[Senate Hearing 106-1072]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1072
THE 1996 CAMPAIGN FINANCE INVESTIGATIONS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
JUNE 27, 2000
__________
Serial No. J-106-93
__________
Printed for the use of the Committee on the Judiciary
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75-237 WASHINGTON : 2001
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 27
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont.... 2
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 8
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 15
Torricelli, Hon. Robert G., a U.S. Senator from the State of New
Jersey......................................................... 10
WITNESS
Reno, Hon. Janet, Attorney General, U.S. Department of Justice,
Washington, DC................................................. 16
SUBMISSIONS FOR THE RECORD
Reno, Hon. Janet, Attorney General, U.S. Department of Justice,
Washington, DC:
Notification to the Court of Results of Preliminary
Investigation and Order authorizing disclosure, filed
December 2, 1997........................................... 33
Notification to the Court of Results of Preliminary
Investigation and Order authorizing disclosure, filed
November 24, 1998.......................................... 63
Parkinson, Larry, memorandum to Director Freeh, December 4, 1998. 95
THE 1996 CAMPAIGN FINANCE INVESTIGATIONS
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TUESDAY, JUNE 27, 2000
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:06 p.m., in
room SH-216, Hart Senate Office Building, Hon. Orrin G. Hatch
presiding.
Also present: Senators Specter, Leahy, Grassley, Thurmond,
Feingold, Feinstein, Kyl, Torricelli, Schumer, Sessions, and
Smith.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. General, if you could raise your right hand.
Do you solemnly swear to tell the truth, the whole truth, and
nothing but the truth, so help you God?
Attorney General Reno. I do.
The Chairman. Thank you.
I am pleased to convene this hearing of the Judiciary
Committee to continue its oversight of the Department of
Justice.
I will shortly turn to Senator Specter who has been tasked
by the committee to head up this effort. I have to commend
Senator Specter for his hard work and diligence in pursuing
this oversight project, often in the face of resistance from
the administration and the Justice Department, and I am glad to
have been able to facilitate his efforts to obtain the
documents and information necessary to complete the work of
this committee.
Finally, I would also like to welcome our Attorney General
and thank her for her attendance here today.
The campaign finance abuses of the 1996 Presidential
election were a low watermark in our political history. Public
confidence in our institutions and system of justice has been
severely undermined. Vigorous and timely enforcement of our
election laws would have gone a long way towards restoring the
public's faith. Unfortunately, the Justice Department, through
its many stops and starts, has failed to accomplish this goal,
and we now find ourselves on the threshold of a new election
with many old questions that remain unanswered.
I have made no secret of my strongly held view that an
independent counsel for campaign finance-related matters should
have been appointed long ago. The committee was the first to
formally request the appointment of an independent counsel to
investigate these matters. The work of this committee revealed
that many others inside the Justice Department felt exactly the
same way. FBI Director Freeh, Charles La Bella, Robert Litt,
and now the current head of the Campaign Task Force, Robert
Conrad, have all called for an investigation of one aspect of
this matter or another by someone outside the Justice
Department.
The reasons in my view are clear. When investigating
allegations against the President and Vice President, the
Attorney General is inherently conflicted, and any decision she
may render in these matters will not inspire the public's
confidence. This is particularly true of any decision not to
prosecute.
While I am sure we will hear much commentary today about
the provisions of the now-expired independent counsel law, the
Ethics in Government Act, the provisions of which the Attorney
General in my opinion incorrectly argued, unduly restricted her
decision-making process. Those provisions no longer exist.
The appointment of an outside special counsel is now
governed solely by Justice Department regulations, not a
statute. The Attorney General possesses the authority to
appoint an outside prosecutor under her own regulations when,
as here, it is in the public interest.
There are many legitimate questions concerning the process
at the Department that resulted in the Attorney General's
refusal to appoint an independent counsel for campaign finance
and the merits of those decisions. The committee will pursue
those during today's hearing. There is also, however, the
ongoing question of whether the Attorney General will use her
authority to appoint an outside counsel under Justice
Department regulations. The Attorney General certainly has the
ability to do so.
I respect the Attorney General's desire to make these
decisions free from outside pressure, from members of Congress,
the media, and others. That is understandable. I also agree
with her public comments that such a decision should be the
result of a thorough and objective evaluation of the facts and
the law. It seems to me, however, that the ``pressure'' to
appoint an outside counsel is coming from inside the Justice
Department, from people she has chosen at various times to
advise her and to head the Campaign Finance Task Force. The
Attorney General and the Justice Department have been examining
these facts for 4 years now which would appear to be ample time
to be thorough, and it is now time to make a decision and to be
held accountable for it.
With that, we will turn to Senator Leahy.
STATEMENT OF HON. PATRICK LEAHY, A U.S. SENATOR FROM THE STATE
OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
Attorney General Reno, thank you for your cooperation and
your agreement to be here today. As you probably know, this
hearing will take on the air more of an inquisition than an
oversight hearing, but I think you can handle that.
Before the inquisition begins, I want to commend you for
making a real difference in America. Especially, since this may
be the last time that you will be appearing before
thiscommittee in the role as Attorney General. You have helped stop the
steady increase in the crime rate. You have worked aggressively with
Federal, State, and local enforcement officers to keep violence and
property crime rates down.
Under your leadership and the programs established by the
Violent Crime Control and Law Enforcement Act of 1994, the
Nation's serious crime rate has declined for 8 straight years.
Murder rates have fallen to their lowest level in three
decades. Since 1994, violent crimes by juveniles and the
juvenile arrest rate for serious crimes have also declined.
According to the FBI's latest crime statistics, there has been
a 7-percent decline in reported serious violence and property
crime from 1998 totals. All of these, certainly in my adult
life, I have never seen the crime rates come down as much as
they have during the time you have been Attorney General, but
you have not stopped on that. You have worked to keep our
schools and streets safe, and I wish the Congress would
cooperate with you more.
In my longer statement, which I will put in the record, we
find such things that we have not done, like the Juvenile
Justice Conference stalled, frankly, by the gun lobby; hate
crimes, Bulletproof Vest Partnership Act, Innocence Protection
Act, domestic violence, and Justice Department nominations.
Let's talk about the independent counsel appointments, your
determination not to call for the appointment of an independent
counsel in connection with campaign finance, but your
determination to pursue those matters through a Justice
Department task force. That is a task force that you can look
to as one that has had a great deal of success. It has obtained
more than 20 convictions and pleas, actually a lot better than
what we saw with the Special Counsel, and I am thinking of
Kenneth Starr who spent over $50 million--$55.0 million--had
dozens, even hundreds of FBI agents available to him over the
period of time that he existed.
The bottom line on your independent counsel decisions in
1998 and 1999, where you determined rather than using the
Justice Department, but rather to use independent counsel, is
that after 82 days of hearings--82 days of hearings--and
investigation after investigation after investigation before a
series of Senate and House committees, and all the critics and
all those out to undermine your authority, no one has been able
to question your integrity and your independence and your
decisionmaking. Not FBI Director Freeh, not Charles La Bella,
nor really anybody on this committee has said they believe you
sacrificed your integrity and your independent judgment to some
corrupt influence.
I should also note that nobody, including the chairman of
the Specter investigations, Senator Specter, has said that the
Vice President has done anything wrong.
Now, I know you are going to be asked about decisions to
appoint and not to appoint independent counsel. One focus I
have been told will be on informal comments poorly made in 1996
by Mr. Radek, the chief of the Public Integrity Section, to FBI
officials relating to whether he felt pressure because the
Attorney General had not yet been reappointed to a second term.
Mr. Radek, who met frequently with these officials, does
not remember any such conversation on this topic, acknowledges
that he may have felt pressure to do a good job. Mr. Radek has
denied the claims of the FBI that the pressure he felt was in
any way related to the Attorney General's job status.
I understand that one focus of this hearing will be to
explore this dispute further, and I simply do not understand
how any of this, if it happened at all, bears on the Attorney
General's independent counsel decision.
Those of us who appeared before this committee have
repeatedly attested to the integrity of Attorney General Janet
Reno. Those who talked to us, who testified before us, have
repeatedly assured all of us that all decisions made by her
were on the basis of her honest assessment.
Let me just tell you a couple of the things. Charles La
Bella, just this last May, told the Judiciary Subcommittee on
Administrative Oversight in the Courts, as part of this
investigation, that his perception was that the Attorney
General made no decisions to protect anyone. FBI Director Louis
Freeh told the House Government Reform Committee, ``I do not
believe for one moment that any of her decisions, but
particularly her decisions in this matter, have been motivated
by anything other than the facts and the law, which she is
obligated to follow.'' Robert Litt, just last week, said, ``The
Department's deliberations in this matter have now been made
public. The thousands of pages of memoranda analyzing this
issue, which have been released to the public, make it
abundantly clear that all of the Attorney General's decisions
were made solely on the merits after full and, indeed,
exhaustive consideration that the facts show and legal issues
involved and without any political influence at all.'' Larry
Parkinson responded that he did not have any doubt about
Attorney General Reno's integrity. This goes on and on and on.
I have been concerned about some of the oversight here. I
did when the committee precipitously sent staff to Texas,
barring Senator Danforth to complain that we are interfering
with his investigation. I have been concerned about sending
subpoenas to line attorneys who now have to be asked questions
over and over again whether they are simply raising the points
in a hearing or in a decision, whether they are devil's-
advocating something, and will they ever do that again.
I think this is wrong. I think we are seeing now what is
happening when we have cases underway; for example, Wen Ho Lee,
where the committee has now received a formal request from Mr.
Lee's defense attorney for the Republican report in this matter
and what has been generated by it.
We have heard that sitting Federal judges on pending
criminal matters had been questioned about what they are going
to do by members of this committee.
I am hoping that we are not going to make the same mistake
we saw when we had Kenneth Starr and a runaway operation in the
House of Representatives that did not show very well on the
whole Congress.
Mr. Chairman, I will put my whole statement in the record,
but based on your decision to turn this from the full committee
to the subcommittee, to the Specter investigation subcommittee,
I will also then yield my place to the Senator from New Jersey,
Mr. Torricelli.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Senator Patrick J. Leahy
Attorney General Reno, thank you for your cooperation and your
agreement to be here today. This session will more resemble an
inquisition than an oversight hearing, but I expect that you are
steeled for that eventuality. Before our Republican members begin the
inquisition, I wanted to commend you for making a real difference in
America, especially because this may be the last time you appear before
this committee in your role as Attorney General. You have not only
helped stop the steady increases in the crime rate but have worked
aggressively with our Federal, State and local law enforcement officers
to keep the violent and property crime rates in this country going
down.
Under your leadership, and the programs established by the Violent
Crime Control and Law enforcement Act of 1994, the nation's serious
crime rate has declined for eight straight years. Murder rates have
fallen to their lowest levels in three decades. Since 1994, violent
crimes by juveniles and the juvenile arrest rates for serious crimes
have also declined. According to the FBI's latest crime statistics,
released on May 7, 2000, in just the last year, there has been a seven
percent decline in reported serious violent and property crime from
1998 totals. Both murder and robbery registered eight percent drops,
while forcible rape and aggravated assault figures each declined by
seven percent from 1998. All Americans owe you an enormous thanks for a
job well done.
Yet you have not simply rested on your laurels. I, for one,
appreciate your tireless efforts to press for additional change to keep
our schools and streets safe. This Congress has left much unfinished
business that deserves and requires our attention.
Juvenile Justice Conference.--Last year when you joined us for the
oversight hearing of the Department we were all grieving for victims of
school violence in Columbine. With your help, the Senate moved swiftly
to pass the Hatch-Leahy juvenile crime bill with a strong bipartisan
73-vote majority, a bill that included a number of common sense
measures on gun safety and school safety. Unfortunately, despite our
best efforts, your efforts and those of the President, the Republican
majority will not convene the conference on that legislation to send a
final bill to the President that can make a difference in the lives of
Americans. If the roles were reversed and you were holding an oversight
hearing on our performance, you certainly would have much to criticize.
Hate Crimes.--Last year, you joined us just as the Committee was
postponing hearings on hate crimes. Unfortunately, this Committee never
considered that legislation. Still, last Tuesday a strong bipartisan
majority of the Senate, indeed a 57-vote majority that included a
bipartisan majority from the members of this Committee, adopted the
Kennedy-Smith amendment incorporating the Local Law Enforcement
Enhancement Act of 2000 into legislation before the Senate. Senate
adoption of this hate crimes legislation is a significant step forward.
We thank you for your support of that important effort.
Bulletproof Vest Partnership Grant Act.--I hope the Republican zeal
for investigating, instead of legislating, does not further delay the
Committee's consideration of the bipartisan Bulletproof Vest
Partnership Grant Act of 2000, which would reauthorize and double the
funding for this highly successful Department of Justice grant program
to provide our nation's law enforcement officers with life-saving body
armor. The Department of Justice has already provided more than 90,000
bulletproof vests to law enforcement officers across the country under
the 1998 law sponsored by Senator Campbell and me. I appreciate the
Attorney General's support for the original Campbell-Leahy law and our
reauthorization legislation.
Innocence Protection Act.--I thank you for your recent comments on
the importance of ensuring competent counsel for those charged in cases
that can lead to the imposition of the death penalty. I agree. That is
why perhaps the most important provisions of he Leahy-Smith-LaHood-
Delahunt Innocence Protection Act are those seeking to assist the
States in establishing standards for competent counsel and helping
provide the resources needed to ensure a fair trial.
Domestic Violence.--I also commend you for helping to stem the tide
of domestic violence and for moving aggressively to help the victims of
this abuse and to improve rights and services for crime victims in
general. We are hopeful this week that the Committee, at long last,
will report the reauthorization of the Violence Against Women Act. I
would also like to see us report additional crime victims legislation
without delay.
Justice Department Nominations.--I regret that the majority of this
Committee and the Senate have stalled the many nominations for senior
positions at the Justice Department, within law enforcement, and for
the federal courts. That Dan Marcus, Randy Moss, David Ogden, and Bill
Lann Lee have not been confirmed as the Associate Attorney General,
Assistant Attorney General for the Office of Legal Counsel, Assistant
Attorney General for the Civil Division and Assistant Attorney General
for the Civil Rights division is regrettable and inexcusable.
Independent Counsel Appointments.--I wanted to make a few pertinent
observations, about your determinations not to call for the appointment
of an independent counsel in connection with campaign finance but to
pursue those matters through a Justice Department Task Force that has
obtained more than 20 convictions and pleas--more in fact than were
obtained by Kenneth Starr with all the FBI agents and more than $50
million at his disposal over a period of 5 years.
The bottom line on your independent counsel decisions in 1998 and
1999 is that after 82 days of hearings, and investigation after
investigation before a series of Senate and House Committees and with
leaks and critics and all those out to undermine your authority, no one
has been able to question your integrity and your independence in your
decision-making. Not FBI Director Freeh not Charles La Bella, not even
Senator Specter has said that he believes that you sacrificed your
integrity and your independent judgment to some corrupt influence. for
that matter I should also note that Senator Specter has not said that
the Vice President has done anything wrong.
I understand that the Attorney General today will be asked about
her decision to appoint and not to appoint independent counsels. One
focus, I have been told, will be on informal comments purportedly made
in 1996 by Mr. Radek, the Chief of the Public Integrity Section, to FBI
officials relating to whether he felt ``pressure'' because the Attorney
General had not yet been reappointed to a second term. Mr. Radek, who
met frequently with these officials, does not remember any conversation
on this topic andacknowledges that he may have mentioned feeling
pressure to do a good job. Mr. Radek has denied the claims of the FBI
that the pressure he felt was in any way related to the Attorney
General's job status. I understand that one focus of this hearing will
be to explore this dispute further and I simply do not understand how
any of this, if it happened at all, bears on this Attorney General's
independent counsel decisions.
All of those who have appeared before this Committee have
repeatedly attested to the integrity of Attorney General Janet Reno and
have repeatedly assured all of us that all decisions made by her were
on the basis of her honest assessment of the facts and not the result
of politics. Everyone, including those people who disagreed with her on
some of the independent counsel decisions, has told us this. Let me
remind everyone of what we have heard:
Charles La Bella: In his May 3, 1998, press release, Mr. La Bella
said that ``At the end of the process, I was completely comfortable
with [the Attorney General's] decision not to seek an independent
counsel and with the process by which she reached that decision.''
In August 1998, he told the House Government Reform Committee that
the integrity and the independence of the Attorney General were
``beyond reproach.''
Just this May, Mr. La Bella told the Judiciary Subcommittee on
Administrative Oversight and the Courts as part of this investigation
that his perception was that the Attorney General ``made no decisions
to protect anyone.''
FBI Director Louis Freeh: In August 1998, Director Freeh told the
House Government Reform Committee: ``I do not believe for one moment
that any of her decisions, but particularly her decisions in this
matter, have been motivated by anything other than the facts and the
law which she is obligated to follow.''
Robert Litt: Just last week, in his statement to the Subcommittee,
Robert Litt said: ``The Department's deliberations in this matter have
now been made public. The thousands of pages of memoranda analyzing
this issue which have been released to the public make it abundantly
clear that all of the Attorney General's decisions were made solely on
the merits, after full--indeed exhaustive--consideration of the factual
and legal issues involved and without any political influences at all.
Larry Parkinson: In response to whether he had any doubt about
Attorney General Reno's integrity, FBI General Counsel Larry Parkinson
responded: ``No I do not,'' at the May 24, 2000 Subcommittee hearing on
this issue.
The endless oversight on the topic of independent counsels has
confirmed over and over again that the process worked. Some may
disagree with some of the ultimate decisions, but that should not be
the focus of oversight. Rather, the object of oversight should be to
make sure that the process worked; that decisions were made on the
basis of facts; and that judgments were not influenced by politics. We
know that the process worked and that the Attorney General's decisions
were made in good faith, relying on good prosecutorial judgment and
after full consideration of all the facts as well as of the conflicting
opinions of many different advisors.
In the guise of ``oversight,'' this Committee has inappropriately
politicized ongoing investigations. There should be no mistake about
it: I believe that oversight by the Committee can be of great
importance. That oversight must be conducted in a careful and
considered manner. I have expressed my concerns about this hydra-headed
investigation on a number of occasions. I noted my concern whensome on
the Committee precipitously sent staff to Texas, prompting Special
Counsel Danforth to complain about this Committee's interference with
his investigation into what happened at the Branch Davidian compound in
Waco.
I do not believe that line attorneys and line agents should be
called to testify in oversight matters unless there are some sort of
exceptional circumstances--like internal corruption. I worry about the
long-term effects that some of the actions taken in these
investigations may have. This Senate Judiciary Committee now issues
subpoenas on a regular basis to hard-working and dedicated government
employees. This Committee has subpoenaed past and present line
attorneys to talk about long-ago disagreements with supervisors--even
though everyone recognizes that line attorneys are not the ultimate
decision-makers. Members of the Committee have launched personalized
attacks on the credentials, integrity, capability and credibility of
experienced and dedicated prosecutors. I am extremely concerned that
these tactics have harmed individuals, the Justice Department as an
institution, and as a result the American people.
The Committee has already heard from Wen Ho Lee's defense lawyers
and we are now being drawn into that ongoing prosecution. I will not be
surprised if other defense counsel, who have been monitoring Senator
Specter's hearings, use those hearings as a basis for defense motions
to undercut other prosecutions by the Campaign Finance Task Force of
the Department of Justice. These are other risks of delving prematurely
into ongoing criminal matters.
I had been warning over the last several months that this Committee
was crossing lines that it should not cross when it made subpoenaing of
line attorneys and agents its practice and began interfering in ongoing
criminal investigations. Last week and this represent the culmination
of those errors as we now have a circumstance in which leaks and
innuendo about an ongoing matter have led you to being called before
this Committee to be quizzed incessantly over open investigative
matters that you cannot appropriately discuss.
I know that you will resist political pressure from any source,
even this Committee, when it comes to your exercise of your
prosecutorial judgment. You and I both recall that this Republican
Senate has been trying to pressure you to appoint a special counsel
since 1997. This Republican Senate has been telling you how to do your
job and exercise your judgment, although it has not done a very good
job of fulfilling its own legislative responsibilities to the American
people. Sometimes I have wondered out loud whether it is because of
their lack of an effective legislative agenda that this Republican
Senate has chosen to investigate rather than legislate.
I had thought that I had seen it all. That is, until last week,
when a Member of this Committee held a press conference to discuss
rumors about confidential matters that may or may not actually be
occurring at the Department of Justice. This Member stated on national
television that his information did not come by way of ``leaks'' and
that it had properly been disclosed to him in the course of the
``official'' oversight investigation. My request for a bipartisan
briefing on this new supposedly ``official'' and non-leaked information
has been summarily brushed aside. That is not how we operated when he
conducted a successful bipartisan investigation into the events at Ruby
Ridge. The partisan and political nature of these proceedings could not
be more transparent.
The American public should know of the political influence this
Republican investigation is attempting to assert on PENDING matters at
the Justice Department because it is shocking.
Consider some of the things that have already occurred:
--a Republican Member of this Committee questioned a sitting
federal judge about a case (the Peter Lee case) in which the defendant
has a motion to terminate his probation--the interrogation by this
Republican Member could well be viewed as an improper attempt to
influence the judge's upcoming decision on this motion;
--Republican Members of this Committee have publicly urged
prosecutors to take certain positions at the upcoming sentencing of a
defendant Maria Hsia in one of the pending campaign finance cases.
United States Senators should not be pressuring prosecutors to take
certain positions--we rely on prosecutors to exercise their
considerable judgment in these matters. Of course, in this instance,
since attorneys to both parties to that case--the Justice Department
and Ms. Hsia--were present at that hearing, I am confident that each
will take whatever steps necessary to protect the rights of both
parties;
--Republican Members insisted on conducting ``oversight'' of the
Wen Ho Lee matter even though they well knew an investigation was
pending. Sure enough, this Committee has now received formal requests
from Mr. Lee's defense attorney for the Republican report on the matter
and for other documents generated during the course of this oversight.
And this is just the beginning. It would not surprise me if we received
more requests for information from Lee's attorney as that case
proceeds;
--Republican staffers were sent to Waco to interview witnesses even
before Senator Dunforth had an opportunity to do so. This resulted in
angry letters from Senator Danforth warning this Committee not to
interfere in his investigation.
