WITH THE passage of time and lack of play in the news, last year's search of candidate Bill Clinton's passport files might be dismissed as inconsequential partisan election-year high jinks. Since Mr. Clinton made it to the presidency anyway (goes the argument), why not treat the affair as a "no-harm, no-foul" play and forget it? The inquiry into the ill-fated search can't be dropped, however. It should be pursued. The Bush administration's preelection caper against Mr. Clinton has left some possibly serious criminal offenses on the table.
It's worth remembering that before the Republicans left office, a special three-judge panel made the passport search the subject of a criminal inquiry by a court-appointed independent counsel. Joseph E. diGenova didn't enter the scene at the urging of vengeful Democrats. It was Mr. Bush's attorney general, William P. Barr, an official known for his distaste for the independent counsel statute, who asked for a special prosecutor. It was Mr. Barr who told the court that a key White House assistant, Janet Mullins, may have made false statements to State Department investigators looking into the improper search. And it was Mr. Barr who said that "there is evidence that Mullins was aware of the interest in Clinton's files before the search occurred, and that Mullins helped encourage and direct the search." That's the issue that won't go away. Whether senior officials in the Bush White House instigated, encouraged or acquiesced in attempts to use government records and workers to influence the outcome of last year's presidential election is what the special prosecutor's probe is all about. That is as important a question today as it was last fall when the story broke.
The reported legal challenge to Mr. diGenova's authority by former Bush State Department appointee Stephen K. Berry underscores the seriousness that he and other key witnesses attach to this matter. Lawyers for Mr. Berry, who has refused to respond to a subpoena for records, argue that Mr. diGenova's probe is based on notes of Mr. Berry's telephone conversations that allegedly were illegally monitored by State Department employees last fall. Mr. diGenova has had to divert staff from the inquiry to respond to Mr. Berry's challenge.
Ironically, there's a chance this dispute might have been on the way to a resolution had the Clinton administration filled the slot of assistant attorney general for Justice's Criminal Division. Despite having been asked since last November, the Justice Department has yet to reach a conclusion on the legality of State's monitoring operation. Justice's answer has a bearing on Mr. Berry's claims. Without an assistant attorney general riding herd on such questions, the special prosecutor's inquiry drags on alone. Mr. diGenova needs and deserves some help.