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The Independent Counsel Decision

Thursday, December 4, 1997; Page A22

ATTORNEY GENERAL Janet Reno has, once again, declined to seek an independent counsel to investigate the Clinton administration's campaign finance behavior. Despite the highly critical response of many Republicans and others, we think she did the right and reasonable thing.

It would have been a truly absurd outcome for Ms. Reno to have invoked the independent counsel statute to examine the insignificant question of which politicians used what phones to raise what sort of money. We also disagree with those who accuse her of focusing the Justice Department's preliminary investigation too narrowly and, thereby, avoiding the most serious allegations against Mr. Clinton and his underlings – that they knowingly subverted campaign spending limits by using so-called "soft money" to pay for campaign advertisements. While this clearly happened, it is by no means clear that it constituted a criminal offense. It may suggest merely that our campaign finance laws are disgracefully weak and subject to manipulation. Ms. Reno is correct to require, as a predicate for invoking the independent counsel law, a specific allegation that a statute whose meaning is clear was violated by an official covered by the law. This predicate has never been met.

Keeping the investigation inside the Department of Justice, while the right move at least to this point, has real costs to which the department must be sensitive. The attorney general said emphatically that no one involved in the reelection campaign was being exonerated and that the investigation by the department would continue. It now has an enormous responsibility to be seen to be carrying out the inquiry vigorously and without favor.

One of the most useful aspects of the independent counsel statute is its requirement that either the attorney general or the independent counsel report on the findings of a given probe. These reports – by outlining the relevant laws, the investigation's factual findings and the interaction between the two – add a touch of finality to matters of significant controversy and serve a critical public function. Because of Ms. Reno's recent filings on the phone calls, for example, we now know in much more detail what kind of telephone fund-raising the president and vice president engaged in and why they could not be prosecuted for it. The trouble is that normal criminal investigations don't end with public reports; they just stop. Those who did bad things but nonetheless go unindicted can be indistinguishable from those who were not indicted because they did nothing wrong. The public, moreover, gets no systematic accounting of what happened. This is fine in most instances, but it would be unacceptable here.

Since Ms. Reno means to hang on to the campaign finance investigation, the department should agree to address certain basic questions publicly and should eventually lay out its key factual findings the way an independent counsel would. If the position of the Justice Department is that no criminal sanction can be applied to the kind of circumvention of federal election law that occurred last year, the public deserves to be informed that the law is emptier than even the cynics knew. No matter what else happens, the department in the end should offer as clear and detailed an explanation of this matter – which lies at the heart of the campaign finance scandal – as it has now given of the fund-raising calls.

© Copyright 1997 The Washington Post Company

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