Union Calendar No. 595

106th Congress, 2d Session – – – – – – – – – – House Report 106–1027

JANET RENO’S STEWARDSHIP OF THE

JUSTICE DEPARTMENT: A FAILURE

TO SERVE THE ENDS OF JUSTICE

TENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

together with

MINORITY VIEWS

Volume 2 of 2

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

DECEMBER 13, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

NO’S STEWARDSHIP OF THE JUSTICE DEPARTMENT:

FAILURE TO SERVE THE ENDS OF JUSTICE

U.S. GOVERNMENT PRINTING OFFICE

68–229 CC WASHINGTON : 2000

Union Calendar No. 595

106th Congress, 2d Session – – – – – – – – – – House Report 106–1027

JANET RENO’S STEWARDSHIP OF THE

JUSTICE DEPARTMENT: A FAILURE

TO SERVE THE ENDS OF JUSTICE

TENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

together with

MINORITY VIEWS

Volume 2 of 2

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

DECEMBER 13, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS III, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

DAVID A. KASS, Deputy Counsel and Parliamentarian

KRISTI L. REMINGTON, Senior Counsel

JIM SCHUMANN, Counsel

KIMBERLY A. REED, Counsel

MARIA P. TAMBURRI, Assistant to the Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHILIP SCHILIRO, Minority Staff Director

PHILIP S. BARNETT, Miniority Chief Counsel

KRISTIN AMERLING, Minority Deputy Chief Counsel

PAUL WEINBERGER, Minority Counsel

LETTER OF TRANSMITTAL

HOUSE OF REPRESENTATIVES, Washington, DC, December 13, 2000.

Hon. J. DENNIS HASTERT,

Speaker of the House of Representatives,

Washington, DC.

DEAR MR. SPEAKER: By direction of the Committee on Government Reform, I submit herewith the committee’s tenth report to

the 106th Congress.

DAN BURTON,

Chairman.

(III)

(V)

C O N T E N T S

Page

Findings of the Committee on Government Reform ............................................. VII

I. The Attorney General’s conflicted investigation ......................................... 1

A. Background on the Independent Counsel Act ................................... 3

B. A rocky start: early conflicts in the Justice Department’s campaign finance investigation ............................................................... 9

C. Attorney General Reno changed her interpretation of the Independent Counsel Act .......................................................................... 14

D. Memoranda from FBI Louis J. Freeh and Task Force Supervising

Attorney Charles La Bella recommending that an independent

counsel be appointed .......................................................................... 19

E. Department of Justice rebuttal memoranda ..................................... 44

F. Department of Justice’s bad faith in its application of the Independent Counsel Act .......................................................................... 54

G. The failure to appoint a special counsel for Vice President Gore .... 59

II. The failures of the Justice Department investigation ................................ 63

A. The Justice Department failed to pursue the December 15, 1995,

coffee tape ........................................................................................... 63

B. The Justice Department has failed to question the President and

Vice President effectively .................................................................. 71

C. The Justice Department failed to pursue relevant documents ........ 74

D. The Justice Department failed to pursue key individuals and

entities ................................................................................................ 84

E. The Justice Department failed to pursue the Kansas conduit contribution scheme ................................................................................. 107

F. The Justice Department failed to investigate leaks harmful to

the campaign fundraising investigation ........................................... 116

III. The Justice Department’s political interference with congressional oversight ............................................................................................................. 123

A. Failure to comply with subpoenas for the Freeh and La Bella

memoranda ......................................................................................... 123

B. Failure to produce the Conrad memorandum ................................... 143

C. The Justice Department’s political gamesmanship ........................... 146

IV. The favorable treatment of the Attorney General’s friends ....................... 154

A. The Justice Department’s handling of the Soka Gakkai matter ..... 154

B. Robert Bratt ......................................................................................... 181

Exhibits .................................................................................................................... 188

APPENDIXES

Appendix 1.—Correspondence between the committee and the Justice Department ...................................................................................................................... 638

Appendix 2.—Kansas Democratic party disclosure forms (receipts and disbursements) .......................................................................................................... 1862

VIEWS

Minority views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. Major

R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, Hon. Carolyn

B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka Fattah, Hon. Elijah

E. Cummings, Hon. Dennis J. Kucinich, Hon. Rod R. Blagojevich, Hon.

Danny K. Davis, Hon. John F. Tierney, Hon. Jim Turner, Hon. Harold

E. Ford, Jr., and Hon. Janice D. Schakowsky ................................................... 2008

Exhibits .................................................................................................................... 2034

Union Calendar No. 595

106TH CONGRESS REPT. 106–1027 " ! HOUSE OF REPRESENTATIVES 2d Session Vol. 2 of 2

JANET RENO’S STEWARDSHIP OF THE JUSTICE DEPARTMENT: A FAILURE TO SERVE THE ENDS OF JUSTICE

DECEMBER 13, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. BURTON, from the Committee on Government Reform

submitted the following

TENTH REPORT

On October 19, 2000, the Committee on Government Reform approved and adopted a report entitled, ‘‘Janet Reno’s Stewardship of

the Justice Department: A Failure to Serve the Ends of Justice.’’

The chairman was directed to transmit a copy to the Speaker of the

House.

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(2008)

1Fox, ‘‘Fox Special Report with Brit Hume’’ (Mar. 14, 2000).

2Testimony of Representative Dan Burton, House Committee on Rules, Subcommittee on

Rules and Organization of the House (July 15, 1999) (available at www.house.gov/reform/oversight/99—07—15db-rules.htm). 3Fox, ‘‘The Edge with Paula Zahn’’ (Mar. 14, 2000).

4Testimony of Representative Dan Burton, House Committee on Rules, Subcommittee on

Rules and Organization of the House (July 15, 1999) (available at www.house.gov/reform/oversight/99—07—15db-rules.htm). 5 Id.

6 Id.

7 NBC, ‘‘Meet the Press’’ (June 11, 2000).

8 NBC, ‘‘Meet the Press’’ (Aug. 29, 1999).

MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM

LANTOS, HON. MAJOR R. OWENS, HON. EDOLPHUS

TOWNS, HON. PAUL E. KANJORSKI, HON. CAROLYN B.

MALONEY, HON. ELEANOR HOLMES NORTON, HON.

CHAKA FATTAH, HON. ELIJAH E. CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON.

DANNY K. DAVIS, HON. JOHN F. TIERNEY, HON. JIM

TURNER, HON. HAROLD E. FORD, JR., AND HON. JANICE

D. SCHAKOWSKY

Over the past 4 years, Representative Dan Burton has waged a

vendetta against the Attorney General of the United States. Mr.

Burton has accused Attorney General Janet Reno of ‘‘deceit’’ 1 and

‘‘corruption.’’ 2 He has called her the President’s ‘‘chief blocker.’’ 3

He has charged that the Attorney General ‘‘eroded the people’s respect for the Department of Justice’’ 4 and established a ‘‘legacy’’ of

‘‘incompetence and partisan zeal.’’ 5 He has said that the Attorney

General has brought the Justice Department to ‘‘shame and disrepute’’ 6 and has made a ‘‘mockery of justice.’’ 7 He also has stated,

‘‘When you ask me, do I trust her, I certainly do not.’’ 8

In August 1998, Mr. Burton and the other Members of the majority even voted to hold the Attorney General in contempt of Congress.

There is a fundamental problem with Mr. Burton’s accusations

against the Attorney General: they have no basis in fact. Over the

course of the committee’s investigation, the committee has heard

testimony from a dozen Justice Department lawyers and FBI officials who have worked with Attorney General Reno. Several of

these individuals, including FBI Director Louis J. Freeh and former

Campaign Finance Task Force head Charles G. La Bella, have

strongly disagreed with some of the Attorney General’s judgments.

But not one witness has said that the Attorney General is deceitful,

corrupt, or partisan.

Rather, witness after witness has testified—under oath—to the

Attorney General’s integrity. As Director Freeh testified, ‘‘I have

stated many times my respect for Attorney General Reno. In the

2009

9Testimony of FBI Director Louis Freeh, House Committee on Government Reform, hearings

on ‘‘The Current Implementation of the Independent Counsel Act,’’ 105th Cong., 1st sess., 1128

(Dec. 9–10, 1997) (H. Rept. 105–89). 10 ‘‘House Probe of Campaign Fund-Raising Uncovers Little, Piles Up Partisan Ill Will,’’ Los

Angeles Times (May 2, 1998) (quoting Norman Ornstein, a congressional expert at the American

Enterprise Institute). This article and other news stories are attached as exhibit 1. 11 ‘‘A House Investigation Travesty,’’ New York Times (Apr. 12, 1997). This editorial is attached with other editorials and commentaries as exhibit 2. 12 ‘‘Mr. Burton Should Step Aside,’’ Washington Post (Mar. 20, 1997). 13Letter from John P. Rowley III to Representative Dan Burton (July 1, 1997). 14 ‘‘Burton Tape Fiasco Pitted Panel’s Pros Vs. Pols,’’ the Hill (May 13, 1998). 15 Id.

41⁄4 years we have worked together, I have seen her bring nothing

but integrity and honesty to the table.’’ 9

The majority’s main complaint about the Attorney General boils

down to a dispute over conflicting interpretations of the independent counsel statute. The majority believes that the Attorney

General was required to appoint an independent counsel to examine campaign finance matters. The Attorney General reached a different conclusion. This type of disagreement over interpreting the

law is not unusual. Unfortunately, Mr. Burton seems to take the

position that disagreeing with his opinion is evidence of ‘‘bad faith’’

and ‘‘corruption.’’

It is the height of irony that the majority pronounces judgments

on the handling of the campaign finance investigation by the Department of Justice given the widespread criticism this committee

has received for misconduct in its own campaign finance investigation. The committee’s campaign finance investigation has been referred to as a ‘‘case study in how not to do a congressional investigation and as a prime example of investigation as farce,’’ 10 a

‘‘parody of a reputable investigation,’’ 11 and ‘‘its own cartoon, a

joke, and a deserved embarrassment.’’ 12

Three years ago, the chief counsel of the committee quit and told

Mr. Burton that he had ‘‘been unable to implement the standards

of professional conduct I have been accustomed to at the U.S. Attorney’s office.’’ 13 Two years ago, when Mr. Burton released doctored transcripts of former Associate Attorney General Webster

Hubbell’s phone conversations, one Republican investigator was

quoted saying, ‘‘I’m ashamed to be part of something that’s so unprofessional.’’ 14 Over the course of the investigation, the majority

has gone through four chief counsels and at least three different

chief investigators. One former senior Republican investigator said,

‘‘Ninety percent of the staff doesn’t have a clue as to how to conduct an investigation.’’ 15

This committee is in no position to criticize the Attorney General—and the majority’s report reflects this fact. As will be discussed below, the report is based on unfounded allegations and improperly injects the committee into prosecutorial decisions. The report is also highly partisan.

