Just for giggles:
Why Janet Reno Is Right And Everyone Else Is Wrong
By LANNY J. DAVIS
Many people from across the political spectrum--FBI Director Louis Freeh and campaign finance prosecutor Charles LaBella, The Wall Street Journal and the New York Times, Sen. Orrin Hatch and Common Cause--have called on Attorney General Janet Reno to appoint an independent counsel to investigate Democratic campaign fund-raising. How can they all be wrong and Ms. Reno right? The answer is that they misread the plain language of the Independent Counsel Act and ignore its clear legislative history.
There are two provisions under the Independent Counsel Act that could lead to the appointment of an independent counsel--one mandatory and one discretionary. The mandatory one--Section 591(a) of Title 28 of the U.S. Code--does not appear to be at issue in most of the current criticism of Ms. Reno. It applies only if there is "specific" and "credible" evidence that a "covered person," such as the president or vice president or other high officials defined under the act, committed a felony.
Some, such as Common Cause, claim Mr. Clinton's involvement in writing "issue ads" could be a criminal violation of campaign laws. But leading Democratic and Republican lawyers point out that it can hardly be criminal to do something that the Federal Election Commission has consistently ruled is legal. The FEC has ruled that not only may a presidential candidate coordinate the writing and production of issue ads; he is presumed to have done so. That is why the spending on issue ads, under FEC rules, is required to be divided between "soft" and "hard" money. For that reason, politically and legally one cannot investigate President Clinton on this basis without also investigating Bob Dole, whose issue ads were paid for by soft money and were directed, controlled and managed by Dole campaign media director Don Sipple.
The solution to the abuses of issue ads is not to pursue ex post facto prosecutions, but to change the campaign laws and eliminate the soft-money loophole entirely--a proposal Mr. Clinton and the Democrats support and the Republican congressional leadership opposes.
Most of today's proponents of an independent counsel focus on Section 591(c)(1), known as the "discretionary/conflict-of-interest" provision. This provision gives the attorney general the authority, but not the obligation, to initiate a preliminary investigation if he finds that an investigation or prosecution by the Justice Department of a particular person may result in a "personal, financial, or political conflict of interest." There is no requirement that the person here be a "covered person."
Proponents contend that the conflict of interest can be an "appearance" of conflict--but the legislative history flatly contradicts this claim. Section 591(c)(1) was enacted in 1983, when the Independent Counsel Act first came up for renewal. Congress decided to extend the act to other than "covered persons," but only when it was a conflict of interest for the Department of Justice to conduct a criminal investigation.
But what kind of conflict of interest? The Senate version of the bill referred to a "personal, financial, or political conflict of interest, or the appearance thereof" [emphasis added]. But the House bill did not include the phrase "or the appearance thereof." When the House and the Senate reconciled their bills, they deleted the reference to appearance. Rep. Sam B. Hall Jr. (D., Texas), who managed the bill in the House, stated on the House floor on Dec. 13, 1982: "The bill as amended deletes the reference to appearances, and thereby requires the attorney general to determine that an actual conflict may exist."
What is an "actual" conflict of interest? Again the legislative history provides some guidance. In 1987 Congress added a provision that the attorney general recuse himself if the information the Justice Department has received alleging a possible federal crime involves the attorney general himself or "a person with whom the Attorney General has a current or recent personal or financial relationship." The Senate committee report offered an overall example which seems to be a classic "actual" conflict of interest: where the attorney general or key Justice Department officials have "participated in the underlying events which gave rise to the case." Specific examples included "where the official has performed or played a material role in the conduct being questioned, has participated in the decision-making process to plan or approve such conduct, has provided specific legal advice on such conduct, or is otherwise a material witness in the case."
Applying this standard to the Democratic Party campaign finance investigation, it is clear that there would be no actual conflict of interest for Ms. Reno's Justice Department to continue its investigation of Democratic campaign finance abuses. There has been no allegation that anyone at the Justice Department in any way participated in the underlying events or allegations. That Ms. Reno is a Democrat, and that some (but not all) of the individuals under investigation are also Democrats, does not come close to meeting the actual conflict of interest standard.
Some might still argue that there is really no difference between an actual conflict of interest and the appearance of one, since politics by definition is about appearances. Even if this argument didn't contradict the legislative history and the common legal understanding of what constitutes an "actual" conflict of interest, it would still be absurd. If it is a conflict of interest for any Democratic attorney general to investigate a Democratic campaign finance violation, then surely it would also be a conflict for a Democratic attorney general to investigate a Republican campaign. In either case, it is equally plausible that the attorney general would be biased for partisan reasons.
Without the distinction between an actual conflict of interest and the appearance of one, the Justice Department could never investigate anyone on a political corruption charge. The attorney general would have to appoint an independent counsel every time there is a "specific" and "credible" allegation of criminal conduct by anyone in the political arena. Do Ms. Reno's critics want the Independent Counsel Act to be so unlimited? Many Republicans, after all, have long warned against the dangers of an overly broad Independent Counsel Act.
Those who favor appointing an independent counsel have a second problem: The discretionary provision applies only to a conflict of interest between the Justice Department and an identified criminal suspect. Ms. Reno's critics are calling for an investigation of the subject matter of Democratic campaign finance abuses. In 1993 Congress expressly rejected expanding the discretionary section to include such "subject matter" conflicts.
Ironically, it was Ms. Reno's own Justice Department that proposed that the act be expanded to include possible conflicts of interest over subject matter. The Senate accepted the department's proposal; its bill stated that the attorney general could trigger a preliminary investigation if the "prosecution of a person or matter" by the department could result in a conflict of interest. But the final version of the Independent Counsel Act, passed in 1994, kept the language as it was.
Another irony is that the pressure to construe the Independent Counsel Act liberally is led by conservative Republicans who, less than a decade ago, were insisting that Lawrence Walsh's investigation of the Iran-contra scandal was a lesson in the dangers of an overly broad Independent Counsel Act. The potential for excesses and abuses and unaccountable prosecutorial power inherent in the current independent counsel statute should now be obvious to all. We need a serious and bipartisan reassessment of the statute--one that begins with no presumptions, not even the presumption that there has to be an independent counsel to investigate "covered persons."
After all, there was no independent counsel in 1974, when Richard Nixon was forced to resign.
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