Janet Reno and Dan Burton are locked in mortal combat over the hottest document in the campaign finance investigation. The stakes are enormous: If Reno loses, the administration loses control of a politically explosive issue.
Byron York is an investigative writer with TAS.
It was no secret among Charles La Bella's prosecutors that the campaign finance investigation had set off internal warfare within the Justice Department. A top official in the U.S. Attorney's office in San Diego, La Bella had been summoned to Washington in the fall of 1997 to bring order to the department's disastrous initial investigation. By early summer, his team had gathered reams of evidence on possibly illegal fundraising in the 1996 presidential campaign. But La Bella, according to two sources close to the campaign finance task force, had not made a decision on the question of whether the evidence merited a full-scale investigation by an independent counsel.
La Bella decided to step back and take a look at the big picture. After reviewing all the cases, he came to the conclusion that the evidence was overwhelming--and that it required Attorney General Janet Reno to trigger the independent counsel law. At that point, La Bella began work on a lengthy memorandum to Reno, a report that would summarize the evidence and make the case for a counsel.
As La Bella wrote, the sources say, he regularly discussed the investigation with senior department officials. Some, like Reno and top deputy Eric Holder, did not signal what course they might ultimately take (although Reno had resisted all earlier calls for a counsel). Others, like Public Integrity chief Lee Radek, his assistant Jo Ann Farrington, and Deputy Attorney General Robert Litt, seemed dead set against a campaign finance independent counsel.
The differences in opinion led to heated arguments that left the participants' nerves on edge. Prosecutors on La Bella's side believed Radek, Farrington, and Litt were simply set in stone on the issue; arguing with them, the sources say, was like arguing with a brick wall. La Bella even wrote a letter to Reno telling her the issue had become so overheated that rational debate was no longer possible. "It is clear to me that emotions run high whenever we begin a discussion of the Independent Counsel Act," he wrote. "I do not think we are capable of the type of collegial exchange which would be beneficial."
By mid-July, La Bella finished his memo and gave it to the attorney general. He made just three copies: one for himself, one for Reno, and one for FBI Director Louis Freeh, who also favored the appointment of a counsel. Sources say La Bella apparently intended to keep the memo a closely held secret-- vainly hoping to shield it not only from the press but from the in-house critics. Perhaps Reno would read it on her own a few times before giving it to the people who were going to rip it apart.
But that's not what happened. Instead, once the report hit Reno's desk, several copies were made and distributed to the attorney general's circle of advisers. And it wasn't just insiders who got a look; within a few days, the New York Times published a front-page account of La Bella's central conclusion headlined "Reno Aide's Report Urges Counsel on Fund-Raising." Now everyone knew La Bella disagreed with his boss's stance against an independent counsel.
Reading the paper that day was Republican Congressman Dan Burton, who has been conducting his own campaign fundraising probe in the House Government Reform and Oversight Committee. Other than having a few meetings with Justice Department officials--and occasionally crossing paths with department investigators--Burton and his staff had not been kept informed about the progress of the La Bella investigation. The Times story was news to them.
Burton immediately sent a letter to Reno asking for a copy of La Bella's memo. She refused. Burton refused to accept her refusal. After those early skirmishes, an increasingly tense confrontation developed in which each side tried to make just enough concessions to head off a full-blown war. So far that approach has been unsuccessful, and in coming weeks Reno faces the prospect of becoming the first attorney general ever held in contempt of Congress.
Beyond that, the contempt fight might well mark a turning point in the battle over a campaign finance independent counsel. Although neither La Bella nor anyone else who has seen his memo will reveal its contents, La Bella's own public statements suggest that it contains previously unknown and potentially damaging information which could lead to an intensified pursuit of alleged wrongdoing by the 1996 Clinton re-election team. Were any of that information to become public, it is possible, even likely, that the attorney general would no longer be able to resist calls for a wide-ranging independent counsel investigation. At that point, Reno would lose control of the campaign finance probe--control she has jealously guarded for nearly two years.
