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75–237 2001

S. HRG. 106–1072

THE 1996 CAMPAIGN FINANCE INVESTIGATIONS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JUNE 27, 2000

Serial No. J–106–93

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 27

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont ........................ 2

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 8

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 15

Torricelli, Hon. Robert G., a U.S. Senator from the State of New Jersey .......... 10

WITNESS

Reno, Hon. Janet, Attorney General, U.S. Department of Justice, Washington,

DC .......................................................................................................................... 16

SUBMISSIONS FOR THE RECORD

Reno, Hon. Janet, Attorney General, U.S. Department of Justice, Washington,

DC:

Notification to the Court of Results of Preliminary Investigation and

Order authorizing disclosure, filed December 2, 1997 ............................... 33

Notification to the Court of Results of Preliminary Investigation and

Order authorizing disclosure, filed November 24, 1998 ............................ 63

Parkinson, Larry, memorandum to Director Freeh, December 4, 1998 .............. 95

(1)

THE 1996 CAMPAIGN FINANCE

INVESTIGATIONS

TUESDAY, JUNE 27, 2000

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The committee met, pursuant to notice, at 2:06 p.m., in room

SH–216, Hart Senate Office Building, Hon. Orrin G. Hatch presiding.

Also present: Senators Specter, Leahy, Grassley, Thurmond,

Feingold, Feinstein, Kyl, Torricelli, Schumer, Sessions, and Smith.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH

The CHAIRMAN. General, if you could raise your right hand. Do

you solemnly swear to tell the truth, the whole truth, and nothing

but the truth, so help you God?

Attorney General RENO. I do.

The CHAIRMAN. Thank you.

I am pleased to convene this hearing of the Judiciary Committee

to continue its oversight of the Department of Justice.

I will shortly turn to Senator Specter who has been tasked by the

committee to head up this effort. I have to commend Senator Specter for his hard work and diligence in pursuing this oversight

project, often in the face of resistance from the administration and

the Justice Department, and I am glad to have been able to facilitate his efforts to obtain the documents and information necessary

to complete the work of this committee.

Finally, I would also like to welcome our Attorney General and

thank her for her attendance here today.

The campaign finance abuses of the 1996 Presidential election

were a low watermark in our political history. Public confidence in

our institutions and system of justice has been severely undermined. Vigorous and timely enforcement of our election laws would

have gone a long way towards restoring the public’s faith. Unfortunately, the Justice Department, through its many stops and starts,

has failed to accomplish this goal, and we now find ourselves on

the threshold of a new election with many old questions that remain unanswered.

I have made no secret of my strongly held view that an independent counsel for campaign finance-related matters should have

been appointed long ago. The committee was the first to formally

request the appointment of an independent counsel to investigate

these matters. The work of this committee revealed that many othVerDate 11-MAY-2000 22:37 Oct 05, 2001 Jkt 075237 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 E:\HR\OC\C237.XXX pfrm07 PsN: C237
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ers inside the Justice Department felt exactly the same way. FBI

Director Freeh, Charles La Bella, Robert Litt, and now the current

head of the Campaign Task Force, Robert Conrad, have all called

for an investigation of one aspect of this matter or another by

someone outside the Justice Department.

The reasons in my view are clear. When investigating allegations

against the President and Vice President, the Attorney General is

inherently conflicted, and any decision she may render in these

matters will not inspire the public’s confidence. This is particularly

true of any decision not to prosecute.

While I am sure we will hear much commentary today about the

provisions of the now-expired independent counsel law, the Ethics

in Government Act, the provisions of which the Attorney General

in my opinion incorrectly argued, unduly restricted her decisionmaking process. Those provisions no longer exist.

The appointment of an outside special counsel is now governed

solely by Justice Department regulations, not a statute. The Attorney General possesses the authority to appoint an outside prosecutor under her own regulations when, as here, it is in the public

interest.

There are many legitimate questions concerning the process at

the Department that resulted in the Attorney General’s refusal to

appoint an independent counsel for campaign finance and the merits of those decisions. The committee will pursue those during today’s hearing. There is also, however, the ongoing question of

whether the Attorney General will use her authority to appoint an

outside counsel under Justice Department regulations. The Attorney General certainly has the ability to do so.

I respect the Attorney General’s desire to make these decisions

free from outside pressure, from members of Congress, the media,

and others. That is understandable. I also agree with her public

comments that such a decision should be the result of a thorough

and objective evaluation of the facts and the law. It seems to me,

however, that the ‘‘pressure’’ to appoint an outside counsel is coming from inside the Justice Department, from people she has chosen at various times to advise her and to head the Campaign Finance Task Force. The Attorney General and the Justice Department have been examining these facts for 4 years now which would

appear to be ample time to be thorough, and it is now time to make

a decision and to be held accountable for it.

With that, we will turn to Senator Leahy.

STATEMENT OF HON. PATRICK LEAHY, A U.S. SENATOR FROM

THE STATE OF VERMONT

Senator LEAHY. Thank you, Mr. Chairman.

Attorney General Reno, thank you for your cooperation and your

agreement to be here today. As you probably know, this hearing

will take on the air more of an inquisition than an oversight hearing, but I think you can handle that.

Before the inquisition begins, I want to commend you for making

a real difference in America. Especially, since this may be the last

time that you will be appearing before this committee in the role

as Attorney General. You have helped stop the steady increase in

the crime rate. You have worked aggressively with Federal, State,

3

and local enforcement officers to keep violence and property crime

rates down.

Under your leadership and the programs established by the Violent Crime Control and Law Enforcement Act of 1994, the Nation’s

serious crime rate has declined for 8 straight years. Murder rates

have fallen to their lowest level in three decades. Since 1994, violent crimes by juveniles and the juvenile arrest rate for serious

crimes have also declined. According to the FBI’s latest crime statistics, there has been a 7-percent decline in reported serious violence and property crime from 1998 totals. All of these, certainly

in my adult life, I have never seen the crime rates come down as

much as they have during the time you have been Attorney General, but you have not stopped on that. You have worked to keep

our schools and streets safe, and I wish the Congress would cooperate with you more.

In my longer statement, which I will put in the record, we find

such things that we have not done, like the Juvenile Justice Conference stalled, frankly, by the gun lobby; hate crimes, Bulletproof

Vest Partnership Act, Innocence Protection Act, domestic violence,

and Justice Department nominations.

Let’s talk about the independent counsel appointments, your determination not to call for the appointment of an independent counsel in connection with campaign finance, but your determination to

pursue those matters through a Justice Department task force.

That is a task force that you can look to as one that has had a

great deal of success. It has obtained more than 20 convictions and

pleas, actually a lot better than what we saw with the Special

Counsel, and I am thinking of Kenneth Starr who spent over $50

million—$55.0 million—had dozens, even hundreds of FBI agents

available to him over the period of time that he existed.

The bottom line on your independent counsel decisions in 1998

and 1999, where you determined rather than using the Justice Department, but rather to use independent counsel, is that after 82

days of hearings—82 days of hearings—and investigation after investigation after investigation before a series of Senate and House

committees, and all the critics and all those out to undermine your

authority, no one has been able to question your integrity and your

independence and your decisionmaking. Not FBI Director Freeh,

not Charles La Bella, nor really anybody on this committee has

said they believe you sacrificed your integrity and your independent judgment to some corrupt influence.

I should also note that nobody, including the chairman of the

Specter investigations, Senator Specter, has said that the Vice

President has done anything wrong.

Now, I know you are going to be asked about decisions to appoint

and not to appoint independent counsel. One focus I have been told

will be on informal comments poorly made in 1996 by Mr. Radek,

the chief of the Public Integrity Section, to FBI officials relating to

whether he felt pressure because the Attorney General had not yet

been reappointed to a second term.

Mr. Radek, who met frequently with these officials, does not remember any such conversation on this topic, acknowledges that he

may have felt pressure to do a good job. Mr. Radek has denied the

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claims of the FBI that the pressure he felt was in any way related

to the Attorney General’s job status.

I understand that one focus of this hearing will be to explore this

dispute further, and I simply do not understand how any of this,

if it happened at all, bears on the Attorney General’s independent

counsel decision.

Those of us who appeared before this committee have repeatedly

attested to the integrity of Attorney General Janet Reno. Those

who talked to us, who testified before us, have repeatedly assured

all of us that all decisions made by her were on the basis of her

honest assessment.

Let me just tell you a couple of the things. Charles La Bella, just

this last May, told the Judiciary Subcommittee on Administrative

Oversight in the Courts, as part of this investigation, that his perception was that the Attorney General made no decisions to protect

anyone. FBI Director Louis Freeh told the House Government Reform Committee, ‘‘I do not believe for one moment that any of her

decisions, but particularly her decisions in this matter, have been

motivated by anything other than the facts and the law, which she

is obligated to follow.’’ Robert Litt, just last week, said, ‘‘The Department’s deliberations in this matter have now been made public.

The thousands of pages of memoranda analyzing this issue, which

have been released to the public, make it abundantly clear that all

of the Attorney General’s decisions were made solely on the merits

after full and, indeed, exhaustive consideration that the facts show

and legal issues involved and without any political influence at all.’’ Larry Parkinson responded that he did not have any doubt about

Attorney General Reno’s integrity. This goes on and on and on.

I have been concerned about some of the oversight here. I did

when the committee precipitously sent staff to Texas, barring Senator Danforth to complain that we are interfering with his investigation. I have been concerned about sending subpoenas to line attorneys who now have to be asked questions over and over again

whether they are simply raising the points in a hearing or in a decision, whether they are devil’s-advocating something, and will they

ever do that again.

I think this is wrong. I think we are seeing now what is happening when we have cases underway; for example, Wen Ho Lee,

where the committee has now received a formal request from Mr.

Lee’s defense attorney for the Republican report in this matter and

what has been generated by it.

We have heard that sitting Federal judges on pending criminal

matters had been questioned about what they are going to do by

members of this committee.

I am hoping that we are not going to make the same mistake we

saw when we had Kenneth Starr and a runaway operation in the

House of Representatives that did not show very well on the whole

Congress.

Mr. Chairman, I will put my whole statement in the record, but

based on your decision to turn this from the full committee to the

subcommittee, to the Specter investigation subcommittee, I will

also then yield my place to the Senator from New Jersey, Mr.

Torricelli.

[The prepared statement of Senator Leahy follows:]

5

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY

Attorney General Reno, thank you for your cooperation and your agreement to be

here today. This session will more resemble an inquisition than an oversight hearing, but I expect that you are steeled for that eventuality. Before our Republican

members begin the inquisition, I wanted to commend you for making a real difference in America, especially because this may be the last time you appear before

this committee in your role as Attorney General. You have not only helped stop the

steady increases in the crime rate but have worked aggressively with our Federal,

State and local law enforcement officers to keep the violent and property crime rates

in this country going down.

Under your leadership, and the programs established by the Violent Crime Control and Law enforcement Act of 1994, the nation’s serious crime rate has declined

for eight straight years. Murder rates have fallen to their lowest levels in three decades. Since 1994, violent crimes by juveniles and the juvenile arrest rates for serious crimes have also declined. According to the FBI’s latest crime statistics, released

on May 7, 2000, in just the last year, there has been a seven percent decline in reported serious violent and property crime from 1998 totals. Both murder and robbery registered eight percent drops, while forcible rape and aggravated assault figures each declined by seven percent from 1998. All Americans owe you an enormous

thanks for a job well done.

Yet you have not simply rested on your laurels. I, for one, appreciate your tireless

efforts to press for additional change to keep our schools and streets safe. This Congress has left much unfinished business that deserves and requires our attention.

Juvenile Justice Conference.—Last year when you joined us for the oversight hearing of the Department we were all grieving for victims of school violence in Columbine. With your help, the Senate moved swiftly to pass the Hatch-Leahy juvenile

crime bill with a strong bipartisan 73-vote majority, a bill that included a number

of common sense measures on gun safety and school safety. Unfortunately, despite

our best efforts, your efforts and those of the President, the Republican majority will

not convene the conference on that legislation to send a final bill to the President

that can make a difference in the lives of Americans. If the roles were reversed and

you were holding an oversight hearing on our performance, you certainly would

have much to criticize.

Hate Crimes.—Last year, you joined us just as the Committee was postponing

hearings on hate crimes. Unfortunately, this Committee never considered that legislation. Still, last Tuesday a strong bipartisan majority of the Senate, indeed a 57-

vote majority that included a bipartisan majority from the members of this Committee, adopted the Kennedy-Smith amendment incorporating the Local Law Enforcement Enhancement Act of 2000 into legislation before the Senate. Senate adoption of this hate crimes legislation is a significant step forward. We thank you for

your support of that important effort.

Bulletproof Vest Partnership Grant Act.—I hope the Republican zeal for investigating, instead of legislating, does not further delay the Committee’s consideration

of the bipartisan Bulletproof Vest Partnership Grant Act of 2000, which would reauthorize and double the funding for this highly successful Department of Justice

grant program to provide our nation’s law enforcement officers with life-saving body

armor. The Department of Justice has already provided more than 90,000 bulletproof vests to law enforcement officers across the country under the 1998 law sponsored by Senator Campbell and me. I appreciate the Attorney General’s support for

the original Campbell-Leahy law and our reauthorization legislation.

Innocence Protection Act.—I thank you for your recent comments on the importance of ensuring competent counsel for those charged in cases that can lead to the

imposition of the death penalty. I agree. That is why perhaps the most important

provisions of he Leahy-Smith-LaHood-Delahunt Innocence Protection Act are those

seeking to assist the States in establishing standards for competent counsel and

helping provide the resources needed to ensure a fair trial.

Domestic Violence.—I also commend you for helping to stem the tide of domestic

violence and for moving aggressively to help the victims of this abuse and to improve rights and services for crime victims in general. We are hopeful this week that

the Committee, at long last, will report the reauthorization of the Violence Against

Women Act. I would also like to see us report additional crime victims legislation

without delay.

Justice Department Nominations.—I regret that the majority of this Committee

and the Senate have stalled the many nominations for senior positions at the Justice Department, within law enforcement, and for the federal courts. That Dan

Marcus, Randy Moss, David Ogden, and Bill Lann Lee have not been confirmed as

the Associate Attorney General, Assistant Attorney General for the Office of Legal

6

Counsel, Assistant Attorney General for the Civil Division and Assistant Attorney

General for the Civil Rights division is regrettable and inexcusable.

Independent Counsel Appointments.—I wanted to make a few pertinent observations, about your determinations not to call for the appointment of an independent

counsel in connection with campaign finance but to pursue those matters through

a Justice Department Task Force that has obtained more than 20 convictions and

pleas—more in fact than were obtained by Kenneth Starr with all the FBI agents and more than $50 million at his disposal over a period of 5 years.

The bottom line on your independent counsel decisions in 1998 and 1999 is that

after 82 days of hearings, and investigation after investigation before a series of

Senate and House Committees and with leaks and critics and all those out to undermine your authority, no one has been able to question your integrity and your independence in your decision-making. Not FBI Director Freeh not Charles La Bella, not

even Senator Specter has said that he believes that you sacrificed your integrity and

your independent judgment to some corrupt influence. for that matter I should also

note that Senator Specter has not said that the Vice President has done anything

wrong.

I understand that the Attorney General today will be asked about her decision

to appoint and not to appoint independent counsels. One focus, I have been told,

will be on informal comments purportedly made in 1996 by Mr. Radek, the Chief

of the Public Integrity Section, to FBI officials relating to whether he felt ‘‘pressure’’ because the Attorney General had not yet been reappointed to a second term. Mr.

Radek, who met frequently with these officials, does not remember any conversation

on this topic and acknowledges that he may have mentioned feeling pressure to do

a good job. Mr. Radek has denied the claims of the FBI that the pressure he felt

was in any way related to the Attorney General’s job status. I understand that one

focus of this hearing will be to explore this dispute further and I simply do not understand how any of this, if it happened at all, bears on this Attorney General’s independent counsel decisions.

All of those who have appeared before this Committee have repeatedly attested

to the integrity of Attorney General Janet Reno and have repeatedly assured all of

us that all decisions made by her were on the basis of her honest assessment of the

facts and not the result of politics. Everyone, including those people who disagreed

with her on some of the independent counsel decisions, has told us this. Let me remind everyone of what we have heard:

Charles La Bella: In his May 3, 1998, press release, Mr. La Bella said that ‘‘At

the end of the process, I was completely comfortable with [the Attorney General’s]

decision not to seek an independent counsel and with the process by which she

reached that decision.’’ In August 1998, he told the House Government Reform Committee that the integrity and the independence of the Attorney General were ‘‘beyond reproach.’’

Just this May, Mr. La Bella told the Judiciary Subcommittee on Administrative

Oversight and the Courts as part of this investigation that his perception was that

the Attorney General ‘‘made no decisions to protect anyone.’’

FBI Director Louis Freeh: In August 1998, Director Freeh told the House Government Reform Committee: ‘‘I do not believe for one moment that any of her decisions,

but particularly her decisions in this matter, have been motivated by anything other

than the facts and the law which she is obligated to follow.’’

Robert Litt: Just last week, in his statement to the Subcommittee, Robert Litt

said: ‘‘The Department’s deliberations in this matter have now been made public.

The thousands of pages of memoranda analyzing this issue which have been released to the public make it abundantly clear that all of the Attorney General’s decisions were made solely on the merits, after full—indeed exhaustive—consideration

of the factual and legal issues involved and without any political influences at all.

Larry Parkinson: In response to whether he had any doubt about Attorney General Reno’s integrity, FBI General Counsel Larry Parkinson responded: ‘‘No I do

not,’’ at the May 24, 2000 Subcommittee hearing on this issue.

The endless oversight on the topic of independent counsels has confirmed over and

over again that the process worked. Some may disagree with some of the ultimate

decisions, but that should not be the focus of oversight. Rather, the object of oversight should be to make sure that the process worked; that decisions were made on

the basis of facts; and that judgments were not influenced by politics. We know that

the process worked and that the Attorney General’s decisions were made in good

faith, relying on good prosecutorial judgment and after full consideration of all the

facts as well as of the conflicting opinions of many different advisors.

In the guise of ‘‘oversight,’’ this Committee has inappropriately politicized ongoing

investigations. There should be no mistake about it: I believe that oversight by the

Committee can be of great importance. That oversight must be conducted in a careVerDate 11-MAY-2000 22:37 Oct 05, 2001 Jkt 075237 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 E:\HR\OC\C237.XXX pfrm07 PsN: C237
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ful and considered manner. I have expressed my concerns about this hydra-headed

investigation on a number of occasions. I noted my concern when some on the Committee precipitously sent staff to Texas, prompting Special Counsel Danforth to complain about this Committee’s interference with his investigation into what happened

at the Branch Davidian compound in Waco.

I do not believe that line attorneys and line agents should be called to testify in

oversight matters unless there are some sort of exceptional circumstances—like internal corruption. I worry about the long-term effects that some of the actions taken

in these investigations may have. This Senate Judiciary Committee now issues subpoenas on a regular basis to hard-working and dedicated government employees.

This Committee has subpoenaed past and present line attorneys to talk about longago disagreements with supervisors—even though everyone recognizes that line attorneys are not the ultimate decision-makers. Members of the Committee have

launched personalized attacks on the credentials, integrity, capability and credibility

of experienced and dedicated prosecutors. I am extremely concerned that these tactics have harmed individuals, the Justice Department as an institution, and as a

result the American people.

The Committee has already heard from Wen Ho Lee’s defense lawyers and we are

now being drawn into that ongoing prosecution. I will not be surprised if other defense counsel, who have been monitoring Senator Specter’s hearings, use those hearings as a basis for defense motions to undercut other prosecutions by the Campaign

Finance Task Force of the Department of Justice. These are other risks of delving

prematurely into ongoing criminal matters.

I had been warning over the last several months that this Committee was crossing lines that it should not cross when it made subpoenaing of line attorneys and

agents its practice and began interfering in ongoing criminal investigations. Last

week and this represent the culmination of those errors as we now have a circumstance in which leaks and innuendo about an ongoing matter have led you to

being called before this Committee to be quizzed incessantly over open investigative

matters that you cannot appropriately discuss.

I know that you will resist political pressure from any source, even this Committee, when it comes to your exercise of your prosecutorial judgment. You and I

both recall that this Republican Senate has been trying to pressure you to appoint

a special counsel since 1997. This Republican Senate has been telling you how to

do your job and exercise your judgment, although it has not done a very good job

of fulfilling its own legislative responsibilities to the American people. Sometimes

I have wondered out loud whether it is because of their lack of an effective legislative agenda that this Republican Senate has chosen to investigate rather than legislate.

I had thought that I had seen it all. That is, until last week, when a Member

of this Committee held a press conference to discuss rumors about confidential matters that may or may not actually be occurring at the Department of Justice. This

Member stated on national television that his information did not come by way of

‘‘leaks’’ and that it had properly been disclosed to him in the course of the ‘‘official’’

oversight investigation. My request for a bipartisan briefing on this new supposedly

‘‘official’’ and non-leaked information has been summarily brushed aside. That is not

how we operated when he conducted a successful bipartisan investigation into the

events at Ruby Ridge. The partisan and political nature of these proceedings could

not be more transparent.

The American public should know of the political influence this Republican investigation is attempting to assert on PENDING matters at the Justice Department

because it is shocking.

Consider some of the things that have already occurred:

—a Republican Member of this Committee questioned a sitting federal judge

about a case (the Peter Lee case) in which the defendant has a motion to terminate

his probation—the interrogation by this Republican Member could well be viewed

as an improper attempt to influence the judge’s upcoming decision on this motion;

—Republican Members of this Committee have publicly urged prosecutors to take

certain positions at the upcoming sentencing of a defendant Maria Hsia in one of

the pending campaign finance cases. United States Senators should not be pressuring prosecutors to take certain positions—we rely on prosecutors to exercise their

considerable judgment in these matters. Of course, in this instance, since attorneys

to both parties to that case—the Justice Department and Ms. Hsia—were present

at that hearing, I am confident that each will take whatever steps necessary to protect the rights of both parties;

—Republican Members insisted on conducting ‘‘oversight’’ of the Wen Ho Lee matter even though they well knew an investigation was pending. Sure enough, this

Committee has now received formal requests from Mr. Lee’s defense attorney for the

8

Republican report on the matter and for other documents generated during the

course of this oversight. And this is just the beginning. It would not surprise me

if we received more requests for information from Lee’s attorney as that case proceeds;

—Republican staffers were sent to Waco to interview witnesses even before Senator Dunforth had an opportunity to do so. This resulted in angry letters from Senator Danforth warning this Committee not to interfere in his investigation.

