Although she is loathe to admit it, Atty. Gen. Janet Reno has softened her position on the need for special independent counsels to investigate sitting presidents or their administrations. The big question that just about everybody in Washington is asking is: Why?
During her confirmation hearings, Reno declared that she saw an inherent conflict in Justice Department investigations of anyone in Cabinet level and above. In such cases, an attorney general should request the appointment of a special independent counsel, she said.
But, that was then. Whatever else might be said of President Clinton, Vice President Al Gore and former Energy Secretary Hazel O’Leary, their jobs are most definitely Cabinet level and above. Yet Reno announced last week that she would not be seeking an independent counsel to investigate any of them. Why?
Democrats say it is because she is an independent-minded lawyer of unwavering integrity who trusts the judgment of the Justice Department’s 120-person team of career prosecutors, investigators and staffers.
Republicans say she has turned from the nation’s top prosecutor into the top defense attorney for the president who hired her.
That’s doubtful. Few would call Reno and Clinton close. She became his choice for attorney general only after he had committed himself to finding a qualified woman for the job and only after the nominations of two other women had been withdrawn. As a 59 year old with Parkinson’s disease, she espouses no political aspirations. (Once her term is over, she recently quipped, she has no other plans but to take off in a motor home and cruise the countryside.)
No, I see another, less partisan possibility. Experience, always the best teacher, has taught Reno something quite sobering about how easily and often the independent counsel law is abused. She has had enough first-hand experience to make any attorney general quite reluctant to call for what would be the sixth independent counsel investigation she would have launched since Clinton took office.
Every time Reno has named an independent counsel, he has become what independent counsels usually become, a relentless “special prosecutor” with virtually unlimited time, money, scope, secrecy and questionable partisanship in pursuit of his target–or targets.
An excellent example of such over-reaching is offered by the investigation of Clinton’s first housing secretary, Henry Cisneros. Assigned in 1995 to the limited task of determining whether Cisneros had underreported the amount of money he told the FBI he gave to his mistress, independent counsel David Barrett since has spent more than $2 million in a wide-ranging investigation that shows little sign of ending.
But that’s chump change compared to the $8.6 million independent counsel Donald Smaltz spent beginning in late 1994 to bring in last August’s 39-count indictment against former Agriculture Secretary Mike Espy.
When Smaltz asked Reno to request wider authority from the three-judge panel that named him, she refused. So he went to the panel on his own and got the expanded scope he requested. That frustrating experience left Reno furious, according to various news reports. It probably left her much more reluctant to call for independent counsels, too.
Ironically, Democrats have themselves to blame for the virtually unencumbered powers special prosecutors have enjoyed. The independent counsel law was passed too eagerly and hastily in 1978, in the wake of Watergate when Democrats ran the White House and both houses of Congress.
Envisioned as a tool for Watergate-level scandals, it was used immediately to investigate such minor infractions as a cocaine possession allegation against Hamilton Jordan, who later was cleared.
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When Lawrence Walsh spent seven years pursuing Reagan officials in the Iran-contra affair, it was Republicans who howled loudly about the waste, abuse and injustices of the special prosecutor law. Now, once again, it is the other party’s ox that is being gored.
The good-government, truth-pursuing intent of the law too often has been subverted by the single-minded intent of prosecutors to put feathers in their professional caps by nailing somebody with indictments and convictions.
Now that the problems with independent counsels are becoming crystal clear to both major parties, after a generation of dubious experiences, it is high time for both parties to fix it. Janet Reno is doing what she can to restrain the ability of future independent counsels to run amok. But she can’t fix the system by herself. It will take fair, sober-minded legislators of both parties to do that, before they find their own friends on the hot seat again.