I. UNFOUNDED ALLEGATIONS REGARDING ATTORNEY GENERAL RENO

AND THE JUSTICE DEPARTMENT

Over the last 6 years, the majority has made a series of false allegations of wrongdoing by the Clinton administration. These allegations have included accusations that Deputy White House Counsel Vince Foster was murdered as part of a coverup of the WhiteVerDate 11-MAY-2000 02:41 Dec 14, 2000 Jkt 068229 PO 00000 Frm 01381 Fmt 6604 Sfmt 6604 E:\HR\OC\HR1027V2.XXX pfrm06 PsN: HR1027V2
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16Minority Staff Report, ‘‘Unsubstantiated Allegations of Wrongdoing Involving the Clinton

Administration’’ (October 2000) (attached as exhibit 3). 17 ‘‘Congress Forfeits Its Role,’’ Wall Street Journal (Sept. 21, 2000). 18Press release, House Committee on Government Reform (May 19, 2000). 19Statement of Representative Dan Burton, House Committee on Government Reform, ‘‘Has

the Department of Justice Given Preferential Treatment to the President and Vice President?,’’

106th Cong., 6 (July 20, 2000) (stenographic record) (hereinafter ‘‘July 20 hearing’’). 20 Representative Dan Burton appearing on Fox, ‘‘Hannity & Colmes’’ (Aug. 3, 1999). 21 House Committee on Government Reform, majority report entitled, ‘‘Janet Reno’s Stewardship of the Justice Department: A Failure to Serve the Ends of Justice,’’ i (hereinafter ‘‘majority

report’’).

water land deal; that the White House intentionally maintained an

‘‘enemies list’’ of sensitive FBI files; that the IRS targeted the

President’s enemies for tax audits; that the White House may have

been involved in ‘‘selling or giving information to the Chinese in exchange for political contributions’’; that the White House ‘‘altered’’

videotapes of White House coffees to conceal wrongdoing; that the

Clinton administration sold burial plots in Arlington National Cemetery; and that problems with the White House e-mail archiving

system are ‘‘the most significant obstruction of Congressional investigations in U.S. history’’ and ‘‘reach much further’’ than Watergate.

As documented in a staff report recently released by Representative Henry A. Waxman, these allegations have proven to be unsubstantiated.16 According to Al Hunt of the Wall Street Journal, ‘‘the

accusations have a common denominator: They are blatantly

false.’’ 17

Attorney General Janet Reno and the Department of Justice

have been frequent targets of these false allegations. Further, in its

efforts to suggest wrongdoing on the part of the Justice Department, the majority has unfairly smeared numerous individuals

along the way. The major allegations that have been leveled

against the Department and others over the last few years and in

the majority’s report—and the actual facts as established in the

record before the committee—are described below.

• Allegation: Attorney General Reno has been ‘‘blatantly protecting

the President, the Vice President and their party from the outset

of this scandal’’ 18 and ‘‘the record clearly shows that this Justice

Department has bent over backwards to avoid investigating the

President, the Vice President and other senior White House officials.’’ 19 It is ‘‘evident to anyone who’s been closely involved in

this that she’s blocking for the president.’’ 20 It is ‘‘hard to escape

the conclusion that the Attorney General has acted politically to

benefit the President, the Vice President, and her own political

party.’’ 21

The Facts: Mr. Burton’s allegations have been repeatedly refuted

by sworn statements before this committee and other committees

from, among others, FBI Director Louis Freeh and Charles La

Bella, the former head of the Campaign Finance Task Force. Although Mr. Freeh and Mr. La Bella disagreed with Attorney General Reno’s decision regarding appointing an independent counsel

for campaign finance issues, they repeatedly affirmed their belief

in the Attorney General’s integrity and denied that she acted to

protect the President or others or to impede their investigation.

2011

22Testimony of Charles La Bella, Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts, ‘‘Hearing on 1996 Campaign Finance Irregularities’’

(May 2, 2000). 23Statement of Charles La Bella (May 3, 1998). 24Fox, ‘‘Hannity & Colmes’’ (Mar. 13, 2000). 25Testimony of Louis J. Freeh, House Committee on Government Reform, hearing on ‘‘The

Need for an Independent Counsel in the Campaign Finance Investigation,’’ 105th Cong., 71

(Aug. 4, 1998) (hereinafter ‘‘August 4 hearing’’). 26Testimony of William J. Esposito, House Committee on Government Reform, ‘‘The Justice

Department’s Implementation of the Independent Counsel Act,’’ 106th Cong., 73–74 (June 6,

2000) (stenographic record) (hereinafter ‘‘June 6 hearing’’). 27Testimony of William J. Esposito, June 6 hearing at 80. 28Testimony of Neil Gallagher, June 6 hearing at 129. 29Testimony of Robert J. Conrad, July 20 hearing at 55.

For example, Mr. La Bella stated, ‘‘My perception is [the Attorney General] made no decisions to protect anyone.’’ 22 He also said:

The Attorney General and the Deputy Attorney General

have fully supported the Task Force, and I have every confidence in the way they are handling the matter. They are

committed to a vigorous investigation and prosecution of

all campaign finance matters and have told me to pursue

the evidence wherever it leads. That is what I have done

and what I expect the Task Force to continue to do.23

According to Mr. La Bella, ‘‘when you jump to the conclusion that

this is corruption, I think you’re making an incredible leap.’’ 24

Similarly, Mr. Freeh stated:

I have tremendous respect for our Attorney General. . . .

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. If I thought anything differently, I would not be sitting here today as the FBI Director. I think in all of the matters that I have dealt with

her, and this is over 5 years, you get to know a person

pretty well. She has always brought honesty and integrity

to the table.25

Mr. Freeh’s and Mr. La Bella’s views about the Attorney General

have been echoed by other senior FBI and Justice Department officials appearing before our committee. William J. Esposito, former

Deputy FBI Director, testified, ‘‘My dealings with the Attorney

General [were] quite extensive, especially in my last year in the

FBI. I found her to be a person of high integrity, a person who

would do the right thing.’’ 26 He further stated that ‘‘in all matters

that I’ve dealt with her on, she acted very even-handedly.’’ 27 Neil

Gallagher, Assistant FBI Director for Terrorism, stated, ‘‘I have the

highest respect for the Attorney General. I have dealt with her on

many issues, and I have no reason to question her at all.’’ 28 And

Robert Conrad, a career prosecutor who has been chief of the Campaign Finance Task Force since January 2000, told our committee

that ‘‘my experience has been that I have had a fair hearing from

her on issues that I have brought before her and my expectation

would be that I would have a fair hearing on any recommendations

in the future.’’ 29

In total, the committee heard testimony from 12 senior Justice

Department lawyers and FBI officials who worked with the AttorVerDate 11-MAY-2000 02:41 Dec 14, 2000 Jkt 068229 PO 00000 Frm 01383 Fmt 6604 Sfmt 6604 E:\HR\OC\HR1027V2.XXX pfrm06 PsN: HR1027V2
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30The witnesses were FBI Director Louis Freeh; Charles La Bella, former head of the Justice

Department’s Campaign Finance Task Force; James DeSarno, former lead FBI agent for the

Campaign Finance Task Force; Lee Radek, chief of the Justice Department’s Public Integrity

Section; William Esposito, former FBI Deputy Director; Neil Gallagher, Assistant Director for

Terrorism, FBI; James K. Robinson, Assistant Attorney General; Robert Raben, Assistant Attorney General; Robert Conrad, head of the Justice Department’s Campaign Finance Task Force;

Alan Gershel, Deputy Assistant Attorney General; John R. Schmidt, former Associate Attorney

General; and John Hogan, former chief of staff to Attorney General Reno. 31 Representative Dan Burton quoted in ‘‘Reno Rejection of Ickes Probe Dims GOP Support

for Counsel Law,’’ Associated Press (Jan. 30, 1999). 32Majority report at 62. 33Majority report at 1. 34 Id. 35Those seven independent counsels were: Kenneth Starr (Whitewater, White House Travel

Office, FBI files, and Monica Lewinsky); Donald Smaltz (Agriculture Secretary Mike Espy);

David Barrett (Housing and Urban Development Secretary Henry Cisneros); Daniel Pearson

(Commerce Secretary Ron Brown); Curtis von Kann (Americorps head Eli Segal); Carol Elder

Bruce (Interior Secretary Bruce Babbitt); and Ralph Lancaster, Jr. (Labor Secretary Alexis Herman). 36See, e.g., memorandum from Public Integrity Section Chief Lee Radek to Assistant Attorney

General James K. Robinson (Aug. 5, 1998) (DOJ–FLB–00130 to 00150) (attached as exhibit 4);

memorandum from Robert S. Litt to the Attorney General, the Deputy Attorney General, and

James K. Robinson, Assistant Attorney General (July 20, 1998) (DOJ–3149 to 3153) (attached

as exhibit 5).

ney General on the campaign finance investigation and other matters.30 Although several of these witnesses disagreed with the Attorney General’s judgment, not one witness questioned her motives

or integrity.

• Allegation: The Attorney General misapplied the independent

counsel statute to protect the White House. ‘‘Janet Reno has defied the spirit and the letter of the independent counsel statute

. . . Her investigation has become a sham,’’ 31 and ‘‘the Attorney

General placed politics over impartial enforcement of the

laws.’’ 32 ‘‘Reno engaged in a creative analysis of the law in what

appeared to be an effort to avoid the implementation of the Independent Counsel Act.’’ 33 ‘‘The Attorney General was able to avoid

the appointment of an independent counsel through a disregard

of the law and a narrow view of the evidence.’’ 34

The Facts: Attorney General Reno has appointed more independent counsels than any of her predecessors. Since enactment of

the independent counsel statute in 1978, 20 independent counsels

have been appointed. Seven of those appointments were made at

the request of Attorney General Reno.35

Representative Burton relies on memos written by Mr. Freeh and

Mr. La Bella as evidence that the Attorney General misapplied the

Independent Counsel Act. These memos recommended the appointment of an independent counsel. However, Mr. Burton dismisses

and overlooks other memos provided to the committee which recommended against the appointment of an independent counsel or

which took issue with recommendations in the Freeh and La Bella

memos.36 The record shows that the Attorney General solicited and

received conflicting advice from a number of advisors.

The record also shows that the conflicting advice was rendered

in good faith. Mr. Freeh and a number of senior Justice Department officials testified that there was nothing unusual in the Attorney General receiving conflicting advice in the course of the campaign finance investigation. Mr. Freeh testified, ‘‘I would hope and

expect that Attorney Generals, past, present and future, always receive different, good advice. And I think the more divergent it is

2013

37Testimony of Louis J. Freeh, August 4 hearing at 93. 38Testimony of James Robinson, July 20 hearing at 65. See also testimony of Deputy Assistant Attorney General Alan Gershel, July 20 hearing at 66–67 (noting that ‘‘it’s certainly very

common for prosecutors to engage in good faith discussions, disagreements, debates on the application of the law, the application of the facts, the appropriate way to charge or not charge a

case. So it does not strike me as unusual at all’’); testimony of Lee Radek, Public Integrity Section Chief of the Department of Justice, Senate Committee on the Judiciary Subcommittee on

Administrative Oversight and the Courts, ‘‘Hearing on Attorney General’s Decisions Regarding

Campaign Finance Investigations,’’ 106th Cong. (May 24, 2000) (page numbers not available)

(hereinafter ‘‘May 24 hearing’’) (stating that ‘‘[i]nternal disagreements among Department of

Justice officials about various aspects of the Independent Counsel Act date back to its passage

over 20 years ago. What is new is the determination of some to delve into those confidential

discussions and disagreements that were intended as an honest and frank exchange of views

between the attorney general and her various advisors’’); testimony of Lee Radek, June 6 hearing at 31–32 (noting that the style of the Attorney General ‘‘has been to seek out the views of

a variety of advisors, listen carefully to each of us, consider our arguments, ask her own questions, and then reach her own decisions’’ and that ‘‘[a]ny group of lawyers grappling with complex legal and factual issues are bound to have disagreements, and the issues we faced were

both complex and difficult’’). 39Testimony of James Robinson, July 20 hearing at 65. 40Majority report at 13–16. 41Majority report at 14–16.

at times, the better it is for that Attorney General to make what

he or she thinks is the best decision.’’ 37 James Robinson, head of

the Justice Department’s criminal division, stated that the internal

documents released to Congress demonstrated ‘‘honest good faith

differences of opinion between prosecutors and investigators who

are not shy about expressing their views.’’ 38

In these circumstances, it was the Attorney General’s prerogative—and her responsibility—to choose which advice to follow. Not

a single witness before the committee suggested that her decision

was influenced by favoritism or politics. Rather, as Mr. Robinson

testified, the record indicates that the Attorney General made a

‘‘good faith effort to reach absolutely the correct view from her vantage point as the decision maker under the Independent Counsel

Act.’’ 39

• Allegation: Attorney General Janet Reno ‘‘changed her interpretation of the Independent Counsel Act’’ to ‘‘set the bar for appointing an independent counsel even higher for the campaign finance investigation than previous investigations.’’ 40 The Attorney General has stated that the discretionary clause of the independent counsel statute requires that she must conclude there is

potential for an actual conflict of interest, rather than merely an

appearance of a conflict of interest, when she invokes this clause.