We have seen it over and over again--attempts to influence pending
matters because of politics. Republicans insinuate that the Attorney
General's decisions on campaign finance matters were somehow influenced
by politics--yet everyone, even those who disagreed, have repeatedly
and forcefully attested to her independence, her integrity and her
dedication to relying on the facts and the law and nothing else. It is
Republican Senators, not Attorney General Reno, who are trying to make
this political and insist on behaving as partisans. It was not too long
ago that Kenneth Starr and the House Republicans foisted a partisan,
expensive and debilitating impeachment on the Senate and the country.
The repeated misuse of the investigative and hearing apparatus of
congressional committees for political campaigning by other means is a
troubling legacy of the Republican-led Congress that history will not
forgive. It is all the more troubling when the political investigative
and hearing machinery are injected into our justice system. It seems
that some are intent on retreading that road for partisan political
gain and have already forgotten the lessons of the last several years.
The Chairman. We will now take the statements of the
chairman of the subcommittee and the ranking member, Senator
Specter and then Senator Torricelli, and then we will listen to
the Attorney General.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
At the outset, let me observe that the Spanish Inquisition
would really marvel at this proceeding today under these Klieg
lights, out in the public, and a comment or two about Wen Ho
Lee, where the subcommittee has recommended specific
legislation which has been supported by the full committee, and
to correct the misstatement about judges on pending matters,
Judge Hatter was questioned about a closed matter, and the only
judge at issue, but on to the subject matter at hand, I join in
welcoming you here, Attorney General Reno.
The focus of what the subcommittee has been doing involves
espionage cases, campaign finance, and Waco. With respect to
the issue of independent counsel, a good bit of our focus today
will be about your decisions not to appoint independent
counsel, and by way of setting the stage, with respect to your
judgment not to have independent counsel as to the Vice
President.
As to the distinction between hard money and soft money and
whether the Vice President knew that he was soliciting hard
money, the established record shows that four witnesses
testified that hard money was discussed in the Vice President's
presence at the famous November 21st meeting; that one of the
witnesses, Leon Panetta even went so far as to point out that,
``The purpose of the meeting was to make sure they knew what
the hell was going on''; that included among those four
witnesses was the Vice President's Chief of Staff David Strauss
who had a written memorandum putting in writing the fact that
there was a discussion about 35-percent hard money. Then there
were the 13 memoranda from Harold Ickes which went to the Vice
President marked ``hard money'' and the testimony of the Vice
President's assistant that they very carefully culled the in-
box to leave out matters that the Vice President wanted
excluded, but always left in the items with respect to what Mr.
Ickes had sent, and then the Vice President's own statement
that, the subject matter of the memorandums would have already
been discussed in his and the President's presence. The Vice
President further acknowledged that he, had been a candidate
for 16 years and had a good understanding of the hard money.
At this point, it is important to put in perspective that
the independent counsel law then in effect did not call for a
conclusion that the Vice President had committed the crime, but
only that there was specific and credible information, not
evidence, just information, that there may--and I emphasize the
word ``may''--have been a violation of the Federal criminal
laws.
Then there is the question of the coffees, 103 of them,
some $26 million contributed, over $7 million within one month
of the donors' attendance. The Vice President was questioned
about this matter on April 18. Question: ``In terms of a
fundraising tool, what was the purpose of the coffee?'' Answer:
``I don't know.'' Further down, page 53: ``With respect to
raising the $108 million, did you have discussions with anybody
concerning the roles that coffee would play in raising that
type of money?'' Answer: ``Well, let me define the term
`raising' if I could.'' Shades of what ``is'' is. At page 59,
question: ``You had indicated earlier that you may have
attended one coffee. What were you talking about?'' Answer, a
little farther down, page 60: ``Although it was not my practice
to go to any of these coffees, there may have been one--one
that I attended briefly perhaps because some of the invitees
were known to me.''
Then the attorney for the Vice President submitted a letter
on the subject, 2 days later, pointing out that according to
the Vice President's schedule, he was designated to attend four
White House coffees and the Vice President hosted approximately
21 coffees in the Executive Office Building.
Very briefly on the issue of the Buddhist Temple, to put
the matter in perspective, shortly before the scheduled
fundraiser, the Vice President's scheduler sent him an e-mail
message asking whether he would be interested in adding another
stop on the April 29 itinerary on top of the ``two fundraisers
in San Jose and L.A.'' The Vice President responded: If we
already have booked the fundraisers, then we have to decline.
Again, Ickes' memos were specific to the President about a
$250,000 take from a fundraiser, and a second one, a $325,000
take from a fundraiser. It is in this context, Madam Attorney
General Reno, that we raise the question about the lower level
of sufficiency to establish with specific and credible
information the level for calling for independent counsel.
Again, as I said last Thursday, in fairness to the Vice
President, it is a very different level of evidence than that
required for a criminal prosecution or for an indictment.
One of the issues in sharp focus today will be why on the
first four times the Vice President was questioned, he was
never asked about the Hsi Lai Buddhist Temple. It was only when
the subcommittee issued subpoenas and had the La Bella and
Freeh memoranda with a return date of April 20 that the
Department of Justice finally got around toquestioning the Vice
President on April 18.
So this is a brief focus, in addition to the decision that
you made not to appoint independent counsel, with President
Clinton and the Vice President on the soft money coordination
issue, and advice of counsel.
One final comment. The Vice President's surrogates have
raised an issue that my disclosure of what Mr. Conrad
recommended was inappropriate. That disclosure was made in the
course of the Committee's business, but before making that
disclosure, we called in Robert Conrad and asked him the
questions head on, and it was only when he failed to disclose
them did the disclosure come from the subcommittee. That was
done so that there could be public accountability.
There was a substantial period of time between the La Bella
recommendation and the Freeh recommendation, the Freeh
recommendation in November of 1997 and the La Bella
recommendation in July 1998, until we finally got the specifics
on their memoranda on April 20 in the year 2000. I do not take
lightly the comments of the Vice President's surrogates
accusing me of McCarthy-like tactics and being in cahoots with
the Bush campaign. I have not, and would not, discuss this
matter with the Bush campaign. As to the reference of McCarthy-
like tactics, that is a matter which I will take up personally
with the Vice President to see if it was authorized, and if so,
I will take it up with him in some substantial detail.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Specter.
We will turn to Senator Torricelli. Senator Thurmond has to
leave. He says he has a very short statement, and we will grant
him that time. Then we are going to go to the Attorney General.
STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Torricelli. Thank you, Mr. Chairman. Madam Attorney
General, good afternoon.
Madam Attorney General, I welcome you to the committee and
thank you very much for your attendance today, hoping that at
long last through your testimony and questions that we are
about to ask, we can bring what has been a matter that has
proceeded for literally years to some conclusion.
I think, Madam Attorney General, it would be fair to say,
as I begin my own statement, that not only do I hold no brief
for the Attorney General, but indeed, I have on occasions not
hesitated to criticize judgments of the Justice Department when
I found reason to disagree with them.
Indeed, in the matter of Wen Ho Lee and the prosecution of
Peter Lee, I have expressed my concerns, joined with the
Republican majority in their investigations, and never
hesitated to reach a judgment on how I believe the matters
should have been dealt with differently, but it is
inconceivable to me that either the Justice Department
generally or Janet Reno specifically could be criticized on
questions with regard to either her independence, which raises
issue of integrity, or her willingness to use the independent
counsel statute. The facts simply do not support either.
Indeed, the only area of criticism open to those who are
raising issues with regard to the independent counsel statute
is that on occasion they simply do not agree with the final
judgment. No Attorney General could be less vulnerable to
attack on issues of independence. No Attorney General could be
less vulnerable to attack on issues of using the independent
counsel statute or using outside counsel when otherwise
generally necessary.
On several different occasions, Janet Reno has appointed
independent counsels to investigate the President of the United
States, for whom I assume she has both affection and loyalty,
and fellow members of the Cabinet. Not simply more than any
other Attorney General in the history of the United States, but
more than her predecessors combined, she has sat across a
Cabinet table with colleagues and friends and appointed
independent counsels, I assume, at some personal discomfort
because it was the right thing to do and the facts justified
it.
I do not even make this claim because I necessarily agree
with all those instances in which she appointed an independent
counsel. Indeed, I believe she has erred on the side of
appointing them even when not always justifiable. At enormous
cost in human terms and to the taxpayers, we have witnessed
independent counsels being named against former Agriculture
Secretary Mike Espy, who was prosecuted for accepting sports
tickets, but who after 4 years and a $17 million investigation
was acquitted on all 30 counts.
Housing Secretary Cisneros charged with felonies related to
his relationship with a woman, plead guilty to a misdemeanor
after a multimillion-dollar investigation and paid a $10,000
fine.
The matter of Ken Starr, his judgment, his cost, his
investigation speaks for itself.
Yet, incredibly, incredulously, the Attorney General of the
United States now faces this Congress with the allegation that
she has hesitated to appoint an independent counsel on another
matter. Her independence, her integrity and her willingness to
examine her own administration are being brought into question.
The issue now before the committee appears to be centered
on whether when confronted with appointing an independent
counsel under the statute previously or now under internal
Justice Department guidelines there was unanimity on her
judgment. Indeed, wouldn't it have been extraordinary if upon
solicitingadvice from all of her assistants, in Public
Integrity, the Criminal Division, her deputy, each of these people had
reviewed all the facts, considered the law, and reached the same
judgment? If there is one thing that characterizes the difference
between Janet Reno's judgment in dealing with whether to appoint an
independent counsel on the campaign-related issues with the Vice
President and the seven other instances involving the President and
members of the Cabinet, it is the breadth of advice that she sought,
not simply from all of her own senior advisors, but from the director
of the FBI and the leadership of the Campaign Finance Task Force.
Some members seem to react with extraordinary surprise that
there was a difference of judgment. The surprise, however,
would have been if they were all of the same mind and all came
to the same judgment, given the extensive number of people that
were consulted, indeed the unprecedented number of people that
were questioned.
Among those consulted was, perhaps one of the more senior
officials of the Justice Department, Mr. Radek, a professional
of no particular partisan persuasion, 29 years with the
Department of Justice, 20 of those years with the Public
Integrity Section. Mr. Radek appeared before our committee. He
concluded, and I quote, ``There was no substantive basis to
proceed under the clause of the statute.'' He further shared
with the committee not that it was his judgment nor that of a
majority of his staff nor of an overwhelming majority of his
staff, but that it was the unanimous judgment of career
prosecutors in the Public Integrity Section that there was no
basis for using the mandatory provisions of the independent
counsel statute with regard to Vice President Gore. He further
added to the committee that had there been an independent
counsel and we proceeded under the mandatory provisions of the
law, there was no evidence upon which to build a case with
regard to Vice President Gore.
During the course of the Attorney General's review of a
preliminary inquiry of the facts, it must be assumed by those
who think that a misjudgment was made by the Attorney General
in not appointing an independent counsel that she made her
judgment without a complete review of the law or the facts as
they apply to the Vice President. The record is directly the
opposite.
250 witnesses were interviewed, including the Vice
President. Thousands of documents were obtained from the White
House, the DNC, the Clinton-Gore campaign, and a variety of
individuals who received telephone calls from the Vice
President. It was on this basis that Mr. Radek and each and
every one of the career prosecutors of the Justice Department
advised the Attorney General that she should not proceed and,
if she proceeded, there was no case to be made.
It is worth noting that Mr. Radek is the single individual
in the Department of Justice with the greatest experience in
the application of the independent counsel statute, the most
experienced in law enforcement, the most experienced with the
statute, and the most experienced with campaign finance-related
issues. Indeed, his combined staff has a multitude of years of
experience compared to Mr. La Bella, Mr. Conrad, and Mr. Freeh
on campaign-related issues and issues relating to the statute.
Indeed, Mr. Radek testified before our committee that he
believed that it was significant that his own staff had more
experience specifically with the statute, and that the other
individuals involved had little and in some cases none.
Now the statute has expired. In its place the Attorney
General has enacted regulations providing for an office of
special counsel to handle those cases that once would have been
referred to an independent counsel. It is worth noting that the
Attorney General was not required to write these procedures, to
establish special counsel provision within Justice, but she did
so. It was the right thing to do, and now she has followed
those procedures.
The question then turns to the individual instances that
are leading some to question the Attorney General's judgment
with regard to independent counsels. Before briefly examining
the three instances, I want simply to point out to my
colleagues, that this is not the first time that I have been in
this hearing room on these issues addressing these questions.
As indeed three successive Campaign Finance Task Force heads
have led inquiries, so too the Government Affairs Committee
occupied months and thousands of hours of review of some of
these same issues.
Indeed, over the course of 3 years, the House and Senate
expended $11 million, questioned hundreds of people, only to
have their own efforts duplicated by the Justice Department and
the FBI itself, the same issues, the same law, the same facts,
only to be assumed to the same equation. It was not for lack of
effort or desire or motivation that Mr. Thompson and the
bipartisan members of this committee could find no substantive
basis to find violations of the law by the President of the
Vice President. We came to the same conclusion as Mr. Radek and
professional prosecutors within the Justice Department.
Let me turn to each of these three instances. First, the
visit to the Buddhist Temple. It is alleged that the Vice
President knew that he was attending a fundraiser at a
charitable non-profit institution, the Buddhist Temple, where
violations of the law occurred. The Government Affairs
Committee examined this issue. No doubt, the Justice Department
has done so again.
We found the following. No tickets were sold. No campaign
materials were displayed. No campaign table was set up for
information, solicitation, or acceptance of money. The Vice
President made no mention of fundraising in his speech, but
spoke about religious tolerance and brotherhood.
The committee was further persuaded that the only paper the
Vice President actually received on that day in visiting the
Buddhist Temple was his schedule. His schedule makes no mention
of a fundraiser, solicitation of funds, people raising funds,
commitment to the campaign or involvement in the campaign. The
only paper before the Vice President of the United States was
instructions that he was to extend brief remarks from the
podium and exit, take photos with 150 guests, pay homage in the
shrine. This is a fundraiser? This is leading the Vice
President of the United States to solicit funds? $11 million
later, Mr. Chairman, this is what our committee found.
With respect to the White House coffees, according to the
popular press it appears that the Campaign Finance Task Force
was intrigued by the number of coffees that were held. The Vice
President in answering their questions relied upon the belief
that the question was as to coffees held in the White House.
The Vice President seemed to have answered that question both
honestly and accurately. Upon reflection, there are some who
are now arguing that the question did not differentiate between
coffees held in the Old Executive Office Building, of which
there were a greater number, and those held at the White House.
This is the nature of a Federal law enforcement inquiry? This
question of whether or not we were distinguishing between the
appropriate buildings of the White House complex and the
numbers of coffees is the basis of a serious allegation of
perjury? On what basis could it be argued that the Vice
President was attempting to mislead someone.
The Justice Department knew how many coffees were held. The
popular press, the American people, and the Justice Department
knew where they were held, the numbers that were held, and who
was in attendance. The facts were not material, they were not
new, and they misled no one, nor did the Vice President clearly
have the intention to do so.
The third issue at hand is the solicitation of hard, as
opposed to soft, money. The allegation centers largely on a
single meeting in which 15 people were in attendance. They have
all been interviewed by committees of the Congress, by the
Justice Department, and by the task force. There has been a
great deal of attention paid to the fact that two people--two--
remember a mention of hard money. At a later date after
reviewing documentation, a third raised the possibility. There
were 15 people there.
Apparently, if the President and the Vice President of the
United States do not remember a discussion of hard money, they
have good company because neither did 12 other people. The
entire charge rests on the belief that the Vice President of
the United States reads every memorandum that reaches his desk,
every word that is ever said at a meeting, and nothing is ever
to be forgotten. That somehow these two individuals have
extraordinary credibility in their recall, but another 12 do
not, including the President and the Vice President, and this
is alleged to be an offense which would warrant the appointment
of an independent counsel.
Madam Attorney General, the best conclusion to be reached
on how you have performed your responsibilities as Attorney
General, the integrity with which you have come to your
position, the independence with which you have weighed your
judgment, is that somehow through all these years, you have
managed to have everybody disagree with you on something, at
some time, in some way. Good for you. That is the way Attorneys
General should be.
I am among those who have disagreed with you, but I cannot
argue that you did not err on the side of independence, that
you did not have the courage to look the President of the
United States in the eye, and Cabinet member who I know you
have great affection for, and have served with over the years,
and questioned them when they were wrong and stood up for what
needed to be done.
It is, Mr. Chairman, though we will endure this hearing
today, time to bring these long proceedings to a close.
A New York Times editorial on Sunday may have actually put
it in the best perspective. These issues now belong to the
American people. Vice President Gore may have made some
mistakes of judgment. I do not believe he made mistakes of law.
I commend those questions now to the American voter. Vice
President Gore, like all Americans, deserves to be judged by
the totality of his record and his service. He has done some
things he would like to change. He has done a great deal that
is good.
I hope, Mr. Chairman, after several years of reviewing the
same questions and the same facts, which always seem to come to
the same conclusion, this can finally come to an end. And I
hope that somehow, despite all the doubts and thecynicism, we
can have some confidence in professionals at the Justice Department who
have reviewed this for so many years and seem to overwhelmingly agree
with the Attorney General. Even those who disagreed with the Attorney
Genearl on the facts and would have decided differently have said they
respect those in the Department who saw it differently and do not
question the Attorney General's independence or integrity. They believe
that justice was done. If Mr. Freeh, Mr. La Bella, and Mr. Conrad can
come to that judgment, so can we.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Senator Thurmond has asked for just a short statement, and
then we are going to turn to the Attorney General.
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Thurmond. I have an urgent appointment, and I thank
Senator Hatch for his kindness.
Mr. Chairman, our Nation is built upon a system of laws
that the Attorney General is duty bound to uphold. The issue of
appointing an independent counsel to investigate the 1996
Clinton-Gore campaign fundraising irregularities has tested our
duty like nothing else, and thus far, Ms. Reno has failed to
meet her obligations in this matter.
This committee has been calling on the Attorney General to
appoint an outside counsel for over 3 years. We are not alone.
The Director of the FBI, a former judge, has repeatedly told
her that she has no other choice, and her hand-picked career
prosecutor, Mr. Charles La Bella, agreed. Even a top Justice
Department official who has always been a strong defender of
the administration, Mr. Robert Litt, recommended an independent
counsel for the Vice President. It seems that about the only
top advisor to the Attorney General who always felt otherwise
was Mr. Lee Radek, who even admitted to the FBI back in 1996
that his office was under pressure about recommending an
independent counsel because the Attorney General's job might
hang in the balance.
We learned last week that the current chief of the campaign
finance investigation, Mr. Robert Conrad, who is also a career
prosecutor, apparently has concluded that a special counsel is
needed. The Attorney General was reportedly angry about the
disclosure of Mr. Conrad's recommendation and has opened an
investigation. However she has no one to blame but herself. If
she had appointed an independent counsel when she had a duty to
do so under the statute, this matter would have been over a
long time ago, and the Vice President may have been exonerated.
In any event, as it stands, a dark cloud hangs over the Vice
President. Yet, again, we have serious issues raised about the
truthfulness of our top elected officials in the current
administration when they are questioned under oath.
The cloud will remain until this matter is properly and
fully investigated by someone outside the Department of
Justice. By avoiding the inevitable, it is the Attorney
General, not unnamed sources in the Justice Department or this
committee, who are doing a disservice to the Vice President. We
must always work to maintain the people's confidence in the
fairness and the impartiality of our system of justice.
Today, the public has no confidence in the way the campaign
finance investigation has been handled. The only way to remedy
this and to restore public trust is to appoint a special
counsel.
So I encourage the Attorney General yet again to appoint a
special counsel, but I have no confidence that she will. If she
would not do so when the plain words of the independent counsel
law required it, it is wishful thinking to expect that she will
exercise her discretion to appoint one now. But we must
continue to encourage her to do what is right once and for all.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Thurmond.
Madam Attorney General, welcome to the committee. We turn
the time over to you.
STATEMENT OF HON. JANET RENO, ATTORNEY GENERAL, U.S. DEPARTMENT
OF JUSTICE, WASHINGTON, DC
Attorney General Reno. Good afternoon, Mr. Chairman and
members of the committee.
Since my first hearing before you on March 9th, 1993, we
have worked together in a bipartisan matters on many issues
that affect the American people in very significant ways. I am
very proud and very grateful for the opportunity to work with
you, and I want to thank you all for the thoughtfulness and the
kindness that you have shown me.
Mr. Chairman, I understand that you sometimes think I am
crazy when I tell you that I appreciate the oversight function,
but I have before this committee because it brings new issues
to our attention, and it sharpens our decision-making at the
Department of Justice. I moan and groan as I get ready for
them, but I always find them helpful.
In the course of these oversight functions and committees,
we have debated and disagreed, sometimes fiercely, on a number
of issues, and today, obviously, is no exception, but I think
our Founding Fathers valued the spirit of spirited debate and
thought it one of the most important foundations of our
Government.
I am going to take just a moment to reflect on something.
One of the most extraordinary experiences that I have had as
Attorney General is to welcome my colleagues, Ministers of
Justice, Ministers of the Interior, law enforcement officials
from the emerging democracies to my conference room, to look at
how they act almost with stars in their eyes as they are
commenced on a great new undertaking. To see some of them fail
and some of the succeed makes you realize how fragile democracy
is and what a cherished institution it is and how we must not
take it for granted.
This scene is the epitome of democracy. It represents the
hallmarks of it, representative government, public
accountability, and the peaceful transfer of power. It is
almost a miracle, but it is a great testament to the strength
and the wonder of the human spirit.
It is a miracle that we have a Constitution that had stood
the test of time in the advance of technology that our Founding
Fathers never dreamed would be possible, but at the heart of
that document, essentially and required is the respect for
individuals and the different opinions we hold. Although I may
disagree with so many of you on so many occasions and agree
with you completely on others, I respect you and I respect your
opinion.
In this spirit, the Department has tried very hard to
cooperate with and facilitate the oversight process, thus
following the longstanding executive branch policy and practice
of seeking to accommodate congressional requests for
information to the fullest extent with the constitutional and
statutory obligations of the executive branch.
