Behind the Reno Stonewall

...The Democrats had been hanging out there as the defense counsel for the White House, but now they were angry," says an aide to a committee Democrat...

...Objecting in particular to Justice's handling of matters relevant to his committee's work, including the immunity question, Thompson declared his "loss of confidence" in the department's ability to conduct a "credible" fundraising investigation...

...Reno offered her view of the law in the case of a covered person —the precise context in which the statute presumes a conflict of interest on the part of the attorney general...

...But it is the law right now, and the attorney general has chosen to make very strained legal interpretations that rule out almost any use of it...

...But by the end of November, she had rejected each of the requests for a fundraising counsel, leaving the investigation in the hands of a special task force she had put together weeks earlier...

...During the April 3o hearing, in a line of questioning from Senator Specter, Reno acknowledged that the FBI had withheld national security information from President Clinton because he and Vice President Gore are "potential subjects in a pending investigation...

...THE WHITEWATER PRECEDENT It is also possible that Clinton will simply tell Reno to seek a counsel...

...THEY SHOULD UNDERSTAND SHE'S UNLIKELY TO ASK FOR ONE UNTIL THE PRESIDENT SHE SERVES GIVES HER THE GO-AHEAD...

...But I don't get to decide these things, and if the president has a different view than I do, the president wins...

...Late August brought a new allegation of bribery: In an interview with NBC's Tom Brokaw, Johnny Chung, who gave $400,000 to the Democratic Party and visited the White House forty-nine times, said that an aide to then Energy Secretary Hazel O'Leary asked him last year to contribute $25,000 to a favorite charity in exchange for a meeting with the secretary...

...On the other hand, they have not exactly been outspoken in defense of the attorney general's positions...

...decides that further inquiry is warranted, the A.G...

...The idea that Reno would agree to such a "deal" seemed out of character for her, and the administration dismissed it out of hand...

...Your Principal is...

...Presuming a political conflict of interest in cases involving about seventy executive officials—chief among them, the pres32 October 1997 • The American Spectator 111E IMMUNITY BLOW-UP Wen in late July the Senate Governmental Affairs Committee voted to grant immunity from pros- ecution to five witnesses, it did so both despite and because of Justice Department objections...

...Reno has declined to add to that striking no-comment...

...There have been denials of wrongdoing from O'Leary and the Energy Department...

...Over the next few weeks, the committee found two additional Buddhist straw donors it wished to immunize, thus bringing to twenty the number of such witnesses...

...Another participant characterized the lawyers' answers as "I can't discuss the open, ongoing investigation...

...They could have discussed the issue without revealing any privileged material or any confidences, without going into what is in open investigative files...

...or if the leadership of both houses decided to deny Justice its annual appropriation until such time as Reno made such an application...

...The American Spectator • October 19 97 31 some White House aides turned up in stories about her future as anonymous sources, complaining that she was too independent, especially in the way she had administered the independent counsel statute...

...Even where she is clearly more liberal than Clinton—on criminal justice issues—and has been criticized for her liberalism by White House aides, Reno has generally gone Clinton's way...

...can be a fast track to the appointment of a counsel: Reagan subordinates Ray Donovan and Edwin Meese sped down this track...

...607(a), fundraising in government office buildings is a crime punishable by fine or imprisonment or both...

...Allegations against non-covered persons—whom the department described as "lower-ranking public officials, [Democratic National Committee] employees and contributors" — were then being handled by the task force made up of Justice lawyers and FBI agents, evidently without raising conflict of interest concerns...

...In the April 3o hearing, Thompson said that the issue was "who should make the decision as to what the law is...

...And for that reason they might be more easily rejected by the attorney general...

...It is fair to suppose that one of his purposes in making them was to maintain a united Democratic congressional front...

...THE LAW ACCORDING TO RENO Here are key points at issue: • In early March Vice President Gore, a covered person, admitted in a televised press conference to making phone calls from his office soliciting contributions to the Democratic Nation34 October 1997 • The American Spectator al Committee...

...Also, the task force career lawyers within the Public Integrity section of the criminal division have never been eager to invoke the discretionary provision...

...Reno's handling of the fundraising mess has renewed Republican suspicions that the department has undergone a Clintonian politicization from the very moment in early 1993 that Webster Hubbell went to work at Justice as its "liaison" to the White House...

...Justice officials emphatically deny that Reno, who has nursed a reputation for being incorruptible, would ever take orders from Bill Clinton or anyone else at the White House that she not ask for a fundraising counsel or back off her own investigation...

...On September 4, three of the nuns testified, telling Thompson's committee of money laundered through Buddhist clerics and the destruction of potentially damaging evidence...

...N The American Spectator • October 1997 29 self...

...On the fundraising matter, however, Reno says that no one at the White House, including the president, has told her what to do...

...Reno's response was, "I am just [not] going to throw out all that [executive-branch precedent] and let some independent counsel decide it...

...In her 1993 testimony in support of reauthorizing the statute, Reno said that the Iran-contra investigation "could not have been conducted under the supervision of the attorney general and concluded with any public confidence in its thoroughness or impartiality...

...In the view of some senators and their staffers, however, Justice had come to these conclusions more slowly than it should have...

...Reno did not significantly speak again to these issues until the spring when she responded to a formal request for a counsel from the Republican majority of the Senate Judiciary Committee, made by letter on March 13...

...She was following an executive-branch understanding of the law's reach that predated the Clinton administration, and there have been no prosecutions of soft-money fundraisigg in government office buildings...

