Prosecutor's aides join in criticism of Meese report

In the week since a report on Attorney General Edwin Meese III was made public, much of the glare of attention has shifted from the attorney general to the prosecutor who investigated him. The independent counsel's conclusions - that Mr. Meese ``probably'' would be convicted of three felony and one misdemeanor charges if his case went to a jury - are drawing fire from all sides, and even within the investigator's office itself.

Meese supporters say independent counsel James McKay overstepped his authority. Others, like former criminal division chief William Weld, contend that Mr. McKay had a winnable case and should have prosecuted Meese for accepting gratuities.

And even lawyers who worked for the independent counsel acknowledge privately that they laid themselves open for criticism, and should have written the report differently.

Yesterday, former Deputy Attorney General Arnold Burns and Mr. Weld had their long-anticipated day in Congress. Breaking their public silence, they told the Senate Judiciary Committee why they resigned from the department in March.

Mr. Burns declined to say whether he believed Meese had broken the law. He felt there was the public perception of impropriety in Meese's relationship with E. Robert Wallach, his friend since law-school days,

Burns said that on April 8, 1987, he advised Meese that Mr. Wallach appeared to be in ``deep yogurt,'' regarding a New York investigation. Wallach has since been indicted on racketeering charges involving the Wedtech Corporation. Burns advised Meese in April that he should ``sever'' his relationship with Wallach.

As allegations against Meese piled up and morale in the department sank, Burns concluded, ``I could not permit my silence and inaction to be construed as condonation of what was going on.''

Weld was more direct. In his testimony, he recounted a laundry list of favors passed between Meese and Wallach, as stated in the McKay report.

``I concluded that if Mr. Meese were an ordinary public official,'' Weld said, ``he would be open to prosecution under the gratuity law.''

Weld stressed that a prosecutor could ``reasonably reach the opposite conclusion'' and decline prosecution. But he noted that he had approved the indictment of a US congressman, who was later convicted, on what he has since called ``much thinner evidence.''

Last week, asked about Weld's widely rumored opinions about the case, independent counsel McKay said that Weld ``simply did not have all the facts we had.''

Adds a McKay aide, ``We looked up and down ... and there was nothing there.''

While critics say McKay didn't go far enough, Meese and his supporters say McKay went way too far.

In a speech before the National Press Club Monday, Meese claimed that the independent counsel's office exhibited ``excessive prosecutorial zeal'' and ``unethical'' behavior in the way it drew its conclusions.

The report said that a jury would ``probably'' convict him of underpaying his income taxes and violating conflict-of-interest rules, on grounds he made decisions about companies in which he had a financial interest. Having decided not to prosecute, the independent counsel overstepped his authority by ``gratuitously [commenting] on a speculation about probable outcomes'' in a trial, Meese said.

One lawyer who worked for the independent counsel notes that the statute authorizing independent counsel requires the prosecutor to file a report, and so elaboration of the investigation would be inevitable.

But another concedes that the staff made the report an easy target by drawing such conclusions. ``It had total authority to say what it said,'' this lawyer says. ``But I don't think it was wise. It's too easy to say, how do you know what a jury of 12 would have found?''

Meese also claimed that the independent counsel's report omitted information that would exonerate him.

The prosecutor, however, was barred from disclosing much of that exculpatory information, since the evidence went before a grand jury and was thus secret.

Lawyers who worked on the investigation also concede that the length of the 814-page report made it an easy target.

``I would have cut 500 pages out of the report,'' one said. By eliminating the background detail, this lawyer said, ``you would have let the focus remain hard, so he would have no room to duck or hide.''

The report does give some credence to Meese's charge - admitted even by McKay lawyers - that the prosecutors felt obligated to justify spending 14 months and $1.7 million investigating the attorney general. For example, investigators spent nearly half a year following the trail of the Iraqi pipeline. This tack proved to be a prosecutorial dead end, which Meese's lawyers termed ``the most wasteful expenditure of investigative resources, probably, in the history of law enforcement.''

One lawyer said he believed the Iraqi pipeline investigation was a ``no go early on,'' and certainly didn't warrant 246 pages in the report.

But to the attorney general's complaints that he has been unfairly treated, another responds, ``Mr. Meese put himself in the soup. Alleging that the chef overcooked it a little doesn't give him much standing.''

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