Papers Chase

A call for a special prosecutor

The Justice Department reported in February that it had uncovered no evidence of criminal wrongdoing during its investigation of how Ronald Reagan’s 1980 campaign obtained briefing papers from the Carter White House. Accordingly, Attorney General William French Smith decided against appointing a special prosecutor. Press interest began to wane, and the Administration breathed a collective sigh of relief that the potentially combustible case seemed closed. But last week it was revived when U.S. District Judge Harold Greene ordered the appointment of a special prosecutor. In a toughly worded 31-page ruling that drew some parallels to Watergate, Greene called Smith’s handling of the probe “arbitrary and unlawful.”

The Justice Department promptly took the case to the District of Columbia court of appeals, which agreed to stay Greene’s order while it reviewed the legal merits of his decision. The court’s appeals process could last until late September.

Greene’s ruling was the result of a lawsuit filed last summer by John Banzhaf III, a George Washington University law professor, and Peter Meyers, a criminal-law specialist. They argued that under the Ethics in Government Act, passed in 1978 as a post-Watergate reform, Smith was obligated to ask for a special prosecutor (now technically called an “independent counsel”) in the Carter case. “What we had here was an investigation that was rife with partisanship,” says Banzhaf.

In its brief to the appeals court last week, the Justice Department defended its probe. Despite the admissions and contradictions of top officials who were questioned, including CIA Director William Casey and White House Chief of Staff James Baker, the department argued that there is inadequate “specific” information to warrant a further investigation. Argues the appeals brief: “None of this amounts to a crime, or even indicates the time, place or manner of a potential crime.”

Basic questions about the Carter papers remain unanswered: Was there an orchestrated effort by Reagan agents to penetrate the Carter campaign? Were documents illegally taken? A House subcommittee headed by Democratic Congressman Donald Albosta of Michigan is expected to report its conclusions this week. A new probe would be embarrassing to Reagan during a campaign year, when Democrats are accusing his Administration of “sleazy” conduct. In addition, an inquiry would further jeopardize the nomination of Edwin Meese as Attorney General, which is on hold while another special prosecutor, Jacob Stein, looks into allegations about Meese’s finances and his involvement with the Carter papers.

Perhaps as important, however, are the procedural precedents that might be set if Greene’s ruling stands. Among those cited by the appeal: “Whether vague and conclusory charges of criminal misconduct by high-ranking officials are enough to justify a court order requiring appointment of independent counsel.” Indeed, the hair-trigger mechanism of the Ethics Act seems to require special prosecutors even in dubious cases. But the act is clearly intended, as Greene noted, to remove sole jurisdiction over politically sensitive probes from the Attorney General, who is a political appointee. Although the outcome of this case may not answer all the questions about the Carter papers, it could help define the role that special prosecutors should play in the investigation of high-level political scandals.