U.S. GOVERNMENT PRINTING OFFICE

74–496 DTP WASHINGTON : 2001

CONTACTS BETWEEN NORTHROP GRUMMAN CORPORATION AND THE WHITE HOUSE REGARDING MISSING WHITE HOUSE E-MAILS

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

SEPTEMBER 26, 2000

Serial No. 106–258

Printed for the use of the Committee on Government Reform

(

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

http://www.house.gov/reform

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Clerk

PHIL SCHILIRO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on September 26, 2000 ..................................................................... 1

Statement of:

Gershel, Alan, Deputy Assistant Attorney General, U.S. Department of

Justice ............................................................................................................ 242

Letters, statements, etc., submitted for the record by:

Burton, Hon. Dan, a Representative in Congress from the State of Indiana:

Exhibit 10 ................................................................................................... 250

Exhibits relevant to hearing ..................................................................... 2

Prepared statement of ............................................................................... 197

Chenoweth-Hage, Hon. Helen, a Representative in Congress from the

State of Idaho, prepared statement of ......................................................... 288

Ford, Hon. Harold E., a Representative in Congress from the State of

Tennessee, letter dated April 13, 1999 ....................................................... 260

Gershel, Alan, Deputy Assistant Attorney General, U.S. Department of

Justice, prepared statement of ..................................................................... 245

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, letter dated September 26, 2000 .......................................... 215

(1)

CONTACTS BETWEEN NORTHROP GRUMMAN

CORPORATION AND THE WHITE HOUSE REGARDING MISSING WHITE HOUSE E-MAILS

TUESDAY, SEPTEMBER 26, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 3:10 p.m., in room

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Gilman, Ros-Lehtinen, Horn,

Barr, Waxman, Norton, Cummings, Kucinich, and Ford.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy counsel and parliamentarian; Sean

Spicer, director of communications; Josie Duckett, deputy communications director; M. Scott Billingsley and James J. Schumann,

counsels; Pablo Carrillo and Jason Foster, investigative counsels;

Robert Briggs, clerk; Robin Butler, office manager, Michael Canty,

legislative assistant; Leneal Scott, computer systems manager;

John Sare, staff assistant; Maria Tamburri, assistant to chief counsel; Corinne Zaccagnini, systems administrator; Phil Schiliro, minority staff director; Phil Barnett, minority chief counsel; Kristin

Amerling, minority deputy chief counsel; Paul Weinberger, minority counsel; Michael Yeager, minority senior oversight counsel;

Ellen Rayner, minority chief clerk; Jean Gosa and Earley Green,

minority assistant clerks; and Tersa Coufal, minority staff assistant.

Mr. BURTON. Good afternoon. A quorum being present the Committee on Government Reform will come to order.

I ask unanimous consent that all Members and witnesses’ written opening statements be included in the record and without objection, so ordered.

I ask unanimous consent that all articles, exhibits and extraneous or tabular material referred to be included in the record and

without objection, so ordered.

I ask unanimous consent that a set of exhibits shared with the

minority staff prior to the hearing be included in the record. Without objection, so ordered.

Mr. WAXMAN. Reserving the right to object. Yes—withdrawn.

[The information referred to follows:]

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Mr. BURTON. I also ask unanimous consent that questioning in

the matter under consideration proceed under clause 2(j)2 of House

rule 11 and committee rule 14, in which the chairman and ranking

minority member allocate time to committee counsel as they deem

appropriate for extended questioning, not to exceed 60 minutes divided equally between the majority and minority and without objection, so ordered.

Seven months ago—and I’d like to say to my colleague Mr. Waxman, this is a little bit lengthy, this opening statement, but I think

it’s necessary in order to cover everything. So we’ll allow you whatever time you need.

[The prepared statement of Hon. Dan Burton follows:]

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Mr. WAXMAN. If you would permit, there was an item that you

went by quickly. I just wanted to put on the record. You asked

unanimous consent for all documents referred to to be made public,

and I generally have no objection to that, but there are some exhibits that I understand the majority wishes to release publicly today.

These are exhibits 6 through 14. They’re documents provided to the

committee in response to a request for grand jury subpoenas and

other documents relating to evidence the Department of Justice’s

Campaign Finance Task Force has gathered.

The committee, however, received a letter from the Department

of Justice yesterday objecting to the recent practice by the committee of subpoenaing the subpoenas, which resulted in the production

of these documents. According to the Department of Justice, this

practice could undermine effective law enforcement by creating a

substantial risk that sensitive and confidential investigative information will be disclosed to targets of investigations and to other

persons who might use the information to thwart our law enforcement efforts. That was what they said.

I am also concerned that the committee’s actions could undermine important grand jury secrecy requirements. There may be situations where the reasons for release of grand jury materials by a

committee would be so compelling as to outweigh the potential

harm to ongoing investigations. However, I am not currently aware

of a compelling reason to release these documents today.

The minority received notice of the majority’s interest in releasing these documents just a few hours before today’s hearing. I have

not had the opportunity to discuss with the Department of Justice

their concerns about the committee’s practice or assess the merits

of such concerns in relation to the need to release these documents

today. Therefore, I would hope that when you talked about documents, you weren’t referring to these documents, and that we’re

not going to make these documents public.

Mr. BURTON. Mr. Waxman, excuse me 1 second. There are several facts that must be pointed out in response to Mr. Waxman’s

objection. As he pointed out, the Justice Department has objected

to the committee’s recent practice of subpoenaing subpoenas which

are issued by the Campaign Financing Task Force. Why is the Justice Department objecting? It’s pretty simple. They’re embarrassed.

At a hearing on July 20th, we pointed out that the Justice Department had never subpoenaed information on Maria Hsia from

the White House. It waited 3 years to get information on Mark

Middleton and Ernie Green. Those facts are embarrassing, and the

Justice Department doesn’t want the committee or the public to

find out about that.

Second, Mr. Waxman has objected to the release of three sets of

documents. Two of them don’t even seem to have any relation to

the Justice Department’s arguments. One set of the documents is

correspondence between Tony Barry’s lawyers and the task force.

There isn’t any substantive information about the investigation in

those documents. The second set of documents are letters and subpoenas issued by the task force to the State Department. Every

piece of sensitive information in those documents has already been

redacted by the Justice Department.

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Mr. Waxman’s objection to the unanimous consent is heard and

we will not release those documents today in accordance with your

objection. I would like to move to release it but I think we’d have

to call everybody from the floor here and we’d be here for some

time waiting to get the votes. So we’ll deal with that at some future

date.

Mr. WAXMAN. Thank you, Mr. Chairman.

Mr. BURTON. Seven months ago, the Washington Times reported

that the White House covered up—and as I said, I don’t know if

you heard me, Henry, but this is a fairly lengthy statement, and

I apologize for that, but we have a lot we have to cover here before

we get to the questioning, but we’ll allow you whatever time you

want and we’ll be lenient with the rest of your committee members

as well.

Seven months ago the Washington Times reported that the

White House covered up a problem with their e-mail records for

over 2 years. As a result of the White House cover-up, information

was kept from this committee, but not just this committee, but

other committees of Congress, the Justice Department and various

independent counsels.

In March we had a number of witnesses who worked on the email system testify. Some told us they were threatened. One was

told there was a jail cell with his name on it if he talked to anyone

about the problem. Another said that she would rather be fired

than go to jail for telling her own boss what she was working on.

Employees were told they couldn’t write things down. Notes of

meetings were confiscated. People had to talk about the e-mail

problem in a park or at a Starbucks restaurant near the office.

The problem was brought to the attention of high level political

appointees. The Office of Administration general counsel was informed. An assistant to the President was told about the problem.

The President’s deputy chief of staff, one of his main scandal managers, was brought into the loop. The counsel to the President was

even briefed.

And then nothing happened for months. The main problem never

got fixed. Congress was never told. The Justice Department was

not told. The various independent counsels were not told.

When we subpoenaed documents, we found out that the lower

level employees were begging for help, that they couldn’t get any

direction from their bosses in the White House. The problem was

covered up. Nearly 2 years went by before the White House counsel

told us that they hadn’t complied with the committee subpoenas.

Even after the first newspaper article about the problem appeared,

the counsel to the President didn’t let on there was a problem.

They only reason they ever informed us was because we started

interviewing people and finding out how extensive the problem

was. Even now after the first batch of reconstructed e-mails was

produced late last Friday, the White House is spinning and stalling.

We all make mistakes, but week in and week out, this administration and its leaders look the public in the eye and make things

up. I called today’s hearing because the cover-up mentality in the

White House counsel’s office and the Department of Justice has not

changed. We needed to get answers to important questions and we

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were getting the runaround. The administration is trying to run

out the clock. We’ve got an election coming up. We can’t get the

White House to answer simple questions. We can’t get the Justice

Department to answer simple questions. I didn’t really want to

even have a hearing today, but as usual, we can’t get anyone to answer the simplest of questions unless I notice a hearing and send

out the subpoenas, and that’s why we have to send out these subpoenas.

Then we start to get a little bit of movement. I shouldn’t have

to subpoena witnesses to get them to answer simple questions. It

really is disappointing. At least none of the e-mail witnesses have

fled the country like so many in the campaign finance investigation, at least not yet.

Before we get to Mr. Gershel, I want to talk about two witnesses

who had to be subpoenaed before they would cooperate. White

House Counsel Beth Nolan and Washington lawyer Earl Silbert.

Yesterday, Mr. Silbert came in for an interview, and today, Ms.

Nolan promised to provide written answers to our questions. So I

have postponed their appearances, but I do want to tell you why

they were subpoenaed and what we’ve learned.

Mr. Silbert is a highly respected Washington lawyer. He’s a

former U.S. attorney. He was a Watergate prosecutor. He represented President Clinton’s former chief of staff, Erskine Bowles,

during the Monica Lewinsky matter. He also represented Vice

President Gore’s friend, Peter Knight, during a congressional investigation. His clients have many reasons to be worried about what

will come out when all the e-mails are reconstructed, which makes

him a strange choice to represent the employees that were begging

for help and telling their bosses that the White House was breaking the law by hiding the e-mails.

Mr. Silbert came to the committee’s attention because he was

hired by Northrop Grumman after their employees were threatened. Until a week ago, when we got his law firm billing records,

no one knew exactly what Mr. Silbert did for Northrop Grumman.

His faulty memory and the refusal of his employer to waive attorney client privilege mean that we still don’t know everything, but

we do know an awful lot more.

When we first asked Mr. Silbert to come in for an interview, he

point blank refused, so I had to issue a subpoena. Yesterday, he finally made himself available for an interview, and this is what we

learned. A couple of months after they were first threatened, three

Northrop Grumman employees asked for a meeting with the company lawyer. This was an extraordinary meeting. The employees

had never had one like it. They explained the problems that they

faced. They talked about the threats. They explained they were told

not to write anything down. They told company lawyers that they

thought a quick reconstruction of the e-mails was required by law.

And the company did something. They hired a high priced Washington lawyer, someone who was friendly with the White House

counsel, Chuck Ruff, and who knew the scandal minders in the

White House, Cheryl Mills and Lanny Breuer.

Earl Silbert went to work. He talked to lawyers. He talked to one

of the employees and then he called the White House, and I’ll put

the chronology up on the screen so everyone can take a look at it.

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September 9th, Northrop Grumman lawyer Joseph Lucente

meets with Golas, Haas and Spriggs. They tell him about threats,

express concern about document searches, tell him they can’t write

things down and say they have been prohibited from speaking to

superiors. He feels they have been treated unfairly.

Earl Silbert—September 11, 2 days later, Earl Silbert has a teleconference, has a teleconference with the Northrop Grumman counsel and Northrop Grumman employee.

Same day, Earl Silbert has a teleconference with Northrop

Grumman employees. September 12, he reviews the document.

September 12, Earl Silbert has a teleconference with Northrop

Grumman counsel. September 14, Joseph Lucente of Northrop

Grumman sends a letter to Dave Helms at the White House notifying him of a dysfunction in the e-mail system which was detected

in late May. In the letter, Lucente complains that Laura Crabtree

was notified of the problem and kept Northrop Grumman management out of remedial action. The letter states that as a consequence, we are not proceeding with our efforts to remedy the dysfunction until we have received further contractual direction. September 15, Earl Silbert has teleconference with Northrop Grumman counsel. September 22, he has another conference with the

Northrop Grumman counsel.

As you can see, Mr. Silbert called the White House on September

28, 1998. We don’t show that on there, do we yet? Oh, excuse me,

and then the last one is Earl Silbert has a teleconference with the

White House counsel. That was on September 28th. So as you can

see, Mr. Silbert called the White House on September 28, 1998.

That was at the height of the impeachment investigation. People

were talking about a possible Presidential resignation. Do you

think that the White House would take notice if they find out in

the middle of an impeachment debate that they had a problem

which meant that hundreds of thousands of e-mails had never been

searched? You bet they would.

Yesterday we asked Mr. Silbert about what happened. You can

all guess what comes next. He told our staff that he didn’t remember who he called or what he discussed. We’ve had an epidemic of

memory loss in this town. Significant things, an absolute epidemic.

I can’t believe it. Must be something in the water.

He didn’t remember who called him or what he discussed or who

he had called at the White House or what he had discussed. Imagine that. He hears a story about possible law breaking and threats

to his client’s employees and he doesn’t even remember who he

talked to at the White House. And he was careful enough not to

write it down. That was his first interaction with the White House.

A couple of months later, just before the Senate trial of the President started, an Insight Magazine article appeared that had the potential to upset the entire impeachment debate. It mentioned something going on in the White House called project X. It described

what was going on with project X and how there were 100,000 emails that had been kept from investigators. Here’s one quote from

that story.

‘‘So why hasn’t the White House come clean and informed various panels and Starr of the discovery? Insiders say there’s a lively

debate going on involving a fair amount of legal hair splitting.

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Some folks in the West wing believe that unless subpoenaed, the

White House doesn’t have a duty to tell anyone about the irritating

new batch of e-mails that have been discovered.’’

Right after this article came out, Earl Silbert was once again

brought into the loop. He talked to Northrop Grumman counsel,

and then he again called the White House counsel’s office. Again,

I will put the chronology up on the screen.

October 9th, Earl Silbert has teleconference with Northrop

Grumman counsel. December 11th, Joe Vasta of Northrop Grumman prepares a memo and notified the government about the Insight article about the e-mail problem. December 15th, Earl Silbert

has a teleconference with Northrop Grumman counsel. December

28th, official publication date of initial Insight article on computer

glitch leads to trove of lost e-mails at the White House. And 2 days

later, on December 30th, Earl Silbert has a teleconference with the

White House counsel, according to his billing records.