A Constitution also wisely assigns each branch of
Government distinct and limited roles. Among the most important
functions of the Justice Department as part of the executive
branch is the faithful execution of the laws, including the
vigorous but fair prosecution of criminals.
When there is conflict between the legislative and
executive branch, I want to--and I think our task as public
servants is to find solutions that respects our individual
duties and permits both branches to do their job responsibly.
One issue will come out today, amongst many others, that I
think I have got to address because I think it will require no
comment on a number of occasions, and that is I do not think it
proper for me to comment on pending investigations and pending
prosecutions. I think those matters should be handled
thoughtfully and professionally, not in headlines, but in
courtrooms and in the processes of an investigation. I mean no
disrespect whatsoever to the committee when I tell you that I
cannot comment. I just feel very strongly that we must be
careful in order to protect the investigation, protect leads,
protect the reputation of people involved, lest information
disseminated impede our careful and professional process that
we pursue.
I know that some of you have been concerned about the
Department response, and if we have not done it as well as you
would like, I will keep trying harder in the time I have
remaining. There is always opportunity for improvement, but at
the same time, people should be careful to reflect accurately
on a situation.
First, we are required by law to review material for
privacy, grand jury secrecy, and other obligations. That takes
time.
Second, we have competing demands from many Senators and
Members of the House who each express a very strong sense of
urgency about his or her own request, all at the same time.
Third, the offices at the Department are poised to respond
to these requests, but they operate under statutory caps on
personnel and salaries, despite marked increases in requests on
these offices by the various committees of Congress. In
addition, the same people who are responding to the document
requests and requests for information are also the people that
are trying to move what you and I would consider to be the
agenda of the American people alone.
Fourth, and most importantly, the Department has in myview
been very responsive. It has produced to this committee alone more than
8,000 pages in May and June relating to the appointment of independent
counsels. We have produced or given access to tens of thousands of
documents on Peter Lee, Wen Ho Lee, Johnny Chung, John Huang, Charlie
Trie, and Maria Hsia, among others, over 800 pages on the Loral waiver
issue and over a half-a-million pages on Waco.
Last, and importantly, we must be careful not to confuse
our inability to provide you with certain material as being
unresponsive. If I determine that a particular document's
dissemination will interfere with an ongoing investigation of
criminal prosecution and cannot provide that document to you at
a particular time, this is not in my view being unresponsive. I
am required by law to provide answers to you that you may not
like, but I can assure each of you that much thought and
reflection goes into a decision to say that I can't do this.
This is not a matter I or anyone at the Department takes
lightly, and it in no way indicates disrespect for the
committee.
Much comment has been made about how I do things and who I
rely on. I urge you to read carefully the filings made with the
court on the matters relating to the independent counsel, for
these are the documents where I have laid out the thorough
investigation of the facts at issue, the careful analysis of
the law involved, and the consistent reasoned application of
the law to the facts that has gone into each of these matters.
This work is complex. It is fact-intensive. Sound bites and
quick appraisals are not conducive to thorough analysis.
People's reputation often rests on how we talk about important
matters. I urge you to read carefully the documents submitted.
I think that these documents may provide additional information
that would be helpful.
I value honest debate about all matters that come before
me. I don't like ``yes people.'' Somebody said some of my
decisions are unanimous. I don't think I have ever had a
unanimous decision one way or the other. I think the mix has
always been interesting. It is no secret by now that I rely on
a wide variety of people, nor do I count up the votes on each
side. I don't say the majority wins or I don't say this person
wins. I make the best judgment I can.
Under the independent counsel statute, when it existed,
Congress placed on me the responsibility to make the judgment.
I made the best judgment I could, and I will continue to try to
do that.
As I told you once, Mr. Chairman, I don't do things based
on polls. I do things based on the evidence and the law.
Senator Specter has commented on one of the particular
cases, and has said that the standard for determining the
appointment of a special counsel is that there be specific and
credible information that a crime may have been committed. That
is the standard that has been used not for the application of
independent counsel, but for the triggering of a preliminary
investigation which was done in the case to which he refers,
and there is a provision for a preliminary investigation which
is permitted and authorized by the Act. That was triggered. The
preliminary investigation was conducted, but the bottom line at
that point was in determining whether the application should be
made was whether reasonable--it was necessary to have further
investigation, and whether further investigation was reasonable
and warranted.
Thus, I think we look at each of the standards and try our
best to make the best judgment we can, and I will look forward
to that opportunity to talk with you today about it.
I have said when I appeared before you last that the
American people should be extraordinarily proud of the people
in the Department of Justice. If you want to blame somebody, if
you reach disagreement, blame me. Don't blame them. They work
so hard for you. They try to give you the best advice they can.
Director Freeh will disagree with me, but he has done so
much for this country. There are people that you never hear
about that do incredible jobs going over the law, getting the
facts, agents, border patrol officers, just so many different
people in so many different ways. The American people should be
very proud of them, and you, since many of them have served
through one administration after another, should be equally
proud of them. I know that I am, and I appreciate the
opportunity to be here today, Mr. Chairman.
[The prepared statement of Attorney General Reno follows:]
Prepared Statement of Janet Reno
Good afternoon, Mr. Chairman and Members of the Committee.
Since my first hearing before the Committee on march 9,
1993, we have worked together, in a bipartisan manner, on a
number of important law enforcement initiatives. I am proud and
grateful for the opportunity to work with you on so many
matters important to the American people. I want to thank you
for the thoughtfulness and kindness you have shown me over
these years.
We have debated and disagreed on a number of issues. Today,
I expect, there will be disagreement about matters involving
the now expired Independent Counsel statute and the
Department's Campaign Financing investigation. But, the
founding fathers valued spirited debate as much as anything. I
have told you this before, Mr. Chairman, I appreciate
Congressional oversight. It brings new issues to our attention
and it sharpens our decisionmaking at the Department.
Our democracy must be cherished--we cannot take it for
granted--its hallmarks are representative government, public
accountability, and the peaceful transfer of power. And it is a
miracle or a testament to the American spirit that we govern
ourselves according to a Constitution that has stood the test
of time and the advance of technology. But at the heart of that
document is respect for individuals and the different opinions
we often hold. Although we may disagree, I respect you and your
opinions.
In this spirit, the Department tries very hard to cooperate
with and facilitate the oversight process, thus following the
longstanding Executive Branch policy and practice of seeking to
accommodate Congressional requests for information to the
fullest extent consistent with the constitutional and statutory
obligations of the Executive Branch. Attorney General William
French Smith captured the essence of the accommodation process
in a 1981 opinion: ``The accommodation required is not simply
an exchange of concessions or a test of political strength. It
is an obligation of each branch to make a principled effort to
acknowledge, and if possible to meet, the legitimate needs of
the other branch.'' [Opinion of the Attorney General for the
President, Assertion of Executive Privilege in Response to a
Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981).]
The Constitution wisely assigns each branch of government a
distinct and limited role. Among the most important functions
of the Justice Department as a part of the Executive Branch is
the faithful execution of the laws which includes the vigorous
but fair prosecution of criminals. When there is conflict
between the Legislative and Executive Branch--our task as
public servants is to find solutions that respect our
individual duties and permit both branches to do our jobs
responsibly.
One issue that will arise today is how we deal with open
investigations. I cannot discuss most aspects of an ongoing
investigation, lest information disseminated impede our careful
and professional conduct of these important law enforcement
matters.
Another example of that accommodation is how we respond to
your requests for documents about matters we are charged with
investigating and prosecuting. The Department has to date
produced hundreds of thousands of pages of documents responsive
to your requests, and is continuing to produce materials. We
have done so despite our deep concerns about the consequences
of public release of much of this material. I know your
Committee has been very sensitive to many of our concerns,
particularly where the personal privacy of individuals is
concerned, and I am grateful for that.
During my time as Attorney General, Congressional oversight
requests have implicated important Departmental institutional interests
with respect to ongoing law enforcement and litigation matters, pre-
decisional deliberative documents on completed matters, and testimony
or interviews from line attorneys. I have been particularly concerned
about the oversight requests regarding ongoing law enforcement matters.
Although Congress has a legitimate interest in determining how the
Department enforces statutes, Congressional inquiries during the
pendency of a matter pose an inherent threat to the integrity of the
Department's enforcement functions. Such inquiries inescapably create
the risk that the public and the courts will perceive undue political
and Congressional influence over law enforcement decisions.
I have also been concerned by the recent frequent efforts to breach
our line attorney policy. The Department needs to ensure that its line
attorneys can exercise the independent judgment essential to the
integrity of law enforcement and litigation functions and to public
confidence in those decisions. By questioning the Department's Senate-
confirmed leadership and if necessary, component supervisors, Congress
can fulfill its oversight responsibilities without undermining the
independence of line attorneys. I ask all of you to consider the
demoralizing and chilling effect of the recent line attorney
questioning on the dedicated career government employees who carry the
major burden of our law enforcement efforts.
I recognize that the Department's efforts to safeguard the
Department's institutional interests have often led Congressional
Committees to express great frustration and impatience in the course of
their oversight inquiries. But our law enforcement responsibilities
require that the leadership of the Department always have these
interests in mind when we respond to oversight inquiries. I appreciate
the Senate Judiciary Committee's willingness to work closely with us in
the process whereby Committees and the Department seek a mutual
accommodation of Committee oversight needs and Departmental
institutional concerns. It is our experience that good faith
negotiations during the accommodation process almost always result in
an acceptable resolution.
Mr. Chairman, you and other members of this Committee have asked to
know why I've made the decisions I have in the past with respect to
Independent Counsel decisions and the Campaign Finance Task Force. I
urge you to read carefully the filings made with the Court on these
matters--for these are the documents where I have laid out the thorough
investigation of the facts at issue, the careful analysis of the law
involved and the consistent, reasoned application of the law to the
facts that has gone into each of these matters.
So much of what you as Senators and I as Attorney General are
called to work on is complex and fact intensive. Sound bites and quick
appraisals are not conducive to thorough analysis. People's reputations
often rest on how we talk about important matters. I urge you to read
carefully the documents submitted in the past. I think that the
complete documents explaining why we made our decisions will be most
useful to you.
I want to explain to you today--as best I can--how I approach these
decisions.
I value honest debate about all matters that come before me--
whether they are Independent Counsel decisions or matters of less or
more significance. It is no secret by now that I have no particular use
for ``yes people.'' Nor do I count up the votes on each side of an
issue and go with the majority. Mine is a deliberative process in which
I consider not the number of people who hold a particular viewpoint or
what the polls say, but the reasons behind the recommendations brought
to me.
I rely on the good work of attorneys and investigators at the
Department, including the work of the task Force, past and present.
These prosecutors and investigators assumed adifficult task under
intense pressure and the intense glare of constant scrutiny from the
media and the Congress. To date they have responsibility for more than
120 investigations, convicted 20 individuals and one corporation; and
more trials are pending. Their work and the cases they have brought
have illuminated the difficulties that our inadequate campaign
financing laws place on those who seek to address abuses of our
election system. They have my great respect, admiration and gratitude,
and deserve the appreciation of the nation for a job well done.
This group of dedicated career employees serve as one good example
of the 124,000 employees of the Department of Justice, hard working men
and women who serve the American people here and around the world every
day. They uphold our liberties. They prosecute crime--from street
crimes to sophisticated white collar schemes. They catch spies,
cybercriminals, drug lords and terrorists. They stand guard at our
borders. All around the country, the Justice Department and its law
enforcement components are full partners with police, mayors and
neighborhoods in preventing crime wherever possible and in the 24-7
world of protecting the public. As a nation, we are grateful for their
dedication and hard work.
In the end, I am responsible for decisions of the Department,
including those concerning Independent Counsels. Congress ensured this
when it drafted the Independent Counsel Act and it ensured my further
and increased responsibility and accountability in this area when you
allowed that statute to lapse and to let regulations put in place by
the Department govern the appointment of Special Counsels by the
Attorney General.
I make my decisions on the facts as I see them, the significance of
the evidence as I weigh it, and the law as I interpret it. I do not
come to these decisions lightly nor in a vacuum.
Much has been made of the fact that several people have advised me
at various times to seek the appointment of an Independent Counsel when
I ultimately decided not to do so. This should come as no surprise to
anyone. In each and every instance--whether I sought the appointment of
an Independent Counsel or not--there were always people of the opposite
view who weighed in thoughtfully and vigorously. I say not boastfully
but somberly, I have not been shy about appointing Independent Counsels
when the facts and the law required it. Not a single one of these
decisions was the product of an internal poll.
It has been said that I ignored those who advised me to seek the
appointment of an Independent Counsel on the theory that a ``loose
enterprise'' may have been at work despite the lack of specific and
credible information that a crime may have been committed to justify
the appointment of an Independent Counsel. Following that theory
loosely would have been inappropriate. There is a grave danger in not
adhering to the law's requirement for facts as opposed to rumor,
innuendo and speculation. Public officials are not above the law--but
they must not be below the law either.
I know you will want to discuss this afternoon several decisions I
made under the now defunct Independent Counsel Act.
However difficult and controversial those decisions were and remain
today, my decisions under the Act were always--I repeat, always--based
on the facts as I understood them and the law as I interpreted it.
I have said before--but it is certainly no less true today--I make
the best decisions I can with the information I have at the time. I
base my decisions on the facts and the law. I stand by these decisions
and the work of the dedicated lawyers in the Department of Justice--
whose opinions I value all the more because they are presented to me
without fear or favor.
In closing, let me say that while the decisions are mine, the
appropriate exercise we are going through is about justice and the
Department of Justice--the Department of Justice as an institution that
will endure from Administration to Administration through the hard,
courageous, and yes, sometimes contentious, work of its dedicated,
career employees.
In my confirmation hearing some seven plus years ago now, I told
you that I wanted to work with the dedicated men and women at the
Department of Justice to establish as hallmarks of that Department,
excellence, integrity and professionalism. I look back and say, without
ego but with pride, we at the Department have done that. You in the
Senate know as well as I, that in the profession of law disagreement is
a critical aspect of professionalism; it ensures rigorous analysis and
critical thinking on so many important issues.
I am proud of the work that we do at the Department of Justice. And
I believe that while we disagree sometimes, on this you and I can
agree, that there is a exemplary amount of excellence, professionalism
and integrity at the Department of Justice.
Thank you, Mr. Chairman and Members of the Committee. I am happy to
respond to your questions.
The Chairman. Well, thank you, Madam Attorney General.
I will defer to Senator Specter who I believe is going to
have 5-minute rounds.
Thank you, Madam Attorney General. I appreciate your
appearing. I appreciate you being here.
Attorney General Reno. Thank you, Mr. Chairman.
Senator Specter [presiding]. Attorney General Reno, I begin
with a memorandum which has been the subject of considerable
discussion, and that was from FBI Director Freeh to Mr.
Esposito dated December 9, 1996. I will read the pertinent
part. ``I also advise the Attorney General of Lee Radek's
comment to you that there was a lot of `pressure' on him and on
PIS, the Public Integrity Section, regarding this case because
`the Attorney General's job might hang in the balance' (or
words to that effect).'' I stated those comments would be
enough for me to take him and the Criminal Division off the
case completely.
Did Director Freeh say that to you, Attorney General Reno?
Attorney General Reno. I don't have any recollection of it,
Senator. What I have in terms of a recollection of the things
that he covers in the whole memo is his reference at a time and
place different than he suggests that this meeting took place
in which he talked about the need for a junkyard dog prosecutor
and that he was anxious to have the matter referred to the FBI,
but I am sure he thinks he said it in those words or in so many
other words, but I don't remember it, sir.
Senator Specter. Well, in this memo, he talks about the
junkyard dog concept, but I come back to this point, Attorney
General Reno, because it is a very unusual point to refer to
one of your top deputies, Mr. Radek, talking about pressure on
him and on his unit, with the Attorney General's job might hang
in the balance. If in fact that was said, isn't that something
of sufficient importance that you would remember?
Attorney General Reno. Yes, I think so, sir, but I think
Director Freeh--I feel very strongly that he thinks he said it.
I don't know how he said it or the circumstances that occurred
at that moment, but I have no memory of it, and clearly, if I
had had any memory of it, I would have gone back to Lee Radek
and said, ``What is this all about?''
Senator Specter. But you think that if it had been said,
you would remember it?
Attorney General Reno. I think if I had understood it, I
would have remembered it. I think he said it, or thinks that he
said it, in that or so many other words, and it's the so many
other words and so many other words that is the puzzle to me of
what I might have confused. I note that Neil Gallagher said
that there was pressure to do a good job because it was going
to be a critical and sensitive investigation.
Senator Specter. Neil Gallagher and Mr. Esposito confirmed
that Mr. Radek did say that.
Attorney General Reno. I understand that, and that is
what----
Senator Specter. Of course, they were not present.
Attorney General Reno. That was what was confusing to me
that they talk about the pressure to do a good job. I don't
know how Director Freeh said it, but I did not understand it.
Senator Specter. Let me move to another subject because the
time is very short.
I quote very briefly from your testimony on confirmation
about the need for independent counsel where you said, ``It is
absolutely essential for the public to have confidence in the
system, and you cannot do that when there is a conflict or an
appearance of conflict in the person who in effect is the chief
prosecutor. The credibility and public confidence engendered
with the fact that an independent and impartial outsider has
examined the evidence and concluded that prosecution is not
warranted serves to clear a public official's name in a way
that no Justice Department investigation ever could.''
Now, I have recited key facts as to the Vice President, and
there have been references made to Cisneros and Espy. I turn
now to Alexis Herman where you appointed the independent
counsel, but in your submission said, ``While I cannot
conclusively determine at this time that any of these
allegations are credible, much of the detail of the story he
has told has been corroborated, though none of it clearly
inculpates Herman. Although our investigation has developed no
evidence clearly demonstrating Secretary Herman's involvement
in these matters and substantial evidence suggesting that she
may not have been involved, a great deal of Yahni's story has
been corroborated. We are, thus, unable to conclude that it is
not credible.''
Now, it is true that asking for independent counsel means
that you have to make a determination.
A red light went on. I will finish within 30 seconds.
You must make a determination that there are reasonable
grounds to believe that further investigation is warranted. We
are not saying that the Vice President committed perjury, as
Senator Torricelli has raised the question, but only of
sufficient evidence to go further. In light of what is on the
record to the Vice President, how can you order independent
counsel for Alexis Herman, but not for Vice President Gore?
Attorney General Reno. First of all, I did not order an
independent counsel. I don't have that power. The court----
Senator Specter. Recommended it.
Attorney General Reno. I apply to the court, and the court
appoints.
In that instance, I have got to trigger a preliminary
investigation, if I can, on two accounts: one, if I have
specific and credible information that a crime may have been
committed; or, two, if I cannot show that the information was
either specific and credible or that I can disprove it. So that
is what precipitated the triggering of the preliminary
investigation in Secretary Herman's case.
In the course of the investigation, I could not disprove or
I could not prove that he was not credible, and, thus, felt
that the further investigation was necessary because I, under
the Independent Counsel Act while conducting a preliminary
investigation, did not have the tools to get to the answer that
was--such as a grand juryproceeding, subpoenas, or immunity
issues.
In the instance of the Vice President, you have spoken of
poor people who remembered. Mr. Strauss did not remember. When
shown his notes, he said that must have been the case, but he
had no memory. We interviewed 15 people, two of whom remembered
the discussion. The wide variety of--and everybody gave
information. Nobody seemed to withhold information. And we
could not, as we spell out in the submission to the court,
which has been a matter of public record, which is a very
careful report on just what we did. As noted above, in order to
prove a violation of Section 1001 in this case, the Government
would have to prove beyond a reasonable doubt that at the time
he made the telephone calls that were at issue in the '97
investigation, the Vice President actually knew that the media
campaign had a hard money component or that the limit on hard
money was $20,000. In this case, there is no direct evidence of
such knowledge. While the Vice President was present at the
meeting, there is no evidence that he heard the statements or
understood their implications so as to suggest the falsity of
his statements 2 years later that he believed the media fund
was entirely soft money, nor does anyone recall the Vice
President asking any questions or making any comments at the
meeting about the media fund, much less questions or comments
indicating an understanding of the issues of the blend of hard
and soft money needed for DNC media expenditures.
Witnesses were also asked whether they recalled any other
discussion with the Vice President about the hard money
component of the media fund. None recalled any, nor did any
recall the Vice President saying or doing anything at any other
time that would indicate that indeed he knew, whether from the
meeting or some other source, that there was a hard money
component to the media fund.
I would ask each of you, I would ask everybody listening,
if you had a meeting--if you had a meeting 2 years before of
this committee and somebody raised a subject and you did not
hear it or do not remember it, can you be expected to remember
everything you hear at every meeting you go to? And what we
concluded in this instance was that the range of impressions
and vague misunderstandings among all the meeting attendees is
striking and undercuts any reasonable inference that a mere
attendance at the meeting should have served to communicate to
the Vice President an accurate understanding of the facts.
We concluded that there was under the law, as the statute
spells it out--the statute provides that I shall apply to the
division of the court for the appointment of an independent
counsel if, upon completion of the preliminary investigation, I
determine that there are reasonable grounds to believe that
further investigation is warranted. I concluded that there was
not.
Let me make sure that--15 attendees were interviewed. The
President submitted a statement, and one other attendee has
testified about the meeting under oath saying he had no memory
of it.
Senator Specter. Thank you.
Senator Leahy.
Senator Torricelli.
Senator Torricelli. Thank you, Mr. Chairman.
Madam Attorney General, in reaching judgments about the
application of the Independent Counsel Act, it was your
practice to consult with a wide range of senior officials in
the Justice Department?
Attorney General Reno. That's correct, Senator.
Senator Torricelli. And was this a standard list, or did it
change on occasion?
Attorney General Reno. It changed, depending on the
circumstances, and as people came and left the Department.
Senator Torricelli. Mr. Esposito of the FBI testified that
actually in this instance he believed that, to your credit, you
consulted with a larger group of people, that the FBI had not
always been consulted in the past and asked for their advice on
independent counsel, but in this instance, given the
seriousness of the matter, you seemed to expand the list to get
a wider range of opinions.
Attorney General Reno. I included the FBI in my weekly
meetings, asking them on each occasion--sometimes the meetings
weren't weekly, but they were on the average of about once a
week--asking if there was anything else that I should know or
argue, did they want to argue with me, did they want to
disagree with me. I tried to be as open and as accessible as I
could.
