Call for Counsel

JIM LEHRER: More now from Roberto Suro, Justice Department reporter for The Washington Post. He joins us from the Post newsroom. Welcome. Now, the attorney general's decision was not announced, there wasn't a news conference or anything like that. It's in these papers she filed in court, correct?

ROBERTO SURO, Washington Post: That's correct.

JIM LEHRER: All right. Now, what does she cite as the reason that justifies an independent counsel in this case?

ROBERTO SURO: Her petition to the court states that the Justice Department's preliminary investigation found specific and credible evidence that Secretary Babbitt may have made false statements to Congress in the testimony that was cited just a moment ago, and that those statements could constitute perjury.

JIM LEHRER: And she also said, though, that they could go beyond the perjury thing if they want to, in other words, the independent counsel could, correct?

ROBERTO SURO: That's correct. In describing the proposed jurisdiction for an independent counsel, the attorney general said an investigator might find it necessary to look at the underlying facts in order to establish the truthfulness or not of Babbitt's statements, and that would go to the whole question of political influence in the manner the casino decision was made.

JIM LEHRER: So the term "narrow" may not necessarily apply to this, is that correct?

ROBERTO SURO: Well, it applies to what the Justice Department has said it's found so far in that it has only found evidence of potential wrongdoing as regards Babbitt's statements to Congress . It doesn't apply to the potential investigation that now follows, which will look at the facts that underlie those statements.

JIM LEHRER: And if those facts warrant further investigation, it is Janet Reno's conclusion, at least, that the independent counsel is free to go ahead and investigate?

ROBERTO SURO: That's right. The language of her petition says, for example, that an independent counsel in conducting a thorough evaluation of Babbitt's statements might want to go to the underlying facts, which really leaves the door wide open for an investigation that goes to the White House relationship in this matter.

JIM LEHRER: But she said that their investigation thus far had not concluded that there was any violation of the law there, right?

ROBERTO SURO: Indeed. The language sort of cites a preliminary short investigation into the underlying facts but found no evidence of wrongdoing in the casino decision, itself.

JIM LEHRER: Now--and back to the thing where she's very specific--and that is the possibility that Bruce Babbitt committed perjury, that should not be read that they concluded that he committed perjury, correct, right?

ROBERTO SURO: That's right. Under the independent counsel process the whole idea is to keep the Justice Department from forming prosecutorial decisions about another senior member of the same administration, so in this case Reno basically has to decide whether Eckstein or Babbitt was telling the truth. And you're talking about what happened between two people in a closed room. And to make that kind of a decision over which of the two of them is telling the truth is something that I, the attorney general, should not be doing, but somebody outside the administration should be doing.

JIM LEHRER: All right. Now, take us through the process what happens now. She filed her papers today.

ROBERTO SURO: Right.

JIM LEHRER: It goes to this three-judge panel. Explain the process.

ROBERTO SURO: The three-judge panel (a) has to find somebody who is willing to serve as the independent counsel and second, has to define the mandate. What Reno suggested today is no more than that. It's a suggestion. The three-judge panel has final say over exactly how the mandate, the investigative scope for the independent counsel will be defined. When they have found somebody who agrees to take the job, they'll present him or her and release their language on the mandate, itself.

JIM LEHRER: Now, does this three-judge panel go to--is there a pool of people who are standing by to be appointed independent counsel? How do they go find the right person now?

ROBERTO SURO: You know, in the past they have gone to veteran lawyers, people with prosecutorial experience, sometimes trial lawyers who have not served as prosecutors. There's said to be a list of likely candidates. It's certainly not a public list. You know, part of the problem is finding somebody who is willing to give up whatever they're doing at this point and come to Washington to conduct an investigation that could take some time.

JIM LEHRER: And it has to be somebody that has no seeming--seemingly has no political ties to either side of the game, right?

ROBERTO SURO: Absolutely. Although there certainly has been controversy over some of the people they've chosen most recently, particularly Ken Starr.

JIM LEHRER: Sure. Because he was a long-time Republican, et cetera.

ROBERTO SURO: Right.

JIM LEHRER: Now, once the independent counsel is decided, then who decides how much money that an independent counsel has, what kind of staff he or she gets, how long he or she has to investigate, et cetera?

ROBERTO SURO: Once an independent counsel's named and the mandate is defined, it's really all up to the independent counsel as to how long they investigate and how much money they spend. There's no regulatory procedure, which is one of the controversies that is developed now over some of the long running investigations of both the Iran-Contra investigation, for example, and now the Ken Starr investigation. They really are on their own. An attorney general can dismiss them for cause, but it's got to be a pretty serious wrongdoing; otherwise, they're pretty much on their own.

JIM LEHRER: So this is a bad analogy, but it's the only one that leaps to mind. I mean, another train is about to leave the station with no known destination at this point.

ROBERTO SURO: Well, it's not quite that. It's on a track. The track goes to the Interior Department and Bruce Babbitt and that conversation, that conversation mentioned Harold Ickes, so it pretty well could go to the White House and to Harold Ickes, and that conversation allegedly, at least according to Mr. Eckstein, mentioned campaign contributions from Indian tribes and so it might well go to the DNC and to campaign contributions.

JIM LEHRER: All right. In the past, Janet Reno has not appointed independent counsels to investigate campaign finance allegations. Why is this case different?

ROBERTO SURO: This case is different because on the very specific matter of deciding the truthfulness of statements by a cabinet member the Independent Counsel Act leaves an attorney general very little latitude. To decide whether one person or another is telling the truth about what was said between them, you pretty well have to get into their heads and figure out what their motives were, what their intent was, who had reason to lie, and who didn't. The whole purpose of the Independent Counsel Act is to make sure that an attorney general is not doing that, making those kind of subjective judgments about a fellow member of the administration.

JIM LEHRER: So this shouldn't be a big surprise to anybody?

ROBERTO SURO: It isn't.

JIM LEHRER: All right. Roberto Suro, thank you very much.

ROBERTO SURO: Thank you.