A House committee's vote last week to cite Attorney General Janet Reno for contempt is no answer to the standoff over her refusal to hand over memorandums advising her on whether to appoint an independent counsel to investigate Democratic Party fund-raising.
This has made what should be a rational accommodation of the legitimate needs of two separate branches of government into a contest of wills.Leaders in Congress have consistently taken the position that they have a right to see and potentially disclose any document or record in the executive branch. In the current flap, they are trying to force the attorney general to turn over memorandums prepared by Louis Freeh, the director of the Federal Bureau of Investigation, and Charles LaBella, the former chief of the Justice Department's task force on campaign finance. Both officials testified that they had recommended that Reno appoint an independent counsel, but neither wants his memorandum made public.
In such a criminal investigation, disclosure can be a sensitive issue because information is often obtained with pledges of confidentiality. Moreover, advice by subordinates to officials in the executive branch has traditionally been considered confidential. Intrusive congressional demands to see such reports and recommendations could keep decisionmakers from seeking the best available advice.
Such tensions are not new. But in my own experience as director of the FBI and as director of Central Intelligence, conflicts were resolved amicably and without seeking court intervention.
For example, in 1990, the Senate Select Committee on Intelligence asked the CIA to provide it with information about individuals involved in a covert action in Latin America. In most cases, the agency would provide information to the Select Committee, confident that it would not be disclosed if the committee was satisfied that no wrongdoing had occurred.
But we did not want to divulge the names of these people because we considered them protected sources. We offered to disclose the information only to the committee's chairman and vice chairman.
The panel still wasn't satisfied, and in the end, it voted to cancel financing for the covert action. We weren't happy with this decision but were satisfied that we avoided public disclosure of the sources' names. In my own experience, spanning almost 14 years, all other conflicts were resolved amicably.
The present dispute is more complicated because the law as passed by Congress places the decision to recommend the appointment of an independent counsel squarely upon the shoulders of one person, the attorney general. The attorney general needs and is entitled to the best advice she can obtain. In the end, however, it is her decision alone.
Unless there is some evidence of misconduct, Congress should not seek to obtain copies of preliminary recommendations. Congress can always demand an explanation from the official after the decision has been made.
This does not mean that I agree with the attorney general's decision not to appoint a special prosecutor to investigate the fund-raising allegations. Though some may argue that there are too many independent counsels functioning at one time, the issue of foreign interference in federal elections is a compelling reason to appoint a special prosecutor.
Nevertheless, there are better ways for Congress to question the judgment of the attorney general than to cite her for contempt.
Thank goodness for the summer recess. There has been enough broken china. The congressional committee has already had the tes-ti-mony of the attorney general and of Freeh and LaBella, the authors of the two advisory memorandums.
What more does it need to know? If the forces of reason do not prevail, the third branch of government - the judiciary - may have to decide the issue. And the result may benefit neither branch in the long run. It's time to cool it.