Yet in ‘‘at least four’’ earlier investigations, she referred matters

to an independent counsel under the discretionary clause and applied a standard of ‘‘apparent conflict.’’ 41

The Facts: The majority is engaging in pure speculation regarding whether the Attorney General based earlier independent counsel referrals on an ‘‘apparent conflict’’ standard in the discretionary

clause of the Independent Counsel Act. The referral documents in

which the Attorney General described her rationale for these earlier decisions do not support the majority’s interpretation.

For example, one of the four examples cited by the majority as

an earlier ‘‘discretionary clause’’ referral is the matter involving

former Assistant to the President for Management and Administration David Watkins. According to the majority report, this referral

was made under the Act’s ‘‘discretionary provision,’’ as ‘‘David Watkins did not satisfy any of the requirements for the mandatory proVerDate 11-MAY-2000 02:41 Dec 14, 2000 Jkt 068229 PO 00000 Frm 01385 Fmt 6604 Sfmt 5602 E:\HR\OC\HR1027V2.XXX pfrm06 PsN: HR1027V2
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42Majority report at 15–16. 43 Notification to the court pursuant to 28 U.S.C. § 592(a)(1) of the initiation of a preliminary

investigation and application to the court pursuant to 28 U.S.C. § 593(c)(1) for expansion of the

jurisdiction of an independent counsel, in re William David Watkins (D.C. Cir., Mar. 20, 1996).

The Independent Counsel Act (which expired in 1999) specified a list of ‘‘covered persons’’ who

automatically fall under the Act’s mandatory provision. 28 U.S.C. § 591 (a) & (b). In her filing

with the court regarding the Watkins investigation, the Attorney General stated, ‘‘I have concluded that Watkins is a covered person under the Independent Counsel Act.’’ in re William

David Watkins, at 2 (emphasis added). In the filing, the Attorney General reasoned that the

Act:

includes as a covered person, for the entire duration of the incumbency of the President:

‘‘the chairman and treasurer of the principal national campaign committee seeking the

election or reelection of the President, and any officer of that committee exercising authority at the national level.’’ Watkins was the vice president and secretary of the Clinton/Gore 1992 Campaign Committee, and functioned as the deputy campaign manager

for operations. On the basis of an investigation into Watkins’ role on the campaign, I

am satisfied that Watkins meets the criteria set out by the statute.

Id.44Majority report at 16. 45 Id. 46 Notification to the court pursuant to 28 U.S.C. § 592(a)(1) of the initiation of a preliminary

investigation and application to the court pursuant to 28 U.S.C. § 593(c)(1) for the expansion

of the jurisdiction of an independent counsel, in re Anthony Marceca, 3 (D.C. Cir. June 21,

1996). 47 Notification to the court pursuant to 28 U.S.C. § 592(a)(1) of the initiation of a preliminary

investigation and application to the court pursuant to 28 U.S.C. § 593(c)(1) for the expansion

of the jurisdiction of an independent counsel, in re Bernard Nussbaum, 3 (D.C. Cir. Oct. 24,

1996); application to the court pursuant to 28 U.S.C. § 592(c)(1) for the appointment of an independent counsel in re Madison Guaranty Savings & Loan Association, 3–4 (D.C. Cir. July 1,

1994); in re Anthony Marceca, supra note 46, at 3. 48Majority report at 14–15.

vision of the Act.’’ 42 In fact, the specific reason the Attorney General cited for recommending an independent counsel on this matter

was that Mr. Watkins did fall under the Act’s mandatory provision.43 The Act’s discretionary clause was not invoked in the Watkins referral.

Another of the four examples cited by the majority was a referral

involving former White House detailee Anthony Marceca.44 Mr.

Marceca’s referral concerned allegations that the White House had

improperly obtained files from the FBI. According to the majority,

the ‘‘conflict’’ at issue in the Marceca referral was based on Mr.

Marceca’s ‘‘relationship with President Clinton or the White House

generally.’’ 45 This characterization, however, is inconsistent with

the rationale set forth in the Marceca referral. The referral states

that an investigation by the Department of Justice would constitute a political conflict of interest ‘‘because it necessarily will involve an inquiry into dealings between the White House and the

FBI.’’ 46

Further, with respect to the three referrals cited by the majority

which did invoke the discretionary clause, there is simply no discussion of an ‘‘apparent conflict’’ standard anywhere in the referral

documents. In these documents, the Attorney General cites ‘‘political conflict of interest’’ as the basis for the decision to refer, and

does not discuss whether she perceived an ‘‘apparent’’ as opposed

to an ‘‘actual’’ conflict.47

• Allegation: In explaining her view that the Independent Counsel

Act’s discretionary clause requires a finding of potential for an

actual conflict of interest instead of merely an appearance of a

conflict, the Attorney General ‘‘neglected to mention the report

language supporting the idea of an apparent conflict of interest.’’ 48 ‘‘[T]he Senate Report accompanying the 1982 AmendVerDate 11-MAY-2000 02:41 Dec 14, 2000 Jkt 068229 PO 00000 Frm 01386 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1027V2.XXX pfrm06 PsN: HR1027V2
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49 Id. at 15. 50 Id. 51 Congressional Record, H9507 (Dec. 13, 1982) (emphasis added). The majority also faults the

Attorney General for citing ‘‘negative legislative history’’ by drawing inferences regarding congressional intent from the fact that Congress rejected language. The majority is apparently concerned that in 1997 testimony, the Attorney General noted that Congress in 1994 decided to

reject a proposal for a more flexible standard for invoking the discretionary clause. Majority report at 14–15. This criticism ignores the fact that the Attorney General does not rely purely

on ‘‘negative legislative history’’ in discussing her interpretation of the Act’s discretionary clause.

For example, as the majority report acknowledges in a footnote, the Attorney General also relies

on the floor statement of Representative Hall that explicitly described why Congress deleted the

‘‘appearance’’ language from the discretionary clause. E.g., letter from Attorney General Janet

Reno to Senator Orrin G. Hatch, 3 (Apr. 14, 1997) (DOJ–02046 to 02055) (attached as exhibit

6).52Fox News, ‘‘Fox News Sunday’’ (Sept. 12, 1999). 53 National Public Radio, ‘‘Morning Edition’’ (Aug. 31, 1999).

ments to the Act stated ‘[t]he Committee recognizes that there

may be instances when investigations by the Attorney General of

persons not covered by the Act may create an actual or apparent

conflict of interest.’ ’’ 49 The Attorney General ‘‘ha[s] a problem

with her interpretation of the Act’s legislative history.’’ 50

The Facts: The majority’s reference to the Senate report is misleading. The report language cited by the majority concerned the

discretionary clause provision in the Senate-passed version of the

1982 Amendments to the Independent Counsel Act. The discretionary clause language in the Senate-passed bill authorized appointment of an independent counsel based on an ‘‘appearance’’ of

a conflict of interest. That language, however, was deleted before

Congress enacted the 1982 amendments into law. In fact, the floor

manager of this bill, Representative Sam Hall, specifically noted:

The Senate-passed bill provides that the Attorney General

may apply for the appointment of a special prosecutor to

investigate persons other than the class of individuals specifically covered whenever the Attorney General determines a personal, financial, or political conflict of interest

or the appearance thereof may result if an officer of the

Department of Justice conducts the investigation. The bill

as amended deletes the reference to appearances, and thereby requires the Attorney General to determine that an actual conflict may exist in order to utilize the special prosecutor procedures.51

• Allegation: The Attorney General intentionally misled the committee about Waco by withholding evidence on the use of ‘‘military rounds’’ of tear gas during the siege of the Branch Davidian

compound in Waco, TX. The basis of this allegation was that the

Justice Department purportedly didn’t produce the 49th page of

a memo that was, according to Mr. Burton, ‘‘the very definitive

piece of paper that could have given us some information.’’ 52 Referring to allegations that the Justice Department had withheld

Waco-related information from Congress, Representative Burton

also stated that the Attorney General ‘‘should be summarily removed, either because she’s incompetent, number one, or, number

two, she’s blocking for the President and covering things up,

which is what I believe.’’ 53

The Facts: At the time Mr. Burton made these statements, evidence produced by the Justice Department regarding the use of

2016

54 John C. Danforth, Special Counsel, ‘‘Interim Report to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco, Texas,’’ 54 (July 21, 2000). 55Press release, House Committee on Government Reform (Nov. 1, 1999). 56Statement of Representative Dan Burton, House Committee on Government Reform, hearing on ‘‘The Role of John Huang and the Riady Family in Political Fundraising,’’ 106th Cong.

(Dec. 15, 1999). 57Statement of Representative Dan Burton, House Committee on Government Reform, hearing on ‘‘The Role Of Yah Lin ‘Charlie’ Trie in Illegal Political Fundraising,’’ 106th Cong. (Mar.

1, 2000). 58Majority report at 109.

‘‘military rounds’’ of tear gas was in his own files—and had been

since 1995. The Office of Special Counsel John Danforth investigated this issue, and concluded:

[W]hile one copy of the report did not contain the 49th

page, the Committees [the House Government Reform and

Oversight Committee and the House Judiciary Committee]

were provided with at least two copies of the lab report in

1995 which did contain the 49th page. The Office of Special Counsel easily located these complete copies of the lab

report at the Committees’ offices when it reviewed the

Committees’ copy of the 1995 Department of Justice production. The Department of Justice document production

to the Committees also included several other documents

that referred to the use of the military tear gas rounds, including the criminal team’s witness summary chart and

interview notes.54

• Allegation: The Attorney General has ‘‘a double standard for Republicans and Democrats,’’ and ‘‘Republicans who break the law

get the book thrown at them, Democrats who break the law get

off with a slap on the wrist.’’ 55 ‘‘[A]s far as the equal application

of justice, it doesn’t appear to me that there has been an equal

application of justice by this Justice Department.’’ 56 ‘‘When

Democrats do get convicted, they get very light sentences. When

Republicans get convicted of the same conduct, they’re given

massive fines.’’ 57 The Attorney General’s conduct reflects ‘‘uneven

enforcement of the law.’’ 58

The Facts: The majority’s statements ignore the fact that Democrats have received harsh fines for campaign finance offenses. For

example, in December 1998, Future Tech International Inc. and its

chief financial officer, Juan Ortiz, were fined $1 million for reimbursing employees for their campaign contributions to Democratic

campaigns. The Federal Election Commission also imposed a

$209,000 civil penalty—the fourth largest in FEC history—on Future Tech and several company officials.

