Janet Reno's reticence

December 04, 1997

The following editorial appeared yesterday in the Orange County Register. MOST commentators seem to have forgotten the purpose of the independent counsel law, which permits the U.S. attorney general to ask a panel of judges to appoint an outside counsel to investigate and, if warranted, prosecute allegations of wrongdoing by high government officials, including the president and vice president.

The law was written in 1974, mainly as a response to President Richard Nixon's firing of special prosecutor Archibald Cox, who was looking into the Watergate break-in and cover-up.

The law was not designed to facilitate prosecution only if a questionable activity falls within the scope of a particular law, or only if there is clear evidence of a serious felony, as Attorney General Janet Reno has implied in public statements defending her decision Tuesday not to request an independent counsel.

The ostensible purpose of the law was to eliminate or at least to minimize the appearance of a conflict of interest between the attorney general and what he or she chooses to investigate, particularly if the target is the president. The attorney general serves at the president's pleasure. To ask such a person to decide whether or not to file charges against somebody who can fire her at a moment's notice is to place a significant burden on even the strongest attorney general.

To be sure, serious arguments questioning the constitutionality of the independent counsel statute have been made over the years, and serious questions have been raised about how it sometimes has been used. Imperfect as the law itself might be, however, its purpose was to lift a burden of potential conflict from appointed law enforcement officials, to relieve them of the suspicion that they are nothing more than an adjunct of a president's legal defense team.

When questions of Iran-Contra gun sales began to arise, for example, President Ronald Reagan asked Attorney General Ed Meese to request an independent counsel immediately, and he did. The request was made based upon fairly solid early evidence, but nowhere near as much activity as independent counsel Lawrence Walsh eventually uncovered.

Reno's record

As to Ms. Reno's record, she has sought four special prosecutors to investigate the administration and its members, including Whitewater, Agriculture secretary Mike Espy, Housing secretary Henry Cisneros and the late Commerce secretary Ron Brown. She is due to decide in January about a special counsel to probe campaign contributor Johnny Chung. And a Justice Department task force is looking into allegations of misdeeds surrounding Interior secretary Bruce Babbitt.

In other matters, though, she erred. She filed what turned out to be false charges against White House travel chief Billy Dale. She also unsuccessfully tried to block Paula Jones' lawsuit against the president, an effort unanimously rejected by the U.S. Supreme Court. Her actions in these matters and others caused some to say she is a shill for the White House, willing to stretch arcane lawyerly legerdemain to the limit.

The independent counsel law was intended to shield the attorney general from just such criticism.

Ms. Reno's decision on Tuesday apparently was guided less by concern about possible conflicts of interest, and more by the narrowly drawn question of evidence and past court decisions that could support a case against specific acts of telephone fund-raising on government property.

Had she initially drawn more broadly the boundaries of her campaign finance investigation, and counted more heavily the meaning of independent counsel law, a request for a fifth independent prosecutor would have been a more likely outcome this week.

Pub Date: 12/04/97

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