...nervous about the stock market...

...In her letter to the Judiciary Committee, having noted her discretion to open a preliminary investigation of a specific, credible allegation against a non-covered person, she said she could not take this route unless "I find a conflict of interest of the sort contemplated by the Act...

...The text does not refer to actual or apparent conflicts of interest but to conflicts of interest, period, defined as "personal, financial, or political...

...Thompson adds that he is going "to give all that a chance to work...

...In putting forth her view of U.S.C...

...or of Charles Yah Lin Trie, Pauline Kanchanalak, and other non-covered persons accused of fundraising violations, not to mention non-covered White House aides involved in the fundraising activities, chief among them Harold Ickes...

...Gore aides say that he did not know any of the money he raised was in fact "hard...

...But what if the pressure is not that direct...

...Hatch says that a "weighty consideration" he could live with would be if Justice had pending 2 Here is a remote but tantalizing possibility: That the Justice Department is keeping the investigation in-house because the fundraising case mainly involves foreign threats and the President of the United States, though a subject of the investigation, has a constitutional duty higher than his own criminal investigation—that of ensuring the nation's security...

...Hatch called the substance of Reno's letter "vague and ambiguous at best, and, at times legally disingenuous" and said that her refusal "to do what the law permits or requires her to do frankly does not engender respect or admiration...

...Whether the attorney general is any closer to seeking an independent counsel has again become the question of the day in Washington...

...Reno has not explained what these "weighty considerations" or "factors" are, nor what "the national interest" encompasses...

...The question of where the money Gore solicited went—a factual one—required investigation, which by the end of summer has been answered not by Reno's task force, but by Bob Woodward...

...She says she has made purely legal calls and that she remains open to asking for a counsel...

...There's so much in [the department's] lap, and I don't see much indication that anything is happening...

...But there is no sentiment among congressional Republicans for bold moves like these...

...Did you know that if your funds are in the stock market, your principle is at risk...

...2 • Reno also stated in her letter that even if she were to conclude that the department's investigation posed an actual conflict, as she defines it, she would not invoke the discretionary provision of the statute without asking "whether under all the circumstances discretionary appointment of an independent counsel is appropriate...

...More to the point, there was the immediate prospect of yet another counsel, since Reno at the time was mulling requests for one to probe allegations involving Democratic fundraising on behalf of the Clinton-Gore campaign, whose details had only recently begun to emerge...

...there is a longstanding bias within the department to keep cases there...

...Early in 1997 Clinton picked up the phone and angrily complained to Senate minority leader Tom Daschle and other Senate Democrats about demands inside their party (by Sen...

...Where liberal appointees have left the department, decrying Clinton's "complete lack of principle," as one put it recently to Jeffrey Toobin of the New Yorker, Reno has hung in, willing to tack as Clinton desires...

...The immunity story began in early June when the committee indicated its intention to grant immunity to eighteen witnesses, all of them apparently straw donors—meaning they contributed to the DNC someone else's money, not their own, which is against the law...

...But this would be vital information, something worth knowing and evaluating...

...There can be little doubt that Reno would carry out such a command...

...30 October 1 9 97 The American Spectator Indeed, it is Reno who is the central figure in this ongoing story...

...In that case, of course, Attorney General Meese invoked the discretionary provision in seeking a counsel, having discerned a political conflict of interest if he were to investigate individuals close to the president...

...The botched briefing helped persuade committee Democrats to vote for the grants of immunity, thus producing more than the necessary majorities...

...Reno has not specifically answered this conflict question either...

...He regards her "weighty considerations/national interest" analysis as "another hoop she has to go through"—one that probably would never lead to the appointment of a counsel...

...Hatch has sharply objected to Reno's interpretation of the law, and indeed the better construction of the statute is his...

...They've rung down the curtain on whatever they're doing," says Thompson...

...Clinton would discuss these conversations, and the White House declined comment," reported Rogers...

...What would you say to: 12% Fixed Returns on a 12-month program...

...She explained: "Under the Act, I must conclude that there is a potential for an actual conflict of interest, rather than merely an appearance of a conflict of interest...

...607(a), Reno did not simply make it up...

...It's possible that Reno will decide to seek a counsel, but only if new information (that is "specific" and "credible") emerges suggesting that a covered person may have violated a law that without doubt can be enforced...

...An observer would be forgiven for suggesting that Bob Woodward be named to run the investigation, or even independent counsel...

...Hatch faults Reno for regarding the appointment of a fundraising counsel "as a narrow and technical legal question" when it is "an ethical one requiring sensitive judgment as to what is necessary to ensure the public's confidence...

...See "The Immunity Blow-Up," page 33...

...Still, the independent counsel law being what it is, there is a reasonable question as to whether she should have made this call...

...You could have had someone come in and make a legal analysis of whether or not these things constitute a violation," says Thompson...

...It was then that Republicans began to imagine, as one GOP congressional aide says, that "there was a deal" — in crudest terms, that Reno had been allowed to keep her job on the condition that she not ask for a fundraising counsel...

...As for seeking a counsel to probe these activities on a non-covered person basis, the chances of that happening are very low indeed, and not just because Reno's approach to using the law on such a basis makes its exercise all but impossible...

...You're accusing [her] of playing politics...

...The Judiciary Committee Republicans asked in their letter to Reno whether "the close coordination by the White House over the raising and spending of `soft'...DNC funds violated federal election law" since it was used for hard-money purposes—to underwrite the Clinton-Gore campaign...