So yesterday, we asked Mr. Silbert who he talked to and what

was discussed. Again, guess what happened? He couldn’t remember

a thing about who he talked to at the White House counsel’s office,

and he won’t tell us anything about the other calls he had with

Northrop Grumman lawyers because his client won’t waive its legal

privileges.

Two major events in the e-mail matter. Two calls to the White

House by a Washington superlawyer. It really makes you stop and

think about Chuck Ruff’s, the former counsel to the President’s

claim that there was a disconnect.

At the time Mr. Silbert was brought into the loop, there were

four major things going on in the White House e-mail problem. Employees had been threatened and they were frightened. Documents

were being withheld from Congress and other investigators. The

Northrop Grumman employees were saying that the White House

might be breaking the law by failing to fix the e-mail problem.

Computer people in the White House understood that the e-mail

might be relevant to the impeachment debate and the campaign finance investigation.

It’s highly unlikely that Earl Silbert called the White House

counsel’s office to talk about the weather. The fact that a lawyer

of Mr. Silbert’s stature was hired at all suggests that Northrop

Grumman understood that the problem was very significant.

Silbert’s two separate contacts with the White House casts even

more doubt on the White House’s claim that they weren’t actively

covering up the problem.

The White House keeps telling us that they didn’t understand

the problem. They got a memo, they didn’t understand it. They had

a briefing, they didn’t understand it. Earl Silbert called twice, they

still didn’t get it. Mark Lindsay went back to the White House

counsel’s office when another problem was discovered and they

didn’t understand that either. As one White House official told the

committee, you would have to be an idiot not to understand that

the problem affected the subpoena compliance.

You really have to ask yourself, why is it that President Clinton’s

White House counsel’s office manages to forget everything or be so

stupid when it’s really convenient?

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I sent a letter to Judge Lamberth today about the Silbert matter.

Mr. Silbert’s billing record makes it clear that one of his colleagues

provided false information to a Federal court on two separate occasions. In Judge Lamberth’s court, another Northrop Grumman lawyer testified that Mr. Silbert didn’t have any contact with the

White House about the missing e-mails. We know this isn’t true.

I know that Earl Silbert has a reputation for integrity. However,

I find this entire incident very troubling. And I ask unanimous consent to include in the record a letter that we’re talking about, that

we sent to Judge Lambert. Without objection, so ordered.

White House Counsel Beth Nolan was also scheduled to testify

today. I issued the subpoena to her after trying to get answers to

questions for months. It seems she only really focuses her attention

on congressional requests when she is worried she’ll have to explain herself before Congress. Yesterday we reached an accommodation with her. We agreed that if she answers the questions we

put in a letter to her yesterday, then we would postpone her appearance, and I ask unanimous consent to include my letter to her

dated September 25th in the record and without objection, so ordered.

I also ask unanimous consent to have her response included in

the record when we receive it. And without objection, so ordered.

The questions we have for Ms. Nolan are related to the campaign

fundraising investigation. They go to a failure by the Justice Department to review evidence. So it is related to the White House

e-mail investigation. Let me explain briefly.

One of the questions that went unanswered for a very long time

was whether the original videotape of the December 15, 1995

White House coffee had been reviewed by the Justice Department.

The White House had custody of the original tape, so that’s why

I asked the Justice Department if they had reviewed it or who had

reviewed it.

This is the tape where Indonesian gardener Arief Wiriadinata,

who gave $455,000 to the Clinton Gore campaign, tells the President James Riady sent me. It is also the tape where the Vice President appears to tell Mr. Wiriadinata ‘‘We oughta, we oughta, we

oughta show Mr. Riady the tapes, some of the ad tapes,’’ and someone else says, ‘‘I’ll see if I can do that.’’ This statement came 4 days

after Vice President Gore had shown copies of issue ad tapes to political contributors in Chicago.

The Justice Department has so far failed to ask the Vice President one single question about this exchange. Why the Vice President of the United States would suggest showing political advertisements to someone who lived in Indonesia is a matter of some

interest, particularly when it’s James Riady, a man with extensive

ties to the Chinese Government and someone who had promised to

give the President a million dollars in illegal money during his

1992 campaign, and he ended up giving him we know $700,000 to

$800,000 in illegal contributions that were returned.

Did he want to show the tape to Riady for the same reason he

had shown it to contributors in Chicago? Did he know that Riady

had been contributing heavily? Are there contributions we don’t

know about that he was aware of?

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I asked the White House for months if the Justice Department

had looked at or reviewed that original tape. The copies that were

provided earlier are very poor and some of the audio is very difficult to hear. I could not get an answer. So once again, I had to

notice a hearing just to get an answer to a simple question like

that.

Late last week the White House informed us that the Justice Department has not looked at these tapes since, ‘‘a short period of

time in October 1997.’’ This delay can only be explained by a desire

not to embarrass the Justice Department and to protect the Vice

President from additional questioning.

I have also been asking the Justice Department about this tape.

We held a hearing in July with four senior Justice Department officials. We played the tape several times. We asked them if they

wanted to examine the original tape and they would not respond.

I know that they haven’t examined the original because I have it.

I subpoenaed it. I wrote to them on August 25th to ask if they

wanted the tape. They did not respond. I wrote to them on September 7th if they wanted to look at the tape. No response. So I scheduled this hearing for today and I sent Mr. Gershel a subpoena to

testify, and guess what, yesterday the Justice Department sent us

a letter saying they want to see the tape. All you have to do is

jump on this thing and bring it to the public, and then they will

look at it. Once again, we have to embarrass the Justice Department to get them to do their job. So they’re now going to look at

the tape after we’ve been on this since literally who knows when.

I am pleased that we have Mr. Gershel here today. When he was

last here, I was critical that he had taken time away from his responsibilities supervising the Campaign Financing Task Force to

be a lead prosecutor in the trial of Independent Counsel Starr’s

former spokesman, Charles Bakaly. I just couldn’t understand how

he had so much spare time on his hands. I also couldn’t understand

why he would send out such a message about the Attorney General’s priorities. With all the criticism that the Justice Department’s fundraising investigation has received, I question the judgment that would have Mr. Gershel get involved in a trial that involved one of former Independent Counsel Starr’s staff.

The Bakaly prosecution was one of the highest priorities of President Clinton’s lawyers. To my way of thinking Mr. Gershel’s decision to be a lead attorney in the Bakaly case sent the message that

the Attorney General put a higher priority on doing something that

the President and his lawyers wanted than on the investigation of

the President and the Vice President.

Today we’ll ask Mr. Gershel questions about the Justice Department criminal investigation of the White House e-mail matter. We

have provided Mr. Gershel some of the questions in advance so he

should be prepared. We will stay away from asking substantive

questions about the investigation. Instead, we will try to focus on

the effort that’s being put into the investigation.

I’d also like to learn a little bit more about the White House emails produced to the committee last Friday. I’d like to know when

they were produced to the Justice Department. Just over a month

ago, the Attorney General rejected Robert Conrad’s, the head of the

task force, and she’s rejected I think almost every head of the task

213

force recommendations, but she rejected his task force recommendation to appoint a special counsel to investigate the Vice

President for perjury. The Attorney General was very clear in her

rejection, as she has been in other cases. She says, I have concluded there is no reasonable possibility that further investigation

could develop evidence that would support the filing of charges for

making a willful false statement. And yet, she hadn’t even looked

at these tapes.

Did the Justice Department have these latest e-mails when she

made that statement? These e-mails have been under subpoena for

31⁄2 years, and they are just now being turned over us to by the

White House, 31⁄2 years late. That’s disgraceful. Let me read just

a couple of these.

We have an e-mail from the Vice President’s office from April 9,

1996, 20 days before he went to the Hsi Lai Temple event. The

staffer for the Vice President says, ‘‘We committed in San Jose and

L.A. for fundraising events.’’ Then the Vice President’s itinerary is

attached. There’s exactly one event on the schedule for Los Angeles, the Hsi Lai Temple event, and the Vice President said he had

no idea this was a fundraiser? Was he telling the truth? This email has a bearing on that.

We have an e-mail from April 23, 1996. Again, it’s from the Vice

President’s office. The staffer says I do not remember asking, but

I may have. These are FR copies, right? Now what does FR stand

for? I don’t think it stands for french roast coffees. Of course not.

It means fundraising coffees, and the President and the Vice President said the coffees were not fundraisers. Were they telling the

truth? This e-mail has a bearing on that.

We have another e-mail directly to the Vice President from February 1996. Carter Eskew, the campaign ad man, wants to be able

to send an e-mail to the Vice President, but they don’t want it to

be archived. They don’t want it in the archives. It says, ‘‘The only

way not to have your e-mails backed up on government computers

would be to get a Clinton Gore computer in your office and set it

up for private e-mails.’’ I’d like to know if that was done.

So should the Justice Department. Why did they not want these

things archived, these e-mails? Supposed to be, all of them supposed to be, but they specifically did not want it done. So should

the Justice Department want to know this?

These are just a few examples of why this e-mail investigation

is so important. It really is a question of whether obstruction of

justice was committed. And I want to bring attention to anyone

who’s interested back to the Watergate tapes. We had just a few

minutes of missing tape and ended up being one of the main reasons that a President was brought down, and here we have hundreds of thousands of e-mails that have been kept from the public

and every committee for 3 years. They were subpoenaed a long

time ago and the Justice Department apparently hasn’t been doing

anything to really force the issue.

Mr. Gershel should be able to tell us when the Attorney General

and her advisers got the information that we received on Friday.

I think that’s a very important question, and I’d like to have an

answer.

I now yield to Mr. Waxman for his statement.

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Mr. WAXMAN. Usually when Congress gets together to have a

hearing, we try to get facts, and from those facts try to figure out

what happened. What we have in this committee is an extensive

statement of a theory by the chairman which invariably involves a

conspiracy. Everybody is in this conspiracy who’s a Democrat or

who worked for the government or who might have some evidence

that doesn’t fit the theory that the chairman is proposing.

What we have just heard from Mr. Burton was a bunch of sensational allegations. The reason he has to give an extensive statement of sensational allegations is because the facts don’t fit those

allegations. He simply puts them out there and hopes that maybe

in stating a lot of sensational allegations, something may stick.

Well that’s not an oversight hearing. That’s a—I guess in a campaign, a political effort to smear.

Now when we got the memo about what this hearing was all

about, we looked at it and it was so wrong in its allegations and

misleading and false statements that we wrote a letter to the chairman, and I want to make my letter to the chairman part of the

record, and I ask unanimous consent to do that.

Mr. BURTON. Without objection. We have a response which we’d

also like to put in the record. Without objection.

[The information referred to follows:]

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Mr. WAXMAN. I have no problem with that. I wrote a letter to set

the record straight, and it points out that contrary to Mr. Burton’s

claim that several credible Northrop Grumman employees testified

there was no jail threat, that these Northrop Grumman employees

testified they were never impeded in their effort to fix the e-mail

problem and that Mr. Burton’s sensational speculation about Northrop Grumman’s attorney Earl Silbert is just that, speculation. He

doesn’t have any knowledge of what Mr. Silbert had to say in private conversations with anybody, but because he doesn’t know

what Mr. Silbert said and Mr. Silbert said in an interview that he

couldn’t remember certain things, Mr. Burton then jumps to the

conclusion that Mr. Silbert is part of this conspiracy. In fact, what

he’s doing is challenging Mr. Silbert and saying Mr. Silbert must

be dishonest because what he had to say didn’t fit the Burton theory.

It used to be that we were accountable, Members of Congress, for

what we said and did. We would admit our mistakes if we made

mistakes. We would certainly try to avoid making new ones. But

that’s not the case on this committee. One hallmark of this committee’s approach is to search for the missing piece of evidence. It

seems no matter how much information is provided to the committee, and we’ve received millions of pages of documents and inter- viewed hundreds of witnesses at a cost of over $8 million of taxpayers’ money, there’s always something missing to justify another

wild goose chase.

And I want people to know, in our letter we pointed this out,

that the committee held 4 days of hearings on this topic and that

we’re holding another one today about. This is going to be the fifth.

We’ve already received testimony from 16 people, 3 of whom each

testified twice. Committee staff interviewed 35 people in connection

with the e-mail investigation, and the committee requested and received 9,224 pages of documents.

So given all that’s gone on regarding this effort, I am bewildered

by the factual inaccuracies and omissions contained in the statement by the chairman today and the memorandum he sent to

members of this committee on September 21st, and I think it’s just

hard to set the record straight, because there’s no record as far as

what we hear and the allegations. There’s no factual statements or

records or evidence to justify the speculation, the sensational

charges. The idea is just to make the charges and hope they stick.

Well, this is not new as I mentioned, in this committee and I prepared a report that I’d like to bring to everyone’s attention, and I

would hope that we could make it a part of the record. This report

talks about the committee’s endless pursuit of scandal, and I think

that this report ought to be read by people who want to evaluate

some of these charges. And if you want a record of the kind of

charges that have been made, in order to evaluate the chairman’s

claims about the missing e-mails, while we’ve had between 130,000

and 150,000 of the missing White House e-mails already reconstructed and reviewed, out of these 130,000 to 150,000 e-mails, only

55 had any relevance to this committee’s investigation. Only 55 out

of 150,000. Out of those 55 e-mails, virtually none contained any

new information. In fact, many had been provided in slightly different form to the committee or other investigators years ago.

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So I think that we ought to—generally it is a good idea to discount much of what Mr. Burton said in his statement. It is likely

that the new allegations will be proven as groundless as the ones

that have come before. If you are convinced that the Clinton administration is corrupt, as many of my Republican colleagues seem

to be, our committee’s endless pursuit of scandal may seem reasonable, but most Americans don’t share this obsession.

Their concerns are for providing a good education for their children, reducing the cost of prescription drugs for their parents, protecting the environment for their grandchildren, or paying down

the national debt. To them we must seem incredibly out of touch,

and they’re absolutely right.

I want people to know that in this document, which we are making part of the record, we just listed some of the incredible allegations that have been made over the last 4 years by Republican

leaders and Mr. Burton himself. Was Vince Foster murdered, for

instance? Did the White House collect FBI files for dirty tricks? Did

the Clinton administration sell secrets to the Chinese Government

for campaign contributions? Did the White House engage in an

abuse of power by using the IRS to retaliate against political enemies? Did John Huang really visit one of Mr. Burton’s star witnesses, David Wang, and give him a paper bag filled with $10,000?

Did they alter the video tapes to mislead Congress and the American people? Did the President create a national monument in Utah

to help James Riady? Did Attorney General Janet Reno withhold

Waco material from Congress? Did Webster Hubbell on a prison

telephone actually say, ‘‘The Riady is just not easy to do business

with me while I am here?’’ These are only a sample of the wild allegations that have been

made and more are in this report that my staff compiled, which I’m

going to ask be made part of the record. These allegations have repeatedly been made and they have all been proved false by independent counsels, by the Senate, or at times, even this committee.

