But if the shoe fits...
The Bill of Rights are already under siege; now the repubs are going for the Big Kahuna:
<<<If review were taken away from the attorney
general and put in someone else's hands, you would
have a real problem with the separation of powers
because the power to execute the law is confined
by the Constitution to the executive branch," >>>>
Here's the rest:
<<<s if she didn't have enough to
worry about, Attorney General
Janet Reno may soon face a
Draconian attempt by Senate
Republicans to force her to turn
over control of the campaign
finance probe.
- - - - - - - - - - - - - - - - - - - -
BY JONATHAN BRODER
Under increasing pressure
from Senate Republicans, Attorney General Janet
Reno is now facing an unprecedented attempt to
force her to recommend yet another independent
counsel, this time to investigate alleged campaign
finance violations by President Clinton and Vice
President Al Gore during the 1996 election.
Senate Judiciary Committee Chairman Orrin Hatch
and the other Republicans on the panel are now
studying a draft lawsuit against Reno, drawn up by
committee member Sen. Arlen Specter, R-Penn,
that accuses her of ignoring evidence of federal
election law violations by Clinton, Gore and their
staffs, and asks the court to appoint an independent
counsel to investigate the evidence. Specter says
he's confident that a majority of Republicans on the
committee will join the lawsuit and that this group
will have standing to file the petition, as early as
next month.
"I think the conclusions [of the lawsuit] are very
strong," says Specter, a former prosecutor.
Specter's draft charges that Reno has ignored what
he calls "overwhelming evidence" that Clinton
violated election laws by raising money illegally
from foreign contributors; that Gore improperly
raised money with telephone solicitations from the
White House; and that both directed so-called soft
money to be spent on illegal election ads. The suit
also accuses Reno of failing to act on evidence
gathered by the Justice Department that the
Chinese government may have funneled money
into Clinton's campaign to influence the outcome of
the 1996 election.
Specter argues that under the law, such a wide
body of evidence obligates Reno to appoint an
independent counsel.
Pressure on Reno is building in the wake of a
confidential report by the departing chief of the
Justice Department's campaign finance
investigation. Thursday's New York Times, quoting
a government official, said the prosecutor, Charles
La Bella, had concluded that Reno has no
alternative other than recommending the
appointment of a special prosecutor. Coming from
a veteran prosecutor familiar with the evidence
gathered to date, the report would be politically
dangerous for Reno to ignore.
A Justice Department spokesman said Reno was
studying the report and had no further comment.
"There is a limit to a prosecutor's authority in not
enforcing the law as it is plainly written, and there is
a remedy that permits the courts to step in and
require the prosecutor, in this case the attorney
general, to enforce the laws of the United States,"
said Specter's press secretary, John Elliott.
Reno's problems with the Senate Republicans over
the campaign finance scandal are not new. Late last
year, after Sen. Fred Thompson conducted lengthy
hearings about election law abuses, Republicans on
the Senate Judiciary Committee sent Reno a written
appeal asking her to recommend the appointment of
an independent counsel. Reno refused, choosing
instead to have the Justice Department investigate
the matter.
Senate Republicans, already frustrated by Reno's
refusal, grew even more perplexed when she
appointed an independent counsel to investigate
allegations of influence peddling against Labor
Secretary Alexis Herman. At the time, the Justice
Department said it could not determine if the
charges against Herman were credible and that
there was strong evidence she had not done
anything wrong. The fact that Reno recommended
an independent counsel anyway suggested to
Senate Republicans that Reno was applying a
double standard when it came to the president and
the campaign finance issue.
Their suspicions grew when LaBella, the leader of
the Justice Department's campaign-finance probe,
announced he would retire later this summer.
Convinced that Reno's investigation was crumbling,
Hatch summoned the attorney general before his
committee last Wednesday to try to convince her
that only an outsider could effectively trace any
White House involvement.
It was a bruising appearance for Reno, with
Thompson quoting from a confidential memo by
FBI Director Louis Freeh that refuted the reasons
she had cited for declining to recommend an
independent counsel. Specter accused her of a
double standard. Hatch read a hostile editorial from
the New York Times that warned that Reno's
legacy would be "the preservation of a cover-up."