We have seen it over and over again—attempts to influence pending matters because of politics. Republicans insinuate that the Attorney General’s decisions on

campaign finance matters were somehow influenced by politics—yet everyone, even

those who disagreed, have repeatedly and forcefully attested to her independence,

her integrity and her dedication to relying on the facts and the law and nothing

else. It is Republican Senators, not Attorney General Reno, who are trying to make

this political and insist on behaving as partisans. It was not too long ago that Kenneth Starr and the House Republicans foisted a partisan, expensive and debilitating

impeachment on the Senate and the country. The repeated misuse of the investigative and hearing apparatus of congressional committees for political campaigning by

other means is a troubling legacy of the Republican-led Congress that history will

not forgive. It is all the more troubling when the political investigative and hearing

machinery are injected into our justice system. It seems that some are intent on retreading that road for partisan political gain and have already forgotten the lessons

of the last several years.

The CHAIRMAN. We will now take the statements of the chairman

of the subcommittee and the ranking member, Senator Specter and

then Senator Torricelli, and then we will listen to the Attorney

General.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM

THE STATE OF PENNSYLVANIA

Senator SPECTER. Thank you, Mr. Chairman.

At the outset, let me observe that the Spanish Inquisition would

really marvel at this proceeding today under these Klieg lights, out

in the public, and a comment or two about Wen Ho Lee, where the

subcommittee has recommended specific legislation which has been

supported by the full committee, and to correct the misstatement

about judges on pending matters, Judge Hatter was questioned

about a closed matter, and the only judge at issue, but on to the

subject matter at hand, I join in welcoming you here, Attorney

General Reno.

The focus of what the subcommittee has been doing involves espionage cases, campaign finance, and Waco. With respect to the

issue of independent counsel, a good bit of our focus today will be

about your decisions not to appoint independent counsel, and by

way of setting the stage, with respect to your judgment not to have

independent counsel as to the Vice President.

As to the distinction between hard money and soft money and

whether the Vice President knew that he was soliciting hard

money, the established record shows that four witnesses testified

that hard money was discussed in the Vice President’s presence at

the famous November 21st meeting; that one of the witnesses, Leon

Panetta even went so far as to point out that, ‘‘The purpose of the

meeting was to make sure they knew what the hell was going on’’;

that included among those four witnesses was the Vice President’s

Chief of Staff David Strauss who had a written memorandum putting in writing the fact that there was a discussion about 35-percent hard money. Then there were the 13 memoranda from Harold

Ickes which went to the Vice President marked ‘‘hard money’’ and

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fully culled the in-box to leave out matters that the Vice President

wanted excluded, but always left in the items with respect to what

Mr. Ickes had sent, and then the Vice President’s own statement

that, the subject matter of the memorandums would have already

been discussed in his and the President’s presence. The Vice President further acknowledged that he, had been a candidate for 16

years and had a good understanding of the hard money.

At this point, it is important to put in perspective that the independent counsel law then in effect did not call for a conclusion that

the Vice President had committed the crime, but only that there

was specific and credible information, not evidence, just information, that there may—and I emphasize the word ‘‘may’’—have been

a violation of the Federal criminal laws.

Then there is the question of the coffees, 103 of them, some $26

million contributed, over $7 million within one month of the donors’

attendance. The Vice President was questioned about this matter

on April 18. Question: ‘‘In terms of a fundraising tool, what was the

purpose of the coffee?’’ Answer: ‘‘I don’t know.’’ Further down, page

53: ‘‘With respect to raising the $108 million, did you have discussions with anybody concerning the roles that coffee would play in

raising that type of money?’’ Answer: ‘‘Well, let me define the term

‘raising’ if I could.’’ Shades of what ‘‘is’’ is. At page 59, question:

‘‘You had indicated earlier that you may have attended one coffee.

What were you talking about?’’ Answer, a little farther down, page

60: ‘‘Although it was not my practice to go to any of these coffees,

there may have been one—one that I attended briefly perhaps because some of the invitees were known to me.’’

Then the attorney for the Vice President submitted a letter on

the subject, 2 days later, pointing out that according to the Vice

President’s schedule, he was designated to attend four White

House coffees and the Vice President hosted approximately 21 coffees in the Executive Office Building.

Very briefly on the issue of the Buddhist Temple, to put the matter in perspective, shortly before the scheduled fundraiser, the Vice

President’s scheduler sent him an e-mail message asking whether

he would be interested in adding another stop on the April 29

itinerary on top of the ‘‘two fundraisers in San Jose and L.A.’’ The

Vice President responded: If we already have booked the fundraisers, then we have to decline.

Again, Ickes’ memos were specific to the President about a

$250,000 take from a fundraiser, and a second one, a $325,000 take

from a fundraiser. It is in this context, Madam Attorney General

Reno, that we raise the question about the lower level of sufficiency

to establish with specific and credible information the level for calling for independent counsel.

Again, as I said last Thursday, in fairness to the Vice President,

it is a very different level of evidence than that required for a

criminal prosecution or for an indictment.

One of the issues in sharp focus today will be why on the first

four times the Vice President was questioned, he was never asked

about the Hsi Lai Buddhist Temple. It was only when the subcommittee issued subpoenas and had the La Bella and Freeh

memoranda with a return date of April 20 that the Department of

10

Justice finally got around to questioning the Vice President on

April 18.

So this is a brief focus, in addition to the decision that you made

not to appoint independent counsel, with President Clinton and the

Vice President on the soft money coordination issue, and advice of

counsel.

One final comment. The Vice President’s surrogates have raised

an issue that my disclosure of what Mr. Conrad recommended was

inappropriate. That disclosure was made in the course of the Committee’s business, but before making that disclosure, we called in

Robert Conrad and asked him the questions head on, and it was

only when he failed to disclose them did the disclosure come from

the subcommittee. That was done so that there could be public accountability.

There was a substantial period of time between the La Bella recommendation and the Freeh recommendation, the Freeh recommendation in November of 1997 and the La Bella recommendation in July 1998, until we finally got the specifics on their memoranda on April 20 in the year 2000. I do not take lightly the comments of the Vice President’s surrogates accusing me of McCarthylike tactics and being in cahoots with the Bush campaign. I have

not, and would not, discuss this matter with the Bush campaign.

As to the reference of McCarthy-like tactics, that is a matter which

I will take up personally with the Vice President to see if it was

authorized, and if so, I will take it up with him in some substantial

detail.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Specter.

We will turn to Senator Torricelli. Senator Thurmond has to

leave. He says he has a very short statement, and we will grant

him that time. Then we are going to go to the Attorney General.

STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR

FROM THE STATE OF NEW JERSEY

Senator TORRICELLI. Thank you, Mr. Chairman. Madam Attorney

General, good afternoon.

Madam Attorney General, I welcome you to the committee and

thank you very much for your attendance today, hoping that at

long last through your testimony and questions that we are about

to ask, we can bring what has been a matter that has proceeded

for literally years to some conclusion.

I think, Madam Attorney General, it would be fair to say, as I

begin my own statement, that not only do I hold no brief for the

Attorney General, but indeed, I have on occasions not hesitated to

criticize judgments of the Justice Department when I found reason

to disagree with them.

Indeed, in the matter of Wen Ho Lee and the prosecution of

Peter Lee, I have expressed my concerns, joined with the Republican majority in their investigations, and never hesitated to reach

a judgment on how I believe the matters should have been dealt

with differently, but it is inconceivable to me that either the Justice Department generally or Janet Reno specifically could be criticized on questions with regard to either her independence, which

11

raises issue of integrity, or her willingness to use the independent

counsel statute. The facts simply do not support either.

Indeed, the only area of criticism open to those who are raising

issues with regard to the independent counsel statute is that on occasion they simply do not agree with the final judgment. No Attorney General could be less vulnerable to attack on issues of independence. No Attorney General could be less vulnerable to attack

on issues of using the independent counsel statute or using outside

counsel when otherwise generally necessary.

On several different occasions, Janet Reno has appointed independent counsels to investigate the President of the United States,

for whom I assume she has both affection and loyalty, and fellow

members of the Cabinet. Not simply more than any other Attorney

General in the history of the United States, but more than her

predecessors combined, she has sat across a Cabinet table with colleagues and friends and appointed independent counsels, I assume,

at some personal discomfort because it was the right thing to do

and the facts justified it.

I do not even make this claim because I necessarily agree with

all those instances in which she appointed an independent counsel.

Indeed, I believe she has erred on the side of appointing them even

when not always justifiable. At enormous cost in human terms and

to the taxpayers, we have witnessed independent counsels being

named against former Agriculture Secretary Mike Espy, who was

prosecuted for accepting sports tickets, but who after 4 years and

a $17 million investigation was acquitted on all 30 counts.

Housing Secretary Cisneros charged with felonies related to his

relationship with a woman, plead guilty to a misdemeanor after a

multimillion-dollar investigation and paid a $10,000 fine.

The matter of Ken Starr, his judgment, his cost, his investigation

speaks for itself.

Yet, incredibly, incredulously, the Attorney General of the United

States now faces this Congress with the allegation that she has

hesitated to appoint an independent counsel on another matter.

Her independence, her integrity and her willingness to examine her

own administration are being brought into question.

The issue now before the committee appears to be centered on

whether when confronted with appointing an independent counsel

under the statute previously or now under internal Justice Department guidelines there was unanimity on her judgment. Indeed,

wouldn’t it have been extraordinary if upon soliciting advice from

all of her assistants, in Public Integrity, the Criminal Division, her

deputy, each of these people had reviewed all the facts, considered

the law, and reached the same judgment? If there is one thing that

characterizes the difference between Janet Reno’s judgment in

dealing with whether to appoint an independent counsel on the

campaign-related issues with the Vice President and the seven

other instances involving the President and members of the Cabinet, it is the breadth of advice that she sought, not simply from all

of her own senior advisors, but from the director of the FBI and

the leadership of the Campaign Finance Task Force.

Some members seem to react with extraordinary surprise that

there was a difference of judgment. The surprise, however, would

have been if they were all of the same mind and all came to the

12

same judgment, given the extensive number of people that were

consulted, indeed the unprecedented number of people that were

questioned.

Among those consulted was, perhaps one of the more senior officials of the Justice Department, Mr. Radek, a professional of no

particular partisan persuasion, 29 years with the Department of

Justice, 20 of those years with the Public Integrity Section. Mr.

Radek appeared before our committee. He concluded, and I quote,

‘‘There was no substantive basis to proceed under the clause of the

statute.’’ He further shared with the committee not that it was his

judgment nor that of a majority of his staff nor of an overwhelming

majority of his staff, but that it was the unanimous judgment of

career prosecutors in the Public Integrity Section that there was no

basis for using the mandatory provisions of the independent counsel statute with regard to Vice President Gore. He further added

to the committee that had there been an independent counsel and

we proceeded under the mandatory provisions of the law, there was

no evidence upon which to build a case with regard to Vice President Gore.

During the course of the Attorney General’s review of a preliminary inquiry of the facts, it must be assumed by those who think

that a misjudgment was made by the Attorney General in not appointing an independent counsel that she made her judgment without a complete review of the law or the facts as they apply to the

Vice President. The record is directly the opposite.

250 witnesses were interviewed, including the Vice President.

Thousands of documents were obtained from the White House, the

DNC, the Clinton-Gore campaign, and a variety of individuals who

received telephone calls from the Vice President. It was on this

basis that Mr. Radek and each and every one of the career prosecutors of the Justice Department advised the Attorney General that

she should not proceed and, if she proceeded, there was no case to

be made.

It is worth noting that Mr. Radek is the single individual in the

Department of Justice with the greatest experience in the application of the independent counsel statute, the most experienced in

law enforcement, the most experienced with the statute, and the

most experienced with campaign finance-related issues. Indeed, his

combined staff has a multitude of years of experience compared to

Mr. La Bella, Mr. Conrad, and Mr. Freeh on campaign-related

issues and issues relating to the statute.

Indeed, Mr. Radek testified before our committee that he believed that it was significant that his own staff had more experience specifically with the statute, and that the other individuals involved had little and in some cases none.

Now the statute has expired. In its place the Attorney General

has enacted regulations providing for an office of special counsel to

handle those cases that once would have been referred to an independent counsel. It is worth noting that the Attorney General was

not required to write these procedures, to establish special counsel

provision within Justice, but she did so. It was the right thing to

do, and now she has followed those procedures.

The question then turns to the individual instances that are

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gard to independent counsels. Before briefly examining the three

instances, I want simply to point out to my colleagues, that this is

not the first time that I have been in this hearing room on these

issues addressing these questions. As indeed three successive Campaign Finance Task Force heads have led inquiries, so too the Government Affairs Committee occupied months and thousands of

hours of review of some of these same issues.

Indeed, over the course of 3 years, the House and Senate ex- pended $11 million, questioned hundreds of people, only to have

their own efforts duplicated by the Justice Department and the FBI

itself, the same issues, the same law, the same facts, only to be assumed to the same equation. It was not for lack of effort or desire

or motivation that Mr. Thompson and the bipartisan members of

this committee could find no substantive basis to find violations of

the law by the President of the Vice President. We came to the

same conclusion as Mr. Radek and professional prosecutors within

the Justice Department.

Let me turn to each of these three instances. First, the visit to

the Buddhist Temple. It is alleged that the Vice President knew

that he was attending a fundraiser at a charitable non-profit institution, the Buddhist Temple, where violations of the law occurred.

The Government Affairs Committee examined this issue. No doubt,

the Justice Department has done so again.

We found the following. No tickets were sold. No campaign materials were displayed. No campaign table was set up for information,

solicitation, or acceptance of money. The Vice President made no

mention of fundraising in his speech, but spoke about religious tolerance and brotherhood.

The committee was further persuaded that the only paper the

Vice President actually received on that day in visiting the Buddhist Temple was his schedule. His schedule makes no mention of

a fundraiser, solicitation of funds, people raising funds, commitment to the campaign or involvement in the campaign. The only

paper before the Vice President of the United States was instructions that he was to extend brief remarks from the podium and

exit, take photos with 150 guests, pay homage in the shrine. This

is a fundraiser? This is leading the Vice President of the United

States to solicit funds? $11 million later, Mr. Chairman, this is

what our committee found.

With respect to the White House coffees, according to the popular

press it appears that the Campaign Finance Task Force was intrigued by the number of coffees that were held. The Vice President

in answering their questions relied upon the belief that the question was as to coffees held in the White House. The Vice President

seemed to have answered that question both honestly and accurately. Upon reflection, there are some who are now arguing that

the question did not differentiate between coffees held in the Old

Executive Office Building, of which there were a greater number,

and those held at the White House. This is the nature of a Federal

law enforcement inquiry? This question of whether or not we were

distinguishing between the appropriate buildings of the White

House complex and the numbers of coffees is the basis of a serious

allegation of perjury? On what basis could it be argued that the

Vice President was attempting to mislead someone.

14

The Justice Department knew how many coffees were held. The

popular press, the American people, and the Justice Department

knew where they were held, the numbers that were held, and who

was in attendance. The facts were not material, they were not new,

and they misled no one, nor did the Vice President clearly have the

intention to do so.

The third issue at hand is the solicitation of hard, as opposed to

soft, money. The allegation centers largely on a single meeting in

which 15 people were in attendance. They have all been interviewed by committees of the Congress, by the Justice Department,

and by the task force. There has been a great deal of attention paid

to the fact that two people—two—remember a mention of hard

money. At a later date after reviewing documentation, a third

raised the possibility. There were 15 people there.

Apparently, if the President and the Vice President of the United

States do not remember a discussion of hard money, they have

good company because neither did 12 other people. The entire

charge rests on the belief that the Vice President of the United

States reads every memorandum that reaches his desk, every word

that is ever said at a meeting, and nothing is ever to be forgotten.

That somehow these two individuals have extraordinary credibility

in their recall, but another 12 do not, including the President and

the Vice President, and this is alleged to be an offense which would

warrant the appointment of an independent counsel.

Madam Attorney General, the best conclusion to be reached on

how you have performed your responsibilities as Attorney General,

the integrity with which you have come to your position, the independence with which you have weighed your judgment, is that

somehow through all these years, you have managed to have everybody disagree with you on something, at some time, in some way.

Good for you. That is the way Attorneys General should be.

I am among those who have disagreed with you, but I cannot

argue that you did not err on the side of independence, that you

did not have the courage to look the President of the United States

in the eye, and Cabinet member who I know you have great affection for, and have served with over the years, and questioned them

when they were wrong and stood up for what needed to be done.

It is, Mr. Chairman, though we will endure this hearing today,

time to bring these long proceedings to a close.

A New York Times editorial on Sunday may have actually put

it in the best perspective. These issues now belong to the American

people. Vice President Gore may have made some mistakes of judgment. I do not believe he made mistakes of law. I commend those

questions now to the American voter. Vice President Gore, like all

Americans, deserves to be judged by the totality of his record and

his service. He has done some things he would like to change. He

has done a great deal that is good.

I hope, Mr. Chairman, after several years of reviewing the same

questions and the same facts, which always seem to come to the

same conclusion, this can finally come to an end. And I hope that

somehow, despite all the doubts and the cynicism, we can have

some confidence in professionals at the Justice Department who

have reviewed this for so many years and seem to overwhelmingly

agree with the Attorney General. Even those who disagreed with

15

the Attorney Genearl on the facts and would have decided differently have said they respect those in the Department who saw

it differently and do not question the Attorney General’s independence or integrity. They believe that justice was done. If Mr. Freeh,

Mr. La Bella, and Mr. Conrad can come to that judgment, so can

we.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Senator.

Senator Thurmond has asked for just a short statement, and

then we are going to turn to the Attorney General.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR

FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. I have an urgent appointment, and I thank

Senator Hatch for his kindness.

Mr. Chairman, our Nation is built upon a system of laws that the

Attorney General is duty bound to uphold. The issue of appointing

an independent counsel to investigate the 1996 Clinton-Gore campaign fundraising irregularities has tested our duty like nothing

else, and thus far, Ms. Reno has failed to meet her obligations in

this matter.

This committee has been calling on the Attorney General to appoint an outside counsel for over 3 years. We are not alone. The

Director of the FBI, a former judge, has repeatedly told her that

she has no other choice, and her hand-picked career prosecutor,

Mr. Charles La Bella, agreed. Even a top Justice Department official who has always been a strong defender of the administration,

Mr. Robert Litt, recommended an independent counsel for the Vice

President. It seems that about the only top advisor to the Attorney

General who always felt otherwise was Mr. Lee Radek, who even

admitted to the FBI back in 1996 that his office was under pressure about recommending an independent counsel because the Attorney General’s job might hang in the balance.

We learned last week that the current chief of the campaign finance investigation, Mr. Robert Conrad, who is also a career prosecutor, apparently has concluded that a special counsel is needed.

The Attorney General was reportedly angry about the disclosure of

Mr. Conrad’s recommendation and has opened an investigation.

However she has no one to blame but herself. If she had appointed

an independent counsel when she had a duty to do so under the

statute, this matter would have been over a long time ago, and the

Vice President may have been exonerated. In any event, as it

stands, a dark cloud hangs over the Vice President. Yet, again, we

have serious issues raised about the truthfulness of our top elected

officials in the current administration when they are questioned

under oath.

The cloud will remain until this matter is properly and fully investigated by someone outside the Department of Justice. By avoiding the inevitable, it is the Attorney General, not unnamed sources

in the Justice Department or this committee, who are doing a disservice to the Vice President. We must always work to maintain

the people’s confidence in the fairness and the impartiality of our

system of justice.

16

Today, the public has no confidence in the way the campaign finance investigation has been handled. The only way to remedy this

and to restore public trust is to appoint a special counsel.

So I encourage the Attorney General yet again to appoint a special counsel, but I have no confidence that she will. If she would

not do so when the plain words of the independent counsel law required it, it is wishful thinking to expect that she will exercise her

discretion to appoint one now. But we must continue to encourage

her to do what is right once and for all.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Thurmond.

Madam Attorney General, welcome to the committee. We turn

the time over to you.

STATEMENT OF HON. JANET RENO, ATTORNEY GENERAL, U.S.

DEPARTMENT OF JUSTICE, WASHINGTON, DC

Attorney General RENO. Good afternoon, Mr. Chairman and

members of the committee.

Since my first hearing before you on March 9th, 1993, we have

worked together in a bipartisan matters on many issues that affect

the American people in very significant ways. I am very proud and

very grateful for the opportunity to work with you, and I want to

thank you all for the thoughtfulness and the kindness that you

have shown me.

Mr. Chairman, I understand that you sometimes think I am

crazy when I tell you that I appreciate the oversight function, but

I have before this committee because it brings new issues to our

attention, and it sharpens our decision-making at the Department

of Justice. I moan and groan as I get ready for them, but I always

find them helpful.

In the course of these oversight functions and committees, we

have debated and disagreed, sometimes fiercely, on a number of

issues, and today, obviously, is no exception, but I think our Founding Fathers valued the spirit of spirited debate and thought it one

of the most important foundations of our Government.

I am going to take just a moment to reflect on something. One

of the most extraordinary experiences that I have had as Attorney

General is to welcome my colleagues, Ministers of Justice, Ministers of the Interior, law enforcement officials from the emerging

democracies to my conference room, to look at how they act almost

with stars in their eyes as they are commenced on a great new undertaking. To see some of them fail and some of the succeed makes

you realize how fragile democracy is and what a cherished institution it is and how we must not take it for granted.

This scene is the epitome of democracy. It represents the hallmarks of it, representative government, public accountability, and

the peaceful transfer of power. It is almost a miracle, but it is a

great testament to the strength and the wonder of the human spirit.

It is a miracle that we have a Constitution that had stood the

test of time in the advance of technology that our Founding Fathers never dreamed would be possible, but at the heart of that

document, essentially and required is the respect for individuals

and the different opinions we hold. Although I may disagree with

17

so many of you on so many occasions and agree with you completely on others, I respect you and I respect your opinion.

In this spirit, the Department has tried very hard to cooperate

with and facilitate the oversight process, thus following the longstanding executive branch policy and practice of seeking to accommodate congressional requests for information to the fullest extent

with the constitutional and statutory obligations of the executive

branch.

A Constitution also wisely assigns each branch of Government

distinct and limited roles. Among the most important functions of

the Justice Department as part of the executive branch is the faithful execution of the laws, including the vigorous but fair prosecution of criminals.

