House Bank: No Fishing or Stonewalling

April 28, 1992

Last month, Attorney General William Barr announced that a special counsel would conduct a probe of the House of Representatives' bank. This removed the investigation from the control of Jay Stephens, the U.S. attorney for the District of Columbia. Mr. Stephens is well known for his sting, indictment and conviction of D.C. Mayor Marion Barry. Some critics of that operation thought Mr. Stephens, a Republican, may have been motivated in part by political considerations in going after the Democratic mayor. So in the unusual and explosive political circumstances involving the Democratic-controlled House bank, a special counsel is definitely indicated.

The statute establishing truly independent special counsels does not apply to investigations of congressional misdeeds. But Mr. Barr seems to have given his choice to conduct the bank probe, Malcolm Wilkey, a retired Republican federal judge for whom he once clerked, a free hand. He better have. If this investigation were ever exposed as a political fishing expedition manipulated in any way of, by or for the administration, it would backfire to the detriment of President Bush and the Justice Department.

Some Democrats suspect Mr. Wilkey of just that, now that he has subpoenaed all the House bank's records for the period under investigation. By "all," he means every check, deposit slip and monthly statement recorded by the bank. Thus the records -- and finances and life styles -- of numerous members of the House who have in no way been implicated in the bank scandals will potentially be subjected to outside scrutiny.

While we understand the concerns of representatives, we also know a prosecutor has to have control of a financial institution's records in such an inquiry. Mr. Wilkey says he will promptly separate out and return to the Ethics Committee records involving members not implicated in writing bad checks. As he should. House Republican Leader Bob Michel should take it upon himself to see this is done and that the entire investigation is conducted in a fair, professional and non-partisan way by his party's officials in the executive branch.

House speaker Tom Foley says he might resist subpoenas on the grounds there is a constitutional issue involved -- the complete separation of powers -- and that the House must refuse the executive branch's intrusion into legislative affairs for the good of the House of Representatives. Sound familiar? That's what Richard Nixon said (he was protecting future presidents) when he refused to turn over his tapes to the House Judiciary Committee. The Supreme Court said the Nixon argument rested on "an archaic view of the separation of powers as requiring three airtight departments of government" and rebuffed the president.

Mr. Foley would harm his party and his institution more by stonewalling or engaging in some limited modified hangout than he would by being forthright and forthcoming.

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