Cover Story

Attorney Client Privilege

Janet Reno is fond of calling her Justice Department "the people's law firm." But it's beginning to look more like "the president's law firm," with Ms. Reno as senior partner. Her refusal once again last week to call for an independent counsel to look into the myriad fundraising abuses involving the White House and the Democratic Party soils Ms. Reno's reputation as impartial and independent. And, as former Justice Department official Terry Eastland reveals, Ms. Reno has gone further than merely refusing to apply the independent counsel law. By her own admission, the attorney general has not even begun the "preliminary investigation" that precedes the appointment of an independent counsel. All of which means Ms. Reno has taken the position that all the scandalous evidence available thus far-against not just high-ranking officeholders like the president and vice president, but also those trusted aides who carried out the fundraising-amounts to nothing. The "people," as represented by their senators who will question Ms. Reno in the next few days, may be looking for a different "law firm."

Issue: "Reno Under Fire," April 26, 1997

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.

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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.

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