When there is conflict between the legislative and executive

branch, I want to—and I think our task as public servants is to

find solutions that respects our individual duties and permits both

branches to do their job responsibly.

One issue will come out today, amongst many others, that I

think I have got to address because I think it will require no comment on a number of occasions, and that is I do not think it proper

for me to comment on pending investigations and pending prosecutions. I think those matters should be handled thoughtfully and

professionally, not in headlines, but in courtrooms and in the processes of an investigation. I mean no disrespect whatsoever to the

committee when I tell you that I cannot comment. I just feel very

strongly that we must be careful in order to protect the investigation, protect leads, protect the reputation of people involved, lest

information disseminated impede our careful and professional process that we pursue.

I know that some of you have been concerned about the Department response, and if we have not done it as well as you would

like, I will keep trying harder in the time I have remaining. There

is always opportunity for improvement, but at the same time, people should be careful to reflect accurately on a situation.

First, we are required by law to review material for privacy,

grand jury secrecy, and other obligations. That takes time.

Second, we have competing demands from many Senators and

Members of the House who each express a very strong sense of urgency about his or her own request, all at the same time.

Third, the offices at the Department are poised to respond to

these requests, but they operate under statutory caps on personnel

and salaries, despite marked increases in requests on these offices

by the various committees of Congress. In addition, the same people who are responding to the document requests and requests for

information are also the people that are trying to move what you

and I would consider to be the agenda of the American people

alone.

Fourth, and most importantly, the Department has in my view

been very responsive. It has produced to this committee alone more

than 8,000 pages in May and June relating to the appointment of

independent counsels. We have produced or given access to tens of

thousands of documents on Peter Lee, Wen Ho Lee, Johnny Chung,

John Huang, Charlie Trie, and Maria Hsia, among others, over 800

18

pages on the Loral waiver issue and over a half-a-million pages on

Waco.

Last, and importantly, we must be careful not to confuse our inability to provide you with certain material as being unresponsive.

If I determine that a particular document’s dissemination will

interfere with an ongoing investigation of criminal prosecution and

cannot provide that document to you at a particular time, this is

not in my view being unresponsive. I am required by law to provide

answers to you that you may not like, but I can assure each of you

that much thought and reflection goes into a decision to say that

I can’t do this. This is not a matter I or anyone at the Department

takes lightly, and it in no way indicates disrespect for the committee.

Much comment has been made about how I do things and who

I rely on. I urge you to read carefully the filings made with the

court on the matters relating to the independent counsel, for these

are the documents where I have laid out the thorough investigation

of the facts at issue, the careful analysis of the law involved, and

the consistent reasoned application of the law to the facts that has

gone into each of these matters.

This work is complex. It is fact-intensive. Sound bites and quick

appraisals are not conducive to thorough analysis. People’s reputation often rests on how we talk about important matters. I urge

you to read carefully the documents submitted. I think that these

documents may provide additional information that would be helpful.

I value honest debate about all matters that come before me. I

don’t like ‘‘yes people.’’ Somebody said some of my decisions are

unanimous. I don’t think I have ever had a unanimous decision one

way or the other. I think the mix has always been interesting. It

is no secret by now that I rely on a wide variety of people, nor do

I count up the votes on each side. I don’t say the majority wins or

I don’t say this person wins. I make the best judgment I can.

Under the independent counsel statute, when it existed, Congress placed on me the responsibility to make the judgment. I

made the best judgment I could, and I will continue to try to do

that.

As I told you once, Mr. Chairman, I don’t do things based on

polls. I do things based on the evidence and the law.

Senator Specter has commented on one of the particular cases,

and has said that the standard for determining the appointment of

a special counsel is that there be specific and credible information

that a crime may have been committed. That is the standard that

has been used not for the application of independent counsel, but

for the triggering of a preliminary investigation which was done in

the case to which he refers, and there is a provision for a preliminary investigation which is permitted and authorized by the Act.

That was triggered. The preliminary investigation was conducted,

but the bottom line at that point was in determining whether the

application should be made was whether reasonable--it was necessary to have further investigation, and whether further investigation was reasonable and warranted.

19

Thus, I think we look at each of the standards and try our best

to make the best judgment we can, and I will look forward to that

opportunity to talk with you today about it.

I have said when I appeared before you last that the American

people should be extraordinarily proud of the people in the Department of Justice. If you want to blame somebody, if you reach disagreement, blame me. Don’t blame them. They work so hard for

you. They try to give you the best advice they can.

Director Freeh will disagree with me, but he has done so much

for this country. There are people that you never hear about that

do incredible jobs going over the law, getting the facts, agents, border patrol officers, just so many different people in so many different ways. The American people should be very proud of them,

and you, since many of them have served through one administration after another, should be equally proud of them. I know that

I am, and I appreciate the opportunity to be here today, Mr. Chairman.

[The prepared statement of Attorney General Reno follows:]

PREPARED STATEMENT OF JANET RENO

Good afternoon, Mr. Chairman and Members of the Committee.

Since my first hearing before the Committee on march 9, 1993, we have worked

together, in a bipartisan manner, on a number of important law enforcement initiatives. I am proud and grateful for the opportunity to work with you on so many matters important to the American people. I want to thank you for the thoughtfulness

and kindness you have shown me over these years.

We have debated and disagreed on a number of issues. Today, I expect, there will

be disagreement about matters involving the now expired Independent Counsel statute and the Department’s Campaign Financing investigation. But, the founding fathers valued spirited debate as much as anything. I have told you this before, Mr.

Chairman, I appreciate Congressional oversight. It brings new issues to our attention and it sharpens our decisionmaking at the Department.

Our democracy must be cherished—we cannot take it for granted—its hallmarks

are representative government, public accountability, and the peaceful transfer of

power. And it is a miracle or a testament to the American spirit that we govern

ourselves according to a Constitution that has stood the test of time and the advance of technology. But at the heart of that document is respect for individuals and

the different opinions we often hold. Although we may disagree, I respect you and

your opinions.

In this spirit, the Department tries very hard to cooperate with and facilitate the

oversight process, thus following the longstanding Executive Branch policy and

practice of seeking to accommodate Congressional requests for information to the

fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. Attorney General William French Smith captured the essence of the

accommodation process in a 1981 opinion: ‘‘The accommodation required is not simply an exchange of concessions or a test of political strength. It is an obligation of

each branch to make a principled effort to acknowledge, and if possible to meet, the

legitimate needs of the other branch.’’ [Opinion of the Attorney General for the

President, Assertion of Executive Privilege in Response to a Congressional Subpoena,

5 Op. O.L.C. 27, 31 (1981).]

The Constitution wisely assigns each branch of government a distinct and limited

role. Among the most important functions of the Justice Department as a part of

the Executive Branch is the faithful execution of the laws which includes the vigorous but fair prosecution of criminals. When there is conflict between the Legislative and Executive Branch—our task as public servants is to find solutions that respect our individual duties and permit both branches to do our jobs responsibly.

One issue that will arise today is how we deal with open investigations. I cannot

discuss most aspects of an ongoing investigation, lest information disseminated impede our careful and professional conduct of these important law enforcement matters.

Another example of that accommodation is how we respond to your requests for

documents about matters we are charged with investigating and prosecuting. The

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sponsive to your requests, and is continuing to produce materials. We have done so

despite our deep concerns about the consequences of public release of much of this

material. I know your Committee has been very sensitive to many of our concerns,

particularly where the personal privacy of individuals is concerned, and I am grateful for that.

During my time as Attorney General, Congressional oversight requests have implicated important Departmental institutional interests with respect to ongoing law

enforcement and litigation matters, pre-decisional deliberative documents on completed matters, and testimony or interviews from line attorneys. I have been particularly concerned about the oversight requests regarding ongoing law enforcement

matters. Although Congress has a legitimate interest in determining how the Department enforces statutes, Congressional inquiries during the pendency of a matter

pose an inherent threat to the integrity of the Department’s enforcement functions.

Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement decisions.

I have also been concerned by the recent frequent efforts to breach our line attorney policy. The Department needs to ensure that its line attorneys can exercise the

independent judgment essential to the integrity of law enforcement and litigation

functions and to public confidence in those decisions. By questioning the Department’s Senate-confirmed leadership and if necessary, component supervisors, Congress can fulfill its oversight responsibilities without undermining the independence

of line attorneys. I ask all of you to consider the demoralizing and chilling effect

of the recent line attorney questioning on the dedicated career government employees who carry the major burden of our law enforcement efforts.

I recognize that the Department’s efforts to safeguard the Department’s institutional interests have often led Congressional Committees to express great frustration and impatience in the course of their oversight inquiries. But our law enforcement responsibilities require that the leadership of the Department always have

these interests in mind when we respond to oversight inquiries. I appreciate the

Senate Judiciary Committee’s willingness to work closely with us in the process

whereby Committees and the Department seek a mutual accommodation of Committee oversight needs and Departmental institutional concerns. It is our experience

that good faith negotiations during the accommodation process almost always result

in an acceptable resolution.

Mr. Chairman, you and other members of this Committee have asked to know

why I’ve made the decisions I have in the past with respect to Independent Counsel

decisions and the Campaign Finance Task Force. I urge you to read carefully the

filings made with the Court on these matters—for these are the documents where

I have laid out the thorough investigation of the facts at issue, the careful analysis

of the law involved and the consistent, reasoned application of the law to the facts

that has gone into each of these matters.

So much of what you as Senators and I as Attorney General are called to work

on is complex and fact intensive. Sound bites and quick appraisals are not conducive

to thorough analysis. People’s reputations often rest on how we talk about important

matters. I urge you to read carefully the documents submitted in the past. I think

that the complete documents explaining why we made our decisions will be most

useful to you.

I want to explain to you today—as best I can—how I approach these decisions.

I value honest debate about all matters that come before me—whether they are

Independent Counsel decisions or matters of less or more significance. It is no secret

by now that I have no particular use for ‘‘yes people.’’ Nor do I count up the votes

on each side of an issue and go with the majority. Mine is a deliberative process

in which I consider not the number of people who hold a particular viewpoint or

what the polls say, but the reasons behind the recommendations brought to me.

I rely on the good work of attorneys and investigators at the Department, including the work of the task Force, past and present. These prosecutors and investigators assumed a difficult task under intense pressure and the intense glare of constant scrutiny from the media and the Congress. To date they have responsibility

for more than 120 investigations, convicted 20 individuals and one corporation; and

more trials are pending. Their work and the cases they have brought have illuminated the difficulties that our inadequate campaign financing laws place on those

who seek to address abuses of our election system. They have my great respect, admiration and gratitude, and deserve the appreciation of the nation for a job well

done.

This group of dedicated career employees serve as one good example of the

124,000 employees of the Department of Justice, hard working men and women who

serve the American people here and around the world every day. They uphold our

liberties. They prosecute crime—from street crimes to sophisticated white collar

21

schemes. They catch spies, cybercriminals, drug lords and terrorists. They stand

guard at our borders. All around the country, the Justice Department and its law

enforcement components are full partners with police, mayors and neighborhoods in

preventing crime wherever possible and in the 24–7 world of protecting the public.

As a nation, we are grateful for their dedication and hard work.

In the end, I am responsible for decisions of the Department, including those concerning Independent Counsels. Congress ensured this when it drafted the Independent Counsel Act and it ensured my further and increased responsibility and accountability in this area when you allowed that statute to lapse and to let regulations put in place by the Department govern the appointment of Special Counsels

by the Attorney General.

I make my decisions on the facts as I see them, the significance of the evidence

as I weigh it, and the law as I interpret it. I do not come to these decisions lightly

nor in a vacuum.

Much has been made of the fact that several people have advised me at various

times to seek the appointment of an Independent Counsel when I ultimately decided

not to do so. This should come as no surprise to anyone. In each and every instance—whether I sought the appointment of an Independent Counsel or not—there

were always people of the opposite view who weighed in thoughtfully and vigorously. I say not boastfully but somberly, I have not been shy about appointing Independent Counsels when the facts and the law required it. Not a single one of these

decisions was the product of an internal poll.

It has been said that I ignored those who advised me to seek the appointment

of an Independent Counsel on the theory that a ‘‘loose enterprise’’ may have been

at work despite the lack of specific and credible information that a crime may have

been committed to justify the appointment of an Independent Counsel. Following

that theory loosely would have been inappropriate. There is a grave danger in not

adhering to the law’s requirement for facts as opposed to rumor, innuendo and speculation. Public officials are not above the law—but they must not be below the law

either.

I know you will want to discuss this afternoon several decisions I made under the

now defunct Independent Counsel Act.

However difficult and controversial those decisions were and remain today, my decisions under the Act were always—I repeat, always—based on the facts as I understood them and the law as I interpreted it.

I have said before—but it is certainly no less true today—I make the best decisions I can with the information I have at the time. I base my decisions on the facts

and the law. I stand by these decisions and the work of the dedicated lawyers in

the Department of Justice—whose opinions I value all the more because they are

presented to me without fear or favor.

In closing, let me say that while the decisions are mine, the appropriate exercise

we are going through is about justice and the Department of Justice—the Department of Justice as an institution that will endure from Administration to Administration through the hard, courageous, and yes, sometimes contentious, work of its

dedicated, career employees.

In my confirmation hearing some seven plus years ago now, I told you that I

wanted to work with the dedicated men and women at the Department of Justice

to establish as hallmarks of that Department, excellence, integrity and professionalism. I look back and say, without ego but with pride, we at the Department

have done that. You in the Senate know as well as I, that in the profession of law

disagreement is a critical aspect of professionalism; it ensures rigorous analysis and

critical thinking on so many important issues.

I am proud of the work that we do at the Department of Justice. And I believe

that while we disagree sometimes, on this you and I can agree, that there is a exemplary amount of excellence, professionalism and integrity at the Department of Justice.

Thank you, Mr. Chairman and Members of the Committee. I am happy to respond

to your questions.

The CHAIRMAN. Well, thank you, Madam Attorney General.

I will defer to Senator Specter who I believe is going to have 5-

minute rounds.

Thank you, Madam Attorney General. I appreciate your appearing. I appreciate you being here.

Attorney General RENO. Thank you, Mr. Chairman.

22

Senator SPECTER [presiding]. Attorney General Reno, I begin

with a memorandum which has been the subject of considerable

discussion, and that was from FBI Director Freeh to Mr. Esposito

dated December 9, 1996. I will read the pertinent part. ‘‘I also advise the Attorney General of Lee Radek’s comment to you that

there was a lot of ‘pressure’ on him and on PIS, the Public Integrity Section, regarding this case because ‘the Attorney General’s job

might hang in the balance’ (or words to that effect).’’ I stated those

comments would be enough for me to take him and the Criminal

Division off the case completely.

Did Director Freeh say that to you, Attorney General Reno?

Attorney General RENO. I don’t have any recollection of it, Senator. What I have in terms of a recollection of the things that he

covers in the whole memo is his reference at a time and place different than he suggests that this meeting took place in which he

talked about the need for a junkyard dog prosecutor and that he

was anxious to have the matter referred to the FBI, but I am sure

he thinks he said it in those words or in so many other words, but

I don’t remember it, sir.

Senator SPECTER. Well, in this memo, he talks about the junkyard dog concept, but I come back to this point, Attorney General

Reno, because it is a very unusual point to refer to one of your top

deputies, Mr. Radek, talking about pressure on him and on his

unit, with the Attorney General’s job might hang in the balance.

If in fact that was said, isn’t that something of sufficient importance that you would remember?

Attorney General RENO. Yes, I think so, sir, but I think Director

Freeh—I feel very strongly that he thinks he said it. I don’t know

how he said it or the circumstances that occurred at that moment,

but I have no memory of it, and clearly, if I had had any memory

of it, I would have gone back to Lee Radek and said, ‘‘What is this

all about?’’ Senator SPECTER. But you think that if it had been said, you

would remember it?

Attorney General RENO. I think if I had understood it, I would

have remembered it. I think he said it, or thinks that he said it,

in that or so many other words, and it’s the so many other words

and so many other words that is the puzzle to me of what I might

have confused. I note that Neil Gallagher said that there was pressure to do a good job because it was going to be a critical and sensitive investigation.

Senator SPECTER. Neil Gallagher and Mr. Esposito confirmed

that Mr. Radek did say that.

Attorney General RENO. I understand that, and that is what——

Senator SPECTER. Of course, they were not present.

Attorney General RENO. That was what was confusing to me that

they talk about the pressure to do a good job. I don’t know how Director Freeh said it, but I did not understand it.

Senator SPECTER. Let me move to another subject because the

time is very short.

I quote very briefly from your testimony on confirmation about

the need for independent counsel where you said, ‘‘It is absolutely

essential for the public to have confidence in the system, and you

cannot do that when there is a conflict or an appearance of conflict

23

in the person who in effect is the chief prosecutor. The credibility

and public confidence engendered with the fact that an independent and impartial outsider has examined the evidence and

concluded that prosecution is not warranted serves to clear a public

official’s name in a way that no Justice Department investigation

ever could.’’ Now, I have recited key facts as to the Vice President, and there

have been references made to Cisneros and Espy. I turn now to

Alexis Herman where you appointed the independent counsel, but

in your submission said, ‘‘While I cannot conclusively determine at

this time that any of these allegations are credible, much of the detail of the story he has told has been corroborated, though none of

it clearly inculpates Herman. Although our investigation has developed no evidence clearly demonstrating Secretary Herman’s involvement in these matters and substantial evidence suggesting

that she may not have been involved, a great deal of Yahni’s story

has been corroborated. We are, thus, unable to conclude that it is

not credible.’’ Now, it is true that asking for independent counsel means that

you have to make a determination.

A red light went on. I will finish within 30 seconds.

You must make a determination that there are reasonable

grounds to believe that further investigation is warranted. We are

not saying that the Vice President committed perjury, as Senator

Torricelli has raised the question, but only of sufficient evidence to

go further. In light of what is on the record to the Vice President,

how can you order independent counsel for Alexis Herman, but not

for Vice President Gore?

Attorney General RENO. First of all, I did not order an independent counsel. I don’t have that power. The court—— Senator SPECTER. Recommended it.

Attorney General RENO. I apply to the court, and the court appoints.

In that instance, I have got to trigger a preliminary investigation, if I can, on two accounts: one, if I have specific and credible

information that a crime may have been committed; or, two, if I

cannot show that the information was either specific and credible

or that I can disprove it. So that is what precipitated the triggering

of the preliminary investigation in Secretary Herman’s case.

In the course of the investigation, I could not disprove or I could

not prove that he was not credible, and, thus, felt that the further

investigation was necessary because I, under the Independent

Counsel Act while conducting a preliminary investigation, did not

have the tools to get to the answer that was—such as a grand jury

proceeding, subpoenas, or immunity issues.

In the instance of the Vice President, you have spoken of poor

people who remembered. Mr. Strauss did not remember. When

shown his notes, he said that must have been the case, but he had

no memory. We interviewed 15 people, two of whom remembered

the discussion. The wide variety of—and everybody gave information. Nobody seemed to withhold information. And we could not, as

we spell out in the submission to the court, which has been a matter of public record, which is a very careful report on just what we

did. As noted above, in order to prove a violation of Section 1001

24

in this case, the Government would have to prove beyond a reasonable doubt that at the time he made the telephone calls that were

at issue in the ’97 investigation, the Vice President actually knew

that the media campaign had a hard money component or that the

limit on hard money was $20,000. In this case, there is no direct

evidence of such knowledge. While the Vice President was present

at the meeting, there is no evidence that he heard the statements

or understood their implications so as to suggest the falsity of his

statements 2 years later that he believed the media fund was entirely soft money, nor does anyone recall the Vice President asking

any questions or making any comments at the meeting about the

media fund, much less questions or comments indicating an understanding of the issues of the blend of hard and soft money needed

for DNC media expenditures.

Witnesses were also asked whether they recalled any other discussion with the Vice President about the hard money component

of the media fund. None recalled any, nor did any recall the Vice

President saying or doing anything at any other time that would

indicate that indeed he knew, whether from the meeting or some

other source, that there was a hard money component to the media

fund.

I would ask each of you, I would ask everybody listening, if you

had a meeting—if you had a meeting 2 years before of this committee and somebody raised a subject and you did not hear it or

do not remember it, can you be expected to remember everything

you hear at every meeting you go to? And what we concluded in

this instance was that the range of impressions and vague misunderstandings among all the meeting attendees is striking and

undercuts any reasonable inference that a mere attendance at the

meeting should have served to communicate to the Vice President

an accurate understanding of the facts.

We concluded that there was under the law, as the statute spells

it out—the statute provides that I shall apply to the division of the

court for the appointment of an independent counsel if, upon completion of the preliminary investigation, I determine that there are

reasonable grounds to believe that further investigation is warranted. I concluded that there was not.

Let me make sure that—15 attendees were interviewed. The

President submitted a statement, and one other attendee has testified about the meeting under oath saying he had no memory of it.

Senator SPECTER. Thank you.

Senator Leahy.

Senator Torricelli.

Senator TORRICELLI. Thank you, Mr. Chairman.

Madam Attorney General, in reaching judgments about the application of the Independent Counsel Act, it was your practice to

consult with a wide range of senior officials in the Justice Department?

Attorney General RENO. That’s correct, Senator.

Senator TORRICELLI. And was this a standard list, or did it

change on occasion?

Attorney General RENO. It changed, depending on the circumstances, and as people came and left the Department.

25

Senator TORRICELLI. Mr. Esposito of the FBI testified that actually in this instance he believed that, to your credit, you consulted

with a larger group of people, that the FBI had not always been

consulted in the past and asked for their advice on independent

counsel, but in this instance, given the seriousness of the matter,

you seemed to expand the list to get a wider range of opinions.

Attorney General RENO. I included the FBI in my weekly meetings, asking them on each occasion—sometimes the meetings

weren’t weekly, but they were on the average of about once a

week—asking if there was anything else that I should know or

argue, did they want to argue with me, did they want to disagree

with me. I tried to be as open and as accessible as I could.

Senator TORRICELLI. In the seven other instances when you

named an independent counsel, were all of these senior officials in

the Justice Department always of a single mind and did they have

a single perspective on whether the appointment should be made

and on how the Department should proceed, or was it common to

have occasionally someone disagree?

Attorney General RENO. I think I made the statement earlier

that they were not all unanimous, but I think there were—I would

have to go back and look at it, and I am not sure that there were

any that were unanimous, but——

Senator TORRICELLI. So it might be unreasonable that this Congress—this committee is questioning the judgment you made because there was not a unanimous consensus among your advisors

with regard to a campaign to finance independent counsel, but in

fact it was not unusual in the Department for people in other instances, which have received no attention, upon which we have had

no hearings, your judgment has not been questions—it was not unusual there for there to be disagreements.