When we did get actual information and evidence, these wild accusations turned out to be inaccurate, and I submit that the wild accusations serving as the basis for the committee hearing are also

without any foundation in fact. They are simply wild speculations

to make sensational allegations in hopes that somebody might believe them, and if anybody disagrees with them, it’s not based on

the facts, it must be they’re also part of this conspiracy.

So Mr. Chairman, I would ask unanimous consent that this report be made part of the record.

Mr. BURTON. Without objection.

Mr. WAXMAN. I thank you for that and I guess we’ll look forward

to what Mr. Gershel has to say, but if he doesn’t say what fits the

theory, then I am sure that he must be subject to some harangue

because what this committee wants, at least what the leader of this

committee wants, is for witnesses to say what he wants them to

say to fit his theories. I very much doubt we’re going to get any

more evidence today to substantiate the theories that have been

advanced for which no other evidence has substantiated them.

I yield back the balance of my time.

Mr. BURTON. Mr. Barr, did you have any comments? Any comments or——

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Mr. FORD. We can submit them to the record, right?

Mr. BURTON. Sure, without objection. Any comments?

Mr. Horn.

Mr. HORN. Thank you very much Mr. Chairman. I think you

might have recalled the hearing on July 20th. That hearing we informed you that we had obtained the original videotape of the December 15, 1995 White House coffee. We explained that we believed that the tape contained a statement by the Vice President

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

some of the ad tapes,’’ from the Vice President.

Then someone says, ‘‘I’ll see if I can do that.’’ We explained the significance of that statement to the campaign

finance investigation. We asked you if you wanted the original tape

of that event. You refused to say whether you wanted it. We sent

letters on July 18, 2000, and August 1, 2000, and asking if you

wanted to have the original videotape of the event, and we got no

answer.

Then yesterday, the day before this hearing, we got a letter from

the Assistant Attorney General saying that the Justice Department

wanted the tape. Why did it take so long for the Justice Department to ask for this tape?

Let me round out some of this some more before you answer. As

you will recall at the July 20, 2000 hearing, we pointed out the

Justice Department’s sources had told the press that they did not

believe that the videotape of December 15, 1995, that coffee, contained this statement by the Vice President. We pointed out that

the Justice Department didn’t even have the original copy of the

tape when the Department of Justice staff made those disparaging

statements. That isn’t new to us.

Mr. BURTON. Mr. Horn, we’re making opening statements now.

We haven’t sworn the witness yet or started asking questions. Are

you into the questions now?

Mr. HORN. OK. Well, I will wait until everybodyis under oath.

Mr. BURTON. Well, I apologize. I thought everyone knew we were

making opening statements, but if you have an opening statement

you would like to make at this time, it’s OK. Would you rather

wait? OK. If there are no other opening statements, Mr. Gershel

would you stand please.

[Witness sworn.]

Mr. BURTON. Do you have a statement you’d like to make or just

want to go to questions?

STATEMENT OF ALAN GERSHEL, DEPUTY ASSISTANT

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

Mr. GERSHEL. Yes Mr. Chairman I have a brief statement if I

might read, please.

Mr. BURTON. Proceed.

Mr. GERSHEL. Good afternoon, Mr. Chairman and other members

of the committee.

I am Alan Gershel, a Deputy Assistant Attorney General in the

Criminal Division, a position I have held since January 2000. In

that capacity, I have responsibility within the criminal division for

supervising the Campaign Financing Task Force, the fraud section

and the child exploitation and obscenity section.

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I am a career Federal prosecutor on detail from the U.S. attorney’s office for the eastern District of Michigan where I serve as

the First Assistant and Criminal Chief. In my 20 years as a Federal prosecutor, I have supervised or personally prosecuted hundreds of Federal criminal cases, including public corruption and

white collar matters as well as a wide range of other Federal offenses.

I am here today in response to the committee’s subpoena. I understand from your recent letters, Mr. Chairman, that the committee has questions about matters relating to the Campaign Financing Task Force. I appreciate your identifying your questions in advance. I will do my best to address your concerns, but I am limited,

as you know, by my ethical and professional responsibilities as a

prosecutor in what I can say about pending criminal matters.

With respect to task force staffing, you asked about the staffing

levels on the Department’s investigation of the White House e-mail

matter. Although the Department has a longstanding policy of not

disclosing staffing levels for particular pending criminal matters, I

can assure you that the Attorney General regularly consults with

Robert Conrad, the chief of the Campaign Financing Task Force,

and I, to ensure that the task force has the resources it needs. Bob

and I both believe that the task force currently has sufficient staff

to handle the White House e-mail matter as well as its other responsibilities.

I would also note that with respect to the White House e-mail

matter the task force and the office of the independent counsel are

working together in a coordinated investigation. So it is not just

the task force’s resources that are involved.

With respect to the committee’s offer to turn over custody of the

original videotape of the December 15, 1995 White House coffee,

the Department yesterday sent Chairman Burton a letter accepting

the committee’s offer. We are always happy to receive information

or other material that the committee believes may be relevant to

an ongoing investigation. It would be inappropriate, however, for

me to comment on whether the Department may have previously

obtained the original videotape prior to it coming into the committee’s possession.

With respect to the committee’s recent practice of subpoenaing

other government agencies or third parties for copy of the task

force’s grand jury subpoenas and other investigative requests for

information, the Department has expressed its concern to the committee in writing about the use of congressional subpoena power to

shadow the Department’s ongoing investigations. We believe that

this practice could undermine pending investigations by creating a

substantial risk that sensitive and confidential investigative information will be disclosed to targets of investigations and to other

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

We have also asked that the committee respect the executive

branch’s well-established third agency consultation practice, whereby an agency that receives a congressional or other request for documents or information that originated with another government

agency consults with the originating agency before producing such

documents or information. The committee has subpoenaed docuVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00247 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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ment requests and other information from the State Department

and the commerce Department, some of which may relate to pending criminal matters. The task force and the FBI have been reviewing responsive documents gathered by these departments and

where appropriate, redacting information to ensure that pending

criminal matters are not compromised.

This has been the Department’s traditional approach when another executive branch agency is requested to produce documents

that potentially implicate law enforcement interests. Our letter yesterday enclosed a letter documenting an example of the same approach being taken by the Department during the Bush administration. I would ask that our letter to the committee along with the

enclosure be made a part of the record.

You asked about the status of the Charles Duncan matter which

was referred to the Department by the committee in 1997. The

matter was closed because the Senate legal counsel’s office refused

to allow the FBI to interview a Senate staffer who was the critical

witness in the alleged perjury.

Finally, in your letter yesterday, Mr. Chairman, you asked a series of questions about the production of e-mails by the White

House. Because your questions relate to pending criminal investigations being conducted by both the Department and the Office

of the Independent Counsel, it would be inappropriate for me to

comment on the evidence gathering process associated with that investigation. Similarly, it would be inappropriate for me to discuss

the Attorney General’s recent decision not to appoint a special

counsel to handle certain matters involving the Vice President

since the underlying matters continue to be subject of pending

criminal investigation.

At this point, I would be happy to answer questions from the

committee. Thank you.

Mr. BURTON. Thank you, Mr. Gershel.

[The prepared statement of Mr. Gershel follows:]

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Mr. BURTON. On September 18th of this year, I wrote to the Attorney General and asked for information regarding the staffing

levels on the Justice Department’s e-mail investigation. You declined to answer that question in your opening statement. So let

me ask you one more time. How many attorneys have worked on

the Justice Department’s campaign task force e-mail matter since

its inception, do you know?

Mr. GERSHEL. Mr. Chairman, it’s been the practice of the Department not to comment specifically on numbers of people assigned or

involved with investigations. I can assure you, though, that there

have been sufficient resources devoted to this investigation.

Mr. BURTON. And in a report in May of this year, the GAO reported extensively on the staffing levels in the task force investigation. Why would you share that information with the GAO and not

this committee?

Mr. GERSHEL. Mr. Chairman, I had no participation in the preparation of the GAO reports. I really can’t speak to that issue.

Mr. BURTON. You’re not familiar with that at all?

Mr. GERSHEL. I’m familiar with the report. I was not interviewed. I was not part of that process.

Mr. BURTON. Do you think it was wrong for them——

Mr. GERSHEL. I have no opinion on that.

Mr. BURTON. You say you can’t give us that information but GAO

got it?

Mr. GERSHEL. Mr. Chairman, I am not sure exactly what information GAO got or didn’t get.

Mr. BURTON. We have heard the task force was using just one

part-time lawyer to work on this e-mail investigation, and she recently quit to spend more time with her family; is that true?

Mr. GERSHEL. There was an attorney who was involved with this

investigation who recently left the task force, that’s true.

Mr. BURTON. She was a part-time attorney, was she not?

Mr. GERSHEL. Yes.

Mr. BURTON. What’s the largest number of attorneys who worked

on the task force e-mail investigation at any one time?

Mr. GERSHEL. Mr. Chairman, I can’t answer that question. People come in and out of the investigation. Work on portions of the

investigation, components of the investigation, contribute in different ways to an investigation. There’s no one clear-cut answer to

that question, and I could not provide you with specific numbers

assigned to that case.

Mr. BURTON. Just give me a rough idea.

Mr. GERSHEL. I can’t do that, sir.

Mr. BURTON. How many of the task force lawyers are currently

assigned to the e-mail investigation?

Mr. GERSHEL. Again, Mr. Chairman, I believe I’ve answered the

question that I cannot comment specifically on numbers assigned

to the investigation.

Mr. BURTON. So if I ask you how many were assigned 2 weeks

ago, you would give me the same answer?

Mr. GERSHEL. Yes, sir, I would.

Mr. BURTON. Was the attorney that recently quit the only attorney that was working on the e-mail at that time?

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Mr. GERSHEL. Mr. Chairman, again, various people both at the

Campaign Financing Task Force and the Office of Independent

Counsel have been involved in this investigation from its inception.

Mr. BURTON. Can you give me a rough idea how much time you

devote to the e-mail investigation?

Mr. GERSHEL. I believe I devote sufficient time to the investigation. I participate in the investigation to the extent that I’m needed.

Mr. BURTON. Have you made yourself familiar with the basic

facts of the investigation?

Mr. GERSHEL. Yes, sir, I have.

Mr. BURTON. On March 30, 2000, this committee made a referral

of Daniel Barry to the Justice Department for false statements that

Barry made in the Filegate lawsuit. Are you familiar with the committee’s referral?

Mr. GERSHEL. Yes, sir, I am.

Mr. BURTON. The committee learned that on August 1, 2000, you

informed Mr. Barry that he was not a target in the task force investigation. Why was that decision made?

Mr. GERSHEL. Mr. Chairman, that goes right to a decision made

in connection with a pending open investigation, and it would be

inappropriate for me to comment on that.

Mr. BURTON. Did you participate at all in Mr. Barry’s interview?

Mr. GERSHEL. Mr. Chairman, it would be inappropriate to indicate who participated in the interview of Mr. Barry.

Mr. BURTON. Well, you signed the letter informing Mr. Barry he

was not a target. Why did you sign that letter instead of Mr.

Conrad, who is the head of the task force?

Mr. GERSHEL. There was no specific reason why it was signed by

me as opposed to someone else. I had participated in that investigation. I was part of the decisionmaking process, and it seemed

appropriate under the circumstances for me to sign that letter.

Mr. BURTON. Well, there’s an exhibit 10 that I want to show, because you say you have been intimately involved in this and following it from the beginning. There’s a letter that you signed informing Mr. Barry that he’s not the target. If you notice, his name isn’t

even spelled correctly, and it just boggles my mind that something

of that significance sent to somebody wouldn’t even—I mean, if you

were really familiar with it, you would think that you would spell

a target, a possible target’s name correctly.

[Exhibit 10 follows:]

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Mr. GERSHEL. I certainly apologize if I misspelled Mr. Barry’s

name, but without meaning any disrespect, sir, misspelling his

name is not indication of my lack of familiarity with the investigation.

Mr. BURTON. Did you make the decision that Barry was not a

target or was this a unilateral decision? Did you make it or did

somebody else make it?

Mr. GERSHEL. Mr. Chairman I am not going to comment upon

the decisionmaking process as it concerns Mr. Barry’s status. It is

a pending matter.

Mr. BURTON. Yesterday you did ask for the tapes that we have,

the original tapes of the White House meeting in December, I think

it was 1995, was it not?

Mr. GERSHEL. Yes, sir, it was.

Mr. BURTON. You asked for that yesterday. Can you just tell me,

I wrote to you not once, not twice, but three or four times about

would you like to look at that, have you looked at that and we received no response. Can you explain why you didn’t look at that,

didn’t pay attention to our correspondence until you were subpoenaed, until yesterday? Do you have any idea?

Mr. GERSHEL. Mr. Chairman, we always pay attention to your

correspondence, I can assure you of that.

Mr. BURTON. I am sure of that.

Mr. GERSHEL. But second, I think I would like to refer back to

Mr. Robinson’s comments when he testified back on July 20th

when those questions were raised, and his answer then and my answer now would be that we’re always happy and interested in receiving information from the committee that they believe to be relevant to an investigation, and that is why that content—— Mr. BURTON. You’re probably not going to be able to answer this

question but it does kind of bother me a little bit. The Attorney

General said she found no evidence that would involve the necessity of an investigation of Vice President Gore, and yet this particular issue, these tapes weren’t even requested, even though we offered them several times to the committee to look at before she

made that decision. I can’t understand why that wasn’t an integral

part of the investigation before she made that decision. Do you

have any idea why that happened?

Mr. GERSHEL. Mr. Chairman, are you asking about which decision now?

Mr. BURTON. Well, the decision to say that they should not have

a special investigator or prosecutor to look into the allegations that

the Vice President knew about these campaign finance coffees and

the Hsi Lai temple and other things, because this particular tape

is relevant to whether or not he was aware of and involved with

the campaign finance problem we’re talking about. So why didn’t

they look at these tapes even though we offered them several times

before that decision was made?

Mr. GERSHEL. Again, Mr. Chairman, it’s inappropriate for me to

comment what was looked at and what was not looked at. I don’t

know precisely what the Attorney General looked at and what she

considered in making her decision concerning the special counsel.

Mr. BURTON. She has made her decision. This is my last question. She has made her decision and now, finally they’re going to

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look at the tapes, and my question is, what if they find something

wrong? She has already made the decision they’re not going to investigate. Does that mean they reopen this?

Mr. GERSHEL. Mr. Chairman, the Attorney General, from my

own personal experience in the 10 months I have been here, closely

follows the investigations of the Campaign Financing Task Force.