Senator Torricelli. In the seven other instances when you
named an independent counsel, were all of these senior
officials in the Justice Department always of a single mind and
did they have a single perspective on whether the appointment
should be made and on how the Department should proceed, or was
it common to have occasionally someone disagree?
Attorney General Reno. I think I made the statement earlier
that they were not all unanimous, but I think there were--I
would have to go back and look at it, and I am not sure that
there were any that were unanimous, but----
Senator Torricelli. So it might be unreasonable that this
Congress--this committee is questioning the judgment you made
because there was not a unanimous consensus among your advisors
with regard to a campaign to finance independent counsel, but
in fact it was not unusual in the Department for people in
other instances,which have received no attention, upon which we
have had no hearings, your judgment has not been questions--it was not
unusual there for there to be disagreements.
Attorney General Reno. And if you look at the Supreme Court
of the United States, 5-4 decisions are often commonplace.
Senator Torricelli. In proceeding with the preliminary
investigation of the Vice President in 1997 and 1998, the FBI
and the Department of Justice interviewed approximately 250
witnesses, including the Vice President, former members of the
staff, DNC officials, White House officials, reviewed phone
records, interviewed the Vice President personally. In reaching
this preliminary inquiry, was this equally exhaustive of the
process you went through in other preliminary investigations?
It would appear to me that, indeed, you went to some
extraordinary lengths that might seem beyond other instances.
How would you compare the amount of investigatory work that
went into this preliminary inquiry with others that were
conducted?
Attorney General Reno. I tried to be as thorough and as
complete as I could each time I asked the court for the
appointment of an independent counsel or I notified the court
that there was no basis for concluding that a further
investigation was warranted. So I don't think it was
exceptional. We just tried to be thorough in all the instances,
Senator.
Senator Torricelli. Let me read for you the memoranda, the
views of a couple of people, on the central question that
Senator Specter raised about whether or not you were under
political pressure or some other influence in not naming an
independent counsel.
Mr. La Bella in his memorandum writes of discussions with
Director Freeh. He repeatedly had assured us and the Congress
that while there had been disagreements from time to time over
investigative strategy, the investigation had not been impeded
or blocked in any way. Mr. La Bella then writes of the task
force generally, and Mr. La Bella personally and repeatedly
told us that no investigative steps were closed to them, that
they were free to follow any leads, and that if their efforts
developed specific and credible information that any covered
person may have violated the law, the Attorney General would
trigger the Act.
Now, it is being alleged by this committee that there was
pressure involved or a compromise of judgment, and cited are
Mr. La Bella and Mr. Freeh as principal witnesses. I have just
read you two statements quoting Mr. La Bella and Mr. Freeh
making very clear there was no inappropriate pressure, no other
judgments, indeed they tesfify to your own independence of
judgment.
Are these statements consistent with what Mr. La Bella and
Mr. Freeh told you personally, that while they may have
disagreed with your decision, they have never questioned your
independence in doing so?
Attorney General Reno. Mr. La Bella sent me a letter that I
will treasure that sets forth his feelings, and one of the
things that I prize most from these 7 years is something that
was given to me by the FBI. It is an Honorary Special Agent
badge, and it is something that I treasure. It could not have
been given, I think, without Director Freeh's approval. He
presented it to me, and he presented it to me after we have had
our disagreements, but there is something----
Senator Torricelli. Madam Attorney General, you should know
that people may have the impression that those who disagreed
with you on the independent counsel statute, not only including
Mr. Freeh and Mr. La Bella, but indeed the line attorney, Mr.
Mansfield and others, that because they disagreed with you,
they may believe that you had reached the wrong judgment or
that it was not a fair judgment or that the facts only
supported a contrary judgment.
In many of our hearings, there have been few of us present,
other than the members of the committee itself. So those of us
who are joining for the first time today should know this. Not
one of them, not one individual who disagreed with you on the
appointment of the independent counsel, hesitated to say to
this committee that based on the facts and the law, a
reasonable person would not have reached the same judgment that
you reached.
Finally, if I could, Mr. Chairman--I know the time has
expired, and I will then conclude.
Senator Specter. Senator Torricelli, we are going to come
back for another round. I do not mind your asking another
question, but I do not want to establish the precedent that we
are going to go to 10-minute rounds here. So I would ask you to
wait for the next round.
Senator Torricelli. Fine, Mr. Chairman.
The Chairman. Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Mr. Chairman, I am going to use my time
for a statement that the Attorney General can respond to or not
respond to, as she likes, during my time on the first round.
And then I have some questions I will ask on the second round.
During the course of the Justice Department oversight
investigation, my judgment has been that the Justice Department
gets mixed reviews. I do not believe the Department deserves
the criticism it got for the Wen Ho Lee case. The FISA issue
was a close call and other agencies were more responsible for
the shortcomings of that case. And that is especially true of
the FBI and the Energy Department.
In the Peter Lee case, I believe that was also a close
call, and the Navy did a lot to undermine that case. Yes, there
was a communication lapse in that case at the Department of
Justice, but there was sensitive information involved in that
case, the protection of which goes a long way to explaining
decisions made in that case.
So that brings us now to the present subject, the campaign
fundraising case. Of all of the cases that we have looked at,
this is the one which I believe criticism of the Attorney
General's position is warranted. We now know that a second
attorney, handpicked by the Attorney General to look into the
matter, has recommended an outside counsel to investigate the
Vice President. The director of the FBI recommended the same,
so did the former principal associate deputy AG, Robert Litt.
It seems the Attorney General's judgment to deny the
appointment of an outside counsel was based mainly on the
arguments of Lee Radek, chief of the Public Integrity Section.
Mr. Radek's section has a reputation. The reputation of that
office is that it is a big black hole. Mr. Radek is called
``Dr. No'' by the investigative community because he declines
their cases almost automatically. If you are seeking a legal
opinion to not do something, just go to Public Integrity. They
are a factory with a fast-moving assembly line of negative
arguments for prosecution.
I noted at our last hearing that Mr. Radek and the Attorney
General changed their legal arguments in midstream about the
hard money versus the soft-money issue. First, the argument was
that there were no illegalities. Then when the FEC report came
out in August 1998 saying there were illegalities, their
argument conveniently switched to an advice of counsel
argument; in other words, a new argument was needed, so they
went to Dr. No for an argument off his assembly line.
You may remember, Mr. Chairman, when Mr. Radek testified in
May, we raised a lot of these issues, and they were written
about in the newspaper the next day. Later that week in May,
the Inspectors General had their monthly meeting, and the issue
was raised there. There was a prominent U.S. attorney present
in the room who offered up their offices as an alternative to
Public Integrity. Some of the Inspectors General vowed to take
up the offer and some vowed never to deal with the Public
Integrity Section again.
The same concerns about Public Integrity are shared with
the U.S. attorney community. I raise this issue to make a
point. I cannot believe that the Attorney General and those
around her did not know about Public Integrity's reputation and
its practices. If I were aware of that reputation, and at the
same time getting conflicting arguments from the FBI director,
your handpicked attorney of the case, and the principal
associate deputy attorney general, I would have thought twice
about taking Mr. Radek's advice.
Mr. Chairman, I do commend the Attorney General for an
important point, and that is her appearance here. She is here
to be accountable, as she always has in these oversight cases.
I am sorry to say that the same cannot be said about the FBI
director. He has chosen not to come, despite the best efforts
of Senator Specter. This committee too often gives the director
a pass when he most needs to give an accounting of his input
into this decision-making process. We know from documents we
have read that he was most emphatic about the need for an
independent counsel, and without his appearance there is a
colossal void in the context of this hearing and the public's
understanding.
I thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Grassley.
Senator Leahy.
Attorney General Reno. Could I----
The Chairman. Yes, of course, you may respond, Attorney
General Reno.
Attorney General Reno. Thank you for those comments, and I
appreciate it because, Senator Grassley, from the time I first
came to make my first courtesy call on you, and you talked to
me about Qui Tam, you have always been vigorous and
constructive in your discussions, and I appreciate it very
much.
One thing I emphatically disagree with you about, and that
is Lee Radek. Would that there were more people like Lee Radek
in this world. He calls it like he sees it. He has pursued
corruption, where U.S. attorneys recuse themselves. He never
gets flustered. He tells me exactly what he thinks. I do not
always agree with him. But that man is an extraordinary public
servant, and he has taken more slings and arrows than anybody
deserves, and he is just an extraordinary man. I wish, with all
of my heart, Senator, because I think you would appreciate it,
that you could sit in the conference room and watch some of
these discussions and understand what goes into it. But he is a
very special person and a very distinguished public servant.
With respect to us changing our minds, let me tell you
precisely the process because it was not a matter of mind
changing. Under the Federal Election Campaign Act, for me to
prove a case of violation of the act, I must show that it was
willful and knowing. The previous administrations had entered
into a Memorandum of Understanding with the Federal Elections
Commission. Because the standards, particularly with respect to
what was an electioneering message which went to the issues
advertising, because the Commission,which is responsible under
437 for construing and developing the policy with respect to the
Campaign Act, had never developed standards, the issue was we cannot
show that it was knowing and willful because we do not know what the
standards were.
We knew the Federal Elections Commission was pursuing the
issues that had been raised by Common Cause. And when the
Federal Elections Commission, we said if they refer it back to
us, we will trigger the Independent Counsel Act if they think
there was a willful and knowing violation.
Now, the Commission did not act, but the Audit Division
acted and concluded that both the Democratic and the Republican
candidates, that the issue ads had violated the Campaign Act.
At that point, I triggered it. It was not a change of mind or a
change of argument.
I went then through a preliminary investigation, as the
Independent Counsel Act provides for, and we very carefully
reviewed it. The defense was what did the lawyers say? And the
finding that we spell out here is very detailed, shows the
great lengths we went to. It is 31 pages. It goes into great
detail as to how we went through the process. And if somebody
relies, in good faith, on advice of counsel, I cannot show, and
no reasonable investigation could further show that that advice
and reliance was not warranted. So that is where we ended up.
It was not a change of mind. It was trying to use the MOU that
had existed from one administration to another and the
investigation to take us to where we are at.
The Chairman. Senator Leahy.
Senator Leahy. Mr. Chairman, you know we speak about
pressure and who is pressuring who. But in this committee, we
have had a member of this committee question a sitting Federal
judge about a case, the Peter Lee case, in which the defendant
has a motion to terminate his probation.
We publicly urged prosecutors to take certain positions at
the upcoming sentencing of Defendant Maria Hsia, even though
prosecutors are supposed to be independent. The only
interesting thing about that, in that hearing, we had attorneys
for both Maria Hsia and the Justice Department here, so they
probably both use that public pressure however they want.
We wanted to conduct oversight of the Wen Ho Lee matter,
even though an investigation was pending. And now we find that
Wen Ho Lee's attorney is asking for our internal documents on
that.
Probably the only reason we are not down at the trial in
Waco is that, after Republican staffers were sent to Waco to
interview witnesses even before Senator Danforth had an
opportunity to do so, he angrily told us to butt out.
So let me ask you a couple of direct questions on pressure.
Did you ever put pressure on Mr. Radek or anyone else to come
out any particular way on any particular matter?
Attorney General Reno. The only thing I ever did to Mr.
Radek, I think, was to tell him that I wanted to make sure that
campaign financing cases that were in the U.S. Attorney's
Offices were brought to Washington so that we could review them
to make sure that we were consistent in our approaches. And he
objected, and I said I thought we should.
Senator Leahy. Did you ask him to come out a certain way,
though, in determining which way, whether to prosecute or not
to prosecute on those campaign finance cases?
Attorney General Reno. Never.
Senator Leahy. Did the President----
Attorney General Reno. And if I had told him to, he would
have told me to take a flying leap.
Senator Leahy. I am sure he would have. I know him.
Did the President of the United States ever pressure you to
come out a particular way on any particular matter?
Attorney General Reno. No, sir.
Senator Leahy. Did the Vice President of the United States
ever pressure you to come out a particular way on a particular
matter?
Attorney General Reno. No, sir.
Senator Leahy. We do know that in the Senate, the Senate
Republicans have been calling for an appointment of an
independent counsel since at least March 1997, when they passed
the Senate resolution to that effect even before the facts came
out. Is it safe to say, however, you do not take pressure here
either?
Attorney General Reno. I always try to listen and learn.
Senator Leahy. Not quite the question, but I think we both
know the answer.
Can you remember of things 2 years ago? Some of us
sometimes have a little trouble remembering 2 hours ago. But I
know some have criticized the fact that the Vice President
submitted a statement, following an interview with FBI and task
force investigators, to clarify some of his answers relating to
coffees. Well, FBI Director Freeh testified before a House
appropriations subcommittee recently, he then sent a statement
clarifying certain of his answers. And, in fact, we encourage
witnesses before this committee, once they have read the
transcript, if they want to clarify something, they should do
it.
Some have claimed that the Vice President must have known
the media fund, which was the subject of the disputed telephone
calls, had a hard-money component because there was a
memorandum written by somebody to the Vice President.That is
basically the same thing when Director Freeh let the subcommittee know
in the House, ``Well, there is a memorandum here which I had not seen.
I want to add to my understanding.'' That certainly would not suggest
anything wrong on his part, would it?
Attorney General Reno. No, sir.
Senator Leahy. And is it possible to assume that not all of
us in public office read every single item put before us?
Attorney General Reno. I think there are too many trees
that have been cut down to permit us to do that.
Senator Leahy. And DOJ I think has a policy declining to
prosecute violations of these minor matters, the de minimus
matters. In fact, in 1976, the Justice Department declined to
prosecute officials responsible for sending letters signed by
President Ford to Federal employees at their workplaces,
soliciting contributions for Republican congressional
candidates. In 1988, prosecution was declined when two
Republican Senators, one still serving, sent solicitation--in
fact, is serving as a member of this committee--sent
solicitation as part of a computerized direct mailing to
employees of the Criminal Division of DOJ. Would you not say
they probably did just the right thing to ignore those?
Attorney General Reno. Yes, sir.
Senator Leahy. And in the Buddhist Temple, we should note
if this was a democratic fundraiser and was expected to be, I
am sure that Vice President Gore was probably very surprised to
see a number of Republican elected officials who were there.
And that may be one reason why he might not have thought it was
a fundraiser, when the Republicans, elected Republicans, were
present at that event.
Thank you, Mr. Chairman
The Chairman. Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Senator Leahy, I am proud to say that there are elected
Democrat officeholders at some of my fundraisers.
Senator Leahy. You never invited me.
Senator Kyl. I did not invite you. That is right. But when
you are ready to contribute, let me know.
Madam Attorney General, I wanted to ask you, first, about
the ``willful and knowing'' standard, as it pertained to the
Vice President's knowledge or lack of knowledge about the
fundraising constituting or including hard-money fundraising.
You said, as I recall, that his mere attendance at meetings
was not enough to conclude that the Vice President knew that
hard money was involved; is that correct? Words to that effect?
Attorney General Reno. We go into great detail, sir, but
that is generally correct.
Senator Kyl. Obviously, it can be that records and other
witnesses' testimony can rebut a single person's denial.
Attorney General Reno. That is correct. And we were seeking
to determine whether there was any evidence from which one
might reasonably infer that the Vice President actually knew.
It might be supported, for example, by other attendees who
might specifically recall something. We pursued each and
developed no information.
Senator Kyl. Well, that is exactly what I wanted to ask
you. What other evidence did you consider that may have
suggested that the Vice President knew or should have known
that hard money was involved?
Attorney General Reno. Such an inference might be
supported, for example, by information that these facts were
discussed in sufficient detail and focus at the meeting that
many other attendees specifically recall them, that the Vice
President made comments or asked questions in the course of the
discussion that would seem to reflect an active understanding
of the details, that the participants recalled any affirmative
discussion of a need to raise hard money for the media fund,
that the Vice President read memoranda that made these points
or that anyone spoke directly to the Vice President on any
occasion about the need to raise hard money.
Senator Kyl. And was there not evidence to support some of
those possibilities?
Attorney General Reno. We found none.
Senator Kyl. None at all?
Attorney General Reno. No, sir.
Senator Kyl. There was no one who recalled a discussion of
hard money at those meetings?
Attorney General Reno. As I told you previously, there were
two.
Senator Kyl. So the answer was not that there was none, but
that there was some, but that you did not consider it
sufficient.
Attorney General Reno. What I said was that we did not have
any information that these facts were discussed in sufficient
detail and focus at the meeting that many other attendees
specifically recall them. And 15 individuals, including the
President and Vice President, attended the meeting. All 15 were
interviewed, with two exceptions: one, who testified under oath
in the course of a congressional investigation that he had no
recollection of the meeting, and that if he attended at all, he
likely would have left after just a few minutes; and the
President, who provided us with a statement that he had no
independent recollection of the meeting.
Senator Kyl. Did any of the witnesses testify that they
recalled hard money being discussed at these meetings?
Attorney General Reno. No attendees recall any particular
questions or comments by the Vice President; two recall----
Senator Kyl. Well, that--I am sorry--that was not my
question.
Attorney General Reno. Only two of the fifteen attendees at
the meeting even recall the topic of a hard-money component to
the media fund being raised during the meeting. While the
author of the notes had no specific recollection of the
meeting, he did confirm, based on his habit and practice, his
belief that the words noted in his handwriting were things said
during the meeting, that he recorded them as they were said.
Senator Kyl. Were there any other memoranda that you
believe came to the attention of the Vice President that
suggested that hard money was involved?
Attorney General Reno. The issue was raised previously, as
I recall, about the Ickes memorandum. Six or seven of the
memoranda were received before the telephone calls were made.
The remainder were made afterwards.
Senator Kyl. Rather than asking you to recall each of
those, Madam Attorney General, since I have just one other
quick question, would you be willing to submit, at this point
in the record, the evidence that was considered, but deemed
insufficient, to supply the ``willful and knowing'' attribution
to the Vice President?
Attorney General Reno. I trust it is a matter of record
with the committee. It has been public record for some time,
and it is the notification that we filed with the Court on this
issue. The first, with respect to the first matter, it was 29
pages in length, and I believe 19 pages in length for the
second matter.
Senator Kyl. Would you then simply just direct the
committee's attention to the points where that specific
evidence is?
Attorney General Reno. Yes, I can do that right now.
Senator Kyl. Well, no, if I might, while I still have just
a moment, if you would just do that for the record, that will
be sufficient for my purposes.
Attorney General Reno. Yes, sir.
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Senator Kyl. Since no one, and I want to make this clear,
there is a bit of a straw man here about your independence, I
know of no one who has ever questioned whether you are
independent enough. The question, I think, is whether you are
too independent or too independent at least of the advice of
some very top professionals who were brought in to give you
advice.
Now, we know who did recommend appointment of special
counsel; people like Charles La Bella, and Mr. Conrad, Mr.
Freeh. My question is this: Were there others? And I presume
that some of the staff people of these people also recommended
that. And to have rejected their advice, it seems to me, you
must really have had confidence in the advice of the others who
came to a different conclusion. Could you tell us who those
people are.
Attorney General Reno. I cannot give you each person who I
sought advice from with respect to each matter, but I will try
to make sure that you have as much as I can pull together. I
think you have all of the documents, and I think that is where
I rely primarily.
The Chairman. Senator Kyl, we have stopped others at this
point.
Senator Kyl. Yes, and I am happy to be stopped. I presume,
then, you will submit for the record the names of the people
that you relied upon in addition.
Attorney General Reno. Senator, I am trying to tell you
that I think we have given the committee all of the information
with respect to what was in writing. I do not know that I can
go back and give you everybody that I have relied on. But as I
told you, I will try to do my best.
Senator Kyl. I would appreciate that. Thank you.
The Chairman. We will have a second round, Senator Kyl.
Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Madam Attorney General, I have been privileged to be on
this committee during your entire tenure, and I can certainly
say no one has been more resistant to political pressure,
tougher or more independent than you. And I think you have made
that very clear. I think when Senator Torricelli mentioned that
you have essentially triggered an independent counsel for five
of your fellow colleagues on the Cabinet, plus the President of
the United States himself, I think that is a pretty good
testament to independence.
As I read the regulations that govern the appointment of
special counsel, the decision of whether to appoint a special
counsel is vested in you, the Attorney General, not those who
advise you, unless you recuse yourself from the issue. The
decision is not in the hands of the director of the FBI or the
head of the Campaign Financing Task Force or any other person,
other than you.
Would you tell me if I am correct in understanding the law.
And can you explain the corrosive impact on the authority of
the Attorney General, any Attorney General, of subordinates
publicly leaking the recommendations that are entrusted, by
law, to the discretion of the Attorney General, himself or
herself.
Attorney General Reno. I think you are correct in the law.
And I think leaks are very damaging to good, fruitful
conversation. But my policy has been I do not walk away from
it. I just try to let people know how damaging leaks can be.
But I still try to reach out to a variety of people, those that
say yes and those that say no, because I find that sometimes
they change their positions and sometimes they are advocating
another point of view.
I think this Nation, as I said at the outset, the
foundation of this Nation is spirited debate, and I think it is
important that we have it.
Senator Feinstein. But the point I wanted to establish is
you could essentially have everyone advising you to do one
thing, and you could turn around, within your discretion, and
do exactly the opposite. But when somebody that works in this
confidential capacity essentially leaks the advice they give
you, it effectively corrodes the authority of the institution
of Attorney General itself, and I think sets a kind of
precedent, which does not brook well for this particular
office, which after all is one of the chief law enforcement
officer for the Nation, where staff serving that officer should
be able to do so in confidence and certainly without leaking.
Attorney General Reno. I would agree with you, but I am not
going to let it corrode it.
Senator Feinstein. Well, I hope not, and I appreciate that
very much.
Thanks, Mr. Chairman.
The Chairman. Thank you very much, Senator Feinstein.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
I think, Attorney General Reno, that maybe we are, at
times, too hard on a team of prosecutors struggling with
difficult issues. But we are dealing with an unusual case, a
case of national importance, that has been followed since the
story broke late in the 1996 election cycle and needs to be
brought to rest with thorough investigation and thorough
knowledge.
So I think we should be reluctant to impose ourselves on
the Department of Justice. But when a string of lawyers and
people chosen by you, such as Mr. Litt, Mr. La Bella and now
Mr. Conrad, all say that an independent counsel ought tobe
appointed, I think that requires us to give it most serious
consideration, and the public is entitled to this exchange, so that you
have to talk about it, and we can perhaps ask some questions about it.