...Says Specter, "She may be between the rock and the hard place...

...But not that many people are potential subjects of the fundraising investigation...

...I am no great fan of the statute," says Orrin Hatch...

...Later Thompson told me, "With all the controversy surrounding this, with all of the perspectives that are there, she should not be making that legal determination...

...Appearing on NBC's "Meet the Press," majority leader Trent Lott no longer could contain himTERRY EASTLAND, Justice Department spokesman from 1985 to 1988, is author of Ethics, Politics and the Independent Counsel (1989), an editor of Forbes Digital Tool, and a fellow at the Ethics and Public Policy Center...

...the latter did not think the charge of lying leveled against Henry Cisnernos required an independent counsel, while the bureau disagreed, ultimately prevailing with Reno...

...That Reno has steadily executed the president's desires may seem surprising, since she is not close to Clinton...

...There is a wild card: The task force also includes FBI agents who report to Louis Freeh, and recently there again have been rumblings that Freeh thinks the fundraising case should be one way or another handed off to an independent counsel...

...And so they are on the verge of concluding that Reno has simply been carrying his water...

...Asked this summer by a correspondent for the New York Times Sunday magazine whether she still supported the law as written, Reno answered, "I think it's best while this issue is pending not to comment...

...The ability of the Justice Department to actually investigate an allegation during the p.i...

...Thus, if there were to be calls for a fundraising counsel, they would have to come from Republicans only...

...Reno declined to relate what was said in their session, leaving that to him...

...Many people may be 1 Specter said, "There is a real question about the authority of anybody, including the attorney general or the FBI director, to deny the president that information"—a point on which, constitutionally speaking, he is right...

...As Reno herself said, in 1993 testimony supporting the most recent reauthorization, "It is absolutely essential for the public to have confidence in the system, and you cannot do that when there is conflict or an appearance of conflict in the person who is, in effect, the chief prosecutor....The [statute] was designed to avoid even the appearance of impropriety in the consideration of allegations of misconduct by high-level executive branch officials and to prevent...

...to ask for a counsel upon determining that a Justice Department investigation of someone not covered by the statute "may result in a personal, financial, or political conflict of interest...

...must ask a special panel of judges to name a counsel (of their choosing) to take on the matter, and is explicitly barred from failing to seek a counsel on grounds of intent unless there is "clear and compelling evidence that the person lacked [the] state of mind required for the violation of criminal law...

...Still, though it is not widely recognized, she has largely deferred to Clinton on most issues during her long tenure as the nation's 78th attorney general...

...21% Fixed Returns on an 18-month program...

...The Republicans said a counsel was necessary in order to resolve "disputed factual, legal and state-of-mind determinations...

...A preliminary investigation seemed compelled...

...Reno sat before Hatch's committee on April 30, but her answers did little to satisfy Senate Republicans...

...White House aides have also expressed to reporters their concerns about the fairness of an outside investigation...

...Reno's emphasis...

...The department's position was important within the committee: Because committee rules require a two-thirds majority for grants of immunity, the majority Republicans needed at least two Democratic votes...

...On July 22, the day before the committee voted, it met privately with department lawyers sent in response to Thompson's request for explanation of Justice's opposition...

...If by the end of the ninety days the A.G...

...In determining whether there are such grounds for a p.i...

...The letter left open whether Reno should seek a counsel on a "covered" or "non-covered" person analysis, noting that covered persons were involved in the suspicious activities...

...In later asking the judges to refer to the Whitewater counsel allegations against other non-covered persons (Anthony Marceca and Bernard Nussbaum), Reno offered the same justification—that a department investigation of these individuals "would present a political conflict of interest...

...Its powers in this regard are political —with, as Thompson puts it, "a small p." These powers have been on display in the criticisms of Reno and the department offered by Lott, Thompson, Hatch, and other Republicans...

...For most of the year Senate and House Republicans have been asking Reno to request a counsel—without success...

...Senators speak on background about their belief that lightening up on Reno, who they think may become more willing to defend even a wrong position if she is attacked, may be the best strategy...

...Trent Lott took note of the anonymous campaign against Reno, calling it a "very bad signal...

...Because the purpose of the statute is to ensure against real or apparent conflicts more broadly—not just those presumed to arise from investigations of covered persons—it also permits the A.G...

...Lott's sharp comments punctuated those made days earlier by Fred Thompson, chairman of the Governmental Affairs Committee, and by Orrin Hatch, chairman of the Judiciary Committee, which has oversight responsibility for the Justice Department...

...Fifteen of the eighteen were Buddhist clerics who had contributed funds to the DNC at several fundraisers, including the temple gathering in Hacienda Heights, California, organized by John Huang and featuring Vice President Al Gore...

...Reno disagrees that she is being inconsistent, but her response is at a high level of generality: "In each of the [discretionary] cases," she told the Senate Judiciary Committee, "I considered the particular factual context in which the allegations against those persons arose and the history of the matter...

...The leadership's stepped-up criticism of Reno's handling of the fundraising allegations quickly followed, as did renewed demands for an independent counsel...

...The American Spectator • October 1997 Justice registered its objections to immunity for these five early in the summer and did not waver...

...Republican frustration with Reno's handling of the fundraising allegations is manifesting itself in odd ways...

...Reno is the only other attorney general to have invoked the discretionary provision—at least three times —and each time she did so for the same reason as Meese, to prevent a political conflict of interest...

