THE JUSTICE DEPARTMENT’S IMPLEMENTATION

OF THE INDEPENDENT COUNSEL ACT

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JUNE 6, 2000

Serial No. 106–231

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

THE JUSTICE DEPARTMENT’S IMPLEMENTATION OF THE

INDEPENDENT COUNSEL ACT

U.S. GOVERNMENT PRINTING OFFICE

72–912 DTP WASHINGTON : 2001

THE JUSTICE DEPARTMENT’S IMPLEMENTATION

OF THE INDEPENDENT COUNSEL ACT

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JUNE 6, 2000

Serial No. 106–231

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

LISA SMITH ARAFUNE, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on June 6, 2000 ................................................................................. 1

Statement of:

Radek, Lee, Public Integrity Section Chief, Department of Justice; William Esposito, former Deputy Director, Federal Bureau of Investigation;

and Neil Gallagher, Assistant Director for Terrorism, Federal Bureau

of Investigation ............................................................................................. 12

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

Barr, Hon. Bob, a Representative in Congress from the State of Georgia,

GAO report .................................................................................................... 197

Burton, Hon. Dan, a Representative in Congress from the State of Indiana, exhibit 1 ................................................................................................. 23

Lantos, Hon. Tom, a Representative in Congress from the State of California:

Article dated April 28, 2000 ..................................................................... 44

Article dated December 17, 1999 ............................................................. 38

Article dated May 23, 2000 ...................................................................... 42

Letter dated July 20, 1998 ....................................................................... 57

Letter dated June 2, 2000 ........................................................................ 3

Radek, Lee, Public Integrity Section Chief, Department of Justice, prepared statement of ........................................................................................ 16

Wilson, James C., chief counsel, Committee on Government Reform:

Exhibit 7 ..................................................................................................... 75

Exhibit 11 ................................................................................................... 86

Exhibit 16 ................................................................................................... 133

Exhibit 35 ................................................................................................... 142

Exhibit 36 ................................................................................................... 170

Exhibit 60 ................................................................................................... 64

(1)

THE JUSTICE DEPARTMENT’S IMPLEMENTATION OF THE INDEPENDENT COUNSEL ACT

TUESDAY, JUNE 6, 2000

HOUSE OF REPRESENTATIVES, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The committee met, pursuant to notice, at 2:05 p.m., in room

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

of the committee) presiding.

Present: Representatives Burton, Gilman, Morella, Shays, Horn,

Mica, Barr, Hutchinson, Lantos, Cummings, and Kucinich.

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

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

Corallo, director of communications; M. Scott Billingsley, counsel;

Kimberly A. Reed, investigative counsel; Kristi Remington, senior

counsel; Robert Briggs, deputy chief clerk; Robin Butler, office

manager; Michael Canty, legislative aide; Scott Fagan and John

Sare, staff assistants; Leneal Scott, computer systems manager;

Lisa Smith Arafune, chief clerk; Maria Tamburri, assistant to chief

counsel; Corinne Zaccagnini, systems administrator; Phil Schiliro,

minority staff director; Phil Barnett, minority chief counsel; Kenneth Ballen, minority chief investigative counsel; Kristin Amerling,

minority deputy chief counsel; Paul Weinberger and Michael Yang,

minority counsel; Ellen Rayner, minority chief clerk; Earley Green,

minority assistant clerk; Andrew Su, minority research assistant;

and Chris Traci, minority staff assistant.

Mr. BURTON. A quorum being present, I ask unanimous consent

that all members’ and witnesses’ written opening statements be included in the record. 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 two binders of exhibits which have

been shared with the minority before the hearing be included in

the record and without objection, so ordered.

I ask unanimous consent that questioning in this matter 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

members of the committee as they deem appropriate for extended

questioning not to exceed 60 minutes equally divided between the

majority and the minority. Without objection, so ordered.

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 minorVerDate 11-MAY-2000 11:52 Jul 26, 2001 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\DOCS\72912.TXT HGOVREF1 PsN: HGOVREF1
2

ity member allocate time to committee counsel as they deem appropriate for extending questioning not to exceed 60 minutes divided

equally between the majority and minority; and, without objection,

so ordered.

Mr. Lantos.