Attorney General RENO. And if you look at the Supreme Court

of the United States, 5–4 decisions are often commonplace.

Senator TORRICELLI. In proceeding with the preliminary investigation of the Vice President in 1997 and 1998, the FBI and the

Department of Justice interviewed approximately 250 witnesses,

including the Vice President, former members of the staff, DNC officials, White House officials, reviewed phone records, interviewed

the Vice President personally. In reaching this preliminary inquiry,

was this equally exhaustive of the process you went through in

other preliminary investigations? It would appear to me that, indeed, you went to some extraordinary lengths that might seem beyond other instances. How would you compare the amount of investigatory work that went into this preliminary inquiry with others

that were conducted?

Attorney General RENO. I tried to be as thorough and as complete as I could each time I asked the court for the appointment

of an independent counsel or I notified the court that there was no

basis for concluding that a further investigation was warranted. So

I don’t think it was exceptional. We just tried to be thorough in all

the instances, Senator.

Senator TORRICELLI. Let me read for you the memoranda, the

views of a couple of people, on the central question that Senator

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sure or some other influence in not naming an independent counsel.

Mr. La Bella in his memorandum writes of discussions with Director Freeh. He repeatedly had assured us and the Congress that

while there had been disagreements from time to time over investigative strategy, the investigation had not been impeded or

blocked in any way. Mr. La Bella then writes of the task force generally, and Mr. La Bella personally and repeatedly told us that no

investigative steps were closed to them, that they were free to follow any leads, and that if their efforts developed specific and credible information that any covered person may have violated the

law, the Attorney General would trigger the Act.

Now, it is being alleged by this committee that there was pressure involved or a compromise of judgment, and cited are Mr. La

Bella and Mr. Freeh as principal witnesses. I have just read you

two statements quoting Mr. La Bella and Mr. Freeh making very

clear there was no inappropriate pressure, no other judgments, indeed they tesfify to your own independence of judgment.

Are these statements consistent with what Mr. La Bella and Mr.

Freeh told you personally, that while they may have disagreed with

your decision, they have never questioned your independence in

doing so?

Attorney General RENO. Mr. La Bella sent me a letter that I will

treasure that sets forth his feelings, and one of the things that I

prize most from these 7 years is something that was given to me

by the FBI. It is an Honorary Special Agent badge, and it is something that I treasure. It could not have been given, I think, without

Director Freeh’s approval. He presented it to me, and he presented

it to me after we have had our disagreements, but there is

something—— Senator TORRICELLI. Madam Attorney General, you should know

that people may have the impression that those who disagreed

with you on the independent counsel statute, not only including

Mr. Freeh and Mr. La Bella, but indeed the line attorney, Mr.

Mansfield and others, that because they disagreed with you, they

may believe that you had reached the wrong judgment or that it

was not a fair judgment or that the facts only supported a contrary

judgment.

In many of our hearings, there have been few of us present,

other than the members of the committee itself. So those of us who

are joining for the first time today should know this. Not one of

them, not one individual who disagreed with you on the appointment of the independent counsel, hesitated to say to this committee

that based on the facts and the law, a reasonable person would not

have reached the same judgment that you reached.

Finally, if I could, Mr. Chairman—I know the time has expired,

and I will then conclude.

Senator SPECTER. Senator Torricelli, we are going to come back

for another round. I do not mind your asking another question, but

I do not want to establish the precedent that we are going to go

to 10-minute rounds here. So I would ask you to wait for the next

round.

Senator TORRICELLI. Fine, Mr. Chairman.

The CHAIRMAN. Senator Grassley.

27

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR

FROM THE STATE OF IOWA

Senator GRASSLEY. Mr. Chairman, I am going to use my time for

a statement that the Attorney General can respond to or not respond to, as she likes, during my time on the first round. And then

I have some questions I will ask on the second round.

During the course of the Justice Department oversight investigation, my judgment has been that the Justice Department gets

mixed reviews. I do not believe the Department deserves the criticism it got for the Wen Ho Lee case. The FISA issue was a close

call and other agencies were more responsible for the shortcomings

of that case. And that is especially true of the FBI and the Energy

Department.

In the Peter Lee case, I believe that was also a close call, and

the Navy did a lot to undermine that case. Yes, there was a communication lapse in that case at the Department of Justice, but

there was sensitive information involved in that case, the protection of which goes a long way to explaining decisions made in that

case.

So that brings us now to the present subject, the campaign fundraising case. Of all of the cases that we have looked at, this is the

one which I believe criticism of the Attorney General’s position is

warranted. We now know that a second attorney, handpicked by

the Attorney General to look into the matter, has recommended an

outside counsel to investigate the Vice President. The director of

the FBI recommended the same, so did the former principal associate deputy AG, Robert Litt.

It seems the Attorney General’s judgment to deny the appointment of an outside counsel was based mainly on the arguments of

Lee Radek, chief of the Public Integrity Section. Mr. Radek’s section has a reputation. The reputation of that office is that it is a

big black hole. Mr. Radek is called ‘‘Dr. No’’ by the investigative

community because he declines their cases almost automatically. If

you are seeking a legal opinion to not do something, just go to Public Integrity. They are a factory with a fast-moving assembly line

of negative arguments for prosecution.

I noted at our last hearing that Mr. Radek and the Attorney

General changed their legal arguments in midstream about the

hard money versus the soft-money issue. First, the argument was

that there were no illegalities. Then when the FEC report came out

in August 1998 saying there were illegalities, their argument conveniently switched to an advice of counsel argument; in other

words, a new argument was needed, so they went to Dr. No for an

argument off his assembly line.

You may remember, Mr. Chairman, when Mr. Radek testified in

May, we raised a lot of these issues, and they were written about

in the newspaper the next day. Later that week in May, the Inspectors General had their monthly meeting, and the issue was

raised there. There was a prominent U.S. attorney present in the

room who offered up their offices as an alternative to Public Integrity. Some of the Inspectors General vowed to take up the offer and

some vowed never to deal with the Public Integrity Section again.

The same concerns about Public Integrity are shared with the

U.S. attorney community. I raise this issue to make a point. I canVerDate 11-MAY-2000 22:37 Oct 05, 2001 Jkt 075237 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 E:\HR\OC\C237.XXX pfrm07 PsN: C237
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not believe that the Attorney General and those around her did not

know about Public Integrity’s reputation and its practices. If I were

aware of that reputation, and at the same time getting conflicting

arguments from the FBI director, your handpicked attorney of the

case, and the principal associate deputy attorney general, I would

have thought twice about taking Mr. Radek’s advice.

Mr. Chairman, I do commend the Attorney General for an important point, and that is her appearance here. She is here to be accountable, as she always has in these oversight cases. I am sorry

to say that the same cannot be said about the FBI director. He has

chosen not to come, despite the best efforts of Senator Specter. This

committee too often gives the director a pass when he most needs

to give an accounting of his input into this decision-making process.

We know from documents we have read that he was most emphatic

about the need for an independent counsel, and without his appearance there is a colossal void in the context of this hearing and the

public’s understanding.

I thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much, Senator Grassley.

Senator Leahy.

Attorney General RENO. Could I—— The CHAIRMAN. Yes, of course, you may respond, Attorney General Reno.

Attorney General RENO. Thank you for those comments, and I

appreciate it because, Senator Grassley, from the time I first came

to make my first courtesy call on you, and you talked to me about

Qui Tam, you have always been vigorous and constructive in your

discussions, and I appreciate it very much.

One thing I emphatically disagree with you about, and that is

Lee Radek. Would that there were more people like Lee Radek in

this world. He calls it like he sees it. He has pursued corruption,

where U.S. attorneys recuse themselves. He never gets flustered.

He tells me exactly what he thinks. I do not always agree with

him. But that man is an extraordinary public servant, and he has

taken more slings and arrows than anybody deserves, and he is

just an extraordinary man. I wish, with all of my heart, Senator,

because I think you would appreciate it, that you could sit in the

conference room and watch some of these discussions and understand what goes into it. But he is a very special person and a very

distinguished public servant.

With respect to us changing our minds, let me tell you precisely

the process because it was not a matter of mind changing. Under

the Federal Election Campaign Act, for me to prove a case of violation of the act, I must show that it was willful and knowing. The

previous administrations had entered into a Memorandum of Understanding with the Federal Elections Commission. Because the

standards, particularly with respect to what was an electioneering

message which went to the issues advertising, because the Commission, which is responsible under 437 for construing and developing the policy with respect to the Campaign Act, had never developed standards, the issue was we cannot show that it was knowing and willful because we do not know what the standards were.

We knew the Federal Elections Commission was pursuing the

issues that had been raised by Common Cause. And when the FedVerDate 11-MAY-2000 22:37 Oct 05, 2001 Jkt 075237 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 E:\HR\OC\C237.XXX pfrm07 PsN: C237
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eral Elections Commission, we said if they refer it back to us, we

will trigger the Independent Counsel Act if they think there was

a willful and knowing violation.

Now, the Commission did not act, but the Audit Division acted

and concluded that both the Democratic and the Republican candidates, that the issue ads had violated the Campaign Act. At that

point, I triggered it. It was not a change of mind or a change of

argument.

I went then through a preliminary investigation, as the Independent Counsel Act provides for, and we very carefully reviewed

it. The defense was what did the lawyers say? And the finding that

we spell out here is very detailed, shows the great lengths we went

to. It is 31 pages. It goes into great detail as to how we went

through the process. And if somebody relies, in good faith, on advice of counsel, I cannot show, and no reasonable investigation

could further show that that advice and reliance was not warranted. So that is where we ended up. It was not a change of mind.

It was trying to use the MOU that had existed from one administration to another and the investigation to take us to where we are

at.

The CHAIRMAN. Senator Leahy.

Senator LEAHY. Mr. Chairman, you know we speak about pressure and who is pressuring who. But in this committee, we have

had a member of this committee question a sitting Federal judge

about a case, the Peter Lee case, in which the defendant has a motion to terminate his probation.

We publicly urged prosecutors to take certain positions at the upcoming sentencing of Defendant Maria Hsia, even though prosecutors are supposed to be independent. The only interesting thing

about that, in that hearing, we had attorneys for both Maria Hsia

and the Justice Department here, so they probably both use that

public pressure however they want.

We wanted to conduct oversight of the Wen Ho Lee matter, even

though an investigation was pending. And now we find that Wen

Ho Lee’s attorney is asking for our internal documents on that.

Probably the only reason we are not down at the trial in Waco

is that, after Republican staffers were sent to Waco to interview

witnesses even before Senator Danforth had an opportunity to do

so, he angrily told us to butt out.

So let me ask you a couple of direct questions on pressure. Did

you ever put pressure on Mr. Radek or anyone else to come out any

particular way on any particular matter?

Attorney General RENO. The only thing I ever did to Mr. Radek,

I think, was to tell him that I wanted to make sure that campaign

financing cases that were in the U.S. Attorney’s Offices were

brought to Washington so that we could review them to make sure

that we were consistent in our approaches. And he objected, and

I said I thought we should.

Senator LEAHY. Did you ask him to come out a certain way,

though, in determining which way, whether to prosecute or not to

prosecute on those campaign finance cases?

Attorney General RENO. Never.

Senator LEAHY. Did the President——

30

Attorney General RENO. And if I had told him to, he would have

told me to take a flying leap.

Senator LEAHY. I am sure he would have. I know him.

Did the President of the United States ever pressure you to come

out a particular way on any particular matter?

Attorney General RENO. No, sir.

Senator LEAHY. Did the Vice President of the United States ever

pressure you to come out a particular way on a particular matter?

Attorney General RENO. No, sir.

Senator LEAHY. We do know that in the Senate, the Senate Republicans have been calling for an appointment of an independent

counsel since at least March 1997, when they passed the Senate

resolution to that effect even before the facts came out. Is it safe

to say, however, you do not take pressure here either?

Attorney General RENO. I always try to listen and learn.

Senator LEAHY. Not quite the question, but I think we both know

the answer.

Can you remember of things 2 years ago? Some of us sometimes

have a little trouble remembering 2 hours ago. But I know some

have criticized the fact that the Vice President submitted a statement, following an interview with FBI and task force investigators,

to clarify some of his answers relating to coffees. Well, FBI Director

Freeh testified before a House appropriations subcommittee recently, he then sent a statement clarifying certain of his answers.

And, in fact, we encourage witnesses before this committee, once

they have read the transcript, if they want to clarify something,

they should do it.

Some have claimed that the Vice President must have known the

media fund, which was the subject of the disputed telephone calls,

had a hard-money component because there was a memorandum

written by somebody to the Vice President. That is basically the

same thing when Director Freeh let the subcommittee know in the

House, ‘‘Well, there is a memorandum here which I had not seen.

I want to add to my understanding.’’ That certainly would not suggest anything wrong on his part, would it?

Attorney General RENO. No, sir.

Senator LEAHY. And is it possible to assume that not all of us

in public office read every single item put before us?

Attorney General RENO. I think there are too many trees that

have been cut down to permit us to do that.

Senator LEAHY. And DOJ I think has a policy declining to prosecute violations of these minor matters, the de minimus matters.

In fact, in 1976, the Justice Department declined to prosecute officials responsible for sending letters signed by President Ford to

Federal employees at their workplaces, soliciting contributions for

Republican congressional candidates. In 1988, prosecution was declined when two Republican Senators, one still serving, sent solicitation—in fact, is serving as a member of this committee—sent solicitation as part of a computerized direct mailing to employees of

the Criminal Division of DOJ. Would you not say they probably did

just the right thing to ignore those?

Attorney General RENO. Yes, sir.

Senator LEAHY. And in the Buddhist Temple, we should note if

this was a democratic fundraiser and was expected to be, I am sure

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that Vice President Gore was probably very surprised to see a

number of Republican elected officials who were there. And that

may be one reason why he might not have thought it was a fundraiser, when the Republicans, elected Republicans, were present at

that event.

Thank you, Mr. Chairman

The CHAIRMAN. Senator Kyl.

Senator KYL. Thank you, Mr. Chairman.

Senator Leahy, I am proud to say that there are elected Democrat officeholders at some of my fundraisers.

Senator LEAHY. You never invited me.

Senator KYL. I did not invite you. That is right. But when you

are ready to contribute, let me know.

Madam Attorney General, I wanted to ask you, first, about the

‘‘willful and knowing’’ standard, as it pertained to the Vice President’s knowledge or lack of knowledge about the fundraising constituting or including hard-money fundraising.

You said, as I recall, that his mere attendance at meetings was

not enough to conclude that the Vice President knew that hard

money was involved; is that correct? Words to that effect?

Attorney General RENO. We go into great detail, sir, but that is

generally correct.

Senator KYL. Obviously, it can be that records and other witnesses’ testimony can rebut a single person’s denial.

Attorney General RENO. That is correct. And we were seeking to

determine whether there was any evidence from which one might

reasonably infer that the Vice President actually knew. It might be

supported, for example, by other attendees who might specifically

recall something. We pursued each and developed no information.

Senator KYL. Well, that is exactly what I wanted to ask you.

What other evidence did you consider that may have suggested

that the Vice President knew or should have known that hard

money was involved?

Attorney General RENO. Such an inference might be supported,

for example, by information that these facts were discussed in sufficient detail and focus at the meeting that many other attendees

specifically recall them, that the Vice President made comments or

asked questions in the course of the discussion that would seem to

reflect an active understanding of the details, that the participants

recalled any affirmative discussion of a need to raise hard money

for the media fund, that the Vice President read memoranda that

made these points or that anyone spoke directly to the Vice President on any occasion about the need to raise hard money.

Senator KYL. And was there not evidence to support some of

those possibilities?

Attorney General RENO. We found none.

Senator KYL. None at all?

Attorney General RENO. No, sir.

Senator KYL. There was no one who recalled a discussion of hard

money at those meetings?

Attorney General RENO. As I told you previously, there were two.

Senator KYL. So the answer was not that there was none, but

that there was some, but that you did not consider it sufficient.

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Attorney General RENO. What I said was that we did not have

any information that these facts were discussed in sufficient detail

and focus at the meeting that many other attendees specifically recall them. And 15 individuals, including the President and Vice

President, attended the meeting. All 15 were interviewed, with two

exceptions: one, who testified under oath in the course of a congressional investigation that he had no recollection of the meeting, and

that if he attended at all, he likely would have left after just a few

minutes; and the President, who provided us with a statement that

he had no independent recollection of the meeting.

Senator KYL. Did any of the witnesses testify that they recalled

hard money being discussed at these meetings?

Attorney General RENO. No attendees recall any particular questions or comments by the Vice President; two recall—— Senator KYL. Well, that—I am sorry—that was not my question.

Attorney General RENO. Only two of the fifteen attendees at the

meeting even recall the topic of a hard-money component to the

media fund being raised during the meeting. While the author of

the notes had no specific recollection of the meeting, he did confirm, based on his habit and practice, his belief that the words

noted in his handwriting were things said during the meeting, that

he recorded them as they were said.

Senator KYL. Were there any other memoranda that you believe

came to the attention of the Vice President that suggested that

hard money was involved?

Attorney General RENO. The issue was raised previously, as I recall, about the Ickes memorandum. Six or seven of the memoranda

were received before the telephone calls were made. The remainder

were made afterwards.

Senator KYL. Rather than asking you to recall each of those,

Madam Attorney General, since I have just one other quick question, would you be willing to submit, at this point in the record, the

evidence that was considered, but deemed insufficient, to supply

the ‘‘willful and knowing’’ attribution to the Vice President?

Attorney General RENO. I trust it is a matter of record with the

committee. It has been public record for some time, and it is the

notification that we filed with the Court on this issue. The first,

with respect to the first matter, it was 29 pages in length, and I

believe 19 pages in length for the second matter.

Senator KYL. Would you then simply just direct the committee’s

attention to the points where that specific evidence is?

Attorney General RENO. Yes, I can do that right now.

Senator KYL. Well, no, if I might, while I still have just a moment, if you would just do that for the record, that will be sufficient for my purposes.

Attorney General RENO. Yes, sir.

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Senator KYL. Since no one, and I want to make this clear, there

is a bit of a straw man here about your independence, I know of

no one who has ever questioned whether you are independent

enough. The question, I think, is whether you are too independent

or too independent at least of the advice of some very top professionals who were brought in to give you advice.

Now, we know who did recommend appointment of special counsel; people like Charles La Bella, and Mr. Conrad, Mr. Freeh. My

question is this: Were there others? And I presume that some of

the staff people of these people also recommended that. And to

have rejected their advice, it seems to me, you must really have

had confidence in the advice of the others who came to a different

conclusion. Could you tell us who those people are.

Attorney General RENO. I cannot give you each person who I

sought advice from with respect to each matter, but I will try to

make sure that you have as much as I can pull together. I think

you have all of the documents, and I think that is where I rely primarily.

The CHAIRMAN. Senator Kyl, we have stopped others at this

point.

Senator KYL. Yes, and I am happy to be stopped. I presume,

then, you will submit for the record the names of the people that

you relied upon in addition.

Attorney General RENO. Senator, I am trying to tell you that I

think we have given the committee all of the information with respect to what was in writing. I do not know that I can go back and

give you everybody that I have relied on. But as I told you, I will

try to do my best.

Senator KYL. I would appreciate that. Thank you.

The CHAIRMAN. We will have a second round, Senator Kyl.

Senator Feinstein.

Senator FEINSTEIN. Thanks very much, Mr. Chairman.

Madam Attorney General, I have been privileged to be on this

committee during your entire tenure, and I can certainly say no

one has been more resistant to political pressure, tougher or more

independent than you. And I think you have made that very clear.

I think when Senator Torricelli mentioned that you have essentially triggered an independent counsel for five of your fellow colleagues on the Cabinet, plus the President of the United States

himself, I think that is a pretty good testament to independence.

As I read the regulations that govern the appointment of special

counsel, the decision of whether to appoint a special counsel is

vested in you, the Attorney General, not those who advise you, unless you recuse yourself from the issue. The decision is not in the

hands of the director of the FBI or the head of the Campaign Financing Task Force or any other person, other than you.

Would you tell me if I am correct in understanding the law. And

can you explain the corrosive impact on the authority of the Attorney General, any Attorney General, of subordinates publicly leaking the recommendations that are entrusted, by law, to the discretion of the Attorney General, himself or herself.

Attorney General RENO. I think you are correct in the law. And

I think leaks are very damaging to good, fruitful conversation. But

my policy has been I do not walk away from it. I just try to let peoVerDate 11-MAY-2000 22:37 Oct 05, 2001 Jkt 075237 PO 00000 Frm 00087 Fmt 6633 Sfmt 6602 E:\HR\OC\C237.XXX pfrm07 PsN: C237
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ple know how damaging leaks can be. But I still try to reach out

to a variety of people, those that say yes and those that say no, because I find that sometimes they change their positions and sometimes they are advocating another point of view.

I think this Nation, as I said at the outset, the foundation of this

Nation is spirited debate, and I think it is important that we have

it.

Senator FEINSTEIN. But the point I wanted to establish is you

could essentially have everyone advising you to do one thing, and

you could turn around, within your discretion, and do exactly the

opposite. But when somebody that works in this confidential capacity essentially leaks the advice they give you, it effectively corrodes

the authority of the institution of Attorney General itself, and I

think sets a kind of precedent, which does not brook well for this

particular office, which after all is one of the chief law enforcement

officer for the Nation, where staff serving that officer should be

able to do so in confidence and certainly without leaking.

Attorney General RENO. I would agree with you, but I am not

going to let it corrode it.

Senator FEINSTEIN. Well, I hope not, and I appreciate that very

much.

Thanks, Mr. Chairman.

The CHAIRMAN. Thank you very much, Senator Feinstein.

Senator Sessions.

Senator SESSIONS. Thank you, Mr. Chairman.

I think, Attorney General Reno, that maybe we are, at times, too

hard on a team of prosecutors struggling with difficult issues. But

we are dealing with an unusual case, a case of national importance,

that has been followed since the story broke late in the 1996 election cycle and needs to be brought to rest with thorough investigation and thorough knowledge.

So I think we should be reluctant to impose ourselves on the Department of Justice. But when a string of lawyers and people chosen by you, such as Mr. Litt, Mr. La Bella and now Mr. Conrad,

all say that an independent counsel ought to be appointed, I think

that requires us to give it most serious consideration, and the public is entitled to this exchange, so that you have to talk about it,

and we can perhaps ask some questions about it.