...receives "information sufficient to constitute grounds to investigate" whether a covered person "may have violated" federal criminal law, the A.G...

...considered a potential subject of an investigation...

...Orrin Hatch has wanted to know why, for example, there is no potential conflict of interest facing the department in its investigation of John Huang, a non-covered person who is (specifically and credibly) accused of breaking laws in his DNC fundraising efforts...

...We hope people will realize," says Brandenburg, "that this is a single incident and that it is not indicative of a larger problem...

...It is substantial, if we ever decide to use it...

...04 Last Call...

...Having resisted calls from the media and Congress to use her own authority as attorney general and appoint an outside attorney—as was done in Watergate atergateRen Reno immediately did as the president said and appointed Robert Fiske (who served as the Whitewater counsel until the statute was renewed in June, whereupon Reno applied for a court-appointed counsel to take his place...

...But for that to happen, it is clear that the department has a lot of work ahead of it—both in investigating allegations and also in explaining its work to the public...

...WAS THERE A DEAL...

...Much of his legacy will turn on Gore's election in z000, and an independent counsel unleashed on Gore and the DNC could severely weaken those presidential prospects...

...Both William Barr, Reno's immediate predecessor, and Philip Heymann, Reno's first deputy attorney general and now a professor at Harvard Law School, have said that Reno should by now have asked for a fundraising counsel...

...of a specific, credible allegation on grounds that the person lacked the state of mind necessary to commit the crime...

...Had the department explained its concerns more skillfully, the committee might have voted differently...

...The p.i...

...She called him up," says Bert Brandenburg, the department's chief spokesman...

...The Wall Street Journal's David Rogers heard about the calls and wrote a story...

...That was a dubious assumption, as any expert on political fundraising would attest...

...Of course, there is a sense in which Justice should be political: where lawful and appropriate, it should reflect the political views ofthe president, for otherwise elections would be meaningless...

...She said she would have "to weigh all the factors and determine whether appointment of an independent counsel would best serve the national interest...

...To many of them, it seemed that despite the new information Reno was indeed doing everything she could to keep the fundraising investigation inside the department and out of the hands of an independent counsel...

...Reno suggested that being "a potential subject of an investigation" is not a big deal: It "has a very broad scope," she told Specter...

...It has not helped Reno that she serves at the pleasure of a president of multiple ethical failures who has minimized the possibility of any wrongdoing in the fundraising efforts that benefited his campaign and instead has emphasized the need for campaign finance reform...

...For example, the previous two attorneys general, William Barr and Dick Thornburgh, appointed outside attorneys to handle allegations against non-covered persons that otherwise might have enmeshed the department in conflicts of interest...

...What Reno has explained, to a greater extent than any previous attorney general, is her understanding of the discretionary provision of the independent counsel law...

...The committee was being dealt with hamhandedly, insensitively, with a lack of respect," says Thompson...

...Fully Secured and • I.R.A...

...But in two separate sessions with reporters at the end of 1996, Clinton said that the costs of the law now outweighed its benefits...

...REPUBLICANS SAY ATTORNEY GENERAL JANET RENO IS PLAYING POLITICS WHEN SHE REFUSES TO ASK FOR AN INDEPENDENT COUNSEL TO PROBE THE CLINTON MONEY MACHINE...

...So far, subpoenas have been issued, a grand jury has been impaneled, and, according to Thompson, some "proffers"—requests for immunity in exchange for evidence—are currently being weighed by the task force, now staffed by ninety full-time lawyers and investigators...

...Under the independent counsel law, Reno must respond to this request within thirty days...

...None of the senators called by Mr...

...To Republicans, Reno's interpretation is not only "mistakenly narrow," as Hatch puts it, but seems politically driven, since it sharply limits her resort to the discretionary provision in the case at hand—and thus the appointment of a counsel that the president does not want...

...It strains credulity to think the statute would confine uses of the discretionary provision only to those cases that present what she calls potential for an actual conflict...

...attorneys—a move within the president's authority but plainly dumb from a managerial point of view...

...But Hatch is skeptical that this is what Reno has in mind...

...Daniel Patrick Moynihan, for example) for a fundraising counsel...

...They believe she long ago should have asked for an independent counsel...

...But so far, at least, the investigation into Clinton's re-election fundraising seems to be going about as well as the man in the Oval Office could have hoped...

...Unable or unwilling to apply at least equal and opposite pressure, Hatch says, 'We're left in the position of relying on the Justice Department to do a good job...

...Laws possibly broken include those forbidding bribery, knowingly making a contribution with someone else's money, soliciting contributions from foreign nationals, and filing false reports with the Federal Election Commission...

...As Benjamin Wittes wrote in Legal Times at the end of last year, "Her first four years have been marked less by her urging dramatic initiatives on the president than by her steady service in executing his desires—even when they don't dovetail with her own...

...Not that she is likely to: Discretion is discretion, which means it is up to the person in whom it is confided to define...

...Indeed, one of her critics on this front, Dick Morris, though noting "a constant push-pull" between Reno and the White House on criminal justice matters during the first term, told me that "we usually got out of them what we wanted to get...

...Nothing she has done or said since then has changed this perception...

...I don't see any pressure being applied, any indictments...

...What's more, she had "not initiated a preliminary investigation," nor did she plan to...

...By early March, of course, more details about the Clinton money machine had been reported in news accounts, and the Republicans' request, more detailed than those received by Reno in the fall, took note of the new developments...

