act we created a monster that is more dangerous than the government officials we wanted to be sure were punished for serious wrongdoing.

Congress will have a chance next year to ensure that we never again have prosecutors who lack oversight and are without limits on the amount of time, money and bad judgment they can bring to a case.

But beyond that, we need to revisit the idea that we must ask those we ask to do the public's business to make their private lives naked to the world, and must deny them such simple freedoms as enjoying a good meal, the theater or other pleasures of life with friends and associates.

Good government requires ethical leaders, yes, but also policies that are reasonable enough to make government service palatable to high achievers.

Carl T. Rowan is a syndicated columnist.

Pub Date: 12/06/98

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