In addition to receiving fines, Democrats have also served actual

jail time for their offenses, unlike their Republican counterparts:

• In December 1999, Yogesh Gandhi was sentenced to 1 year

in prison and ordered to pay more than $237,000 in back

taxes to the IRS for tax evasion, mail fraud, and helping to

make an illegal $325,000 campaign contribution to the

Democratic National Committee.

• In September 1997, Democratic party fundraisers Gene and

Nora Lum were sentenced to 10 months in custody, half in

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59 Interim report from Charles La Bella and James DeSarno for Attorney General Janet Reno

and FBI Director Louis J. Freeh, 83 (July 16, 1998) (DOJ–FLB–00030 to 00127). 60 House Committee on Government Reform and Oversight, ‘‘Investigation of Political Fundraising Improprieties and Possible Violations of Law,’’ 105th Cong., 2d sess., vol. 4, at 4020–

24 (Nov. 5, 1998) (H. Rept. 105–829). 61 Affidavit of Peter F. Cloeren, House Committee on Government Reform and Oversight (Aug.

6, 1998).

tention. Each also received $30,000 in fines and 2 years of

probation for arranging about $50,000 in illegal contributions in 1994 and 1995.

• In 1996, Jack Webb and Jeffress Wells, two former officials

of the U.S. Department of Agriculture, were sentenced to 30

days in jail, 2 years of supervised probation, and 120 hours

of community service and given a $2,500 fine for conspiring

to raise contributions for a PAC from coworkers and subordinates. Mr. Wells and Mr. Webb were both active Democrats, the persons solicited were Democrats, and the PAC

supported the Clinton campaign.

Representative Burton’s allegation of favoritism also conveniently

overlooks the fact that Attorney General Reno has not initiated

prosecutions against prominent Republicans involved in alleged

campaign finance violations. For example, no action has been taken

against former Republican National Committee Chairman Haley

Barbour, who formed the National Policy Forum (NPF) and was alleged to have solicited and secured a $2.1 million loan from a foreign national for the NPF which he funneled into the RNC. According to Charles La Bella, the former head of the Campaign Finance

Task Force:

For its part the RNC, while apparently not on a par with

the DNC, had its fair share of abuses. The Barbour matter

is a good example of the type of disingenuous fundraising

and loan transactions that were the hallmark of the 1996

election cycle. In fact, Barbour’s position as head of the

RNC and NPF—and the liberties he took in those positions—makes the one $2 million transaction even more offensive than some concocted by the DNC. Indeed, with one

$2 million transaction, the RNC accomplished what it took

the DNC over 100 White House coffees to accomplish.59

Similarly, no action has been taken against Republican Majority

Whip Tom DeLay, despite specific and credible evidence that Mr.

DeLay and a Republican congressional candidate, Brian Babin,

knowingly participated in a scheme to funnel illegal contributions

to Mr. Babin’s campaign.60 The evidence relating to Mr. DeLay includes a sworn affidavit from Texan businessman and Republican

donor Peter Cloeren stating that Mr. DeLay instructed him to funnel money illegally to Mr. Babin’s campaign.61

The validity of Mr. Burton’s allegation can be tested by comparing the treatment received by two former Members of Congress

who committed campaign finance violations, former Republican

Representative Jay Kim and former Democratic Representative

Mary Rose Oakar. Representative Kim knowingly accepted

$230,000 in illegal contributions—over 14 times the amount of

money that Representative Oakar conspired to contribute illegally

2018

62 In March 1998, Representative Kim was sentenced to 2 months home confinement under

electronic monitoring, 1 year of probation, and 200 hours of community service, and received

a $5,000 fine. According to prosecutors, his case represented ‘‘the largest amount of criminal

campaign finance violations ever committed by a member of Congress.’’ ‘‘Former Rep. Kim, Convicted in 1997, May Run Again,’’ Los Angeles Times (Dec. 4, 1999). Representative Oakar received a sentence of 2 years’ probation and 200 hours of community service, and a $32,000 fine. 63Letter from Representative Dan Burton to Attorney General Janet Reno (Mar. 10, 2000). 64Majority report at 128. 65 E.g., Charles J. Cooper, ‘‘Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act,’’ 10 Op. O.L.C. (Apr. 28, 1986); see also House

Committee on Government Reform and Oversight, ‘‘Contempt of Congress,’’ 105th Cong., 2d

sess., minority views at 123–25 (Sept. 17, 1998) (H. Rept. 105–728). 66Letter from Attorney General Janet Reno and FBI Director Louis J. Freeh to Representative Dan Burton (Dec. 8, 1997). 67Testimony of Louis J. Freeh, August 4 hearing at 110. 68Testimony of Charles La Bella, August 4 hearing at 110. 69See letter from Representative Henry Waxman to Attorney General Janet Reno and FBI

Director Louis J. Freeh (Dec. 19, 1997).

($16,000). But Representative Kim received a comparable sentence

to Representative Oakar.62

• Allegation: The Attorney General delayed releasing the Freeh

and La Bella memos in order to protect herself from public embarrassment. ‘‘By withholding the memos from this Committee,

you tried to keep the Committee from learning how you had mishandled the investigation.’’ 63 Furthermore, ‘‘when the Justice

Department finally turned the documents over to the Committee,

it was clear that the Justice Department’s objections had been utterly false and baseless.’’ 64

The Facts: The Attorney General’s reluctance to produce the

Freeh and La Bella memos was consistent with the longstanding

departmental policy against releasing internal memoranda concerning ongoing investigations to Congress.65 Both Mr. Freeh and

Mr. La Bella stated on numerous occasions that public release of

their memoranda would jeopardize the Task Force’s investigations

and have a ‘‘chilling effect’’ on pending prosecutions.

For example, Attorney General Reno and Director Freeh warned

in a December 8, 1997, letter to Representative Burton that release

of the Freeh memo would provide a ‘‘road map’’ of their investigation.66 In his testimony before the committee on August 4, 1998,

Director Freeh was asked whether he thought Congress should receive his memorandum. Director Freeh replied that ‘‘I certainly believe it not prudent to receive it at this point.’’ 67 Mr. La Bella stated at the same hearing:

The last thing in the world that I want to see as the prosecutor heading this Task Force is that this memo ever get

disclosed. . . . I don’t think it should ever see the light of

day, because this, in my judgment, would be devastating

to the investigations that the men and women of the Task

Force are working on right now and that I have put my

blood, sweat and tears into, and I don’t want to see that

jeopardized.68

Despite these well-founded reservations, the Attorney General

made significant efforts to accommodate the committee. In early

1998, the Justice Department provided a briefing to the chairman,

ranking member, and certain staff of the committee on redacted

portions of the Freeh memorandum.69 In late 1998, the Justice Department provided a briefing to the chairman, ranking member,

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70Mr. La Bella apparently concurred in the Attorney General’s decision in May 2000 to release the minimally redacted memoranda to Congress. In December 1999, he stated, ‘‘I would

think now that the investigations are all concluded, there’s a lot—a good portion of the memo

that could be made public I think without risk to anybody or anything.’’ Fox, ‘‘Hannity and

Colmes’’ (Dec. 29, 1999). 71Press release, House Committee on Government Reform (May 19, 2000). 72Majority report at v. 73Memorandum from FBI Director Louis J. Freeh to Deputy FBI Director William J. Esposito

(Dec. 9, 1996). 74Testimony of William J. Esposito, June 6 hearing at 119. 75Testimony of Neil Gallagher, June 6 hearing at 126. 76Testimony of Neil Gallagher, June 6 hearing at 125. 77Testimony of Lee Radek, May 24 hearing.

and certain staff of the committee on redacted versions of the

Freeh and La Bella memoranda, and permitted review of these documents. And in May 2000, after the Department’s successful prosecution of individuals mentioned in the memoranda, the Justice

Department provided the documents in minimally redacted form to

the committee.70

• Allegation: ‘‘[W]e have a piece of evidence from the Director of the

FBI that makes it abundantly clear that we have been right all

along. Janet Reno and Lee Radek have been blatantly protecting

the President, the Vice President and their party from the outset

of this scandal.’’ 71 ‘‘Justice Department officials believed that a

key supervisor of the campaign finance investigation thought

that the Attorney General’s political future hinged on her decisions regarding her political superiors.’’ 72

The Facts: The majority’s evidence is a December 9, 1996, memo

from FBI Director Freeh to former Deputy FBI Director Esposito,

which stated:

I also advised the Attorney General of Lee Radek’s comment to you that there was a lot of ‘‘pressure’’ on him and

[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 that those comments would

be enough for me to take him and the Criminal Division

off the case completely.73

The meaning of Mr. Radek’s alleged comment is unclear. The testimony before this committee and a Senate Judiciary subcommittee

suggests that the two people who heard Mr. Radek’s alleged comment interpreted the comment differently. Mr. Esposito testified

that he considered the remark to be ‘‘totally inappropriate,’’ 74 and

he evidently communicated his belief to Mr. Freeh. But Neil Gallagher, Assistant FBI Director for Terrorism, testified that he ‘‘did

not put any great significance’’ on the statement,75 and that ‘‘the

implication that I took was that Lee Radek was making a statement of how sensitive and tough this investigation was going to be

that we were about ready to enter.’’ 76

Mr. Radek is a 29-year career prosecutor who began working for

the Justice Department in the Nixon administration and who has

never been involved in Democratic party politics.77 He testified

that while he has no recollection of the alleged conversation with

Mr. Esposito, he ‘‘would undoubtedly, in conversations with Mr.

Esposito, talk about pressure on the Public Integrity Section at frequent occasions, whenever he and I would talk’’ but that ‘‘[i]t was

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78Testimony of Lee Radek, May 24 hearing. 79Testimony of Lee Radek, May 24 hearing. 80Testimony of Lee Radek, May 24 hearing. 81Majority report at 65. 82Statement of Representative Bob Barr, July 20 hearing at 100. 83Statement of Representative Dan Burton, July 20 hearing at 10. 84Statement of Representative Dan Burton, July 20 hearing at 9. 85 ‘‘Justice Department Won’t Discuss Gore Video,’’ Reuters (July 21, 2000). 86Fox, ‘‘Hannity and Colmes’’ (July 19, 2000). 87Letter from Beth Nolan, counsel to the President, to James C. Wilson, chief counsel (Sept.

