Analysis: Justice Memos May Yield Little
Washington Post Staff Writers
Thursday, December 3, 1998; Page A18
Now that the House Judiciary Committee has the information it sought concerning President Clinton and his 1996 campaign fund-raising, it may wonder why it went to so much trouble to get it.
Indeed, the issue of whether President Clinton committed impeachable offenses relating to Monica S. Lewinsky looks crystal clear compared with the murky legal swamp in which the campaign fund-raising investigation has mired two other congressional committees and a regiment of Justice Department investigators in the last two years.
The memos to which U.S. District Judge Norma Holloway Johnson granted the Judiciary Committee access yesterday contain no explosive new evidence of criminal activity by the president, sources familiar with the documents said. "If either of these things was a ticking time bomb they would have blown up by now," said one Justice official familiar with the documents.
Everything from overnights in the Lincoln Bedroom to Clinton's presence at fund-raising events where foreign nationals made campaign contributions are cited in the documents as indications that the president may have attempted to circumvent campaign laws.
But the memos by FBI Director Louis J. Freeh and the Justice Department's former top campaign finance prosecutor, Charles G. LaBella, did not address whether those actions were crimes and alleged no specific offenses by Clinton or other officials. Rather, sources said, they argued that the allegations swirling around Clinton and others were such that the Justice Department shouldn't be investigating the issue at all but should turn it over to an independent counsel.
Republicans may be looking to the documents for evidence of high crimes and misdemeanors, but what they are going to find are lengthy discussions of the hair-trigger mechanism contained in the independent counsel law -- a low legal threshold requiring the attorney general to seek an outside investigator when there are even minimal indications of possible wrongdoing by a president.
"The only question was whether there is specific evidence from a credible source indicating potential wrongdoing by the president or someone else covered by the independent counsel act and that is several long steps from saying there is probable cause to believe any crime has been committed," said a law enforcement official familiar with the memos.
In response to the memos -- Freeh's written last year and LaBella's in the summer -- Reno disagreed that the threshold had been reached. She faces a similar decision Monday, the deadline for deciding whether an audit of 1996 campaign spending by the Federal Election Commission provides enough new information for her to change her mind. The FEC auditors have said Clinton's reelection campaign improperly coordinated "issue advocacy" advertising with the Democratic National Committee and should repay more than $7 million it received in federal matching funds. But the audit also faulted Republican Robert J. Dole's campaign and the Republicans for the same thing -- and said they should repay $17 million.
Rep. John Conyers Jr. (D-Mich.), the Judiciary Committee's ranking minority member, announced last night that the Democrats, for their part, had found nothing useful in the documents. "Democratic counsel has thoroughly examined the memoranda in question and has advised me that nothing in these documents is in any way relevant to this committee's consideration of possible impeachable offenses by the president," Conyers said.
Yet even those who are looking for an impeachment case in the mountain of material assembled during the Justice Department's two-year campaign finance investigation will face several serious roadblocks.
In virtually every area of investigation -- from the funding relationship between parties and their candidates, through contributions by foreigners -- the law is a complex and still evolving area on which experienced election lawyers disagree.
Former Republican National Committee general counsel Benjamin Ginsberg said that the committee would be making a mistake if it ventured into violations charged against both parties by the FEC -- that they used unrestricted funds for so-called "issue ads" that actually were designed to promote the Clinton and Dole candidacies. "If they start looking at issue ads stuff, then it's a mockery of a sham of a mockery," Ginsberg said.
Ginsberg said that an inquiry into the Democrats' use of campaign money from foreign sources might be more fruitful for the committee. "If there's information that may be lurking out there" linking Clinton to foreign contributions, he said, "that strikes me as relevant stuff."
But sources said the memos do not allege a criminal effort by anyone in the White House, no less the president, to solicit foreign funds. In addition, even if such evidence emerged, a recent court ruling concluded that those funds might be legal after all.
Most of the alleged foreign money collected for the 1996 campaign did not go to individual campaigns in the form of "hard money" but rather to the DNC as "soft money" to be used for general political activities. In an October ruling in the case of Yah Lin "Charlie" Trie, a Democratic fund-raiser and friend of the president's, U.S. District Judge Paul L. Friedman concluded that prohibitions on contributions from foreign nationals do not apply to soft money.
The Freeh and LaBella memos did not address these legal debates. Freeh, who delivered his memo to Reno on Nov. 25, 1997, specifically argued that an attorney general should not even try to resolve such disputes when dealing with a president, according to a lengthy account of the document's content given by Sen. Fred D. Thompson (R-Tenn.) during a hearing in July after he was briefed on it.
Even as he discussed information indicating that Clinton and top officials may have been involved in a broad scheme to circumvent campaign finance laws by many means, Freeh did not try to build a criminal case against the president or anyone else. Instead, according to Thompson, he argued that to avoid the appearance of a conflict of interest "the Department of Justice is not to undertake an elaborate legal analysis."
The LaBella memo, given to Reno July 16, is longer, and involves a more extensive recitation of evidence developed in the Justice Department campaign finance investigation, but essentially offers the same kind of analysis, according to officials familiar with the document. Citing a wide range of activities by the president, Vice President Gore and several of their senior aides, LaBella concluded that there were suggestions of a systematic effort to raise and spend more money than allowed under federal law.
Like Freeh, however, LaBella did not try to make a case in favor of a prosecution but rather sought to persuade Reno that she should not be making important judgments about the president who appointed her to his cabinet.
"Freeh and LaBella were saying there is a very low threshold for seeking an independent counsel and once over it an attorney general should not be trying to resolve conflicts over whether there is criminal activity," said George Washington University law professor Stephen A. Saltzburg. "The Judiciary Committee is struggling to determine whether there is probable cause or clear and convincing evidence of a crime, and these are much higher standards than Freeh or LaBella had to address."
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