Janet v. Dan
Reno cited several reasons for refusing Burton's request to turn over La Bella's memo. In a letter to Burton on July 28, she said the department had a long-standing policy not to provide congressional committees with access to open law enforcement files. She also wrote that revealing the memo's contents could provide a "road map" of the department's investigation that might tip off potential targets. Reno said she had to protect her investigators' right to give her confidential advice. And finally, she said the memo was filled with information gleaned from grand jury investigations, which had to be kept secret under Rule 6(e) of the federal code.
Burton was not convinced. In refusing to call for a counsel, Reno had publicly overruled the advice of her top prosecutors, the people who knew the most about the campaign finance investigation. And the attorney general had repeatedly refused to explain her decision. Burton believed that was an appropriate matter for a congressional committee to investigate. So he asked La Bella and Freeh to testify before the committee the following week--on August 4--and requested a meeting with Reno before that time.
Reno agreed. Accompanied by Freeh, she went to Burton's office late in the afternoon of Friday, July 31. Henry Waxman, the ranking Democrat on the committee, was also there, along with staff from both sides. According to one Democratic staffer who attended, Freeh was particularly forceful in arguing against letting Congress see the La Bella memo. "He was so adamant in the meeting that we not release it," the aide recalls. "He argued that it would have a chilling effect....He thought it would be devastating to the case if the memo were revealed."
Burton was not without sympathy. "We understood and expected their concerns, " remembers an aide. "But this was an extraordinary situation. It was of great concern to the members and the chairman." Burton felt Reno should trust him to keep La Bella's conclusions a secret. He and others pointed out that they had been briefed at the beginning of the year on the contents of Freeh's own memo to Reno in which he recommended the appointment of an independent counsel. "We kept the Freeh memo confidential for eight months," the aide recalls. "Never breathed a word about it."1
1 The substance of the Freeh memo remained a secret until July, when Senator Fred Thompson stunned Burton and others by reading a detailed account of the memo during a hearing at which Reno testified before the Senate Judiciary Committee. Even though Thompson spilled the beans, Burton still refuses to discuss the contents of Freeh's memo.
Reno told the lawmakers she was still reviewing La Bella's memo--she had had it for about two weeks at that point. She asked for three more weeks to study its contents; then, she said, she would discuss the issues with Burton. Waxman quickly spoke up, saying Reno should be given the time she wanted, and also that the La Bella and Freeh testimony should be canceled while Reno mulled the issue.
Burton didn't like the idea; he later wrote that he had "serious reservations about additional delay." The Justice Department, Burton believed, had been stalling for a long time. A three week delay would extend the issue into Congress's August recess, which meant nothing would be done until sometime in September, almost two months after La Bella gave the memo to Reno. Burton said no to the three week plan and no to the suggestion he call off the La Bella/Freeh testimony.
Then the chairman said something that set off yet another controversy. By all accounts, Burton told Reno that he planned to seek a contempt citation against her if she did not produce the La Bella memo. He said something to the effect that he wished the situation had not reached that point. And he said the exercise would be unnecessary if Reno called for an independent counsel.
The meeting ended. Although no Democrat had protested Burton's statements at the time, a few hours later Waxman accused the chairman of trying to strong-arm Reno into calling for a counsel. That night Waxman wrote a long letter to Reno in which he said it was "obviously inappropriate--and at a minimum a clear violation of the House ethics rules--for a member of Congress to seek to coerce an executive branch official to reach a predetermined conclusion on a discretionary matter. But that is exactly what happened today. "
Republican sources strongly dispute Waxman's charge. "Burton did not say that," insists one aide. "He did not say, 'If you appoint an independent counsel, we will drop the contempt action.'" But the damage was done. The next morning, the Washington Post ran a story headlined "Democrats Say Burton Made Threat Against Reno; Chairman Presses for Outside Finance Probe."
