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Bungled So Far

Friday, September 23 1997; Page A16

Attorney General Janet Reno has opened the possibility that she may seek appointment of an independent counsel in connection with the fund-raising excesses that marred the last election. The ostensible trigger for the action was her discovery, in part from reading the papers, that the vice president and president both may have raised some money using their office phones, and that some of the money may then have been deposited in a "hard" rather than "soft" Democratic National Committee account – no matter that the only real distinction between the two was on paper.

There has been a flurry of reaction, some of it White House-orchestrated, to the effect that this is a ludicrous way to do business. The issue is, or ought to be, the money, the critics say – how much was sought from and given by whom for what purposes – rather than the meaningless, almost clerical questions of which phones and bank accounts were used. But in fact it is not the phones or bank accounts that have forced Ms. Reno's hand. She was driven to act by revelations having to do much less with the president and vice president than with the Justice Department. Her department, on whose investigative capabilities and integrity she had asked the country to depend, appears to have been conducting a bumbling and less than fully competent investigation – call it what you will, but certainly not one calculated to inspire confidence.

There has been a certain amount of talk in recent days about which mid-level officials or which arms of the Justice Department might be at fault. The fault does not lie there. The attorney general bears the responsibility. Ms. Reno's strengths have never run to management; nor in the relevant period did she have deputies officially in place to do the managing for her. All the more reason for her to have paid the extra heed she appears not to have done to an enterprise on which the credibility of the executive branch in this matter depends. If we end up with an independent counsel in this case – in our judgment, not an altogether happy outcome – it will be not just because of how the money was raised last year but because on Ms. Reno's watch the Justice Department blew it.

The broad outline of what happened in the last campaign is understood by just about everyone. The already weak constraints in the law on fund-raising were ripped apart by both parties. The principal evasion was to raise in the name of the parties, as soft money, funds that the candidates were forbidden to raise directly for their campaigns. Then the parties, which they controlled, made the money available to them anyway.

An early question for the Justice Department was whether to treat just this, the basic scam, as a criminal offense sufficient to trigger the independent counsel statute. The decision of the career prosecutors on whom Ms. Reno was relying was no, on grounds that the relevant provisions of the campaign finance laws did not apply to contributions to the parties, only contributions to campaigns. Who knows whether that's technically so? It nonetheless illustrates the basic problem, which is not so much that the campaign finance laws are evaded as that they are weak. They were written to be evaded. The overriding need is to strengthen them, and some of the members of Congress most indignant about the asserted abuses of the law last year are among those least willing to change it so that such abuse could put a politician clearly in harm's way.

Ms. Reno has also been asked to seek appointment of an independent counsel on the basis of what the Democrats might have done – might have wittingly sought or accepted contributions from foreign or other illegal sources, might have altered policies in return for funds, might have done any number of forbidden things. Who knows? But of course she's right that the standard for so consequential an act as seeking an independent counsel should be higher than that.

There are two grounds. She has to seek such a counsel if she has specific and credible evidence that a covered official committed a prosecutable offense. She can seek such a one even without such evidence if she feels the department otherwise faces a conflict of interest in conducting an investigation and possible prosecution. Her position thus far has been that neither test has been met. Absent the triggering evidence that the statute requires, the career prosecutors and by implication she herself could be counted upon to enforce the law as vigorously as this case deserved. So said Ms. Reno.

The department may yet be able to make the technical case, and perhaps it should, that the first test hasn't been met. You've read all the arguments. The ban on solicitation of funds in government offices wasn't meant to apply to phone calls like these. Neither the president nor the vice president knew how the money was being split up, etc. If a credible Justice Department said these things, most people would probably say okay – even those who believe, as we do, that the underlying system of campaign finance that Mr. Clinton and Mr. Gore so helped to perfect last year is corrupt and wrong. Who can want an issue as important as this to come down to the wrong phone jack or deposit slip? But credible is the key word. Ms. Reno says the department deserves the public's confidence. But that confidence has to be earned, and on this one it has been dissipated instead.

© Copyright 1997 The Washington Post Company

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