ATTORNEY GENERAL Edwin Meese has now greatly reduced the scope of charges made against three former Justice Department officials and a deputy White House counsel by the House Judiciary Committee. His position is that he was required by law to exercise judgment in these cases. Judiciary Chairman Peter Rodino says instead that he abused his discretion, cutting off valid inquiries. Our sense is that in this case Mr. Meese should have recused his department. The problem is not guilt or innocence, which we cannot judge, but credibility. No agency can credibly clear its own behavior.
Judiciary's charges grew out of the upheaval over the Environmental Protection Agency in 1982 and 1983. At one point the administration, at the instigation of officials at Justice, used executive privilege to withhold sme documents from Congress. The committee says that the administration had no basis for invoking privilege; that it was trying to impede legitimate congressional investigations; that similar obstruction occurred when the committee then began investigating Justice; and that as part of this, administration officials on several occasions either withheld evidence or lied.
Mr. Rodino asked Mr. Meese to seek appointment of an independent counsel to investigate. In the case of one official, former assistant attorney general Theodore Olson, Mr. Meese now has. But in three other cases he has declined. His reason in one was that the law does not apply, in the other two, that there is no "reasonable" basis for believing that further investigation would produce either "a viable criminal case" or "evidence on which a criminal charge could properly rest."
One of these two cases involves former deputy attorney general Edward Schmults. He ordered some revealing handwritten notes withheld from the Judiciary Committee staff, told subordinates he would let the committee know he had done so, then never did. His explanation is that he intended to but left the department before he got around to it; "that he approached the issue of document production in this case as he did in other cases, as essentially a matter for negotiation and compromise"; and that "in early negotiations over access to documents he never would tell congressional staffers what they could not have because that would merely provoke them."
Mr. Meese concludes: "the facts . . . may well be thought to show negligence on the part of Mr. Schmults," but not the "corrupt motivation or criminal intent," which is "a necessary element in any criminal prosecution." Maybe so -- and investigation by an independent counsel is an ordeal through which no one should be put unnecessarily. But these are close calls, and in this case Mr. Meese should have let someone else -- whose independence could not be called into question -- make them.