A LEGAL-POLITICAL HORROR SHOW LURKS
RENO WEIGHS NAMING AN INDEPENDENT COUNSEL
TO INVESTIGATE '96 FUNDRAISING
By James Warren, Washington Bureau.
Almost like the nefarious Freddy Krueger in the "Nightmare on
Elm Street" movies, Atty. Gen. Janet Reno is back considering whether to recommend an
independent counsel to investigate campaign-finance abuses in the 1996 presidential
campaign--a horrifying prospect for the White House.
Reno has spurned such a move before, but now, prodded by
congressional Republicans and with at least one tantalizing new piece of
evidence, she is again focusing on the matter, with her decision said to be imminent.
At the heart of her deliberations are often
nebulous and unenforced campaign-finance laws, not to mention a century-old statute
concerning the raising of funds on federal property.
She will seek to determine if there are "specific" and
"credible" allegations of violations and thus set into motion a process that
could bring, as it has with Whitewater and Kenneth Starr, yet another
prosecutor with far-reaching authority and virtually unlimited resources.
There would appear to be precious little before Reno that is not
widely known, with the exception of a just-surfaced memo suggesting that
Vice President Al Gore may have known more than he has let on about his fundraising
efforts inside the White House.
The large amount of evidence before her was revealed to a
generally inattentive American public last summer during Senate hearings.
In the case of Gore, there were wide reports of phone calls he made from the White House
and how the monies he solicited were used.
Back then, Reno was thrust into a highly partisan dispute over
whether federal law allows solicitation of funds on federal property and, if it does,
whether it allows only certain types of funds to be raised. The relevant
Pendleton law dates to 1883.
As it turns out, at least $100,000 raised by
Gore's 45 White House phone calls were used as so-called hard money, meaning for specific
campaigns, notably the Clinton-Gore re-election.
Reno took the legal position that Gore could
solicit funds from the White House only for "soft" money meant for generic,
party-building activities.
Did Gore know where the money was going? He said
he did not, but last week notes written by his deputy chief of staff were revealed that
raised the possibility that Gore had told staff to "count me
in" and perhaps knew about hard-money solicitations.
"In my view, the calls made by the vice president were
entirely legal and appropriate," Joseph Sandler, the Democratic
National Committee's general counsel, told last year's fundraising investigation led by
Sen. Fred Thompson (R-Tenn.).
"That is unbelievable that you would think
that," Sen. Don Nickles (R-Okla.) responded, underscoring how very
different was his reading of relevant statutes on raising money on federal grounds.
More than a year later, Reno's return to the issue is rife with
political ramifications.
FBI Director Louis Freeh and Charles LaBella, the former head of
Reno's campaign-finance task force, recommended an independent counsel to her. House and
Senate Republicans have used disclosure of the internal Justice Department rift to
pressure Reno into changing her mind.
In theory, she could name an independent counsel for a very
specific matter, such as Gore's disputed calls or former senior White House aide Harold
Ickes' disputed testimony on fundraising to Thompson's committee. Given the political
damage brought by the Whitewater investigation, such a decision would seem to spell
trouble for the White House.
Reno could choose an independent counsel to look generally into
the 1996 presidential fundraising, both Democratic and Republican, virtually ensuring a
sprawling, costly investigation. Or, once again, she could hold her ground and refuse to recommend one.
As she finishes her deliberations and plans for a promised
briefing to congressional leaders, Reno does so knowing that even election-law experts
concede she confronts a statutory muddle and a campaign-finance system that has unraveled.
"The campaign-finance law is nebulous and unclear as to
whether Reno's original interpretation was correct--namely that soft money calls were
within the confines of the law, not hard money," said Kenneth
Gross, an attorney who represents Democrats and Republicans on campaign-finance matters.
Even if Gore knew he was raising hard money,
Gross said, problems persist, especially involving the law governing solicitation of funds
on federal property.
That part of the criminal code has been the
subject of only four cases, with the most relatively germane one dating to 1908 and
involving the shakedown of federal workers.
"It doesn't really apply to these sorts of fundraising
calls," Gross said. "Finally, even if he knew, there's the matter of whether you
go ahead with a case like this; whether that was willful intent to break the law,
especially since it's a provision almost never prosecuted."
"The first thing I'd say is that there's no
question that the (Clinton-Gore) campaign was playing shell games with hard and soft money
and violated the law," said E. Joshua Rosenkranz, executive director of the Brennan
Center for Justice at New York University Law School. The center does
much work in the campaign-finance area.
"Clearly, its conversion of soft money and hard money was
illegal," he said. "And it seems most unlikely that the leaders of the ticket or
fundraising drive were unaware of how the money was used. I believed that a year ago, so the latest news (the Gore memo) doesn't strike me as news at all.
"Reno has been hacking away at the wrong
limb for a year. Basically, she has been finding reasons to conclude that the activity
that was in front of everyone's face was not illegal by raising technicality after
technicality. Each time one assumption is shown to be wrong, she finds another
reason."
Yet, Rosenkranz is not urging appointment of an independent
counsel.
He thinks "it's silly that this has become
an issue; the metaphysical issue of whether Gore solicited hard money on
that White House phone.
It's silly to appoint an independent counsel for that when a
bigger issue goes unanswered, namely the non-enforcement of the law generally as to how
soft money is used."
Attorney Stanley Brand, another election-law expert, said,
"It seems like overkill to go through this type of analysis over a few words on a
memo. Even if Gore knew, I doubt it's a crime. At the end of the day, you're not looking at a substantial criminal case."
Copyright 1998, The Tribune Company.