Counsel Law Is Tied Up in Congressional Tug of War

The independent counsel law, which was supposed to separate politics from law in matters involving the president and his top aides, instead has become the focus of a highly partisan political battle.

Republicans on Capitol Hill are demanding that Atty. Gen. Janet Reno withdraw from the investigation of Democratic fund-raising and appoint an outside prosecutor.

“There are enough stories, enough allegations and enough of an appearance of a conflict of interest” to warrant the naming of an independent counsel, Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) said Thursday.

All 10 Republicans on his committee signed a letter to Reno making a “formal request” for a special investigator.

“Recent developments . . . have persuaded us that such an appointment is now necessary,” the letter said. It pointed to Vice President Al Gore’s admission that he made fund-raising calls from the White House and the revelation that Margaret Williams, a top aide to First Lady Hillary Rodham Clinton, accepted a $50,000 donation check in the White House. The check was passed on to the Democratic National Committee.

Democrats on the Judiciary Committee refused to sign the letter and accused the Republicans of waging “merely another partisan attack on the president.”

In their own letter to Reno, six Senate Democrats accused Hatch and his GOP colleagues of “attempting politically to influence a decision by the attorney general.”

The increasingly partisan debate over the issue is likely to escalate today, when Senate Majority Leader Trent Lott (R-Miss.) brings up a nonbinding resolution calling for the appointment of an independent counsel.

As with House and Senate investigations into fund-raising, the two parties differ not only on the need for an independent counsel but also on what should be investigated.

Republicans say an outside counsel should examine the fund-raising practices of the Clinton-Gore campaign and the Democratic National Committee, while Democrats say an independent counsel, if named, also should examine Republican money-raising practices.

The independent counsel provisions, like the ethics committees in Congress, were designed to remove politics from investigations of the country’s highest officials. By that standard, they largely have failed.

During the 1980s, when the Republicans controlled the White House, Democrats pressed repeatedly for independent counsels to look into perceived wrongdoing by officials under Presidents Reagan and Bush.

Republicans railed bitterly about the cost and endless nature of these inquiries, particularly the Iran-Contra investigation, which stretched from 1986 to 1993 and cost taxpayers $35 million. One Reagan administration investigation, involving the Housing and Urban Development Department, continues today.

Back then, Democrats agreed that the inquiries were costly and time-consuming but argued that they were needed to preserve the public’s confidence in the integrity of the executive branch.

Now the tables are turned, with Democrats controlling the executive branch and the Republicans steering Congress. Now Democrats are branding as political sniping the repeated calls for an independent counsel, while Republicans are saying that the public’s trust is at stake.

“The appointment of an independent counsel is required to ensure public confidence in the integrity of the electoral process and system of justice,” the Republicans declared in their letter.

The law itself is not clear on just when an independent counsel should be named. Instead, it leaves the matter mostly to the judgment of the attorney general.

One section of the statute lists a series of high executive branch positions and says the attorney general must begin a “preliminary investigation” if given specific information by a credible source that one such official has “committed a violation of any federal criminal offense.” If the preliminary investigation confirms the tip, the attorney general must ask a three-judge panel to appoint an outside counsel.

But a second part of the law has a more open-ended provision. It says the attorney general may seek an outside prosecutor if an investigation of executive branch officials may result in a “political conflict of interest.”

The Republicans are citing this latter provision, saying that Reno would have a conflict of interest in leading an investigation of the Clinton White House.

Everyone concedes that the stakes are high.

Beginning in his first term, President Clinton and his administration have been dogged by the Whitewater controversy, which involves an Arkansas real estate venture that failed in the mid-1980s. An independent counsel investigation led by Kenneth W. Starr shows no sign of ending soon.

Now Clinton’s second term threatens to be overshadowed by a drawn-out inquiry into fund-raising during the 1996 election cycle.

Sitting sphinx-like in the center of the storm is Reno. During Clinton’s first term, Reno moved quickly--too quickly, said some White House aides--to appoint independent counsels to investigate not only Whitewater but also Agriculture Secretary Mike Espy, Housing and Urban Development Secretary Henry G. Cisneros and Commerce Secretary Ronald H. Brown. Espy and Cisneros have left the Cabinet, but the inquiries into their activities continue. The investigation into Brown’s business dealings was ended after he was killed last year in a plane crash.

Chided for moving too quickly before, Reno now is being criticized for moving too slowly.

“I have not received . . . specific and credible evidence of a violation of law by a covered person,” Reno said earlier this week, a phrase that she repeats when asked about naming an independent counsel.

Her aides dismiss the notion that Reno has an inherent conflict of interest, saying she is not a close confidante of the president, first lady or vice president.

But legal experts say the highly political focus of the case almost forces her hand.

“This is a lousy statute, but it’s on the books and you have to enforce it,” said former independent counsel Joseph DiGenova, a Republican. “The fact that this is a politically charged case means a law enforcement decision will be made in an overheated environment that is fraught with political overtones. But unfortunately, that is the process Congress has created,” he said.