Reno, Starr at Key Hurdle in Power Play

Janet Reno is the nation’s top law enforcement officer, but the attorney general suddenly finds her vast powers tested by a question rooted in both law and politics: How far can she go in investigating independent counsel Kenneth W. Starr?

For more than a year, Reno remained largely on the sidelines as the Monica S. Lewinsky drama played out. But with the impeachment trial over, Reno has taken on a central role in recent weeks, squaring off with Starr over whether the independent counsel abused his authority in his four-year investigation of President Clinton.

Reno faces a key hurdle today: She must decide whether to answer a federal court’s demand that she justify her authority to investigate Starr’s tactics. The legal maneuvering not only has threatened to derail Starr’s ongoing investigation, but, more broadly, it has thrown into confusion the delicate balance of power in top-level corruption cases.

The power struggle is laden with political overtones. Reno’s top deputy, Eric H. Holder Jr., acknowledged as much last week in lamenting the pressures facing an attorney general who even considers exercising her legal authority to remove an outside prosecutor for “good cause.”

“How can the [Justice] department investigate an independent counsel without facing allegations of attempting to stifle his or her independence?” Holder asked rhetorically at a congressional hearing. “It will always be extremely difficult for any attorney general to exercise the authority to investigate, let alone remove, an independent counsel.”

Starr’s Aides Could Face Some Fallout

At its most basic level, the dispute is seen by some observers as a largely behind-the-scenes turf war between two strong law-and-order personalities who have different political agendas.

But the resolution of the Reno-Starr conflict also could have a lasting effect on efforts to resolve a prickly political problem that has arisen time and again since the infamous Saturday Night Massacre, when President Nixon ordered the firing of a Watergate special counsel: How can the public be assured that allegations against top government officials will be investigated fully and fairly, free of political influence?

For Starr, the stakes are more immediate. If Reno investigates the investigator, some of Starr’s deputies could face disciplinary action and, ultimately, the independent counsel could face the loss of his job.

To Starr’s critics, his alleged excesses are Exhibit A in demonstrating why the independent counsel law has not worked and should be scrapped this summer when it expires. The problem, they say, is that Starr, who has spent more than $40 million on his investigation, has been accountable to no one.

Although the statute allows the attorney general to remove an outside counsel for “good cause,” the phrase is so vague that Starr’s backers argue that Reno cannot investigate him first. To do so, they say, would compromise the independence of Starr’s inquiry.

The ambiguity of the law made a legal clash “inevitable” once Reno decided to move against Starr, said Joseph E. diGenova, a former independent counsel.

“This is new territory. The issue of who has the right to investigate an independent counsel is unanswered by the law,” he said.

And the latest turn of events has heightened the controversy concerning just who has standing to answer the question. Those events include the emergence of a new influential Starr ally: a conservative legal foundation that filed a motion in federal court, prompting a review of the issue.

Justice Department officials have expressed concern about allegations of misconduct by Starr and his deputies in several areas: that their aggressive interrogation of Lewinsky last year without her lawyer present violated ethics rules, that his office leaked secret grand jury material to the media and that Starr aides misled Justice officials and failed to reveal a potential conflict of interest when--as they sought authority to investigate the Lewinsky matter--they denied receiving information about it from the Paula Corbin Jones legal team. Recently reported evidence of such contacts has raised questions about the independence of Starr’s investigation.

Starr and his deputies have defended their initial encounter with Lewinsky, saying she was free to leave. They also have denied trying to mislead the attorney general about their sources of information. As for media leaks, Starr’s office has turned the allegation back on Reno, accusing her department of improperly disclosing damaging information about Starr.

“I think that there are some people in Starr’s office who are unalterably suspicious of the Justice Department,” a lawyer familiar with the relationship said.

Despite a reported volley of “back off” letters from Starr to Reno, more recent signs indicate a possible truce in the making. On a recent Sunday afternoon, Starr and Reno met to discuss whether Starr’s office should be reviewed by the Justice Department itself or by another outside investigator. But, befitting the highly political elements of the issue, some Democratic lawmakers have bristled at the suggestion that Starr might be given a say in how his office is investigated.

