The Magazine


Oct 6, 1997, Vol. 3, No. 04 • By TOD LINDBERG
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GEE, IN ALL THE EXCITEMENT of demanding that Attorney General Janet Reno seek the appointment of an independent counsel to investigate Al Gore's fund-raising activities -- including saber-rattling about possible impeachment proceedings against Reno if she didn't -- Republicans clean forgot to demand that she seek the appointment of an independent counsel to investigate Bill Clinton's fund-raising activities. Oops. Imagine the embarrassment when Reno, having announced she was starting the 30-day clock on a preliminary inquiry that could eventually lead to a special prosecutor for Gore, also announced she was doing the same for Clinton.

In fact, however, the embarrassment was Reno's. For months now, Reno has been probing the limits of her authority not to seek an independent counsel in the fund- raising scandal. Now she merely looks like she has blundered into it.

Under the law, Reno could have asked for an independent counsel to investigate Democrats' fund-raising at any time -- if she saw an actual or potential conflict in the Justice Department's rooting around in its masters' dirty campaign laundry. The Iran-contra scandal broke in November 1986. Attorney General Ed Meese asked for an independent counsel December 4, and Lawrence Walsh was on the job December 19. The current scandal goes back almost a year, with Reno insisting all along that her own investigators in the Public Integrity Section of the Justice Department were perfectly capable of conducting a thorough and impartial investigation.

But according to the independent-counsel law, once the attorney general receives "specific and credible" information that a person covered by the law may have committed a crime, she must start the 30-day clock. At the end, unless she finds that the information is neither specific nor credible, she must begin a preliminary investigation lasting no more than 90 days. At the end of that time, unless the attorney general finds overwhelming evidence that there is no basis for proceeding, she must ask a special judicial panel to appoint a counsel. In practice, there has been no instance in which the 90-day clock has started running and a counsel was not ultimately appointed.

From the start of the fund-raising scandal, Reno steadfastly maintained that none of the numerous questionable activities that were surfacing in the press, in congressional investigations, or as a result of her own investigation was sufficient to trigger the mandatory provision of the law. And this was, quite simply, driving Republicans nuts.

What about Gore's presence at an illegal fund-raiser at a Buddhist temple, as a result of which nuns used other people's money to make contributions to Democrats? What about the phone calls he admitted having made from his office soliciting campaign contributions? As early as spring, Republicans were writing furious letters to Reno demanding to know why she hadn't acted to seek a counsel. Her answers -- first in a March letter she wrote the chairman of the Senate Judiciary Committee, Orrin Hatch, and then in testimony before that committee -- were entirely unsatisfactory to the Republicans, whose banks of lawyers found her understanding of the law either grossly incompetent or willfully obtuse.

In her March letter, she contended rather blithely that since the money Gore solicited from his office phone was "soft money" -- designed for general party-building activities, not to advocate the election of any particular candidate -- the law that makes it illegal to solicit contributions on federal property didn't apply. Those contributions would have to have been " hard dollars." So much for the phone calls.

Republican lawyers dispute the way she was construing the law, and were prepared to fight it out over what the law meant. They would then be positioned to use the fact of the dispute itself to argue that the matter should be resolved by an independent counsel. Strangely enough, however, they didn't have to. Reno's position was thoroughly undercut by the emergence of additional facts.

Some of the money Gore solicited, as Bob Woodward reported in the Washington Post, did end up in hard-money accounts at the Democratic National Committee. In fact, the DNC routinely siphoned off the first $ 20,000 of each big contribution for deposit in a hard-money account ($ 5,000 less than the maximum an individual can give per year).

Uh-oh. The clear implication of Reno's letter had been that if Gore were dialing for hard dollars, the law would apply. And it would also apply to any dialing for dollars the president might have done.