We have regular meetings with her. She is interested and involved

and engaged in the process, and I have no doubt that if there was

information that we believed or the task force believed was relevant to that decision, that we would be comfortable in bringing it

to her attention and she would evaluate its significance.

Mr. BURTON. Well, I am glad you’re looking at it finally.

Mr. Waxman.

Mr. WAXMAN. Thank you, Mr. Chairman. I know you went over

your time. I think you took around 9 minutes and I hope you will

allow me extra time if I need it.

Mr. Gershel, you’re a career—are you a political appointee?

Mr. GERSHEL. No, sir, I am not.

Mr. WAXMAN. Are you a career person at Justice?

Mr. GERSHEL. I am a career prosecutor. I have been an assistant

U.S. attorney in the eastern District of Michigan since 1980.

Mr. WAXMAN. So you have been there during Democratic and Republican administrations?

Mr. GERSHEL. Both.

Mr. WAXMAN. Mr. Burton used pretty blunt language in criticizing the Department’s e-mail investigation. On March 27th, the

chairman wrote a strongly worded letter to Attorney General Reno

in which he said that, ‘‘because you and your staff are in charge,

the proposed investigation is fatally flawed.’’ And then on March

29th he wrote a letter to Judge Royce Lamberth in which he said

that the Justice Department took no steps to determine whether

reports about the e-mail problems were true.

Now, I admit the fact that Chairman Burton’s criticizing the Department of Justice investigation is not exactly newsworthy, but

what is particularly unfair about these criticisms is that they omit

a highly relevant fact: namely, that the Department’s e-mail investigation has been carried out in coordination with the Office of

Independent Counsel Robert Ray.

Mr. Gershel, can you confirm for me that the Department’s email investigation has been carried out in coordination with Independent Counsel Ray?

Mr. GERSHEL. Yes. We’ve had a cooperative investigation for a

number of months now with the Office of Independent Counsel.

Mr. WAXMAN. And has the Department impeded or limited the

scope of Mr. Ray’s e-mail investigation?

Mr. GERSHEL. Not at all.

Mr. WAXMAN. It seems to me that the chairman is being a little

unfair here. If there are any problems with the criminal investigation into the e-mail matter, Independent Counsel Ray would seem

to share the responsibility. Instead, Chairman Burton has chosen

to single out the Attorney General without even mentioning Mr.

Ray. He writes angry letters to the Attorney General accusing her

of failing to interview so-called key witnesses in this e-mail matter,

but he fails to mention that Independent Counsel Ray has apparVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00257 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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ently concurred with the Department’s decisions about whom to

interview, and he makes you sit in this hot seat here, Mr. Gershel,

all by yourself without even inviting Mr. Ray to discuss his own email investigation before our committee.

To make things even stranger, Chairman Burton has also called

repeatedly for the appointment of a special counsel to investigate

the e-mail matter even though we already have an independent

counsel looking into the matter.

Mr. Gershel, can you think of any reason why we need a special

counsel to investigate a matter that’s already been investigated by

an independent counsel?

Mr. GERSHEL. No, sir I can’t.

Mr. WAXMAN. Now, it seems—a lot seems to be placed on the fact

that maybe you didn’t look at a tape, and as I understand, you

wrote back saying you’re happy to see whatever information the

committee has. Does that mean—does that mean you didn’t have

the tape or you don’t pay attention to the tape or that you don’t

attach the same significance to it, or what does that mean?

Mr. GERSHEL. I think that what we meant by that letter and

what we mean when we indicate that we will look at the tape

means that we’re happy to receive evidence from the committee. If

the committee believes it’s something we ought to be looking at,

we’re more than happy to look at it. With respect to what we have

looked at, what videotapes we have reviewed of various coffees, sir,

that would be inappropriate at this time for me to comment on

that, but we will ask, if we haven’t already done so, for the original

videotape in the possession of this committee.

Mr. WAXMAN. So you, a career prosecutor having been there for

20 years under both Republican and Democratic administrations,

are here in the hot seat because you’re not willing to tell this committee about the investigation you’re conducting with the Independent Counsel, and where you are, whether you have reached

the same conclusions. Or I guess basically you’re here because you

haven’t said what the chairman wants you to say, and that, I suppose, is that the Democrats are bad guys, Gore’s no good,

everybody’s corrupt, and that you’re impeding an investigation because you don’t want anybody to know about that.

Mr. GERSHEL. This investigation has been ongoing. I have been

involved in this investigation at different levels. It’s been my impression, having been a prosecutor for a number of years, that this

investigation has moved forward thoroughly, comprehensively, appropriately, and we have not been hindered or obstructed or prevented from looking where we think we need to look.

Mr. WAXMAN. Do you think that Independent Counsel Ray has

been pulling his punches in order to protect the Clinton administration?

Mr. GERSHEL. I don’t think so.

Mr. WAXMAN. Because I would think that’s the conclusion one

would have to reach with the accusations that are being made

against the Justice Department.

Mr. GERSHEL. I certainly wouldn’t want to comment on the intentions of the independent counsel, but I will tell you from my experience in working with him in his investigation, they have been very

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aggressive and very thorough, just as we have been, in the search

for the truth.

Mr. WAXMAN. Aside from misspelling a man’s name, is there any

other besmirch on your record of integrity and honesty and good

spelling—— Mr. GERSHEL. I would hope not.

Mr. WAXMAN [continuing]. That this committee should know

about?

Mr. GERSHEL. I would hope not.

Mr. WAXMAN. Thank you. Mr. Chairman, I don’t know, the red

light is on. I don’t know how much more time I would have. I certainly have a lot of other questions but I don’t want to abuse the

time. Oh, I have 2 more minutes.

Mr. BURTON. Sure.

Mr. WAXMAN. Well, Chairman Burton issued a series of subpoenas to the White House, the Commerce Department, State Department, the Democratic National Committee—isn’t it great you can

just issue subpoenas? You can issue them to everybody—and these

subpoenas called for the production of all documents, requests, subpoenas and interview requests made by the Justice Department’s

Campaign Financing Task Force as a part of its criminal investigation. It is my understanding that the Department of Justice has expressed serious concern about the committee’s use of its subpoena

power to shadow its ongoing investigation.

Mr. Gershel, I would like to ask you a few questions about the

role of a Federal grand jury in criminal investigation and the reasons why activities and deliberations of a grand jury are kept secret. A grand jury doesn’t do its business in open court, isn’t that

correct?

Mr. GERSHEL. That’s correct.

Mr. WAXMAN. And in fact when prosecutors question a witness

before a grand jury, the witness’ attorney isn’t even permitted in

the room, isn’t that correct?

Mr. GERSHEL. That is correct.

Mr. WAXMAN. The Supreme Court has explained a number of

reasons why a Federal grand jury needs to conduct its business in

private. One reason is to ensure that people who are accused but

later exonerated by the grand jury will not be held up to public ridicule. Isn’t that correct?

Mr. GERSHEL. Yes, sir, it is.

Mr. WAXMAN. Another reason grand juries operate in secret is to

protect witnesses from retribution or improper inducements and to

encourage witnesses to testify fully and frankly, correct?

Mr. GERSHEL. That is correct.

Mr. WAXMAN. Another reason is to allow the individual grand jurors to conduct their deliberations without improper interference,

correct?

Mr. GERSHEL. That is correct.

Mr. WAXMAN. And another reason grand juries operate in secret

is to prevent those who are about to be indicted from fleeing and

escaping justice, isn’t that correct?

Mr. GERSHEL. Yes, sir, it is.

Mr. WAXMAN. So there are many reasons for grand jury secrecy,

but Chairman Burton, through a series of subpoenas issued to the

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White House and all the others, Justice Department and so on and

so forth, has tried to look around the veil of secrecy surrounding

Federal grand juries and use this information for his own partisan

purposes. In the process I believe he’s undermining the secrecy of

the grand jury protections.

And I see my time has expired. Thank you, Mr. Chairman.

Mr. BURTON. Gentleman’s time has expired.

Mr. Horn.

Mr. HORN. Thank you, Mr. Chairman. I’m curious. Why can’t the

Department of Justice tell us about the staffing levels for the email investigation? Under what authority do you have not to tell

us about the staffing level?

Mr. GERSHEL. Congressman, if you’re asking me to give you legal

authority for that, for my decision not to comment on that, I cannot

give you that.

Mr. HORN. Well, whose authority is it?

Mr. GERSHEL. It has been my understanding that it has been the

practice of the Department of Justice, not just with this administration but previous administrations, to not comment upon specific

staffing levels. There are a number of reasons for that, including,

for example, it may suggest an importance or lack of importance

with respect to the investigation based simply on how many people

are assigned to it.

As I said at the outset, to the extent this committee is concerned

that the investigation is not proceeding because it has inadequate

resources, that’s simply not the case. There are more than adequate resources assigned to this investigation, both from the Campaign Financing Task Force and the Office of the Independent

Counsel.

Mr. HORN. Does the Attorney General have a memorandum anywhere in any policy binder that—which says when you come before

a congressional committee you’re under oath, you’re asked a question, that you can’t sit there unless you’re going to take the fifth,

but it seems to me where is the authority of the Attorney General

or anyone there to say we don’t reveal levels of personnel. Does the

AG have that? Have you ever read it? Have you ever seen it?

Mr. GERSHEL. Congressman, I have not seen that but I am certainly willing to go back and talk to my superiors, and I’m more

than happy to get back to you and the committee on that specific

question.

Mr. HORN. Well, the facts of life are in this town that if you don’t

have it in either a Presidential Executive order, a regulation issued

by the Attorney General, you respond to the congressional inquiry

when we ask a question.

Mr. GERSHEL. What I’m trying to explain to you, sir, that even

if I was comfortable in responding to a question of that nature,

what makes the question difficult is the fact that at any given time

the number of people assigned to the case is going to vary; moreover because another agency, the Office of Independent Counsel is

involved, I am not familiar with their staffing level. I don’t know

how many people they assign to the case, and it would be pure

speculation on my part as to guess to that part, but nevertheless

they are a key component of this investigation.

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Mr. HORN. We were told months ago that one individual part

time was on the campaign finance investigation. Is that true or

false?

Mr. GERSHEL. Mr. Horn, again—Congressman Horn, again my

answer is that I cannot—I prefer not to comment. It is inappropriate for me to comment on specific numbers assigned to the investigation.

Mr. BURTON. Mr. Horn, would the gentleman yield just a moment? We think that the Justice Department doesn’t have the right

to refuse to answer this question, and we’re prepared to hold this

hearing open and have you come back under subpoena until you

answer that question because that question is relevant, whether or

not we’re really getting into this e-mail investigation and whether

or not the Justice Department is serious about it.

Mr. Horn.

Mr. HORN. Mr. Chairman, if I might, it seems to me they gave

the levels to the General Accounting Office.

Mr. BURTON. That’s correct.

Mr. HORN. So I don’t know why it can’t be given to a body of the

House of Representatives, and I assume in your preparation for

this particular hearing that you looked at the staffing levels, knowing we would ask it, and then you also knew that you would say,

oh, sorry, we can’t tell you, and I think that’s pretty bad of this

operation but we have known that for several years. So why can’t

you give us the basic information?

Mr. GERSHEL. Congressman, just so we’re clear, it is my understanding that the information provided to the GAO was not broken

down specifically by investigative matter. Rather, the GAO was

given total and aggregate numbers of the task force attorneys assigned to total task force investigations, not specifically how many

were assigned to the e-mail investigation or any other specific, discreet investigation.

Mr. HORN. Well, I will go back then, Mr. Chairman, if I might,

if I have time, on this particular videotape where the Vice President seems to say, ‘‘We oughta, we oughta, we oughta show Mr.

Riady the tape, some of the ad tapes,’’ and he was enthusiastic

about it. Then there’s a voice that says, ‘‘I’ll see if I can do that,’’

who was obviously a staff member following the Vice President

around. Now, there have been an exchange of letters between this

committee and the Department of Justice that was sent out by this

group, and we explained the significance of that statement to the

campaign finance investigation and we asked you if you wanted the

original videotape of the event, which we just happened to have.

You refused to say, you’re Assistant Attorney General, you refused

to say whether you wanted it. We sent letters July 18th, August

1st, asking if you wanted the original videotape of the event. We

got no answer. Then yesterday, the day before the hearing, and

this is where it always happens here, we got a letter from the Assistant Attorney General saying that the Justice Department wanted the tape. Why did it take so long for the Justice Department to

ask for this tape?

Mr. GERSHEL. Sir, as I have indicated several times now, regarding the decision to seek or not seek that tape is not something I

am prepared to address. I have indicated that we are interested

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and willing and happy and want to review evidence that the committee thinks is relevant. We have done that. We’ll look at it.

Mr. BURTON. Gentleman’s time has expired. We’ll come back to

you in just a few minutes.

Mr. HORN. I am going to have to leave.

Mr. BURTON. Maybe we can yield you some time after Mr. Ford.

Mr. FORD. I yield him 30 seconds.

Mr. BURTON. Without objection.

Mr. HORN. What worries me, and what always does, is you have

so many leads out of the White House, out of the Justice Department and of course they just downplayed this in terms of somebody

that’s talking down there, and they’re the political spinners in

order to get everybody off the trail or to denigrate the evidence and

make flamboyant statements and say, oh, we did that a year ago,

so that isn’t for us to think about now.

That’s the typical game in this administration. I think it is reprehensible. It violates any feeling of ethics and the Assistant Attorney General said he thought the leaks at DOJ were harmful to the

investigation, and, well, whatever happened in terms of the DOJ

people that denigrated the evidence there of that videotape that

seemed to be the Vice President of the United States? So whatever

happened to the people that were squealing and trying to run this

evidence down?

Mr. GERSHEL. Sir, I am going to ask if you wouldn’t mind, I

apologize, but I am not sure I understand the specific question

you’re asking me.

Mr. HORN. Well, I hope you think about it, and I hope you try

to get some responses for this committee.

Mr. BURTON. I am sorry you have to leave, Mr. Horn. Thank you

for your participation. Mr. Ford has graciously said you can go

ahead, Mr. Gilman.

Mr. GILMAN. I want to thank Mr. Ford and I regret that I have

another meeting on, but I would like to ask Mr. Gershel one question. I am looking at page E–8701, dated February 22, 1996, 11:43

a.m., from Joel Velasco to Albert Gore, subject, Carter Eskew request. ‘‘Carter wants to be able to e-mail you from his office. We

have some options. Give Carter your special e-mail address that

Michael Gill had set up earlier or give Carter my e-mail or Heather/Liz, and we would forward all e-mail from Carter to you. You

would have to do the same to send him e-mail. Reminder, and this

is what I would like to ask about, all Internet e-mails are recorded

on the White House computers. According to Michael, the only way

not to have your e-mails backed up on government computers

would be to get a Clinton/Gore computer in your office and set it

up for private e-mails. Question: How would you like to proceed on

this?’’ Is this a usual method of avoiding the computer recording of

these e-mails? I’ve never heard of this procedure. Have you?

