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Reno's Burden

By E.J. Dionne Jr.
Tuesday, September 30, 1997; Page A21

The issue of whether Attorney General Janet Reno should recommend an independent counsel to investigate fund-raising by President Clinton and Vice President Gore is hopelessly ensnared in politics, weird legal interpretations and Washington power games.

If Reno fails to name a counsel, Republicans are talking about impeaching her. If she names a counsel, she will be seen as bowing to threats and falling into a trap she built for herself. Neither is a good option.

Reno should never have declared that Vice President Gore was legally untouchable if he was raising "soft" money in those telephone calls from his office, but under suspicion if he raised "hard" money.

This casuistic distinction between the first kind of money, which goes to general party purposes, and the second kind, which can be spent directly on candidates, was blown away when Bob Woodward of The Post reported that the Democratic National Committee put some of the money Gore raised into "hard money" accounts.

Reno acknowledged she learned this from The Post, not from her investigators, and was forced to reexamine her position on whether a counsel should be named.

But whether the money was "soft" or "hard," those phone calls, on their own, don't justify an independent counsel. That's especially true given widespread disagreement over whether the 1883 law they purportedly violated even applies in this case. And as Phil Kuntz reported recently in the Wall Street Journal, Sen. Phil Gramm was quoted in 1995 saying that he placed fund-raising calls, on his credit card, from his Senate office. He later denied explicitly soliciting money. The Justice Department, wrote Kuntz, "considered and decided against pursuing" the case.

Sen. Mitch McConnell (R-Ky.), who has threatened Reno with impeachment, urged the Senate Ethics Committee not to pursue Gramm, according to Kuntz, because so many othersenators were probably guilty of the same thing. So Reno can't hang her decision on the phone calls.

But, yes, there are broader and much more troubling questions about the ways Democrats ripped apart the campaign law in 1996. So assume Reno seeks an independent counsel. Who picks the counsel? None other than the three-judge panel headed by Judge David Sentelle.

Judge Sentelle's panel, you'll recall, dismissed the original Whitewater counsel, Robert Fiske, and appointed Kenneth Starr. Sentelle thought the fact that Reno had picked Fiske raised the appearance of conflict of interest.

But appearances didn't seem to bother Judge Sentelle when he lunched with Sens. Jesse Helms and Lauch Faircloth, both North Carolina Republicans, shortly before he replaced Fiske. The same Sen. Faircloth had accused Fiske of a "cover-up." Five past presidents of the American Bar Association issued a statement saying the meeting was "unfortunate, to say the least" and gave rise "to the appearance of impropriety."

"Sentelle has polluted the waters," said Fred Wertheimer, president of Democracy 21 and a fierce critic of both parties' 1996 fund-raising tactics. "The notion of the independent counsel is to depoliticize the process, and the Republicans in Congress want to turn it into a political process."

Reno may have good reasons for dragging her feet on the independent counsel. Perhaps she's not happy with the Starr investigation or thinks she appointed too many counsels in Clinton's first term. It's possible she doesn't trust Judge Sentelle and – like many Democrats – has developed doubts about the independent counsel law.

If any of this is true, she should come right out and say so. In the current issue of the conservative American Spectator, former Reagan Justice Department official Terry Eastland has it right on this point. "There would be nothing necessarily wrong if Reno had changed her mind about the [independent counsel] law . . . and tried to reshape her enforcement of it accordingly," he writes. "But this would be vital information, something worth knowing and evaluating."

Similarly, Eastland said in an interview, if Reno doesn't trust the Sentelle panel, "that's the kind of thing that has to be candidly stated and argued for."

An intriguing alternative to turning to Judge Sentelle comes from Wertheimer and from columnist Al Hunt: Reno should appoint her own counsel within the Justice Department, someone "of unimpeachable reputation, and give that person the charter to do the job" of investigating all finance abuses in 1996, Republican as well as Democratic.

This idea, at least, would require Reno to say exactly what she's thinking and why. Whatever she does, Reno shouldn't let herself be railroaded by Republicans with obvious partisan motives. But she also has to restore confidence in the way the 1996 finance abuses are being investigated.

© Copyright 1997 The Washington Post Company

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