...Clinton did that in January 1994, in Whitewater, when the independent counsel statute had lapsed and was awaiting reauthorization...

...It is also possible that if the Justice Department continues to handle most or all of the fundraising matters, it will do so in a way that wins public respect and admiration...

...Under U.S.C...

...Meanwhile, the other pressures on Reno not to ask for a counsel show no signs of abating...

...It was over the remaining five witnesses that disagreement arose...

...84 October 1997 ?The American Spectator Of course, it is highly doubtful that Clinton will change his mind and ask Reno to seek a fundraising counsel...

...Not only has she received and acted on such an order before, in Whitewater, but she has seldom failed to execute Clinton's desires on other matters...

...In late July, Senate Republicans turned sharply critical...

...As Gore has said, he ' asked people to contribute to our re-election...

...Under the independent counsel law, Reno may not take into account Gore's state of mind in deciding whether she should open a preliminary investigation...

...But Reno did not open one...

...To say Justice is being politicized, however, is to make the stronger claim that the department is doing the president's bidding regardless of the law...

...There is enough in the record to suggest that Clinton has worked the situation in order to reduce the possibility that the attorney general will seek the appointment of a fundraising counsel...

...And the distinction Reno tries to draw between an actual and an apparent conflict is not always so easy to make, especially in the context of a political conflict of interest, where, as the saying goes, appearance can be reality...

...By late summer Justice had told the committee it had no objections to immunity in fifteen of the cases...

...They suspect political factors warped the decision-making...

...There would not necessarily be anything wrong if Reno had changed her mind about the law (Justice Antonin Scalia has elaborated the compelling and true case against it) and tried to reshape her enforcement of it accordingly...

...33 ident and the vice president—the statute sets forth procedures by which the attorney general must handle allegations involving these "covered" persons...

...A TOUGH ACT TO SWALLOW Enacted in 1978 as part of the Ethics in Government Act, and reauthorized in 1982, 1987, and 1994, the independent counsel law presumes that the attorney general should not be trusted to carry out criminal investigations of high-ranking executive officials, including the president...

...the fifth was a northern Virginia woman of limited means apparently used by Charlie Trie to contribute $20,500 to the DNC and to various Democratic candidates...

...Specifically, it was said that Reno had sought the appointment of too many counsels (four, a first-term record) and that she had agreed too often (five times at least) to expansions of the jurisdiction of the prosecutor of most concern to the Clintons, Whitewater counsel Kenneth Starr...

...Privately, Clinton went further...

...It's also possible that committee chairman Fred Thompson would not have reacted as negatively as he did when he declared a lack of confidence in Justice's ability to investigate the fundraising allegations...

...Reno has not answered Hatch in any particular case...

...Also on September 3, the Republicans who control the House Judiciary Committee wrote Attorney General Janet Reno asking her to seek the appointment of an independent counsel to investigate allegations of fundraising violations on the part of not only Gore but President Clinton and others...

...What would a decline in the stock market do to your stocks, mutual funds and retirement accounts...

...607(a) applies to soft-money contributions, for example, she could have appointed an outside lawyer or a panel of outside lawyers to advise her...

...New Jersey Democrat Robert Torricelli declared that the Justice Department had "complicated the work of this committee...

...This would be a remarkable situation—the suspect or even the criminal who must investigate his own case because it is part of a larger matter that he is duty-bound, as president, to handle...

...Here, though, there is a stone wall...

...In the committee's view, all twenty were minor figures in the fundraising story...

...Reno disagreed, saying that federal election law "does not prohibit the coordination of fundraising or expenditures between a party and its candidates for office...

...Senate Republicans—and their complaints are likely to be echoed this fall by House Republicans when they hold their fundraising hearings—have turned sharply critical of Reno and her department because of the way she has handled the fundraising allegations...

...Typically it bases immunity decisions on a larger body of information than Congress does in its investigations — a a process that often requires more time...

...Under the independent counsel statute, she alone has the authority to decide whether a case should be routed outside the Justice Depai Latent to a counsel...

...DOES SHE NOW OPPOSE THE LAW...

...Republicans once were among the leading opponents of the independent counsel law but are now pressing for its use almost as vigorously as their Democratic colleagues did when Ronald Reagan and George Bush sat at the other end of Pennsylvania Avenue...

...But Reno would not have to ask for a counsel if she decided that during the p.i...

...On the other hand, Janet Reno, who has been more outspoken in support of the statute than any of her predecessors and—if you count both requests for an independent counsel and requests for additions to an existing counsel's jurisdiction—has used the law more often than any of them did, is now refusing to invoke the statute in a case where to many its use seems in order...

...Almost a year ago, soon after Clinton was re-elected, Reno indicated her interest in staying on as attorney general...

...MIB Financial 1-800-575-1566 A full service, asset growth and protection company We have something with STOCK MARKET RETURNS— without STOCK MARKET RISKS...

...If we are going to get rid of it, let's get rid of it...

...Certainly, a substantial degree of how Reno operates is that she works for the president," her counselor, Kent Markus, told Ben Wittes of Legal Times last December...

...There is another possibility—that the story here really is about the politicization of the Justice Department...

...Anything she might say on that," says her spokesman Bert Brandenburg, "will get used and twisted in some way...

...Reno before has had to face a conflict between the bureau and Public Integrity...

...Almost...

...Even under her definition of a conflict, it appears that the department's investigation has faced one already...

...It might seem that this was an odd complaint, given that the administration had supported the independent counsel law and it was merely Reno's job to enforce it...

