Attorney Client Privilege

from Washington

In turning down formal congressional requests to initiate the appointment of an independent counsel to investigate White House fundraising abuses, Attorney General Janet Reno has left open the possibility that she might do so "should future developments make it appropriate."

But such a possibility would appear remote since Ms. Reno's remarkably detailed April 14 letter suggests that only some extraordinary development might compel her to seek an independent counsel. In the weeks ahead, during which the attorney general will be asked to explain her position on Capitol Hill, the unusually sharp criticism she already has received from congressional Republicans is likely to be repeated many times over. Ms. Reno will not find the criticism easy to counter, especially given how she previously has regarded and enforced the independent counsel law. More likely, her reputation for independence and integrity will be at stake.

As followers of scandal politics have had numerous occasions to learn, the independent counsel law, passed in 1978 in response to Watergate, provides for the court appointment of a non-Justice Department lawyer to investigate allegations of executive-branch wrongdoing. The fundamental argument for the law is that, as Janet Reno herself stated in 1993 Senate testimony, "there is an inherent conflict whenever Executive Branch officials are to be investigated by the Department and its appointed head, the Attorney General, [who] serves at the pleasure of the president."

The law works like this: Whenever there are specific, credible charges that the president, the vice president, and certain other high-ranking officials "covered" by the law may have committed a federal crime, the attorney general must open a "preliminary investigation" lasting no more than 90 days. The attorney general then must ask a special panel of judges to choose an independent counsel if by the end of the 90-day period he or she is unable to conclude that there are "no reasonable grounds to believe that further investigation is warranted." Under the law, the attorney general must make this judgment without the benefit of knowledge that might be gleaned from convening a grand jury, issuing a subpoena, or granting immunity to witnesses; the law prohibits the Justice Department from using these routine powers of investigation during the 90 days.

Alternatively, if the attorney general believes that a Justice Department investigation of a specific, credible allegation against someone other than a "covered" person may result in a personal, political, or financial conflict of interest, then the attorney general may ask the judges to name an independent counsel. Attorney General Edwin Meese used this discretionary path to an independent counsel appointment in 1986 when he sought a counsel to investigate Oliver North in the Iran-Contra affair. As did Ms. Reno herself in 1994, when she asked for a counsel to investigate James and Susan McDougal in the Whitewater matter.

In her letter, Ms. Reno states, "I have not initiated a 'preliminary investigation.'" This previously undisclosed fact means that, as Ms. Reno sees it, there is no specific, credible allegation against anyone-"covered" or not-that has required or led her to commence the type of investigation that, owing to the constraints under which the Justice Department then must operate, has almost always resulted in the appointment of an independent counsel.

Here are evident difficulties with Ms. Reno's position.

Consider, to begin with, the situation involving Vice President Al Gore. Mr. Gore is the penultimate "covered" person. He has admitted to personally making phone calls from his office soliciting funds, and federal law prohibits any person from fundraising in government office buildings. Thus, it would seem that here is a specific, credible allegation that should have required Ms. Reno to open a preliminary investigation, at the very least.

But as Ms. Reno hinted before and now explains in her letter, the law Mr. Gore (and others) may appear to have broken cannot be broken. The law, she writes, applies only to donations to individual candidates-so-called "hard money"-not to "soft money" that is given to political parties. And, she says, there is no "specific and credible evidence" that Mr. Gore or any other covered person solicited hard money from a government office building.

Ms. Reno has not suddenly narrowed the meaning of the law in order to prevent investigation and prosecution of Mr. Gore or anyone else. She is reflecting a view that the Justice Department has held since at least the Bush administration.

But even on this understanding of the law, Mr. Gore would appear vulnerable-because it is unclear whether the donations he sought from his office were entirely of the "soft" variety. If the vice president solicited contributions to individual candidates-a factual matter that an independent counsel could determine-those actions obviously would fall within the scope of the law as Ms. Reno has explained it.

Furthermore, even assuming that all of the money Mr. Gore solicited was indeed "soft," there is a theory by which the vice president still may have committed a crime. It is that Mr. Gore purposely solicited soft money in order to avoid the legal limit ($1,000) on the size of contributions to individual candidates and the prohibition against corporate donations.

There are facts to support this theory: namely, that most of the soft money Mr. Gore raised the Democratic National Committee spent on television commercials promoting President Clinton's policies-commercials that Mr. Clinton considered necessary to his reelection. In her letter, however, Ms. Reno did not consider the possibility that the otherwise legal solicitation of soft money might be a crime.