Mr. GERSHEL. Congressman Gilman, you’re asking me—I’m

sorry, I missed the citation to what—— Mr. GILMAN. E–8701, dated February 22, 1996, 11:43 a.m. What

I’m asking about is the reminder that he puts in that e-mail, all

Internet e-mails are recorded on the White House computers. According to Michael—I don’t know who Michael is, Michael Gill, I

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guess—the only way not to have your e-mails backed up on the

government computers would be to get a Clinton/Gore computer in

your office and set it up for private e-mails.

Is that something that’s been happening in the White House?

Mr. GERSHEL. Congressman, for me to answer the question

would put me in the position of commenting upon——

Mr. GILMAN. I am just asking about procedure. I don’t want you

to comment. Is this a normal procedure?

Mr. GERSHEL. Sir, the question would require me to comment regarding the scope and the nature of the investigation and—but it

would be inappropriate for me to do that at this time.

Mr. GILMAN. Well, can you respond to the committee at a later

date and tell us whether this is a procedure that is undertaken in

normal events at the White House in order to avoid having a computer backup?

Mr. GERSHEL. At a subsequent point in time, if it is appropriate

to respond publicly to your question, we would certainly do that.

Mr. GILMAN. Well, Mr. Chairman, I hope that we can get a response at a later date. Thank you, Mr. Chairman. I want to thank

Mr. Ford.

Mr. BURTON. So do I, but don’t hold your breath.

Mr. Ford.

Mr. FORD. Thank you, Mr. Chairman, and, Mr. Gershel, very

quickly can you tell me the number of attorneys at the Department

of Justice that are currently working on investigations from police

departments around the Nation regarding racial profiling? Can you

give me the aggregate number of—the specific number that are

working in the Philadelphia Police Department, the New York Police Department, the other departments that have been—some concerns have been raised about how they treated certain people in

their communities?

Mr. GERSHEL. Congressman Ford, frankly, I have no idea.

Mr. FORD. OK. In July 2000, Chairman Burton said a videotape

of a December 15, 1995 coffee at the White House indicates that

Vice President Gore suggested that DNC advertisements be played

for a particular Democratic donor. I think my friend Mr. Horn was

trying to get at that. This Democratic donor has been the subject

of campaign finance probes. According to Chairman Burton, Mr.

Gershel, Vice President Gore apparently states, ‘‘We oughta, we

oughta, we oughta’’ show this Democratic donor the tapes, ‘‘some

of the ad tapes.’’

Let me deal with the facts for one moment. I know Chairman

Burton remembers this, that he played the videotape at a July 20,

2000 hearing of this committee. However, it was not possible to determine what was said on the tape. Further, it was impossible to

determine to whom the Vice President was speaking because he

was not on camera during the alleged comment and that Reuters

reporter describing the playing of the videotape at the hearing

wrote, ‘‘Gore’s muffled words were not clear.’’

When Chairman Burton played the tape on Fox television’s program, Hanity and Combs, the person whose job it is to transcribe

the show, transcribed the tape excerpt as follows. ‘‘we oughta, we

oughta show that to,’’ and it was unintelligible here, ‘‘let,’’ again

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unintelligible, ‘‘tapes some of the ad tapes,’’ again unintelligible, ‘‘just to set the record straight.’’ I want to take a moment if I can, Mr. Chairman, and set the

record straight regarding one Charles Duncan. In March 1999

Chairman Burton sent a letter to the Department of Justice asking

the Department to investigate whether Charles Duncan, then Associate Director of the Office of Presidential Personnel at the White

House, made false statements under oath to this committee. This

referral was part of an unfortunate pattern in this committee in

which the majority asked the Justice Department to consider criminal charges against a witness who has provided testimony that is

inconsistent with the majority’s theory.

In the case of Mr. Duncan, Chairman Burton alleged that Mr.

Duncan may have made false statements in his answers to interrogatories in April 1998. The main basis for the chairman’s claim

is that Mr. Duncan’s responses were, ‘‘irreconcilable’’ with notes

Mr. Burton’s staff took regarding unsworn statements purportedly

made by another witness, Steve Clemons, during a December 1997

interview with the majority staff.

There were serious flaws with the chairman’s allegations. Mr.

Clemons first was interviewed by two junior majority attorneys

without representation of counsel, and minority staff was not invited. Unlike the statements of Mr. Duncan, Mr. Clemons’ statements were not made under oath. Further, immediately after the

majority released the majority’s staff interview notes of the

Clemons’ interview in February 1998, Mr. Clemons issued a public

statement noting that he had never seen the notes, he had not

been given the opportunity to review them for accuracy and that,

‘‘the notes have significant inaccuracies and misrepresentations’’ about the important matters which were discussed.

In addition, the chairman’s letter referring Mr. Duncan to the

Department of Justice failed to mention sworn testimony of several

other witnesses that supported Mr. Duncan’s statement.

After Mr. Burton wrote the Department of Justice with the referral of Mr. Duncan, Mr. Waxman provided the Department of Justice with relevant evidence omitted by the chairman’s letter. I

would like to enter this letter into the record.

[The information referred to follows:]

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Mr. FORD. Mr. Waxman wrote to the Department of Justice on

this matter because the chairman’s allegations were tantamount to

a smear on Mr. Duncan’s representation. Mr. Duncan’s public service has spanned several administrations and his reputation was

untarnished until the chairman’s letter. I believe the majority

should be embarrassed about making a referral based on such flimsy evidence.

Mr. Gershel, could you comment on the status, if you wouldn’t

mind, of the Justice Department’s consideration of the chairman’s

referral on Mr. Duncan?

Mr. GERSHEL. Congressman Ford, as I indicated at the outset,

perhaps you weren’t present at the time the—I did——

Mr. FORD. Forgive me, I am sorry. Excuse me for not being here.

Mr. GERSHEL. And I had to do some checking on that. It predated

my coming down here to Washington, and I have learned that matter is a closed matter. Attempts to interview a crucial witness were

unsuccessful and it was determined that the investigation would be

closed.

Mr. FORD. Thank you. There are just 2 weeks left in the 106th

Congress, Mr. Gershel, which you probably are aware of and I’m

sure the people around this country are, and I deeply regret that

we have so little time to help seniors afford their prescription

drugs, pass the patient’s bill of rights and hire more teachers, and

rebuild schools or even raise the minimum wage.

I would just call on my chairman, let’s end the personal attacks,

the partisan warfare, even the political witch hunts. Let’s stop

issuing and threatening to issue subpoenas and start writing laws.

Let’s end this partisan charade and get back to the work that our

constituents sent us here to do. Even if we can’t do that, let’s at

least end the partisan witch hunt and get out and campaign for the

candidates we care deeply about and we believe ought to run this

country.

We could certainly spend our time a little better than we’re doing

here, Mr. Chairman, and I want to thank Mr. Gershel and apologize to him again on behalf of all of us on this committee. Even if

the people on the other side don’t have the will to say they apologize, I apologize for calling you up here today to have you answer

the questions that you have answered.

And if you could get back to me also on the number of people you

have investigating some of this racial profiling. We’ve not held one

hearing on that in this committee, I might add, although we’ve

heard from around the country an outcry for some work on this.

I would hope that my chairman would at some point be willing to

hold a hearing to address these issues. Perhaps you can come back

and comment on that as well.

With that, I have no time to yield back. I thank the chairman

for the time.

Mr. BURTON. We’ll be very happy to receive that kind of information, and I have not yet received a request for a racial profiling

hearing that I know of, but we will be happy to look into that. As

a matter of fact, I think Mr. Cummings yesterday had a hearing

on Monday on the problems with cancer not being properly tracked

as far as minorities are concerned, and we acceded to his wishes

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to have the hearing on Monday. We’ll be happy to do that for you,

too.

Let me just ask a few other questions. First of all, in response

to Mr. Waxman, I think you know that an independent counselraised investigation is limited. A lot of the things that we’re talking

about in the e-mail investigation Mr. Ray does not have any jurisdiction over. Sometimes I wish he did but he doesn’t, and so the

limited part of the overall investigations that are taking place that

Mr. Ray has jurisdiction over, you may be working with him on,

I don’t know, but I can tell you that a lot of things we’ve asked,

in my opinion, in other parts of the campaign finance investigation

scandal, the moneys have been returned, whether or not the President and the Vice President were involved, and so forth, we have

not received the kind of cooperation that I think we need, and I

think it needs to be put in the record that Mr. Ray, Independent

Counsel Ray’s jurisdiction is limited and you would agree with

that, wouldn’t you?

Mr. GERSHEL. Yes.

Mr. BURTON. Thank you. Would you please look at exhibit No.

1? That’s a set of e-mails that were produced to the committee by

the White House last Friday afternoon. In his cover letter accompanying the production the Senior Associate Counsel to the President stated that these e-mails were reconstructed from backup

tapes by the FBI working in conjunction with the Campaign Financing Task Force and the Office of the Independent Counsel.

Is that correct?

Mr. GERSHEL. Can I just have one moment to sort of read this.

Mr. BURTON. Sure.

Mr. FORD. Mr. Chairman, while he does that, it was a $52 million limited investigation that you referred to Mr. Ray and Mr.

Fisk, and I believe that in my district is a lot of money, but that

was a $52 million limited investigation that taxpayers paid for

without a single charge being brought against the President and

the First Lady.

Mr. BURTON. I think you’re probably correct. There were, I think,

14 people indicted and convicted, however, but you’re right, there

were some limitations on how far the investigation went.

Anyhow, go ahead, Mr. Gershel. Did you have a chance to look

at that?

Mr. GERSHEL. Yes, sir, thank you.

Mr. BURTON. Did you get my question?

Mr. GERSHEL. Sorry.

Mr. BURTON. Let me go through it again. That set of e-mails

were produced to the committee by the White House last Friday.

In his cover letter accompanying the production the Senior Associate Counsel to the President stated that these e-mails were reconstructed from backup tapes by the FBI working in conjunction with

the Campaign Finance Task Force and the Office of Independent

Counsel, is that correct?

Mr. GERSHEL. Yes, that’s correct.

Mr. BURTON. When did the White House provide the backup

tapes for these e-mails to the FBI?

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Mr. GERSHEL. Sir, to answer that question, you would be asking

me to comment on a pending matter that is before the grand jury

at this time, and I cannot do that.

Mr. BURTON. You mean just knowing when they were produced,

when the White House gave those backup tapes to the FBI, I mean,

that’s going to impinge on an investigation—a grand jury?

Mr. GERSHEL. My response to that question would be commenting upon an open pending grand jury investigation and it would be

inappropriate for me to answer that question.

Mr. BURTON. Well, I fail to see why that would be inappropriate

because we’re just asking the date that the FBI got those tapes

from the White House. I mean, I don’t know how that’s relevant

to a grand jury investigation, but we’ll check and see if that’s something that you should be required to answer, and we’ll have you

back up and ask you about that again.

When did the FBI reconstruct the first e-mails, do you know

that? And you can’t comment on that either probably.

Mr. GERSHEL. No. What I will answer for you, if it would be helpful to the committee, is to give you some general background on the

process for the reconstruction, how this process came into being,

and I’m happy to talk about that in a general sense. If that would

be helpful to the committee’s oversight functions, I’m willing to do

that.

Mr. BURTON. That’s fine and we appreciate that, but we need to

have some timeframes, because we’ve been trying to get these emails for 3 years, as have the Justice Department and the independent counsels and our committee, and what we’re trying to find

out is when did the White House provide these backup tapes to the

FBI, when did the FBI first reconstruct these e-mails, and we’re

trying to get a timeframe to see what the problem has been for 3

years.

Mr. GERSHEL. Let me see if I can provide some helpful information to you, Mr. Chairman.

Mr. BURTON. All right.

Mr. GERSHEL. The reconstruction process really is the result of

a, for lack of a better description, a protocol that was entered into

between the Justice Department, the White House and the Office

of Independent Counsel. It was done as a way to try and expedite

the investigation to look for ways to review and have access to unrecorded e-mails, which is really the focus of the campaign finance

investigation. To that end, this protocol was entered into which allowed for the submission of the backup tapes. It then allowed the

FBI through their technical experts to begin pulling e-mails off of

those tapes. There is a process in place. This protocol was entered

into in June of this year. The reconstruction effort began—first emails began being pulled off of the backup tapes in approximately

August of this year.

Mr. BURTON. OK. That helps answers some of my questions. So

it was in August of this year that they started pulling these tapes,

the information off the backup tapes.

Mr. GERSHEL. That’s approximately correct, yes, sir.

Mr. BURTON. We were told—in February or March we were told

that probably in 6 months we would start having a large number

of these e-mails sent to the committee and the other relevant invesVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00274 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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tigations. Now we’re finding out that it was in August that we—

that they started going through and getting information off the

backup tapes and we’ve been told that we probably wouldn’t get a

great deal of e-mail information until after—until around Thanksgiving, which is well after the forthcoming election.

Mr. GERSHEL. I’m just unclear as to who made those representations to you. As the committee may know, there have been technical issues associated with the reconstruction process that have

been ongoing for some time now. It is through this protocol that

we’ve been able, through the FBI expertise to actually begin pulling these e-mails off the backup tapes and reviewing them for relevancy to our investigation.

Mr. BURTON. Did the FBI use search terms, or teams, to search

the backup tapes for relevant information?

Mr. GERSHEL. Did the FBI use search terms?

Mr. BURTON. Teams—excuse me, I’m correct, did they use search

terms? Oh, search terms, right, uh-huh.

Mr. GERSHEL. Congressman, that would be a question that would

be asking me to comment upon the scope and the nature and the

specifics of this investigation, and I’m reluctant to do that.

Mr. BURTON. Were the backup tapes searched only for information relating to the campaign fundraising in the Lewinsky investigations or were they checked for other things?

Mr. GERSHEL. That would be my same answer, asking me to

comment upon an open matter.

Mr. BURTON. Were the tapes searched for information relating to

the FALN, the terrorist organization, clemency that took place or

the Babbitt investigation?

Mr. GERSHEL. Congressman, same answer. I apologize. I’m not

trying to be difficult with the chairman, but it is important to understand that I’m saying this because it is a grand jury matter. My

ethical responsibilities prohibit me from commenting upon a pending matter, and it would just be wrong for me to do that.

Mr. BURTON. How does the Justice Department eliminate somebody from an investigation when there’s an ongoing grand jury investigation taking place? I mean, anybody that is a potential suspect, until the grand jury investigation is completed and until all

of the relevant information is given to them, how do they eliminate

anybody as a possible suspect?

Mr. GERSHEL. As a general proposition, I will try and answer the

question.