One of the things that I think is important to note is the circumstances involving the Buddhist Temple fundraiser. To me, from

the beginning of the fundraising issues, this one struck me as the

one that could be most troublesome to the Vice President and others. There has been a concern about the phone calls, and perhaps

that may or may not be a violation, may not be a violation that

would be worthy of a prosecution, but there were some serious

issues raised.

We know that it was indeed a political fundraiser, and Maria

Hsia has been convicted of felonies related to that event. We know

it is a criminal violation to file false campaign contribution reports.

It is a criminal violation to make a political fundraiser appear to

be a nonpolitical event in order to circumvent income tax laws that

prohibit taxexempt organizations from doing fundraisers. It is a

criminal violation to conspire with others to commit any of those

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crimes under title 18, section 371, and it is a violation of 1001, the

False Statements Act, to make a false statement to investigators.

So that is a matter of real seriousness to me, and this is a matter

apparently Mr. Conrad has just now become focused on. He has

been in office about 6 months, I understand, and for the first time

in 4 years, the Vice President has now been interviewed about this

event. And last Thursday, after that interview, we learned that Mr.

Conrad has now recommended a special counsel to investigate possible criminal violations by the Vice President.

Last Friday afternoon, the Vice President has released a transcript showing his answers to the questions. However, the public

does not know and probably shouldn’t know all the information

that was available to Mr. Conrad, your chosen prosecutor, when he

decided it was appropriate to do a special counsel.

So I am concerned about that, and I was impressed with Mr.

Conrad because he seemed to me to be a line prosecutor of solid

experience. And I believe that he had the kind of background that

probably would lead him to make good decisions in this case. He

certainly did not appear to be a person that was grandstanding in

any way.

Now, the transcript shows that the focus of the investigation was

on the people who were there at that fundraiser and their relationship with the Vice President. And I think that is important.

Also, I would want to suggest that in the prosecutions I have

done in 15 years with the Department of Justice, I have been involved in cases which I personally prosecuted county commissioners, mayors, judges, sheriffs, chiefs of police, and those kinds

of cases. Normally the question comes down to a question of knowledge. We can prove that an illegal fundraiser occurred. We can

prove that foreign money was placed into the Democratic National

Committee coffers. We can prove that money was laundered

through the nuns, conduit violations of the law. The question simply is: Does the Vice President know? Is he knowledgeable about

these things that went on all around him?

That is the question. And it is easy for someone to say I didn’t

know, but a good investigator and a good prosecutor, in my opinion,

in my experience, has to be prepared to go further and to look at

other evidence.

Now, I hope and pray that there is nothing here that would implicate the Vice President seriously in these matters. However, I

think there is some evidence that raises questions.

Earlier it was suggested that the Vice President’s schedule was

not clear about whether or not it was fundraiser, but his schedule,

which I have a copy of, said DNC luncheon at Hacienda Heights—

that is the area in question—$1,000, $5,000 per head, 150 to 200

people. That indicates to me in pretty common language that it was

a fundraiser. And he has denied that. The Vice President has flatly

denied that he knew it was a fundraiser.

We also have an e-mail that he personally sent after being inquired by e-mail whether he would want to go to New York because

to do so would conflict with two fundraisers—‘‘two fundraisers in

San Jose and L.A.’’ And he was told we have confirmed the fundraisers for Monday, April 29, the day of this temple fundraiser.

Vice President Gore responded: If we book the two fundraisers, we

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have to decline—that is, decline the New York invitation. That

would indicate that he had information that this would be a fundraiser. So we are looking at some very, very serious matters, in my

opinion.

My time has run out. I would be delighted—— Attorney General RENO. I would agree that Robert Conrad is a

fine prosecutor, an ethical man, and very diligent, and I have a

great admiration for him.

Senator SPECTER. Senator Feingold.

Senator Feingold. Thank you, Mr. Chairman.

Madam Attorney General, welcome. I also want to join with others in saying I have enjoyed working with you over the years on

a wide variety of matters, and I appreciate the dedication and professionalism of the Department of Justice.

I will use my limited time to make a few brief comments, and,

of course, if you wish to respond, please do so.

One area where we have differed, Madam Attorney General, is

in our approach to the enforcement of the campaign finance laws.

As you know, I first called for an independent counsel to investigate campaign finance violations in the 1996 elections over 3

years ago. I was one of only two Democratic Senators to do so. I

believed then and I believe now that there were serious abuses of

the law by both political parties in the 1996 campaign, and that an

independent investigation is the only way to get to the bottom of

the abuses in a way that will command public confidence.

Let me stress, as this political season is upon us, that I said that

both parties’ fundraising activities should be scrutinized in such an

investigation, and, Madam Attorney General, congressional elections should be a part of it.

Those who call for a partisan investigation or to limit it to certain events seem generally to seek an investigation to accomplish

political goals rather than to uncover all of the abuses of our current laws that have occurred.

I also believe that some of the same activities of questionable legality that arose in the 1996 campaign are going on today. In particular, both Presidential campaigns are taking advantage of loopholes in the campaign finance law by participating in television advertising campaigns funded with soft money donations. These ads,

which have already hit the airwaves, are billed as ‘‘party-building’’

issue ads. They talk about the candidates. They show their faces.

They promote them and attack their opponents. But they avoid the

use of the so-called magic words of express advocacy that would

make them clearly illegal.

Madam Attorney General, I have never accepted the flawed legal

opinion under which both parties and their candidates are now operating and its perverse conclusion that the ‘‘magic words’’ distinction applies to ads run by the parties. We all know that if a candidate runs an ad, it must be paid for with hard money whether

or not it uses the magic words. I think the same should apply to

parties who run ads supporting their candidates or attacking another party’s candidate.

Nothing in the Buckley case suggests that parties should be

treated more like independent groups than like candidate with respect to this issue. The participation of the two major Presidential

87

campaigns in the use of the soft money loophole to fund phony

issue ads is unseemly and wrong. Once nominated, each of the

major Presidential candidates will receive over $65 million in public funds to run his general election campaign. The taxpayers of

this country have a right to expect them to abide by the spirit as

well as the letter of the law if they are going to take advantage of

this public financing system.

I understand that outside watchdogs, Common Cause and Democracy 21, have indicated that they intend to request a Department of Justice investigation of the ongoing Presidential campaigns, and I think it would be entirely appropriate for you to conduct such investigation or, Madam Attorney General, to appoint a

special counsel to do so.

As I have said over and over again, however, any such investigation should include both parties and both Presidential and congressional campaigns. This problem is not unique to one party or to the

Presidential race.

Madam Attorney General, I appreciate the dilemma you are in.

I think it is entirely appropriate for you to attempt to keep the Department’s criminal investigations out of politics. Unfortunately,

the very nature of these allegations make that very difficult. And

so I make this recommendation: Madam Attorney General, appoint

a special counsel with a wide-ranging mandate to investigate campaign finance violations in both the 1996 and 2000 campaign; insist

that the special counsel consider allegations of wrongdoing by both

parties and in both the Presidential and congressional campaigns;

remove this issue to some extent from partisan debate by authorizing an investigation that is deliberate, complete, and detailed.

I understand that this investigation may not be completed by November, but it will put the parties and the candidates on notice

that their activities in this upcoming election will be closely scrutinized. And if that leads the parties and the campaigns to be less

aggressive in exploiting loopholes in current law that the Congress

has thus far failed to close, that will be a beneficial side effect of

your decision.

Thank you, Mr. Chairman, and I appreciate the opportunity to

make a statement.

Senator SPECTER. Do you care to comment, Attorney General

Reno?

Attorney General RENO. I remember in April of 1997 your

thoughtful comments. They were constructive, and I have remembered them for a long time, and I appreciate them.

I don’t pass judgment on the Federal Election Campaign Act or

its effectiveness in making my determinations. What I have got to

do is be able, if I am going to prosecute, to show that the conduct

is willful, that the violation is willful and knowing.

I have conducted an extensive investigation on the issue. The advice of counsel defense is there. It won’t go away. Under the Independent Counsel Act, I made the determination that further investigation would produce nothing. I think the answers have got to be

found in another arena to address the issues that you are talking

about, but I would look forward to working with you.

Senator FEINGOLD. Thank you very much.

Senator SPECTER. Senator Smith.

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Senator SMITH. Thank you, Mr. Chairman.

Madam Attorney General, I am just trying to understand how

you arrived at your judgment. I respect the fact that you have the

right to make this judgment over the recommendations of people

who work for you, which you have described as competent, intelligent, dedicated people. But without replaying the whole thing, I

mean, you have—in November of 1997, you have Freeh saying I am

convinced now more than ever this should be referred to an independent counsel; La Bella again saying he recommended the appointment, and that is in July 1998; in November of 1998, Litt saying, ‘‘One could infer that Gore knew what he claimed he did not

know, that the media campaign was paid for in part with hard

money’’; and now the latest with Mr. Conrad, and then on top of

that you have the Vice President in his deposition before Mr.

Conrad saying, ‘‘I sure as hell did not have any conversations with

anyone saying this is a fundraising event.’’ That is what he told the

investigators. Senator Sessions just showed the memo which referred to so much per head.

I have been to fundraisers many times, as we all have. I went

to one this morning. I knew what I was going to, and I knew how

much the price was for the person that I attended for.

So my only question to you is, they work for you, you make the

call, and you did. But don’t you think the public has a right to

know what went through your mind in making that call. Why did

you overrule those four people and at the same time ignore information that was out there in the domain about Mr. Gore?

And I would add one other thing. Maria Hsia was a longtime associate of Vice President Gore, of Senator Gore, and he had known

her back at least as far as 1989, and she had done fundraising for

him. And he was aware that Maria Hsia was at this event and had

a lot to do with coordinating the event. And I just have one followon question, if you could just respond to that. I am just interested

in how do you make this judgment. How do you make that judgment? What did you—what went through your mind to overrule

those four people and the other information?

Attorney General RENO. First of all, you give the impression that

I overrule all my advisers.

Senator SMITH. No. I just said these four.

Attorney General RENO. Well, the reason I made my determination is expressed in notifications filed with the court that had been

a matter of public record, and I will be happy to make those available to you, Senator. They have been made available and are publicly available.

With respect to the prosecutions and what we have done, there

have been approximately 25 prosecutions and 20 convictions.

With respect to the present matter, as I said at the outset, I am

not going to comment on pending investigations. I think it is imperative for justice to be done that people don’t comment until they

have all the facts. That includes me. I am going to conduct a thorough review of everything. I am going to make my best judgment.

But I would urge you with all my heart, be careful as you comment

that you have the facts.

Senator SMITH. Well, so you are saying that it is still ongoing.

In your mind, you are still looking into this matter. Is that correct?

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Attorney General RENO. I am not commenting on what I am

doing, but I think it imperative for justice to be done that an investigation be conducted without public discussion so that it could be

done the right way.

Senator SMITH. Well, it started in November of 1997, as far as

we know, with Mr. Freeh’s memo, so it is 3 years later. I don’t

know when we get it done. Sometime, I guess, by the end of this

century, maybe.

The final question that I have, I don’t understand for the life of

me why any individual would deny that he or she attended a fundraiser. Attending a fundraiser is not a bad thing. Now, it was an

embarrassing fundraiser in the sense that nuns were asked to contribute money. I will grant you that. But why would any individual

say I didn’t attend—I don’t know, excuse me, that it was a fundraiser when all this documentation proves otherwise. So I think it

would go to the next question. Foreign contributions were passed

at that fundraiser. So if you are going to continue your investigation, I would hope that somebody might ask the Vice President a

little bit about how much he knew about whether or not there were

foreign contributions. He was asked that in the Conrad questioning, and he said that, of course not, I did not know that illegal

contributions of foreign contributions had been solicited.

But it makes no sense to me that somebody would deny they are

attending a fundraiser when, in fact, everybody knows they attended a fundraiser. His schedule says he attended a fundraiser.

And his background briefing papers say he attended a fundraiser,

and the dollars that are going to be at that fundraiser are indicated. So there is something here that we don’t know about that

makes no sense to me, and that is where I am at.

I mean, attending a fundraiser is not bad. We all do it. But attending a fundraiser with illegal contributions is bad if you know

it. And my concern is that we don’t have the answer to that question.

Attorney General RENO. I cannot comment on a pending investigation, but I can——

Senator SMITH. Well, obviously you are not going to but—— Attorney General RENO. But I can comment on the need for everyone to let an investigation be conducted the right way. As you

point out, you don’t know something. Let’s wait until we do it the

right way and find out as much information as possible.

Senator SMITH. Should the American people know this before the

election?

Senator SPECTER. Senator Smith, we have stopped everybody at

this point.

Senator SMITH. Fine.

Senator SPECTER. We will have another round.

Senator Schumer.

Senator SCHUMER. Thank you, Mr. Chairman.

Mr. Chairman, to the extent that we are today examining whether the Attorney General should appoint a special counsel to investigate the 1996 election, I feel compelled to say that the committee

is acting beyond its purview and, therefore, risks being labeled as

partisan. Our role in these matter is one of oversight. I am worried,

however, that if we are here quizzing the Attorney General on a

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decision she has not yet made, this committee will be perceived as

going beyond oversight and instead attempting to influence an executive branch decision that should be made on the merits and on

the merits alone.

This is ironic because the Justice Department is being criticized

here for making decisions based on political influence and not on

the merits. Yet this committee now appears to be applying a pressure of its own.

I have no questions.

Senator SPECTER. Thank you very much, Senator Schumer.

Attorney General Reno, would you care to take a break?

Attorney General RENO. I am fine. Thank you, sir.

Senator SPECTER. The second round will also be 5 minutes. In

very brief response to what Senator Schumer has had to say, the

questions have related to the decisions made by Attorney General

Reno in declining independent counsel as to the Vice President, the

decision already made, declining independent counsel as to the

President and Vice President. Her appearance was requested on

May 25, which was substantially in advance of the information as

to Mr. Conrad’s recommendation.

Attorney General Reno, I am going to come back and—— Senator SCHUMER. Mr. Chairman, if I might just respond?

Senator SPECTER. All right. We will stop the clock. Go ahead,

Senator Schumer. You had some time left.

Senator SCHUMER. Once it is known there is an ongoing investigation into these matters, there shouldn’t have been a hearing.

Senator SPECTER. Well, I disagree with that. But this is the first

time that it has been raised, and had you raised it earlier, I would

have been willing to consider it. You and I have talked about the

matters, and I would always give consideration to whatever you

had to say. This is the first time I have heard your comment.

Attorney General Reno, I am going to go into some detail, as

soon as I have the time to do so, about the number of witnesses

who had testimony that the Vice President knew about hard money

and also about the advice of counsel defense which you have talked

about, and also the issue of pressure which has been raised. But

I want to talk for a moment and ask you about a broader question,

and the broader question that I want to broach is the lateness of

the Department of Justice’s inquiry.

You and I first started to talk about this matter in April 1997,

more than 3 years ago, and in November of 1997, FBI Director

Freeh called for independent counsel. And within a week a letter

was addressed to you by me asking for his report so we could get

to the specifics.

And on July 16, 1998, La Bella submitted a memorandum calling

for independent counsel, and on the 23rd of July, I had asked for

that report.

Now, we have had the recommendation of Mr. Litt, one of your

top deputies, calling for independent counsel. And it was not until

April 18th of this year, just 2 months ago, that the Vice President

was questioned about the Hsi Lai Buddhist Temple and about the

coffees, although those matters were well known back in 1997 and

were commented on extensively by the Governmental Affairs Committee at that time. And it appears that the questioning of the Vice

91

President on April 18 may have been motivated by the fact that the

Judiciary Committee finally—finally—issued subpoenas for the

Freeh and La Bella memoranda which were returnable on April 20.

And they were known to the Justice Department several weeks in

advance of that time, so that the Justice Department finally got

around to asking the Vice President about the Hsi Lai Temple and

the coffees on April 18th, although the Vice President had been

questioned on four prior occasions.

Now, it appears to me that it may well be too late at this point

to have special counsel—that is the name now under the Attorney

General’s regulationsbecause it would interfere with the election in

2000. And it is curious that matters arising out of the 1996 election

should not have been laid to rest long ago when they were the

focus of attention within a few months after the 1996 election.

I would be interested in your comments, although I am pretty

sure of the answer, as to whether special counsel could be appointed and clear the Vice President before the Democratic Convention. And I think that is not realistic, probably not even realistic

to have special counsel appointed and clear the Vice President or

not clear the Vice President before the general election.

Now, it may be that the only alternative America has at this

point in this election is to leave it to the political process with the

Vice President stating his position and his opponent in a Presidential campaign stating his position. And it may be only 20/20

hindsight, but in light of the very emphatic statements you made

when you came for confirmation, asking this committee to approve

you, which we did, asking for our votes, which I cast in the affirmative, about the need to have somebody outside to give credibility,

no matter how professional and credible the Attorney General is.

And I have never questioned your credibility or your integrity. But

you said that the only way to do it—you quoted Archibald Cox—

was to have somebody from the outside.

Now, a focus of the question is: Why so late? It is true you made

the decisions before. A two-part question: As close as the matter

was with your own view of independence and with the body of evidence available, why not then? And why now? Why ask a new chief

counsel of your campaign task force to question the Vice President

on April 18th when it is too late because the matter can’t be resolved in a timely way for this election?

Attorney General RENO. I can’t comment with respect to the specifics, but I can talk to you generally about how an investigation

is conducted. That is like preaching to the choir because you are

an experienced prosecutor. And in some—

Senator SPECTER. Madam Attorney General, may I interrupt

you? This is the first time and the last time I will do it, I think.

The Vice President has disclosed publicly that he was questioned

on April 18, and Mr. Conrad confirmed that. So it is not a disclosure. We know that happened. Why was he questioned on April

18th? What can be accomplished at this late date?

Attorney General RENO. First of all, you alluded to the release

of the La Bella and Freeh memoranda. Let me point out to you

that both Director Freeh and Mr. La Bella have consistently been

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cerned that it would give a road map to the course of the investigation and would be counterproductive to the investigation.

For me to discuss why something was done when would do the

same thing, and it is not right to discuss it.

What I can talk about in generalities and not reference a specific

case, you probably didn’t have prosecutors in your office, but I

sometimes had prosecutors in my office that would go interview

somebody without having all the facts. And the interview was not

nearly as good as the prosecutor who went armed with all the

facts, working towards the issues. And I can’t discuss the timing

because I think that would be inconsistent with my duty. But I just

simply tell you that when people are interviewed, when things are

done, depend on all the facts of the investigation. And I will remind

you that approximately 25 people have been prosecuted, some 20

convicted, and many have cooperated.

Senator SPECTER. Well, Madam Attorney General, one concluding

comment. I disagree with you decisively about these issues and this

timing, and you may make whatever judgment you like as to your

comments, but the Senate has very important congressional oversight responsibilities and we can comment, both officially and as

citizens with our First Amendment rights. And we are dealing with

matters, an election for the year 2000, which is a great deal more

important for this country than any individual prosecution. Prosecutions pale even by congressional oversight on the enactment of

legislation.

But I have expressed my views and you have expressed yours.

Senator Torricelli.

Attorney General RENO. I would just simply say, Senator, you

can tell me that I am wrong, but I will have greater confidence in

your telling me I am wrong when you have all the facts.

Senator TORRICELLI. Mr. Chairman, I would like to actually ask

several questions, but first I feel it necessary to return to my friend

Senator Sessions’ reading of the Vice President’s email. The emails

in question were written on March 15, 1996 from the scheduler to

the Vice President. They refer to a scheduling matter on April

28th, some 6 weeks later.

Madam Attorney General, I would assume that the Vice President of the United States in the middle of a reelection campaign

in a national campaign is far busier than I am. Would you concede

his schedule is probably somewhat more full than your own at that

period of the year?

The scheduler asks him a question by email about an event that

he is invited to go to in New York at the same time as two fundraisers in California, one in San Jose, one in Los Angeles, 6 weeks

later. There is no mention who is hosting it, no mention who is attending it, the word Buddhist, indeed, no nation in the world practicing the Buddhist faith is even mentioned. There are no details.

There are two fundraisers in 6 weeks. The e-mail asks: Are you

going to go to the fundraisers you have already accepted or the

event in New York?

To suggest that this is some significant piece of evidence that the

Vice President was aware he was going to a Buddhist fundraiser

is somewhat taking liberty with the facts. This piece of paper

would not establish that the Vice President indeed knew anything.

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Second, the committee had the opportunity to hear from a Craig

DeSantos. Are you familiar with Mr. Mansfield

Attorney General RENO. Yes.

Senator TORRICELLI. He seems to be a very fine man, and indeed

he disagrees adamantly with your recommendation not to have an

independent counsel. He disagreed with your judgment to bring the

case to Washington, but said he had no reason to think it was anything but proper, and that it was a judgment call that was properly

made.

In questioning Mr. Mansfield, the majority of the committee

seemed to think it significant that Mr. Mansfield had begun a prosecution, an investigation of the Buddhist Temple case and the case

was removed from Los Angeles to Washington. But, indeed, in the

course of questioning Mr. Mansfield, the following became clear

from memorandum written by Mr. DeSantos. Mr. DeSantos believed: A, Mr. Mansfield had too much of a workload to handle the

case; B, he had not properly handled the Kim campaign finance

case because he was focusing no—the was focusing on ancillary

matters rather than the critical questions; third, there was a policy

directive to be careful not to interfere with elections, and we were

in the middle of a national campaign; fourth, Mr. Mansfield had alleged he had already prepared subpoenas and had begun the investigation. Actually, upon questioning and a review of memorandum,

it is clear that, in fact, Mr. Mansfield had done nothing of the kind;

he had issued no subpoenas, prepared no subpoenas, and done almost no investigations.

Therefore, the removal of the case from Los Angeles to Washington was with absolutely no practical impact on the case whatsoever, and significantly, as I suggested, Mr. Mansfield even testified

that he did not take issue with the decision. I think that is significant since among all the people produced to testify before this committee, he was represented as the one who was going to disagree

with your decisions the most. In fact, this disagreement did not

exist.

Third, I would now like to read something into the record. Senator Specter and I have at great length read hundreds of memorandums, thousands of pages of testimony, and most of my colleagues

have probably not had the opportunity. It might appear frightening

to them, but I am going to read the entire text of Mr. La Bella’s

memorandum dealing with Vice President Gore.