23, 2000) (noting that ‘‘in a recent conversation with Lisa Klem of my office you indicated that

you knew the Department of Justice had the videotape in October 1997’’). 88The majority also asserts, ‘‘The Vice President himself admitted that it was his voice, but

deflected questions by saying it was a political attack using news that had been available for

years.’’ Majority report at 71 (citing ‘‘Congressman Focuses on Gore Videotape Comment,’’ Associated Press (July 19, 2000)). However, the news article the majority cites for this assertion says

pressure to do the job and do it right.’’ 78 Asked what pressure he

got from the Attorney General, Mr. Radek responded that ‘‘I got

pressure to do a good job and to do it well.’’ 79 As for the Attorney

General herself, Mr. Radek said that he was ‘‘aware of no pressure

being put on her.’’ 80

• Allegation: The Vice President ‘‘apparently suggested that the

DNC issue ads be shown to James Riady.’’ 81 The Justice Department failed to review an incriminating tape of a December 1995

White House coffee which is ‘‘evidence that the Vice President

knew that those [DNC issue] ads were being paid for by foreign

money. That is evidence that the President knew that there was

a connection between those ads and Mr. Riady.’’ 82 ‘‘I don’t think

the Justice Department has even looked into this. In five interviews with the Vice President, they didn’t ask him a single question about it. I don’t think they have even asked to see the original tape.’’ 83

The Facts: The videotape in question is of a December 15, 1995,

White House coffee attended by Arief Wiriadinata, the son-in-law

of Hashim Ning, a business associate of Lippo founder Mochtar

Riady. James Riady, Mochtar’s son, is suspected of making conduit

campaign contributions in the 1992 and 1994 election cycles. According to Representative Burton’s description of the videotape:

Mr. Wiriadinata moves away from the camera and you

hear a voice in the background. It sounds very much like

the Vice President. It sounds like he is saying, ‘‘We

oughta, we oughta, we oughta show Mr. Riady the tapes,

some of the ad tapes.’’ 84

According to neutral observers, however, the tape is virtually unintelligible. A Reuters reporter describing the playing of the videotape at the committee’s hearing wrote, ‘‘Gore’s muffled words were

not clear.’’ 85 When the tape was played on a Fox TV show, the person in charge of transcribing the show was also unable to make it

out. The transcript for the show reads: ‘‘We ought to, we ought to

show that to [unintelligible] here, let [unintelligible] tapes, some of

the ad tapes [unintelligible].’’ 86

Furthermore, as the majority is aware, the tape in question was

provided to the Justice Department in October 1997.87 Thus, it is

entirely possible that the Department reviewed the tape 3 years

ago and came to the same conclusion as other unbiased observers—

namely, that the tape is unintelligible.88

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nothing about the Vice President’s reaction to, or comments about, the videotape—nor do any

of the other articles cited by the majority. 89Majority report at vii. 90Majority report at vii. 91Majority report at vii–viii. 92Testimony of Alan Gershel, House Committee on Government Reform, hearing on ‘‘Contacts

Between Northrop Grumman Corporation and the White House Regarding Missing White House

E-Mails,’’ 35 (Sept. 26, 2000) (stenographic record) (hereinafter ‘‘September 26 hearing’’). Mr.

Gershel assured the committee that the Department had not impeded or limited the scope of

Mr. Ray’s investigation, and the committee has received no information to question this assurance. September 26 hearing at 48. 93The majority has repeated this accusation with increasing conviction, despite being unable

to cite any evidence to support it. Mr. Burton said in a hearing on September 26 that ‘‘We have

heard from—heard the Task Force was using just one part-time lawyer.’’ Statement of Representative Dan Burton, September 26 hearing at 41 (emphasis added). In its e-mail report, released shortly thereafter, the majority asserted, ‘‘It appears that for at least part of its e-mail

investigation, the Justice Department had only one part-time lawyer assigned to its e-mail investigation.’’ House Committee on Government Reform, ‘‘The Failure to Produce White House

E-Mails: Threats, Obstruction and Unanswered Questions,’’ 106th Cong., 141 (2000) (stenographic record) (emphasis added). Now, the majority asserts simply that ‘‘it has become known

that the one part time lawyer handling the e-mail investigation for the Department has recently

left government employment.’’ Majority report at vii (emphasis added). 94Transcript of interview of Attorney General Janet Reno, House Committee on Government

Reform, 4 (Oct. 5, 2000) (hereinafter ‘‘Attorney General Reno interview’’); testimony of Alan

Gershel, September 26 hearing at 34–35. 95 Attorney General Reno interview at 9. 96Testimony of Alan Gershel, September 26 hearing at 35.

• Allegation: The Justice Department is ‘‘more interested in defending the White House in the e-mail matter than investigating

it’’ 89 and ‘‘it has become known that the one part time lawyer

handling the e-mail investigation for the Department has recently left government employment.’’ 90 The Department has given

the White House ‘‘preferential treatment’’ by failing to investigate

whether the e-mail matter involves ‘‘obstruction of Congressional

investigations of the campaign finance scandal.’’ 91

The Facts: The Department’s e-mail investigation is being carried out in coordination with Independent Counsel Robert Ray.92

There is no reason to believe that Mr. Ray and the Justice Department are not pursuing an appropriate investigation.

The report offers no evidence to support its allegation that the

Department has relied on one part-time lawyer to handle the email investigation.93 Asked about this allegation, Attorney General

Reno and Deputy Assistant Attorney General Alan Gershel each

made clear that they were unable to respond, due to the Department’s longstanding policy of not disclosing staffing levels for ongoing investigations.94 However, the Attorney General assured the

committee that ‘‘there are sufficient resources committed to it

based on the recommendations of the prosecutors involved.’’ 95

Similarly, Mr. Gershel observed:

the Attorney General regularly consults with Robert

Conrad, the chief of the Campaign Financing Task Force,

and me to ensure that the Task Force has the resources

it needs. Bob and I both believe that the Task Force currently has sufficient staff to handle the White House email matter as well as its other responsibilities.96

Mr. Gershel also pointed out that ‘‘with respect to the White House

e-mail matter the [Department’s] Task Force and the office of the

independent counsel are working together in a coordinated invesVerDate 11-MAY-2000 02:41 Dec 14, 2000 Jkt 068229 PO 00000 Frm 01393 Fmt 6604 Sfmt 5602 E:\HR\OC\HR1027V2.XXX pfrm06 PsN: HR1027V2
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97Testimony of Alan Gershel, September 26 hearing at 35. The majority also asserts that the

Department has given the White House ‘‘preferential treatment’’ by failing to investigate whether the e-mail matter involves ‘‘obstruction of Congressional investigations of the campaign finance scandal.’’ Majority report at vii. In support of this assertion, the majority claims that ‘‘[i]n

an October 5, 2000, interview with the Committee, Attorney General Reno made it clear that

she would not take proactive steps to determine whether the White House had obstructed Congressional investigations by failing to take steps to produce subpoenaed e-mail records.’’ Majority report at viii.

This assertion is without merit. The interview with the Attorney General included the following exchange:

Majority Counsel: . . . is the Department of Justice doing an investigation of any sort

of matters that go to Congressional investigations?

Attorney General Reno: I will be happy to check and see what I can provide you based

on what might be known or any complaint that you have made of obstruction. But I

don’t know the full range of your investigations, so I can’t tell you.

Attorney General Reno interview at 25.

Moreover, in the course of the interview, majority counsel conceded that the Department had

asked the majority months ago which congressional subpoenas may not have been complied

with—and the majority declined to cooperate with this request:

Majority Counsel: Mr. Gershel a number of months ago called me directly and said he

wanted to interview me specifically to try and determine whether Congressional subpoenas had not been complied with or whether there was obstruction of a Congressional

investigation. I said to him at the time I would be happy to comply with his request

for an interview pending consultation with my superiors, but first we had the outstanding question of whether there was a special counsel to be appointed. And I indicated that it would perhaps be counterproductive if I did an interview with him when,

as Mr. Raben had indicated—actually had not yet indicated, but as indicated by you,

there was an ongoing determination as to whether a special counsel would be appointed.

Attorney General Reno interview at 32. 98Testimony of Chairman Dan Burton, House Rules Committee (July 15, 1999) (available at

www.house.gov/reform/oversight/99—07—15db-rules.htm). 99Testimony of Richard Huff, House Government Reform Committee, ‘‘Felonies and Favors:

A Friend of the Attorney General Gathers Information from the Justice Department,’’ 150 (July

27, 2000) (stenographic record) (hereinafter ‘‘July 27 hearing’’). 100Ms. Poston was seeking information for a client, a member of an international religious

organization known as Soka Gakkai. Ms. Poston’s client had been sued in a Japanese court for

libel by a Japanese citizen named Nobuo Abe. The alleged statements at the heart of this lawsuit related to whether Mr. Abe had been arrested or detained in Seattle in 1963. Mr. Abe maintained that he had never been detained and that statements to the contrary made by Ms.

Poston’s client were defamatory. Ms. Poston’s FOIA requests sought records that would have

established that her client’s statements were true and that Mr. Abe had, in fact, been arrested

or detained. E.g., letter from Russell J. Bruemmer and Patrick J. Carome of Wilmer, Cutler &

Pickering, to Richard L. Huff (Mar. 31, 1995) (DOJ–02812 to 02817). The Justice Department’s

confirmation that no such records existed was adverse to the interests of Ms. Poston’s client. 101Memorandum from Attorney General Janet Reno to staff of the Attorney General (Apr. 28,

1995) (attached as exhibit 7); House Committee on Government Reform, ‘‘Felonies and Favors:

A Friend of the Attorney General Gathers Information from the Justice Department,’’ July 27

hearing at 154. The majority also alleges that Ms. Poston took ‘‘illegal actions’’ and that she

‘‘Request[ed] Her Private Investigators to Break the Law.’’ Majority report at 163, 168. The matigation. So it is not just the Task Force’s resources that are involved.’’ 97

• Allegation: In July 1999 testimony before the House Rules Committee, Representative Burton claimed that the Government Reform Committee had received information indicating that the Attorney General ‘‘personally’’ changed a policy related to release of

information by the Justice Department so that an attorney she

knew ‘‘could help her client.’’ 98

The Facts: Mr. Burton’s allegations concerned a decision by the

Justice Department to confirm the lack of existence of records in

response to a FOIA request by a Miami attorney, Rebekah Poston.

This decision to confirm the lack of records was legal,99 and it was

damaging to Ms. Poston’s client.100 The records produced to the

committee and testimony by the relevant individuals showed that

the Attorney General had recused herself from the decision.101

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jority’s allegation appears to be based on the premise that Ms. Poston inappropriately directed

her private investigators to access a restricted FBI database. In testimony under oath before

this committee, however, Ms. Poston denied asking private investigators to break the law.

House Committee on Government Reform, ‘‘Felonies and Favors: A Friend of the Attorney General Gathers Information from the Justice Department,’’ July 27 hearing at 63. Richard Lucas,

the investigator who received instructions from Ms. Poston on what she wanted investigated,

also testified that she did not ask him to access restricted information. Id. at 50, 55–56, 66–

67. In fact, contrary to the majority’s allegation, no evidence received by the committee demonstrates that Ms. Poston instructed private investigators to break the law.

In its discussion of the Poston matter, the majority report also states that according to Mr.

Lucas, Barry Langberg, an attorney for Soka Gakkai, hired Jack Palladino, a private investigator, to look into the issue of whether Mr. Abe was arrested in 1963. The majority report alleges that it is possible that through their actions on this matter, Mr. Palladino and Mr.

Langberg ‘‘broke the law.’’ Majority report at 162. The committee, however, never interviewed

Mr. Palladino or Mr. Langberg. On Oct. 31, 2000, Mr. Langberg wrote the committee to address

allegations in the majority report that relate to him. According to Mr. Langberg, the majority’s

account ‘‘contains numerous demonstrable factual errors, and recklessly accuses private individuals of criminal wrongdoing without any pretense of due process or any substantive evidence.’’

He also stated that he has ‘‘no personal involvement with the activity criticized in the report.’’

