Reno Saw Through the Smoke Screen

Atty. Gen. Janet Reno’s announcement that she will not seek an independent counsel to investigate the fund-raising calls made by the president and vice president was the right call. Critics who claim that the attorney general failed to see the big picture miss the point and ignore the independent counsel statute itself.

The American people should be grateful that we have an attorney general with the vision to see through the smoke screen of partisan politics and the wisdom to base her decision on sound legal principles and not on talk radio clamor.

The facts reviewed by the Justice Department are undisputed. The president’s one fund-raising telephone call was made from the White House residence. The vice president’s telephone calls were for soft money contributions. Solicitations of this kind are lawful. In the entire 114-year history of the law at issue--the Pendleton Act--no one has ever been prosecuted for this type of conduct. And for good reason. The law was never intended to cover the kind of solicitations engaged in by Clinton or Gore and the written policies of the Department of Justice expressly prohibit prosecutions under such circumstances. Subjecting the president or vice president to an independent counsel as a test case would have been wrong.

Reno’s detractors no doubt will continue to argue that she approached this decision with too narrow a focus. In 1993, however, she sought to broaden the Independent Counsel Act to allow the attorney general to seek an independent counsel for subject matters as well as individuals. Congress rejected this legislative amendment, fearful that the statute could be triggered too easily.

One important point overlooked in the criticism of Reno is section 594(f) of the Independent Counsel Act, which mandates that independent counsels “comply with the written or other established policies of the Department of Justice respecting the enforcement of the criminal laws.” Applied to this case, the written policies of the Department of Justice expressly prohibit prosecution.

Those of us who have served as independent counsels recognize that the importance of honoring this rule is often the difference between success and failure.

For example, in the investigation I conducted, the court asked that consideration be given to prosecuting Bush administration officials for the crime of interference with a federal election by leaking negative information to a newsmagazine about the contents of then-Gov. Clinton’s passport file. Our analysis of the law led us to conclude that no one had ever been prosecuted for such conduct. Although it was an interesting and arguably viable legal theory, we promptly rejected it as a basis for prosecuting anyone.

In a case remarkably similar to the one at hand, the investigation by the Watergate special prosecutor revealed that members of Congress and other federal employees accepted campaign contributions from private citizens in federal office buildings. In declining to prosecute anyone under the Pendleton Act, the special prosecutor found that the act “was intended to protect federal civil service employees from coercion” and did not apply to private citizens. His solution was to suggest that the statute be amended and clarified. Twenty-three years later, the statute has not been amended and no prosecutions have been brought.

On the other hand, Lawrence Walsh, the independent counsel in the Iran-Contra investigations, failed to adhere to this rule when he indicted Oliver North and John Poindexter for criminal violations of the Boland Amendment, the provision of law prohibiting the expenditure of funds to support military operations in Nicaragua. No prosecutor in the country would have brought this charge. The acquittals on these counts in the indictment shows why.

Finally, it should not be forgotten that Independent Counsel Leon Silverman elected not to prosecute Labor Secretary Raymond Donovan on a case of dubious legal merit. When the U.S. attorney for the Southern District of New York chose to prosecute Donovan anyway, he was acquitted. Following his acquittal, Donovan asked rhetorically on the courthouse steps where he could go to get back his reputation--a question that should be foremost in any attorney general’s mind before an independent counsel is requested.