|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?
Josh Kaplan of Miami, FL, asks: Is the move to cite the attorney general for contempt justifiable, or are the congressional Republicans playing partisan politics?
Michael Carvin, former Justice Department official during the Reagan administration, responds:Congress is understandably frustrated by the attorney general's apparently unsupportable obstruction of appointing an independent counsel. They believe they have an important oversight role and clearly are following the precedent established by Democratic-controlled Congresses. For example, in Iran-Contra, Attorney General Meese was forced to disclose internal communications on his investigation, leading to the appointment of an independent counsel.
Professor Doug Kmiec of Pepperdine Law School responds:
It is somewhat partisan, of course. What isn't in Congress -- on both sides. Nevertheless, the House Reform Committee does have oversight responsibility, and Ms. Reno has all the appearance of disregarding her legal duty. Contempt may be the only medicine, short of impeachment of the Attorney General, that will make the point. After all, the basis for contempt did not occur overnight. It followed months of back and forthing with no adequate explanation for why the independent counsel statute was being avoided in this matter. If the Democrats don't want an independent counsel, or they want crimes investigated by the Department of Justice again, the solution is to repeal the independent counsel statute altogether, or at least seriously reform its flaws, not defend an Attorney General's unilateral repeal of a statute in a particular matter.
It is unlikely, of course, that the full house will agree with the contempt; or, even if they do, that the Department of Justice will have any success prosecuting its own head in a court of law. Courts tend to view these contempts as "political questions" and they cajole the parties into going back and trying for some accommodation -- like a partial or redacted disclosure of materials.
If all else fails, look for Congress to legislate greater restrictions on the Department in its next budget cycle.