Letter from Barry B. Langberg to Representative Dan Burton and Representative Henry Waxman (Oct. 31, 2000) (attached as exhibit 8). 102Majority report at 108. 103 Id. 104 E.g., deposition of Jim Lawing, House Committee on Government Reform and Oversight,

22–29 (Feb. 18, 1998). 105 E.g. ‘‘Local Demos Say They Felt Need to Repay State Party: Legality of Transfers Questioned,’’ Winfield Daily Courier (Oct. 9, 1997). The State law provisions at issue are Kan. Stat.

Ann. § 25–4153 (1996) and Kan. Stat. Ann. § 25–4154 (1996). 106Letter from Henry Helgerson to Carol Williams (Sept. 3, 1997) (attached as exhibit 9). The

Commission is charged with administering, interpreting and enforcing the Kansas Campaign Finance Act and laws relating to conflict of interests, financial disclosure and the regulation of

lobbying. See the home page of the Commission at www.state.ks.us/public/gsc/. 107Kansas Commission on Governmental Standards and Conduct, Opinion No. 1997–45 (Sept.

11, 1997) (attached as exhibit 10). 108See id. (stating that there is no violation of the Kansas statute if ‘‘A’’ gives money to ‘‘B’’

and ‘‘B’’ then contributes the money to ‘‘C,’’ ‘‘so long as there was not an understanding between

‘A’ and ‘B’ that the money was to be contributed to ‘C’ ’’).

• Allegation: There was an ‘‘apparently illegal conduit contribution

scheme by the Democratic National Committee to funnel more

than a third of a million dollars to the Kansas Democratic

party.’’ 102 ‘‘The Justice Department failed to pursue the Kansas

conduit contribution scheme.’’ 103

The Facts: In 1996, Democratic party national committees contributed to Kansas State candidates and county committees, and to

Democratic party committees in other States. Some of these candidates, county committees, and State party committees subsequently contributed to the Kansas Democratic party.104 Media accounts reported concerns that these actions may have constituted

illegal circumvention of a Kansas law that caps contributions by

national party committees to State party committees and prohibits

making contributions in the name of another.105

In 1997, State representative Henry Helgerson wrote the bipartisan Kansas Commission on Governmental Standards and Conduct asking for clarification of the Kansas law.106 The Commission

issued an opinion on this matter on September 11, 1997.107 Under

the Commission’s opinion, national party committees could contribute to a Kansas State candidate, Kansas county committee, or

other State party, and that candidate, county committee, or State

party could subsequently contribute to a Kansas State party committee without violating the Kansas statute. A violation would

occur only if the national party committees had an understanding

with the entity to which they made the contribution that the

money was to be contributed to the State party committee.108

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109Deposition of Henry Helgerson, House Committee on Government Reform and Oversight,

16 (Feb. 19, 1998); deposition of Jim Lawing, House Committee on Government Reform and

Oversight, 12–13, 22–23 (Feb. 18, 1998) (testifying that he received a contribution is from the

Democratic Congressional Campaign Committee in his capacity as chairman of the Sedgwick

County Democratic Central Committee); deposition of Marge Petty, House Committee on Government Reform and Oversight, 14–18 (Feb. 24, 1998); deposition of Jerald Karr, House Committee on Government Reform and Oversight, 16–17 (Feb. 23, 1998); deposition of Douglas

Walker, House Committee on Government Reform and Oversight, 26–29 (Feb. 23, 1998). 110Deposition of Henry Helgerson at 57–58; deposition of Jim Lawing at 41–42; deposition of

Marge Petty at 14–15, 34–35; deposition of Jerald Karr at 30, 46; deposition of Douglas Walker

at 26–27, 40. The majority report emphasizes a Sept. 3, 1996, memo from Tressie Hurley to

Kansas State Senate candidate Donald Biggs which notes that the Democratic Senatorial Campaign Committee will contribute $1,000 to Senate campaigns and states, ‘‘You may keep $200

but then must turn around and contribute $800 to the Senate Victory Fund.’’ Majority report

at 110. According to deposition testimony, however, at the time of this memo, Ms. Hurley was

a junior staffer in the office of State Senate Minority Leader Jerald Karr. She was not an employee of any national Democratic party organization or otherwise in a position to act as an

agent of such an organization. Deposition of Jerald Karr at 36, 47. The Hurley memo does not

therefore demonstrate an agreement between the national Democratic party and Mr. Biggs regarding the national party’s contribution to him. Further, the committee never deposed either

Ms. Hurley or Mr. Biggs to explore the significance of the memo. 111See, e.g., deposition of Jim Lawing at 47–48 (stating that he had given a statement and

had provided documents to the Commission on the subject of the funds received from the national Democratic Party); deposition of Douglas Walker at 46 (stating that the Kansas Commission had spoken with him about a lot of the same subjects covered in the Committee’s deposition

of him). 112Kan. Stat. Ann. § 25–4161 (1999). 113 Id. 114Telephone conversation between minority staff and Carol Williams, executive director of

the Kansas Commission on Governmental Standards and Conduct (Oct. 30, 2000). 115 Id.

In February 1998, the committee deposed a total of five individuals on this matter, four of whom were Kansas Democratic State

legislative candidates in 1996 and one of whom was a Kansas

Democratic party official in 1996. All of these individuals received

contributions from national Democratic party committees in

1996.109 All of these individuals also testified that they did not

have any understanding with the national committees from which

they received contributions that they would contribute that money

to the State party.110

According to testimony of individuals in committee depositions,

the Kansas Commission on Governmental Standards and Conduct

also investigated the contributions at issue.111 While the Commission is prohibited by law from commenting on whether an investigation has been instigated or is ongoing,112 evidence indicates

that the Commission has found no wrongdoing regarding this matter. Under Kansas law, the Commission must hold a hearing if,

after investigating, the Commission finds that ‘‘probable cause exists for believing the allegations of the complaint,’’ and this hearing

must be held no more than 30 days after the finding is made.113

No such hearing has ever been held on the allegations,114 which

date back to close to 4 years ago. According to the Commission’s

executive director, the Commission deals with allegations in as

timely a manner as possible, and 4 years from the time allegations

were first made is outside of the realm of timeliness.115

II. THE MAJORITY HAS IMPROPERLY SOUGHT TO INJECT POLITICS

INTO PROSECUTORIAL DECISIONS

Beyond making unsubstantiated allegations, Mr. Burton has repeatedly sought to interject the committee into prosecutorial decisions by the Justice Department. These efforts have conflicted with

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116Letter from Ramsey Clark to Representative Henry Waxman (Aug. 5, 1998) (attached as

exhibit 11). 117 At the time of the dispute over the documents, Mr. La Bella testified that release of his

memo would be ‘‘devastating to the investigations that the men and women of the Task Force

are working on right now,’’ and Mr. Freeh testified that release of his memo would not be ‘‘prudent.’’ Testimony of Charles G. La Bella, August 4 hearing at 110; testimony of Louis J. Freeh,

August 4 hearing at 110. 118Letter from Nicholas deB. Katzenbach to Representative Henry Waxman (Aug. 5, 1998)

(attached as exhibit 12). 119The majority report cites a number of precedents in an attempt to support the proposition

that subpoenaing the Freeh and La Bella memoranda was appropriate. Majority report at 139–

43. The precedents cited by the majority, however, do not resemble the circumstances relating

to the Freeh and La Bella memoranda. In particular, none of the precedents involves a congressional attempt to obtain a prosecution memorandum during an open criminal investigation. For

example, in the Palmer Raids investigation, the document produced was not a prosecution

memorandum but a legal analysis of a trial court opinion, and the trial had ended. With respect

to the Teapot Dome scandal, at the time the Justice Department produced documents to Congress, it had finished investigating the matter and had finished considering legal action, and

the primary document produced was a report from an accountant, not a prosecution memorandum. For additional discussion of these and the other examples cited in the majority report,

see House Committee on Government Reform and Oversight, ‘‘Contempt of Congress,’’ 105th

Cong., 2d sess., minority views at 136–38 (Sept. 17, 1998). 120Opinion of Attorney General Robert H. Jackson (1941).

historical practices grounded in the principle of separation of powers. As former Attorney General Ramsey Clark stated:

If Constitutional separation of powers, integrity and effectiveness in the execution of the laws and the individual

rights of witnesses . . . are to be protected, Congress must

let the Attorney General perform the duties of that office

without demanding investigative materials, or staff recommendations in an ongoing investigation.116

A. THE MAJORITY’S SUBPOENA OF THE FREEH AND LA BELLA

MEMORANDA

One example of inappropriate overreaching into prosecutorial decisions was the majority’s July 24, 1998, subpoena to the Attorney

General for documents authored by FBI Director Louis J. Freeh

and former Justice Department Campaign Finance Task Force

head Charles G. La Bella. These documents contained prosecution

recommendations and other sensitive and detailed information regarding the Justice Department’s ongoing campaign finance investigation. Both Mr. Freeh and Mr. La Bella opposed release of the

documents.117 As former Attorney General Nicholas deB. Katzenbach stated, ‘‘it is hard to imagine a less appropriate subject for a

subpoena or one more calculated to politicize the Department.’’ 118

The majority’s demands ignored a long history of Justice Department precedents.119 As the following examples demonstrate, Justice Departments under both Republican and Democratic administrations have recognized an important public policy interest in preserving the confidentiality of internal documents relating to open

criminal investigations:

• Franklin Roosevelt administration: In 1941, a House committee

requested all Justice Department investigative materials relating to labor strikes involving naval contractors. Attorney General Robert H. Jackson refused to provide the information, stating: ‘‘all investigative reports are confidential documents of the

executive department of the Government [and] congressional or

public access to them would not be in the public interest.’’ 120

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121Thomas E. Kauper, ‘‘Submission of Open CID Investigation Files’’ (Dec. 19, 1969). 122Letter from Harold R. Tyler, Jr., to Representative Bella Abzug (Feb. 26, 1976). 123 Charles J. Cooper, ‘‘Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act,’’ 10 Op. O.L.C. 68 (Apr. 28, 1996). 124Douglas W. Kmiec, ‘‘Congressional Requests for Information from Inspectors General Concerning Open Criminal Investigations,’’ 13 Op. O.L.C. 93 (Mar. 24, 1989). 125 Charles J. Cooper, ‘‘Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act,’’ 10 Op. O.L.C. (Apr. 28, 1986). For additional

discussion of precedent on this matter, see House Committee on Government Reform and Over-

• Nixon administration: In 1969, during a House committee investigation into the My Lai massacre, the Army was asked to provide all materials from its ongoing investigation into the incident. Thomas Kauper, Deputy Assistant Attorney General, rejected the request, stating: ‘‘If a congressional committee is fully

apprised of all details of an investigation as the investigation

proceeds, there is a substantial danger that congressional pressures will influence the course of the investigation.’’ 121

• Ford administration: In 1976, Representative Bella Abzug, who

chaired a subcommittee of the Government Operations Committee, requested FBI investigative files concerning domestic intelligence matters. Deputy Attorney General Harold R. Tyler,

Jr., refused to provide the information, stating: ‘‘if the Department changes its policy and discloses investigative information,

we could do serious damage to the Department’s ability to prosecute prospective defendants and to the FBI’s ability to detect

and investigate violations of criminal law.’’ 122

• Reagan administration: In 1986, the Justice Department’s Office

of Legal Counsel concluded that the Attorney General should

not disclose to Congress the contents of a report filed with a

court pursuant to the Independent Counsel Act. Assistant Attorney General Charles J. Cooper wrote that ‘‘the executive . . .

has the exclusive authority to enforce the laws adopted by Congress, and neither the judicial nor legislative branches may directly interfere with the prosecutorial discretion of the Executive Branch by directing the executive to prosecute particular

individuals.’’ 123

• Bush administration: In 1989, the Justice Department’s Office

of Legal Counsel concluded that agency inspectors general were

not required to provide information to Congress about open

criminal investigations. Assistant Attorney General Douglas W.