Mr. LANTOS. You are going so fast, Mr. Chairman, some of us

need time to catch up.

Mr. BURTON. OK.

Mr. LANTOS. I want to raise a question with respect to the release of documents. As you know, the Department of Justice in

writing has expressed objections to the release of documents, and

I will introduce a letter in the record indicating their reasons for

objections.

[The information referred to follows:]

3

4

5

Mr. LANTOS. In essence, the Department believes that disclosing

internal deliberations to the public will have a chilling effect on future deliberations within the Department.

Second, the Department believes that releasing the documents

will infringe the privacy interests of innocent individuals who have

been involved in the investigation.

Is it my understanding that you intend to ignore the objections

of the Department of Justice?

Mr. BURTON. Mr. Lantos, we don’t intend to ignore the requests

of the Department of Justice. We worked out an agreement with

them prior to getting those documents which took us about 21⁄2

years to get, and we said that before we would release any documents we would inform them of our intent. We would also have a

committee vote on it, and they would be completely reviewed by

our staffs. We have reviewed them very thoroughly. We will go into

some of those today. We won’t be releasing them without the consent of the committee. So we were complying with every bit of the

agreement that we made with the Justice Department.

Mr. LANTOS. Do I understand that your position is that the Department of Justice has no objections to the release of documents?

Mr. BURTON. No, I am sure that they object because there are

some very embarrassing things in there that I don’t think that they

want in the public domain.

Mr. LANTOS. Under the circumstances, I would like to amend

your request, and I suggest we release all relevant documents, not

just selected documents; and I have a definition what I mean by

all documents.

Mr. BURTON. Would you state your definition?

Mr. LANTOS. The documents I propose be released are all memoranda, supporting documents and other materials produced to the

committee by the Department of Justice in response to the committee’s subpoena of May 3, 2000, relating to independent counsel deliberations. This includes any independent counsel deliberations relating to the investigations of the President, the Vice President,

Harold Ickes, Alexis Herman, Bruce Babbitt, Louis Freeh and others.

Mr. BURTON. I have talked to our counsel about this prior to the

meeting, and I don’t think we have any objection to that, Mr. Lantos.

Mr. LANTOS. Thank you.

Mr. BURTON. So, without objection, that will be so ordered; and

those documents will be released along with the documents that we

have in question.

For 21⁄2 years, we have been conducting oversight over the Justice Department. We’ve watched them conduct their campaign

fundraising investigation. We’ve watched how they have implemented the Independent Counsel Act. What we’ve learned has been

frustrating and disillusioning.

For a long time, it looked like the problems started late in 1997.

FBI Director Louis Freeh tried to get Attorney General Reno to appoint an independent counsel. He wrote her a 27-page memo. She

refused.

Then in July 1998, the chief prosecutor on the task force, Chuck

La Bella, tried to do the same thing. He wrote Ms. Reno a 94-page

6

memo. He was joined by the top FBI agent on the task force, Mr.

James DeSarno. Again, she refused.

But now we have learned that the problems did not start in the

fall of 1997. It appears that they started a year earlier, in 1996,

right at the outset of the investigation. The documents we have appear to show that the early problems revolved around one of our

witnesses today, Mr. Lee Radek. Mr. Radek is the head of the Justice Department’s Public Integrity Section. They prosecute public

officials. They implement the Independent Counsel Act.

In December 1996, Mr. Radek had a meeting with two FBI officials—Bill Esposito and Neil Gallagher. We just received a copy of

a memo from Director Freeh. According to this memo, Mr. Radek

stated that he was under a lot of pressure in this fundraising investigation because the Attorney General’s job might hang in the

balance.

That’s a pretty serious statement. Mr. Freeh took it seriously

enough when he heard about it. He met with the Attorney General.

He told her what Mr. Radek said. He asked her to recuse herself

and he asked her to recuse Mr. Radek.

Neither thing happened. Ms. Reno didn’t even look into the allegations. In fact, I understand that Ms. Reno doesn’t even remember

her meeting with Mr. Freeh. That is not unusual because we have

had an epidemic of memory loss of people from the White House

and the Justice Department for a long time. I understand that Mr.

Radek doesn’t even remember his meeting with Mr. Esposito. I

can’t understand somebody not remembering a meeting like that;

but, once again, the epidemic continues.

