JANET RENO'S DAYLONG, ROPE-A-DOPE performance before the House Judiciary Committee October 15 was reported in the press as a clash between frustrated Republicans and an attorney general steadfast in her determination to say as little as possible about her investigation of the Clinton fund-raising scandal. She "rebuffed their assault" (New York Times), "held firm" (Washington Post), and "stood her ground" (Los Angeles Times). What such accounts missed, or were too polite to say, was that much of her testimony did not make sense. There were whole passages that were indecipherable, not just as a matter of law, but as a matter of English.
Consider her response to the videotape played at the outset of the hearing by chairman Henry Hyde over the protests of committee Democrats. It was an excerpt from Reno's testimony before a Senate committee in 1993 in support of renewing the independent-counsel statute, which, at the time, had lapsed. " There is," she said then, "an inherent conflict whenever senior executive- branch officials are to be investigated by the department and its appointed head, the attorney general. The attorney general serves at the pleasure of the president. . . . It is absolutely essential for the public and process of the criminal justice system to have confidence in the system, and you cannot do that when there is conflict, or an appearance of conflict in the person who is, in effect, the chief prosecutor."
In her opening statement to the committee, however, Reno explained her current hesitancy to seek an independent counsel in the fund-raising scandal as follows: "The statements I made back in 1993 that you showed on the film are the statements I have stood by. Congress enacted a law. It created a presumption of those people for whom a conflict existed. And it enumerated in a statute. And that is the inherent conflict with senior executive branches that you referred to in the film. When the statute is triggered with respect to those categories of covered persons, I have shown I will trigger it, and I have shown most recently, I will trigger it whether it is the president or the vice president or a cabinet member."
To the extent a point can be discerned in all that, it seems to be this: As Reno now interprets the independent-counsel law, when it comes to a criminal investigation of a president, vice president, or other "covered person," the law presumes that it's a conflict of interest for the attorney general and the Justice Department to conduct the investigation. At that point, the independent-counsel process is automatically "triggered." That begins the cycle of 30-day, then 60-day "preliminary investigations" that must precede the naming of an independent counsel. Thus Reno was proclaiming to the committee that she had "shown" she would do what, according to her, she had no choice but to do.
At the moment, she and her department are in the midst of separate preliminary investigations of both President Clinton and Vice President Gore. These investigations are thought to involve the narrow issue of whether either of these men made campaign solicitations from "official" or "public" places within the White House, something the attorney general said it was her "understanding . . . would represent a violation." Normally, all that's required to start the laborious independent-counsel process is a finding by the attorney general that there is "specific and credible" information constituting "grounds to investigate" whether a top official "may have violated" the law. That may not sound like a very high threshold, but Reno has carefully avoided going even that far. Instead, she has acted under a different provision of the independent-counsel law that says she may start a preliminary investigation when she is "unable to determine . . . whether the information is specific and from a credible source."
One might assume from this that she and her sleuths at Justice now have their magnifying glasses focused intently on their information about Bill Clinton and Al Gore to determine whether it's sufficiently "specific and credible." But to hear her describe it, she is looking for something much stronger. She spoke repeatedly of the need for evidence that "will stand up in court." "We must meet the highest standard of all," she testified. "We must convince 12 people beyond and to the exclusion of a reasonable doubt that a crime has been committed and that the person accused is guilty of a crime." This is true enough for most cases, but it has nothing to do with her task in determining whether an independent counsel is needed in the Clinton- Gore fund-raising cases. Indeed, under the law, neither she nor her department would ever prosecute such a case, since if it ever got that far, she would long since have been legally obliged to turn the matter over to an independent counsel.
Indeed, as a reading of the law makes clear, at this point she need not even decide that the evidence of crime by Clinton and Gore is "specific and credible." If she were to determine that it is, of course, she would be required immediately to seek an independent counsel. But if, at the end of the preliminary investigation, she were unable to decide the value of the information, she would still be obliged to seek the appointment of an independent counsel, unless she "determines that there are no reasonable grounds to believe that further investigation is warranted."
That would be a sweeping conclusion, especially in the midst of an investigation that she trumpeted to the committee as "massive," involving 120 lawyers and FBI agents, more than 500 subpoenas, and over a million pages of documents. Despite this mobilization, she has repeatedly been embarrassed by information that her investigators knew nothing about, most recently the existence of those White House tapes. Yet Reno still shows a remarkable will to protect her president.
Indeed one of the only times she wavered from her steely refusal to say anything specific about the facts of the case was when she was asked to react to the recently released videotape showing Clinton at a 1996 fundraiser praising his "good friend John Huang" and saying he was "virtually overwhelmed" at Huang's success in organizing the $ 600,000 event. The fund- raiser was attended by such figures as Charlie Trie and Pauline Kanchanalak, both of whom have since fled the country. Much of the money raised was later returned because it came from illegal foreign sources. "When he told me this event was going to unfold as it has tonight," the president said of Huang, "I wasn't sure I believed him. But he has never told me anything that did not come to pass." When Wisconsin Republican James Sensenbrenner asked if this did not indicate the president "at least had knowledge of Mr. Huang's activities," Reno responded with something approaching indignation. "There is nothing in the statement that you provided to me just now that indicated that the president had any knowledge of any criminal activity. And to suggest that is to engage in the rumor and innuendo that we try to avoid in the Department of Justice."
Lanny Davis, the White House lawyer for damage control, could not have said it better. Still, Janet Reno may be past the point of no return on the road to an independent counsel. Unless she utterly absolves the president and vice president, the law leaves her little leeway to stop the process at this stage. She has now committed herself not to close any phase of the investigation without the concurrence of FBI director Louis Freeh, whose agents are known to be frustrated at the pace and direction of the investigation. Her commitment to act jointly with Freeh is about the only concession Reno made to the Judiciary Committee. Under the circumstances, it is probably enough.
Contributing editor Brit Hume is Washington managing editor of the Fox News Channel.