One of the things that I think is important to note is the
circumstances involving the Buddhist Temple fundraiser. To me,
from the beginning of the fundraising issues, this one struck
me as the one that could be most troublesome to the Vice
President and others. There has been a concern about the phone
calls, and perhaps that may or may not be a violation, may not
be a violation that would be worthy of a prosecution, but there
were some serious issues raised.
We know that it was indeed a political fundraiser, and
Maria Hsia has been convicted of felonies related to that
event. We know it is a criminal violation to file false
campaign contribution reports. It is a criminal violation to
make a political fundraiser appear to be a nonpolitical event
in order to circumvent income tax laws that prohibit taxexempt
organizations from doing fundraisers. It is a criminal
violation to conspire with others to commit any of those crimes
under title 18, section 371, and it is a violation of 1001, the
False Statements Act, to make a false statement to
investigators.
So that is a matter of real seriousness to me, and this is
a matter apparently Mr. Conrad has just now become focused on.
He has been in office about 6 months, I understand, and for the
first time in 4 years, the Vice President has now been
interviewed about this event. And last Thursday, after that
interview, we learned that Mr. Conrad has now recommended a
special counsel to investigate possible criminal violations by
the Vice President.
Last Friday afternoon, the Vice President has released a
transcript showing his answers to the questions. However, the
public does not know and probably shouldn't know all the
information that was available to Mr. Conrad, your chosen
prosecutor, when he decided it was appropriate to do a special
counsel.
So I am concerned about that, and I was impressed with Mr.
Conrad because he seemed to me to be a line prosecutor of solid
experience. And I believe that he had the kind of background
that probably would lead him to make good decisions in this
case. He certainly did not appear to be a person that was
grandstanding in any way.
Now, the transcript shows that the focus of the
investigation was on the people who were there at that
fundraiser and their relationship with the Vice President. And
I think that is important.
Also, I would want to suggest that in the prosecutions I
have done in 15 years with the Department of Justice, I have
been involved in cases which I personally prosecuted county
commissioners, mayors, judges, sheriffs, chiefs of police, and
those kinds of cases. Normally the question comes down to a
question of knowledge. We can prove that an illegal fundraiser
occurred. We can prove that foreign money was placed into the
Democratic National Committee coffers. We can prove that money
was laundered through the nuns, conduit violations of the law.
The question simply is: Does the Vice President know? Is he
knowledgeable about these things that went on all around him?
That is the question. And it is easy for someone to say I
didn't know, but a good investigator and a good prosecutor, in
my opinion, in my experience, has to be prepared to go further
and to look at other evidence.
Now, I hope and pray that there is nothing here that would
implicate the Vice President seriously in these matters.
However, I think there is some evidence that raises questions.
Earlier it was suggested that the Vice President's schedule
was not clear about whether or not it was fundraiser, but his
schedule, which I have a copy of, said DNC luncheon at Hacienda
Heights--that is the area in question--$1,000, $5,000 per head,
150 to 200 people. That indicates to me in pretty common
language that it was a fundraiser. And he has denied that. The
Vice President has flatly denied that he knew it was a
fundraiser.
We also have an e-mail that he personally sent after being
inquired by e-mail whether he would want to go to New York
because to do so would conflict with two fundraisers--``two
fundraisers in San Jose and L.A.'' And he was told we have
confirmed the fundraisers for Monday, April 29, the day of this
temple fundraiser. Vice President Gore responded: If we book
the two fundraisers, we have to decline--that is, decline the
New York invitation. That would indicate that he had
information that this would be a fundraiser. So we are looking
at some very, very serious matters, in my opinion.
My time has run out. I would be delighted----
Attorney General Reno. I would agree that Robert Conrad is
a fine prosecutor, an ethical man, and very diligent, and I
have a great admiration for him.
Senator Specter. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Madam Attorney General, welcome. I also want to join with
others in saying I have enjoyed working with you over the years
on a wide variety of matters, and I appreciate the dedication
and professionalism of the Department of Justice.
I will use my limited time to make a few brief comments,
and, of course, if you wish to respond, please do so.
One area where we have differed, Madam AttorneyGeneral, is
in our approach to the enforcement of the campaign finance laws. As you
know, I first called for an independent counsel to investigate campaign
finance violations in the 1996 elections over 3 years ago. I was one of
only two Democratic Senators to do so. I believed then and I believe
now that there were serious abuses of the law by both political parties
in the 1996 campaign, and that an independent investigation is the only
way to get to the bottom of the abuses in a way that will command
public confidence.
Let me stress, as this political season is upon us, that I
said that both parties' fundraising activities should be
scrutinized in such an investigation, and, Madam Attorney
General, congressional elections should be a part of it.
Those who call for a partisan investigation or to limit it
to certain events seem generally to seek an investigation to
accomplish political goals rather than to uncover all of the
abuses of our current laws that have occurred.
I also believe that some of the same activities of
questionable legality that arose in the 1996 campaign are going
on today. In particular, both Presidential campaigns are taking
advantage of loopholes in the campaign finance law by
participating in television advertising campaigns funded with
soft money donations. These ads, which have already hit the
airwaves, are billed as ``party-building'' issue ads. They talk
about the candidates. They show their faces. They promote them
and attack their opponents. But they avoid the use of the so-
called magic words of express advocacy that would make them
clearly illegal.
Madam Attorney General, I have never accepted the flawed
legal opinion under which both parties and their candidates are
now operating and its perverse conclusion that the ``magic
words'' distinction applies to ads run by the parties. We all
know that if a candidate runs an ad, it must be paid for with
hard money whether or not it uses the magic words. I think the
same should apply to parties who run ads supporting their
candidates or attacking another party's candidate.
Nothing in the Buckley case suggests that parties should be
treated more like independent groups than like candidate with
respect to this issue. The participation of the two major
Presidential campaigns in the use of the soft money loophole to
fund phony issue ads is unseemly and wrong. Once nominated,
each of the major Presidential candidates will receive over $65
million in public funds to run his general election campaign.
The taxpayers of this country have a right to expect them to
abide by the spirit as well as the letter of the law if they
are going to take advantage of this public financing system.
I understand that outside watchdogs, Common Cause and
Democracy 21, have indicated that they intend to request a
Department of Justice investigation of the ongoing Presidential
campaigns, and I think it would be entirely appropriate for you
to conduct such investigation or, Madam Attorney General, to
appoint a special counsel to do so.
As I have said over and over again, however, any such
investigation should include both parties and both Presidential
and congressional campaigns. This problem is not unique to one
party or to the Presidential race.
Madam Attorney General, I appreciate the dilemma you are
in. I think it is entirely appropriate for you to attempt to
keep the Department's criminal investigations out of politics.
Unfortunately, the very nature of these allegations make that
very difficult. And so I make this recommendation: Madam
Attorney General, appoint a special counsel with a wide-ranging
mandate to investigate campaign finance violations in both the
1996 and 2000 campaign; insist that the special counsel
consider allegations of wrongdoing by both parties and in both
the Presidential and congressional campaigns; remove this issue
to some extent from partisan debate by authorizing an
investigation that is deliberate, complete, and detailed.
I understand that this investigation may not be completed
by November, but it will put the parties and the candidates on
notice that their activities in this upcoming election will be
closely scrutinized. And if that leads the parties and the
campaigns to be less aggressive in exploiting loopholes in
current law that the Congress has thus far failed to close,
that will be a beneficial side effect of your decision.
Thank you, Mr. Chairman, and I appreciate the opportunity
to make a statement.
Senator Specter. Do you care to comment, Attorney General
Reno?
Attorney General Reno. I remember in April of 1997 your
thoughtful comments. They were constructive, and I have
remembered them for a long time, and I appreciate them.
I don't pass judgment on the Federal Election Campaign Act
or its effectiveness in making my determinations. What I have
got to do is be able, if I am going to prosecute, to show that
the conduct is willful, that the violation is willful and
knowing.
I have conducted an extensive investigation on the issue.
The advice of counsel defense is there. It won't go away. Under
the Independent Counsel Act, I made the determination that
further investigation would produce nothing. I think the
answers have got to be found in another arena to address the
issues that you are talking about, but I would look forward to
working with you.
Senator Feingold. Thank you very much.
Senator Specter. Senator Smith.
Senator Smith. Thank you, Mr. Chairman.
Madam Attorney General, I am just trying to understand how
you arrived at your judgment. I respect the fact that you have
the right to make this judgment over the recommendations of
people who work for you, which you have described as competent,
intelligent, dedicated people. But without replaying the whole
thing, I mean, you have--in November of 1997, you have Freeh
saying I am convinced now more than ever this should be
referred to an independent counsel; La Bella again saying he
recommended the appointment, and that is in July 1998; in
November of 1998, Litt saying, ``One could infer that Gore knew
what he claimed he did not know, that the media campaign was
paid for in part with hard money''; and now the latest with Mr.
Conrad, and then on top of that you have the Vice President in
his deposition before Mr. Conrad saying, ``I sure as hell did
not have any conversations with anyone saying this is a
fundraising event.'' That is what he told the investigators.
Senator Sessions just showed the memo which referred to so much
per head.
I have been to fundraisers many times, as we all have. I
went to one this morning. I knew what I was going to, and I
knew how much the price was for the person that I attended for.
So my only question to you is, they work for you, you make
the call, and you did. But don't you think the public has a
right to know what went through your mind in making that call.
Why did you overrule those four people and at the same time
ignore information that was out there in the domain about Mr.
Gore?
And I would add one other thing. Maria Hsia was a longtime
associate of Vice President Gore, of Senator Gore, and he had
known her back at least as far as 1989, and she had done
fundraising for him. And he was aware that Maria Hsia was at
this event and had a lot to do with coordinating the event. And
I just have one follow-on question, if you could just respond
to that. I am just interested in how do you make this judgment.
How do you make that judgment? What did you--what went through
your mind to overrule those four people and the other
information?
Attorney General Reno. First of all, you give the
impression that I overrule all my advisers.
Senator Smith. No. I just said these four.
Attorney General Reno. Well, the reason I made my
determination is expressed in notifications filed with the
court that had been a matter of public record, and I will be
happy to make those available to you, Senator. They have been
made available and are publicly available.
With respect to the prosecutions and what we have done,
there have been approximately 25 prosecutions and 20
convictions.
With respect to the present matter, as I said at the
outset, I am not going to comment on pending investigations. I
think it is imperative for justice to be done that people don't
comment until they have all the facts. That includes me. I am
going to conduct a thorough review of everything. I am going to
make my best judgment. But I would urge you with all my heart,
be careful as you comment that you have the facts.
Senator Smith. Well, so you are saying that it is still
ongoing. In your mind, you are still looking into this matter.
Is that correct?
Attorney General Reno. I am not commenting on what I am
doing, but I think it imperative for justice to be done that an
investigation be conducted without public discussion so that it
could be done the right way.
Senator Smith. Well, it started in November of 1997, as far
as we know, with Mr. Freeh's memo, so it is 3 years later. I
don't know when we get it done. Sometime, I guess, by the end
of this century, maybe.
The final question that I have, I don't understand for the
life of me why any individual would deny that he or she
attended a fundraiser. Attending a fundraiser is not a bad
thing. Now, it was an embarrassing fundraiser in the sense that
nuns were asked to contribute money. I will grant you that. But
why would any individual say I didn't attend--I don't know,
excuse me, that it was a fundraiser when all this documentation
proves otherwise. So I think it would go to the next question.
Foreign contributions were passed at that fundraiser. So if you
are going to continue your investigation, I would hope that
somebody might ask the Vice President a little bit about how
much he knew about whether or not there were foreign
contributions. He was asked that in the Conrad questioning, and
he said that, of course not, I did not know that illegal
contributions of foreign contributions had been solicited.
But it makes no sense to me that somebody would deny they
are attending a fundraiser when, in fact, everybody knows they
attended a fundraiser. His schedule says he attended a
fundraiser. And his background briefing papers say he attended
a fundraiser, and the dollars that are going to be at that
fundraiser are indicated. So there is something here that we
don't know about that makes no sense to me, and that is where I
am at.
I mean, attending a fundraiser is not bad. We all do it.
But attending a fundraiser with illegal contributions is bad if
you know it. And my concern is that we don't have the answer to
that question.
Attorney General Reno. I cannot comment on a
pendinginvestigation, but I can----
Senator Smith. Well, obviously you are not going to but----
Attorney General Reno. But I can comment on the need for
everyone to let an investigation be conducted the right way. As
you point out, you don't know something. Let's wait until we do
it the right way and find out as much information as possible.
Senator Smith. Should the American people know this before
the election?
Senator Specter. Senator Smith, we have stopped everybody
at this point.
Senator Smith. Fine.
Senator Specter. We will have another round.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman.
Mr. Chairman, to the extent that we are today examining
whether the Attorney General should appoint a special counsel
to investigate the 1996 election, I feel compelled to say that
the committee is acting beyond its purview and, therefore,
risks being labeled as partisan. Our role in these matter is
one of oversight. I am worried, however, that if we are here
quizzing the Attorney General on a decision she has not yet
made, this committee will be perceived as going beyond
oversight and instead attempting to influence an executive
branch decision that should be made on the merits and on the
merits alone.
This is ironic because the Justice Department is being
criticized here for making decisions based on political
influence and not on the merits. Yet this committee now appears
to be applying a pressure of its own.
I have no questions.
Senator Specter. Thank you very much, Senator Schumer.
Attorney General Reno, would you care to take a break?
Attorney General Reno. I am fine. Thank you, sir.
Senator Specter. The second round will also be 5 minutes.
In very brief response to what Senator Schumer has had to say,
the questions have related to the decisions made by Attorney
General Reno in declining independent counsel as to the Vice
President, the decision already made, declining independent
counsel as to the President and Vice President. Her appearance
was requested on May 25, which was substantially in advance of
the information as to Mr. Conrad's recommendation.
Attorney General Reno, I am going to come back and----
Senator Schumer. Mr. Chairman, if I might just respond?
Senator Specter. All right. We will stop the clock. Go
ahead, Senator Schumer. You had some time left.
Senator Schumer. Once it is known there is an ongoing
investigation into these matters, there shouldn't have been a
hearing.
Senator Specter. Well, I disagree with that. But this is
the first time that it has been raised, and had you raised it
earlier, I would have been willing to consider it. You and I
have talked about the matters, and I would always give
consideration to whatever you had to say. This is the first
time I have heard your comment.
Attorney General Reno, I am going to go into some detail,
as soon as I have the time to do so, about the number of
witnesses who had testimony that the Vice President knew about
hard money and also about the advice of counsel defense which
you have talked about, and also the issue of pressure which has
been raised. But I want to talk for a moment and ask you about
a broader question, and the broader question that I want to
broach is the lateness of the Department of Justice's inquiry.
You and I first started to talk about this matter in April
1997, more than 3 years ago, and in November of 1997, FBI
Director Freeh called for independent counsel. And within a
week a letter was addressed to you by me asking for his report
so we could get to the specifics.
And on July 16, 1998, La Bella submitted a memorandum
calling for independent counsel, and on the 23rd of July, I had
asked for that report.
Now, we have had the recommendation of Mr. Litt, one of
your top deputies, calling for independent counsel. And it was
not until April 18th of this year, just 2 months ago, that the
Vice President was questioned about the Hsi Lai Buddhist Temple
and about the coffees, although those matters were well known
back in 1997 and were commented on extensively by the
Governmental Affairs Committee at that time. And it appears
that the questioning of the Vice President on April 18 may have
been motivated by the fact that the Judiciary Committee
finally--finally--issued subpoenas for the Freeh and La Bella
memoranda which were returnable on April 20. And they were
known to the Justice Department several weeks in advance of
that time, so that the Justice Department finally got around to
asking the Vice President about the Hsi Lai Temple and the
coffees on April 18th, although the Vice President had been
questioned on four prior occasions.
Now, it appears to me that it may well be too late at this
point to have special counsel--that is the name now under the
Attorney General's regulationsbecause it would interfere with
the election in 2000. And it is curious that matters arising
out of the 1996 election should not have been laid to rest long
ago when they were the focus of attention within a few months
after the 1996 election.
I would be interested in your comments, although I ampretty
sure of the answer, as to whether special counsel could be appointed
and clear the Vice President before the Democratic Convention. And I
think that is not realistic, probably not even realistic to have
special counsel appointed and clear the Vice President or not clear the
Vice President before the general election.
Now, it may be that the only alternative America has at
this point in this election is to leave it to the political
process with the Vice President stating his position and his
opponent in a Presidential campaign stating his position. And
it may be only 20/20 hindsight, but in light of the very
emphatic statements you made when you came for confirmation,
asking this committee to approve you, which we did, asking for
our votes, which I cast in the affirmative, about the need to
have somebody outside to give credibility, no matter how
professional and credible the Attorney General is. And I have
never questioned your credibility or your integrity. But you
said that the only way to do it--you quoted Archibald Cox--was
to have somebody from the outside.
Now, a focus of the question is: Why so late? It is true
you made the decisions before. A two-part question: As close as
the matter was with your own view of independence and with the
body of evidence available, why not then? And why now? Why ask
a new chief counsel of your campaign task force to question the
Vice President on April 18th when it is too late because the
matter can't be resolved in a timely way for this election?
Attorney General Reno. I can't comment with respect to the
specifics, but I can talk to you generally about how an
investigation is conducted. That is like preaching to the choir
because you are an experienced prosecutor. And in some--
Senator Specter. Madam Attorney General, may I interrupt
you? This is the first time and the last time I will do it, I
think.
The Vice President has disclosed publicly that he was
questioned on April 18, and Mr. Conrad confirmed that. So it is
not a disclosure. We know that happened. Why was he questioned
on April 18th? What can be accomplished at this late date?
Attorney General Reno. First of all, you alluded to the
release of the La Bella and Freeh memoranda. Let me point out
to you that both Director Freeh and Mr. La Bella have
consistently been opposed to the release of it because at the
time they were concerned that it would give a road map to the
course of the investigation and would be counterproductive to
the investigation.
For me to discuss why something was done when would do the
same thing, and it is not right to discuss it.
What I can talk about in generalities and not reference a
specific case, you probably didn't have prosecutors in your
office, but I sometimes had prosecutors in my office that would
go interview somebody without having all the facts. And the
interview was not nearly as good as the prosecutor who went
armed with all the facts, working towards the issues. And I
can't discuss the timing because I think that would be
inconsistent with my duty. But I just simply tell you that when
people are interviewed, when things are done, depend on all the
facts of the investigation. And I will remind you that
approximately 25 people have been prosecuted, some 20
convicted, and many have cooperated.
Senator Specter. Well, Madam Attorney General, one
concluding comment. I disagree with you decisively about these
issues and this timing, and you may make whatever judgment you
like as to your comments, but the Senate has very important
congressional oversight responsibilities and we can comment,
both officially and as citizens with our First Amendment
rights. And we are dealing with matters, an election for the
year 2000, which is a great deal more important for this
country than any individual prosecution. Prosecutions pale even
by congressional oversight on the enactment of legislation.
But I have expressed my views and you have expressed yours.
Senator Torricelli.
Attorney General Reno. I would just simply say, Senator,
you can tell me that I am wrong, but I will have greater
confidence in your telling me I am wrong when you have all the
facts.
Senator Torricelli. Mr. Chairman, I would like to actually
ask several questions, but first I feel it necessary to return
to my friend Senator Sessions' reading of the Vice President's
email. The emails in question were written on March 15, 1996
from the scheduler to the Vice President. They refer to a
scheduling matter on April 28th, some 6 weeks later.
Madam Attorney General, I would assume that the Vice
President of the United States in the middle of a reelection
campaign in a national campaign is far busier than I am. Would
you concede his schedule is probably somewhat more full than
your own at that period of the year?
The scheduler asks him a question by email about an event
that he is invited to go to in New York at the same time as two
fundraisers in California, one in San Jose, one in Los Angeles,
6 weeks later. There is no mention who is hosting it, no
mention who is attending it, the word Buddhist, indeed, no
nation in the world practicing the Buddhist faith is even
mentioned. There are no details. There are two fundraisers in 6
weeks. The e-mail asks: Are you going to goto the fundraisers
you have already accepted or the event in New York?
To suggest that this is some significant piece of evidence
that the Vice President was aware he was going to a Buddhist
fundraiser is somewhat taking liberty with the facts. This
piece of paper would not establish that the Vice President
indeed knew anything.
Second, the committee had the opportunity to hear from a
Craig DeSantos. Are you familiar with Mr. Mansfield
Attorney General Reno. Yes.
Senator Torricelli. He seems to be a very fine man, and
indeed he disagrees adamantly with your recommendation not to
have an independent counsel. He disagreed with your judgment to
bring the case to Washington, but said he had no reason to
think it was anything but proper, and that it was a judgment
call that was properly made.
In questioning Mr. Mansfield, the majority of the committee
seemed to think it significant that Mr. Mansfield had begun a
prosecution, an investigation of the Buddhist Temple case and
the case was removed from Los Angeles to Washington. But,
indeed, in the course of questioning Mr. Mansfield, the
following became clear from memorandum written by Mr. DeSantos.
Mr. DeSantos believed: A, Mr. Mansfield had too much of a
workload to handle the case; B, he had not properly handled the
Kim campaign finance case because he was focusing no--the was
focusing on ancillary matters rather than the critical
questions; third, there was a policy directive to be careful
not to interfere with elections, and we were in the middle of a
national campaign; fourth, Mr. Mansfield had alleged he had
already prepared subpoenas and had begun the investigation.
Actually, upon questioning and a review of memorandum, it is
clear that, in fact, Mr. Mansfield had done nothing of the
kind; he had issued no subpoenas, prepared no subpoenas, and
done almost no investigations.
Therefore, the removal of the case from Los Angeles to
Washington was with absolutely no practical impact on the case
whatsoever, and significantly, as I suggested, Mr. Mansfield
even testified that he did not take issue with the decision. I
think that is significant since among all the people produced
to testify before this committee, he was represented as the one
who was going to disagree with your decisions the most. In
fact, this disagreement did not exist.
Third, I would now like to read something into the record.
