Janet Reno’s Burden of Proof

Unleashing yet another independent counsel-and perhaps another partisan Republican one, at that-to comb for years and years through the burgeoning Clinton campaign finance scandals in search of crimes, with dozens of potential targets up to and including both the president and the vice president, would be a national nightmare.

The record to date suggests that the Clinton campaign’s desperate search for money reached a level of sleaziness unrivaled since Watergate. A no-holds-barred prosecutor might be able to make a plausible legal case that crimes were committed, perhaps involving people at the top.

But no such high-level officials should be prosecuted, barring the emergence of more smoking guns than we are likely to see. Among the reasons are that many of the alleged crimes are too difficult to distinguish from the access-peddling that has long been practiced by most candidates for federal office; that some of the same theories that could be used against Clinton campaign officials (including the president) could also be used against Dole campaign officials (perhaps including Dole) and many members of Congress; that the campaign finance laws are nightmarishly complex and riddled with First Amendment problems; and that the resulting tangle of rules and loopholes often does not draw clear lines between what is legal and illegal.

A wise prosecutor, sensitive to such considerations, would err on the side of lenity and bring the matter to closure as quickly as possible. But is that what we would get from the special three-judge court, headed by D.C. Circuit Judge David Sentelle, that chooses independent counsel? The track record does not inspire confidence.

For these reasons, I would love to be persuaded by Attorney General Janet Reno’s April 14 letter to Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), explaining her reasons for spurning (thus far) the chorus of demands from Hatch and others that she seek an independent counsel to probe possible crimes by the Clinton campaign.

But Reno’s 10-page letter is pretty weak. It brushes breezily past the hardest questions; implicitly rests on legal interpretations that effectively gut all campaign finance laws for presidential elections; neither articulates nor justifies these interpretations in any detail; implicitly resolves disputed factual issues in favor of the president and his aides; and appears to construe the independent counsel statute more narrowly than Reno has done in the past.

None of this begins to justify House Speaker Newt Gingrich’s contemptible comparison of Reno to her predecessor John Mitchell, who was convicted of felonies. Nor does it make it entirely clear that Reno is legally or ethically obliged to seek an independent counsel. But all in all, Reno’s letter is less persuasive than the detailed April 15 rebuttal by Sen. Hatch, who likened the Reno letter to "a defense brief too clever by half."

Three of the weakest points in Reno’s reasoning:

(1) Perhaps the most cogent case for triggering the independent counsel statute is the copiously documented allegation (by Common Cause, former Reno deputy Philip Heymann, and others) that top officials of both the Clinton and Dole campaigns (including Clinton and perhaps Dole) may have directed and participated in deliberate, multimillion-dollar violations of both the campaign spending and contribution limits, by using the Democratic and Republican national committees as totally controlled cash conduits to finance television ads promoting their respective presidential candidates. They thereby mate a mockery of laws, including the longstanding ban against using corporate and labor union money in federal election campaigns and the post-Watergate ceilings on total spending by presidential candidates who accept public funding. (See my "Scandal Hidden in Plain View," Legal Times, March 17, 1997, Page 27.)

Reno’s response on this front boils down to a conclusory assertion that "at the present time, we lack specific and credible evidence that these activities violated" the campaign finance laws. In so saying, she truncates the language of the independent counsel statute, which turns on whether there is specific and credible evidence "sufficient to constitute grounds to investigate whether any person [covered by the statute] may have violated" criminal laws. (Emphasis added.)

Reno notes, by way of explanation, that the campaign finance laws allow some coordination of fund raising and spending by presidential candidates and their parties. She also contends that parties can legally use "soft money" (including corporate and union money) for issue advertisements "that do not contain an ‘electioneering message.’ "

What Reno’s letter does not do is respond directly to the claims-supported by a host of internal administration documents and statements by current and former Clinton aides-that the president and the White House orchestrated, directed, and controlled every aspect of the soft-money advertising campaign for the primary purpose of re-electing the president. The notion that these were DNC issue ads was at least arguably a sham, devised to flout the laws purporting to curb presidential campaign spending.

Reno’s conclusion apparently rests on a reading of those laws so narrow as to make them virtually unenforceable, and thus meaningless. Perhaps she’s right. But that is surely debatable. She should at least articulate and justify in detail the basis for her interpretation.

(2) Reno appears to rely on a similarly narrow interpretation in suggesting that there is no "specific and credible" evidence that Vice President Al Gore may have violated the statute banning solicitation of campaign contributions on federal property (18 U.S.C. §607) when fee made phone calls from the White House pressing fat cats for big bucks.

The main basis for Reno’s conclusion is that §607 "specifically applies only to contributions as technically defined by the Federal Election Campaign Act (FECA)-funds commonly referred to as ‘hard money.’ " True. But while Gore purported only to be raising "soft money" for the Democratic Party, his own public statements suggest that much or all of his dialing-for-dollars was (to quote FECA’s definition of "hard money") "for the purpose of influencing" the presidential election.

Reno’s implicit, interim exoneration of Gore must therefore rest either on an exceedingly narrow and formalistic definition of "hard money"-one at odds with the plain language of FECA-or on highly exculpatory factual assumptions, or on both. As in: Gore was asking people to give the DNC more than $20,000 each; it would be illegal to give that much in hard money; therefore it must have been soft money; so the asking was legal. Q.E.D.

It seems clear to me that criminal charges should not be brought even if Gore violated the letter of §607. That’s because its main intent is to prevent shakedowns of federal workers, and because criminal liability should not turn on where Gore was sitting when he made phone calls. But the independent counsel statute does not authorize the attorney general to rely on such prosecutorial discretion in cases involving covered officials like Gore.

(3) On the explosive question of whether Clinton aides knowingly sought illegal foreign contributions from China and elsewhere, Reno provides little justification-given the obvious need to determine whether the president or his top aides condoned such efforts-for failing to invoke her discretion to seek an independent counsel in any matter that "may result in a personal, financial, or political conflict of interest" for her.

Consider John Huang, the Clinton-connected former executive of the Clinton-connected Riady family’s Lippo Group, who jumped from there to the Commerce Department (amid large Riady-to-Clinton/DNC contributions) and then to the DNC. Huang is under investigation by the Justice Department for collecting massive amounts of allegedly illegal foreign contributions. As Sen. Hatch points out, news reports suggest that Huang received a $788,750 severance package from Lippo, whose executives boasted of having "placed" him in the administration; that Huang made at least 78 visits to the White House; that he "had his transfer to the DNC orchestrated at a curious September 13, 1995 Oval Office meeting attended by the president, Bruce Lindsey, James Riady, and … Joseph Giroir"; and that, according to notes by former Clinton aide Harold Ickes, Huang targeted "overseas Chinese" as potential donors.

"In short," asks Hatch, "isn’t there sufficient information at least to investigate whether any of these top-level White House advisers were aware of or involved in Huang’s and the Riadys’ far-reaching [alleged] scheme to launder foreign funds into Democratic campaign coffers? Does the attorney general expect the public to have confidence that she can …investigate individuals among the president’s closest advisers without any conflict?"

Reno may have a good answer. I haven’t heard it.