Mr. BURTON. Yeah, as a general proposition.

Mr. GERSHEL. There may be situations, for example, where there

may be an ongoing grand jury investigation and there may be allegations that may involve only one small segment of that investigation. That may be a discreet, separate segment that will allow the

investigators to review that part of the investigation, make some

determinations, make some decisions, make some recommendations

as to that part of the investigation without compromising the full

investigation and allow us to make some decisions. For example, it

is not unusual in my experience for that to happen, and individuals

who may have begun in the investigation as perhaps a subject of

an investigation, upon further investigation that may not be the

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case and they end up becoming cooperating witnesses to help us

with the investigation.

Mr. BURTON. Let me just ask this question, and I will yield to

my colleagues if they’d like because I don’t think we’re going to get

answers to these, and you can maybe pursue some of these when

you get to your questioning.

We go back to the tape of this meeting in December 1995. Justice

was asked by this committee to look at it several times. We’ve gone

over this several times today. There is a question as to whether or

not the Vice President made the statement that many believe he

made about showing these tapes to Mr. Riady, who was a major

contributor of illegal campaign contributions from Indonesia.

How can the Justice Department excuse anybody when there’s an

ongoing grand jury investigation, when there’s that kind of relevant evidence or possible evidence out there that you haven’t

looked at and our committee asked you several times to look at it

and you did not even ask for it until yesterday? So all I’m saying

is how can you eliminate someone who is a potential target of the

investigation when that kind of information has not even been

looked at by Justice?

Mr. GERSHEL. Congressman, if you’re asking me again why the

letter that was sent, signed by me, as well as the letter signed by

the Office of Independent Counsel to Mr. Barry’s letter?

Mr. BURTON. I’m talking about the Vice President, and, Ms. Reno

saying he wasn’t going to be investigated.

Mr. GERSHEL. Who wasn’t going to be investigated?

Mr. BURTON. The Vice President, because that tape was not

looked at by you. It was not analyzed by experts to see if that was

exactly what was said, and if it was said, then it is important evidence that the grand jury ought to take a look at it and you have

not looked at it even though we have requested you look at it three

times.

Mr. GERSHEL. Congressman, I believe we’re looking at all relevant evidence, and again as I’ve indicated this afternoon, steps

have been made, if they haven’t already been done so, to request

the tape from the committee. If you believe it is relevant evidence,

it will be examined.

Mr. BURTON. Mr. Ford, we have votes on the floor. Do you want

to recess while we go to the floor and vote or do you want to proceed now for another 5 minutes?

Mr. FORD. I just want to set the record straight on the issue

about the Vice President. You obviously cannot comment, Mr.

Gershel, with regard to—and we appreciate you following the law,

somebody in the room is—with regard to the Vice President. He

still may be covered under some of the questions and some of the

things that are going on with this grand jury. Ms. Reno has just

indicated they’re not going to appoint an independent counsel to

look into matters.

Is that—I think the American people, including this American, is

lost in the train of questioning here. Again I think you have theories on the other side that for whatever reason the Justice Department has decided—after looking at the facts and the law decided

not to pursue the course my friends on the other side would like

you to pursue.

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So if you would just sort of clarify that for me because I think

there’s—the record is a little confused, and perhaps that’s the purpose of this hearing, but if you wouldn’t mind clarifying that for me

and I think for the few Americans that may be watching this.

Mr. GERSHEL. Congressman Ford, the Attorney General’s decision with respect to the appointment of a special counsel is a matter of public record. She made public statements about that. As I’ve

indicated, in the course of our investigation, if there’s information

that develops that we, the Campaign Financing Task Force or any

other investigators, believe is relevant to that decision, I would not

hesitate for a moment nor would anybody else feel any reluctance

to speak with the Attorney General and advise her of that and

make whatever decisions and recommendations are appropriate.

We’ve never been prohibited from having that kind of access or

having that kind of ability to share investigative information with

the Attorney General, and I expect that to continue.

Mr. FORD. Thank you, Mr. Gershel.

Mr. BURTON. Mr. Ford, if you would like, I don’t know if you’re

going to come back after the vote, but we do have some more questions we want to ask. But the Chair will call a recess pending this

vote and we’ll be back as quickly as possible.

[Recess.]

Mr. BURTON. We will reconvene. I apologize, Mr. Gershel, for

being gone so long, but getting off that floor sometimes is very difficult. We will try to expedite on the rest of the hearing so you can

get under way.

Counsel is recognized.

Mr. WILSON. It is almost goodnight, but good afternoon.

Mr. GERSHEL. Good afternoon, Mr. Wilson.

Mr. WILSON. Let me make sure I start my time so I don’t go on

for too many hours.

Going back to the search term issue that we were talking about

before, you were asked the question about what search terms were

used that ultimately led to the production of documents to us last

week. There is a little bit of a difficulty understanding why you

can’t provide to us the search terms that were used. For example,

the committee has an interest in documents that were subpoenaed

relating to pardon FALN terrorists. Unless we’re sadly mistaken,

we’re not aware of a criminal investigation of the President’s decision to pardon FALN terrorists. So there is no ongoing investigation. There is no grand jury process for that issue. So if you could

try and explain to us so we can understand a little better why you

can’t provide any information about search terms.

Mr. GERSHEL. I suppose the best way to answer the question

would be to try to answer it in the abstract, if I might, and see if

this is helpful to you. Without again indicating whether or not the

e-mails that have been produced thus far pursuant to the protocol

were done pursuant to a search term, I would indicate, though,

that hypothetically if I were to provide you with search terms that

were used as part of the reconstruction process, I think that it’s a

fair statement that the disclosure of search terms would, in fact,

disclose the nature of the investigations. Search terms they use for

a particular reason and a particular purpose, and the disclosure of

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those would, in fact, or could perhaps indicate the direction of the

investigation.

Mr. WILSON. And that’s a fair point, but we know the searches

have to be done. That’s not a negotiatable aspect. The committee

subpoenaed documents. There was a reservoir of documents that

was never searched. At some point somebody somewhere is going

to have to go back and search the documents for that which the

committee asked for a year ago, 2 years ago, 3 years ago. So what

we’re trying to do is get a sense of whether that process has started

or not.

Maybe it would be easy—maybe you could be in a position at

some point to say it just hasn’t started. Are you able to say that?

Mr. GERSHEL. I’m not sure I follow the question. As you know,

certainly the search of the backup tapes has obviously started by

virtue of the fact that we now have, all of us, in front of us a package of e-mails. That’s the fruits of the beginning of the process,

which I indicated to the chairman began this summer. So that

process is ongoing, and as we’ve indicated before, the focus of the

Justice Department’s investigation, our portion of the investigation,

is to determine whether or not our previously issued subpoenas

had been complied with, and whether or not there had been any

obstruction of justice with respect to the nonproduction of any relevant e-mails. That’s really been the focus of our investigation, and

that’s the process we’ve been going through.

Mr. WILSON. Right. And maybe you misspoke there, but you said

the focus of your investigation is to determine whether your subpoenas have been complied with. Now, we know one thing. You’ve

referred a number of times to the Office of Independent Counsel.

The Office of Independent Counsel has no jurisdiction over matters

that we’ve looked into. So if the Office of Independent Counsel were

to find a document that said we are purposefully obstructing the

committee’s investigation of the clemency issue, the Office of Independent Counsel is in no different position than anybody in this

room. They can provide the information to somebody else, but they

can’t go out and take people before the grand jury and investigate

that matter.

Now, you just stated very clearly that your interest in the Campaign Financing Task Force investigation of the e-mail matter was

determining whether your subpoenas were complied with. Who is

trying to figure out whether our subpoenas were complied with?

Mr. GERSHEL. Let me be clear. That is certainly a principal focus

of our investigation, but in the course of the investigation, if it’s determined that e-mails that were relevant to previously issued congressional subpoenas were not complied with and is evidence of potential criminality, those issues would be looked at. We understand

as the Justice Department it may be our responsibility at the end

of the day to look into that and be responsible for investigation and

prosecution of those matters if that were to occur.

Mr. WILSON. It doesn’t sound like you started doing that. Now,

we can’t say that for a fact because you won’t answer the question,

but we’ve got two issues here. One, we don’t know what search

terms you’re using, so for all we know, you’ll ignore the congressional interest, and it’s not just this committee, it’s a number of

committees. That’s the first point.

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And the second point, we brought up a very legitimate question

about manpower. This is not a small undertaking. We’ve had a

number of staff working for 6 months trying to determine certain

things, and it’s our understanding—you can say that people come

in and out of the investigation, but continuity is important, and

full-time employees are important. We’re under the understanding

that one part-time person was working full time on the criminal email investigation, and that person has left. And you are sitting

here today not answering with any clarity that question, or maybe

I should phrase it you’re not putting that concern to rest. And—— Mr. GERSHEL. All I can say, and I would hope that this would

satisfy the concerns that you and the committee have, is that

please don’t assume because one attorney may have left the task

force, who happened to have been a part-time attorney, who may

have been assigned to the investigation, that because of that individual’s departure, the investigation is not being worked thoroughly and aggressively and appropriately. It is simply not the

case.

Mr. WILSON. We understand that. We understand what you say,

but then again those same words gloss over the fact that the Campaign Financing Task Force failed to ask the President a single

question about foreign money for 3 years. The Campaign Financing

Task Force failed to ask the Vice President questions about Hsi Lai

Temple for a number of years.

So it’s all very well for you to sit here and say, we’re doing our

best job, and we’re working to get something done on this issue,

but what we’re trying to figure out is if that’s true or not.

Now, who made the decision—we gave you the question in advance—who made the decision not to answer our question about

how many employees are working full time on the e-mail matter?

Mr. GERSHEL. Who made the decision?

Mr. WILSON. Who made the decision not to answer this committee’s question? Is it just you?

Mr. GERSHEL. I wouldn’t say it was a decision by one person.

When the information, the letters, came in, it was evaluated. I was

advised those issues that I could respond to, those which may be

issues that we would not respond to. For example, the second letter

has a host of questions that concern specifics of the e-mail investigation. That’s an open matter.

Mr. WILSON. Very well. We understand that, but this is very

clear. We’ve got this GAO report. It talks about staffing levels. You

attempted to set up a distinction here, but it sounds like you were

instructed not to answer this question. Who instructed you not to

answer this question?

Mr. GERSHEL. It wasn’t a specific person that I can recall that

said, Mr. Wilson, do not answer that question. I was advised in the

course of preparing for my hearing, my testimony, this afternoon

this has been the practice, the longstanding practice, of the Department. To the extent I can provide the committee with aggregate

numbers, total numbers, and the task force currently assigned— that are in the task force working on campaign investigation, I can

do that.

Mr. BURTON. Mr. Gershel, if you would let me just say that this

is something we really want an answer to. And I don’t want to imVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00279 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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pede your ability to do your job by dragging you up here under subpoena, but we intend to find out if there really is a concerted effort

by the Justice Department to look into the e-mail matter. We have

been after this now for 3 years. We were told early in the year we

would see some of this expedited, and we can’t even find how many

attorneys you have working on this thing over there. We’ve been

told that there was one part-time attorney working on the e-mail

thing, which is totally insufficient.

You also started talking about Mr. Ray and his independent investigation, and that may cover part of it, but we’re talking about

the campaign finance scandal, the FALN, the Babbitt matter, a

whole host of things that may be relevant to what we’ve been investigating up here, and we need to know how many people were

working on the investigation.

We’re going to keep after this until we find out. And I’m not talking about how many worked for Mr. Ray or other independent

counsels. I’m talking about the Justice Department and the task

force itself. How many people did they have working on this investigation?

Mr. GERSHEL. Mr. Chairman, as I believe I indicated in response

to this line of questioning from Congressman Horn, that I indicated

that I would go back to the Department of Justice. I will attempt

to discuss this issue and see whether or not the information can

be provided to you. I will ask you to accept that at face value. I

assure you that we would respond back to you, but I’m just not prepared to do that today.

Mr. BURTON. Let me just say that I don’t know whether a contempt of Congress citation would do anything at the Justice Department. We have one that is pending before the Congress right

now. We are probably going to issue that contempt citation and

take it to the floor, and it is probably going to pass. And if you

don’t answer this question, and if the Justice Department—this

does not bear on any grand jury investigation—I will not hesitate

to move a contempt citation and take it to the floor here at the end,

because I think this is very important. We need to know whether

or not the Justice Department was serious in getting the e-mail information to the relevant committees and the other independent

counsels. We don’t believe they were, and we just want to know.

So I just want you to know we expect an answer to that question,

and we will give you some time to do it, but if we don’t—you know,

I want you to know the consequences. And if this Justice Department does not move on a contempt citation, rest assured if we keep

the majority and I’m chairman next time, we will bring it up next

year.

Mr. WILSON. Just to add a real-world component to this discussion about how many people you have working on the issue——

Mr. BARR. Would the counsel yield?

Mr. WILSON. Yes.

Mr. BARR. Mr. Gershel, what is the thinking behind or the rationale behind not wanting to disclose those figures? That’s something new to me. It doesn’t have to do with, as the chairman said,

the specifics of a grand jury investigation or improperly disclosed

prosecutorial strategy or tactics. Do you see any reason why that

information should not be made available to the Congress as the

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stewards of public resources and as the appropriators for the funds

that are used by the Department of Justice to handle all investigations?

Mr. GERSHEL. Mr. Barr, I understand the question. It certainly,

as a general proposition, probably does not implicate grand jury secrecy rules. I accept that as a proposition ordinarily. I think one

of the concerns may be perhaps that assuming for the moment that

the question can be answered precisely, and earlier on in my testimony I tried to explain why it is difficult to pin down a specific

number at a specific point in time, but putting that aside, a suggestion of a total number of agents or prosecutors asigned to a case

may suggest an importance or lack of importance that may be inappropriate.

Mr. BARR [presiding]. That’s sort of precisely the point. We want

to know whether there is importance or lack of importance attached to this, and the only way—one of the indices that we have

for that is what resources is the Department devoting to the investigation. I would presume we would agree that that is relevant information for Congress to have. Would you agree with that proposition?

Mr. GERSHEL. I have heard the chairman’s message loud and

clear. I will take that information back. I will do what I can to try

to respond to the committee’s question. That’s really the best I can

do under the circumstances at this time, except to assure you that

we will respond back to this committee.

Mr. BARR. Do you see any reason why Congress should not have

that information?

Mr. GERSHEL. Mr. Barr, I don’t know. I don’t have a longstanding history down here in Washington. I have no experience, frankly, testifying about—— Mr. BARR. How about just a history of how our representative

form of government works? How about based on that do you see

any reason why Congress should not have that information?

Mr. GERSHEL. I can’t think of reasons off the top of my head. I

can’t answer that question either way. I am doing the best that I

can.