Senator Specter and I have at great length read hundreds of
memorandums, thousands of pages of testimony, and most of my
colleagues have probably not had the opportunity. It might
appear frightening to them, but I am going to read the entire
text of Mr. La Bella's memorandum dealing with Vice President
Gore.
Now, the light is on yellow, so this might seem impossible,
and maybe I won't succeed. But I can accomplish this in 30
seconds, and not just because I am from New Jersey.
Here is the entire memorandum regarding the Vice President
of the United States in this investigation: ``During the
investigation concerning Vice President Gore's fundraising
calls from the White House, the Department concluded that he
did not solicit hard money and, therefore, could be in no
violation of 607. The fact is that Gore, using a credit card,
placed several calls to the White House to pitch soft money
contributions. The Vice President denied that he was aware that
the soft money contributions were routinely being split between
receipts by the DNC between soft and hard accounts. He stated
in his interview that he did not recall the Ickes memo directed
to him on the issues or the discussions at the regular
Wednesday night meetings about this point. The Vice President's
failure to recall reading the memo sent him is reminiscent of
his claim not to have read the April 1996 memo advising him
that he was to attend the Hacienda Heights, California, temple
event. Quite apart from the 607 analysis, it is evident that to
the extent that either the Common Cause allegations, conspiracy
to defraud the United States, presents a viable potential
violation of Federal law, the Vice President would certainly be
among those whose conduct would be reviewed. Like President
Clinton and Harold Ickes, he participated in the fundraising
and strategic effort of the White House as they impacted the
DNC and the Clinton-Gore 1996 campaign.''
That, Madam Attorney General, as you are well aware, is the
sum total of Mr. La Bella's recommendations, evidence, and
allegations regarding the Vice President. This committee is led
to believe that based on that analysis, your judgment not to
appoint an independent counsel is somehow suspect, that this
was not a judgment call upon which reasonable people could
differ.
Mr. Radek, upon having read that memorandum, concluded the
following: ``The portion of the report devoted to Vice
President Gore is only one-page long. It is so superficial that
I am at a loss at to know how to proceed. Because we are
offered no facts or analysis, I am unable to offer any views on
this recommendation. With respect to the apparent criticism of
the Attorney General's conclusion last year that the
fundraising calls did not warrant appointment of independent
counsel, the report makes no specific points. Thus, I am unable
to even respond. Our conclusions that these were soft money
solicitations and, thus, outside the scope of Section 607 was
based on the results of hundreds of interviews with those
whoparticipated in the calls and the examination of scores of
documents. In addition, as a wholly independent ground supporting our
recommendation, we documented a well-established departmental policy of
not prosecuting 607 violations absent aggravating circumstances not
present here.''
A great deal will be said in this committee; an enormous
amount has been written. That is the conflict. Mr. Radek I
think put it best: It was too simple, in my opinion too
sophomoric, it presented no compelling evidence, nothing that
should have denied you reaching the judgment you actually
reached. Indeed, I believe Mr. Radek was kind.
That, Mr. Chairman, I am sure our colleagues are surprised
to know, is what Mr. La Bella found after his investigation.
That is the report. That is all that is before this committee.
Senator Specter. Well, I am going to take the liberty of
the chairman for just less than minute to supplement what you
read as to what Mr. La Bella wrote, because there is more. In
addition, he wrote, ``The type of analysis involved in
determining whether the Vice President was part of the scheme
to solicit soft money, knowing that it would be turned to hard
money for the media campaign, is subjective and open to debate.
By routinely embracing the most innocent inference at every
turn, even if the inferences are factually indefensible, the
memorandum creates an appearance that the Department is
straining to avoid the appointment of an independent counsel
and foreclose what many would characterize as an impartial
review of the allegations. When you look at the facts, the
memos, the messages, and the DNC practice, it is hard to say
that there is only one conclusion to be reached, but there is a
great deal more'' than La Bella. There is Freeh, there is
Parkinson, there is Litt, and now there is Senator Grassley.
Senator Grassley. Well, first of all, Mr. Chairman, based
on comments that the Attorney General made in response to my
opening statement on the advice of counsel argument, I want to
enter a document in the record as a counterresponse. I don't
know if General Reno knows if you have had--if she has had a
chance to review the FBI internal documents that they provided
our subcommittee, but I think that these documents show that
the FBI general counsel, as articulated by the Director,
scoffed at the legitimacy of the advice of counsel argument. I
believe that document is from Larry Parkinson. He is the FBI
general counsel. And so I hope to pursue the issue of inserting
that memo in the record to balance out the Attorney General's
response. The document is located in S-407, and I have asked
the staff to retrieve that, and I hope that we could put that
in there to balance----
Senator Specter. Without objection, it will be made a part
of the record.
[The letter follows:]
December 4, 1998.
Memorandum
To: Director Freeh.
From: Larry Parkinson.
Subject: Independent counsel matter: Potential election law violations
involving President Clinton and Vice President Gore.
For purposes of your consultation with the Attorney General on the
pending independent counsel matter, this memorandum is intended to
summarize our discussions on the key issues. For the reasons stated
below, it is appropriate to recommend that she seek the appointment of
an independent counsel to investigate potential election law violations
involving President Clinton and Vice President Gore. Because similar
allegations have been made against the Dole presidential election
campaign, the independent counsel should be authorized to investigate
those allegations as well.
This memorandum is divided into two parts. The first section
focuses primarily on the narrow question presented at the end of this
90-day preliminary inquiry: is the advice of counsel defense sufficient
for the Attorney General to conclude by ``clear and convincing
evidence'' that the President and Vice President lacked the requisite
criminal intent? The second section discusses broader issues that
justify the appointment of an independent counsel (regardless of the
outcome on the narrow legal issue).
I. THE 90-DAY PRELIMINARY INQUIRY
A. Threshold issues
The Radek/Vicinanzo memorandum dated November 20, 1998 (``DOJ
memo'') streamlines the discussion by resolving correctly several
important threshold issues. First, the memo defers appropriately to the
FEC auditors' conclusion that the DNC-financed ``issue ads'' can be
attributed to the Clinton/Gore campaign committee, thereby violating
the spending limits. That conclusion obviously has been strengthened by
this week's public release of the Audit Division's final report. The
audit report, along with the very strong concurring opinion by the FEC
Office of General Counsel, makes a compelling statement that the
Clinton/Gore campaign illegally benefited from the media campaign.\1\
Therefore, the basic facts that led to the initiation of the 90-day
preliminary inquiry--the audit finding--have become stronger.\2\
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\1\ As you know, the career FEC auditors and lawyers reached
similar conclusions about the Dole campaign.
\2\ The FEC Commissioners met in public session on December 3,
1998. Campcon had agents in attendance and has reported that several of
the Commissioners appeared hostile to the Audit Report. As expected,
the final resolution by the Commission is uncertain. One thing that
does appear certain, however, is that there will be no resolution for
at least several months. Thus, there appears to be little reason for
the Attorney General to seek a 60-day extension of the preliminary
investigation.
---------------------------------------------------------------------------
The DOJ memo also resolves the issue of control, after setting
forth a good factual summary of the genesis and development of the
issue ad campaign. The memo correctly concludes that the ad campaign
was controlled in all major respects by the White House:
[T]here was little dispute that the DNC issue ad campaign was
not only coordinated with the White House but controlled by it.
Fowler described the White House control as ``near absolute.''
DOJ Memo at 29. Among many other things, the memo relies on the April
17, 1996 from memo from Ickes to Fowler establishing that all DCN
expenditures were subject to prior White House approval.\3\
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\3\ This total White House control of DNC expenditures raises a
significant legal issue. As you will recall, in our January 30, 1998
memorandum to DAG Holder, we argued strongly that this was a case about
``control'' and not mere ``coordination.'' Based on their discussions
with the FEC auditors and attorneys, our agents believe that the FEC
has acquired only a fraction of the evidence that Campcon has obtained
regarding ``control.'' When asked how they would treat a situation in
which there was total control of committee expenditures by a campaign,
the FEC staff responded that it was an intriguing scenario with which
they had never been faced.
---------------------------------------------------------------------------
With respect to the purpose of the media campaign, the DOJ memo
appears to give credence to the witness statements that the primary
purpose of the issue ads was to aid the Democratic party and not to
reelect the President. Such statements appear to be disingenuous at
best; the documentary evidence clearly indicates that the primary
purpose of the ads was the reelection of the President. In fact, the
FED Audit Report takes the matter a step further: not only does it
flatly reject the argument that the adswere not intended primarily to
reelect the President, it essentially alleges an outright fraud:
The Audit Division does not dispute that the advertisements
in fact address pending political issues. However, the facts
ascertained during the audit indicates that the primary purpose
for addressing these issues was to assist President Clinton's
reelection. It further appears that those facts which might
otherwise demonstrate that the purpose and ``targeting'' of the
advertisements were related to an overall party agenda (rather
than the President's reelection) are true because of a
deliberate effort to conceal the actual purpose of the
advertisements.
FEC Audit Division Report on Clinton/Gore `96, at 42 (emphasis added).
Although its own analysis of ``purpose'' leaves something to be
desired, the DOJ memo does reach a very significant conclusion: ``it is
clear that [President Clinton and Vice President Gore] both were
sufficiently involved to be deemed coconspirators or aiders and
abettors of any potential criminal violations of the FECA or PPMPAA.''
DOJ Memo at 31. This is an enormously significant conclusion in light
of the FEC audit findings that there were violations of the relevant
statutes. We are left, then, with the sole issue of whether the
President and Vice President committed such violations ``knowingly and
willfully.''
B. Advice of counsel defense
I view the advice of counsel defense as fairly strong in this case,
but not strong enough to satisfy the ``clear and convincing'' standard
under the Independent Counsel Act. I strongly disagree with the
statement in the DOJ memo that ``it is hard to imagine a more
compelling set of facts establishing an advice-of-counsel defense.''
DOJ Memo at 40. While there appears to be no dispute that two of the
lawyers representing the DNC and Clinton/Gore--Sandler and Utrecht--
were involved significantly in the ad campaign process, the DOJ memo
itself notes certain factors that cut against a viable advice of
counsel defense.
1. No direct contact between lawyers and principals
The memo points out that where the attorneys never advise the
principal clients directly, this undercuts to some degree the advise of
counsel defense. It appears to be undisputed that the two experts,
Sandler and Utrecht, never had direct contact with the President or
Vice President. Instead, their advice filtered through intermediaries.
The principal intermediary was Harold Ickes, who is, after all, the
subject of a separate investigation for perjury. (While the perjury
allegations are unrelated to media fund issue, does it make sense to
shut down an investigation based on an advice of counsel defense where
the person actually relaying the advice is about to have his own
independent counsel?)
There appears to be relatively little evidence that actual legal
advice was transmitted to the President or Vice President. Instead,
this seems to be a situation in which the President and Vice President
were told that ``lawyers were involved'' and that seemed to satisfy
them. (See, e.g., DOJ memo at 40: ``The Vice President felt confident
that Quinn, who had some expertise in this area and was a good lawyer,
had ensured that the ads were legal.'') While certainly relevant to
state of mind, this kind of evidence is not particularly persuasive in
establishing a solid advice of counsel defense.
It also appears that the President and Vice President were relying
primarily on Ickes and Quinn, even though they were not acting in a
legal capacity. At the time, Ickes was Deputy Chief of Staff to the
President and Quinn was Chief of Staff to the Vice President. The fact
that they also happened to be lawyers does not necessarily mean they
were dispensing ``legal advice'' for purposes of analyzing an advice of
counsel defense.
Finally, there is one clear indication that the legal advice of
Sandler and Utrecht may not have been getting through. As noted in
footnote 11 of the DOJ memo (p. 22), ``Sandler and Utrecht stated that
they consistently applied the `electioneering message' legal standard,
not the express advocacy standard, when they reviewed the content of
the DNC ads. Yet virtually every other witness recalls Sandler and
Utrecht's advice in terms of express advocacy.'' While the memo
concludes that this inconsistency is not significant, certainly it
raises some question about whether the attorneys' advice was being
heard and heeded.
2. The attorneys were not disinterested
The DOJ memo points out accurately that Sandler, as general counsel
for the DNC, and Utrecht, as general counsel for the Clinton/Gore
campaign committee, ``worked for organizations with an unmistakable
interest in ensuring the reelection of President Clinton,'' DOJ Memo at
38. The memo also states that ``courts have declined to instruct juries
on advice of counsel where the evidence indicated that the attorney was
not disinterested in the outcome.'' Without impugning their integrity
or professionalism,\4\ Sandler and Utrecht certainly were not
disinterested in the outcome.
---------------------------------------------------------------------------
\4\ Apparently both Utrecht and Sandler are recognized experts in
the election law arena, which has very few practitioners. Utrecht in
particular is a very impressive witness, according to the agents who
interviewed her.
---------------------------------------------------------------------------
3. No one sought advice from the FEC
If the DNC or Clinton/Gore truly wanted disinterested--and
dispositive--advice on whether the spending for ``issue ads'' was
properly allocated, they obviously could have gone to the FEC. They
chose not to, presumably because they were afraid they might receive an
answer they did not like. (When I met with the FEC's Chief Auditor in
September 1998, he reacted viscerally when I asked him if the DNC or
Clinton/Gore had ever sought advice on these matters.)
4. The Sandler memo
There is one clear indication that Sandler--one of the two lawyers
critical to a viable advice of counsel defense--had doubts about
whether the media campaign was violating the law. In a February 2, 1996
memo to Don Flowler, Sandler stated:
Under (the FEC's legal) test, the DNC is bumping up right
against (and maybe a little bit over) the line in running our
media campaign about the federal budget debate, praising the
President's plan and criticizing Dole by name.
(Emphasis added). When the same memo was sent to Ickes at the White
House, it had been rewritten to state that the FEC's ``electioneering
message'' test ``is the standard we are applying (albeit aggressively)
in the current DNC media campaign.'' When interviewed about these
memos, Sandler gave a contorted explanation which led our agents to
believe he was lying.
5. The investigation was by definition limited
As is true in any preliminary investigation conducted pursuant to
the Independent Counsel Act, we conducted this 90-day inquiry \5\
without the use of standard investigative tools. Therefore, we had to
rely on voluntary production of documents, voluntary statements by
witnesses, and agreed-upon attorney-client privilege waivers. While our
agents felt that they received full document production from the DNC,
they were not confident that all relevant White House documents had
been produced. While I am unaware of any specific documents we believe
to be missing, Campcon has had significant difficulties with White
House document production since the Task Force began its work.
---------------------------------------------------------------------------
\5\ In fact, because of the deadlines required for preparation and
review of the DOJ memo and subsequent deliberations, the actual
investigation was approximately 60 days.
---------------------------------------------------------------------------
C. The ``clear and convincing evidence'' standard
Under all the circumstances, it is reasonable to conclude by
``clear and convincing evidence'' that the president and Vice President
lacked the requisite state of mind? As we pointed out during
deliberations on the recent Gore and Ickes matters, Congress clearly
intended to set a very high threshold before an Attorney General could
close a case, either before or after a preliminary investigation, on
the ground that the subject lacked the state of mind necessary to
commit the alleged crime. In 1987, Congress amended the Independent
Counsel Act in an effort to curb what it viewed as a ``disturbing''
practice by the Department:
A third problem with the Department of Justice's
implementation of the statute is its practice in several cases
to decline further proceedings, despite specific information
from a credible source of possible wrongdoing, due to a lack of
evidence of the subject's criminal intent. The decision not to
proceed has sometimes been made even in the face of conflicting
or inconclusive evidence on the subject's state of mind.
* * * * * * *
The Justice Department's demand for proof of criminal intent
to justify continuing independent counsel cases is disturbing,
because criminal intent is extremely difficult to assess,
especially in the early stages of an investigation. Further, it
often requires subjective judgments, which should ideally be
left to an independent decisionmaker. It is not the type of
factual question that the Attorney General's limited role in
the independent counsel process and lack of access to important
investigative tools such as grand juries and subpoenas.
1987 U.S.C.C.A.N. at 2159-60.
The 1987 conference agreement emphasized, ``The conferees believe
it will be a rare case In which the Attorney General will be able to
meet the clear and convincing standard and in which such evidence would
be clear on its face. It would be unusual for the Attorney General to
compile sufficient evidence at that point in the process.'' Id. At 2190
(emphasis added).
The question is whether this is one of those ``rare cases.'' We
should bear in mind the accurate conclusion that the President and Vice
President ``both were sufficiently involved to be deemed coconspirators
or aiders and abettors of any potential criminal violations of the FEC
or PPMPAA,'' DOJ memo at 31. There was a conscious, well-orchestrated
effort by the White House to evade the spending limits through the
media campaign. Moreover, this kind of campaign was unprecedented, as
the President readily acknowledged when he bragged to his supporters
about how he had found a new way to spend enormous amounts of money for
the campaign. Under all the circumstances, notwithstanding the
potentially viable advice of counsel defense, this matter should not be
closed on a ``clear and convincing'' finding.
II. BROADER ISSUES: CONFLICT OF INTEREST
Even if the Attorney General determines that there is ``clear and
convincing'' evidence of a lack of intent in this 90-day matter, she
should step back and consider the impact of closing this investigation.
It would be fair to summarize the decision in the following way:
--For two years, the investigators advocated a need to conduct a
broad investigation of the entire campaign financing scheme conducted
by the White House and the DNC, including both the raising of campaign
money and the spending of that money. The media campaign was critical
to the reelection and many of the apparent criminal abuses resulted
from the need to keep the money flowing into the media fund.
--For nearly two years, investigation of the media fund was largely
off-limits while the Department debated internally about the scope of
the campaign finance laws and whether we should defer to the FEC. In
the meantime, the Task Force pursued a variety of individual cases
largely independent of one another.
--While we were debating internally on the broader issues, the FEC
was actually working on a comprehensive audit of the two presidential
campaigns (much to our surprise). Contrary to the prevailing view
within DOJ, the FEC auditors found massive violations of the law by
both presidential campaigns.
--Faced with evidence of legal violations, the Department was
forced to initiate a preliminary investigation under the Independent
Counsel Act.
--The preliminary investigation consisted primarily (but not
exclusively) of an examination of an advice of counsel defense. We went
to the subjects and their lawyers and asked them what happened. They
informed us that the subjects had no criminal intent, notwithstanding
the apparent violations. After investigating that issue, we agreed with
the subjects and closed the entire matter, with one exception:
--The exception is the related investigation of the Dole campaign.
Since we have no evidence relating to an advice of counsel defense for
that campaign, we will keep that investigation alive, particularly in
light of the FEC's recent Audit Report.
The media fund/Common Cause allegations have always been the
biggest piece of the campaign finance scandal. In large part, those
allegations led to the creation of the Campcon Task Force in the first
instance. Nevertheless, those allegations have never been investigated
in any comprehensive or organized way. Nearly a year ago (January
1998), we sent a detailed memorandum to the Department seeking a
comprehensive investigation of the Common Cause allegations. In that
memo, we stated:
``[T]he Common Cause allegations are the most serious of
those issues raised in connection with the investigation of
campaign finance.'' In a series of well-researched submissions,
Common Cause has described a scheme to circumvent the FECA and
presidential funding laws on a breathtaking scale. For knowing
and willful violations of these laws, Congress provided for
criminal penalties.
It has been nearly 16 months since Common Cause first brought
these allegations to the attention of DOJ. The Department has
on more than one occasion written to Common Cause stating that
the Task Force is ``reviewing a variety of campaign financing
issues arising out the last national election'' and is
``examining'' the soft money issues raised by Common Cause. In
fact, the Task Force has undertaken no actual investigation of
these allegations. Consequently, some of the most fundamental
questions relating to the 1995-96 presidential campaign remain
outstanding:
--How were the campaign funds raised?
--How were they spent?
--How were they allocated and reported for FECA purposes?
--Who made the fundraising and spending decisions?
While the Task Force has uncovered partial answers to these
questions, in particular the last one, it is not because we
have addressed them in any systematic investigative fashion.
Instead, our information has come primarily from Common Cause,
the newspapers, and tangentially from our investigation of
other matters.
Very little has changed in the last year. After several months of
memos and discussions last winter, in February the Attorney General
took under advisement the matter of whether the Common Cause
allegations could be investigated. We never received a response until
July of 1998, when we read (with great surprise) the Attorney General's
congressional testimony in which she stated that the Department was
deferring to the FEC.\6\
---------------------------------------------------------------------------
\6\ In April 1998, the Task Force investigators developed a
investigative plan and dubbed it the ``Media Fund'' plan. Because it
was never clear how the Task Force could investigative the ``media
fund'' while steering clear of the Common Cause allegations, the
investigative plan was necessarily truncated. In any event, beginning
in May, the investigators began to conduct the ``media fund''
investigation and obtained a significant amount of information that
became very useful during the current 90-day preliminary investigation.
That investigation consisted primarily of interviews of state party
officials in a dozen key battleground states (focusing on the use of
the state parties as conduits for the DNC), document production by the
media consultants, and interviews of three DNC employees (Brad Marshall
and two lower-level employees).
---------------------------------------------------------------------------
Our January 1998 memorandum also recommended the immediate
appointment of an independent counsel:
Because the Common Cause allegations clearly involve the
President, they must be investigated by an Independent Counsel.
Moreover, the Attorney General should seek the appointment of
an Independent Counsel immediately. Since the Department has
had the allegations for nearly 16 months, a preliminary inquiry
does not appear to be an option. Finally, we once again would
incorporate by reference the FBI's prior written submissions
recommending that, independent of the mandatory provision of
the Independent Counsel statute, the Attorney General should
exercise her discretionary authority pursuant to the political
conflict of interest provision.
Notwithstanding the passage of time, our arguments remain the same.
If anything, the need for investigation has increased. Intentionally or
not, the Department has deferred to the FEC, which has spoken publicly
in a resounding way.
For nearly two years, the Department has been investigating the
potential criminal conduct of the President and Vice President. That is
an inherent conflict of interest that the Independent Counsel Act was
designed to address. Even if the Attorney General concludes by ``clear
and convincing evidence'' discretionary authority and seek the
appointment of an independent counsel.
Attorney General Reno. Do you have that, sir?
Senator Grassley. Yes, I think we do have it.
Attorney General Reno. May I see it, please?
Senator Grassley. Oh, we have it in 407.
Senator Specter. I think we can provide a copy momentarily.
