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Attorney General Janet Reno testifies on Capitol Hill Wednesday before the Senate Judiciary Committee. (AP)

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Full Text of Appeals Court Order and Judge Silberman's Statement

Administration Makes Last-Ditch Appeal to Rehnquist (Washington Post, July 17)

'Today' Show Report Spins Into Controversy (Washington Post, July 17)

Reno Unmoved in Senate Grilling (Washington Post, July 16)

Legal Guide: Untangling the Issues

Attorney General in Awkward Spot

By Ruth Marcus and Roberto Suro
Washington Post Staff Writers
Friday, July 17, 1998; Page A04

In the battle over whether Secret Service agents should be forced to testify about their dealings with President Clinton, the Justice Department finds itself in the line of fire.

Attorney General Janet Reno insists that she is acting in the national interest to protect the safety not just of Clinton but of all future presidents by preserving the relationship of trust between agents and those they are sworn to protect.

But independent counsel Kenneth W. Starr asserts that it is his job to represent the United States in this investigation, and that his fellow prosecutors at the Justice Department are thwarting his efforts to obtain critical information about the president's relationship with Monica S. Lewinsky.

That leaves the department in an exquisitely awkward position made abundantly clear yesterday with a blast from an appeals court judge. "The Attorney General is, in effect, acting as the President's counsel under the false guise of representing the United States, contrary to the whole purpose and structure" of the independent counsel law, wrote Judge Laurence H. Silberman.

Silberman, who voted with the rest of the U.S. Court of Appeals for the D.C. Circuit to reject Justice's effort to block Secret Service testimony, noted tartly that he was "mindful of the terrible political pressures and strains of conscience that bear upon senior political appointees of the Justice Department" when an independent counsel is investigating his or her ultimate boss. But, he said in the only written opinion from any of the judges yesterday, the independent counsel law "limits the options that the Attorney General can legally (and honorably) pursue. Litigating against the Independent Counsel in this case is not among them."

The judge's biting rhetoric was dismissed at the Justice Department. "We have no doubt that we represent the United States, and nobody else should have any doubts either," said one annoyed official.

For Reno, it was the second day in a row in which her political independence has come under attack. On Wednesday, she endured tough questioning from Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) and other Republicans over her refusal to seek an independent counsel to investigate Democratic fund-raising abuses. Presidential press secretary Mike McCurry made reference to that encounter yesterday when he was asked whether the White House was pressuring Reno to pursue the Secret Service appeal.

"If she's been receiving any pressure, it's the kind of pressure she received yesterday from members of Congress," he said.

Reno's Justice Department has locked horns previously with another independent counsel, Donald C. Smaltz, who has blasted the department for interfering with his investigation of former agriculture secretary Mike Espy. The department has also tangled with Starr in the course of his four-year Whitewater inquiry, differing with him on questions such as the scope of attorney-client privilege for government lawyers.

But the department had sought – and until now had largely succeeded – to stay on the sidelines of the Clinton-Starr tangle. The department bowed out of the fight over executive privilege, for example, and the White House hired an outside lawyer to represent its interests in that dispute.

Last winter, the department worked hard to reach a compromise with Starr over Secret Service testimony, hoping to avoid the very showdown that has played out this week. But the service, and its parent, the Treasury Department, insisted on asserting the novel legal claim of an absolute privilege even after Justice warned that it might well be a losing proposition.

"There was a very clear desire for years not to let this happen," said one former Justice official. "We did not want to get in Starr's way, and just let him go about his business consistent with the law."

However, the official said, "The attorney general has a very sharp awareness of the fact that if you knock the department out of the picture on this, there are very real consequences for the system. There's no one left."

Justice Departments in previous administrations have found themselves in similarly uncomfortable circumstances.

During the Iran-contra investigation, independent counsel Lawrence E. Walsh tangled with Bush administration Attorney General Dick Thornburgh over the release of classified information at the trial of former White House aide Oliver L. North and others. Thornburgh at one point asked the Supreme Court to halt the North trial because of the fear that sensitive information would be disclosed, leading Walsh to blast the attorney general for trying to "subvert his independence."

During that time, George Washington University law professor Stephen Saltzburg was the Justice official in charge of dealing with Walsh. He said yesterday that while it is "awkward" for the department, Justice must remain in the picture to assert the longer-term interests of the government against the narrow concerns of even the best-intentioned independent counsels.

"The independent counsel is a short-term entity, and it is very hard for the independent counsel to worry about whether or not an intelligence agency is going to be compromised 20 years from now, as opposed to whether the independent counsel should get the information today," he said.

But St. John's University law professor John Q. Barrett, who worked for Walsh, said the department may be acting outside its authority in litigating against the independent counsel. "The Justice Department's on the wrong team here," he said. "This is a case pitting the government of the United States against people who have evidence and don't want to provide it. DOJ obviously should be on the first half of that case. Private counsel should be representing the second half of the case."

Donald B. Ayer, an opponent of the independent counsel law who served as deputy attorney general under Thornburgh, said there was a conflict between the theoretical underpinning of the statute – that there were some cases so politically sensitive that the department could not be trusted to handle them – and continued department involvement.

"Here you are as the attorney general, you've always thought of yourself as representing the United States, yet you're going into court to oppose the representative of the United States on this matter. It must make someone feel quite uncomfortable to be doing that, given that the statute that's been created is there because your ethical competence has been found to be deficient in this particular area. You're rushing off to court in a matter in which the Independent Counsel Act says you can't necessarily be trusted."

© Copyright 1998 The Washington Post Company

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