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DON’T LEAVE LOWER ECHELONS VULNERABLE

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In June 1987, as my dizziest dreams of literary success were coming true with the publication of "Presumed Innocent," my first novel, I was in despair, caught up in nightmarish legal proceedings that seemed uncomfortably, if vaguely, similar to my book about a prosecutor accused.

That month a panel of three federal judges in Georgia issued an opinion that contained a footnote stating that in 1983 I had engaged in "reprehensible conduct" as an assistant United States attorney in Chicago.At the direction of superiors I had authorized a lawyer who was a government informant to secretly record conversations about a drug deal allegedly proposed to him by a client he was representing on other charges.

The judges suggested my actions deserved the scrutiny of the Illinois Attorney Registration and Disciplinary Commission, and when I and the U.S. attorney criticized the judges in a motion to the court they responded with a new opinion intimating I may have obstructed justice.

The result was a six-month investigation by the U.S. Department of Justice's Public Integrity Section and a separate disciplinary inquiry in Illinois.

Though I was cleared in both investigations, the process took more than a year and left me harrowed, humiliated and poorer.

I had incurred nearly $50,000 in legal fees, but federal policy normally prohibits the government from reimbursing an employee for the cost of defending himself against an internal investigation, even if no charges are filed.

The conduct at issue - allowing a criminal lawyer to cooperate against his own client - remains controversial.

I thought it was right in that case - and so did my boss, the U.S. attorney, who ordered the action.

Our plans for the taping had been sent in writing to FBI headquarters in Washington and then to the director of the Office of Enforcement Operations in the Justice Department, all of whom had issued formal approvals. (This elaborate approval process was unknown to the judges, because they made their criticisms without any notice to me and afterward refused to give me any opportunity to explain.)

Four years later I am still smarting.

Undergoing the investigations was traumatic but understandable.

The government must make sure that those who enforce its laws obey them.

But why should this assurance of integrity come at the expense of federal employees?

When a special prosecutor is appointed under the Independent Counsel Act to investigate high officials in government, those officials have all their legal fees reimbursed if no charges are brought.

Edwin Meese was reimbursed nearly $900,000 for the two investigations he underwent, including $460,000 for the 1987-88 investigation while he was attorney general.

In November 1990, with the help of colleagues at my law firm, I brought the issue to the attention of Sen. Orrin Hatch, R-Utah, who then sponsored a bill to ensure that junior Justice Department employees, who are not covered by the Independent Counsel Act, would be reimbursed for legal fees if they are cleared in a government investigation.

The provision was adopted by the Senate as part of the crime bill but was not included in the House version.

I hope the provision survives the congressional compromise process and becomes law.

As the war on crime becomes more aggressive, retaliatory complaints about the conduct of law-enforcement officials can be expected to rise.

In its 1988 report the Justice Department's internal disciplinary division reported a 12 percent to 15 percent increase in complaints of investigative abuses, even though less than 10 percent of the complaints the division investigated were substantiated.

The legislation balances the government's duty to investigate misconduct and its loyalty to an employee by reimbursing those who prove blameless. And the legislation is fair.

High officials whose fees are reimbursed often come to government after lucrative careers. For lower-ranking officials that is generally not true.

The $50,000 I paid in legal fees represented about a quarter of what I had made in eight years of working for the government.

Finances aside, why should the government protect the top echelon and leave less powerful officials exposed?

If a federal law-enforcement employee has done what he was told to do, and what he was told to do was lawful, even the government can afford to be loyal.