Kmiec concluded that there was no obligation to provide such

information, stating: ‘‘the executive branch has generally declined to make any accommodation for congressional committees

with respect to open cases: that is, it has consistently refused

to provide confidential information.’’ 124

As summarized by Charles J. Cooper, Assistant Attorney General

during the Reagan Administration in a 1986 legal opinion, the policy of not turning over investigative documents:

was first expressed by President Washington and has been

reaffirmed by or on by Presidents Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, and Eisenhower. No President, to our knowledge, has departed from

this position affirming the confidentiality and privileged

nature of open law enforcement files.125

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sight, ‘‘Contempt of Congress,’’ 105th Cong., 2d sess., minority views at 123–25 (Sept. 17, 1998)

(H. Rept. 105–728). 126See House Committee on Government Reform and Oversight, ‘‘Contempt of Congress,’’

105th Cong., 2d sess. (Sept. 17, 1998) (H. Rept. 105–728). 127 E.g., Heckler v. Chaney, 470 U.S. 821, 832 (1985). 128 E.g., ‘‘Justice Holds Subpoenaed Memos,’’ Associated Press (July 27, 1998). 129This request for a meeting was one of several efforts by the Attorney General to reach an

accommodation with the committee. For example, on July 28, 1998, she and FBI Director Freeh

wrote Representative Burton offering to provide a confidential briefing on appropriate portions

of the La Bella memorandum after the Attorney General had completed her evaluation of Mr.

La Bella’s recommendation. Letter from Attorney General Janet Reno and FBI Director Louis

Freeh to Representative Dan Burton (July 28, 1998) (attached as exhibit 13). On Aug. 4, 1998,

the Attorney General reiterated her offer to provide a confidential briefing on appropriate portions of the La Bella memorandum after she had an opportunity to fully review the memorandum, noting that such review should take approximately 3 weeks. Letter from Attorney General Janet Reno to Representative Dan Burton (Aug. 4, 1998) (attached as exhibit 14). Further,

on Aug. 6, 1998, the Attorney General contacted Mr. Burton by telephone and said that after

she had reviewed the La Bella memorandum, she would be willing to appear before the full committee and, to the extent that it would not prejudice the ongoing criminal investigation, explain

Mr. La Bella’s legal rationale.

Nevertheless, the majority persisted in its demands for the Freeh

and La Bella memoranda. In fact, as discussed below, the majority

even voted to hold the Attorney General in contempt of Congress

in August 1998 after she refrained from appointing an independent

counsel and refused to provide the Freeh and La Bella memoranda.126

B. THE MAJORITY’S USE OF THE CONTEMPT POWER

Article II of the Constitution vests the power to execute and enforce the laws of the United States in the executive branch. In particular, the courts have long recognized that criminal prosecution

is exclusively the province of the executive branch.127 Nevertheless,

Mr. Burton improperly used the Congress’ contempt power to coerce the Attorney General to appoint an independent counsel to investigate the President.

In late July 1998, the conflict between Mr. Burton and the Attorney General over the production of the Freeh and La Bella memoranda was reaching its climax. Mr. Burton told the media that he

would hold the Attorney General in contempt of Congress if she did

not comply with his subpoena to turn over the documents.128

In an effort to reach an accommodation with Mr. Burton, the Attorney General and FBI Director Freeh requested a private meeting with Mr. Burton and Ranking Member Waxman.129 During this

meeting on July 31, 1998, Mr. Burton told the Attorney General

that he would drop his efforts to seek contempt if she would seek

the appointment of an independent counsel. As Mr. Waxman wrote

to the Attorney General after the meeting:

The chairman’s remarks were a blatant attempt to influence your decision. You were told that you could avoid

being held in contempt of Congress if you acceded to Mr.

Burton’s demands that you seek appointment of an Independent Counsel. Conditioning a contempt citation on your

willingness to appoint an Independent Counsel is clearly

coercive.

* * * * *

Mr. Burton’s tactics are not subtle. He knows that you

cannot turn over the La Bella memorandum. . . . Thus,

Mr. Burton is seeking to place you in an untenable posiVerDate 11-MAY-2000 02:41 Dec 14, 2000 Jkt 068229 PO 00000 Frm 01399 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1027V2.XXX pfrm06 PsN: HR1027V2
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130Letter from Representative Henry Waxman to Attorney General Janet Reno (July 31,

1998) (attached as exhibit 15). 131 ‘‘Democrats Say Burton Made Threat Against Reno,’’ Washington Post (Aug. 1, 1998). 132Press conference of Attorney General Reno, unofficial transcript (LEXIS, ‘‘Scripts’’) (Aug.

4, 1998). 133See ‘‘Tell Him No, Ms. Reno,’’ Miami Herald (Aug. 6, 1998) (‘‘Mr. Burton’s request is dangerous. It’s more than laced with his palpable political motives. Worse, it’s also bereft of any

sign that he has weighed what these memos, if leaked, could do to the Justice Department’s

own investigation’’); ‘‘Give Reno Some Room,’’ St. Petersburg Times (Aug. 6, 1998) (‘‘What is

clear is that Burton should wipe away the froth around his mouth and stop demanding information that he has no right to’’); ‘‘Buck Stops with Reno,’’ Los Angeles Times (Aug. 6, 1998) (‘‘This

is a fishing expedition by Chairman Dan Burton . . . The precedent Rep. Burton seeks could

make the executive branch a ground for all sorts of witch hunts by those who second-guess motives and judgments of decision-makers’’); ‘‘Mr. Burton and Ms. Reno,’’ Washington Post (Aug.

7, 1998) (‘‘The House Government Reform and Oversight Committee’s vote yesterday to cite the

attorney general in contempt of Congress is a dangerous political interference in a law enforcement decision that threatens to undermine the Justice Department’s campaign finance investigation . . . Mr. Burton’s approach to the matter has been nothing less than thuggish’’).

tion. In effect, he has given you only two choices: (1) become the first Attorney General in history to be held in

contempt of Congress because you cannot turn over the La

Bella memorandum or (2) appoint the Independent Counsel that he demands.130

The chairman’s spokesman, Will Dwyer, confirmed Mr. Burton’s

intent. As reported in the Washington Post on the following day,

Mr. Dwyer conceded that ‘‘[t]he only one real objective here is getting an independent counsel, as these documents advise her to do.

. . . If she follows that advice, there will be no need for the documents.’’ 131

Attorney General Reno properly resisted these efforts at intimidation. As she explained on August 4: ‘‘Chairman Burton told me

Friday that if I triggered the appointment of an independent counsel, I would not have to produce the memos. If I give in to that suggestion, then I risk Congress turning all decisions to prosecute into

a political football.’’ 132

By a party-line vote (24 to 19), the committee voted on August

6, 1998, to recommend to the House of Representatives that the Attorney General be cited for contempt of Congress. The majority’s

actions on this matter were the subject of widespread criticism.133

C. SUBPOENAS FOR GRAND JURY MATERIALS

Another example of Mr. Burton’s inappropriate intrusion into

prosecutorial matters is the majority’s efforts to obtain grand jury

subpoenas issued by the Justice Department during its campaign

finance investigation. To obtain these grand jury materials, the

majority issued a subpoena on March 22, 2000, to the Justice Department seeking the grand jury subpoenas issued by the Campaign Finance Task Force to the Executive Office of the President

(EOP), the White House, the DNC, and the RNC. The majority also

issued a subpoena on March 16, 2000, to the EOP asking for grand

jury subpoenas provided or served by the Campaign Finance Task

Force from September 1, 1996, to the present.

The Justice Department responded to the majority’s subpoena on

April 24, stating that it was unable to provide copies of grand jury

subpoenas because ‘‘[d]isclosure of information as to any subpoena

is prohibited by Rule 6(e) of the Federal Rules of Criminal ProceVerDate 11-MAY-2000 02:41 Dec 14, 2000 Jkt 068229 PO 00000 Frm 01400 Fmt 6604 Sfmt 6602 E:\HR\OC\HR1027V2.XXX pfrm06 PsN: HR1027V2
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134Letter from Assistant Attorney General Robert Raben to Representative Dan Burton (Apr.

24, 2000). 135Douglas Oil Company of California v. Petrol Stops Northwest, 441 U.S. 211, 218–19 (1979)

(citations omitted) (emphasis added). The court further noted that ‘‘[o]ne of the several interests

promoted by grand jury secrecy is the protection of the innocent accused from disclosure of the

accusations made against him before the grand jury.’’ 441 U.S. at 218 (citation omitted). 136Letter from Assistant Attorney General Robert Raben to Representative Dan Burton (Sept.

25, 2000) (attached as exhibit 16).

dure,’’ which protects the secrecy of grand jury proceedings.134 Despite the Department’s concerns, on August 3, 2000, the majority

proceeded to issue subpoenas to the State Department, the Commerce Department, and the DNC asking for grand jury subpoenas

issued by the Justice Department’s Campaign Finance Task Force.

The majority also did not withdraw the subpoena it had issued in

March to the EOP.

These attempts to subpoena grand jury subpoenas were improper. They did not recognize longstanding rules that protect the

secrecy of grand jury proceedings. According to the U.S. Supreme

Court:

We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy

of grand jury proceedings. In particular, we have noted

several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if

preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify

would be aware of that testimony. Moreover, witnesses

who appeared before the grand jury would be less likely to

testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the

risk that those about to be indicted would flee, or would

try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public

ridicule.135

The Justice Department appropriately responded to these subpoenas by expressing its ‘‘serious concern about the Committee’s recent practice of subpoenaing public and private sector entities to

produce copies of grand jury subpoenas.’’ According to the Department:

the practice of ‘‘subpoenaing subpoenas’’ or otherwise using

the congressional subpoena power to shadow the Department’s ongoing investigations could undermine effective

law enforcement by creating a substantial risk that sensitive and confidential investigative information will be

disclosed to targets of investigations and to other persons

who might use the information to thwart our law enforcement efforts.136

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137The majority report also states, ‘‘As of October 10, 2000, the DNC continues to refuse to

comply’’ with the committee’s subpoena for grand jury subpoenas. Majority report at v. The majority report fails to recognize, however, the DNC’s substantial efforts to accommodate the committee. On Oct. 10, 2000, attorneys for the DNC met with committee staff in an attempt to

reach an agreement that balanced the committee’s oversight interests and the DNC’s interest

in protecting the privacy of individuals who had either appeared before or had been investigated

by the grand jury. The DNC first offered to make all grand jury subpoenas immediately available to committee staff for inspection, provided that the DNC could redact the names of those

who had not been publicly identified with the Campaign Financing Task Force’s criminal investigation. In a further attempt to satisfy the majority’s concerns, the DNC’s attorneys also made

another preliminary offer, subject to approval by the DNC. The DNC’s attorneys proposed that

the majority prepare a list of individuals relevant to the committee’s investigation. The DNC

attorneys would then compare that list to the grand jury subpoenas and not redact any name

that matched, regardless of whether that individual had been publicly identified with the Justice Department’s criminal investigation. The majority rejected both offers of accommodation. 138Majority report at i. 139 ‘‘Soap Opera,’’ Roll Call (Apr. 27, 1998). 140 ‘‘A House Investigation Travesty,’’ New York Times (Apr. 12, 1997). 141 ‘‘Reno Roast Embarrasses Nobody but Congress,’’ Los Angeles Times (Dec. 10, 1997). 142 ‘‘The Witch Hunt in the House,’’ Albert R. Hunt, Wall Street Journal (Apr. 10, 1997). 143 ‘‘The Dan Burton Problem,’’ New York Times (May 8, 1998). Other editorials include: ‘‘Mr.