As more and more facts about the Democratic fundraising mess have emerged, it is now clear that the DNC was virtually an extension of the Clinton White House. Clear evidence also shows that Mr. Clinton himself was actively involved in planning and executing the committee's fundraising strategy to ensure his and Mr. Gore's reelection. In her letter, Ms. Reno does not deny what no one can deny-that there are specific, credible allegations of wrongdoing on the part of non-covered individuals involved in various aspects of the huge fundraising operation. It is well established that there were individuals who contributed money that was not their own, and individuals who sought contributions from foreign nationals. Federal criminal law prohibits both kinds of contributions.

Because Mr. Clinton is a covered person who, as evidence indicates, may have been aware of or even complicit in these clearly illegal activities, an independent counsel would seem to be required. Yet in her letter Ms. Reno dismisses this analysis of her duty. Federal law, she writes, "does not prohibit the coordination of fundraising or expenditures between a party and its candidates for office." In his Senate speech responding to Ms. Reno, an exasperated Sen. Orrin Hatch (R-Utah) said the attorney general's treatment of the issue was "evasive."

Sen. Hatch described the activities of several non-covered individuals including John Huang, the former Lippo Group executive who worked at the Commerce Department before moving (with Mr. Clinton's blessing) to the DNC, where he raised more than $3.4 million-almost half of which had to be returned because of its suspicious sources.

While it would appear, given Mr. Clinton's central role in the fundraising strategy, that Ms. Reno has for some time been obligated to seek an independent counsel on a covered-person analysis, the attorney general also could merely have invoked her discretionary authority and asked for a counsel on that basis. In her letter, Ms. Reno explains why she has not. Her analysis in this respect writes a new chapter in the Justice Department's administration of the independent counsel law.

It is a chapter that features Ms. Reno in apparent contradiction.

In her 1993 testimony, Ms. Reno endorsed the discretionary provision, making much of its importance in overcoming real or institutional conflicts of interest that could arise if the Justice Department were to investigate and prosecute non-covered persons accused of wrongdoing. In 1994, when she used her discretionary authority to ask judges to name a counsel to probe the activities of James and Susan McDougal, she explained that a Justice Department inquiry "would present a political conflict of interest," because the McDougals and others involved in Whitewater were close associates of the Clintons.

Twice later Ms. Reno invoked her discretionary authority in referring other individuals ensnared in Whitewater matters to the court for investigation by Mr. Starr.

One was Anthony Marceca, the Army detailee accused of making false statements to the FBI in Filegate-a matter that if ordinarily handled would in Ms. Reno's judgment have placed the FBI in the position of investigating a matter in which it must take testimony from its own agents.

The other was Bernard Nussbaum, the former White House counsel accused of making contradictory statements concerning the role of Hillary Clinton in hiring White House personnel security chief Craig Livingstone. That time Ms. Reno discerned the potential for a political conflict of interest.

In her letter, a clearly defensive attorney general insists that she still stands by her 1993 testimony supporting the discretionary provision. She evidently believes that she has not changed the way she assesses whether in a particular case this provision should be invoked.

"Based on the facts as we know them now," she writes, "I have not concluded that any conflict of interest would ensue from our vigorous and thorough investigation of the allegations contained in your letter." Yet a Justice investigation of non-covered persons (such as John Huang) would seem to present conflicts of interest similar to those Ms. Reno perceived in the original Whitewater case and the subsequent referrals.

There is obvious potential for a political conflict of interest inasmuch as a Justice probe of Mr. Huang and others involved in the fundraising mess would concern matters in which the president had and still has a profound interest.

And there is the potential for an institutional conflict, since the same FBI that would probe the fundraising issues is suspicious of requests to share with the White House sensitive national security information that touches on the very matters under investigation.

Indeed, this potential conflict may now be a real one. The Justice/FBI task force that Ms. Reno assigned to probe the fundraising abuses in November is still at work, presenting evidence to a grand jury and issuing subpoenas-law enforcement actions that would have been foreclosed to Ms. Reno if she had opened a preliminary investigation.

Sen. Hatch had good reason to observe that to the extent an independent counsel was needed to investigate the McDougals, Mr. Marceca, or Mr. Nussbaum, "one certainly is called for here." Ms. Reno does appear to have altered the way she assesses whether for conflict-of-interest reasons she should seek an independent counsel.

Mr. Hatch has promised to question her closely on this matter when she appears later this month or in early May before his Senate Judiciary Committee. She is likely to be asked whether Mr. Clinton, in recent months a convert to the ranks of those who take a dim view of the independent counsel statute, has explicitly or with a wink and a nod asked her to avoid at all costs commencing a preliminary investigation and the application for an independent counsel likely to ensue from taking that step.

And that's the last thing Mr. Clinton (or Mr. Gore, for that matter) wants.

Mr. Eastland is a fellow at the Ethics and Public Policy Center in Washington and has written a book about the independent counsel statute.