Under increasing pressure from Senate Republicans, Attorney General Janet Reno is now facing an unprecedented attempt to force her to recommend yet another independent counsel, this time to investigate alleged campaign finance violations by President Clinton and Vice President Al Gore during the 1996 election.
Senate Judiciary Committee Chairman Orrin Hatch and the other Republicans on the panel are now studying a draft lawsuit against Reno, drawn up by committee member Sen. Arlen Specter, R-Penn, that accuses her of ignoring evidence of federal election law violations by Clinton, Gore and their staffs, and asks the court to appoint an independent counsel to investigate the evidence. Specter says he's confident that a majority of Republicans on the committee will join the lawsuit and that this group will have standing to file the petition, as early as next month.
"I think the conclusions [of the lawsuit] are very strong," says Specter, a former prosecutor.
Specter's draft charges that Reno has ignored what he calls "overwhelming evidence" that Clinton violated election laws by raising money illegally from foreign contributors; that Gore improperly raised money with telephone solicitations from the White House; and that both directed so-called soft money to be spent on illegal election ads. The suit also accuses Reno of failing to act on evidence gathered by the Justice Department that the Chinese government may have funneled money into Clinton's campaign to influence the outcome of the 1996 election.
Specter argues that under the law, such a wide body of evidence obligates Reno to appoint an independent counsel.
Pressure on Reno is building in the wake of a confidential report by the departing chief of the Justice Department's campaign finance investigation. Thursday's New York Times, quoting a government official, said the prosecutor, Charles La Bella, had concluded that Reno has no alternative other than recommending the appointment of a special prosecutor. Coming from a veteran prosecutor familiar with the evidence gathered to date, the report would be politically dangerous for Reno to ignore.
A Justice Department spokesman said Reno was studying the report and had no further comment.
"There is a limit to a prosecutor's authority in not enforcing the law as it is plainly written, and there is a remedy that permits the courts to step in and require the prosecutor, in this case the attorney general, to enforce the laws of the United States," said Specter's press secretary, John Elliott.
Reno's problems with the Senate Republicans over the campaign finance scandal are not new. Late last year, after Sen. Fred Thompson conducted lengthy hearings about election law abuses, Republicans on the Senate Judiciary Committee sent Reno a written appeal asking her to recommend the appointment of an independent counsel. Reno refused, choosing instead to have the Justice Department investigate the matter.
Senate Republicans, already frustrated by Reno's refusal, grew even more perplexed when she appointed an independent counsel to investigate allegations of influence peddling against Labor Secretary Alexis Herman. At the time, the Justice Department said it could not determine if the charges against Herman were credible and that there was strong evidence she had not done anything wrong. The fact that Reno recommended an independent counsel anyway suggested to Senate Republicans that Reno was applying a double standard when it came to the president and the campaign finance issue.
Their suspicions grew when LaBella, the leader of the Justice Department's campaign-finance probe, announced he would retire later this summer. Convinced that Reno's investigation was crumbling, Hatch summoned the attorney general before his committee last Wednesday to try to convince her that only an outsider could effectively trace any White House involvement.
It was a bruising appearance for Reno, with Thompson quoting from a confidential memo by FBI Director Louis Freeh that refuted the reasons she had cited for declining to recommend an independent counsel. Specter accused her of a double standard. Hatch read a hostile editorial from the New York Times that warned that Reno's legacy would be "the preservation of a cover-up."
But Reno, as is her style, was unmoved. "I don't do things based on editorials," she said. "I do things based on the law."
Describing himself and his colleagues as "disgusted" by Reno's performance, Specter took the extraordinary and unprecedented step to begin preparations for the lawsuit that would compel Reno to appoint an independent counsel to investigate the campaign finance evidence. Specter's lawsuit would petition the Federal District Court for a writ of mandamus, a common law remedy that is used to force government officials to carry out the duties they are required to perform under the law.
At the federal level, the writ of mandamus is typically used by plaintiffs to collect unpaid Social Security benefits or to redress other technical complaints. This would be the first time ever that a plaintiff invoked the law to challenge the independent counsel's statute, which was passed in 1978.
Until now, Senate Republicans had considered less Draconian ways to change Reno's mind. But since Reno's appearance, Republican members of the Senate Judiciary Committee are now actively considering Specter's move, committee staffers say.
Even if Specter manages to gather the signatures of a majority of the committee's nine Republican members -- and that's still an if -- it will not be easy to convince a court to grant the compulsory writ.
"It's very hard to get," says Christopher Schroder, a law professor at Duke University. "The court has to be persuaded that there is absolutely no conceivable way that the official who is refusing to act could do so and still be behaving lawfully. It's a very high burden of proof."
Schroder says there are innumerable reasons why a prosecutor might decide not to indict someone, even if he or she had some evidence of a crime. "A judge won't sit and listen to a petitioner who comes into court and says, 'Look, if the U.S. attorney had only looked at this evidence in the right way, he would have seen that there is more than enough probable cause to indict.' In other words, the court is not going to substitute its judgment for the judgment of the official unless it is overwhelmingly convinced that the decision is irrational or obviously contrary to law."
A crucial piece of evidence in any suit that Republicans bring will be Freeh's confidential memo, written in November 1997, a month before Reno's earlier appearance before the Judiciary Committee. As described by Thompson, who was briefed on its contents, Freeh's memo argues that the independent counsel's statute was specifically created to avoid conflicts of interest -- both real and apparent -- when an attorney general investigates her superiors. Freeh also reminds Reno that this determination of a political conflict of interest requires her to appoint an independent counsel.
"Freeh's arguments would be Exhibit A in Sen. Specter's petition," Schroder says.
But government lawyers familiar with the matter say Specter's petition, if it materializes at all, has little chance of succeeding. To begin with, they say, it is arguable whether the independent counsel's statute allows for any judicial review of an attorney general's decision not to recommend an appointment. Within this context, the Freeh memo is irrelevant. "It's her decision whether or not to recommend," one said. "This is not a reviewable decision."
If such review were permitted, several lawyers added, it could be challenged on the grounds that it violates the constitutional separation of powers.
"If review were taken away from the attorney general and put in someone else's hands, you would have a real problem with the separation of powers because the power to execute the law is confined by the Constitution to the executive branch," said one lawyer who spoke on condition of anonymity.
Government lawyers also could challenge the legislators' legal standing to bring suit against Reno. Though the law says that a majority of members of the Judiciary Committee may request that the attorney general recommend an independent counsel, there is nothing in the law that says these legislators have standing to sue if a special prosecutor is not appointed, these lawyers say.
"To have standing, you have to show that you are personally injured by the action that you're complaining of and that a favorable decision will redress that injury," this attorney said. "Generally speaking, legislatures are not found to have that kind of injury."
"I think Specter is grandstanding here," he added. "Specter is a good enough lawyer to know that this is absurd."
Senate Republicans dismiss such talk as wishful thinking. While no other members of the committee have yet signed on to Specter's petition, "There have been some favorable discussions among the Republican members and we're optimistic," said Elliot, the senator's spokesman.
"After last Wednesday's appearance [by Reno], where well-reasoned attempts to get the attorney general to explain her unwillingness to read the law as it concerns the appointment of an independent counsel were unsuccessful, the likelihood of other members' joining in this unusual move by Sen. Specter has increased," he said.