Independent counsel is on the way

February 18, 1994|By William Safire

THE government does a lousy job of investigating th government. That's why the Independent Counsel Reauthorization Act, passed by the Senate last year, finally was passed by the House last week. After conferees iron out minor differences in two weeks, the bill that President Clinton promised to sign will be on his desk.

Not a moment too soon. Consider how abuses of power are probed by insiders versus outsiders.

Last summer, a couple of Clinton State Department appointees wrongfully searched the files of their predecessors in the Bush administration; the subsequent dishing of dirt was done from the Washington private line of Warren Christopher's top aide, who was off in Singapore. State's inspector general sent a report to the secretary of state, who fired the culpable appointees, and a "prosecutive summary of potential Privacy Act violations" to Justice. Time-servers there gave the blatant, politically motivated intrusion a desultory look-see and declined to prosecute.

Contrast that inaction with the thorough probe undertaken by a truly independent counsel in a similar case. During the 1992 campaign, Bush appointees at State scandalously searched the passport files of candidate Bill Clinton and his mother. (A nice irony: One of these Bush perpetrators had her file invaded by her Clinton successor in 1993.)

An independent, court-appointed counsel took charge of the case to find out who committed the misdemeanor and if higher-ups lied in denying guilty knowledge. President Bush and former Secretary Baker were interviewed last year, and will soon be deposed under oath.

What will happen? My guess: a full report by April but no indictment. Not for lack of investigative zeal or the result of any political fix or unexpected innocence; but because the evidence on which the Clinton passport case is based was "tainted" from the start.

What tainted it was an entirely separate crime: unlawful eavesdropping. Mr. Baker's aides were overheard plotting to search Clinton files by members of the State Department's Operations Center -- who had no right to listen in, or to report to anybody about what they overheard while routing calls.

That opened a whole new can of worms. A third criminal investigation was launched: who at State violated the law by eavesdropping and "routinely" making notes of private conversations? Who on State's seventh floor condoned this sustained breach of Title III of the Privacy Act of 1968? And how FTC long had this illegal surveillance been going on?

Unfortunately for law enforcement, this matter was referred to the Clinton Criminal Division's Department of Public Integrity, on the Boulevard of Broken Cases. The probers never probed; an ambassador who had been in charge of the "watch center" was never examined. Justice mutters that the matter is still "under review," but nobody at State has been asked a question in six months.

In one sentence: The Bush State Department snoops who wrongfully searched the Clinton passport files will not be prosecuted because the snoops in the Operations Center were wrongfully listening in on their plot, while the Clinton State Department snoops who wrongfully rifled the files of one of those Bushie snoops will not be prosecuted because Clinton Justice goes easy on its own.

Whew! Privacy invaded all over the lot in the Department of State and nobody goes to the slammer: call it Foggy Bottom Tailhook.

But the message is clear: The only real probe of government was the independent probe. Next month, when the Independent Counsel Act becomes law again, Janet Reno should act in an evenhanded manner:

First, get a preliminary report from her aide John Hogan, who has been fiddling for eight months on Justice's mismanagement of Iraqgate, as the basis for a court request for independent counsel.

Second, get a preliminary report from Robert Fiske, her in-house, non-independent, untrusted-by-Republicans counsel on Whitewater, and use that to go to court for a truly independent counsel.

William Safire is a columnist for the New York Times.

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