Mr. WILSON. I will move on to another subject, but just before

I do, I want to put this in a real-world context because it is not

just some academic concern for us. We interview many people, and

one of the questions we ask is, have you ever been talked to by the

Department of Justice either Campaign Financing Task Force or

Office of Independent Counsel. The answer is frequently no. It is

disturbingly no in many situations.

Let’s really get into a real-world situation here. There were some

problems with representations prepared for Tony Barry by Department of Justice lawyers. A couple of weeks ago an assistant to the

President said they were false. We submitted many months ago a

referral pointing out that Mr. Barry’s representations were false.

They were prepared by Department of Justice lawyers. There

doesn’t seem to be an awful lot of realistic doubt about that matter.

And you wrote a letter to Tony Barry, and you basically let him

off the hook. You said he’s not a target of the investigation. Now,

aside from the fact that you couldn’t even spell his name correctly,

you had not talked to Mark Lindsay, who is the guy, the assistant

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to the President, who said his statement was false. And it strikes

us as a little bit odd that you may not have enough people on the

case to do the interviews. That’s the first thing.

But the second thing is it is the same frustration we feel with

failure to ask pertinent questions about major campaign finance

issues. If you wait 2 or 3 or 4 years, that doesn’t seem to be an

appropriate investigative tactic to take. Now, everybody’s got their

own process to follow, but here we’re just trying to understand

what yours is. So we will hopefully hold this hearing open, and we

can have you come back, and we can ask that question at a different time.

Mr. GERSHEL. Can I just make a brief response to that comment,

please, Mr. Wilson?

Mr. WILSON. Absolutely.

Mr. GERSHEL. I just want to say two things. First of all, again,

so we’re clear, the nontarget letter to Mr. Barry was issued both

by of the Campaign Financing Task Force and Office of Independent Counsel, No. 1. No. 2, as you certainly well know, a nontarget

letter is not a letter of immunity, is not a promise of nonprosecution, and that it is what it is. I mean, it does not promise that if

the situation changes or other evidence develops, that that label

might, in fact, not change at some point in time. I’m not saying

that’s the case here with Mr. Barry, but, please, I want to be clear

that he’s not an immunized witness, and that designation was a

joint designation by both the campaign task force and the Office of

Independent Counsel.

Mr. WILSON. We understand that, but if I were Mr. Barry’s legal

counsel, I would rather have a nontarget letter than an aggressive

approach indicating that you might prosecute their client. So it

cuts both ways.

But I want to get to another subject that hasn’t been addressed

at all and that’s—it’s a rather complex one, but it’s the issue of

subpoenas that we have issued to entities that the Department of

Justice seems to be blocking. Now, I’ve read your testimony and I

understand what you say. I have a few questions about that. Within the last several months the committee has issued subpoenas to

a number of agencies and entities calling for document requests

and subpoenas served on them by the task force. Now it’s obvious

what we’re doing. We’re trying to find out what questions you’ve

asked them. The first two subpoenas were directed to the White

House and the Commerce Department and they were honored.

There was no interference whatsoever by the Department of Justice. Why has the Department of Justice treated the subpoenas

that we issued to the Commerce Department and the White House

different than ones that we sent to the DNC and the State Department? Why the disparate treatment?

Mr. GERSHEL. Perhaps the best way to answer it would be to indicate to you that as to the State Department and the Commerce

Department as sister agencies to the Department of Justice, given

the longstanding practice, it seemed appropriate not to obstruct

this committee’s investigation, not to obstruct in compliance with

their subpoenas, but to be sure that information that was being accumulated, that is, information that was originated with the Department of Justice and that may have contained sensitive inforVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00282 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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mation, was treated appropriately. It is true the Commerce Department has released information. Frankly, we would have preferred

that we would have received a phone call and would have had a

chance to review that information. Since then, there has been some

contact with the Commerce Department on some followup, as I understand it.

As to the DNC, it is my understanding that they’re not viewed

as a government agency per se, and the White House chose to respond directly to the committee. But as to the agencies involving

the State Department and the Commerce Department, we are in

contact with them.

Mr. WILSON. Now, if you had concerns about the response to our

subpoena somehow impeding or impinging upon your investigation,

why did you not come to us with those specific concerns? Let me

put that in the context of when we interviewed Johnny Chung over

a year ago. There were some very real concerns at the Department

of Justice that Mr. Chung would provide information that would

touch upon ongoing aspects of the campaign finance investigation,

and the Department of Justice came to us and said, please do not

go into these matters, and we did not. And to this day, even though

we asked 4 or 5 months ago, I believe, for a list of what we can

go into now, and that list has been not provided to us, we operated

in good faith and we negotiated with the Department of Justice

and we did exactly what you said.

Why not treat these subpoenas in precisely the same way? There

are many, many, many issues that are asked about in the subpoenas that are not any product of an ongoing investigation or any

part of an ongoing investigation.

Mr. GERSHEL. I can’t speak to the Johnny Chung matter. I have

no knowledge of that. I’m not familiar with it. I was a nonparticipant in that, so I have no basis of comparison as to that matter.

I can only speak to my understanding of the practices that concern

subpoenas to third agencies; not to preclude, not to prevent, not to

obstruct them from complying with those subpoenas by giving you,

the committee, their own documents. The concern rests with documents that we may have provided to agencies as part of perhaps

some request. That’s the information that we’re looking at. If you

believe in future subpoenas that it would be helpful and productive

for us to engage in this kind of dialog, I’m happy to do that, and

I believe that others would be as well. I will take that back with

me.

Mr. WILSON. Well, what I believe is that we should have done

that maybe 2 months ago instead of going through all of the process that we’ve gone through to get to a rather absurd response. The

response that we’ve ultimately gotten to our subpoenas are pages

that are completely blacked out, they’re redacted, so we get nothing

whatsoever, and I can’t represent to you with certainty—well, I can

represent to you with certainty on some of the issues there is nothing happening in the Department of Justice, as far as we can tell,

that would impact an ongoing criminal investigation. In one case,

you block out Liu Chaoying’s name. In another case you don’t redact Liu Chaoying’s name.

We don’t understand, given that you allowed us to ask Johnny

Chung questions, unrestricted questions about Liu Chaoying, how

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you can now take the position that if we know that you asked an

agency about Liu Chaoying, that somehow impacts your ongoing investigation. Is there not a failure of intellectual consistency there?

Mr. GERSHEL. The decision was made. The belief was that at

least as to that matter, disclosing it would impact and would affect

an ongoing investigation.

Mr. WILSON. So it was OK for us to ask how about Liu Chaoying

a year ago when we questioned Johnny Chung who actually had information about Liu Chaoying, but when we send a subpoena off

to an agency that may not have any information about Liu

Chaoying, we can’t even know that the Department of Justice

asked about Liu Chaoying. That is the position you’re now taking.

Mr. GERSHEL. No, Mr. Wilson, you’re asking me to use as a

benchmark an issue that I’m not familiar with, and that puts me

in a difficult situation because I can’t respond to your question in

a way that’s going to satisfy you. I don’t know what happened a

year ago. I’m trying to engage in this practice as honestly and as

completely and as appropriately as I can under the circumstances.

That’s why this was done. I cannot take this situation and compare

it a year ago to the Johnny Chung matter.

Mr. WILSON. Fine, but I just told you what happened a year ago.

A year ago, the Department of Justice allowed this committee unfettered questioning of one of the witnesses that you had used in

the campaign finance investigation. They allowed us unfettered

questioning of Johnny Chung. They allowed us to ask questions

about Liu Chaoying. Now, all of the sudden, something’s changed.

Now, it would be one thing if somebody had come to us and said

there is now new information and an ongoing investigation, but

that doesn’t appear to be the case. You just seem to want us to not

have the information.

Mr. BURTON [presiding]. I think Representative Barr would like

to ask a question.

Mr. BARR. If I could, Mr. Chairman. This stack of e-mails, Mr.

Gershel, are you familiar with them, the ones that came in to us

I think on Friday?

Mr. GERSHEL. Yes, sir.

Mr. BARR. I had a couple of questions. I was just going through

them here. There is one dated March 5, 1996 from Ron Klain, KL-A-I-N. It’s No. E–8762. Who is Mr. Ron Klain?

Mr. GERSHEL. I don’t recall at this time who he is, Congressman.

I certainly know the name.

Mr. BARR. Pardon?

Mr. GERSHEL. I certainly know the name. I don’t recall the specific position or title.

Mr. BARR. Is he with the Office of the Vice President?

Mr. GERSHEL. That may be correct but I’m not sure.

Mr. BARR. Who is Elaine Kamarck, K-A-M-A-R-C-K?

Mr. GERSHEL. I don’t know.

Mr. BARR. Pardon?

Mr. GERSHEL. I don’t know.

Mr. BARR. Is she with the Office of the Vice President?

Mr. GERSHEL. I don’t know.

Mr. BARR. Who is Mr. Glicken, G-L-I-C-K-E-N?

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Mr. GERSHEL. I recognize the name certainly, but I forget his

exact position or relationship with—if any—with the Vice President’s Office.

Mr. BURTON. Excuse me, would the gentleman yield? You don’t

know who Howard Glicken is, and you’re conversant with the investigation into the e-mails of the task force and the campaign finance scandal and you don’t know who Howard Glicken is?

Mr. GERSHEL. I’ve indicated I recognize the name, Congressman,

but I can’t sit here and give you a description of him.

Mr. BARR. Do you know him as a convicted felon?

Mr. GERSHEL. I don’t know that.

Mr. BARR. Do you know him as somebody who pled guilty to Federal fundraising violations in July 1998?

Mr. GERSHEL. I believe that’s correct.

Mr. BARR. Do you know him as somebody who facilitated a Ger- man national named Thomas Kramer in funneling some $20,000 to

the DNC?

Mr. GERSHEL. I don’t know that.

Mr. BARR. Do you know why the Vice President, according to this

e-mail, would be interested in what seems to be rigging an award

for Mr. Glicken?

Mr. GERSHEL. Congressman, I can’t comment on that information. This is a pending matter.

Mr. BARR. What aspect of this e-mail is pending?

Mr. GERSHEL. These e-mails have been reconstructed as part of

a process in the e-mail investigation. It’s potential evidence in this

case, and to comment on that would be inappropriate for me to do

so.

Mr. BARR. In other words, the subject matter of this e-mail is the

subject of an ongoing criminal investigation.

Mr. GERSHEL. I’m saying these e-mails are being evaluated and

being reviewed, and to comment on those e-mails would be inappropriate.

Mr. BARR. I would like to draw your attention to another e-mail,

this one No. E–8862 dated April 23, 1996 from—at the top the

name is Karen Skelton.

Mr. BARR. Do you have that one?

Mr. GERSHEL. Yes, sir, I do.

Mr. BARR. Who is Karen Skelton?

Mr. GERSHEL. Sir, again you’re asking me to comment on names,

people, their positions, perhaps their relationships. That would be

inappropriate for me to do at this time.

Mr. BARR. No, I’m not. This is ridiculous. Who is Karen Skelton?

I’m not asking you to tell me whether or not she’s under investigation. I’m not asking you to tell me the details of why she might be

under investigation. I’m asking you who she is. If you don’t know

who she is, then just say so. Who is she?

Mr. GERSHEL. I believe she’s an individual associated in some capacity with the Office of the Vice President.

Mr. BARR. That’s my understanding as well. Who is Ellen Ochs,

O-C-H-S?

Mr. GERSHEL. I don’t know.

Mr. BARR. Is she associated with the Office of the Vice President

as well?

282

Mr. GERSHEL. I don’t know.

Mr. BARR. Would it surprise you to learn that she is?

Mr. GERSHEL. I wouldn’t be surprised either way.

Mr. BARR. OK. This particular e-mail dated April 23, 1996 poses

the question to Ellen Ochs from Karen Skelton, who you have admitted is in the office or was in the Office of the Vice President,

‘‘These are FR coffees, right?’’ FR Stands for fundraisers, correct?

Mr. GERSHEL. I don’t know what it stands for.

Mr. BARR. What do you think it stands for?

Mr. GERSHEL. Sir, I don’t know what it stands for.

Mr. BARR. You have no idea what it stands for?

Mr. GERSHEL. Perhaps it could stand for that, I don’t know. It

would be speculative on my part. And again now you’re asking me

to comment on information that is part of the investigation, and

with all due respect I’m going to decline to do so.

Mr. BARR. Has anybody, you or anybody else, made any determination as to what FR stands for in the context of these e-mails?

Mr. GERSHEL. You’re asking me a question again, Congressman,

that is an open matter and I cannot comment on that.

Mr. BARR. You won’t even tell us whether you all have even conducted the most fundamental inquiries even to determine what the

terms are that are referenced in the e-mails that you all have sent

up to us, what those terms stand for or mean?

Mr. GERSHEL. No, sir. I didn’t say that. If I did, I think you misunderstood me. What I’m saying is it would be inappropriate for

me to comment to you and try to suggest to you what the investigation may have learned the meaning of FR. You’ve asked me to

speculate, and what I’m suggesting with all due respect is that to

do that, you’re asking me now substantive questions about the investigation.

Mr. BARR. No. The first question I asked was—the second question, the specific one on the table before you right now is: Has anybody made any sort of inquiry or investigation in order to determine what FR means or what it refers to?

Mr. GERSHEL. Sir, I’m not going to comment on that.

Mr. BARR. Would it be as a general investigative matter, an important investigative tool, if presented with written evidence or

electronic evidence that contains terms or acronyms, to determine

what those terms or acronyms mean?

Mr. GERSHEL. As a general rule, aside from this, if we receive

documents in the course of the investigation that contain terms or

abbreviations or acronyms or things that are not readily apparent,

that certainly would be relevant, it would be important to ascertain

from the appropriate people the meaning of those terms.

Mr. BARR. Are you conducting an investigation of these e-mails?

Mr. GERSHEL. Yes, sir, I have indicated there is an e-mail investigation.

Mr. BARR. So it would be a logical conclusion on our part that

you all are looking into what the terms mean.

Mr. GERSHEL. Specifically, sir, again—— Mr. BARR. I don’t understand this, why you all are fighting this,

unless you are trying to hide something.

Mr. GERSHEL. Congressman, I am not trying to hide the ball

from you. What I’m trying to do is I’m trying to balance the posiVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00286 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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tion I find myself in this afternoon, a position where there is frustration obviously on your part. I understand that, because you are

not satisfied with the responses you’ve gotten perhaps from me or

from others at the Justice Department.

I’m also dealing with the tensions that I have and responsibilities I have ethically and professionally not to, as you know, certainly, to disclose information that may impact or disclose investigation, because it would be a violation of rules of ethics that I am

bound by, that I’m bound by not only the statewide practice but

under the McDade legislation passed by this Congress. I have to

be very mindful of that also.