Burton Should Step Aside,’’ Washington Post (Mar. 20, 1997); ‘‘Dan Burton Is a Loose Cannon,’’

Hartford Courant (May 5, 1998); ‘‘Burton Bumbles in Bad Faith,’’ San Antonio Express-News

(May 6, 1998); and ‘‘Mistakes Were Made: Burton Inquiry Can’t Reach a Credible Conclusion,’’

Sacramento Bee (May 11, 1998).

Unfortunately, the majority has failed to withdraw its subpoenas

or otherwise respond to the Department’s concerns.137

III. THE MAJORITY’S INVESTIGATION HAS BEEN PARTISAN

During the course of the investigation, Mr. Burton has repeatedly alleged that Attorney General Reno’s actions are marked by

‘‘partisan zeal.’’ The report makes the same findings, stating that

‘‘it is hard to escape the conclusion that the Attorney General has

acted politically to benefit the President, the Vice President, and

her own political party.’’ 138

As described above, these allegations are unfounded. They are

also ironic. The partisanship in this investigation belongs to the

committee not the Justice Department. For 4 years, Mr. Burton

has conducted a blatantly partisan investigation. In his campaign

finance investigation, Mr. Burton has issued over 900 subpoenas,

99 percent of which involved allegations of Democratic abuses. He

has also issued over 500 formal requests for documents or information relating to the investigation, over 98 percent of which also involved allegations of Democratic abuses. The committee has deposed or called to testify at hearings over 200 witnesses in connection with campaign fundraising allegations, 99 percent of whom

were called to discuss alleged Democratic abuses.

Editorial boards, columnists, and commentators across the country have recognized the partisan nature of the committee’s investigation. They have called the investigation a ‘‘soap opera,’’ 139 a

‘‘House investigation travesty,’’ 140 a ‘‘sorry partisan spectacle,’’ 141

and a ‘‘witch hunt in the House.’’ 142 In a May 1998 editorial entitled, ‘‘The Dan Burton Problem,’’ the New York Times stated: ‘‘By

now even Representative Dan Burton ought to recognize that he

has become an impediment to a serious investigation of the 1996

campaign finance scandals. . . . If the House inquiry is to be responsible, someone else on Mr. Burton’s committee should run

it.’’ 143 Norman Ornstein, a congressional expert with the American

Enterprise Institute, stated, ‘‘[F]rom day one, Dan Burton did almost everything he could to destroy any chance that this would be

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144 ‘‘Another Bump In Burton Panel’s Road,’’ Washington Post (May 13, 1998). 145See House Committee on Government Reform, hearing on ‘‘White House E-mails: Mismanagement of Subpoenaed Record,’’ 221–28 (May 3, 2000) (stenographic record). 146 Id. at 228. 147 Id. at 225. 148 Id. at 226. 149 Id. at 230. 150Letter from Representative Dan Burton to Representative Henry Waxman (May 11, 2000)

(attached as exhibit 17). 151 Id. Mr. Burton stated several reasons for changing his commitment, none of which withstands scrutiny. For example, Mr. Burton claimed that Mr. Waxman’s request for interview

summaries relating to Mr. DeLay was not proper because at the time of the request Mr. Waxman ‘‘failed to disclose’’ that the Democratic Congressional Campaign Committee (DCCC) was

filing a lawsuit against Mr. DeLay. Mr. Burton suggested that Mr. Waxman’s request had been

‘‘part of a larger, coordinated effort driven by the DCCC to pursue politically motivated attacks

against the Majority Whip.’’ This charge was categorically untrue. Neither Mr. Waxman nor

Continued

seen as a bipartisan effort or an attempt to build a factual

basis.’’ 144

In particular, the majority’s oversight of the Justice Department’s campaign finance investigation has been marked by partisanship. While the Justice Department’s investigation is examining allegations relating to both Republicans and Democrats, the

majority has focused on obtaining information relating only to the

Justice Department’s investigation of Democratic abuses.

On April 11, 2000, the majority wrote the Justice Department requesting dozens of interview summaries (known as FBI ‘‘302s’’) relating to Democratic allegations. At a public committee meeting on

May 3, 2000, Mr. Waxman requested that Mr. Burton also ask the

Justice Department to produce to the committee interview summaries relating to two of the most serious allegations of Republican

fundraising improprieties: (1) potential violations involving former

Republican National Committee chair Haley Barbour; and (2) potential violations involving Majority Whip Tom DeLay. The request

reflected an attempt by Mr. Waxman to bring some balance to the

committee’s investigation.

At the May 3 hearing, with the vast majority of committee members present, Mr. Burton agreed to subpoena the Justice Department for these materials.145 Mr. Burton stated, ‘‘The subpoena in

detail will be issued.’’ 146 Specifically, he said that the subpoena

would be for the interview summaries that the minority requested

as well as the documents and interview requests of the majority,

noting, ‘‘That way, everything will be in one subpoena.’’ 147 He further said that the subpoena would specify that ‘‘all the documents

be given jointly to both the majority and minority staff simultaneously.’’ 148 In response to a question as to whether all the materials subpoenaed had to be produced at once, he said: ‘‘It was my

understanding that there might be a rolling production of these

things,’’ but that the materials would be ‘‘given in a timely fashion

and in a fair and equitable way.’’ 149

However, one week later, Representative Burton wrote Representative Waxman and reneged on this commitment.150 He said

that he would not issue a subpoena for interview summaries involving Mr. DeLay. He further stated that, with respect to interview summaries concerning Mr. Barbour, he would not issue a subpoena until ‘‘the Attorney General has complied with all currently

outstanding subpoenas from the Committee.’’ 151 Mr. Burton never

issued the subpoena he promised on May 3, 2000.

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anyone on his staff involved with the subpoena request had knowledge of the DCCC lawsuit

until after the May 3 hearing in which Mr. Waxman made the request. Mr. Burton made this

charge without asking either Mr. Waxman or his staff about the matter. See letter from Representative Henry Waxman to Representative Dan Burton (May 12, 2000) (attached as exhibit

18).

Mr. Burton’s May 11 letter also stated that with respect to the interview summaries concerning Mr. Barbour, ‘‘I agreed to issue a subpoena for the documents you requested, as long

as other Justice Department materials already under subpoena are first provided.’’ This statement mischaracterized Mr. Burton’s May 3 commitment, in which he agreed to pursue both the

majority and minority requests ‘‘simultaneously.’’

In his May 12 letter responding to Mr. Burton, Mr. Waxman noted that Mr. Burton had several options regarding how to proceed with his May 3 commitment:

First, you could—and should—have honored your commitment and issued the appropriate subpoena.

Second, if you were suspicious of whether there was a connection between the DCCC

lawsuit and my request for 302s, you could have asked me personally whether I had

been aware of the lawsuit when I made the request or was coordinating with the DCCC

on this matter . . . .

Another alternative would have been for you to ask your staff to contact my staff to

investigate and discuss your concerns relating to issuing the subpoena. . . .

Alternatively, if you were intent on breaking your commitment regardless of the facts,

you could have at least done so in a forthright manner, acknowledging that you had

made an agreement you would no longer honor.

Instead, you chose the worst option possible. Without bothering to consult with me,

your May 11 letter reneges on your commitment on the basis of untrue allegations that

you did not investigate.

Letter from Representative Henry Waxman to Representative Dan Burton (May 12, 2000). 152Subpoena duces tecum from Committee on Government Reform to Democratic National

Committee (Aug. 3, 2000). 153 U.S. General Accounting Office, ‘‘Campaign Finance Task Force: Problems and Disagreements Initially Hampered Justice’s Investigation’’ (May 2000) (GAO/GGD–00–101BR). 154See id. 155Testimony of FBI Director Louis Freeh, House Committee on Government Reform, hearings on ‘‘The Current Implementation of the Independent Counsel Act,’’ 105th Cong., 1st sess.,

1152 (Dec. 9–10, 1997) (H. Rept. 105–89). 156Testimony of FBI Director Louis Freeh, House Committee on Government Reform, hearings on ‘‘The Current Implementation of the Independent Counsel Act,’’ 105th Cong., 1st sess.,

1129 (Dec. 9–10, 1997) (H. Rept. 105–89). 157Statement of Charles La Bella (May 3, 1998) (attached as exhibit 19).

Unfortunately, this partisan conduct has continued. For example,

the majority recently subpoenaed the DNC for document requests,

subpoenas, and interview requests the DNC received from the Justice Department,152 but has failed to subpoena the RNC for similar

Justice Department requests to the RNC.

IV. ACCOMPLISHMENTS OF THE CAMPAIGN FINANCE TASK FORCE

The Campaign Finance Task Force of the Department of Justice

was launched in December 1996. Contrary to the majority’s assertions, the Task Force has been effective.

At its height, the Task Force was staffed by 126 people, including

24 attorneys, 67 agents, and 35 support staff.153 The Justice Department and the FBI estimated that they spent over $31 million

on the Task Force through fiscal year 1999 alone.154 Mr. Freeh testified that he believed that he had all of the necessary resources

to conduct the investigation.155 Mr. Freeh also testified that ‘‘the

FBI is not being impeded in any way in conducting our investigation’’ and that the Task Force’s ‘‘marching orders are to go wherever the evidence leads them.’’ 156 Further, Mr. La Bella said that

the Attorney General and the Deputy Attorney General ‘‘have told

me to pursue the evidence wherever it leads. That is what I have

done and what I expect the Task Force to continue to do.’’ 157

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158 ‘‘Thai Businesswomen Agree to Plead Guilty to Campaign Financing Charges,’’ U.S. Department of Justice (June 21, 2000) (attached as exhibit 20). 159See id.

The Task Force has achieved important successes. It has prosecuted 25 people.158 So far 19 individuals and 1 corporation have

been convicted.159

At bottom, the majority’s complaints about Attorney General

Janet Reno are based on her failure to initiate legal actions against

the President and the Vice President. But her role is not to ‘‘get’’

the President or the Vice President. The Attorney General’s responsibility is to follow the evidence where it leads and to apply the law

evenhandedly. The record before the Committee indicates that she

has fulfilled her responsibility creditably.

HON. HENRY A. WAXMAN.

HON. TOM LANTOS.

HON. MAJOR R. OWENS.

HON. EDOLPHUS TOWNS.

HON. PAUL E. KANJORSKI.

HON. CAROLYN B. MALONEY.

HON. ELEANOR HOLMES NORTON.

HON. CHAKA FATTAH.

HON. ELIJAH E. CUMMINGS.

HON. DENNIS J. KUCINICH.

HON. ROD R. BLAGOJEVICH.

HON. DANNY K. DAVIS.

HON. JOHN F. TIERNEY.

HON. JIM TURNER.

HON. HAROLD E. FORD, JR.

HON. JANICE D. SCHAKOWSKY.

[The exhibits referred to follow:]

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Æ