A surprised Burton was again on the defensive. A few days later, he wrote an angry letter to Waxman, telling the Democrat, "I deeply resent your mischaracterization of what took place in the meeting." What he meant by his comments, Burton wrote, was that "obviously a decision to appoint an independent counsel might make the oversight of the Justice Department's investigation moot since a Justice Department investigation would no longer exist under Ms. Reno's control."
Waxman declined to retract his accusations, and the incident left bad feelings all around. Beyond that, nothing had really been settled at the meeting. La Bella and Freeh were headed to Capitol Hill to testify on Tuesday, August 4. Burton didn't know it at the time, but Reno had a surprise in store for him.
Janet & Henry & Tom v. Dan
The hearing was scheduled for 10:00 a.m. La Bella, Freeh, and James DeSarno, the senior FBI investigator for campaign finance, were the only witnesses. Shortly after 9:00, according to a committee staffer, Burton's office got a call from the Capitol Hill police. "They said, 'Where's the attorney general going to be?'" the aide recalls. "We said, 'We don't know what you're talking about.'" Then, a few minutes later, reporters began to call. When was the attorney general going to testify? they wanted to know. Again, Burton's staff had no answer.
Finally, at about 9:45, Burton got a call from Reno, who told him she wanted to appear before the committee. The situation reminded committee staffers of an incident during last year's Senate campaign finance hearings when White House Counsel Charles Ruff, working in tandem with committee Democrats, showed up unannounced at a hearing and demanded to testify. Chairman Fred Thompson declined. Burton did the same thing.
The hearing began without Reno. After more than an hour of procedural bickering over whether to release documents related to several fundraising figures, Waxman launched into an impassioned critique of Burton. "This committee has been discredited by a series of mistakes, bad judgment, partisan overreaching, and extremism," the ranking Democrat said. "Someone told me our committee has become the congressional equivalent of the crazy aunt in the attic."
Waxman wasn't finished. "The attorney general even called the chairman this morning and requested to testify," he continued. "The chairman even refused that request." Burton was clearly taken aback. "If she called me at 15 minutes 'til 10:00," he asked Waxman, "how did you know that she requested to come before the committee?" Waxman acknowledged that Reno "called me in advance" to tell him of her plan to testify. "Ah," said Burton.
Finally, La Bella, Freeh, and DeSarno began to testify. Then, in the middle of the proceedings, California Democrat Tom Lantos said he wanted to read a letter to Burton from Reno. The attorney general, Lantos said, had written the letter that very morning; Lantos displayed the letter even though Burton, the nominal recipient, had not yet received it. "In light of your rejection of my request to be heard, let me explain the points I would have made, had you permitted me to testify this morning," the letter began. Lantos went on to read a long--several single-spaced pages--statement in which Reno defended her position.
It seemed clear to Republicans that the whole thing had been worked out in advance. "The letter certainly appeared to have been written before a quarter 'til ten," one aide said. GOP staffers concluded that Reno had taken part in a stunt designed to sandbag Burton. Like the contretemps over the July 31 meeting, the testimony incident left Burton and his allies on the committee angry and disappointed. Such gamesmanship, one aide said, "erodes a sense of good faith, erodes the integrity of the process."
One Percent
The maneuvering over Reno's non-testimony and the larger issue of her refusal to release the La Bella memo dominated news coverage of the hearing. Less attention was paid to what La Bella and Freeh actually said--which was, by anyone's reckoning, extraordinary.
Both men made it clear from the start that they strongly opposed releasing the memo. "The last thing in the world that I want to see, as the prosecutor heading this task force," La Bella testified, "is that this memo ever get disclosed....This, in my judgment would be devastating to the investigations that the men and women of the task force are working on right now." Freeh nodded in agreement.
La Bella declined to discuss any details from the memo, but he did publicly say that he believed an independent counsel should be appointed, a statement that, even though it had been leaked days before, clearly contradicted Reno's position on the matter. A few moments later, La Bella raised a number of eyebrows--and hopes--on the Republican side when Indiana Congressman Mark Souder asked whether La Bella's opinion was based simply on his own reading of previously known material, or whether the investigation had uncovered substantial new evidence:
SOUDER: You're saying that there are things in this report that are significant and have not been in the media?
