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Independent Counsel Revisited

Sunday, July 26, 1998; Page C06

ATTORNEY GENERAL Janet Reno has a problem on the independent counsel front. Her refusal to invoke the law in the 1996 campaign finance imbroglio may have been, at first, merely a dispute between the attorney general and a group of campaign finance reform advocates and mainly Republican congressional critics. But dissent within her own ranks now has reached critical mass.

Late last year, FBI director Louis Freeh sent Ms. Reno a memo urging her to seek a special prosecutor; that memo's contents were detailed for the first time at a recent Senate oversight hearing. To make matters worse for Ms. Reno, the prosecutor she brought in from San Diego to whip the department's previously lackluster task force into shape -- Charles LaBella -- has come to the same conclusion as Mr. Freeh. Mr. LaBella recently sent Ms. Reno a report on the investigation before yielding the reins of the investigation. The arguments of Messrs. Freeh and LaBella, particularly taken together, inevitably weaken Ms. Reno's position. These are, after all, lawyers who have access to the full range of evidence the task force has developed, and Mr. LaBella was hand-chosen for the role of task force chief -- presumably because the attorney general had confidence in his judgment. He is precisely the sort of career official on whom she so regularly professes to rely.

If the task force has collected material that is not yet public but that somehow pulls the statutory trigger of credible and specific evidence of wrongdoing by an official covered by the law, Ms. Reno certainly should reconsider her position. She should not hold out simply because she has a heavy investment in her earlier determinations. The tougher question is how she should proceed if the factual base has not changed materially and her decision still is to be made largely on the basis of those facts in the public record.

The trouble in that case is that those facts still don't compel the invocation of the independent counsel law. The best case for an independent counsel that can be made based on public information has little to do with coffee klatches or the Lincoln bedroom, however distasteful this auctioned access may have been. It is the charge that the use of soft money raised by the president to fund issue advertisements, whose production by the DNC was directed personally by Bill Clinton, so blurred the lines between hard and soft money that it constituted a willful violation of the legal spending limits. This argument is supplemented by the concern that other allegations involving DNC fund-raising practices -- even if they don't directly implicate a covered person -- necessarily pose conflicts for the Justice Department. But the trashing of the line between campaign and party funds involves a murky area of the law whose applicability in the criminal context is unclear. The way the Clinton White House used the DNC may well be unprosecutable -- a fact that renders it no less a stain on Mr. Clinton's honor and integrity.

Nor is it clear that Ms. Reno, insofar as the public record would give her some discretion on the question of whether to invoke the law, should err on the side of using it. The independent counsel law, though necessary, has perils of its own and should not be used merely because there is a public clamor for it. Rather, independent counsels should be deployed only where the Justice Department is unable to proceed credibly with an investigation. Given the competent manner in which the task force has proceeded in the past several months -- after its rocky start -- it is not at all clear that this is the case.

What is clear is that Ms. Reno cannot ignore the position of Messrs. Freeh and LaBella or rely any longer on her platitudes about making decisions based on the facts and the law. She must either invoke the law as they have advised, or she must explain -- publicly and in as much detail as the requirements of grand jury secrecy will allow -- the state of the investigation and why the FBI director and outgoing task force chief are analyzing its fruits incorrectly. In the face of such dissent from her judgment, she can no longer hide behind the continuing nature of the investigation or her mantra about following the advice of career officials.

© Copyright 1998 The Washington Post Company

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