...Thus, when the A.G...

...36 October 1997 • The American Spectator indictments the referral of which to an independent counsel would unduly slow down a criminal investigation...

...Like most Democrats, Clinton had championed the statute when Republicans occupied the White House, calling during the 1992 campaign, in fact, for an independent counsel to investigate "Iraqgate...

...Not incidentally, on the two main occasions that the discretionary provision has been used?in Iran-contra and Whitewater—the calls were made quickly by those in political positions, not at the end of 9o-day preliminary investigations conducted by Public Integrity...

...In back-grounding reporters, political appointees at Justice have offered their belief that an in-house investigation of the fundraising matters will prove far more impartial than an independent counsel probe, which they think could be politicized...

...Even after four years, Clinton does not have a close relationship with Reno...

...But in part because of the department's view, none of the committee Democrats was willing at this stage to approve the five grants...

...This was how Lawrence Walsh became Iran-contra independent counsel...

...It was a textbook case of doing a meeting the wrong way," says Bert Brandenburg, head of public affairs...

...Lott repeated: "General Stonewall Reno...

...Reno's response did not engage the issue of a possible criminal charade—arguably the most important arising from the information about the Clinton money machine that has emerged so far...

...so did, during the first Clinton term, Michael Espy and Ron Brown...

...Justice is looking at the matter, but even if the probe leads to an independent counsel it's unlikely that his jurisdiction would be expanded beyond the narrow situation involving O'Leary to include the White House/DNC activities...

...may not convene grand juries, plea bargain, grant immunity, or issue subpoenas...

...The phone calls Gore made (at least eighty-six, using a Clinton-Gore campaign credit card) were part of a huge effort run out of the White House through the DNC in which soft money (and apparently hard money) was raised for the purpose of re-electing the president and the vice president...

...The problem that a lot of us have," says Fred Thompson, "is the apparent inconsistency...

...Whenever I meet with her," says The American Spectator • October 1997 Sen...

...Too, it was Reno who in 1994 personally executed the president's decision, following sharp congressional criticism, to reverse the government's liberal-leaning position in a Supreme Court case involving enforcement of a child pornography law—she alone signed the new brief, a highly unusual development...

...Reno treated matters related to these conclusions in a ten-page missive that drew a strong response the next day from Hatch, who was disappointed that Reno had not even opened a preliminary investigation...

...Money is the only real leverage we have," says Thompson...

...Adding to his pique was the Justice Department's opposition to granting immunity from prosecution to five potential Senate witnesses, including four nuns involved in the infamous 1996 fundraiser at a Buddhist Temple attended by Vice President Gore, all of them unlikely targets of prosecution...

...Rather, he told Lisa Myers, it had that "appearance...

...Reno said this law applies only to so-called "hard-money" contributions (those made to individual candidates), not "soft-money" contributions (those made to political parties for general purposes, such as get-out-the-vote drives and voter registration...

...This suspicion intensified when Clinton publicly criticized the independent counsel law and then actually communicated his opposition to a fundraising counsel to Senate Democrats...

...But many in the White House had not liked the consequences of having so many counsels probing so many of their friends...

...Still, there may be a benign explanation for Justice's "slow" pace: Precisely because it has the authority to prosecute, it can't afford to prematurely compromise that authority...

...Four were straw-donor nuns from the Buddhist temple event attended by Gore...

...To Republicans, the task force serves suspiciously to deny the attorney general the ability to answer questions directly bearing on who should be handling the fundraising matters...

...They also know that President Clinton has not wanted a counsel...

...If you can't give the president information because he's a subject of the investigation," he told me, "how in the world can his attorney general conduct the investigation...

...Thus, in 1994, in asking for a Whitewater counsel, Reno told the judges that a Justice Department investigation of James McDougal and others associated with the Clintons (all of them non-covered persons) "would present a political conflict of interest...

...Members of Congress and Democratic aides, however, confirmed the timing and substance of the calls...

...Then there is the legislative history...

...S.E.P...

...Clinton remarked only that it was "a wonderful meeting...

...When asked for evidence of politicization in Justice's handling of the fundraising allegations, Republicans cannot produce any "smoking guns," instead citing—as Lott did on "Meet the Press"—how it "appears...

...That was on the minds of Senate Republicans as the nation's capital shut down for its annual late summer siesta...

...Here Reno apparently assumed that the money Gore solicited went entirely into soft-money accounts, as he and his allies maintained...

...You can't judge a book by its cover, nor an investigation merely by what's outwardly known...

...It did not help that one of the Justice lawyers had been on the job for one day and was notably underinformed...

...And she reports that her task force learned this information at the same time and in the same way she did...

...In July, for example, Arlen Specter went so far as to suggest "going to court to have an independent counsel appointed over the objections of the attorney general" — something the statute does not provide for and which would be unconstitutional besides...

...Call 1-800-575-1566 to find out what your stock broker doesn't want you to know...

...according to the paperback edition of The Choice by Bob Woodward, Clinton, in his post-election meeting with Bob Dole, told the senator that he had been right to oppose the independent counsel law, while he himself had been wrong to support it...

...The early September news of Gore's hard-money solicitations could lead to the naming of a counsel charged with a broad jurisdiction, since it is well established that the vice president was at the epicenter of the Clinton money machine...

...Myers pressed: "On what grounds...

...Also, Reno on her own authority could have named an outside lawyer to handle allegations involving non-covered persons...