LA BELLA: Oh, absolutely.
SOUDER: Are you saying there are just a few things that haven't been in the media thus far about your report, or are you saying there are many significant things and that's why it would be so devastating to release this report?
LA BELLA: I think the media has only one percent, I mean, may have the bottom line, you know, that I've acknowledged today for the first time, and that's really about it. I don't see much more substance that they have.
La Bella also made news when Burton asked why he favored a counsel. Was it merely because he felt the attorney general faced a conflict of interest in investigating her boss, the president? In other words, even if the evidence in the case were not terribly compelling, did he favor a counsel just to avoid a conflict--based on the so-called "discretionary" part of the law? No, La Bella said, that reasoning "played a very small part in my... recommendation to the attorney general." Then Burton asked if La Bella favored a counsel because he found "sufficient information on a covered person to trigger the mandatory part of the statute?" "Right," La Bella answered. "That's the clause--the major clause which is analyzed in my report. " La Bella and Freeh then went on to say that the covered persons involved could include the president and vice president.
Burton also wanted to know what kind of reception La Bella's work was getting within the Justice Department. For example, had La Bella taken part in a July 21 meeting during which Reno discussed the memo with her top aides? No, said La Bella, he wasn't invited. How about Freeh? No, the FBI Director said. And DeSarno? No.
Finally, Burton wanted to know whether Reno might have some compelling and secret reason to oppose a counsel. "Are there any facts, to your knowledge, that she might know that you don't?" Burton asked. "I don't believe so," said Freeh. "I don't think so," answered La Bella.
The hearing ended with a plea from Freeh that both sides avoid a " constitutional confrontation." Two days after the hearing, the committee met again and voted to cite Reno with contempt. The vote was straight party line-- 24 Republicans in favor, 18 Democrats opposed (along with nominal independent Bernard Sanders of Vermont). Congress then went into its August recess with the issue hanging in the air.
Numbered Copies
Negotiations continued during the recess, and by the end of August it appeared a solution might be reached when Reno offered a compromise. She would allow Burton and a small group of lawmakers and staff to read an extensively edited version of La Bella's memo. The deal was brokered by Senate Judiciary Committee Chairman Orrin Hatch, who had himself been asking Reno to see the memo.
A meeting was set for September 2 in Hatch's office. Attending were Hatch, Judiciary Committee ranking member Patrick Leahy, House Judiciary Committee Chairman Henry Hyde, Burton, and several staff members. All told, there were twelve people from Congress, along with many more from the Justice Department.
The congressional delegation did not expect to see the whole memo; Burton never demanded information that was covered by rules of grand jury secrecy. So the Justice Department blacked out all but about 30 pages of the 94-page document. La Bella personally made the redactions, removing all material that was covered by Rule 6(e). In the past, members of Congress have complained about such heavily redacted documents, but this time, according to a source at the meeting, there was no controversy. Hatch simply asked La Bella if he had made the redactions himself; when La Bella said yes, Hatch replied, " That's good enough for me."
According to sources who attended the meeting, the Justice Department officials handed out numbered copies of the memo, to be collected at the end of the session. There was apparently no clear agreement on whether note- taking would be allowed; whatever the understanding was, several people did indeed take notes. After about two and a half hours of reading and analysis, the group talked over what to do next.
There was a general agreement that a larger number of lawmakers should take a look at the memo. Democrats suggested having a group of five members, including Burton and Waxman, read the memo. Burton wanted a larger group to take a look at it. The meeting broke up with no decision.
