A week after she ordered federal agents to seize Elián González from his relatives in Miami, Republican critics were snarling, the Miami Cuban community was venting its rage in street demonstrations, legal scholars were debating the proprieties of the federal magistrate’s warrant that was employed in the snatch–and Janet Reno’s office at the Justice Department was filled to overflowing with flowers from ordinary Americans. In a particularly creative act of spite, someone flew over Miami’s Little Havana in a small plane that trailed a banner saying, America loves Janet Reno.
When GOP senators confronted her for an explanation of the Miami raid, they were careful to do it not only in closed session but in a secure, specially insulated room on the fourth floor of the Capitol that’s normally used for top-secret intelligence briefings. The senators were not trying to protect sensitive national security information but to avoid an increasingly common embarrassment: When members of Congress challenge the soft-spoken, gawky Reno, she routinely makes them look like a bunch of cranky 8-year-olds. Indignant demands for public hearings on the Elián operation dissolved as politicians found that the public opposed them by a margin that soon rose to 2 to 1.
For Reno, the Elián case was a decisive political victory. She has been involved in a relentless series of explosive controversies–from the 1993 Branch Davidian siege in Waco, Texas, to the prosecution of Los Alamos National Laboratory scientist Wen Ho Lee–all of which opened her to accusations of incompetence, cover-ups and partisanship. But in the Elián case, Reno managed to marginalize the right. Conservative Republicans instinctively and almost unanimously sided with the Miami Cubans; the public supported Reno. After seven years in which she has suffered unusually personal and nasty criticism, the public has decided that it trusts her more than it trusts her critics, with their rants about jackbooted federal thugs, their intricate conspiracy theories and their endless Congressional and journalistic investigations into charges that somehow evaporate upon scrutiny.
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If she were politically or personally closer to the President–as attorneys general have historically tended to be–some of the conservative or editorial-page criticism might have stuck. But her independence, though it has rankled the Clinton Administration, has been the best possible defense against the most serious of the conservative charges: that she has corrupted justice to protect her political patrons. In fact, she has bent over backward in naming independent counsels to investigate her colleagues; the charges in virtually every case have come to nought.
The list of conflicts in which Reno has been forced to play a central role is an unrelenting catalogue of thankless tasks: the traditional replacement of all US Attorneys when she first took office; the disaster at Waco, in which eighty-one people, including twenty-five children, were killed; the revenge taken for Waco by the men who bombed the federal building in Oklahoma City two years later; the series of independent counsels she sought for investigations of fellow members of the Cabinet, including President Clinton himself; her agreement to expand independent counsel Kenneth Starr’s mandate to include the Monica Lewinsky case; her refusal to appoint an independent counsel to investigate Vice President Al Gore’s fundraising from the White House; her refusal to authorize a wiretap on Wen Ho Lee amid the explosive charge that he was suspected of passing nuclear weapons secrets to China; the failure to move quickly against former Director of Central Intelligence John Deutch, who violated CIA security rules; the Microsoft antitrust suit; and the Elián case, in which her own Vice President undercut her by recommending that Elián be given permanent residency in this country. She is currently contemplating an almost-hopeless prosecution of Chilean strongman Augusto Pinochet for masterminding the 1976 murder in Washington of Chilean diplomat Orlando Letelier and his colleague, Ronni Moffitt.
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Calls for Reno’s resignation or dismissal have become commonplace–over Waco, her failure to appoint an independent counsel to investigate campaign fundraising abuses, the Wen Ho Lee and John Deutch cases. In the House, Representative Dan Burton, a Republican from Indiana who is chairman of the Government Reform Committee, called her “incapable of conducting a legitimate investigation of the White House.” Interestingly enough, for ammunition in his attacks Burton quotes the New York Times, whose editorial page and two Washington columnists have hectored Reno mercilessly. The Times, for example, has accused Reno of being “incompetent and politically biased” and of committing “an unforgivable dereliction of duty” in failing to name an independent counsel to investigate Gore; has charged her with “dedication to protecting Democratic Party interests from start to finish”; and of sounding “like a technicality-hunting defense lawyer” for the Administration who “comes not to expose political corruption but to bury it.”
Reno gets it from all sides. Democrats regard her as disloyal for being so ready to name independent counsels; Republicans see her as a political hack. Some on the left fault her for not bringing a broader vision to her job and complain that she is basically a local district attorney raised to a national level; conservatives routinely accuse her of failing to be a sufficiently tough prosecutor.