What happened after that bad start is predictable. One of the

fiercest critics of the Independent Counsel Act, Lee Radek, was put

in charge of implementing the act that he was opposing. Listen to

what he had to say in the New York Times in July 1997, when a

lot of these decisions were being made: ‘‘Institutionally, the independent counsel statute is an insult. It is a clear enunciation by

the legislative branch that we cannot be trusted on certain species

of cases.’’

Well, what happened? Mr. Radek spent 3 years fighting tooth

and nail to make sure that an independent counsel was never appointed, and it never happened. What a surprise. The Justice Department’s investigation was beset by constant infighting and finger pointing. They were tied up in knots.

After 21⁄2 years of fighting, we have finally received the Freeh

and La Bella memos. They are pretty damning. The La Bella

memos speaks volumes about what was happening at Public Integrity. Instead of talking about it myself, I’m going to let Mr. La

Bella do the talking. Here’s what his memo says about his struggles with the Public Integrity Section and Mr. Radek over investigating the White House and appointing an independent counsel:

‘‘You cannot investigate in order to determine if there is information concerning a ‘covered person,’ or one who falls within the discretionary provision, sufficient to constitute grounds to investigate.

Rather, it seems that this information must just appear.’’ Must just appear. That was on page 8 of his memo.

Mr. La Bella argued that there was a double standard that benefited White House personnel. He said,

7

Whenever the Independent Counsel Act was arguably implicated, the Public Integrity Section was called in to consider if a preliminary investigation should be

commenced.

A peculiar investigative phenomenon resulted. The Department would not investigate covered White House personnel nor open a preliminary inquiry unless there

was a critical mass of specific and credible evidence of a Federal violation.

And yet the task force has commenced criminal investigations of noncovered persons based on a wisp of information.

I think that is really important. They would not investigate covered White House personnel nor open a preliminary inquiry unless

there was critical mass of specific and credible evidence of a Federal violation, and yet the task force commenced criminal investigations of noncovered persons based upon a wisp of information. This

is the man that they put in charge of the task force.

What Mr. La Bella has to say about the noninvestigation of using

soft money for issue ads is unbelievable. He says,

If these allegations involved anyone other than the President, Vice President, senior White House or DNC and Clinton/Gore 1996 officials, an appropriate investigation would have commenced months ago without hesitation. However, simply because the subjects of the investigation are covered persons, a heated debate has

raged within the Department as to whether to investigate at all. The allegations remain unaddressed.

That is on page 14.

He goes on,

The debates appear to have been result- oriented from the outset. In each case

the desired result was to keep the matter out of the reach of the Independent Counsel Act. In Common Cause, this was accomplished by never reaching the issue. The

contortions that the Department has gone through to avoid investigating these allegations are apparent.

That is on page 14.

I’ll read one last quote on this subject because, it’s so important.

One could argue that the Department’s treatment of the Common Cause allegations has been marked by gamesmanship rather than an evenhanded analysis of the

issues. That is to say, since a decision to investigate would inevitably lead to a triggering of the Independent Counsel Act, those who are hostile to the triggering of

the Act had to find a theory upon which we could avoid conducting an investigation.

That is on page 38.

Finally, regarding the Loral investigation, Mr. La Bella says this:

In Loral, avoidance of an Independent Counsel Act was accomplished by constructing an investigation which ignored the President of the United States—the

only real target of these allegations. It is time to approach these issues head on,

rather than beginning with a desired result and reasoning backward.

That is on page 14.

Gamesmanship? Contortions? Beginning with a desired result

and reasoning backward?

That is unbelievable. Was there ever a better case for an independent counsel? Can you blame the American people or many in

Congress for being cynical?

Bear in mind that Mr. La Bella isn’t saying that he had the evidence to convict these people. He is saying that he was being held

back from investigating them in the first place.

So first you have the White House and the DNC closing their

eyes to the crimes being committed all around them. Then you

have Janet Reno’s Justice Department going through contortions to

avoid investigating them. That is why we have kept after this investigation as long as we have.

8

Now, the Justice Department doesn’t want us to release these

memos. They have withheld them from Congress for over 2 years.

