Basic Conflict Impeded Justice Probe of Fund-RaisingBy Susan Schmidt and Roberto Suro
Washington Post Staff Writers
Friday, October 3, 1997; Page A01
Two weeks ago, after she abruptly replaced the leadership of the Justice Department task force investigating allegations of campaign fund-raising abuses, Attorney General Janet Reno insisted she still had confidence in the original team, and told reporters it had done "a very professional, very fine job."
Yet an examination of the task force's 11-month effort, and interviews with more than a dozen Justice Department and FBI officials who participated in or have direct knowledge of its efforts, indicates that the investigation was plagued by a disagreement over its mandate that was so fundamental it may have crippled its efforts from the start.
And even as Reno repeatedly assured increasingly demanding congressional Republicans that all was proceeding as it should, with "no stone" left unturned, investigators wrestled with extensive internal restrictions on things as basic as what information they could share with each other, and difficulties as prosaic as the lack of an adequate system to even look at let alone analyze the hundreds of thousands of documents they acquired.
The result, despite Reno's protestations that the task force functioned professionally and effectively, was an investigation that, even after months, could point to little visible achievement.
The clearest evidence of the task force's failings shows up today, when Reno announces she will take the next legal step under the Independent Counsel Act, opening a preliminary investigation that could lead to the appointment of an independent counsel outside her control to look into Vice President Gore's fund-raising activities. Her deadline for a similar decision on President Clinton is Oct. 15. The information that may result in an independent counsel came not from the task force that had spent nearly a year investigating the 1996 campaign, but from a newspaper account of Gore's activities.
At the core of the task force's difficulties were two sharply differing interpretations of the Independent Counsel Act itself. Far from investigating Clinton, Gore or other senior officials specifically covered by the act, Justice Department prosecutors determined at the start that the law prohibited them from looking at the activities of such "covered persons" unless presented with "specific" and "credible" allegations that they had committed a crime.
Members of the task force began the investigation with methodical examinations of newspaper accounts of irregularities in donations by foreigners and possible laundering of illegal donations, primarily to Democrats, by lower-level fund-raisers. They sorted through voluminous documents of campaign minutiae. They operated under a "bottom up" strategy that sources said infuriated their task force partners in the FBI.
FBI executives believed the Justice Department approach was too narrow and restrictive, and that it prevented them from focusing on or even interviewing senior administration and Democratic National Committee officials, thus ensuring that covered persons would be among the last implicated in any possible misdeeds.
"The [FBI] wanted to investigate the president and the vice president," said one well-placed Justice Department attorney who, like all others interviewed for this article, declined to be identified by name. ". . . We thought if the evidence was there for an independent counsel, we would get to it in the normal, ordinary course of the investigation."
From the outset, the task force studiously avoided seeking out new information on an issue many may have assumed it was examining most closely: whether the White House or the Clinton-Gore reelection campaign was involved in fund-raising abuses. If agents came upon evidence of a crime by a covered person, they were instructed to flag it immediately so the attorney general could decide whether to seek the appointment of an independent counsel. But the agents were not to go looking for such evidence, the Justice lawyers insisted.
"You can't ask someone whether a covered person committed a crime," said one Justice Department lawyer involved in the investigation.
Eventually, the conflict between the lawyers and the FBI agents became so great that even routine matters had to be referred to their most senior bosses, who themselves sometimes disagreed over how to proceed.
Alarm Bell Sounds
It was not until eight months after the task force began its work that the FBI began to interview more senior officials.
For Director Louis J. Freeh, the July publication of a potential witness list by the Senate committee holding hearings on campaign fund-raising was an alarm bell. The list included some of the most senior officials in the Clinton-Gore campaign and the Democratic National Committee, officials that FBI agents inside the task force had felt constrained from talking to.
The possibility that these officials would be questioned in public before the FBI had talked to them was unacceptable, Freeh concluded. He ordered that everyone on the list be interviewed by the FBI, most for the first time.
Even the White House, which potentially had the most to lose by a more aggressive, focused task force, long had been baffled by its operations. "It was something of a mystery to us," said a senior Clinton administration official involved in responding to Justice Department requests for documents and witnesses. The official noted in a recent interview that neither the department nor the FBI asked until recently for witnesses or information relating to some of the most obvious lines of inquiry.
It was not until last week, for example, that former White House deputy chief of staff Harold Ickes the key White House contact with the Clinton-Gore campaign committee and the DNC was interviewed, as the Senate Governmental Affairs Committee prepared to call him as a witness and after he had received assurances in writing that he was neither a subject nor a target of the investigation. And DNC finance director Richard Sullivan, the Senate panel's lead witness, was not interviewed by the task force until after he testified on Capitol Hill.
The task force attorneys' narrow interpretation of the discretion allowed investigators under the Independent Counsel Act is shared by some, but far from all, legal experts.
"You don't tell the FBI that in this particular investigation unlike any other you don't seek a full explanation of what happened. You follow the facts and let them lead where they may," said one experienced Justice Department prosecutor familiar with the Independent Counsel Act.
"If they said we're not going to look into this because it might lead to a covered person . . . it is prima facie evidence of proof of conflict of interest. If they were restraining the agents, if they curtailed the manner in which questions could be asked, that should have been the moment when they appointed an independent counsel."
Terry Eastland, a Reagan-era Justice Department official who has written a book on the independent counsel law, said the limitations agents felt were placed on them reflected a "very rigid analysis. . . . If you feel that constrained that you can't interview anybody . . . you've already bumped up against the statute, and you ought to hand it off" to an independent counsel.
Since the task force began its work last November, congressional Republicans and others have demanded that Reno do just that. Critics argued that this was the only logical course given the possibility that an investigation of campaign finance abuses would lead to the White House, and thus to an inevitable conflict of interest for Reno, a political appointee.
Yet Reno's actions were consistent with her interpretation of a law that is both complicated and vague, and leaves some room for differences of opinion.
Congress enacted the independent counsel process in the wake of the Watergate scandal of the early 1970s to preempt the conflict of interest that would arise if an attorney general were to investigate the president who appointed him or her.
As soon as federal investigators find "credible" and "specific" information suggesting that an individual covered under its provisions including the president, vice president, other top officials of the executive branch and a president's campaign organization may have committed a crime, the Justice Department is supposed to stop what it is doing and initiate a series of strictly defined procedures conducted under court supervision to determine whether there are grounds for a full investigation. If they find there are, that investigation must be carried out by an independent counsel.
The reasoning developed this year by Justice Department experts in the campaign finance matter was that if no credible allegation had surfaced specifically about a covered person, or if the allegation involved no criminal violation, then investigators had no business looking into any covered person's affairs.
Thus, it was not until March, nearly five months after the task force began its work, that a "specific" allegation against a covered person first was seriously examined. This review examined whether Gore might have violated federal election law by soliciting campaign donations by telephone from his White House office.
In response to a newspaper article, Gore acknowledged having made the calls. But the White House said he had not solicited tightly regulated "hard money" for the Clinton-Gore reelection campaign, only "soft money" for Democratic Party activities. Reno, responding to congressional demands for an independent counsel, embraced that distinction. She said that because "soft money," which is not strictly regulated by federal election law, was involved solicitations from the White House did not meet the test for indicating a possible criminal violation.