What’s Reno Doing? Obeying the Law

Here’s news that would kill off one of Washington’s best-running melodramas: Janet Reno couldn’t ask for an independent counsel to look into White House fund-raising right now, even if she wanted to.

That’s right. Yet there’s no profit in telling that story. Allegations that Reno has been foot-dragging over asking for an independent counsel to look into Democratic campaign spending are this season’s hottest political and journalistic “commodity,” and they have been aggressively marketed with misinformation.

Polls show wide support for an independent counsel. The idea sounds sensible. It certainly would shield Reno and the Justice Department from allegations of being patsies for the White House. Who knows? If this were a policy question, Reno might favor it herself.

But it is not a policy decision. It is not a question of choosing the most advantageous course. The seldom-recognized fact is that the attorney general already is operating under the independent counsel law, which specifies what she must do before requesting the three-judge court to appoint an independent counsel.

First, the attorney general must determine whether the subject of the probe occupies one of the high positions listed in the law to qualify for investigation by an independent counsel or has such a close personal, political or financial relationship to someone in the administration that it would pose a conflict of interest for the Justice Department to conduct the investigation.

Second, there must be specific information from a credible source that the suspected wrongdoer committed a crime: a felony or Class A misdemeanor (punishable by a year in prison).

Without both, the attorney general lacks the authority to ask for an independent counsel, nor could the court appoint one.

Reno’s critics suggest that since a conflict of interest seems apparent whenever an attorney general is investigating her boss--the president-- or fund-raising for his campaign, she should ask immediately for an independent counsel.

But that isn’t what the law says. The law requires that the attorney general make the threshold determinations. She can’t give the job to someone else.

But, how does she know when specific, credible information of a crime exist?

As with every other criminal investigation, she must rely on lawyers and investigators who work in the Justice Department. FBI agents and attorneys gather the facts. Lawyers in the criminal division analyze whether the facts might constitute a crime, based on the language of the statutes and how they have been applied and defined in court cases.

She can’t tell them what conclusions to reach. Until the attorney general receives a finding that meets the statutory requirements, she has no power to ask for an independent counsel.

The criminal division has not reported to the attorney general that it has obtained specific, credible information that, if true, would constitute a prosecutable offense. That is why the investigation continues.

Given more time, evidence may be developed that points to a crime. Additional study of the law and cases may result in the adoption of legal theories that have not been utilized before.

But until and unless the necessary elements have been found, there is no basis for the attorney general to act.

Congress wrote the law. It should demand its faithful execution. Why have editorialists been slow to condemn political figures who are trying to pressure the attorney general to act prematurely and without the requisite findings?

And why have the news media done so little to help the public understand that Reno is doing precisely what the law compels?

Sure, that would louse up a good story. But, as Reno might say, it would be the right thing to do.