It is difficult to measure the performance of an Attorney General. The crime rate is down, but that may be the result of broader economic or social forces. She has championed more partnerships between federal and state authorities. She has been a tireless public speaker whose central theme is that if children are mistreated by abusive parents–slapped for no reason and then ignored when they misbehave–they grow up confused about the meaning of, and penalties for, misconduct. Reno is certainly not a leading legal theorist, a role that may more properly belong to the Solicitor General than to the Attorney General. But to me her great contribution is that she served with integrity during an unusually vicious era in American politics, one in which criminal charges were wildly tossed about by the President’s critics in Congress and in the press.
“One doesn’t get the sense of a grand vision from Reno,” says Professor Herman Schwartz of American University. “She was a good journeyman prosecutor and a decent person, but her Justice Department has been party to some very severe hits on civil rights.” Schwartz cites as examples expansion of wiretaps; restrictions on the use of habeas corpus, which allows convicts to appeal state trials in federal courts; and denial of hearings for undocumented seekers of political asylum in illegal immigration cases. He adds, “You can’t expect much of a civil liberties vision on the part of a local district attorney.”
Representative Jerrold Nadler, a New York Democrat and member of the House Judiciary Committee, holds Reno and her Justice Department responsible for defending summary denials of political asylum. “If you come to this country without proper documentation, the immigration officer can make the determination that you are not entitled to asylum, and there is no appeal, no hearing, no right to go before a judge,” Nadler said. “But it is precisely the person fleeing the Gestapo or SAVAK who has no proper documentation. This is a terrible assault on civil rights.”
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Father Robert Drinan, who teaches legal ethics at Georgetown University, says he is disappointed in Reno for failing to do more to eliminate the death penalty or reduce the US prison population. “She has [twenty federal prisoners] on death row and almost 2 million people in prison,” he said. “I don’t think that shows any leadership.” Drinan also faults Reno for supporting a rule that exempted federal prosecutors from state bar association prohibitions against directly contacting a person known to be represented by a lawyer. Ironically, such direct contact was one of the complaints made against Kenneth Starr when his office tried to negotiate with Monica Lewinsky in the absence of her lawyer; Reno supported Starr’s position.
In addition to such criticism, Reno has been the subject of no fewer than ten lawsuits from a private group called Judicial Watch, funded in part by the right-wing multimillionaire Richard Mellon Scaife and protected by a complaisant federal judge, Royce Lamberth, who has allowed Judicial Watch chairman Larry Klayman extraordinary latitude in conducting endless, rambling depositions of government officials. (Among the questions Klayman repeatedly asks is whether any of the government officials has ever talked to me.) Justice Watch says in one of its characteristic press releases that “it is clear that our Department of Justice has degenerated into a national disgrace. It is now itself a cesspool of corruption. Judicial Watch will continue to file one lawsuit after another against Ms. Reno and her compliant sycophants until justice, real justice is done.”
Given the passion and variety of the charges against her, one might be seduced into thinking they must also have some legal or at least ethical merit. This would be a mistake, as a look at the individual cases will show.
Acting for President Clinton, Reno was first criticized for requesting the resignations of seventy-seven politically appointed US Attorneys shortly after she took office. In fact, the spoils system is as old as President Andrew Jackson. “This is a total bum rap,” says Washington attorney Richard Ben-Veniste. “Every time there’s a change of administration, they appoint new US Attorneys.”
Then came Waco. A little over a month into her job, the FBI persuaded her that children were being abused inside the Branch Davidian compound at Waco, Texas. The FBI’s experts further assured her that CS gas could be safely used and that there was little risk that the Branch Davidians would commit suicide in the event of a raid. All three assurances were false, but Reno, new to Washington, trusted the experts, just as President Kennedy trusted the CIA experts who recommended the 1961 Bay of Pigs invasion of Cuba. When the Waco raid failed, she took full responsibility for it, introducing herself to a national audience during this tragedy as a straight talker who shunned the normal formulation that “mistakes were made.” “This was a judgment I made,” she told ABC’s Ted Koppel. “I think the responsibility lies with me.”