Now, the light is on yellow, so this might seem impossible, and

maybe I won’t succeed. But I can accomplish this in 30 seconds,

and not just because I am from New Jersey.

Here is the entire memorandum regarding the Vice President of

the United States in this investigation: ‘‘During the investigation

concerning Vice President Gore’s fundraising calls from the White

House, the Department concluded that he did not solicit hard

money and, therefore, could be in no violation of 607. The fact is

that Gore, using a credit card, placed several calls to the White

House to pitch soft money contributions. The Vice President denied

that he was aware that the soft money contributions were routinely

being split between receipts by the DNC between soft and hard accounts. He stated in his interview that he did not recall the Ickes

memo directed to him on the issues or the discussions at the regVerDate 11-MAY-2000 22:37 Oct 05, 2001 Jkt 075237 PO 00000 Frm 00097 Fmt 6633 Sfmt 6602 E:\HR\OC\C237.XXX pfrm07 PsN: C237
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ular Wednesday night meetings about this point. The Vice President’s failure to recall reading the memo sent him is reminiscent

of his claim not to have read the April 1996 memo advising him

that he was to attend the Hacienda Heights, California, temple

event. Quite apart from the 607 analysis, it is evident that to the

extent that either the Common Cause allegations, conspiracy to defraud the United States, presents a viable potential violation of

Federal law, the Vice President would certainly be among those

whose conduct would be reviewed. Like President Clinton and Harold Ickes, he participated in the fundraising and strategic effort of

the White House as they impacted the DNC and the Clinton-Gore

1996 campaign.’’ That, Madam Attorney General, as you are well aware, is the

sum total of Mr. La Bella’s recommendations, evidence, and allegations regarding the Vice President. This committee is led to believe

that based on that analysis, your judgment not to appoint an independent counsel is somehow suspect, that this was not a judgment

call upon which reasonable people could differ.

Mr. Radek, upon having read that memorandum, concluded the

following: ‘‘The portion of the report devoted to Vice President Gore

is only one-page long. It is so superficial that I am at a loss at to

know how to proceed. Because we are offered no facts or analysis,

I am unable to offer any views on this recommendation. With respect to the apparent criticism of the Attorney General’s conclusion

last year that the fundraising calls did not warrant appointment of

independent counsel, the report makes no specific points. Thus, I

am unable to even respond. Our conclusions that these were soft

money solicitations and, thus, outside the scope of Section 607 was

based on the results of hundreds of interviews with those who participated in the calls and the examination of scores of documents.

In addition, as a wholly independent ground supporting our recommendation, we documented a well-established departmental policy of not prosecuting 607 violations absent aggravating circumstances not present here.’’

A great deal will be said in this committee; an enormous amount

has been written. That is the conflict. Mr. Radek I think put it

best: It was too simple, in my opinion too sophomoric, it presented

no compelling evidence, nothing that should have denied you reaching the judgment you actually reached. Indeed, I believe Mr. Radek

was kind.

That, Mr. Chairman, I am sure our colleagues are surprised to

know, is what Mr. La Bella found after his investigation. That is

the report. That is all that is before this committee.

Senator SPECTER. Well, I am going to take the liberty of the

chairman for just less than minute to supplement what you read

as to what Mr. La Bella wrote, because there is more. In addition,

he wrote, ‘‘The type of analysis involved in determining whether

the Vice President was part of the scheme to solicit soft money,

knowing that it would be turned to hard money for the media campaign, is subjective and open to debate. By routinely embracing the

most innocent inference at every turn, even if the inferences are

factually indefensible, the memorandum creates an appearance

that the Department is straining to avoid the appointment of an

independent counsel and foreclose what many would characterize

95

as an impartial review of the allegations. When you look at the

facts, the memos, the messages, and the DNC practice, it is hard

to say that there is only one conclusion to be reached, but there is

a great deal more’’ than La Bella. There is Freeh, there is Parkinson, there is Litt, and now there is Senator Grassley.

Senator GRASSLEY. Well, first of all, Mr. Chairman, based on

comments that the Attorney General made in response to my opening statement on the advice of counsel argument, I want to enter

a document in the record as a counterresponse. I don’t know if

General Reno knows if you have had—if she has had a chance to

review the FBI internal documents that they provided our subcommittee, but I think that these documents show that the FBI

general counsel, as articulated by the Director, scoffed at the legitimacy of the advice of counsel argument. I believe that document

is from Larry Parkinson. He is the FBI general counsel. And so I

hope to pursue the issue of inserting that memo in the record to

balance out the Attorney General’s response. The document is located in S–407, and I have asked the staff to retrieve that, and I

hope that we could put that in there to balance——

Senator SPECTER. Without objection, it will be made a part of the

record.

[The letter follows:]

DECEMBER 4, 1998.

MEMORANDUM

To: Director Freeh.

From: Larry Parkinson.

Subject: Independent counsel matter: Potential election law violations involving

President Clinton and Vice President Gore.

For purposes of your consultation with the Attorney General on the pending independent counsel matter, this memorandum is intended to summarize our discussions on the key issues. For the reasons stated below, it is appropriate to recommend that she seek the appointment of an independent counsel to investigate potential election law violations involving President Clinton and Vice President Gore.

Because similar allegations have been made against the Dole presidential election

campaign, the independent counsel should be authorized to investigate those allegations as well.

This memorandum is divided into two parts. The first section focuses primarily

on the narrow question presented at the end of this 90-day preliminary inquiry: is

the advice of counsel defense sufficient for the Attorney General to conclude by

‘‘clear and convincing evidence’’ that the President and Vice President lacked the

requisite criminal intent? The second section discusses broader issues that justify

the appointment of an independent counsel (regardless of the outcome on the narrow legal issue).

I. THE 90-DAY PRELIMINARY INQUIRY

A. Threshold issues

The Radek/Vicinanzo memorandum dated November 20, 1998 (‘‘DOJ memo’’)

streamlines the discussion by resolving correctly several important threshold issues.

First, the memo defers appropriately to the FEC auditors’ conclusion that the DNCfinanced ‘‘issue ads’’ can be attributed to the Clinton/Gore campaign committee,

thereby violating the spending limits. That conclusion obviously has been strengthened by this week’s public release of the Audit Division’s final report. The audit report, along with the very strong concurring opinion by the FEC Office of General

Counsel, makes a compelling statement that the Clinton/Gore campaign illegally

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1 As you know, the career FEC auditors and lawyers reached similar conclusions about the

Dole campaign. 2The FEC Commissioners met in public session on December 3, 1998. Campcon had agents

in attendance and has reported that several of the Commissioners appeared hostile to the Audit

Report. As expected, the final resolution by the Commission is uncertain. One thing that does

appear certain, however, is that there will be no resolution for at least several months. Thus,

there appears to be little reason for the Attorney General to seek a 60-day extension of the preliminary investigation. 3This total White House control of DNC expenditures raises a significant legal issue. As you

will recall, in our January 30, 1998 memorandum to DAG Holder, we argued strongly that this

was a case about ‘‘control’’ and not mere ‘‘coordination.’’ Based on their discussions with the FEC

auditors and attorneys, our agents believe that the FEC has acquired only a fraction of the evidence that Campcon has obtained regarding ‘‘control.’’ When asked how they would treat a situation in which there was total control of committee expenditures by a campaign, the FEC staff

responded that it was an intriguing scenario with which they had never been faced.

benefited from the media campaign.1 Therefore, the basic facts that led to the initiation of the 90-day preliminary inquiry—the audit finding—have become stronger.2

The DOJ memo also resolves the issue of control, after setting forth a good factual

summary of the genesis and development of the issue ad campaign. The memo correctly concludes that the ad campaign was controlled in all major respects by the

White House:

[T]here was little dispute that the DNC issue ad campaign was not only coordinated with the White House but controlled by it. Fowler described the

White House control as ‘‘near absolute.’’

DOJ Memo at 29. Among many other things, the memo relies on the April 17, 1996

from memo from Ickes to Fowler establishing that all DCN expenditures were subject to prior White House approval.3

With respect to the purpose of the media campaign, the DOJ memo appears to

give credence to the witness statements that the primary purpose of the issue ads

was to aid the Democratic party and not to reelect the President. Such statements

appear to be disingenuous at best; the documentary evidence clearly indicates that

the primary purpose of the ads was the reelection of the President. In fact, the FED

Audit Report takes the matter a step further: not only does it flatly reject the argument that the ads were not intended primarily to reelect the President, it essentially alleges an outright fraud:

The Audit Division does not dispute that the advertisements in fact address pending political issues. However, the facts ascertained during the

audit indicates that the primary purpose for addressing these issues was

to assist President Clinton’s reelection. It further appears that those facts

which might otherwise demonstrate that the purpose and ‘‘targeting’’ of the

advertisements were related to an overall party agenda (rather than the

President’s reelection) are true because of a deliberate effort to conceal the

actual purpose of the advertisements.

FEC Audit Division Report on Clinton/Gore ‘96, at 42 (emphasis added).

Although its own analysis of ‘‘purpose’’ leaves something to be desired, the DOJ

memo does reach a very significant conclusion: ‘‘it is clear that [President Clinton

and Vice President Gore] both were sufficiently involved to be deemed coconspirators or aiders and abettors of any potential criminal violations of the FECA or

PPMPAA.’’ DOJ Memo at 31. This is an enormously significant conclusion in light

of the FEC audit findings that there were violations of the relevant statutes. We

are left, then, with the sole issue of whether the President and Vice President committed such violations ‘‘knowingly and willfully.’’

B. Advice of counsel defense

I view the advice of counsel defense as fairly strong in this case, but not strong

enough to satisfy the ‘‘clear and convincing’’ standard under the Independent Counsel Act. I strongly disagree with the statement in the DOJ memo that ‘‘it is hard

to imagine a more compelling set of facts establishing an advice-of-counsel defense.’’ DOJ Memo at 40. While there appears to be no dispute that two of the lawyers representing the DNC and Clinton/Gore—Sandler and Utrecht—were involved significantly in the ad campaign process, the DOJ memo itself notes certain factors that

cut against a viable advice of counsel defense.

1. No direct contact between lawyers and principals

The memo points out that where the attorneys never advise the principal clients

directly, this undercuts to some degree the advise of counsel defense. It appears to

be undisputed that the two experts, Sandler and Utrecht, never had direct contact

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4 Apparently both Utrecht and Sandler are recognized experts in the election law arena, which

has very few practitioners. Utrecht in particular is a very impressive witness, according to the

agents who interviewed her.

with the President or Vice President. Instead, their advice filtered through intermediaries. The principal intermediary was Harold Ickes, who is, after all, the subject of a separate investigation for perjury. (While the perjury allegations are unrelated to media fund issue, does it make sense to shut down an investigation based

on an advice of counsel defense where the person actually relaying the advice is

about to have his own independent counsel?)

There appears to be relatively little evidence that actual legal advice was transmitted to the President or Vice President. Instead, this seems to be a situation in

which the President and Vice President were told that ‘‘lawyers were involved’’ and

that seemed to satisfy them. (See, e.g., DOJ memo at 40: ‘‘The Vice President felt

confident that Quinn, who had some expertise in this area and was a good lawyer,

had ensured that the ads were legal.’’) While certainly relevant to state of mind, this

kind of evidence is not particularly persuasive in establishing a solid advice of counsel defense.

It also appears that the President and Vice President were relying primarily on

Ickes and Quinn, even though they were not acting in a legal capacity. At the time,

Ickes was Deputy Chief of Staff to the President and Quinn was Chief of Staff to

the Vice President. The fact that they also happened to be lawyers does not necessarily mean they were dispensing ‘‘legal advice’’ for purposes of analyzing an advice of counsel defense.

Finally, there is one clear indication that the legal advice of Sandler and Utrecht

may not have been getting through. As noted in footnote 11 of the DOJ memo (p.

22), ‘‘Sandler and Utrecht stated that they consistently applied the ‘electioneering

message’ legal standard, not the express advocacy standard, when they reviewed the

content of the DNC ads. Yet virtually every other witness recalls Sandler and

Utrecht’s advice in terms of express advocacy.’’ While the memo concludes that this

inconsistency is not significant, certainly it raises some question about whether the

attorneys’ advice was being heard and heeded.

2. The attorneys were not disinterested

The DOJ memo points out accurately that Sandler, as general counsel for the

DNC, and Utrecht, as general counsel for the Clinton/Gore campaign committee,

‘‘worked for organizations with an unmistakable interest in ensuring the reelection

of President Clinton,’’ DOJ Memo at 38. The memo also states that ‘‘courts have declined to instruct juries on advice of counsel where the evidence indicated that the

attorney was not disinterested in the outcome.’’ Without impugning their integrity

or professionalism,4 Sandler and Utrecht certainly were not disinterested in the outcome.

3. No one sought advice from the FEC

If the DNC or Clinton/Gore truly wanted disinterested—and dispositive—advice

on whether the spending for ‘‘issue ads’’ was properly allocated, they obviously could

have gone to the FEC. They chose not to, presumably because they were afraid they

might receive an answer they did not like. (When I met with the FEC’s Chief Auditor in September 1998, he reacted viscerally when I asked him if the DNC or Clinton/Gore had ever sought advice on these matters.)

4. The Sandler memo

There is one clear indication that Sandler—one of the two lawyers critical to a

viable advice of counsel defense—had doubts about whether the media campaign

was violating the law. In a February 2, 1996 memo to Don Flowler, Sandler stated:

Under (the FEC’s legal) test, the DNC is bumping up right against (and

maybe a little bit over) the line in running our media campaign about the

federal budget debate, praising the President’s plan and criticizing Dole by

name.

(Emphasis added). When the same memo was sent to Ickes at the White House, it

had been rewritten to state that the FEC’s ‘‘electioneering message’’ test ‘‘is the

standard we are applying (albeit aggressively) in the current DNC media campaign.’’ When interviewed about these memos, Sandler gave a contorted explanation

which led our agents to believe he was lying.

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5 In fact, because of the deadlines required for preparation and review of the DOJ memo and

subsequent deliberations, the actual investigation was approximately 60 days.

5. The investigation was by definition limited

As is true in any preliminary investigation conducted pursuant to the Independent Counsel Act, we conducted this 90-day inquiry 5 without the use of standard

investigative tools. Therefore, we had to rely on voluntary production of documents,

voluntary statements by witnesses, and agreed-upon attorney-client privilege waivers. While our agents felt that they received full document production from the

DNC, they were not confident that all relevant White House documents had been

produced. While I am unaware of any specific documents we believe to be missing,

Campcon has had significant difficulties with White House document production

since the Task Force began its work.

C. The ‘‘clear and convincing evidence’’ standard

Under all the circumstances, it is reasonable to conclude by ‘‘clear and convincing

evidence’’ that the president and Vice President lacked the requisite state of mind?

As we pointed out during deliberations on the recent Gore and Ickes matters, Congress clearly intended to set a very high threshold before an Attorney General could

close a case, either before or after a preliminary investigation, on the ground that

the subject lacked the state of mind necessary to commit the alleged crime. In 1987,

Congress amended the Independent Counsel Act in an effort to curb what it viewed

as a ‘‘disturbing’’ practice by the Department:

A third problem with the Department of Justice’s implementation of the

statute is its practice in several cases to decline further proceedings, despite

specific information from a credible source of possible wrongdoing, due to

a lack of evidence of the subject’s criminal intent. The decision not to proceed has sometimes been made even in the face of conflicting or inconclusive evidence on the subject’s state of mind.

* * * * * * *

The Justice Department’s demand for proof of criminal intent to justify

continuing independent counsel cases is disturbing, because criminal intent

is extremely difficult to assess, especially in the early stages of an investigation. Further, it often requires subjective judgments, which should

ideally be left to an independent decisionmaker. It is not the type of factual

question that the Attorney General’s limited role in the independent counsel process and lack of access to important investigative tools such as grand

juries and subpoenas.

1987 U.S.C.C.A.N. at 2159–60.

The 1987 conference agreement emphasized, ‘‘The conferees believe it will be a

rare case In which the Attorney General will be able to meet the clear and convincing standard and in which such evidence would be clear on its face. It would

be unusual for the Attorney General to compile sufficient evidence at that point in

the process.’’ Id. At 2190 (emphasis added).

The question is whether this is one of those ‘‘rare cases.’’ We should bear in mind

the accurate conclusion that the President and Vice President ‘‘both were sufficiently involved to be deemed coconspirators or aiders and abettors of any potential

criminal violations of the FEC or PPMPAA,’’ DOJ memo at 31. There was a conscious, well-orchestrated effort by the White House to evade the spending limits

through the media campaign. Moreover, this kind of campaign was unprecedented,

as the President readily acknowledged when he bragged to his supporters about how

he had found a new way to spend enormous amounts of money for the campaign.

Under all the circumstances, notwithstanding the potentially viable advice of counsel defense, this matter should not be closed on a ‘‘clear and convincing’’ finding.

II. BROADER ISSUES: CONFLICT OF INTEREST

Even if the Attorney General determines that there is ‘‘clear and convincing’’ evidence of a lack of intent in this 90-day matter, she should step back and consider

the impact of closing this investigation. It would be fair to summarize the decision

in the following way:

—For two years, the investigators advocated a need to conduct a broad investigation of the entire campaign financing scheme conducted by the White House and the

DNC, including both the raising of campaign money and the spending of that

money. The media campaign was critical to the reelection and many of the apparent

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6 In April 1998, the Task Force investigators developed a investigative plan and dubbed it the ‘‘Media Fund’’ plan. Because it was never clear how the Task Force could investigative the ‘‘media fund’’ while steering clear of the Common Cause allegations, the investigative plan was

necessarily truncated. In any event, beginning in May, the investigators began to conduct the

‘‘media fund’’ investigation and obtained a significant amount of information that became very

useful during the current 90-day preliminary investigation. That investigation consisted primarily of interviews of state party officials in a dozen key battleground states (focusing on the

use of the state parties as conduits for the DNC), document production by the media consultants, and interviews of three DNC employees (Brad Marshall and two lower-level employees).

criminal abuses resulted from the need to keep the money flowing into the media

fund. —For nearly two years, investigation of the media fund was largely off-limits

while the Department debated internally about the scope of the campaign finance

laws and whether we should defer to the FEC. In the meantime, the Task Force

pursued a variety of individual cases largely independent of one another. —While we were debating internally on the broader issues, the FEC was actually

working on a comprehensive audit of the two presidential campaigns (much to our

surprise). Contrary to the prevailing view within DOJ, the FEC auditors found massive violations of the law by both presidential campaigns. —Faced with evidence of legal violations, the Department was forced to initiate

a preliminary investigation under the Independent Counsel Act. —The preliminary investigation consisted primarily (but not exclusively) of an examination of an advice of counsel defense. We went to the subjects and their lawyers and asked them what happened. They informed us that the subjects had no

criminal intent, notwithstanding the apparent violations. After investigating that

issue, we agreed with the subjects and closed the entire matter, with one exception: —The exception is the related investigation of the Dole campaign. Since we have

no evidence relating to an advice of counsel defense for that campaign, we will keep

that investigation alive, particularly in light of the FEC’s recent Audit Report.

The media fund/Common Cause allegations have always been the biggest piece of

the campaign finance scandal. In large part, those allegations led to the creation of

the Campcon Task Force in the first instance. Nevertheless, those allegations have

never been investigated in any comprehensive or organized way. Nearly a year ago

(January 1998), we sent a detailed memorandum to the Department seeking a comprehensive investigation of the Common Cause allegations. In that memo, we stated:

‘‘[T]he Common Cause allegations are the most serious of those issues

raised in connection with the investigation of campaign finance.’’ In a series

of well-researched submissions, Common Cause has described a scheme to

circumvent the FECA and presidential funding laws on a breathtaking

scale. For knowing and willful violations of these laws, Congress provided

for criminal penalties.

It has been nearly 16 months since Common Cause first brought these

allegations to the attention of DOJ. The Department has on more than one

occasion written to Common Cause stating that the Task Force is ‘‘reviewing a variety of campaign financing issues arising out the last national election’’ and is ‘‘examining’’ the soft money issues raised by Common Cause.

In fact, the Task Force has undertaken no actual investigation of these allegations. Consequently, some of the most fundamental questions relating to

the 1995–96 presidential campaign remain outstanding: —How were the campaign funds raised? —How were they spent? —How were they allocated and reported for FECA purposes? —Who made the fundraising and spending decisions?

While the Task Force has uncovered partial answers to these questions,

in particular the last one, it is not because we have addressed them in any

systematic investigative fashion. Instead, our information has come primarily from Common Cause, the newspapers, and tangentially from our investigation of other matters.

Very little has changed in the last year. After several months of memos and discussions last winter, in February the Attorney General took under advisement the

matter of whether the Common Cause allegations could be investigated. We never

received a response until July of 1998, when we read (with great surprise) the Attorney General’s congressional testimony in which she stated that the Department

was deferring to the FEC.6

Our January 1998 memorandum also recommended the immediate appointment

of an independent counsel:

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Because the Common Cause allegations clearly involve the President,

they must be investigated by an Independent Counsel. Moreover, the Attorney General should seek the appointment of an Independent Counsel immediately. Since the Department has had the allegations for nearly 16 months,

a preliminary inquiry does not appear to be an option. Finally, we once

again would incorporate by reference the FBI’s prior written submissions

recommending that, independent of the mandatory provision of the Independent Counsel statute, the Attorney General should exercise her discretionary authority pursuant to the political conflict of interest provision.

Notwithstanding the passage of time, our arguments remain the same. If anything, the need for investigation has increased. Intentionally or not, the Department

has deferred to the FEC, which has spoken publicly in a resounding way.

For nearly two years, the Department has been investigating the potential criminal conduct of the President and Vice President. That is an inherent conflict of interest that the Independent Counsel Act was designed to address. Even if the Attorney General concludes by ‘‘clear and convincing evidence’’ discretionary authority

and seek the appointment of an independent counsel.

Attorney General RENO. Do you have that, sir?

Senator GRASSLEY. Yes, I think we do have it.

Attorney General RENO. May I see it, please?

Senator GRASSLEY. Oh, we have it in 407.

Senator SPECTER. I think we can provide a copy momentarily.

That is a subject that I intend to ask the Attorney General about.

Senator GRASSLEY. Well, since I have asked the staff to get

that—we do not have it, so we would request then that that be

given to us so we can include it in the record.

Senator SPECTER. Well, I am sure we can obtain it. All of those

documents have been released into the public domain.