...Soliciting this kind of money from a federal office could be a crime, and at day's end the Justice Department announced a 3o-day review of Gore's solicitations—which could result in the appointment of an independent counsel...

...So did Jimmy Carter's first attorney general, Griffin Bell...

...They just lacked skill in dealing with the basic institution you're supposed to be dealing with, and that is the Congress of the United States...

...They felt they hadn't been told a straight story...

...is limited to asking only whether the information is specific and credible, and may not decline to open a p.i...

...And in meeting this duty she, like her predecessors, is necessarily limited in what she can publicly say...

...But that did not allay the GOP suspicion that, given the circumstances under which she had kept her job, she would do all she could to avoid seeking a counsel...

...But Thompson, like other leading Senate Republicans, remains skeptical...

...While the calls by Hatch and his GOP colleagues for a counsel have been emphatically made, it is possible that Reno could have made the same bottom-line decision she did—against seeking a counsel —but in a way that blunted this criticism of her as a legalistic attorney general who fails to understand her ethical obligations...

...It was clear that it would be worthwhile to help fortify the relationship...

...Her decisions, and her explanations, or lack thereof, seem instead to be those of an attorney general who has changed her mind about the wisdom of the statute, but who will not admit that fact, and who will now invoke it only if its "mandatory" use (in the case of covered persons) is absolutely compelled, though she will not say this either, since she has invoked the discretionary provision in previous cases...

...Markus paraphrased Reno's own vision of her role: "My job is to give the very best advice I can with the very best information I can...

...On the key matter of whether U.S.C...

...October 3 is thus a date worth keeping in mind: Reno's reply will almost certainly report the results of her Gore review...

...Basically, the letter argued that a Justice investigation into possible fundraising violations would be ensnared in real and apparent conflicts of interest since it was now clear that "officials at the highest level of the White House" had been involved "in formulating, coordinating, and implementing the DNC's fundraising efforts during the 1996 campaign...

...But Are you like most people...

...And only now is the department getting around to looking at what Bob Woodward reported on September 3. Remarkably, Reno says the first she knew about the hard-money solicited by Gore "was when I saw the article in the Washington Post...

...Chung wrote the check, someone collected it from Chung at his Washington apartment, and it was duly cashed...

...Meanwhile, outside of Moynihan and one or two of his colleagues, Senate Democrats — faithful to the president's demand—have not been asking for a counsel...

...Officials at Justice don't exactly defend their effort...

...must open a "preliminary investigation" lasting no more than ninety days...

...The story of tension mounting between the Republican Congress and the Clinton Justice Department has evident ironies...

...General Stonewall Reno" he called her at one point...

...The Senate report on the law as first enacted in 1978 states, 'The appearance of conflict is just as dangerous to public confidence in the administration of justice as true conflict itself...

...No indictments of those involved in the suspicious activities of 1996 are rumored, key figures like Charlie Trie have fled the country, and perhaps most significantly, the department has cut the legal issues in ways that mean the investigation will not creep very far into the White House...

...She was barely in her job in 1993 when she and Webb Hubbell carried out the "joint decision" between Justice and the White House to fire all ninety-four U.S...

...WHAT CAN REPUBLICANS DO...

...Qualified Maturity dates may vary...

...Because this lawyer does not owe his job to the president, he or she will—according to the theory behind the law—not be burdened by a political conflict of interest and thus can carry out an investigation the public will perceive as credible...

...Specter perceived that the FBI was in a bind since it must tell the president any national security information that he requests yet it must also conduct a criminal investigation potentially including the president that this information bears on...

...In April, however, as a result of Reno's legal interpretation and her failure to pursue the facts, Gore was off the independent counsel hook...

...There have been three plea bargains—but all three involve contributions in the 1994 congressional election cycle...

...Our sense was that they could have been more specific," says one Senate staffer who attended the meeting...

...RENO ON THE SPOT Clinton did not know Reno before selecting her as attorney general in 1993...

...Indeed, just the opposite is true...

...But Reno was concerned enough about her standing on Capitol Hill that she asked Thompson for a meeting at the end of July...

...So on July zo the Governmental Affairs Committee consulted with Justice on immunity for these twenty witnesses...

...While Justice often raises objections to such congressional grants of immunity, it seemed to many committee members that the depat tinent might not object in these cases, since it normally prefers to target bigger fish...

...Reno did not regard what Specter saw as a conflict, though in effect she conceded a difficulty of some kind when she said, "I believe we are keeping the White House fully informed, consistent with the needs of the criminal investigation...

...Here she is limited in what she can say: The allegations against such persons are being probed by her task force, and under department policy she cannot discuss an ongoing investigation, which she might have to do if she were to explain why her probe of Huang, for example, does not present a conflict...

...But decisions Reno has made during the past year, and explanations she has offered (or not offered) of her positions, have opened her to more than the usual criticism an attorney general in her situation faces...

...In declining to invoke the discretionary provision of the statute, Reno said that the department's investigation of criminal allegations involving non-covered persons did not pose any conflicts of interest that might lead her to ask for a counsel...

...There is ample departmental precedent for dealing with exceptional cases in this way...

...Clinton could not have wanted his phone calls reported—or perhaps he did...

...I appreciated the fact that we were finally able to get her attention," says Thompson, "and that she brought her top people down here to see me and they expressed a desire to work better together and to be more responsive in the future...

...What if Clinton, a wily politician after all, has realized that while Reno cannot be pushed, she is a team player inclined to do what he wants...