Later, Burton asked that six Republican members of his committee-- Christopher Cox, Steve Horn, Christopher Shays, Bob Barr, Steven LaTourette, and John Shadegg--be allowed to see the redacted memo. (Burton chose those members because several are former prosecutors and one is a former White House counsel.) The group would be accompanied by an unspecified number of Democrats. "The request was, 'Please allow six more people to come and take a look so they will be knowledgeable enough to give advice to the chairman,'" one aide says. Reno's response left them in a quandary. In a phone call with Burton and Waxman on September 17, she said yes, the additional members could see the memo--but only on the condition that Burton agree to drop the contempt citation. Burton balked; such a deal would defeat the purpose of viewing the memo, which was to decide on what course of action to take.
That was the last straw. Later that day, Burton filed the committee's contempt report with the full House of Representatives. It was the first formal step that might lead to Reno being declared in contempt of Congress.
Slicing the Scandal
Editorial reaction to Burton's strategy was almost entirely negative. "It is bad enough that Mr. Burton has extorted from the Attorney General a look at even an edited version" of the La Bella memo, the Washington Post wrote. " But his continuing to push this matter...is a gross abuse of his powers." The Los Angeles Times wrote that Burton is on a "fishing expedition" and "has no business threatening Reno with contempt." Even the New York Times, which has been highly critical of Reno's stance against an independent counsel, called Burton's move "counterproductive" and "unsound on legal grounds." Scores of smaller papers echoed those sentiments.
It is true that Burton is making an extraordinary demand. He is asking to look at a key prosecutor's memo--in heavily edited form--in a case that is very much ongoing. In the normal course of events, any Justice Department, Republican or Democrat, would oppose that. But contrary to what Reno and her supporters maintain, Burton's request is not unprecedented.
At Burton's request, the Congressional Research Service looked into past conflicts between Congress and the Justice Department. They found several precedents from the 1980's alone. House Democrats, for example, demanded and received prosecutors' memos from the Republican Justice Department during the ongoing BNL investigation. Senate Democrats demanded and received prosecutors' memos from the Republican Justice Department during the BCCI investigation. And during Iran-Contra, Congress went so far as to depose Attorney General Edwin Meese and Assistant Attorney General Charles Cooper and other officials about their investigative decision-making.
And besides, Burton and his staff argue, the purpose of the contempt citation is not to take a peek inside an ongoing criminal investigation. Rather, they say, Congress has a legitimate right to investigate the conduct of the attorney general. Has she behaved properly in steadfastly rejecting the findings of her campaign finance prosecutors? Burton and his allies seem genuinely mystified at Reno's tortured reading of the law involving both campaign finance and the independent counsel--and they suspect, not wholly without reason, that something is terribly wrong at the Justice Department. " We're saddled with the idea that Burton is engaged in a high-level game of extortion," says one frustrated staffer. "That's not what's going on here. It has become a matter of oversight."
And Republicans fear that, should they lose, the ultimate result will be a gradual fadeout of the campaign finance scandal. They point to the three 90- day preliminary investigations Reno has initiated since the contempt battle began--into Vice President Al Gore's fundraising phone calls, the funding of " issue" ads, and the truthfulness of Harold Ickes's Senate testimony. Slicing the scandal into tiny parts will have the effect of further delaying a comprehensive investigation--and of draining the urgency from calls for an independent counsel. "What happens when you get to the end of the 90 days and they lift the curtain and say, 'Oops! Nothing there!'" asks a frustrated Burton aide. "Every time a decision is made on this, people care less about it."
As if that were not enough, Burton now faces an additional hurdle. The contempt fight has simply been swamped in the wake of the impeachment battle now raging of Capitol Hill. Deeply involved in that, House Speaker Newt Gingrich might have little interest in pushing the Reno issue at the same time. To make matters worse, neither Gingrich nor Burton is eager to appear to be beating up on Reno after her collapse at a Washington-area church in late September.
So, as it often has in the past, the campaign finance investigation appears positively star-crossed. If unflagging persistence were all that counted, Burton would surely prevail. But in this political season there is no way to predict how the scandal--which still has the potential to further damage an already damaged president--will ultimately unfold.