Appoint A Counsel Now, If Ever

Reno Is Right






Reno Is Right


By Katy Harriger

Attorney General Janet Reno is right in refusing to request appointment of an independent counsel to investigate the allegations related to Democratic fund-raising for the 1996 election. Her actions are supported by both the letter and the spirit of the independent counsel law. Furthermore, there are good policy reasons for refusing to request appointment at this time.

Reno is criticized for being too "legalistic" in her reading of the statute, but her reading is correct. The attorney general has the authority, and in fact, the legal obligation, to refuse to request appointment if she deems the situation to be one not covered under the Act.

The law requires that there be credible evidence of violation of federal criminal law by a narrow category of covered officials. Thus far, no such evidence exists. Some point to the allegation that Vice President Al Gore made solicitations from federal office buildings as such evidence, but this example fails on two accounts.


First, there is an enormous loophole in the law that permits such solicitation for "soft money" for parties even as it forbids it for individual candidates. Second, technical violations of this law have not been prosecuted traditionally by the Justice Department.

It was agreed early on among supporters of the independent counsel law that it ought not to be used to prosecute covered public officials for actions that would not be prosecuted if they were carried out by individuals not covered by the act. The goal of the act was to insure that there was equal and impartial pursuit of allegations of criminal wrongdoing by executive branch officials, not to impose a higher standard of criminal law on those who fell within the act's coverage.

This goal was made explicit in the first reauthorization of the act after two independent counsels were appointed to investigate allegations that members of Jimmy Carter's White House staff had used cocaine in social settings. Allegations of this sort against anyone else would never have merited six-month grand jury investigations.

Reno's critics contend that while she may not be legally obligated to seek appointment, she should use her discretion to seek one in cases where at least the appearance of criminal activity exists. But the spirit of the independent counsel law makes it her obligation to resist partisan and media pressure to appoint in cases where it is not legally warranted.

In the post-Watergate period, the drafters of the original independent counsel law struggled for almost five years to balance the competing concerns of desire for independent investigation and fairness to public officials. It is admittedly hard these days to dredge up much sympathy for public officials, but fair treatment in the criminal justice process is a right that belongs to all citizens, including those who hold public office.


Critics have long contended that the independent counsel arrangement can be abused if partisan and media pressure force the attorney general to subject covered officials to a criminal investigation in cases where it is not legally justified. The safeguard against this kind of politicization of the process is the attorney general's authority to refuse appointment if the facts do not warrant it.

The irony here is that those most vocal in their claims of the unfairness of the statute, the Republicans, are now the most adamant in their insistence that one be appointed. If one's position on this issue depends only on whose ox is being gored, then we have even more evidence to support an argument that the attorney general must use her legal authorization under the act to resist such partisan pressure.

Finally, there is a very good policy reason for not having an independent counsel to investigate the fund-raising scandal at this time. (This is not an argument that the attorney general should consider, but it should be important to citizens and lawmakers alike.) The fund-raising scandal has revealed major flaws in the current way in which we finance campaigns. The real "crime" in this case is that our campaign finance laws are as lax as they are. What the scandal demands is that Congress, the president, and the public take a serious look at campaign finance and fix it. This is far less likely to happen if an independent counsel is appointed to investigate the case.

Why? Because an independent counsel will not have the authority to investigate the entire financing system. Only Congress can do this. The independent counsel will have no authority to propose new legislation or to pass such legislation. Only Congress can do this. Independent counsels can spend millions of dollars looking into behavior that we all admit is distasteful and unethical, but they can not indict or prosecute someone unless there is evidence of criminal wrongdoing.

In the meantime, the system of financing itself avoids the scrutiny it currently demands. We could spend years trying to meet the exacting standards of the criminal justice process while ignoring the root of the problem. Perhaps this is what the current members of Congress would prefer -- a criminal investigation that diverts attention from the serious policy problem that exists. But the press and the public ought not let this happen.

Harriger is Associate Professor of Politics at Wake Forrest University.

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