- The Washington Times - Wednesday, July 4, 2001

A federal appeals court panel has ruled that the independent counsel investigation of former Housing Secretary Henry Cisneros can continue despite his last-minute pardon by President Clinton.
Saying it is "not currently appropriate" to end the 6-year-old, $15 million probe, the three-judge panel unanimously gave independent counsel David Barrett the go-ahead to continue his investigation of Mr. Cisneros' hush payments to a former mistress.
The ruling was issued June 15, but was made public yesterday.
Mr. Barrett, the last remaining special prosecutor under the now-defunct Independent Counsel Statute, was appointed in May 1995 to investigate accusations that Mr. Cisneros gave false statements to the FBI about payments he made to Linda Medlar, the former mistress.
Mr. Cisneros pleaded guilty on Sept. 9, 1999, to a misdemeanor count of lying to the FBI and paid a $10,000 fine. Mr. Clinton granted him a pardon with less than two hours remaining in his presidency.
The Barrett investigation, which initially focused on obstruction of justice and other related crimes, has since been expanded to include accusations of income-tax evasion and has focused on others involved in the suspected conspiracy.
The court panel consists of Judges David B. Sentelle, appointed by President Reagan; Peter T. Fay, named by President Nixon; and Richard D. Cudahy, appointed by President Carter.
Judge Cudahy, in a separate concurring opinion, said the question of whether it was appropriate to end Mr. Barrett's investigation was "difficult and perplexing." He said Mr. Cisneros' 1999 guilty plea "seems to have completed the proceedings" against the former Clinton Cabinet official.
"Presumably, any involvement of Mr. Cisneros himself in related offenses such as obstruction of justice would have been known at the time of the plea bargain," Judge Cudahy said. "However, since then, Mr. Barrett has continued an apparently wide-ranging probe of government officials who might, in his view, have sought to shield Mr. Cisneros.
"Some press accounts suggest that these continuing inquiries have met with diminishing returns, but describe Mr. Barrett as maintaining an active grand jury process, which, in his view, is making unspecified but 'substantial' progress," he said.
Judge Cudahy questioned Mr. Barrett's expenditure of $15 million for the investigation and ongoing costs of $1 million every six months.
"Whether a cost-benefit analysis at this point would support Mr. Barrett's efforts is a question to which I have no answer," he said. "In any event, such an inquiry by this panel is apparently precluded under the now-expired Independent Counsel Statute."
Judge Cudahy said the statute allows termination of an investigation only when it has been completed, noting that Mr. Barrett still was presenting the case to a grand jury.
"The law literally construed may be that Mr. Barrett can go on forever so long as he claims or shows active grand jury activity, no matter how unpromising," the judge said. "Who is to contradict his evaluation that what he is doing is full of promise?
"The continuation of Mr. Barrett's efforts may indeed justify these lavish expenditures. … At this juncture,… we apparently have little choice but to accept representations of productive activity at face value despite persuasive reasons for doubt," the judge said.

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