That is a subject that I intend to ask the Attorney General
about.
Senator Grassley. Well, since I have asked the staff to get
that--we do not have it, so we would request then that that be
given to us so we can include it in the record.
Senator Specter. Well, I am sure we can obtain it. All of
those documents have been released into the public domain.
Attorney General Reno. I would refer you to page 3 of a
memorandum from Larry Parkinson to Director Freeh. ``I view the
advice of counsel defense as fairly strong in this case, but
not strong enough to satisfy the `clear and convincing'
standard under the Independent Counsel Act.''
Senator Grassley. OK.
Attorney General Reno. That is somewhat at odds with
whatever document you have, sir, and I would like to see it,
please.
Senator Grassley. Okay. Well----
Senator Specter. Well, we will get to that. Mr. Parkinson
in that memorandum----
Attorney General Reno. I am just--let me deal with Senator
Grassley. All I am trying to say is he read something to me. I
have a Parkinson memo on this issue. I would like to be able to
see what you are reading from so that I might appropriately
respond, since it does not seem to be what I have.
Senator Specter. Well, we will be glad to make that
document available to you. But----
Attorney General Reno. May I make--because you I know you
have this, and I do trust that you will look at it and note
that he viewed the advice of counsel defense as strong.
Senator Specter. Well, the memorandum by Mr. Parkinson goes
into some detail in dismissing the advice of counsel argument
on a number of grounds: first, that the two lawyers, Joseph
Sandler and Lynn Utrecht were not disinterested parties. Mr.
Sandler was general counsel for the DNC, and Mr. Utrecht or
Lynn Utrecht was general counsel for the Clinton-Gore campaign.
He further dismisses the advice of counsel argument on the
ground that those lawyers did not give their advice directly to
the President and Vice President, but to intervening
individuals, Mr. Ickes and Mr. Quinn, who were not
disinterested parties.
And, finally, he dismisses the advice of counsel argument
on the ground that there was a reservation by Mr. Sandler who
said, ``Under the test, the DNC is bumping up right against and
maybe a little bit over the line.'' So that as you accurately
quote, Attorney General Reno, he does say that it doesn't
satisfy the clear and convincing evidence test, but Mr.
Parkinson thoroughly debunks the advice of counsel defense in
his written memorandum.
Attorney General Reno. No, Senator, I would take issue with
you. He does not debunk it. He calls it fairly strong. What he
says is: I can't meet the clear and convincing evidence test
that the statute requires for showing intent. But he does not
address the points made in 6 through the end of the
notification to the court, and I would ask that Senator
Grassley be given a copy of it so that he can understand the
lengths that we went to, the law that we considered, and I will
be happy to make this available to him if it is not with the
committee.
Senator Specter. Well, we are going to get into the point a
little later in detail. Whether you agree with the conclusion
that he debunks it or not, he conclusively comes to the
judgment that it was not sufficient to reject the appointment
of independent counsel. Wouldn't you agree with that, Attorney
General Reno?
Attorney General Reno. Let me get it for you again and just
go over the points so that you can understand.
Senator Specter. Well, I do understand, and Mr. Parkinson
comes to the conclusion----
Attorney General Reno. Well, he certainly didn't debunk
it----
Senator Specter. Excuse me. I want to finish my sentence.
That the defense of advice of counsel does not constitute clear
and convincing evidence to negate the requisite intent. Isn't
that correct?
Attorney General Reno. He says, ``I view the advice of
counsel defense as fairly strong in this case, but not strong
enough to satisfy the `clear and convincing' standard under the
Independent Counsel Act.''
Senator Specter. That is what I said.
Attorney General Reno. He and I disagree on that, and we
have set forth our position and I think made it very clear.
Senator Specter. Well, I understand you disagree. The point
was whether Mr. Parkinson found the clear and--found the advice
of counsel argument sufficient to reject----
Attorney General Reno. He did not find it sufficient, as I
pointed out, but neither did he debunk it.
Senator Specter. Well, I think the point has been made. He
said that the argument did not support your conclusion that
independent counsel should not be appointed.
Attorney General Reno. I was responding to Senator
Grassley's comment that indicated that he did not think
theadvice of counsel defense was very strong.
Senator Specter. Senator Grassley and I have passed the 20-
year test. We help each other out occasionally.
Senator Grassley.
Attorney General Reno. I don't think Senator Grassley needs
anybody to help him. I have found him very constructive and
very thoughtful and an excellent advocate.
Senator Grassley. Now, we will have to end this right here
by my saying to you that we are going to pursue that document
from S-407, get that to you, and if we--we may have to do it by
our response in writing, but we will give you a chance to
respond to that.
Attorney General Reno. Thank you, sir.
Senator Grassley. I think I might have time for a couple of
questions, and I am well aware of your admonition that I should
be appreciative of Mr. Radek's work, as you are.
Attorney General Reno. Could I just say something?
Everybody has been calling him Mr. ``Ra-dek.'' It is Mr. ``Ray-
dek.''
Senator Grassley. Well, Mr. Radek. Now, going on from that
point, we are talking about the same person.
I want to ask you a question, and that is in reference to
the fact that I had made reference to an inspectors general
meeting and how a U.S. attorney had offered their services as
an alternative to career investigators trying to present
evidence of misconduct against high-ranking officials. I was
wondering if you were aware of the feeling among at least some
U.S. Attorneys--and there was only one U.S. Attorney at this
meeting that spoke about this--of the frustration with the
Public Integrity Section. And were you aware of that Public
Integrity Section's reputation?
Attorney General Reno. I am aware of their reputation of
calling it like they see it, of looking at all the evidence, of
not jumping to conclusions, of making the best judgment they
can. I am also away, after 22 years as a prosecutor, that
nothing can get an investigator more upset than somebody that
tells them you need to get more evidence, and that there is an
inevitable tension and conflict. And I think it is important
that we look at each case.
I have met with the inspectors general, talking about how
we can build better lines of communication. I have worked with
the U.S. Attorneys in the Criminal Division to make sure that
there is coordination between them and that some of the tension
that exists be resolved by establishing direct lines of
communication and understanding what is necessary.
Senator Grassley. On another point, but still in regard to
Mr. Radek, at a previous hearing he had expressed his
displeasure with the independent counsel. So my question to you
is: Did he ever express his displeasure with the independent
counsel statute to you?
Attorney General Reno. Yes.
Senator Grassley. Then my question to you is: How did you
weigh that in your decision?
Attorney General Reno. Well--do we have that?
Apparently, when the Independent Counsel Act was being
considered, for example, in 1981, the then Associate Attorney
General Rudolph Giuliani testified before the Senate Committee
on Governmental Affairs urging that the action be repealed. He
said, ``The system depends quite properly on the integrity of
the Department of Justice personnel. The assumption upon which
the special prosecutor law is premised, that the Department of
Justice should not be trusted to investigate or prosecute
certain Federal offenses, is simply unfounded.''
I think I relied on Lee Radek like the administration at
the time relied on Rudy Giuliani as a vigorous prosecutor.
Senator Grassley. And so then the bottom line of that is
that Mr. Radek's view of the independent counsel law and the
fact that he didn't like that was in no way--or you saw that in
no way of lessening his opinion about whether or not there
ought to be an investigation or counsel----
Attorney General Reno. There are so many things that come
up where people disagree and still carry out the law and do it
the right way.
Senator Specter. Thank you very much, Senator Grassley.
Senator Kyl.
Senator Torricelli. Mr. Chairman, if I could ask how we are
going to proceed here, the Democratic Party obviously would
like to continue to be heard in this rotation.
Senator Specter. All they have to do is appear and they
will be heard, as the court crier says all the time.
Senator Torricelli. Previously we have been alternating a
balance, regardless of the number of people who were here on
each side. Is it your intention now to proceed entirely with
the Republican side before returning----
Attorney General Reno. While you are deciding that, may I
take a break?
Senator Specter. Yes, of course. We will take a 10-minute
break.
[Recess 4:38 to 4:47 p.m.]
Senator Specter. We will turn to Senator Sessions.
Senator Sessions. Senator Torricelli and I have talked
about this email matter, and he raised a point of interest,
skillfully, as he always does. I would note that the e-mail I
had reference to was dated March 15 from his assistant to Vice
President Gore saying that Rabbi Grossman hasinvited you to
appear to give the keynote address at the rabbinical counsel in New
York. Then she went on to say, ``This is the same evening you wanted to
fly out to California and do the two fundraisers in San Jose and
L.A.''--Los Angeles--``while Sarah and Mrs. Gore visit colleges.''
So I would just say that responds directly to his inquiry
and direction about the fundraisers, and she said further, ``We
have confirmed those two fundraisers for Monday, April 29.''
Then the Vice President the next day, March 16, responds,
``If we have already booked the fundraisers, then we have to
decline.'' And there were two that day, the San Jose and the
temple fundraiser. And I must note that that appears to be the
16th, the day after the Vice President, as I recall the facts,
met with John Huang, Maria Hsia, and the temple master in the
White House. And I would suggest it would be quite likely that
they would have discussed on that day that a fundraiser was to
occur in the Buddhist temple fundraiser, at least in Los
Angeles. It is a matter that does not prove a criminal case. It
is a matter that I would suggest that provides some credence to
the fact that the Vice President would have known this was a
fundraiser; would you not agree, Attorney General Reno?
Attorney General Reno. I will not comment, sir. I do not
think it is right to comment on a pending investigation before
all of the facts are in, and I shall not.
Senator Sessions. I appreciate that and respect that. Our
problem here is that the Executive Branch has exclusive
prosecutorial responsibility and since we have given up the
independent counsel procedure, there is no other procedure for
that. So I think it is particularly legitimate, under this new
time, that the Congress watch closely when the Executive Branch
is called upon to investigate itself. And that is why I justify
Senator Specter's concern about this and desire to have a
hearing. And I am not asking you to say what you cannot say,
but I do believe that it is a matter of utmost importance and
that the American people need to have complete confidence in
this procedure.
Attorney General Reno. And I do urge you to watch
carefully.
Senator Sessions. The matter that really has caused me
distress and to lose some confidence in what has taken place so
far with regard to this investigation and its late ripening was
what occurred in 1996, Attorney General Reno. That is when
Assistant U.S. Attorney Mansfield prepared, at least initially,
some papers toward commencing an investigation of the temple
fundraiser after he read about it in the newspaper. Of course,
he had successfully convicted Republican Congressman Kim on
campaign finance matters, and he saw this arise in the
newspaper and begin to take some steps toward proceeding with
it. Perhaps there was a misunderstanding about whether he
actually issued subpoenas, but we saw the paperwork where he
had commenced the paperwork toward issuing subpoenas.
And I guess my question to you is, well, before he got very
far toward that end, he received a directive, verbal and
written, from Mr. Radek to stop the investigation, that Mr.
Radek and Public Integrity was taking it over. Were you aware
that that directive had gone out to stop that investigation?
Attorney General Reno. I was aware that they were trying to
do everything they could to make sure that any case that might
be subject to the Independence Counsel Act be appropriately
considered.
Senator Sessions. So you basically understood that Los
Angeles would be stopped from what they were doing and that
Public Integrity would take it over.
Attorney General Reno. That is correct.
Senator Sessions. Were you aware that from the date that
Public Integrity took that over--well, let me back up. One of
the things that triggered that, if you will recall, was a
letter from Senator McCain and five Congressmen requesting an
independent prosecutor, listing some concerns. Part of that was
the Buddhist Temple fundraiser that they listed. Do you recall
that?
Attorney General Reno. I recall the 5-star letter, sir.
Senator Sessions. Yes. And that is what triggered, as I
understand it, Mr. Radek's and your decision to intervene and
take it over. Were you aware that after it was taken over that
no subpoenas were issued, no witnesses were interviewed, no
records were obtained from the Buddhist Temple fundraiser, and
that the recommendation Mr. Radek made to you to decline an
independent counsel at that time was based solely on newspaper
articles and maybe the letter from the Senators and
Congressmen?
Attorney General Reno. I do not know to what you are
referring, sir.
Senator Sessions. Well, in our hearings, Mr. Radek
testified that he did not conduct any investigation, did not
interview any witnesses, and did not obtain any records, as the
assistant U.S. attorney in California had planned to do, but
yet he still made a recommendation that there was no basis for
an independent counsel. And my question is did you know he had
conducted no investigation to obtain any information?
Attorney General Reno. I do not think so, sir. If you have
the language from--if you have the transcript, I will take a
look at it and try to understand it better.
Senator Sessions. I hope you would because, to me,
Mr.Mansfield, the experienced prosecutor in California, testified that
he was very concerned and actually had a contentious telephone call or
two with the Public Integrity Section, in which he expressed concern
that witnesses would disappear, that records could be destroyed. And we
know, since that time, that a number of the witnesses have left the
country, that Ted Sioeng has left the country, a man whom the Vice
President was sitting next to at this fundraiser, that one of the nuns
admitted destroying evidence ``because we did not want to embarrass the
Vice President,'' and that the video of the event was never obtained.
Are you familiar with those circumstances?
Attorney General Reno. No, sir. What I am familiar with is
a letter to Congressman Gilman, dated November 29, 1996, in
which he said, ``Mark Richard wrote saying the issues raised in
your letter, taken as a whole, are extraordinarily complex,
both factually and legally, and warrant careful consideration.
Indeed, public interest organizations, the press, members of
Congress and the public have recently expressed concerns about
campaign financing practices by both parties in the recent
national election. As a result of these serious and legitimate
concerns, a task force has been created within the Public
Integrity Section of the Criminal Division, composed of career
Federal prosecutors, to explore fully the range of allegations
and issues that have been raised. The task force will determine
which, if any, warrant criminal investigation or any other
action by either the Department or an independent counsel and
will conduct, with the assistance of the appropriate
investigative agencies, any criminal investigations that are
warranted.''
My understanding is that the Temple matter was thoroughly
investigated by the task force, and if we, at that time, had
uncovered any information that showed that there was specific
and credible information that a covered person may have
committed a crime, we would have triggered the Independent
Counsel Act.
Senator Sessions. But what happened was, just to be clear,
in Mark Richards' letter that you just referred to, on Page 1,
the last paragraph, says, ``We reviewed your letter * * *''
that is to the Congressman ``* * * as well as press reports and
correspondence we have received.''
But it indicates pretty plainly that they did nothing else,
and this was the 30-day preliminary inquiry period that, it
seems to me, quite important that that investigation should
have initiated, key witnesses should have been interviewed,
documents should have been obtained, if possible, and then we
would have been in a lot better position to make a decision
than based on press reports; would you not agree?
Attorney General Reno. I think that there are certain
thresholds for investigation. And I think before we trigger the
preliminary investigation, that we have got to have specific
and credible evidence.
Senator Sessions. Well, what we do know is that, later on,
the Vice President was interviewed a little over a year later
and a decision was made, apparently at the highest levels, not
to ask about the Buddhist Temple matter. And it was only 4
years later, after this assistant United States attorney had
been prepared to investigate, that the Vice President was even
asked about it, and that was just a few months ago. And it was
after that that Mr. Conrad has now concluded a person outside
the Department should be called upon to conduct this
investigation, pursuant to your procedures for a special
counsel.
I guess my time has expired, but if you would like to
comment on that----
Attorney General Reno. Yes, I would. Mr. Conrad, and Mr. La
Bella before him, and Mr. Vicinanzo have conducted the
investigation in the manner that they thought was best. And I
am not talking about the Independent Counsel Act. I cannot talk
about the course of a pending investigation. I do not think
that is right or proper to try something in a committee
hearing, as opposed to a court. But I feel very strongly that
all three men are very able prosecutors and made their best
judgment. I cannot control the timing of an investigation
because I cannot control the course of trial dates, appeals and
the like. But I am committed to making sure that justice is
done promptly and swiftly, no matter what the ultimate result
is.
Senator Sessions. Well, you have a lot of responsibilities,
but I believe your staff, and we have had indepth hearings
about it, failed you. And in a sense, you failed to supervise,
in making that declination of independent counsel at that early
date without even commencing any investigation. I think that
was an error, and that has caused us to be at this late stage,
and also has caused me to believe that the American public have
a greater interest in having a special outside counsel
conducting this than an inhouse counsel.
Attorney General Reno. I know you feel that way, sir. If
circumstances justify the appointment of a special counsel, I
will be the first person to do it.
Senator Sessions. Thank you very much.
Senator Specter. Attorney General Reno, we have brought
down the memo, and I will be glad to make a copy of it
available to you, on Parkinson. Let me know preliminarily that.
It starts off under the ``Advice of Counsel Section''
asfollows: ``I view the advice of counsel defense as fairly strong in
this case, but not strong enough to satisfy the `clear and convincing'
standard under the Independent Counsel Act.''
You read the part about it viewing it as strong. But then
he goes on to say, ``I strongly disagree with the statement in
the DOJ memo * * *'' that is your memo ``* * * that it `is hard
to imagine a more compelling set of facts establishing an
advice of counsel defense.' ''
The ``clear and convincing'' test was put into effect in
the Independent Counsel statute with the Congress in 1987
because thenAttorney General Meese was declining independent
counsel on the ground of state of mind. So the Congress took a
look at it, and the legislative history is clear, but even
beyond the legislative history, the statute says that there
have to be clear and convincing evidence of no criminal intent
in order to rule out appointment of independent counsel.
We are going to take a break in just a few minutes. A vote
has been called at 5 o'clock. We will give you a chance to read
this.
Attorney General Reno. That is what I have been reading
from, sir, and that is what I would like to respond to.
Senator Specter. Go ahead.
Attorney General Reno. Okay. It is going to take some time.
So if you want to wait until you come back, I----
Senator Specter. Well----
Attorney General Reno. I want to go through the entire
defense.
Senator Specter. All right. I would prefer, in the 4
minutes or so that I have left, to come back to a couple of
questions which were pending on how many witnesses there were
who provided evidence on hard money. In your statement, you say
``only two----''
Attorney General Reno. Which case are you talking about,
sir?
Senator Specter. Hard money, the question about whether the
Vice President knew that----
Attorney General Reno. Are you talking about the second
notification with respect to the preliminary investigation?
Senator Specter. I am referring to the notification, which
you signed on August 26, 1998.
Attorney General Reno. OK, sir.
Senator Specter. It is a closed matter. And at Page 9, and
you have referred to this, ``Only two of the fifteen attendees
at the meeting even recall the topic of a hardmoney component
to the media fund being raised during the meeting.''
Now, the evidence showed that there were four witnesses who
made statements to the FBI regarding the hard money. Leon
Panetta, White House chief of staff, said there was, among
other things, ``There was always a discussion and examination
of the overall DNC budget and, at a minimum, a reference to the
hard/soft breakdown in the media fund.'' Recalls the Vice
President being there for all of these discussions as part of
gearing up the reelection campaign. Meetings were structured
around presentation to the President and to the Vice President.
And on your point that there was lack of focus, and I
commented on this before, Mr. Panetta was quoted as saying,
``Make sure they knew what the hell was going on.''
Now, David Marshall, ``recalled general discussion
regarding the media campaign, including how much the DNC had
spent to date and how much hard money was needed and how much
soft money was needed to fund the media campaign.''
Brian Bailey, specifically, ``he recalls individuals
discussing hard/soft money at the November 21, 1995, meeting,''
and that is the one that the President attended.
Now, when you disagree with what David Strauss provided
because he had made contemporaneous notes of the November 21st
meeting, 65-percent soft and 35-percent hard, it may be true
that he has no independent recollection, did not testify, but
his recollection was recorded, I do not think there is any
doubt that that is evidence. Whether he remembers it or not, if
he has prior recollection recorded, that is admissible
evidence.
So my question to you: Is it not a fact that there were not
two of the fifteen attendees, but there were three who
recalled, and a fourth provided evidence in the form of prior
recollection recorded?
Attorney General Reno. My understanding is that there were
two who recalled the discussion, that a Mr. Bailey did not say
he remembered the statements; rather, when shown Strauss's
notes, he said they might be referring to hard/soft split of
funding for the media fund, but had no memory of the statement.
Senator Specter. Can you speak into the microphone, please.
Attorney General Reno. The other person cited by Mr.
Parkinson, Strauss, also had no memory of the discussion of the
issues.
Senator Specter. But is it not true that Strauss had
recorded his prior recollection?
Attorney General Reno. That is correct. But the issue is
what was remembered, what was heard, what was understood, what
was remembered.
Senator Specter. Is not the issue what evidence there was,
not what was remembered?
Attorney General Reno. I am looking----
Senator Specter. If there is prior recollection recorded,
is that not evidence?
Attorney General Reno. I am looking for evidence of what
the Vice President heard, understood and remembered.
Senator Specter. Well, let us focus on----
Attorney General Reno. Because I cannot prosecute when I
cannot prove a willful and----
Senator Specter. Well, let us focus on this for just a
minute, and I am going to come to the point as to whether the
standard was what you could prosecute on because I do not think
that is the standard under the----
Attorney General Reno. That is not the standard, sir. The
standard, what I concluded in this instance was, ``Thus, I do
not believe--the evidence I do not believe provides reasonable
grounds to believe that further investigation of this matter is
warranted. Notably, others attending the meeting also left it
with an inaccurate understanding of the funding of the media
campaign. The range of impressions and vagueness of
understandings among all of the meeting attendees is striking
and undercuts any reasonable inference that mere attendance at
the meeting should have served to communicate to the Vice
President an accurate understanding of the facts.''
Senator Specter. I am going to come back to that, as I say,
as to what the prosecution standard was.
But for just a moment, I want to focus on what is evidence.
You proceed on evidence. Now, it may be a recollection, where a
witness would testify as to what the witness recollected. But
when David Strauss had a contemporaneous memorandum which says,
``65-percent soft/35-percent hard,'' that is prior recollection
recorded. And that is admissible evidence, is it not?
Attorney General Reno. I need to prove--I need evidence
that shows what the Vice President heard, what he understood
and what he recollected. Just because David Strauss heard
something, does not mean the Vice President heard it.
Senator Specter. Well, of course it does not. But it raises
an inference that if David Strauss is in a meeting with the
Vice President and heard something, that the Vice President
heard it. It does not prove it, but a jury could find it.