Holder has sought to assuage those fears, saying that Reno merely listened to Starr’s “concerns.” He added: “We will decide the form [a review] will take and who will undertake it.”

But Mark Levin, head of the Virginia-based Landmark Legal Foundation, said he thinks Reno already has gone too far. Levin insisted that Reno is on a “fishing expedition” aimed at protecting Clinton and dredging up incriminating information on Starr.

Levin’s group, which has no direct connection to the case, filed a motion with a special judicial panel and asked the judges to end any investigation into Starr’s office.

And, to the shock of many legal scholars, the court listened.

In a two-sentence order Feb. 19, the special division of the U.S. appellate court here directed Reno and Starr to respond within 15 days to the issues raised by Landmark. The deadline is today.

“I can’t understand what the court is doing in this matter,” said Irv Nathan, a prominent Washington defense lawyer and a former high-ranking Justice Department official in two Democratic administrations.

Friends In Moneyed Places

The three-judge panel is headed by Judge David B. Sentelle, a Jesse Helms protege known for his conservative leanings. In 1994, when Sentelle’s panel replaced Whitewater special counsel Robert B. Fiske Jr. with Starr, the judge was criticized for having lunched weeks before with Helms and another conservative senator who had pushed for Fiske’s ouster. An ethics complaint against Sentelle was later dismissed as groundless.

The Landmark Foundation also has strong conservative ties. It received $525,000 in 1997 from foundations affiliated with reclusive Pittsburgh billionaire Richard Mellon Scaife, sometimes known as “the Daddy Warbucks of the right.” An ardent critic of Clinton, Scaife has poured money into underground attack campaigns against the president.

Levin, once an aide to former Atty. Gen. Edwin Meese III, said his group did not discuss with Starr’s camp its plan to end the Reno investigation.

“Our purpose was to get this issue out in public view and to stop [Reno] . . . from conducting an unprecedented and illegal investigation,” he said. “We want to smoke her out.”

Landmark argued in its filing that the law gives only Congress authority to oversee the independent counsel. To allow the attorney general to investigate the counsel’s office, the group argued, would compromise the independence and integrity of its work.

Justice Department officials have hinted that their response will argue that Landmark, and perhaps the judicial panel, have no business questioning Reno’s authority.

Some legal observers think the department has a strong case.

“Because the independent counsel process has become so politicized,” Georgetown University law professor Paul Rothstein said, “this is dragging the court into a political squabble. . . . It is weakening trust in the court, and that’s a bad fallout for the court.”

Some Democrats in Congress said they were outraged by the unusual turn of judicial events, drawing the courts and the Landmark Foundation into a matter they said should be left to Reno. Rep. William D. Delahunt (D-Mass.) called it a “mishmash of the separation of powers.”

But even if the Justice Department prevails in pursuing its investigation, Reno still has to worry about political fallout, including possible accusations that she is motivated by a desire for retribution, observers said.

With Reno’s review escalating just weeks after Clinton’s impeachment trial, “it now looks like payback,” said George Washington University law professor Stephen A. Saltzburg, a former assistant independent counsel.

Had Reno moved against Starr months ago, before Clinton’s impeachment, her investigation might have had more credibility, he said.

“But now there are political overtones to all of this that can’t be removed. This is not just about the law anymore.”

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BACKGROUND

The Independent Counsel Act, passed in 1978 in the wake of the Watergate scandal, was intended to ensure impartial investigations of alleged criminal wrongdoing by top government officials. An attorney general who receives such allegations must conduct a preliminary inquiry. If the allegations are found to be credible, the attorney general must ask a three-judge panel to appoint an outside counsel. The law also allows an inquiry if an investigation might result in a “political conflict of interest.” An independent counsel may be fired only by the attorney general, subject to review by the three-judge panel. About half of the 20 counsels have cleared the officials they investigated. The act now covers more than 100 people in government, including all Cabinet members and many White House officials.