Mr. BURTON. Our time has expired on this side. We will come

back for further questioning. You are recognized for 30 minutes.

Ms. AMERLING. Thank you. I am Kristin Amerling, minority

counsel. I would like to ask a few questions to clarify a couple of

issues that have come up during today’s hearing.

First, Mr. Gershel, Chairman Burton has suggested repeatedly

that the Campaign Finance Task Force never reviewed the videotape of the December 15 coffee. I may have misheard, but my understanding is that you simply said you can’t comment on whether

task force investigators have reviewed the tape. Mr. Gershel, would

you care to clear this up for the record?

Mr. GERSHEL. I guess what I would say, without specifically commenting upon whether or not we reviewed the tape, is to answer

your question by saying, please don’t assume by my answers earlier

this afternoon and by previous answers by other officials from the

Justice Department that the videotape has or has not been looked

at.

Ms. AMERLING. I would like to turn to the issue of the scope of

the Office of Independent Counsel’s e-mails investigation. Earlier

today, Chairman Burton appeared interested in trying to establish

that the independent counsel is conducting a narrow investigation.

I’d like to explore this issue a little further with you. I understand

that the Office of Independent Counsel is focused on examining the

e-mail glitches as they relate to productions to the independent

counsel. Is that accurate?

Mr. GERSHEL. That’s correct.

Ms. AMERLING. If that is the case, it’s hard to imagine that assuming the independent counsel is doing a thorough job, there are

major issues concerning the e-mails’ glitch that the independent

counsel is not looking at. The main issues this committee has been

examining are whether Northrop Grumman contract employees

were threatened to keep quiet about the discovery of the e-mail

glitches; whether White House counsel intentionally concealed email glitches from investigators; and whether e-mails relevant to

ongoing investigations, including e-mails relating to Monica

Lewinsky, remain unreviewed. All of these issues would be relevant to the independent counsel’s inquiry into events surrounding

e-mail glitches that affected production of documents to the independent counsel. The independent counsel would have certainly requested e-mails relating to Monica Lewinsky. The independent

counsel therefore, just like this committee, would be concerned

about whether employees were inappropriately threatened if they

didn’t remain quiet about the glitches; whether White House counVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00287 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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sel covered up the problems; and whether outstanding relevant documents remain unproduced. Mr. Gershel, would you agree with

that?

Mr. GERSHEL. Yes.

Ms. AMERLING. Thank you. I don’t have any further questions.

Mr. BURTON. I know that you said that you neither admit to seeing the tape that we talked to you about, the December 15, 1995

tape, but we know since 1997 that you haven’t seen that tape because the FBI had it and we had it sent to us. So in the last 3

years we know you haven’t reviewed it, and you just asked for it

yesterday after we requested that you look at it three different

times. So I think that needs to be in the record. I know you haven’t

looked at it, because you haven’t had it.

Ms. AMERLING. I don’t have further questions. Thank you.

Mr. BURTON. Do you have further questions?

Mr. WILSON. I do.

Mr. BURTON. Without objection. He has a few more questions, so

since there’s no other Members, there’s no objection, we will allow

the counsel; and if you have more questions, we will give you some

more time as well.

Mr. WILSON. If I could, I wanted to followup on the last question

because there was some misunderstanding as to what precisely you

answered in response to counsel’s question. Do you remember what

her question was? Are you able to characterize it for us?

Mr. GERSHEL. I believe the question had to do with the scope of

the independent counsel’s investigation.

Mr. WILSON. I thought—I didn’t hear all of it, but it sounded like

the question was that the scope of the independent counsel’s investigation covered all of the things that this committee is interested

in in the e-mail investigation. Is that a fair characterization?

Mr. GERSHEL. Mr. Wilson, again, no disrespect and not trying to

be cute with you in my answer, the scope and the direction and the

nature of the independent counsel’s investigation is really best answered by the independent counsel, not by me. I’m not in the best

position to evaluate what their investigation is. We’re working a cooperative investigation. We tend to, as we’ve previously testified to,

interview many of the same witnesses, look for the same kinds of

documents. But the question regarding the scope of their investigation is really a question that they’re better capable of answering

than I am.

Mr. BURTON. Let me interrupt. There have been occasions when

we’ve had an opportunity to talk to Mr. Starr, and subsequently to

Mr. Ray. And the scope of their investigation has been brought up

a couple of times during the discussions that we’ve had with them,

because we’ve had an ongoing investigation. And it’s pretty clear to

me what the scope of his investigation is and it does not include

the campaign finance scandal or things related to that. It pertains

to the Whitewater and the Lewinsky matter. And I think he’s pretty much stated that publicly and in conferences with Members of

the Congress, without getting into the details.

And so I think that needs to be clarified very clearly. The scope

of his powers in investigation are limited to the Lewinsky and the

Whitewater investigations. He has not gotten any authority that I

know of from the Attorney General or the court to expand that inVerDate 11-MAY-2000 09:37 Sep 26, 2001 Jkt 000000 PO 00000 Frm 00288 Fmt 6633 Sfmt 6633 C:\DOCS\74496.TXT HGOVREF1 PsN: HGOVREF1
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vestigation beyond that. And so what we’re talking about is the

campaign finance investigation, your task force, and whether or not

the Justice Department is aggressively pursuing justice in this

matter.

Mr. WILSON. I just want to followup on that. You just stated

you’re not in the best position to discuss the scope of the Office of

the Independent Counsel’s jurisdiction. But when you were asked

a direct question about that by minority counsel, you gave an opinion. It seemed like it was a misrepresentation of their scope. They

have a statutory limitation in the scope. We know what it is.

Mr. GERSHEL. I expressed an opinion. I believe that to be accurate. But again you’re trying to have me answer with precision the

scope of their investigation, the areas of inquiry. And I cannot do

that. I’m uncomfortable doing that. I don’t know the precise answer

to that question. I believe the way the question was presented to

me, I tried to answer to the best of my understanding, and I would

answer it the same way again. But if there’s some doubt about the

accuracy of my answer, please, you should address those questions

to the Office of Independent Counsel, Mr. Wilson.

Mr. WILSON. Well, no. Actually we need to address these questions to you, because you’re making representations that go out to

people and try to communicate something to people, and they don’t

appear to be entirely accurate. What you’re trying to do, it seems,

is cloak the investigation. You’re trying to use the Office of the

Independent Counsel to confer some kind of legitimacy to the Justice Department investigation.

Let me ask you a very specific question. Can the Office of Independent Counsel address any matters that pertain to the decision

by Secretary Babbitt to deny a gaming permit to a Hudson, WI dog

track?

Mr. GERSHEL. I don’t know the answer to your question. I’m not

familiar with the jurisdiction of the independent counsel.

Mr. WILSON. Fair enough. When this all started back in March,

we made a very specific request for special counsel to be appointed.

We pointed out that we thought it may not even be legally appropriate for there to be a joint investigation between the Department

of Justice and the Office of Independent Counsel. The Department

of Justice communicated to us that they thought it was because

they had looked at the law and fully understood the jurisdictional

issues here.

Now, you are the main man in terms of this investigation, and

you’re coming here today and you’re telling us you really don’t have

a clue as to what the jurisdictional issues are with DOJ and the

Office of Independent Counsel. And it seems to us that you’re probably the one person that should be able to clearly say, we can do

certain things, they can do certain things, and they can’t do what

we can do, and we can’t do what they can do. I mean, it seems like

you should be the one person to explain that to us. Who from the

Department of Justice would be able to do that?

Mr. GERSHEL. I’m not sure. I would have to—I’d have to go back

and determine that for you. I’m doing the best I can to answer your

question regarding the jurisdiction of the independent counsel.

Mr. WILSON. OK. Fair enough. Just one bit of followup on a line

of questioning we were going down a moment ago. We were talking

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about the committee’s subpoenas to obtain documents from the

State Department, the Commerce Department, the White House.

We also subpoenaed the DNC. We asked the DNC for subpoenas

served upon it by the task force. Now, despite the fact that the subpoena was served over 6 weeks ago, the DNC has failed to comply

because the Department of Justice has prevented it from doing so.

This was communicated to us today. The DNC, however, is either

a witness or a target of the Department in this investigation.

Now I am going to read some words that your immediate superior, Assistant Attorney General Robinson, spoke at our last hearing. He testified under oath,

Although a prosecutor may prefer that a witness not disclose information about

a pending case, the government does not have any right to dictate who a witness

can or cannot talk to. Witnesses do not belong to either side of a matter. As a matter of due process and prosecutorial ethics, the government cannot threaten or intimidate a witness for the purpose of preventing a witness from talking to a subject

or a target of investigation or from exercising their first amendment rights.

Now, isn’t that what the Department of Justice is doing now in

terms of preventing the DNC from complying with the congressional subpoena?

Mr. GERSHEL. Absolutely not. The DNC has never been told not

to comply with this committee’s subpoena. To the contrary, it’s not

my understanding. I have not had contact with them. It’s my understanding they were told to fully comply with the subpoena. Even

as to our dialog in our discussions with the State Department, we

have never said, do not comply with the subpoena. We simply

asked for the courtesy of reviewing the information, our documentation, as accumulated before it’s released.

We have never suggested that anyone should not comply with

subpoenas. I recognize the importance and the significance of subpoenas. I issue subpoenas. I would like them complied with. You

issue subpoenas, you want them complied with. What I’m trying to

explain here is the process by reaching that control. But the DNC

has never been told not to comply with your subpoena, and I state

that categorically right now.

Mr. WILSON. OK. Well, there is confusion coming from them to

us, and I understand that you have no knowledge of that necessarily. So obviously you’ve been about as unambiguous as you

can possibly be. The DNC should comply with our subpoena. We

will expect that. We will ask them to do that when we leave the

hearing.

Mr. BURTON. Would you be willing, Mr. Gershel, to give us a letter to the effect that you urge compliance with our subpoenas by

the DNC; that there’s no objection from the Justice Department

that there be a compliance. I’m not sure that should be necessary,

but I want to make sure that they know over at the DNC, or the

RNC for that matter, if we’re asking for something, that the Justice

Department fully expects them to comply with subpoenas that are

lawfully issued by the Congress.

Mr. GERSHEL. Chairman, may I have 1 minute to confer with my

peers, please?

Mr. BURTON. Sure.

Mr. GERSHEL. Thank you.

[Discussion off the record.]

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Mr. GERSHEL. Mr. Chairman, I thank you. We’ve conferred and

we will prepare a letter that I think will satisfy this committee.

Mr. BURTON. Thank you very much.

Mr. WILSON. OK. At this time I will wrap it up. The last couple

of questions. We got into this a little earlier. The Attorney General

made a very clear statement on August 23rd. She said, ‘‘I have concluded there is no reasonable possibility that the further investigation could develop evidence that would support the filing of charges

for making a willful false statement.’’

On Friday we got a new stack of e-mails. Can you tell us one way

or another whether the Attorney General had all the e-mails we

got last week when she made her pronouncement on August 23?

Mr. GERSHEL. Mr. Wilson, I can’t comment specifically on what

she had or didn’t have in front of her. What I can tell you is what

I believe I testified to earlier this afternoon; that in the course of

this investigation as e-mails are reconstructed from the backup

tapes, if there’s information that we believe is relevant to a reevaluation or reconsideration of that decision, we would not be

hesitant to bring that information to her information. But specifically what she had in front of her when that decision was made,

I can’t respond to that because I’m not in a position to know.

Mr. WILSON. Fair enough. Let me provide some information to

take to her attention. It appears that Karen Skelton, the author of

some of the e-mails we got, the person who talks about the FR, the

fundraisings, it appears that she was the Vice President’s political

director, one of his most senior staff.

We got a letter from the White House today, and they say to the

best of their knowledge Karen Skelton has never been interviewed.

Now, we have also have a list of the 302s that the Department of

Justice has compiled. Karen Skelton’s name is not on that. It seems

to me that if you were making a determination of the veracity or

lack thereof of statements by an individual, you would talk to the

person who was there, one of their senior political advisors and the

author of documents that are of extraordinary probative importance to this matter. So I mean, I guess we can provide to you now

the name of Karen Skelton. Can you tell us now, has Karen Skelton ever been interviewed by the task force?

Mr. GERSHEL. I can’t comment on that.

Mr. WILSON. There was a fair indication earlier—we asked if you

knew who she was, and you’d never heard of her.

Mr. GERSHEL. It would be inappropriate for me to comment at

this point in time whether or not she has been interviewed or will

be interviewed. I appreciate the points you’ve made. I will take

that under consideration with respect to the investigation, the importance of her.

Mr. WILSON. I appreciate your points, but earlier you said you’d

never even heard of her.

Mr. GERSHEL. I didn’t say that. If I did, I misspoke.

Mr. WILSON. Well, Mr. Barr asked you if you knew who she was

and you said no.

Mr. GERSHEL. I don’t believe that was my answer.

Mr. WILSON. Those are all my questions.

Mr. BURTON. Does the minority have any further questions?

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I want to make sure we’re clear on that for the record. Did you

say that you knew that she did work for the Vice President, the

lady in question?

Mr. GERSHEL. Mr. Chairman, it’s my recollection, I believe my

answer was that I believe she worked for the Vice President, was

associated with the Office of Vice President. I believe that was my

answer.

Mr. BURTON. We’ll check the record. But if the statement by majority counsel was not accurate on that, we will correct that for the

record. But we will check the record and go back on that.

Mr. WILSON. And if I did misspeak, I do apologize for that.

Mr. GERSHEL. Thank you.

Mr. BURTON. Let’s say I know, Mr. Gershel, we’re winding this

thing up now, I know you and the people at the Justice Department look at this committee, and probably the chairman in particular, with a great deal of consternation, and I understand that. I

want you to know that we really just want to get the facts out to

the American people and bring those people who break the law to

justice.

We have had the opinion, hopefully I’m wrong, but I’ve been of

the opinion that the Justice Department has not been as diligent

as they should be in pursuing some people because of their position

in this government and bringing them to justice. I hope that I’m

incorrect. But we’ll continue to pursue this, and hopefully we can

work together to reach some conclusions instead of being in an adversarial situation. I don’t like that anymore than you guys do.

Mr. GERSHEL. Mr. Chairman, I think our goals are probably one

and the same: the achievement of justice. And I should indicate

that I am a career prosecutor. I’m not a political appointee. I do

the job the best way I can, as thoroughly as I can without regards

to who it is that we’re looking at. And I just needed to say that.

Mr. BURTON. OK. Thank you very much. We will be back in

touch with you. We stand adjourned.

[Whereupon, at 5:50 p.m., the committee was adjourned.]

[The prepared statement of Hon. Helen Chenoweth-Hage and the

information referred to follow:]

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