By James Warren, Washington Bureau.
August 24, 1998
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
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
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
"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.