Reno’s most persistent politico-legal problem has centered around her decisions on naming special prosecutors or, later, independent counsels to investigate so-called covered persons–high-ranking members of the Administration against whom there is credible evidence of a crime. The method of appointing such counsels was that evidence was submitted to Reno, and if she agreed that there was a credible accusation against a covered person, she would ask a three-judge panel appointed by Chief Justice William Rehnquist to name a counsel. She has come under sniper fire from Clinton Administration officials for being too quick to ask for counsels, and under heavy-artillery fire from Republicans for refusing to request a counsel to investigate Democratic fundraising. Both sides find the same fault: She has followed the letter of the law too closely, rather than its intent.
Thus, Democrats blame her for appointing independent counsels in connection with relatively trivial charges against former Agriculture Secretary Mike Espy and former Housing Secretary Henry Cisneros. But there were in fact plausible charges of wrongdoing against both men, and in addition, Cisneros admitted that he had misled the FBI about how much money he paid to a former mistress. Both the Espy and Cisneros cases showed, however, the potential for abuse of the Independent Counsel Act, which has since expired.
In the case of Espy, who was prosecuted somewhat bizarrely under the Meat Inspection Act of 1907 for accepting sports tickets and other favors, independent counsel Donald Smaltz spent four years and $17 million, and then saw a jury bring back thirty “not guilty” verdicts. Undaunted by this defeat, he uttered a statement that must rank among the atrocities of jurisprudence in this century: “The actual indictment of a public official may in fact be as great a deterrent as a conviction of that official.”
The Cisneros prosecution was equally abusive. Independent counsel David Barrett charged Cisneros with felonies worth ninety years in prison for concealing the extent of his relationship with a former mistress. Then, on the first day of jury selection, he allowed Cisneros to plead guilty to one misdemeanor and pay a $10,000 fine.
Independent counsels were also named to investigate Commerce Secretary Ron Brown, who was killed in an airplane crash before the conclusion of the case, and to investigate Labor Secretary Alexis Herman and Interior Secretary Bruce Babbitt, against both of whom no charges were filed.
“Espy, Cisneros, Babbitt and Herman–those four cases really irked the White House,” says a former Clinton aide. “She pissed people off all the time because she was so independent. She just did not act like a political appointee. She was on the borderline of insubordination.”
“She probably could have exercised some discretion over some of those earlier appointments,” says Ben-Veniste, a veteran of the Nixon Watergate investigations who is now in private practice. “But the basic flaw is in the triggering mechanism in the statute.”
Most famously, Reno called for a special prosecutor–the first of whom was New York lawyer Robert Fiske, later replaced by Kenneth Starr under the revived Independent Counsel Act–to investigate President Clinton for an ever-expanding series of alleged offenses, starting with his Whitewater investments and going on to include the suicide of deputy White House counsel Vincent Foster, the dismissal of seven aides in the White House Travel Office, the Monica Lewinsky scandal and Mrs. Clinton’s billing records while at the Rose Law Firm. Given this record, it is hard to accuse Reno of going out of her way to protect her fellow Democrats.
On the contrary, in the Lewinsky matter she could quite easily have been more skeptical about Starr’s claim that the case was a natural outgrowth of his earlier investigation and that he had no prior involvement in the Paula Jones lawsuit, which had called Lewinsky as a witness. And despite evidence of Starr’s misconduct–both in leaks and in advocating impeachment (thus going beyond the independent counsel’s mandate in a manner that caused Starr’s ethics adviser, Sam Dash, to resign)–Reno never exercised her authority to remove him, which she had a right to do.
In the case of Gore’s fundraising, Reno also stuck to the letter of the law. It is illegal to seek federal campaign contributions from a federal building. Gore admittedly raised money from his office. But “federal campaign contribution” is a term of art. It refers only to money raised for the express advocacy of the election or defeat of a federal candidate. What Gore sought was the unlimited “soft money” contributions that are supposedly used by the parties for general education purposes.
In the end, Gore’s soft money was mixed in with “hard money.” The question then became whether he knew of that mixing, and Gore came up with the story of drinking so much iced tea that he may have had to leave the room, thereby missing that part of the discussion. This excuse may be ludicrous, but it is not specific and credible evidence that a federal crime may have been committed. Faced with this thin evidence that Gore had committed a felony, Reno refused to name an independent counsel to investigate him.
