September 15, 1998
An Independent Counsel We Can Live Without
By E. Joshua Rosenkranz
Imagine you’re a prosecutor who has secured a graphic videotape of a gang war. It starts with a gang lieutenant throwing a bottle at an enemy gang across the street, which ignites a bloody melee ending with the deaths of several gang members and bystanders. Do you (A) prosecute the gang lieutenant for violating a city ordinance about recycling bottles; or (B) prosecute all the hoodlums variously for murder, assault, riot, and other serious felonies? The answer may be obvious to us, but Atty. Gen. Janet Reno seems to be torn over an identical choice between two investigations into campaign finance abuses in the 1996 presidential elections.
From the perspective of campaign-finance law, the 1996 presidential elections were mayhem. The Clinton/Gore and Dole/Kemp campaigns each accepted $62 million in public funds. The candidates understood that once they accepted the money, it would be illegal to raise a penny of private money to advance their elections. Yet they then presided over a massive conspiracy to evade the fundraising ban—and, indeed, all applicable campaign-finance rules.
They sold preferred access in return for fat checks from corporations, unions, and other deep pockets. Funneling the contributions into the national parties, and sometimes laundering it through phony transactions with state parties, each presidential candidate then spent the money in support of his election. The money bought TV ads featuring the candidates—indeed, at times scripted and directed by them—and emphasized campaign themes.
Two years later, the attorney general has finally taken a concrete step toward the appointment of an independent prosecutor to investigate the abuses. Actually, two steps. Within the space of a few days she launched two preliminary inquiries into the campaigns (and a third perjury investigation involving an aide’s congressional testimony). The first was an exceedingly narrow investigation into some phone calls Vice President Gore made from his office. The second was a broader inquiry into whether the president and the vice president orchestrated a sweeping conspiracy to evade campaign-finance laws.
The inquiries have been almost universally hailed as good news. But they’re not. At least not as long as the attorney general keeps alive the option of appointing an independent counsel to investigate only the exceedingly narrow question whether the vice president violated a 19th century law that prohibits fundraising on federal property by using a White House phone to solicit campaign contributions.
This inquiry is so far afield that it makes Kenneth Starr’s latest forays—into matters such as whether it’s still “sex” when one person is sexually gratified and the other is not—seem directly on point with his initial charge to investigate an ancient Arkansas land deal. The phone-call investigation begins with the assumption that it was perfectly fine for the candidates to raise and spend the millions of dollars of soft money on campaign ads; it was fine to orchestrate the shell game and to script and direct the ads. There wasn’t even anything wrong with using a White House phone to solicit huge amounts of soft money and run the whole conspiracy, the logic goes. Rather, this narrow investigation over whether the vice president used a White House line to solicit money that found its way into a bank account set up by the Clinton/Gore campaign (an account used primarily to pay for campaign ads that were indistinguishable from the party’s ads anyway). Illegal? Sure. But talk about missing the point.
If the choice were between appointing an independent prosecutor to nail this minor infraction and appointing none at all, we would all be better off without. If Whitewater has taught us one thing it is that inquiries of this sort devolve into scorched-earth, sometimes politically driven battles that distract officials from important public duties while feeding public cynicism.
If we are to subject ourselves and the executive branch to another one of these ordeals, it should be about a matter of profound public importance. A massive conspiracy by both parties to violate federal campaign finance laws qualifies. A trifling inquiry into which phone line was used does not.
ABOUT THE AUTHOR
E. Joshua Rosenkranz is Executive Director of the Brennan Center for Justice at New York University School of Law.