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The Independent Counsel Issue

Sunday, March 16, 1997; Page C06

Attorney General Janet Reno says the conditions that would require the naming of an independent counsel in the case of the fund-raising for the president's reelection campaign have yet to be met. She's taking a lot of heat for that. Critics accuse her of trying to protect the president. Congressional Republicans, some Democrats and all manner of other commentators say if ever a case cried out for an independent prosecutor, it is this one. We aren't so sure. Anything could turn up tomorrow. But on the basis of what is known today, an argument can be made that Ms. Reno is right.

We say that as strong supporters of the independent counsel statute, though in some instances we have thought past counsels carried on too long or went too far. We say it also as a frequent critic of both the administration and the rotten system of campaign finance, whose corrupting qualities the president did so much to confirm last year. The fund-raising practices, some of them, in which he, the vice president and their adherents indulged were shabby, heavy-handed, demeaning, unseemly, questionable, destructive of public confidence and pretty close to the edge. But it isn't clear they were illegal. That, in fact, is the problem. The law is at best elliptical; not enough of what ought to be illegal is.

The virtue of the independent counsel act is that it reduces the conflict of interest that inevitably arises when an administration is called upon to investigate its own behavior. But it is not meant to avert mere awkwardness; it comes into play in only certain instances. The attorney general must seek appointment of an independent counsel (by the special court created to do so) when confronted with specific, credible evidence of criminal wrongdoing by the president, vice president, Cabinet officials and certain others in the executive branch, including a limited number of senior White House aides. She also may seek appointment of a counsel when confronted with evidence of such conduct by a lesser official where she feels there is a conflict.

The evidence of such conduct in this case thus far is a lot more limited than the churning surrounding the case would suggest. A lot of pretty squalid stuff was done. But so far as we know, no specific, credible evidence exists that, say, an official covered by the act sold a particular piece of policy for a campaign contribution, or knowingly accepted money from a forbidden source. You could make the generic charge against both presidential campaigns that they violated and pretty well trashed the campaign finance laws, including their criminal provisions, by raising so much so-called soft money in excess of federal limits. They pretended it wasn't campaign money when it clearly was. But no one is talking about that in this case, least of all the congressional Republicans who want an independent counsel but oppose most regulation of campaign finance. There are charges that funds were illegally raised (by the vice president, for one) and received inside a federal building – the very White House itself – instead of in some other building down the street, but you can find any number of lawyers who will say on one basis or another that what was done was not illegal, and does anyone really want to name an independent counsel to conduct a criminal prosecution of the vice president for making a phone call from the wrong room? That isn't what this is about, either.

More serious charges have been leveled against some lesser figures in the drama – that they laundered money from foreign sources, sought favors in return for contributions, etc. Ms. Reno has set up a task force to investigate these. As a practical matter, what the task force appears to have been conducting is precisely the kind of preliminary inquiry, though by another name, that would be required if the independent counsel statute were invoked, the question being, what evidence is there that criminal conduct occurred? If such conduct is found, and found to be of a kind that requires the naming of an independent counsel, Ms. Reno may yet ask for one. In a sense, what's going on is what the critics claim to want, but without the label.

Meanwhile, the independent counsel already investigating the president in the Whitewater case, Kenneth Starr, is also looking into what you might call one of the most advanced aspects of the campaign finance case, which is whether political donors were somehow called upon to hire Clinton family friend and former associate attorney general Webster Hubbell before he went to prison several years ago, the question being whether the large amounts of money paid him as Mr. Starr was seeking information from him were meant to hush him up.

There is one other major factor that argues for waiting awhile before deciding whether to seek an independent counsel in the campaign finance case. It has to do with what we believe to be the integrity and, if you will, independence of this attorney general herself. She is an uncommon figure in this town, and this administration, as even many who are banging on the table for an independent prosecutor will agree. We do not think it would be an inducement to sleeping well at night to know she was on your case if you had violated the law and were trying to hide it – especially with her honor being publicly challenged over and over again on this matter.

You balance risks in a decision like this. The risk of leaving the case in her hands at this stage, while Justice Department, congressional and other investigators continue to try to flesh it out, seems pretty slim. Events could change that. But right now the matter seems to us to be proceeding well enough without an independent counsel.

© Copyright 1997 The Washington Post Company

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