By Roberto Suro
Reno is reviewing a long, detailed report analyzing all the evidence gathered by the Justice Department fund-raising investigation launched 21 months ago. Written by the career prosecutor she picked to head the inquiry, Charles G. LaBella, the report advises Reno that she must seek an independent counsel if she herself is going to obey the law, according to officials familiar with the document, which has not been made public.
Reno has not decided how to respond, and it may be several weeks before she does, senior officials said. Meanwhile, Reno's decision-making procedures are different in this case than in some of the other situations that have obliged her to consider whether to trigger the independent counsel statute. Her deliberations could become a publicly debated issue as early as Tuesday when the House Government Reform and Oversight Committee holds a hearing prompted by the LaBella report.
The independent counsel law is a post-Watergate measure to avert the conflicts of interest that would arise if an attorney general were to investigate a sitting president, fellow Cabinet members or other top officials of the same administration. The statute sharply limits an attorney general's discretion and dictates specific procedures for determining whether an outside prosecutor is necessary.
After an attorney general receives information that suggests wrongdoing by a person covered by the statute, the first step is to decide whether the information is serious enough for the attorney general to open a preliminary investigation, which is a formal but limited inquiry.
At this initial stage, the law states that "the Attorney General shall consider only -- (A) the specificity of the information received; and (B) the credibility of the source of the information."
Republican leaders in Congress and other critics insist that Reno should have moved immediately to a preliminary investigation after receiving LaBella's report on July 16. They cite its specificity: Officials familiar with the document say it is more than 120 pages long and supplemented with 55 exhibits. And, its source, Republicans note, is a federal prosecutor who would not have been appointed to head the Justice Department task force if he was not credible on such matters.
Senior Justice Department officials do not quarrel with either of these assertions but said Reno is approaching LaBella's report with a different perspective.
For instance, she has opened the report to extensive analysis and discussion by department officials. After the existence of the report became known, Reno told reporters on July 23: "And what we do is hear from everybody, not just one lawyer, but everybody, and we try to make sure we consider all arguments and reach the best decision."
The discussions are not limited to the two simple points listed in the statute, officials said.
Since most of the facts LaBella cites had been uncovered by the department, his report is not being treated as new information that needs to be put to the "specific and credible" test defined by the statute, the officials said. Instead of new information, the report presents a new analysis of the evidence and new arguments about how that evidence indicates violations of the law by persons covered under the independent counsel statute, the officials said.
"That's nonsense," said a senior federal prosecutor who asked not to be identified. "Reno knows well enough that you've got something new and something worth investigating when a prosecutor takes already-known facts from here and there and puts them together and concludes that the sum of it looks like a crime."
This is more than just a technical distinction because the independent counsel statute is in play.
"It is not a very generous reading of the statute," said John Barrett, a law professor at St. John's University. "If you have facts woven together with legal theories alleging that covered persons may have committed a crime, then you have something new, and the law requires you to look and see whether it is a specific allegation from a credible source, and you have to operate under mandatory clocks and procedures laid out in the independent counsel statute."
Aside from limiting the initial inquiry to whether the evidence is specific and credible, the law gives an attorney general only 30 days to make a decision. If no decision can be reached, the attorney general is obliged to start a preliminary investigation.
During a meeting Friday with the ranking members of the House oversight committee to discuss a committee subpoena for LaBella's report, Reno said she did not expect to complete her review of the report for another three weeks, according to officials in attendance. That is beyond the 30-day period prescribed in the statute, and Justice Department officials have repeatedly stated that there is no timetable for a decision.
This approach differs markedly from the way Reno handled other allegations that raised the independent counsel issue.
For example, on Sept. 3 The Washington Post reported that Vice President Gore had made fund-raising phone calls from his White House office, potentially violating a law against campaign fund-raising on government property. That same morning, Reno asked for confirmation of the report and quickly learned that records already in the Justice Department's possession backed up important aspects of the story. By early afternoon, she had formally commenced a 30-day initial inquiry under the Independent Counsel Act.
Gore readily admitted making the calls, so the facts were never in question. The initial inquiry and the preliminary investigation that followed focused primarily on determining how the law applied to those facts, just as the current review of LaBella's report is said to focus on his analysis of how the law applies to the evidence. At the end of the preliminary investigation on Dec. 2, Reno announced that she had concluded that no laws had been broken.
In other situations when prosecutors brought their suspicions to Reno, she moved quickly. On Jan. 15, independent counsel Kenneth W. Starr came to Reno with a taped conversation during which Monica S. Lewinsky is heard stating her intention to lie when deposed in Paula Jones's sexual harassment lawsuit against President Clinton. That, plus Starr's contention that there might have been an effort on Clinton's behalf to suborn perjury and obstruct justice in the Jones case, quickly passed the specific and credible test.
Less than 24 hours later, Reno completed the preliminary investigation and agreed to seek a new mandate for Starr to investigate the matter.
© Copyright 1998 The Washington Post Company