n recent months, Professor Charles Ogletree, Jr. ’78 has led the defense for two high-stakes litigations in Washington, D.C. Both have brought him head-to-head in the courtroom with the legal teams of Don Smaltz and Kenneth Starr, special prosecutors appointed under the independent counsel law that Congress originally enacted in the wake of Watergate.

Ogletree contends that each of his cases underscores serious flaws in the independent counsel system. His client in the first matter is former secretary of agriculture Michael Espy, who was indicted on 39 counts for allegedly accepting gratuities from private businesses. Working with Theodore Wells, Jr. ’76, who is lead counsel in the Espy case, Ogletree argued in federal court last fall that independent counsel Smaltz’s indictment was overly broad, charging Espy with offenses that did not relate to his official duties. Smaltz’s team relied on a novel legal interpretation, says Ogletree. "They didn’t say these were cases of bribery. They said, basically, that the fact of receiving something of value is sufficient to constitute a crime." Ogletree won suppression of some counts against Espy, the government appealed, and Ogletree argued before the Circuit Court in March. (He expects a decision soon and anticipates that further appeals will ultimately set the matter before the U.S. Supreme Court.)

Ogletree’s litigation in the Kenneth Starr investigation of President Clinton is under court seal, but the circumstances of the case are public, as is the central issue: attorney-client privilege. Ogletree’s client, D.C. attorney Francis Carter, had assisted former White House intern Monica Lewinsky in preparing an affidavit for the Paula Corbin Jones sexual misconduct lawsuit against President Clinton. In her affidavit, Lewinsky denied having an affair with the president. Kenneth Starr, investigating allegations that an affair did take place, subpoenaed Carter to testify before a federal grand jury and provide documents, including his case notes. "We have vigorously challenged any effort by the prosecutor to compel a lawyer to be a witness against the lawyer’s client," says Ogletree.

Published reports indicate that Judge Norma Holloway has ruled that Starr’s investigation is entitled to Carter’s testimony. Ogletree will handle the appeal, based on the legal argument that "government interest in obtaining possibly incriminating evidence against a client must be weighed against the client’s right to rely on the lawyer’s representation that he or she will not violate confidentiality."

Ogletree says both the Smaltz and Starr investigations highlight the dangers of appointing prosecutors who are "so independent, with such minimal judicial oversight" of their activities. In their view, he says, such special prosecutors "aren’t necessarily covered by the restraints imposed on public prosecutors operating in a more limited and generally acceptable legal fashion."

For the public following media updates on these special prosecutions, Ogletree says alarms should sound about the unconstrained time and money special prosecutors spend, and the lack of significant limitations to the areas they can probe. "I feel strongly, in light of Watergate, that we do need an independent office to investigate complicated legal matters concerning high-level government officials," he says. "But I worry about limitless investigations into the most intimate details of people’s lives, particularly in areas not ordinarily considered criminal and prosecutable."

Julia Collins