Attorney General RENO. I would refer you to page 3 of a memorandum from Larry Parkinson to Director Freeh. ‘‘I view the advice

of counsel defense as fairly strong in this case, but not strong

enough to satisfy the ‘clear and convincing’ standard under the

Independent Counsel Act.’’ Senator GRASSLEY. OK.

Attorney General RENO. That is somewhat at odds with whatever

document you have, sir, and I would like to see it, please.

Senator GRASSLEY. Okay. Well—— Senator SPECTER. Well, we will get to that. Mr. Parkinson in that

memorandum—— Attorney General RENO. I am just—let me deal with Senator

Grassley. All I am trying to say is he read something to me. I have

a Parkinson memo on this issue. I would like to be able to see what

you are reading from so that I might appropriately respond, since

it does not seem to be what I have.

Senator SPECTER. Well, we will be glad to make that document

available to you. But——

Attorney General RENO. May I make—because you I know you

have this, and I do trust that you will look at it and note that he

viewed the advice of counsel defense as strong.

Senator SPECTER. Well, the memorandum by Mr. Parkinson goes

into some detail in dismissing the advice of counsel argument on

a number of grounds: first, that the two lawyers, Joseph Sandler

and Lynn Utrecht were not disinterested parties. Mr. Sandler was

general counsel for the DNC, and Mr. Utrecht or Lynn Utrecht was

general counsel for the Clinton-Gore campaign.

He further dismisses the advice of counsel argument on the

ground that those lawyers did not give their advice directly to the

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President and Vice President, but to intervening individuals, Mr.

Ickes and Mr. Quinn, who were not disinterested parties.

And, finally, he dismisses the advice of counsel argument on the

ground that there was a reservation by Mr. Sandler who said,

‘‘Under the test, the DNC is bumping up right against and maybe

a little bit over the line.’’ So that as you accurately quote, Attorney

General Reno, he does say that it doesn’t satisfy the clear and convincing evidence test, but Mr. Parkinson thoroughly debunks the

advice of counsel defense in his written memorandum.

Attorney General RENO. No, Senator, I would take issue with

you. He does not debunk it. He calls it fairly strong. What he says

is: I can’t meet the clear and convincing evidence test that the statute requires for showing intent. But he does not address the points

made in 6 through the end of the notification to the court, and I

would ask that Senator Grassley be given a copy of it so that he

can understand the lengths that we went to, the law that we considered, and I will be happy to make this available to him if it is

not with the committee.

Senator SPECTER. Well, we are going to get into the point a little

later in detail. Whether you agree with the conclusion that he debunks it or not, he conclusively comes to the judgment that it was

not sufficient to reject the appointment of independent counsel.

Wouldn’t you agree with that, Attorney General Reno?

Attorney General RENO. Let me get it for you again and just go

over the points so that you can understand.

Senator SPECTER. Well, I do understand, and Mr. Parkinson

comes to the conclusion——

Attorney General RENO. Well, he certainly didn’t debunk it——

Senator SPECTER. Excuse me. I want to finish my sentence. That

the defense of advice of counsel does not constitute clear and convincing evidence to negate the requisite intent. Isn’t that correct?

Attorney General RENO. He says, ‘‘I view the advice of counsel

defense as fairly strong in this case, but not strong enough to satisfy the ‘clear and convincing’ standard under the Independent

Counsel Act.’’

Senator SPECTER. That is what I said.

Attorney General RENO. He and I disagree on that, and we have

set forth our position and I think made it very clear.

Senator SPECTER. Well, I understand you disagree. The point was

whether Mr. Parkinson found the clear and—found the advice of

counsel argument sufficient to reject——

Attorney General RENO. He did not find it sufficient, as I pointed

out, but neither did he debunk it.

Senator SPECTER. Well, I think the point has been made. He said

that the argument did not support your conclusion that independent counsel should not be appointed.

Attorney General RENO. I was responding to Senator Grassley’s

comment that indicated that he did not think the advice of counsel

defense was very strong.

Senator SPECTER. Senator Grassley and I have passed the 20-

year test. We help each other out occasionally.

Senator Grassley.

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Attorney General RENO. I don’t think Senator Grassley needs

anybody to help him. I have found him very constructive and very

thoughtful and an excellent advocate.

Senator GRASSLEY. Now, we will have to end this right here by

my saying to you that we are going to pursue that document from

S–407, get that to you, and if we—we may have to do it by our response in writing, but we will give you a chance to respond to that.

Attorney General RENO. Thank you, sir.

Senator GRASSLEY. I think I might have time for a couple of

questions, and I am well aware of your admonition that I should

be appreciative of Mr. Radek’s work, as you are.

Attorney General RENO. Could I just say something? Everybody

has been calling him Mr. ‘‘Ra-dek.’’ It is Mr. ‘‘Ray-dek.’’ Senator GRASSLEY. Well, Mr. Radek. Now, going on from that

point, we are talking about the same person.

I want to ask you a question, and that is in reference to the fact

that I had made reference to an inspectors general meeting and

how a U.S. attorney had offered their services as an alternative to

career investigators trying to present evidence of misconduct

against high-ranking officials. I was wondering if you were aware

of the feeling among at least some U.S. Attorneys—and there was

only one U.S. Attorney at this meeting that spoke about this—of

the frustration with the Public Integrity Section. And were you

aware of that Public Integrity Section’s reputation?

Attorney General RENO. I am aware of their reputation of calling

it like they see it, of looking at all the evidence, of not jumping to

conclusions, of making the best judgment they can. I am also away,

after 22 years as a prosecutor, that nothing can get an investigator

more upset than somebody that tells them you need to get more

evidence, and that there is an inevitable tension and conflict. And

I think it is important that we look at each case.

I have met with the inspectors general, talking about how we can

build better lines of communication. I have worked with the U.S.

Attorneys in the Criminal Division to make sure that there is coordination between them and that some of the tension that exists

be resolved by establishing direct lines of communication and understanding what is necessary.

Senator GRASSLEY. On another point, but still in regard to Mr.

Radek, at a previous hearing he had expressed his displeasure with

the independent counsel. So my question to you is: Did he ever express his displeasure with the independent counsel statute to you?

Attorney General RENO. Yes.

Senator GRASSLEY. Then my question to you is: How did you

weigh that in your decision?

Attorney General RENO. Well—do we have that?

Apparently, when the Independent Counsel Act was being considered, for example, in 1981, the then Associate Attorney General

Rudolph Giuliani testified before the Senate Committee on Governmental Affairs urging that the action be repealed. He said, ‘‘The

system depends quite properly on the integrity of the Department

of Justice personnel. The assumption upon which the special prosecutor law is premised, that the Department of Justice should not

be trusted to investigate or prosecute certain Federal offenses, is

simply unfounded.’’

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I think I relied on Lee Radek like the administration at the time

relied on Rudy Giuliani as a vigorous prosecutor.

Senator GRASSLEY. And so then the bottom line of that is that

Mr. Radek’s view of the independent counsel law and the fact that

he didn’t like that was in no way—or you saw that in no way of

lessening his opinion about whether or not there ought to be an investigation or counsel—— Attorney General RENO. There are so many things that come up

where people disagree and still carry out the law and do it the

right way.

Senator SPECTER. Thank you very much, Senator Grassley.

Senator Kyl.

Senator TORRICELLI. Mr. Chairman, if I could ask how we are

going to proceed here, the Democratic Party obviously would like

to continue to be heard in this rotation.

Senator SPECTER. All they have to do is appear and they will be

heard, as the court crier says all the time.

Senator TORRICELLI. Previously we have been alternating a balance, regardless of the number of people who were here on each

side. Is it your intention now to proceed entirely with the Republican side before returning—— Attorney General RENO. While you are deciding that, may I take

a break?

Senator SPECTER. Yes, of course. We will take a 10-minute break.

[Recess 4:38 to 4:47 p.m.]

Senator SPECTER. We will turn to Senator Sessions.

Senator SESSIONS. Senator Torricelli and I have talked about this

email matter, and he raised a point of interest, skillfully, as he always does. I would note that the e-mail I had reference to was

dated March 15 from his assistant to Vice President Gore saying

that Rabbi Grossman has invited you to appear to give the keynote

address at the rabbinical counsel in New York. Then she went on

to say, ‘‘This is the same evening you wanted to fly out to California and do the two fundraisers in San Jose and L.A.’’—Los Angeles—‘‘while Sarah and Mrs. Gore visit colleges.’’

So I would just say that responds directly to his inquiry and direction about the fundraisers, and she said further, ‘‘We have confirmed those two fundraisers for Monday, April 29.’’

Then the Vice President the next day, March 16, responds, ‘‘If we

have already booked the fundraisers, then we have to decline.’’ And

there were two that day, the San Jose and the temple fundraiser.

And I must note that that appears to be the 16th, the day after

the Vice President, as I recall the facts, met with John Huang,

Maria Hsia, and the temple master in the White House. And I

would suggest it would be quite likely that they would have discussed on that day that a fundraiser was to occur in the Buddhist

temple fundraiser, at least in Los Angeles. It is a matter that does

not prove a criminal case. It is a matter that I would suggest that

provides some credence to the fact that the Vice President would

have known this was a fundraiser; would you not agree, Attorney

General Reno?

Attorney General RENO. I will not comment, sir. I do not think

it is right to comment on a pending investigation before all of the

facts are in, and I shall not.

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Senator SESSIONS. I appreciate that and respect that. Our problem here is that the Executive Branch has exclusive prosecutorial

responsibility and since we have given up the independent counsel

procedure, there is no other procedure for that. So I think it is particularly legitimate, under this new time, that the Congress watch

closely when the Executive Branch is called upon to investigate

itself. And that is why I justify Senator Specter’s concern about

this and desire to have a hearing. And I am not asking you to say

what you cannot say, but I do believe that it is a matter of utmost

importance and that the American people need to have complete

confidence in this procedure.

Attorney General RENO. And I do urge you to watch carefully.

Senator SESSIONS. The matter that really has caused me distress

and to lose some confidence in what has taken place so far with

regard to this investigation and its late ripening was what occurred

in 1996, Attorney General Reno. That is when Assistant U.S. Attorney Mansfield prepared, at least initially, some papers toward commencing an investigation of the temple fundraiser after he read

about it in the newspaper. Of course, he had successfully convicted

Republican Congressman Kim on campaign finance matters, and

he saw this arise in the newspaper and begin to take some steps

toward proceeding with it. Perhaps there was a misunderstanding

about whether he actually issued subpoenas, but we saw the paperwork where he had commenced the paperwork toward issuing subpoenas.

And I guess my question to you is, well, before he got very far

toward that end, he received a directive, verbal and written, from

Mr. Radek to stop the investigation, that Mr. Radek and Public Integrity was taking it over. Were you aware that that directive had

gone out to stop that investigation?

Attorney General RENO. I was aware that they were trying to do

everything they could to make sure that any case that might be

subject to the Independence Counsel Act be appropriately considered.

Senator SESSIONS. So you basically understood that Los Angeles

would be stopped from what they were doing and that Public Integrity would take it over.

Attorney General RENO. That is correct.

Senator SESSIONS. Were you aware that from the date that Public Integrity took that over—well, let me back up. One of the things

that triggered that, if you will recall, was a letter from Senator

McCain and five Congressmen requesting an independent prosecutor, listing some concerns. Part of that was the Buddhist Temple fundraiser that they listed. Do you recall that?

Attorney General RENO. I recall the 5-star letter, sir.

Senator SESSIONS. Yes. And that is what triggered, as I understand it, Mr. Radek’s and your decision to intervene and take it

over. Were you aware that after it was taken over that no subpoenas were issued, no witnesses were interviewed, no records

were obtained from the Buddhist Temple fundraiser, and that the

recommendation Mr. Radek made to you to decline an independent

counsel at that time was based solely on newspaper articles and

maybe the letter from the Senators and Congressmen?

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Attorney General RENO. I do not know to what you are referring,

sir.

Senator SESSIONS. Well, in our hearings, Mr. Radek testified that

he did not conduct any investigation, did not interview any witnesses, and did not obtain any records, as the assistant U.S. attorney in California had planned to do, but yet he still made a recommendation that there was no basis for an independent counsel.

And my question is did you know he had conducted no investigation to obtain any information?

Attorney General RENO. I do not think so, sir. If you have the

language from—if you have the transcript, I will take a look at it

and try to understand it better.

Senator SESSIONS. I hope you would because, to me, Mr. Mansfield, the experienced prosecutor in California, testified that he was

very concerned and actually had a contentious telephone call or two

with the Public Integrity Section, in which he expressed concern

that witnesses would disappear, that records could be destroyed.

And we know, since that time, that a number of the witnesses have

left the country, that Ted Sioeng has left the country, a man whom

the Vice President was sitting next to at this fundraiser, that one

of the nuns admitted destroying evidence ‘‘because we did not want

to embarrass the Vice President,’’ and that the video of the event

was never obtained.

Are you familiar with those circumstances?

Attorney General RENO. No, sir. What I am familiar with is a letter to Congressman Gilman, dated November 29, 1996, in which he

said, ‘‘Mark Richard wrote saying the issues raised in your letter,

taken as a whole, are extraordinarily complex, both factually and

legally, and warrant careful consideration. Indeed, public interest

organizations, the press, members of Congress and the public have

recently expressed concerns about campaign financing practices by

both parties in the recent national election. As a result of these serious and legitimate concerns, a task force has been created within

the Public Integrity Section of the Criminal Division, composed of

career Federal prosecutors, to explore fully the range of allegations

and issues that have been raised. The task force will determine

which, if any, warrant criminal investigation or any other action by

either the Department or an independent counsel and will conduct,

with the assistance of the appropriate investigative agencies, any

criminal investigations that are warranted.’’

My understanding is that the Temple matter was thoroughly investigated by the task force, and if we, at that time, had uncovered

any information that showed that there was specific and credible

information that a covered person may have committed a crime, we

would have triggered the Independent Counsel Act.

Senator SESSIONS. But what happened was, just to be clear, in

Mark Richards’ letter that you just referred to, on Page 1, the last

paragraph, says, ‘‘We reviewed your letter * * *’’ that is to the Congressman ‘‘* * * as well as press reports and correspondence we

have received.’’ But it indicates pretty plainly that they did nothing else, and

this was the 30-day preliminary inquiry period that, it seems to

me, quite important that that investigation should have initiated,

key witnesses should have been interviewed, documents should

106

have been obtained, if possible, and then we would have been in

a lot better position to make a decision than based on press reports; would you not agree?

Attorney General RENO. I think that there are certain thresholds

for investigation. And I think before we trigger the preliminary investigation, that we have got to have specific and credible evidence.

Senator SESSIONS. Well, what we do know is that, later on, the

Vice President was interviewed a little over a year later and a decision was made, apparently at the highest levels, not to ask about

the Buddhist Temple matter. And it was only 4 years later, after

this assistant United States attorney had been prepared to investigate, that the Vice President was even asked about it, and that

was just a few months ago. And it was after that that Mr. Conrad

has now concluded a person outside the Department should be

called upon to conduct this investigation, pursuant to your procedures for a special counsel.

I guess my time has expired, but if you would like to comment

on that—— Attorney General RENO. Yes, I would. Mr. Conrad, and Mr. La

Bella before him, and Mr. Vicinanzo have conducted the investigation in the manner that they thought was best. And I am not talking about the Independent Counsel Act. I cannot talk about the

course of a pending investigation. I do not think that is right or

proper to try something in a committee hearing, as opposed to a

court. But I feel very strongly that all three men are very able

prosecutors and made their best judgment. I cannot control the

timing of an investigation because I cannot control the course of

trial dates, appeals and the like. But I am committed to making

sure that justice is done promptly and swiftly, no matter what the

ultimate result is.

Senator SESSIONS. Well, you have a lot of responsibilities, but I

believe your staff, and we have had indepth hearings about it,

failed you. And in a sense, you failed to supervise, in making that

declination of independent counsel at that early date without even

commencing any investigation. I think that was an error, and that

has caused us to be at this late stage, and also has caused me to

believe that the American public have a greater interest in having

a special outside counsel conducting this than an inhouse counsel.

Attorney General RENO. I know you feel that way, sir. If circumstances justify the appointment of a special counsel, I will be

the first person to do it.

Senator SESSIONS. Thank you very much.

Senator SPECTER. Attorney General Reno, we have brought down

the memo, and I will be glad to make a copy of it available to you,

on Parkinson. Let me know preliminarily that.

It starts off under the ‘‘Advice of Counsel Section’’ as follows: ‘‘I

view the advice of counsel defense as fairly strong in this case, but

not strong enough to satisfy the ‘clear and convincing’ standard

under the Independent Counsel Act.’’ You read the part about it viewing it as strong. But then he goes

on to say, ‘‘I strongly disagree with the statement in the DOJ

memo * * *’’ that is your memo ‘‘* * * that it ‘is hard to imagine

a more compelling set of facts establishing an advice of counsel defense.’ ’’

107

The ‘‘clear and convincing’’ test was put into effect in the Independent Counsel statute with the Congress in 1987 because

thenAttorney General Meese was declining independent counsel on

the ground of state of mind. So the Congress took a look at it, and

the legislative history is clear, but even beyond the legislative history, the statute says that there have to be clear and convincing

evidence of no criminal intent in order to rule out appointment of

independent counsel.

We are going to take a break in just a few minutes. A vote has

been called at 5 o’clock. We will give you a chance to read this.

Attorney General RENO. That is what I have been reading from,

sir, and that is what I would like to respond to.

Senator SPECTER. Go ahead.

Attorney General RENO. Okay. It is going to take some time. So

if you want to wait until you come back, I—— Senator SPECTER. Well—— Attorney General RENO. I want to go through the entire defense.

Senator SPECTER. All right. I would prefer, in the 4 minutes or

so that I have left, to come back to a couple of questions which

were pending on how many witnesses there were who provided evidence on hard money. In your statement, you say ‘‘only two——’’

Attorney General RENO. Which case are you talking about, sir?

Senator SPECTER. Hard money, the question about whether the

Vice President knew that—— Attorney General RENO. Are you talking about the second notification with respect to the preliminary investigation?

Senator SPECTER. I am referring to the notification, which you

signed on August 26, 1998.

Attorney General RENO. OK, sir.

Senator SPECTER. It is a closed matter. And at Page 9, and you

have referred to this, ‘‘Only two of the fifteen attendees at the

meeting even recall the topic of a hardmoney component to the

media fund being raised during the meeting.’’ Now, the evidence showed that there were four witnesses who

made statements to the FBI regarding the hard money. Leon Panetta, White House chief of staff, said there was, among other

things, ‘‘There was always a discussion and examination of the

overall DNC budget and, at a minimum, a reference to the hard/

soft breakdown in the media fund.’’ Recalls the Vice President

being there for all of these discussions as part of gearing up the

reelection campaign. Meetings were structured around presentation

to the President and to the Vice President.

And on your point that there was lack of focus, and I commented

on this before, Mr. Panetta was quoted as saying, ‘‘Make sure they

knew what the hell was going on.’’

Now, David Marshall, ‘‘recalled general discussion regarding the

media campaign, including how much the DNC had spent to date

and how much hard money was needed and how much soft money

was needed to fund the media campaign.’’

Brian Bailey, specifically, ‘‘he recalls individuals discussing hard/

soft money at the November 21, 1995, meeting,’’ and that is the one

that the President attended.

Now, when you disagree with what David Strauss provided because he had made contemporaneous notes of the November 21st

108

meeting, 65-percent soft and 35-percent hard, it may be true that

he has no independent recollection, did not testify, but his recollection was recorded, I do not think there is any doubt that that is

evidence. Whether he remembers it or not, if he has prior recollection recorded, that is admissible evidence.

So my question to you: Is it not a fact that there were not two

of the fifteen attendees, but there were three who recalled, and a

fourth provided evidence in the form of prior recollection recorded?

Attorney General RENO. My understanding is that there were

two who recalled the discussion, that a Mr. Bailey did not say he

remembered the statements; rather, when shown Strauss’s notes,

he said they might be referring to hard/soft split of funding for the

media fund, but had no memory of the statement.

Senator SPECTER. Can you speak into the microphone, please.

Attorney General RENO. The other person cited by Mr. Parkinson, Strauss, also had no memory of the discussion of the issues.

Senator SPECTER. But is it not true that Strauss had recorded

his prior recollection?

Attorney General RENO. That is correct. But the issue is what

was remembered, what was heard, what was understood, what was

remembered.

Senator SPECTER. Is not the issue what evidence there was, not

what was remembered?

Attorney General RENO. I am looking—— Senator SPECTER. If there is prior recollection recorded, is that

not evidence?

Attorney General RENO. I am looking for evidence of what the

Vice President heard, understood and remembered.

Senator SPECTER. Well, let us focus on—— Attorney General RENO. Because I cannot prosecute when I cannot prove a willful and—— Senator SPECTER. Well, let us focus on this for just a minute, and

I am going to come to the point as to whether the standard was

what you could prosecute on because I do not think that is the

standard under the—— Attorney General RENO. That is not the standard, sir. The standard, what I concluded in this instance was, ‘‘Thus, I do not believe—the evidence I do not believe provides reasonable grounds to

believe that further investigation of this matter is warranted. Notably, others attending the meeting also left it with an inaccurate understanding of the funding of the media campaign. The range of

impressions and vagueness of understandings among all of the

meeting attendees is striking and undercuts any reasonable inference that mere attendance at the meeting should have served to

communicate to the Vice President an accurate understanding of

the facts.’’ Senator SPECTER. I am going to come back to that, as I say, as

to what the prosecution standard was.

But for just a moment, I want to focus on what is evidence. You

proceed on evidence. Now, it may be a recollection, where a witness

would testify as to what the witness recollected. But when David

Strauss had a contemporaneous memorandum which says, ‘‘65-percent soft/35-percent hard,’’ that is prior recollection recorded. And

that is admissible evidence, is it not?

109

Attorney General RENO. I need to prove—I need evidence that

shows what the Vice President heard, what he understood and

what he recollected. Just because David Strauss heard something,

does not mean the Vice President heard it.

Senator SPECTER. Well, of course it does not. But it raises an inference that if David Strauss is in a meeting with the Vice President and heard something, that the Vice President heard it. It does

not prove it, but a jury could find it.

Attorney General RENO. And if David Strauss does not

remember——

Senator SPECTER. Well, that is what I am focusing on. He does

not have to remember, Attorney General Reno, if he has prior

recollection recorded. Evidence in a court of law is satisfied by prior

recollection recorded, as well as by current recollection as to what

he heard. Are you denying that as a basic evidentiary rule?