...Evidently, if there is this kind of fundraising end-run, it is not illegal, according to the Justice Department...

...Meanwhile, Hatch bluntly said that the department is "becoming more and more politicized...

...Neither in her responses to the Judiciary Committee nor at any time since has Reno explained why what others reasonably suppose are conflicts are not really conflicts...

...Last fall, when Reno turned down initial requests for a fundraising counsel, she explained she could not seek a counsel since the statutory criteria had not been met—meaning there were no specific, credible allegations of wrongdoing on the part of a covered person that could trigger application for a counsel...

...Justice officials like to remind skeptics that there were those who doubted whether the department would prosecute Dan Rostenkowski, yet it put him in prison...

...She went on: "[T]here would be a number of weighty considerations that I would have to consider [sic] in determining whether to exercise my discretion to seek an independent counsel...

...Yes, STOCK MARKET RETURNS without STOCK MARKET RISKS...

...When a congressional committee wants to immunize a witness, it will customarily seek the view of the Justice Department, which alone has the authority to prosecute...

...And they would be aggressively on display if, say, the Senate leadership decided to make confirmation of nominees to the Justice Department or to the federal bench contingent on a decision by Reno to apply for a fundraising counsel...

...In her April 4 letter to Judiciary Chairman Hatch, Reno said this: Notwithstanding the new information of recent months, she still had "no specific, credible evidence that any covered White House official may have committed a crime," and she had "not concluded that any conflict of interest would ensue from our vigorous and thorough investigation" of allegations against non-covered persons...

...Certainly by this point she was aware of the president's view that the independent counsel law should not be invoked in the case at hand...

...And it confirmed to Republicans that the department was simply trying to protect Gore from the four nuns' testimony...

...But these lawyers offered nothing more than what the department had told the press—immunity could adversely affect the department's own investigation...

...T.E...

...Following a White House meeting with Reno about her future, Clinton announced in mid-December that she would remain as attorney general...

...Arlen Specter, a member of both Judiciary and Governmental Affairs, "she says I am interested in your views...

...I didn't think it was a tough call," says Thompson, a former federal prosecutor...

...In failing to emphasize the need to overcome real or apparent conflicts of interest in circumstances where she is not compelled by law to ask for a counsel, Reno seems to have broken from the position she took in 1993 when she so enthusiastically testified in favor of the law and its underlying purposes...

...But given her view of her job, it shouldn't be...

...Especially if there is a dramatic public split between Freeh and Reno over whether she should seek a counsel, the pressure on the attorney general to do so could prove substantial...

...Is there more here than an appearance problem...

...This reticence offended committee Democrats hoping for something more specific to justify their planned votes against immunity...

...Senate Republicans have asked for further explanation of Reno's position, but to no avail...

...is sharply constrained: The A.G...

...The state attorney for Dade County, Florida, she was his third choice for the job (after Zoe Baird and Kimba Wood...

...Seeking clarification, NBC's Lisa Myers asked: "What did you just call the attorney general...

...The oddity of Reno's interpretation of "conflict of interest" stems from the fact that the statute presumes a conflict with respect to investigations of covered persons and any such conflict may be actual or apparent...

...Reno, The American Spectator • October 19 9 7 he adds, will wait until Congress considers renewing the statute—the current law expires on June 30, 1999 —to reveal her views...

...that there was "clear and convincing evidence" Gore lacked the state of mind required for a criminal violation —an argument Gore's lawyers already have been making...

...She would hang up if they ever did that," says Brandenburg...

...In pressing for response on this front, Hatch and his colleagues have specifically asked why an investigation of Huang and others associated with Bill Clinton and Al Gore in fundraising for their campaign would not also present "a political con35 flict of interest...

...The conflict over the appointment of a counsel has been kept—doubtless as the president hoped it would be—between Republicans and Reno...

...This would be a situation no president, much less the attorney general, likely would speak to until events compelled him to do so...

...The truth is that Congress has no legal authority to compel the attorney general to hand any part of the fundraising mess to an independent counsel...

...actual or perceived conflicts of interest...

...Lott's central complaint was that Reno had not asked for an independent counsel to investigate the fundraising allegations involving the White House even though, in his view, "the [statutory] criteria have been met for that...

...as it is dubbed by law enforcement officials), the A.G...

...It remains possible that Reno will finally decide to ask for an independent counsel...

...Not even the Democrats on the Senate committee probing the fundraising mess could agree with Justice, Lott added, observing that the committee had voted earlier in the week by 15-1 and 13-3 to override the department's objections and vote for immunity anyway...

...Lott declined, however, to say that Reno's handling of these matters of obvious White House concern was politically driven...

...So (once again) (Continued on page 84) 37 Eastland (Continued from page 30 it would appear that one is necessary...

...With No Market Risk...

...The statute seeks to remove these investigations from the control of the attorney general and hand them off to a court-appointed private attorney...

...Specter and other Republicans are amazed that Reno is unable to discern even the potential for a conflict in the department's handling of its duties...

...And then it goes into the deep hole of Calcutta...

...REND STONEWALL BY TERRY EASTLAND 0 n September 3 the Washington Post's Bob Woodward reported that $120,000 of the campaign contributions solicited by Vice President Al Gore by phone from his office wound up in "hard money" accounts subject to federal election law...

...The first instance of this so-called discretionary use of the law came in December 1986, when Meese asked for a counsel to probe allegations against Oliver North, a non-covered person...

...I want to give this more time," says one Republican senator...