REPUBLICANS EAGERLY DECLARED that they weren’t surprised by Attorney General Janet Reno’s decision last week not to seek an independent counsel in the Democratic fund-raising scandal. It’s hard to find anyone in the GOP who doesn’t think the fix is in — that the Justice Department and Reno are twisting themselves and the law into pretzels to avoid siccing an independent counsel on Bill Clinton or Al Gore.
Republicans are fond of citing Reno’s own 1993 congressional testimony on the independent-counsel statute. At that time, the attorney general noted an “inherent conflict whenever senior executive branch officials are to be investigated” by the Justice Department. An independent-counsel investigation ensures the appearance of fairness, she said then. And exoneration by an independent prosecutor, should that be the result of the investigation, is more credible than exoneration by an official of the same administration.
Given Reno’s 1993 view, Republicans (and others) have asked how she can avoid seeking an independent counsel now. The Democratic fund-raising imbroglio potentially involves the president, vice president, key political aides at the White House, and senior officials at the president’s reelection campaign and his national party headquarters. The answer is quite simple, really: Janet Reno has changed her mind about the independent-counsel statute. True, she hasn’t said as much. On the other hand, how often do political figures admit they were wrong? The point is that since shortly after the law was reenacted in 1994, everything Reno has done suggests she regards the independent-counsel statute as ripe for prosecutorial abuse — a point Republicans used to make all the time in the days when their friends were the ones in the crosshairs.
Reno and the independent-counsel law got off to a bad start and never recovered. In 1993, during a period when the law had lapsed, Reno appointed Robert Fiske special counsel to investigate the burgeoning Whitewater scandal. After Congress reauthorized the law, she went to the judges of the D.C. circuit, who actually select independent counsels, and sought to have Fiske continue his investigation in accordance with the law. The court declined to appoint him, in a move that stunned Washington, instead replacing Fiske with Kenneth Starr, whose reputation as a GOP partisan quickly became an article of Democratic faith.
True, Reno has gone back to the D.C. circuit seeking prosecutors to investigate other Clinton officials — former HUD secretary Henry Cisneros and former agriculture secretary Mike Espy, among them. These inquiries are still going on, much to the disgust of Democrats. But Reno has gone to court on at least two occasions to oppose efforts by those two counsels to broaden the scope of their investigations. She has also clashed with Starr, seeking to block his access to material the White House claimed was protected by attorney-client privilege. Reno has declined as well to unleash independent counsels in the White House travel office and FBI files matters, heaping them instead onto Starr’s plate.
And to top it off, Reno has steadfastly refused to use her discretionary authority under the independent-counsel law to seek a counsel in the Democratic fund-raising scandal. She has instead relied on the mandatory provisions of that law, arguing that the conditions under which she must seek a counsel have not been met. If she really thought now what she thought in 1993, she would long ago have gone to the D.C. circuit to ask for a special prosecutor.
It is, all in all, a portrait of an attorney general profoundly at odds with the law she is sworn to enforce and willing to go to some lengths to avoid it. Has she gone too far? Republicans certainly think so. Whether you like it or not, the law’s the law and needs to be enforced, not tortured into some new meaning. And, as it happens, this much-vaunted “independent-minded” attorney general seems independently to reach exactly the conclusion a partisan Democrat would want her to reach, every time.
What’s a Republican to do? Well, put her on the witness stand and grill her, of course, and keep the heat on in the press. But that’s not all. Senate Governmental Affairs Committee chairman and erstwhile fund- raising investigator Fred Thompson, in his initial blast in response to Reno’s decision, hinted at the possibility of congressional toughening of the independent-counsel statute to preclude further Reno-esque misinterpretation.
Bad idea. In fact, if Republicans could take a step back from the trenches in their war over campaign fund-raising, they might just notice that they’re fighting on the wrong front.
For 60 days at least, ever since Reno started the clock on her preliminary investigation under the independent-counsel statute — and in fact for a much longer period, when the question was whether Reno would actually start the clock — virtually all the attention on the fund-raising scandal has been directed at: Janet Reno. Now, whatever else may be true, Janet Reno didn’t rent out the Lincoln Bedroom, suck up cash from Indonesian billionaires, or figure out a multimillion-dollar way around those pesky campaign-finance laws. That was somebody else — somebody who must be just delighted that all the heat these days is directed at the attorney general.
That’s the independent-counsel statute at work. Since the attorney general makes the decision, all eyes turn to the attorney general — not to the alleged perpetrator. And it’s the attorney general’s view of the alleged perp that’s the issue — not so much the actions of the alleged perp himself.
Imagine a world without the independent-counsel law. There wouldn’t be as much hammering at Janet Reno; the hammering would be at the White House. One question would be: How can the president preside over an investigation into his own conduct? Shouldn’t he himself order the attorney general to appoint an outsider of high stature and impeccable credentials to look into the matter? Actually, you don’t have to imagine such a world. Those were precisely the circumstances that led to the appointment of Robert Fiske to investigate Whitewater. At the time, Janet Reno said she was perfectly capable of doing the job. Nobody listened. Instead, they demanded to know why Bill Clinton thought this was proper. In the end, he caved; he was the one who told Reno to bring in an outside counsel.
If Republicans really want an investigation, they ought to get rid of the independent-counsel law, which mainly serves these days to deflect attention from where it ought to be focused — on the president. Oddly enough, the truth is that if Congress did vote to repeal the law, Bill Clinton would have good reason to veto it. At the moment, it serves him well.