Even by Washington standards, Janet Reno has suffered a wicked case of conventional-wisdom whiplash. After famously "taking responsibility" for the botched FBI raid in Waco in 1993, she was lionized for her refreshing readiness to be held accountable. Before long, however, the buck-stops-here cliché grew stale, and the story line changed. It became: Because of Reno's managerial incompetence and the disarray she presided over at the Justice Department, a lot of innocent Branch Davidians died unnecessarily. (Version 2 is at least as dubious as Version 1.) Originally hailed as "the very best appointee of the Clinton administration, bar none," by Morton Kondracke, Reno has more recently been called the president's "worst major Cabinet appointment" by the editors of the Weekly Standard.
The latest and most dramatic turnabout has been on the question of Reno's "independence." The approved view until recently was that Reno had made herself irrelevant--a Washington nonplayer--by being so intractable and prissy. Various articles published in 1995 and '96 included mutterings from White House officials that the attorney general had no relationship with the president, and that officials would love nothing more than an excuse to replace her after the election. More recently, however, Republicans have insinuated--and the news media have reflected--the view that Reno is not just a team player, but a political shill for the White House. This is because she refuses to appoint an independent counsel in the campaign-finance scandal. The New York Times, in a recent editorial, raised doubts about Reno's "loyalty to the public." Newt Gingrich, the historian, went well beyond that, comparing Reno to Richard Nixon's Attorney General John Mitchell, who went to jail for obstruction of justice.
Gingrich's comments are as offensive as usual, but even the milder form is absurd. People do play against type from time to time, but the charge that Reno has suddenly become a docile tool of the White House simply doesn't wash. Her decision on the independent-counsel issue may be good or bad--but it is legally defensible, and the evidence that Reno has been swayed by political factors doesn't amount to a prima facie case.
The first point is Reno's own background and personality. As state attorney in Dade County, Fla., Reno acquired a reputation not just for integrity but for an almost fanatical probity. She asked the governor to appoint an independent counsel to prosecute her own mother when the late Jane Reno was arrested for drunken driving. In Miami, as in Washington, Reno was criticized for her management style, for her sentimental notions about crime, and for her general mulishness. But until a few months ago, no one ever accused her of bending the law.
E ven if she were a different sort of person, the case that Reno is acting politically in not appointing an independent counsel would fall apart over the issue of motivation. When calls first came for an independent counsel in November, Reno might have been vulnerable to pressure. She was, by all accounts, eager to stay on as attorney general in an administration that was not at all eager to keep her. Until some time after the Inauguration, Clinton might have got away with getting rid of her while he was replacing others in the Cabinet.
But political circumstances have changed since then. The best thing Reno could possibly do to guarantee her own job security is to appoint an independent prosecutor. If she did, Clinton could never get rid of her. If he tried, it would be treated like a version of the infamous Saturday Night Massacre, when Nixon kept firing Justice Department officials who wouldn't fire special prosecutor Archibald Cox.
Whether Reno's decision not to appoint is correct on the merits is another question, which won't be settled here. But it is pretty clearly within the bounds of reasonableness. Reno's critics have been imprecise, and often contradictory, on the question of why they think she must appoint an independent counsel. Under the law, the attorney general is obliged to do so if she comes across "specific and credible" evidence of criminal wrongdoing by a high-level official covered by the act. She also has the discretionary powers to appoint an independent counsel if she feels there would be a "personal, financial, or political conflict of interest" if normal Justice Department procedures were followed.
Though it is blindingly obvious to Reno's critics that criminal acts were performed by high-level Clinton officials, they don't agree among themselves about which actions by which officials qualify. Sen. John McCain, R-Ariz., thinks it's Al Gore's fund-raising calls from his office. Common Cause thinks it's Bill Clinton's coordination of soft-money expenditures from the White House. Orrin Hatch, R-Utah, thinks it's letting John Huang into the White House.
Reno says that no accusation against either Gore or Clinton meets the "specific and credible" standard. Gore, she asserts in a lengthy response to a request from Hatch, was raising soft money, which is not covered by the regulation that prohibits solicitations from government buildings. The coordination of soft-money expenditures that Clinton was involved in, she says, isn't illegal. I think this last interpretation is unfortunate, because it opens the floodgates for unlimited contributions from corporations and labor unions, which is what the post-Watergate election reforms were supposed to prevent. But legally, Reno is on pretty firm ground.
That leaves the more vague--and discretionary--language about "personal, financial, or political conflict of interest." No one has suggested that Reno has a financial or personal stake in the latest scandal. Hatch and others have made the case that she faces a political conflict: Reno is an appointee of the administration presiding over an investigation that is potentially embarrassing and damaging to the administration. But the standard for appointing an independent counsel can't be that broad. Attorneys general face political conflicts every day--whether to bring cases against enemies, associates, friends, even relatives of members of the administration. Given a broad interpretation, the conflict-of-interest provision would require dozens, if not hundreds, of independent counsels. Reno has apparently construed this ambiguous provision in the only way one sensibly can. It gives her a wider berth than the "specific and credible" language, but it does not require her to appoint an independent counsel every time someone in the opposing party detects the appearance of a political conflict.
Paradoxically, caving in to her critics would bolster Reno's reputation for fearless independence. If the attorney general had ordered up an independent counsel, not only would her job have been secure but the New York Times (and maybe even Sen. Hatch) would be swooning over her once again. Standing up to them, and doing what she evidently feels is right, means being taken for a Clinton hack. To her great credit, Reno has thus far rejected the perception of independence in favor of the genuine article.