|POLITICS AND PROSECUTION
The Attorney General comes under
fire from congressional Republicans
August 12, 1998
in this forum:
Is the problem with Janet Reno or with the wording of the independent counsel statute? How could Reno be accused of protecting the president? Why is it so difficult for Reno to provide Congress the Justice Department's internal memo about appointing an independent counsel? Is there any credible reason why Janet Reno would not appoint an independent prosecutor? Is the move to cite the attorney general for contempt justifiable?
Charles Chien of Houston, TX, asks: Why is it so difficult for Reno to provide Congress the Justice Department's internal memo about appointing an independent counsel?
Michael Carvin, former Justice Department official during the Reagan administration, responds:It is important for criminal law prosecutors to preserve the confidentiality of internal communications in order to foster frank discussions and avoid tipping off potential targets.
Professor Doug Kmiec of Pepperdine Law School responds:
Here, Attorney General Reno is on solid ground. As Assistant Attorney General for the Office of Legal Counsel to President Reagan, I had more than one occasion to defend the prosecutorial memos of the department from early disclosure. Early disclosure cripples a criminal investigation -- risking the disclosure of methods or sources of information, tipping off targets and thereby prompting the destruction of evidence, and sometimes wrongly implicating the innocent who just happened to be mentioned in an investigation file.
In a normal presidency, that is, one not weakened by personal scandal, one would fully expect the president to back up an attorney general when Congress pries into an open investigatory file. Of course, the problem here is that the president may well be the target. All the more reason for Mrs. Reno to refer to an independent counsel. As the FBI Director has noted that statute contemplates this kind of conflict of interest directly, and this -- far more than even Whitewater or Lewinsky -- is exactly the kind of case for which some kind of outside investigator -- not beholden directly to the president -- is warranted. Referral would accomplish what Ms. Reno cannot -- it would allow an independent counsel to fend off Congress' intrusion into a criminal investigation.