In Campaign Probe, Reno Encounters Dual Nature of Her Job

“In the end, every decision I make will be based only on the facts and the law,” a beleaguered Janet Reno last week told congressional Republicans critical of her handling of the Justice Department’s probe of campaign finance irregularities. “That is what the American people deserve from their attorney general.”

But whatever the public deserves, the mounting complaints about Reno’s refusal so far to seek appointment of a special prosecutor in the fund-raising investigation make clear that her civics-book description of her job falls far short of reality.

Like a number of her modern predecessors, the 78th attorney general of the United States is plagued by the uniquely split nature of her position. In her role as the nation’s chief law enforcement official, Reno is exactly what she suggested in her congressional testimony--the guardian of the legal system, a posture that sets her apart from her fellow Cabinet members. But like every other member of the Clinton Cabinet, she is also the instrument of the political will of the president, committed to the success of his administration and subject to dismissal at his pleasure.

This tension between law and politics “has made the attorney general a lightning rod,” said Nancy V. Baker, a New Mexico State University political scientist and author of the book “Conflicting Loyalties,” which depicts the inherent division of the job. And so sharp and deeply rooted is this division that each attempt to offset its consequences has triggered as many problems as it has solved.

“We have expectations that the attorney general is going to be completely neutral,” Baker noted. “But that’s an impossibility, because law and politics are intertwined.”

The potential for at least the appearance of conflict was carved into the Constitution. But the controversies swirling around the Justice Department’s massive limestone battlements 10 blocks from the White House have heightened in recent decades, as the expanding reach of executive power has intensified public suspicions about the conduct of presidents, thus putting attorneys general on the spot.

“We have escalated the pursuit of executive malfeasance to a very high level,” said Terry H. Eastland, former spokesman for President Reagan’s attorneys general, William French Smith and Edwin Meese III, an attitude Eastland attributes largely to the twin traumas of the Vietnam War and Watergate. “It’s the modern temper.”

*

Also making life more difficult for recent attorneys general, said University of Wisconsin political scientist Charles Jones, has been the split in control of the White House and Congress between the two parties. “This makes the executive branch more vulnerable. And it throws the White House and the Justice Department into a defensive mode.”

Given all this, it is no wonder some presidents have selected someone particularly close to themselves to head the Justice Department. John F. Kennedy set the mark when he named his brother and erstwhile campaign manager, Robert, to be attorney general. It was a choice the president well knew was bound to spark controversy, especially since his brother was a stranger to the actual practice of law.

Asked by a friend how he planned to make the announcement, the president-elect joshed: “I think I’ll open the front door . . . about 2 a.m., look up and down the street, and if there’s no one there, I’ll whisper, ‘It’s Bobby.’ ”

Kennedy’s choice in 1961 pointed the way eight years later for Richard Nixon to pick his former campaign manager and trusted advisor, John N. Mitchell, as attorney general. When asked whether his role would be political or legal, Mitchell blandly promised: “My activities of a political nature have ended with the [1968] campaign.”

*

But Mitchell eventually left the Justice Department to run Nixon’s 1972 reelection campaign, from which his actions landed him in prison as a conspirator in the Watergate scandal.

Watergate dramatized the split loyalties of the attorney general as never before when then-Atty. Gen. Elliot L. Richardson was ordered by Nixon to fire the special prosecutor Richardson had picked to investigate the scandal. In what became known as the Saturday Night Massacre, Richardson and his deputy, William D. Ruckelshaus, put principle above the power of the chief executive and gave up their jobs rather than carry out Nixon’s order.

In the wake of Watergate’s trauma, Jimmy Carter proposed in his 1976 presidential campaign to make the attorney general somehow independent of the president. But after Carter’s election, Justice Department lawyers concluded that such an effort would be unconstitutional, since it would undermine the president’s responsibility to faithfully execute U.S. laws.

As a substitute, Congress in 1978 established a procedure for the courts--rather than the White House--to make the appointments of independent prosecutors to look into allegations of wrongdoing within the highest levels of the executive branch.

*

Although designed to shield the attorney general from possible conflict of interest, some lawyers in both parties attack the independent counsel law as wrongheaded.

Benjamin Zelenko, a Democrat and former chief counsel of the House Judiciary Committee, said the law amounts to “a confession that the Justice Department staff can’t do their job as honest lawyers and would protect illegal behavior by the executive branch. I have never believed that.”

Republican Richard L. Thornburgh, attorney general under Presidents Reagan and Bush, said the law represents a “topsy-turvy approach” to law enforcement. “I always told my prosecutors to go where the evidence leads. Under this statute, you pick a target and try to find the evidence to make a case against him.”

Ethical questions continued to dog the attorney general’s job when Reagan, in his second term, named Meese, his longtime confidant, to the post. While in the office, Meese was himself investigated by an independent counsel for alleged federal violations involving, among other things, a tax matter and whether he made policy decisions to benefit a friend. And when the Iran-Contra scandal surfaced, the matter was turned over to an independent counsel who looked into suspicions that Meese had been involved in covering up that affair.

No charges were ever lodged against Meese, but his tenure reinforced arguments that the best way to ensure an effective attorney general is to give the job to someone not politically or personally close to the president.

But the furor surrounding Reno, a former Florida county prosecutor who had virtually no connection to Clinton, demonstrates that separation from the president is not in itself a sure-fire safeguard against controversy.

*

Indeed, as the various scholars have suggested, the nature of the job simply may create problems for outsiders and insiders.

Said David Keene, a veteran of the Nixon White House: “Either the attorney general is not part of the president’s political family and is walking a tightrope because the rest of the family doesn’t really trust her, or the attorney general is part of the president’s political family and is therefore walking a tight rope because no one else trusts her.”

“This is an eternal problem,” contended Daniel Meador, a former Justice Department official during the Carter administration and author of an analysis on the tensions facing the attorney general. “And the only answer lies in having an attorney general of integrity and willing to act independently.”