One of the few things that Democrats and Republicans agree on is that the appointment of a special prosecutor carries with it a substantial risk of overzealous and even abusive prosecutorial conduct. Partisans disagree, however, as to which special prosecutors have succumbed to these temptations. This assessment seems to depend on whose ox is gored.
Where the target of the special prosecutor is not terribly consequential politically, the prosecution tends to fly under the radar screen. This was the case with Deborah Gore Dean, an official in the Department of Housing and Urban Development during the Reagan administration. An Independent Counsel, Arlin Adams, brought a case against Dean alleging that she caused HUD to take action on four matters in order to benefit former Attorney General John Mitchell, whom she considered her stepfather. Dean was convicted.
My friend Jim Scanlan has long been convinced that the Independent Counsel and members of his staff engaged in serious abuses during the prosecution of Dean, a friend of his. He has established a web page that presents his case in great detail.
Jim maintains that prosecutorial abuses were pervasive. And he notes that the trial court, in fact, criticized the prosecution for a variety of abuses, lamenting the near impossibility of evaluating their impact. But Jim gives special attention to issues involving the testimony of the Special Agent who wrote the HUD Inspector General’s Report that led to the appointment of the Independent Counsel. At her trial, Dean denied that she knew Mitchell earned a HUD consulting fee on the transactions in question until after the Inspector General issued his report. No one testified to the contrary.
Dean testified that she called the Special Agent the day the report was issued and berated him for not having told her, as a friend, about Mitchell’s alleged role. She also testified that she didn’t believe Mitchell would do such a thing and that the Special Agent better have a copy of the check showing the payment to Mitchell. A hearsay objection prevented her from testifying as to what the Special Agent told her in response.
Dean would have been a fool to fabricate testimony about a conversation with the Special Agent. She knew that he was available to the Independent Counsel as a witness. She also knew that he would make a credible witness and, as an African American, would very likely make a good impression on the entirely black jury. Moreover, her testimony about her conversation with the Special Agent did not prove her innocence, since she might have had the conversation merely to divert suspicion. In short, Dean’s testimony was an extremely high-risk (if she was lying), low-reward proposition.
As it turned out, the Special Agent did take the stand to address Dean’s testimony. He denied any conversation with Dean regarding Mitchell “at or about” the date the Inspector General’s report was published. In his closing argument, the Associate Independent Counsel hammered Dean for “lying” about her conversation with the Special Agent. And the Independent Counsel himself later used the contradiction between the testimony of Dean and the Special Agent to argue for a heavy sentence.
Jim is convinced, however, that the prosecutors coached the Special Agent into giving testimony that he may have believed was literally true, but which was extremely misleading especially if used (as it was) to show that Dean was lying. The “literal truth” rationale would have rested on the fact that Dean had not called the Special Agent on or about the date the report was published internally at HUD – April 17, 1989 – but rather ten days or so later when the report was released to the public and Dean secured a copy of it.
Jim presents this portion of his case here. He relies on information he received from a former employee of the Independent Counsel’s office that the Special Agent was pressured into giving the testimony during several meetings, and that there was considerable relief among the prosecutors when Dean’s attorney failed to question him about the coaching he had received. Jim also relies on a suggestion made to him by an Associate Deputy Attorney General that the Special Agent’s testimony, taken literally, might not be inconsistent with Dean’s.
Jim also points to the Independent Counsel’s unwillingness to allow discovery about the whereabouts of the check showing payment to Mitchell. In Dean’s account of her conversation with the Special Agent, which Jim says she shared with him (Jim) after she had the conversation, the Special Agent told her where the check was. If the check were shown to have been where Dean says the Special Agent told her it was, this would have helped corroborate Dean’s testimony about the conversation.
Jim’s theory is that the prosecutors convinced the reluctant Special Agent to testify as he did by persuading him that, as carefully worded, the testimony was literally true. They then knowingly and willfully used that testimony to cast Dean in a false light, to her extreme prejudice.
Readers can assess the merits of this very strong charge at Jim’s web page.
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