Attorney General Reno. And if David Strauss does not
remember----
Senator Specter. Well, that is what I am focusing on. He
does not have to remember, Attorney General Reno, if he has
prior recollection recorded. Evidence in a court of law is
satisfied by prior recollection recorded, as well as by current
recollection as to what he heard. Are you denying that as a
basic evidentiary rule?
Attorney General Reno. I am talking about if you want
evidence in as to David Strauss's memory, that is one thing. I
am trying to prove what the Vice President remembered.
Senator Specter. OK.
Senator Torricelli. Mr. Chairman, may I make an inquiry
here? We are in the middle now of a vote in the Senate. There
are going to be three successive votes on the Senate floor. The
Attorney General has been here now for 3 hours and 8 minutes. I
would appreciate a moment to say before I leave, I hope it
would not be the committee's intention to keep her here by
herself for an hour while we go with these votes, since she has
been through several rounds of questioning. But in any case,
Mr. Chairman, now in this round, you have addressed her for 10
minutes. I would like a moment, before we break to go to the
vote, and it would be my hope then that the Attorney General
would have the option of leaving at this point, in fairness to
her, after so many hours of cooperative testimony.
How would you like to proceed?
Senator Specter. Well, if you wish to question now, I would
be glad to defer to you. And what I would suggest--well, I
would ask the Attorney General are you willing to stay longer?
Attorney General Reno. Are you going to keep me waiting for
an hour?
Senator Specter. No. What I would plan to do is to leave
here at about 5:18, go and vote and come back
Attorney General Reno. How long?
Senator Specter. About 10 minutes.
Attorney General Reno. How long after that? Because I have
a----
Senator Specter. About 15 minutes.
Attorney General Reno. When do you think you will conclude?
Senator Specter. Before 6 o'clock.
Attorney General Reno. OK.
Senator Specter. Senator Torricelli.
Senator Torricelli. Thank you.
Madam Attorney General, thank you very much for your----
Attorney General Reno. I will have to leave at 6:00,
Senator, because I do have a meeting.
Senator Specter. I am going to leave now and come back, and
it will abbreviate the time.
Attorney General Reno. OK.
Senator Torricelli. Which makes me the only Democratic
chairman of a committee in the entire Congress of the United
States, Madam Attorney General. This is an enormously powerful
situation.[Laughter.]
I, actually, for the record, first, wanted to clear up
several things. Indeed, from the testimony the committee has
heard in recent weeks, your recollection, Madam Attorney
General, is correct. Indeed, Mr. Strauss only recalled the
hard-money discussion on his third interview. There are only
two people who remembered it initially, leaving thirteen who
did not. And it is important that the record reflect that.
Second, it is important Senator Sessions should know that
on the schedule for that day, it may well be that the e-mails
indicated the Vice President was going to a fundraiser on the
29th. They do not indicate whose it was or anything about a
Buddhist Temple. But more significantly, the Buddhist Temple
event was at 1:30 p.m. Indeed, at 6:30 p.m. that night, he did
have a meeting with the Finance Committee Steering Committee at
the DNC. That is not in dispute. So, if the e-mails suggested a
fundraiser on the 29th, it was correct, but it was not
necessarily the Buddhist Temple event.
Third, Senator Specter, I am sure did not, in any way,
intend to mislead the committee. But I read earlier from the La
Bella memorandum of July 16, 1998, an excerpt, a single page
dealing with Vice President Gore. I read that into the record
to give credence to Mr. Radek's conclusion that the memorandum
was I think his term was simplistic; in any case, that it
consisted of a single page and was not enough of a foundation
for the naming of an independent counsel.
Senator Specter read an additional excerpt. It is important
for the record to note that is not from the La Bella memorandum
of July 16. It does not have anything to do with the July 16th
memorandum of Mr. La Bella. It was written at a later time in
response to the Justice Department's decision, and there is no
evidence that that was part of your deliberations or your
decision-making process. I know he did not want to mislead the
committee, but I do think it is important the record make clear
my point stands. There was one page of analysis with regard to
the Vice President. And as Mr. Radek suggested, it was very
simple in its analysis.
Third, I would like to conclude by returning to Senator
Feingold's point. Madam Attorney General, it is too late for
the 1996 elections. And people in both parties have regrets how
they were conducted, and there were mistakes made, not simply
by the President, and the Vice President or Senator Dole, but
indeed in many congressional elections. The laws are not being
respected. There are problems. People in our country are not
regarding them properly.
It is too late for 1996. It is not too late for 2000. The
burden is primarily on this Congress, which has failed to meet
its responsibility with comprehensive campaign finance reform.
That is our problem, and we should be answerable to the
American people for it. It is a breakdown of congressional
responsibility.
But there is something additional in the Justice
Department. While the Congress should be making clear that 527
organizations, as identified in the tax code, should not be
used for blatant political purposes, coordinated with
campaigns, misused by organizations, they are not only a policy
problem--in my judgment, they are a legal problem.
And I would hope that at this point if the Campaign Finance
Task Force and the Justice Department can make a great
contribution, it is not correcting the past in 1996, it is also
helping to deal with the 2000 elections. These organizations
are illegal. They are improper deductions from people's taxes,
conduits for private, corporate and even foreign money in the
electoral process. They are being coordinated with campaigns.
And after the 2000 elections, Madam Attorney General, it is
going to be too late. People are going to win or lose elections
based on the misuse of the tax code for these purposes. And
just because the Congress has failed, does not mean the Justice
Department has to fail. I hope you will take that under
consideration.
Now, as a closing point, I only want to leave you then with
this: I actually, unlike my colleagues, do not fault Senator
Specter for revealing what was told to him about the interview
of the Vice President. That was his judgment. But there is
another matter. The choice between George W. Bush and Al Gore
should be made in a debate between the candidates, not a debate
between leaks from the Justice Department and statements by the
Vice President. This cannot happen again, and it is wrong.
You will make your judgments, the Department will make its
own judgments. They should be done privately, and they should
be done so on the merits. This situation should not repeat
itself. And I do not believe this is a failure of policy. It is
a violation of the law. FBI agents were present at the Vice
President's interview. The Vice President was placed under
oath. Both of those must have been in contemplation if there
was a future grand jury or a legal proceeding.
As you know from the case of the Office of Independent
Counsel in the Lewinsky matter, in the rulings of the United
States Court of Appeals, a matter likely to be presented, in
the words of the Court, to a grand jury is a Rule 6(e)
violation. It is a felony.
I do not know how it is done. I do not pretend to be giving
advice on how you administer the Justice Department.But, Madam
Attorney General, someone has let the Department down. Someone has
violated the laws of the United States in revealing information that
should have belonged to you and your associates alone--not the media,
not me, not this committee, not any partisan political activity.
Someone let you down. I hope that you are vigorous in finding out how
that happened, whether it is polygraphing people who had access to the
information, whether it is taking their statements. I do not know who
it is.
And indeed, unlike some of the committee, I have a great
regard for Mr. Conrad. He seems to be a man of integrity. I
believe he is a serious man. He is entitled to have views that
differ from me and differ from you. I think he is a good man.
But someone who had access to his thinking and the things that
he was writing, did not do right by the Department of Justice.
Madam Attorney General, thank you very much for your
testimony today. No one, under the cruel and--unusual cruel and
punishment provisions of the Constitution should be held before
this committee for 3 hours and 15 minutes. You were great to do
so.
Attorney General Reno. Thank you, sir.
Senator Torricelli. And now for the first time in this
Congress, as a Democrat, I get to say the committee is in
recess.
Attorney General Reno. Thank you.
Senator Torricelli. Thank you.
[Recess from 5:16 p.m. to 5:22 p.m.]
Senator Specter. Attorney General Reno, I want to come back
to the point of how many witnesses there were who testified
that hard money was discussed in the meeting attended by the
Vice President on November 21, 1995. I want to come back to the
point about the available evidence.
Now, it is certainly true that because four witnesses can
provide evidence that hard money was discussed, it does not
establish with mathematical certainty that the Vice President
knew hard money was discussed, but it is pretty strong
evidence. And you had discounted what David Strauss had said
because, as you put it, he did not recall, but there were
contemporaneous notes of his which showed, ``35-percent hard,
65-percent soft.''
Now, my question: Is not that prior recollection recorded
an evidence which could be presented on the issue as to whether
the Vice President heard a discussion of hard money?
Attorney General Reno. I do not see how that proves that he
heard, that he understood and that he recollected.
Senator Specter. Well, that is an interesting observation,
but it does not relate to my question.
Let me start again. My question is whether he heard, and
then the inference is to whether he knew and understood. But he
said that he is an experienced fundraiser, and we know that as
a matter of his record. So the question is, when you discount
the evidence by saying there are only two of the fifteen
attendees who could provide evidence, and you discount Strauss
because he has no recollection, I come back again to the point
that, as a matter of the law of evidence, that is prior
recollection recorded and could come before a grand jury or
come before a court probative on the issue as to whether the
Vice President heard it; is that not true?
Attorney General Reno. I am sure, sir, that your knowledge
of evidence has given you some reason to believe that this
could be relevant, and so I will be happy to go back and check
it.
Senator Specter. Well, there cannot be a conclusive, you
cannot mathematically say that the Attorney General is wrong on
a judgment call. But I think you can say, as a matter of law, a
prior recollection recorded is evidence that could be presented
to a grand jury or to a trial court. And the balance of the
record shows that there were three witnesses who heard hard
money discussed, all of which would have been relevant to
whether the Vice President heard it. That, I think, is a matter
of law.
Would you care to comment?
Attorney General Reno. Yes, my determination had to be
whether the evidence was clear and convincing, and I determined
that the evidence was clear and convincing.
I would ask you, if we are all to be judged in terms of
whether we are correct or whether we are incorrect by something
that happened 2 years before, and we are at a 2-hour meeting,
and people talk about a variety of complex subjects, and we are
expected to remember or it is to be inferred that we should
remember, I do not think is realistic. And, therefore, I found
that the evidence was clear and convincing that he did not have
the intent to falsely state.
Senator Specter. Well, the evidence that you disregarded in
coming to that conclusion was one person who heard and another
person who could have provided evidence of prior recollection
recorded. So that the base of your recitation of facts is
erroneous.
But let me move on to the next point, and that is that the
independent counsel statute was structured to give the
Department of Justice a very limited window on its
investigation. You could not use a grand jury to call
witnesses, put them under oath.
Attorney General Reno. Could I make one correction to what
I believe your point is? You indicated that Mr. Strauss had his
recollection refreshed by his notes.
Senator Specter. No, I did not say that at all.I said it
was prior recollection recorded, which is different from present
recollection refreshed. Present recollection refreshed is when somebody
looks at his notes, and he remembers. Prior recollection recorded is
where someone looks at his notes and says, ``I still do not remember--
''
Attorney General Reno. But my bottom line is, if the man
who made the notes cannot remember, I think the evidence is
clear and convincing.
Senator Specter. Well, you are at variance with the
clearcut established law of evidence that prior recollection
recorded is admissible.
Attorney General Reno. Assume for the moment that the fact
that he made the notes is evidence that it was discussed, it
was clearly discussed according to two people, and the notes
indicate that it was discussed. But there are a variety of
recollections. Only two people remembered it without having--
and even Mr. Bailey concluded that there was a discussion of
hard and soft, but he was unclear as to what was involved.
I just do not think, Senator, from a commonsense point of
view, that if there was a meeting of this Judiciary Committee 2
years ago, and you spent 2 hours discussing different subjects,
that the fact that Senator Grassley said something about hard
and soft money that two other members of the committee heard,
and one took notes and those notes indicated that that--he
verified that that would be his habit to record what he heard,
that that would be clear and convincing evidence that Senator
Hatch heard or did not hear.
Senator Specter. Well, the difficulty with your analysis,
Attorney General Reno, is that it is not just those four
witnesses. And I pause at some length because an inference is
raised that you discount everything you can to come to a
conclusion.
Attorney General Reno. No, I looked for everything I could.
Senator Specter. Well, it was not a question, it was a
comment. And that you leave out Strauss, where as an
evidentiary matter he should have been considered, and----
Attorney General Reno. I do not leave him out.
Senator Specter. Let me finish now. I will not interrupt
you.
And you leave out Bailey, where he should have been
included. If you want to comment, you can. I want to move on.
Attorney General Reno. Yes, I would like to comment.
Senator Specter. Go ahead.
Attorney General Reno. I did not leave it out. And I would
again urge you, as I have urged the whole committee, to read
the notification. ``While the author of the notes had no
specific recollection of the meeting, he did confirm, based on
his habit and practice, his beliefs that the words noted in his
handwriting were things said during the meeting that he
recorded as they were said. Reviewing his notes, this attendee
could not recall who might have uttered the words `65-percent
soft, 35-percent hard, corporate, or anything over 20K from an
individual or hard-money limit 20K' during the meeting. He was
also unable to provide an explanation about what each of the
phrases might have meant within the context of the meeting.''
``He did not recall the issue of hard and soft money being
discussed by those attending, but noted that these issues were
often discussed at DNC budget meetings. He was also unable to
say whether the words were used with regard to the media fund,
the DNC's operating budget or something else. Notably, this
individual, who attended the meeting and who was paying enough
attention to what was being said to take verbatim notes of some
points, also told us during his interview that he believed the
media campaign was financed entirely with soft money.''
Senator Specter. Attorney General Reno, I believe the
record shows that there were four people in a position to
provide evidence. And as your statement said, you focused on
only two. But I want to go to the balance of the----
Attorney General Reno. No, sir. I just focused on one of
those that you specifically talked about, and I gave you my
reasons for concluding that it did not----
Senator Specter. Well----
Attorney General Reno [continuing]. Undermine my conclusion
that the evidence was clear and convincing.
Senator Specter. My reading of the law of evidence is that
the testimony that he gave, although not perfect, because most
witnesses' testimony is not perfect, would have been admissible
and considered by a jury.
But let me ask you about the balance of the witnesses. And
I had started to develop the point about the Department of
Justice's role at the preliminary inquiry being very limited.
You cannot use a grand jury, and you cannot put people under
oath. And there is a very big difference between an interview
and calling somebody before the grand jury, under oath, and
that is not open to the Department of Justice at that stage.
But an independent counsel could have done that, so that there
might well have been more testimony produced by the individuals
if the matter had been pursued.
In regular investigations, the Department of Justice does
not stop at just an interview. If they find a witness who does
not testify about a recollection or the witness may have the
capacity to do so, they use the grand jury. Does the Department
not do that?
Attorney General Reno. The Department uses the grand jury
in a variety of circumstances.
Senator Specter. Well, the point is that your judgment was
made at a preliminary stage, where there were investigative
tools available, specifically the grand jury, which was not
utilized; is that not correct?
Attorney General Reno. I did not use the grand jury, sir.
Senator Specter. And then there are the 13 Strauss
memoranda.
Attorney General Reno. The Ickes memoranda, sir.
Senator Specter. Ickes memoranda. Pardon me. You are right.
I misstated that.
There are 13 Ickes----
Attorney General Reno. And there were not 13, about 6 or 7
came before the phone calls, and the others came after.
Senator Specter. Okay. You had made that distinction. The
FBI report does not make it, but I will accept that.
But if you have six or seven Ickes memoranda, and you have
an evidentiary base for the Vice President's secretary, who
culls his in box, but who leaves the Ickes memos in the in-box,
that raises an inference that the Vice President might have
known from the Ickes memoranda that hard money was involved,
does it not?
Heather Marabeti testified----
Attorney General Reno. Excuse me just a minute, sir.
Senator Specter. ``When they, people reviewing his in box,
what were they reviewing it for?''
Answer: ``They reviewed it for documents that did not need
to be in.''
Question: ``I know that Mr. Ickes sent a lot of internal
memorandums. Were his the type of memorandums that needed to be
in the inbox?''
Answer: ``His were the type of memos that stayed in the in
box.''
So you have the four people providing evidence as to what
happened; you have the Ickes memoranda; you have the Vice
President's statements that, although he did not read the
memos, as he did a general rule read memos authored by Mr.
Ickes, he nonetheless said that, ``The subject matter of the
memorandums would have already been discussed in his and the
President's presence.''
And then you have the Vice President's admission about his
knowledge of fundraising, that ``He had been a candidate for 16
years and thought he had a good understanding of hard/soft
money.''
So there is an aggregate of information beyond the specific
witnesses. Do you care to comment?
Attorney General Reno. Yes. His staff corroborated his
statement that he did not, as a matter of practice, read Ickes'
memos.
Senator Specter. Yes, I know. I just said that. And the
Vice President then added to that, that the memorandums, as he
put it, had already been discussed in his presence and in the
presence of the President.
But let me move on, unless you want to comment further,
to----
Attorney General Reno. No. I just want to say, sir, if we
get into the business of assuming that people hear something
that was said 2 years previously, when there is such a
diversity of recollection and where people who, even though
they were there, conclude that the only money being sought was
soft money, it is going to create a very difficult situation
for people in Government.
Senator Specter. Well, Attorney General Reno, it is more
than a judgment call, it is what I consider to be a
misstatement of the facts. But Director Freeh dealt with this
directly, and you do not have to agree with him, and the
committee does not have to agree with him, unless we think that
his basis is correct, and he says, ``Based on the facts, the
Attorney General simply cannot reach such a conclusion. The
evidence tends to show that the Vice President was an active
participant in the core group fundraising efforts, that he was
informed about the distinction between hard and soft money, and
that he generally understood there were legal restrictions
against making telephone solicitations from Federal property.''
And La Bella said about the same thing, ``By routinely
embracing the most innocent inference at every turn, even if
the inferences are factually indefensible, the memorandum
creates an appearance that the Department is straining to avoid
the appointment of an independent counsel and foreclose what
many would characterize as an impartial review of the
allegations.''
Do you care to comment?
Attorney General Reno. Yes. As you well know, Director
Freeh, and Mr. La Bella and I have some disagreements, as you
and I have some disagreements. But I can tell you that this was
carefully reached. We reviewed all of the evidence, and we
reached the conclusion that we did based on the best judgment
we could make. You disagree with my judgment, but that is where
we stand.
Senator Specter. Let me move on, Attorney General Reno, to
the Department of Justice inquiry about the Loral and Hughes
matter, about their providing information to the People's
Republic of China and a waiver which was signed by the
President, notwithstanding that the PRC had sold M-11 missiles
to Pakistan which was instrumental in the standoff on the
subcontinent between Pakistan and India.
And the Department of Justice had an investigation
inprocess at the time the President was considering the waiver. And Mr.
Litt contacted Mr. Ruff, and he testified that he opposed the granting
of the waiver and ``I said that the judgment of the Department was that
it could have an adverse impact, not on the actual conduct of the
investigation, but on the jury appeal of any prosecution that might
subsequently be brought.''
And my question to you is why did not someone of a higher
rank, like you or perhaps even the deputy attorney general,
weigh in on that important issue?
Attorney General Reno. The White House does not ordinarily
consult with the Department on whether to grant waivers
permitting the export of dualuse technologies to the PRC.
Senator Specter. Well, they listened to the Justice
Department on this issue.
Attorney General Reno. May I finish, please?
Senator Specter. Sure.
Attorney General Reno. Moreover, the foreign relations
issues raised by requested waivers are outside the Department's
expertise. When the White House asked whether granting the
waiver would impact the criminal case, however, the Department
unambiguously responded that granting the waiver would have
serious adverse impact if the case went to trial.
As I have testified previously, I believe that I should
have been informed. I understand that Bob Litt did not tell
either me or Deputy Attorney General Eric Holder about his
conversation with Mr. Ruff because there was no disagreement
within the Department that the waiver would hurt the criminal
case. Still, I believe that Mr. Litt should have told us about
the matter.
Senator Specter. I do not quite understand that. Was not
that this matter of sufficient importance for the Attorney
General or at least the Attorney General's deputy?
Attorney General Reno. As I indicated, I was not advised of
the matter, and I think I should have been.
Senator Specter. You say you were not advised of the
matter, but you think you should have been?
Attorney General Reno. Yes, sir, I said that.
Senator Specter. Had you known about it, would you have
weighed in personally?
Attorney General Reno. It would have depended on the
circumstances.
Senator Specter. Well, do you know the circumstances?
Attorney General Reno. I do not know what the circumstances
would have been if I had been advised of it.
Senator Specter. Well, do you now know what the
circumstances were at that time?
Attorney General Reno. I do not know what the circumstances
were, as they unfolded, or what they would have been if I had
been advised.
Senator Specter. Attorney General Reno, there have been
press reports, the New York Times reported June 23rd, that
``The official said that Mr. Conrad had been told to avoid
putting his views in writing, and at times felt stymied in his
efforts to communicate directly with top officials.''
And the Associated Press reported that ``It is like a
roller derby at Justice. They are slamming him * * *''
referring to Conrad ``* * * against the boards as hard as they
can,'' the source added. ``They are trying to intimidate him to
get him to change his views.''
Attorney General Reno. I do not think anybody can
intimidate Mr. Conrad, sir.
Senator Specter. Well, I hope not. Do you intend to look
into those reports?
Attorney General Reno. I have talked with Mr. Conrad, and
have talked with him to make sure that he is perfectly
comfortable, and he said that he was.
Senator Specter. With respect to the La Bella memorandum, I
understand that Senator Torricelli commented about the timing
of it. The second La Bella memorandum was written, I am advised
by staff, prior to Mr. Radek's critique.
We are in the last stages of another vote, but let me pick
up one final subject with you because I do not want to leave it
hanging, and that is the discussion that we had about Mr.
Parkinson's memo on the ``advice of counsel'' defense, and his
enumeration of a great many reasons why he thought that the
``advice of counsel'' defense should not have led you to rule
out independent counsel: the absence of direct contact between
the lawyers and the principals; the attorneys who gave the
advice having an interest; one of the attorneys saying that the
advice was ``bumping up right against, and perhaps a little bit
over, the line''; all of which led him to conclude that the
clear and convincing evidence standard was not met and the
independent counsel should have been appointed.
Would you care to comment?
Attorney General Reno. Yes, sir. I would refer you to our
notification, which sets forth our position with respect to
those matters.
Senator Specter. Attorney General Reno, thank you very much
for coming in today. You are an excellent witness, and you make
your case very effectively.
That concludes the hearing.
Attorney General Reno. And you are an excellent Senator,
and you make your case very effectively.
[Whereupon, at 5:44 p.m., the committee was adjourned.]