Professor John Barrett of the St. John’s University Law School, a former Justice Department employee under Reno, says her integrity is unquestionable, but he faults her in the Gore case for being too literal. “Her use of the various statutes has sometimes blinded her to the larger purpose of those statutes,” he says. “She got trapped by the intricacies and didn’t see that the broader purpose of the law was to get such cases out of the hands of the Justice Department to remove all suspicion of partiality.”
For that reason–the avoidance of all suspicion–former US Attorney Charles LaBella urged Reno in a secret memo to name a special prosecutor to investigate the fundraising abuses. When Reno overruled both him and FBI Director Louis Freeh, Republicans complained that she was covering up for Gore for political reasons. But LaBella deflated such speculation in an appearance on NBC’s Meet the Press. LaBella said it was not clear that any crime had been committed, and he defended Reno in these words: “I don’t think anybody was protecting anybody. I really don’t believe that the Attorney General, in any way, shape or form, was protecting anybody or anybody else at the Justice Department was politically protecting anybody.”
Having heard LaBella’s argument, Representative Nadler is convinced Reno made the right decision: “LaBella was saying she should have appointed a counsel and subjected Gore and God knows who else to hundreds of thousands of dollars in legal fees even though he didn’t think a crime had been committed. I’m very glad she didn’t do that.” One might suspect that Reno refused to name a prosecutor to investigate Gore because she had seen how abusive and open-ended the earlier investigations had become. But Barrett points out, “She has never made that argument.”
The Wen Ho Lee case was a peculiar form of hysteria that sucked in Democrats as well as Republicans. Lee, a computer scientist at the Los Alamos National Laboratory, was an initial suspect in an FBI investigation into the loss of nuclear warhead data to China. But the evidence against him was so thin that Justice Department officials refused to authorize a wiretap on his telephone. In outrage, Democratic Senator Robert Torricelli bullied Reno, according to The American Lawyer, in a closed meeting in which he more or less blamed her for conniving in the loss of US military secrets. In fact, anybody who examined the evidence against Lee–as Torricelli had not done–could see there was no basis to charge him with espionage, and he has not been so charged to this day. He is accused of downloading secret files–many of which were formally classified only after he had downloaded them–onto an unauthorized computer. Lee’s case is scheduled for trial in November.
Finally, in the case of Elián González, the law has been reasonably clear. A child cannot normally claim political asylum in defiance of his parents’ wishes. After months of negotiating with Elián’s Cuban relatives in Miami, Reno revoked the authority she had granted them to care for the boy and ordered federal agents to seize him and return him to his father. Reno’s reluctance to use force opened her up to a hectoring attack in the New York Times by Maureen Dowd, who interpreted her caution as dithering: “Ms. Reno gets easily intimidated by worst-case scenarios. Highlight reels of her disasters play in her head in an endless loop, negating every option.” The very next day, however, the Times editorial page praised her: “Ms. Reno has shown commendable restraint, and is wise to avoid a confrontation in Miami between federal authorities and Cuban-Americans who oppose Elián’s return to his father.”
These two conflicting views are typical of commentary on Reno’s performance; the same set of facts produces widely disparate opinions, from the most scathing abuse to generous praise, with the critics and defenders acting as if they have an open-and-shut case that is beyond dispute. In early June a federal appeals court panel affirmed the INS’s jurisdiction in allowing Elián’s father to speak for him in the custody dispute; unless further appeals succeed, Elián and his father will return to Cuba. Politicians and a handful of civil rights purists may object, but there is little doubt that Reno followed established law–even in sending in overwhelming armed force to seize the child.
Personally, I would fault Reno for one decision: Her approval of the prosecution of Lemrick Nelson on civil rights charges after a state jury acquitted him of the 1991 murder of Yankel Rosenbaum, an Australian visitor, during the Crown Heights riots in Brooklyn. Nelson’s acquittal was a miscarriage of justice, but in retrying him on federal charges the Justice Department violated the basic prohibition on subjecting a person to double jeopardy for the same offense. In any case, the public seems overwhelmingly to have approved Nelson’s conviction.
Perhaps the public understands these cases better than politicians or editorial writers. After seven years in office, Reno is held in high regard, and her critics, from the Cuban-Americans of Miami to the Republican leaders of Congress, can be heard gnashing their teeth. Overall, Janet Reno has shown the power, in public life, of political independence, plain speech and common sense.
