One Step Closer to an Independent Counsel

Republicans got what they wanted Friday when Atty. Gen. Janet Reno agreed to launch a preliminary investigation into whether Vice President Al Gore violated federal law by making fund-raising calls from his office. It is the first step in a process that could lead to the appointment of an independent counsel to investigate the man the Republicans most fear in the year 2000.

There was a time, not so long ago, when the possibility of an independent counsel investigating the front-runner for the presidency would have caused candidates to come out of the woodwork and supporters to run for cover. That is not true in the case of Gore.

While his favorability ratings have fallen in the wake of publicity about his fund-raising phone calls, Gore’s prospects of winning the White House are not really very different today than they were a few weeks ago. That is, in part, because no one has ever been prosecuted for making fund-raising phone calls from a federal building, and Justice Department lawyers are still not sure whether it indeed does violate the law. Legally speaking, there’s no case.

Of course, ethics questions in Washington today cannot be considered only as legal questions. But it is precisely because ethics has been so politicized that the prospect of an independent-counsel investigation is a minor blow and not a major disqualification.

As a matter of law, the obstacles to a prosecution of the vice president are overwhelming.

First, it’s not clear that the 19th-century law prohibiting solicitation in federal offices even applies to calls made to private citizens. The law was passed to protect federal employees from being solicited, and the Supreme Court has thus held that a solicitation takes place where it was received, not made.

Second, it’s not clear that it would apply to the president and vice president, even if it applied to other federal officeholders. Their situation is different not only because they live in public housing, but because the court has held that Congress must be specific when it intends to regulate another branch of government.

Third, even if the law applied, the attorney general has already concluded it does not apply to solicitations for unregulated or “soft” money, and while some of the money Gore solicited may have been converted to federal dollars, it is the intent of the would-be defendant at the time, not the later turn of events, that determines liability. Last spring, when she first reviewed the records, Reno herself assumed they were requests for soft money, suggesting that if Gore made a similar mistake, it was certainly a reasonable one.

Fourth, even if the law applied and Gore intended to solicit hard money, due process requires that a criminal law be clearly stated in advance so that its violation signals a choice. Ignorance of the law is no excuse, but there must be a clear law you could have known about. If Justice Department lawyers still can’t figure out whether the law applies, and White House counsels have been divided over the years, it is hard to imagine any court concluding it was clear enough to meet due-process standards.

Fifth, the independent-counsel law specifically provides that no counsel shall be named to investigate crimes that would not be pursued by the Justice Department if committed by others. No one has ever been prosecuted for soliciting contributions from a federal office; indeed, in Sen. Phil Gramm’s case, the department declined prosecution.

The independent-counsel statute was enacted to ensure that a close relationship between the president and the attorney general would not interfere with investigations of wrongdoing by the executive. No one pretends that such a danger exists with this administration and its fiercely independent attorney general. It is from Republican leaders in Congress that impermissible pressure has come. The same supposed conservatives who have been threatening to impeach federal judges whose decisions they disagree with turned their fury on Reno, threatening her with impeachment if she failed to move forward with an investigation of the vice president. “I should inform you,” Rep. Gerald B.H. Solomon (R-N.Y.) wrote the attorney general last month, “that the mood in Congress to remove you grows daily.”

Sen. Mitch McConnell (R-Ky.), the leading opponent of campaign-finance reform, added, “We ought to have an independent counsel. Reno has refused to do it, consistently. She runs the risk, it seems to me, very soon of having impeachment proceedings started against her in the House, because she’s refusing to do her duty.”

In the short run, Republicans are obviously pleased with the attorney general’s decision to trigger the next stage of the investigation of the vice president. But the campaign-finance issue is a complicated one for everyone. While demanding investigations of Democrats, the GOP leadership in the House is resisting any efforts at reform, telling revolting freshman members that their chances of control of the House hinge on blocking reform.

Some Democratic leaders are telling their members the same thing about the chances for the Democrats to regain control. In the Senate, where Majority Leader Trent Lott (R-Miss.) had promised a vote but reserved the right to propose a Republican substitute, the GOP has united around a poison pill instead of a substitute bill, insisting on an amendment aimed at cutting union spending as the price of reform.

Democrats, for their part, while insisting they support reform, do so in between efforts to retire the party’s $15-million debt. Steve Grossman, the party’s director, explained there was a particularly heavy schedule of fund-raising this year, given the possibility that a reform bill could pass.

In his press conference Monday, the president was asked about the prospects for campaign finance-reform legislation actually passing. He replied that the chances for a bill had been improving steadily; the critical point, Clinton said, was keeping the issue “in the spotlight”--a place where it certainly remains this week.

But the purpose of the president’s appearance in the press room was not to take questions about campaign finance, but to take credit for positive economic numbers that gave the average family $2,300 in extra income since the beginning of the Clinton-Gore administration. In the long run, those are likely to be the numbers that will count most for Gore in 2000.*