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.
The Gore and Clinton legal teams dispute that implication. They have offered other interpretations of the laws in question, arguing that they may not apply to the president and vice president, and that the solicitation takes place not where the solicitor is but where the object of his attentions is. The law, they say, was designed to create a safe haven for public servants, so that their political bosses wouldn't be able to put the arm on them for contributions on the job. That doesn't explain, however, why members of Congress, mindful of the same law, routinely leave their offices to make similar fund-raising calls.
Reno could yet reach either of the above two White House-approved conclusions and pull the plug on the independent-counsel machinery. But that would raise the question of why she chose not to make those points on previous occasions -- for example, in her letter to Hatch. She would look bad, and Republicans would probably find increased traction for their argument that far from being independent and impartial, Reno was merely looking for any straw she could clutch at to get her boss off the hook.
And there is one additional little problem: How exactly did Reno reach the conclusion that formed the basis of her March reply? What led her to think that the money raised was all soft money?
There is no possible answer to that question that reflects well on the attorney general. In her letter, she was both dismissive and authoritative: This was soft money, period. She also happened to be flat wrong. What kind of investigation could she be conducting if the conclusions she was reaching were so wrong? Reno herself said that the first she heard of the hard money was from Bob Woodward's story. Later, it turned out that Justice Department investigators had the relevant documents pointing to the hard-money deposits in their possession, but simply hadn't examined them. One claim was that investigators were focusing on bigger matters. (Bigger than the actions of the president and vice president?) In any case, after a round or two of finger-pointing, Reno decided on a shakeup of the 92-member team. She brought in a new chief and shortly thereafter made the announcements about Gore and Clinton.
The picture Reno has sought to paint all along is that of an attorney general and an investigation doggedly and independently pursuing the facts and the law wherever they might lead. The picture Republicans have been painting is that of an attorney general stonewalling furiously to protect the White House, spewing legal chaff in an effort to obfuscate the clear meaning of the independent counsel law and the criminal laws that might have been broken.
The picture that emerged from the hard-money debacle was rather different -- a bumbling, Clouseau-like operation in the Public Integrity Section of the Department of Justice. And if it should happen that those conducting it were trying to avoid casting their net widely enough to catch the big fish, they bungled that, too. White House officials have been complaining, not for attribution, that in putting so much weight on the hard money-soft money distinction, Reno painted herself into a corner. They are right: The Janet Reno that emerges from this fiasco looks either craven, or corrupt, or incompetent, or stupid. There's very little else to be said.
by Tod Lindberg, Tod Lindberg is editorial page editor of The Washington Times.