Attorney General RENO. I am talking about if you want evidence

in as to David Strauss’s memory, that is one thing. I am trying to

prove what the Vice President remembered.

Senator SPECTER. OK.

Senator TORRICELLI. Mr. Chairman, may I make an inquiry

here? We are in the middle now of a vote in the Senate. There are

going to be three successive votes on the Senate floor. The Attorney

General has been here now for 3 hours and 8 minutes. I would appreciate a moment to say before I leave, I hope it would not be the

committee’s intention to keep her here by herself for an hour while

we go with these votes, since she has been through several rounds

of questioning. But in any case, Mr. Chairman, now in this round,

you have addressed her for 10 minutes. I would like a moment, before we break to go to the vote, and it would be my hope then that

the Attorney General would have the option of leaving at this

point, in fairness to her, after so many hours of cooperative testimony.

How would you like to proceed?

Senator SPECTER. Well, if you wish to question now, I would be

glad to defer to you. And what I would suggest—well, I would ask

the Attorney General are you willing to stay longer?

Attorney General RENO. Are you going to keep me waiting for an

hour?

Senator SPECTER. No. What I would plan to do is to leave here

at about 5:18, go and vote and come back

Attorney General RENO. How long?

Senator SPECTER. About 10 minutes.

Attorney General RENO. How long after that? Because I have

a——

Senator SPECTER. About 15 minutes.

Attorney General RENO. When do you think you will conclude?

Senator SPECTER. Before 6 o’clock.

Attorney General RENO. OK.

Senator SPECTER. Senator Torricelli.

Senator TORRICELLI. Thank you.

Madam Attorney General, thank you very much for your——

Attorney General RENO. I will have to leave at 6:00, Senator, because I do have a meeting.

110

Senator SPECTER. I am going to leave now and come back, and

it will abbreviate the time.

Attorney General RENO. OK.

Senator TORRICELLI. Which makes me the only Democratic chairman of a committee in the entire Congress of the United States,

Madam Attorney General. This is an enormously powerful situation. [Laughter.]

I, actually, for the record, first, wanted to clear up several things.

Indeed, from the testimony the committee has heard in recent

weeks, your recollection, Madam Attorney General, is correct. Indeed, Mr. Strauss only recalled the hard-money discussion on his

third interview. There are only two people who remembered it initially, leaving thirteen who did not. And it is important that the

record reflect that.

Second, it is important Senator Sessions should know that on the

schedule for that day, it may well be that the e-mails indicated the

Vice President was going to a fundraiser on the 29th. They do not

indicate whose it was or anything about a Buddhist Temple. But

more significantly, the Buddhist Temple event was at 1:30 p.m. Indeed, at 6:30 p.m. that night, he did have a meeting with the Finance Committee Steering Committee at the DNC. That is not in

dispute. So, if the e-mails suggested a fundraiser on the 29th, it

was correct, but it was not necessarily the Buddhist Temple event.

Third, Senator Specter, I am sure did not, in any way, intend to

mislead the committee. But I read earlier from the La Bella memorandum of July 16, 1998, an excerpt, a single page dealing with

Vice President Gore. I read that into the record to give credence

to Mr. Radek’s conclusion that the memorandum was I think his

term was simplistic; in any case, that it consisted of a single page

and was not enough of a foundation for the naming of an independent counsel.

Senator Specter read an additional excerpt. It is important for

the record to note that is not from the La Bella memorandum of

July 16. It does not have anything to do with the July 16th memorandum of Mr. La Bella. It was written at a later time in response

to the Justice Department’s decision, and there is no evidence that

that was part of your deliberations or your decision-making process. I know he did not want to mislead the committee, but I do

think it is important the record make clear my point stands. There

was one page of analysis with regard to the Vice President. And

as Mr. Radek suggested, it was very simple in its analysis.

Third, I would like to conclude by returning to Senator Feingold’s

point. Madam Attorney General, it is too late for the 1996 elections. And people in both parties have regrets how they were conducted, and there were mistakes made, not simply by the President, and the Vice President or Senator Dole, but indeed in many

congressional elections. The laws are not being respected. There

are problems. People in our country are not regarding them properly.

It is too late for 1996. It is not too late for 2000. The burden is

primarily on this Congress, which has failed to meet its responsibility with comprehensive campaign finance reform. That is our

problem, and we should be answerable to the American people for

it. It is a breakdown of congressional responsibility.

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But there is something additional in the Justice Department.

While the Congress should be making clear that 527 organizations,

as identified in the tax code, should not be used for blatant political

purposes, coordinated with campaigns, misused by organizations,

they are not only a policy problem—in my judgment, they are a

legal problem.

And I would hope that at this point if the Campaign Finance

Task Force and the Justice Department can make a great contribution, it is not correcting the past in 1996, it is also helping to deal

with the 2000 elections. These organizations are illegal. They are

improper deductions from people’s taxes, conduits for private, corporate and even foreign money in the electoral process. They are

being coordinated with campaigns. And after the 2000 elections,

Madam Attorney General, it is going to be too late. People are

going to win or lose elections based on the misuse of the tax code

for these purposes. And just because the Congress has failed, does

not mean the Justice Department has to fail. I hope you will take

that under consideration.

Now, as a closing point, I only want to leave you then with this:

I actually, unlike my colleagues, do not fault Senator Specter for

revealing what was told to him about the interview of the Vice

President. That was his judgment. But there is another matter.

The choice between George W. Bush and Al Gore should be made

in a debate between the candidates, not a debate between leaks

from the Justice Department and statements by the Vice President.

This cannot happen again, and it is wrong.

You will make your judgments, the Department will make its

own judgments. They should be done privately, and they should be

done so on the merits. This situation should not repeat itself. And

I do not believe this is a failure of policy. It is a violation of the

law. FBI agents were present at the Vice President’s interview. The

Vice President was placed under oath. Both of those must have

been in contemplation if there was a future grand jury or a legal

proceeding.

As you know from the case of the Office of Independent Counsel

in the Lewinsky matter, in the rulings of the United States Court

of Appeals, a matter likely to be presented, in the words of the

Court, to a grand jury is a Rule 6(e) violation. It is a felony.

I do not know how it is done. I do not pretend to be giving advice

on how you administer the Justice Department. But, Madam Attorney General, someone has let the Department down. Someone has

violated the laws of the United States in revealing information that

should have belonged to you and your associates alone—not the

media, not me, not this committee, not any partisan political activity. Someone let you down. I hope that you are vigorous in finding

out how that happened, whether it is polygraphing people who had

access to the information, whether it is taking their statements. I

do not know who it is.

And indeed, unlike some of the committee, I have a great regard

for Mr. Conrad. He seems to be a man of integrity. I believe he is

a serious man. He is entitled to have views that differ from me and

differ from you. I think he is a good man. But someone who had

access to his thinking and the things that he was writing, did not

do right by the Department of Justice.

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Madam Attorney General, thank you very much for your testimony today. No one, under the cruel and—unusual cruel and punishment provisions of the Constitution should be held before this

committee for 3 hours and 15 minutes. You were great to do so.

Attorney General RENO. Thank you, sir.

Senator TORRICELLI. And now for the first time in this Congress,

as a Democrat, I get to say the committee is in recess.

Attorney General RENO. Thank you.

Senator TORRICELLI. Thank you.

[Recess from 5:16 p.m. to 5:22 p.m.]

Senator SPECTER. Attorney General Reno, I want to come back

to the point of how many witnesses there were who testified that

hard money was discussed in the meeting attended by the Vice

President on November 21, 1995. I want to come back to the point

about the available evidence.

Now, it is certainly true that because four witnesses can provide

evidence that hard money was discussed, it does not establish with

mathematical certainty that the Vice President knew hard money

was discussed, but it is pretty strong evidence. And you had discounted what David Strauss had said because, as you put it, he did

not recall, but there were contemporaneous notes of his which

showed, ‘‘35-percent hard, 65-percent soft.’’ Now, my question: Is not that prior recollection recorded an evidence which could be presented on the issue as to whether the Vice

President heard a discussion of hard money?

Attorney General RENO. I do not see how that proves that he

heard, that he understood and that he recollected.

Senator SPECTER. Well, that is an interesting observation, but it

does not relate to my question.

Let me start again. My question is whether he heard, and then

the inference is to whether he knew and understood. But he said

that he is an experienced fundraiser, and we know that as a matter

of his record. So the question is, when you discount the evidence

by saying there are only two of the fifteen attendees who could provide evidence, and you discount Strauss because he has no recollection, I come back again to the point that, as a matter of the law

of evidence, that is prior recollection recorded and could come before a grand jury or come before a court probative on the issue as

to whether the Vice President heard it; is that not true?

Attorney General RENO. I am sure, sir, that your knowledge of

evidence has given you some reason to believe that this could be

relevant, and so I will be happy to go back and check it.

Senator SPECTER. Well, there cannot be a conclusive, you cannot

mathematically say that the Attorney General is wrong on a judgment call. But I think you can say, as a matter of law, a prior

recollection recorded is evidence that could be presented to a grand

jury or to a trial court. And the balance of the record shows that

there were three witnesses who heard hard money discussed, all of

which would have been relevant to whether the Vice President

heard it. That, I think, is a matter of law.

Would you care to comment?

Attorney General RENO. Yes, my determination had to be whether the evidence was clear and convincing, and I determined that

the evidence was clear and convincing.

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I would ask you, if we are all to be judged in terms of whether

we are correct or whether we are incorrect by something that happened 2 years before, and we are at a 2-hour meeting, and people

talk about a variety of complex subjects, and we are expected to remember or it is to be inferred that we should remember, I do not

think is realistic. And, therefore, I found that the evidence was

clear and convincing that he did not have the intent to falsely

state.

Senator SPECTER. Well, the evidence that you disregarded in

coming to that conclusion was one person who heard and another

person who could have provided evidence of prior recollection recorded. So that the base of your recitation of facts is erroneous.

But let me move on to the next point, and that is that the independent counsel statute was structured to give the Department of

Justice a very limited window on its investigation. You could not

use a grand jury to call witnesses, put them under oath.

Attorney General RENO. Could I make one correction to what I

believe your point is? You indicated that Mr. Strauss had his recollection refreshed by his notes.

Senator SPECTER. No, I did not say that at all. I said it was prior

recollection recorded, which is different from present recollection

refreshed. Present recollection refreshed is when somebody looks at

his notes, and he remembers. Prior recollection recorded is where

someone looks at his notes and says, ‘‘I still do not remember—’’

Attorney General RENO. But my bottom line is, if the man who

made the notes cannot remember, I think the evidence is clear and

convincing.

Senator SPECTER. Well, you are at variance with the clearcut established law of evidence that prior recollection recorded is admissible.

Attorney General RENO. Assume for the moment that the fact

that he made the notes is evidence that it was discussed, it was

clearly discussed according to two people, and the notes indicate

that it was discussed. But there are a variety of recollections. Only

two people remembered it without having—and even Mr. Bailey

concluded that there was a discussion of hard and soft, but he was

unclear as to what was involved.

I just do not think, Senator, from a commonsense point of view,

that if there was a meeting of this Judiciary Committee 2 years

ago, and you spent 2 hours discussing different subjects, that the

fact that Senator Grassley said something about hard and soft

money that two other members of the committee heard, and one

took notes and those notes indicated that that—he verified that

that would be his habit to record what he heard, that that would

be clear and convincing evidence that Senator Hatch heard or did

not hear.

Senator SPECTER. Well, the difficulty with your analysis, Attorney General Reno, is that it is not just those four witnesses. And

I pause at some length because an inference is raised that you discount everything you can to come to a conclusion.

Attorney General RENO. No, I looked for everything I could.

Senator SPECTER. Well, it was not a question, it was a comment.

And that you leave out Strauss, where as an evidentiary matter he

should have been considered, and——

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Attorney General RENO. I do not leave him out.

Senator SPECTER. Let me finish now. I will not interrupt you.

And you leave out Bailey, where he should have been included.

If you want to comment, you can. I want to move on.

Attorney General RENO. Yes, I would like to comment.

Senator SPECTER. Go ahead.

Attorney General RENO. I did not leave it out. And I would again

urge you, as I have urged the whole committee, to read the notification. ‘‘While the author of the notes had no specific recollection

of the meeting, he did confirm, based on his habit and practice, his

beliefs that the words noted in his handwriting were things said

during the meeting that he recorded as they were said. Reviewing

his notes, this attendee could not recall who might have uttered

the words ‘65-percent soft, 35-percent hard, corporate, or anything

over 20K from an individual or hard-money limit 20K’ during the

meeting. He was also unable to provide an explanation about what

each of the phrases might have meant within the context of the

meeting.’’ ‘‘He did not recall the issue of hard and soft money being discussed by those attending, but noted that these issues were often

discussed at DNC budget meetings. He was also unable to say

whether the words were used with regard to the media fund, the

DNC’s operating budget or something else. Notably, this individual,

who attended the meeting and who was paying enough attention

to what was being said to take verbatim notes of some points, also

told us during his interview that he believed the media campaign

was financed entirely with soft money.’’ Senator SPECTER. Attorney General Reno, I believe the record

shows that there were four people in a position to provide evidence.

And as your statement said, you focused on only two. But I want

to go to the balance of the—— Attorney General RENO. No, sir. I just focused on one of those

that you specifically talked about, and I gave you my reasons for

concluding that it did not—— Senator SPECTER. Well—— Attorney General RENO [continuing]. Undermine my conclusion

that the evidence was clear and convincing.

Senator SPECTER. My reading of the law of evidence is that the

testimony that he gave, although not perfect, because most witnesses’ testimony is not perfect, would have been admissible and

considered by a jury.

But let me ask you about the balance of the witnesses. And I had

started to develop the point about the Department of Justice’s role

at the preliminary inquiry being very limited. You cannot use a

grand jury, and you cannot put people under oath. And there is a

very big difference between an interview and calling somebody before the grand jury, under oath, and that is not open to the Department of Justice at that stage. But an independent counsel could

have done that, so that there might well have been more testimony

produced by the individuals if the matter had been pursued.

In regular investigations, the Department of Justice does not

stop at just an interview. If they find a witness who does not testify

about a recollection or the witness may have the capacity to do so,

they use the grand jury. Does the Department not do that?

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Attorney General RENO. The Department uses the grand jury in

a variety of circumstances.

Senator SPECTER. Well, the point is that your judgment was

made at a preliminary stage, where there were investigative tools

available, specifically the grand jury, which was not utilized; is

that not correct?

Attorney General RENO. I did not use the grand jury, sir.

Senator SPECTER. And then there are the 13 Strauss memoranda.

Attorney General RENO. The Ickes memoranda, sir.

Senator SPECTER. Ickes memoranda. Pardon me. You are right.

I misstated that.

There are 13 Ickes—— Attorney General RENO. And there were not 13, about 6 or 7

came before the phone calls, and the others came after.

Senator SPECTER. Okay. You had made that distinction. The FBI

report does not make it, but I will accept that.

But if you have six or seven Ickes memoranda, and you have an

evidentiary base for the Vice President’s secretary, who culls his in

box, but who leaves the Ickes memos in the in-box, that raises an

inference that the Vice President might have known from the Ickes

memoranda that hard money was involved, does it not?

Heather Marabeti testified—— Attorney General RENO. Excuse me just a minute, sir.

Senator SPECTER. ‘‘When they, people reviewing his in box, what

were they reviewing it for?’’ Answer: ‘‘They reviewed it for documents that did not need to be

in.’’

Question: ‘‘I know that Mr. Ickes sent a lot of internal memorandums. Were his the type of memorandums that needed to be in the

inbox?’’ Answer: ‘‘His were the type of memos that stayed in the in box.’’ So you have the four people providing evidence as to what happened; you have the Ickes memoranda; you have the Vice President’s statements that, although he did not read the memos, as he

did a general rule read memos authored by Mr. Ickes, he nonetheless said that, ‘‘The subject matter of the memorandums would

have already been discussed in his and the President’s presence.’’

And then you have the Vice President’s admission about his

knowledge of fundraising, that ‘‘He had been a candidate for 16

years and thought he had a good understanding of hard/soft

money.’’

So there is an aggregate of information beyond the specific witnesses. Do you care to comment?

Attorney General RENO. Yes. His staff corroborated his statement that he did not, as a matter of practice, read Ickes’ memos.

Senator SPECTER. Yes, I know. I just said that. And the Vice

President then added to that, that the memorandums, as he put it,

had already been discussed in his presence and in the presence of

the President.

But let me move on, unless you want to comment further, to—— Attorney General RENO. No. I just want to say, sir, if we get into

the business of assuming that people hear something that was said

2 years previously, when there is such a diversity of recollection

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and where people who, even though they were there, conclude that

the only money being sought was soft money, it is going to create

a very difficult situation for people in Government.

Senator SPECTER. Well, Attorney General Reno, it is more than

a judgment call, it is what I consider to be a misstatement of the

facts. But Director Freeh dealt with this directly, and you do not

have to agree with him, and the committee does not have to agree

with him, unless we think that his basis is correct, and he says,

‘‘Based on the facts, the Attorney General simply cannot reach such

a conclusion. The evidence tends to show that the Vice President

was an active participant in the core group fundraising efforts, that

he was informed about the distinction between hard and soft

money, and that he generally understood there were legal restrictions against making telephone solicitations from Federal property.’’ And La Bella said about the same thing, ‘‘By routinely embracing

the most innocent inference at every turn, even if the inferences

are factually indefensible, the memorandum creates an appearance

that the Department is straining to avoid the appointment of an

independent counsel and foreclose what many would characterize

as an impartial review of the allegations.’’ Do you care to comment?

Attorney General RENO. Yes. As you well know, Director Freeh,

and Mr. La Bella and I have some disagreements, as you and I

have some disagreements. But I can tell you that this was carefully

reached. We reviewed all of the evidence, and we reached the conclusion that we did based on the best judgment we could make.

You disagree with my judgment, but that is where we stand.

Senator SPECTER. Let me move on, Attorney General Reno, to the

Department of Justice inquiry about the Loral and Hughes matter,

about their providing information to the People’s Republic of China

and a waiver which was signed by the President, notwithstanding

that the PRC had sold M–11 missiles to Pakistan which was instrumental in the standoff on the subcontinent between Pakistan

and India.

And the Department of Justice had an investigation in process

at the time the President was considering the waiver. And Mr. Litt

contacted Mr. Ruff, and he testified that he opposed the granting

of the waiver and ‘‘I said that the judgment of the Department was

that it could have an adverse impact, not on the actual conduct of

the investigation, but on the jury appeal of any prosecution that

might subsequently be brought.’’

And my question to you is why did not someone of a higher rank,

like you or perhaps even the deputy attorney general, weigh in on

that important issue?

Attorney General RENO. The White House does not ordinarily

consult with the Department on whether to grant waivers permitting the export of dualuse technologies to the PRC.

Senator SPECTER. Well, they listened to the Justice Department

on this issue.

Attorney General RENO. May I finish, please?

Senator SPECTER. Sure.

Attorney General RENO. Moreover, the foreign relations issues

raised by requested waivers are outside the Department’s experVerDate 11-MAY-2000 22:37 Oct 05, 2001 Jkt 075237 PO 00000 Frm 00120 Fmt 6633 Sfmt 6602 E:\HR\OC\C237.XXX pfrm07 PsN: C237
117

tise. When the White House asked whether granting the waiver

would impact the criminal case, however, the Department unambiguously responded that granting the waiver would have serious

adverse impact if the case went to trial.

As I have testified previously, I believe that I should have been

informed. I understand that Bob Litt did not tell either me or Deputy Attorney General Eric Holder about his conversation with Mr.

Ruff because there was no disagreement within the Department

that the waiver would hurt the criminal case. Still, I believe that

Mr. Litt should have told us about the matter.

Senator SPECTER. I do not quite understand that. Was not that

this matter of sufficient importance for the Attorney General or at

least the Attorney General’s deputy?

Attorney General RENO. As I indicated, I was not advised of the

matter, and I think I should have been.

Senator SPECTER. You say you were not advised of the matter,

but you think you should have been?

Attorney General RENO. Yes, sir, I said that.

Senator SPECTER. Had you known about it, would you have

weighed in personally?

Attorney General RENO. It would have depended on the circumstances.

Senator SPECTER. Well, do you know the circumstances?

Attorney General RENO. I do not know what the circumstances

would have been if I had been advised of it.

Senator SPECTER. Well, do you now know what the circumstances

were at that time?

Attorney General RENO. I do not know what the circumstances

were, as they unfolded, or what they would have been if I had been

advised.

Senator SPECTER. Attorney General Reno, there have been press

reports, the New York Times reported June 23rd, that ‘‘The official

said that Mr. Conrad had been told to avoid putting his views in

writing, and at times felt stymied in his efforts to communicate directly with top officials.’’

And the Associated Press reported that ‘‘It is like a roller derby

at Justice. They are slamming him * * *’’ referring to Conrad

‘‘* * * against the boards as hard as they can,’’ the source added.

‘‘They are trying to intimidate him to get him to change his views.’’

Attorney General RENO. I do not think anybody can intimidate

Mr. Conrad, sir.

Senator SPECTER. Well, I hope not. Do you intend to look into

those reports?

Attorney General RENO. I have talked with Mr. Conrad, and

have talked with him to make sure that he is perfectly comfortable,

and he said that he was.

Senator SPECTER. With respect to the La Bella memorandum, I

understand that Senator Torricelli commented about the timing of

it. The second La Bella memorandum was written, I am advised by

staff, prior to Mr. Radek’s critique.

We are in the last stages of another vote, but let me pick up one

final subject with you because I do not want to leave it hanging,

and that is the discussion that we had about Mr. Parkinson’s memo

on the ‘‘advice of counsel’’ defense, and his enumeration of a great

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many reasons why he thought that the ‘‘advice of counsel’’ defense

should not have led you to rule out independent counsel: the absence of direct contact between the lawyers and the principals; the

attorneys who gave the advice having an interest; one of the attorneys saying that the advice was ‘‘bumping up right against, and

perhaps a little bit over, the line’’; all of which led him to conclude

that the clear and convincing evidence standard was not met and

the independent counsel should have been appointed.

Would you care to comment?

Attorney General RENO. Yes, sir. I would refer you to our notification, which sets forth our position with respect to those matters.

Senator SPECTER. Attorney General Reno, thank you very much

for coming in today. You are an excellent witness, and you make

your case very effectively.

That concludes the hearing.

Attorney General RENO. And you are an excellent Senator, and

you make your case very effectively.

[Whereupon, at 5:44 p.m., the committee was adjourned.]

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