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House Republicans' Call For Independent Counsel Rejected (Oct. 4)

Vice President Is Thrust Into Unfamiliar Role (Oct. 4)

Reno Extends Probe of Gore Phone Calls

By Roberto Suro
Washington Post Staff Writer
Saturday, October 4, 1997; Page A01

Citing unresolved factual and legal questions, Attorney General Janet Reno yesterday ordered an expanded investigation of Vice President Gore's telephone fund-raising calls from the White House to determine whether she should seek the appointment of an independent counsel to investigate Gore.

During the 60-day preliminary investigation initiated yesterday, Justice Department attorneys and investigators will attempt to determine whether Gore's calls constitute a violation of the law that prohibits political fund-raising on federal property. If Reno determines that a crime may have been committed or merely that further investigation is warranted, she must seek appointment of an independent counsel.

Justice Department officials emphasized that Reno's decision to proceed with a preliminary investigation did not indicate that there was any new evidence suggesting Gore had committed a crime or that the appointment of an independent counsel is more likely. They said that under the Independent Counsel Act, Reno was obliged to proceed with this step unless she was able to clear the vice president of the allegations at issue during the 30-day period that ended yesterday.

"Because the initial inquiry period is limited to 30 days, and because of the complexity of the factual and legal issues presented by this matter, I have been unable to determine whether there is sufficient specific and credible evidence to suggest a violation of federal criminal law," Reno told a special three-member panel of federal appeals court judges that is charged with appointing an independent counsel.

In a separate but related action, Reno rejected a request by House Republicans that she immediately seek appointment of an independent counsel to investigate a wide range of allegations raised by the Republicans.

In a letter to Rep. Henry J. Hyde (R-Ill.), chairman of the House Judiciary Committee, Reno said that she had determined that no action under the independent counsel process was required in response to the allegations, which included claims that businessmen with ties to the Chinese government bribed President Clinton with political donations and that Gore participated in a conspiracy to evade taxes when he attended a fund-raising event at a Buddhist temple in California.

"I can assure you that I have given your views and your arguments careful thought, but at this time, I am unable to agree with your view that an independent counsel should be appointed to handle the investigation of those matters not already subject to Independent Counsel Act procedures," Reno said in the letter to Hyde.

Hyde said in a statement that the preliminary investigation of Gore "represents progress, however slight. Appointment of an independent counsel to investigate both the president and the vice president is inevitable. The longer her delay in doing this, the longer it will take to get answers the American people deserve."

Talking to reporters in Tampa, Fla., Gore said, "we will continue to cooperate fully during this stage of the preliminary review and I remain confident that everything I did was legal and correct."

Asked if the decision represented a setback, Gore replied, "No, not at all. This is not surprising. It was predicted from the very beginning by many of the legal analysts."

The vice president has acknowledged making some 46 phone calls from his White House office to solicit contributions during the 1996 reelection campaign. On Sept 3, Reno initiated a 30-day review – the first step in the independent counsel process – to determine whether there is information suggesting that the calls resulted in the commission of a crime.

A similar 30-day review is underway regarding similar fund-raising phone calls by President Clinton, who has said that he does not remember whether or not he ever solicited funds from his White House office. That review will conclude Oct. 15.

While the opening of a preliminary investigation is a major step in the independent counsel process, in the past such inquiries have led to the exoneration of their subjects more often than not. According to a Senate report, 37 preliminary inquiries were opened between 1978 and 1992, but independent counsels were appointed in only 13 of those cases.

The simple, two-paragraph legal document that Reno sent to the special panel of judges yesterday belies a case that involves a tangle of legal claims.

Justice Department officials said that during the preliminary investigation that Reno ordered yesterday they will attempt to learn more about the extent of Gore's fund-raising calls and what was done with any money contributed as a result of his solicitations. In addition, Reno must resolve several legal questions as to whether Gore's actions violated any laws.

When Gore first acknowledged making the calls last March, he said that his counsel had advised him "that there is no controlling legal authority that says that any of these activities violated any law."

The inquiry involves a rarely invoked statute known as the Pendleton Act originally passed in 1883 to protect federal employees from political shakedowns at the hands of their bosses. Gore's defenders have cited several arguments as to why his calls did not violate this law. One frequently cited contention by the White House is that the law does not apply to fund-raising calls directed at persons who are not federal employees and who were not on federal property at the time they agreed to make the contributions.

The independent counsel law instructs Reno that in determining whether to press forward she must "comply with the written or other established policies of the Department of Justice." Reno and her top aides have acknowledged that the department has no clear policies regarding a number of issues raised by the phone calls because no similar case has ever been prosecuted.

In this type of situation such policies are "part law and part lore," said Richard Thornburgh, who served as attorney general in the Bush administration. "You have to look at what has been done in the past and you have to draw on the repository of experience that exists within the department, and then you have to leave open the possibility that the circumstances justify a novel application of the law."

Thornburgh noted that federal prosecutors regularly develop cases by using statutes in new ways. For example, he cited several successful prosecutions in the 1980s against Wall Street figures that made use of criminal conspiracy laws developed as a tool against organized crime families.

However, in a case involving a sitting president or vice president the so-called "imaginative use" of statutes could provoke considerable controversy.

"It would be outrageous to have an independent counsel bring a case that would never be brought by the Justice Department," said Harvard Law School professor Philip B. Heymann, a senior department official in the Carter and Clinton administrations.

© Copyright 1997 The Washington Post Company

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