But Reno, as is her style, was unmoved. "I don't do
things based on editorials," she said. "I do things
based on the law."
Describing himself and his colleagues as "disgusted"
by Reno's performance, Specter took the
extraordinary and unprecedented step to begin
preparations for the lawsuit that would compel
Reno to appoint an independent counsel to
investigate the campaign finance evidence.
Specter's lawsuit would petition the Federal District
Court for a writ of mandamus, a common law
remedy that is used to force government officials to
carry out the duties they are required to perform
under the law.
At the federal level, the writ of mandamus is
typically used by plaintiffs to collect unpaid Social
Security benefits or to redress other technical
complaints. This would be the first time ever that a
plaintiff invoked the law to challenge the
independent counsel's statute, which was passed in
1978.
Until now, Senate Republicans had considered less
Draconian ways to change Reno's mind. But since
Reno's appearance, Republican members of the
Senate Judiciary Committee are now actively
considering Specter's move, committee staffers say.
Even if Specter manages to gather the signatures of
a majority of the committee's nine Republican
members -- and that's still an if -- it will not be easy
to convince a court to grant the compulsory writ.
"It's very hard to get," says Christopher Schroder, a
law professor at Duke University. "The court has to
be persuaded that there is absolutely no conceivable
way that the official who is refusing to act could do
so and still be behaving lawfully. It's a very high
burden of proof."
Schroder says there are innumerable reasons why a
prosecutor might decide not to indict someone,
even if he or she had some evidence of a crime. "A
judge won't sit and listen to a petitioner who comes
into court and says, 'Look, if the U.S. attorney had
only looked at this evidence in the right way, he
would have seen that there is more than enough
probable cause to indict.' In other words, the court
is not going to substitute its judgment for the
judgment of the official unless it is overwhelmingly
convinced that the decision is irrational or obviously
contrary to law."
A crucial piece of evidence in any suit that
Republicans bring will be Freeh's confidential
memo, written in November 1997, a month before
Reno's earlier appearance before the Judiciary
Committee. As described by Thompson, who was
briefed on its contents, Freeh's memo argues that
the independent counsel's statute was specifically
created to avoid conflicts of interest -- both real and
apparent -- when an attorney general investigates
her superiors. Freeh also reminds Reno that this
determination of a political conflict of interest
requires her to appoint an independent counsel.
"Freeh's arguments would be Exhibit A in Sen.
Specter's petition," Schroder says.
But government lawyers familiar with the matter
say Specter's petition, if it materializes at all, has
little chance of succeeding. To begin with, they say,
it is arguable whether the independent counsel's
statute allows for any judicial review of an attorney
general's decision not to recommend an
appointment. Within this context, the Freeh memo
is irrelevant. "It's her decision whether or not to
recommend," one said. "This is not a reviewable
decision."
If such review were permitted, several lawyers
added, it could be challenged on the grounds that it
violates the constitutional separation of powers.
"If review were taken away from the attorney
general and put in someone else's hands, you would
have a real problem with the separation of powers
because the power to execute the law is confined
by the Constitution to the executive branch," said
one lawyer who spoke on condition of anonymity.
Government lawyers also could challenge the
legislators' legal standing to bring suit against Reno.
Though the law says that a majority of members of
the Judiciary Committee may request that the
attorney general recommend an independent
counsel, there is nothing in the law that says these
legislators have standing to sue if a special
prosecutor is not appointed, these lawyers say.
"To have standing, you have to show that you are
personally injured by the action that you're
complaining of and that a favorable decision will
redress that injury," this attorney said. "Generally
speaking, legislatures are not found to have that
kind of injury."
"I think Specter is grandstanding here," he added.
"Specter is a good enough lawyer to know that this
is absurd."
Senate Republicans dismiss such talk as wishful
thinking. While no other members of the committee
have yet signed on to Specter's petition, "There
have been some favorable discussions among the
Republican members and we're optimistic," said
Elliot, the senator's spokesman.
"After last Wednesday's appearance [by Reno],
where well-reasoned attempts to get the attorney
general to explain her unwillingness to read the law
as it concerns the appointment of an independent
counsel were unsuccessful, the likelihood of other
members' joining in this unusual move by Sen.
Specter has increased," he said.
SALON | July 23, 1998 >>> |