The Attorney General was held in contempt of Congress by this

committee rather than turn them over. Their argument is that

these documents would provide defendants with a road map to the

investigation. Well, if this is a road map, it is a road map of a car

going around in circles.

They also argue that giving up these memos would chill the advice people give the Attorney General. Nothing could be further

from the truth. But they are embarrassing. Very embarrassing.

And I think that’s the real reason that they don’t want them in the

public domain.

What these documents really do is expose the bankruptcy of this

investigation. The damage has been done at this point. More than

3 years have gone by. Witnesses have fled the country. The fact is

that 122 people have either fled the country or taken the fifth

amendment. The only thing we can do now is to try to make sure

that it never happens again.

The question isn’t, how could we make these documents public?

The question is, how could we not?

There are just a couple of more issues I would like to address.

First, there is a whole series of memos in which Mr. Radek argues against appointing an independent counsel. However, when

you read the people’s responses to whom he wrote, his reasoning,

you see that Mr. Radek was either shading the truth or getting the

facts wrong.

Let me give you just one example. In August 1998, Mr. Radek

wrote a long memo stating that there should be no independent

counsel to investigate whether the Vice President made false statements about his fundraising calls. He was immediately taken to

task by a line attorney and FBI agents working on the case for

many blatant inaccuracies. One quote from the line attorney’s

memo sums it up. ‘‘The agents disagree vehemently with the characterization of the Panetta interviews. Specifically, they assert that

he did not change his statement, although the Radek memo says

he did so three times.’’

We’ll be questioning Mr. Radek about all of these memos.

Another important area is the Department’s terrible record in

this investigation: The President wasn’t questioned about any of

the important foreign money players. The Vice President wasn’t

questioned about the Hsi Lai Temple. A search warrant for Charlie

Trie’s home was withdrawn at the last minute, even though the

FBI wanted to go ahead and get documents. It wasn’t served for

3 months, despite indications from the FBI that documents were

being destroyed. James Riady was never indicted, despite ample

evidence.

I can’t tell you how many times this committee’s investigators

interviewed someone and found out that the Justice Department

hadn’t talked to them or subpoenaed documents and found out that

the Justice Department didn’t have them. And I’ve met some of the

prosecutors and agents who have worked on this case. They are talented people. I have nothing but high regard for Mr. La Bella and

Mr. DeSarno and Mr. Freeh and for the prosecutors and agents

9

who served under them. I think they had roadblocks put in their

way from the very beginning.

Let me read just one passage from a memo drafted by a senior

lawyer, Mr. Steve Clark, who quit the investigation out of frustration. Mr. Clark said, ‘‘Never did I dream that the task force’s efforts to air this issue would be met with so much behind-the-scenes

maneuvering, personal animosity, distortions of fact and contortions of law.’’ This is one of the guys investigating this.

I don’t know what else you can expect when one of the leaders

of the investigation says at the outset that he is under a lot of pressure and the Attorney General’s job hangs in the balance.

Finally, if anyone still has any doubts about how political Janet

Reno’s Justice Department has become, what happened yesterday

afternoon should erase them. My staff got a call from the Justice

Department at the end of the day. Justice is not happy that we are

going to release these documents. They told my staff that they had

found one last document they wanted to turn over to us, and this

one was about me.

My staff asked them when they found this document. They

wouldn’t say.

My staff asked if the investigation of me was closed. They didn’t

know.

My staff asked who ordered this document to be turned over.

They wouldn’t answer.

Well, this is about the most transparent attempt to intimidate a

Member of Congress that I have ever seen, and it ain’t gonna fly.

I want answers to all these questions, and I am going to make

sure that I get them from the Justice Department.

They tried to intimidate me in 1997. They started a criminal investigation of me based on some trumped-up charges raised by a

former executive director of the Democratic National Committee.

That didn’t work.

They tried to intimidate me again when I sent a document subpoena to the Attorney General for information on Ron Brown. A

couple days later, an FBI agent walked into my campaign headquarters with a subpoena from the Justice Department for 5 years

of my campaign records. That didn’t work.

They leaked a list of ongoing cases to Capitol Hill. It listed my

case as still open but likely to be closed shortly. Apparently, they

thought that I would be intimidated if they kept my case open. No

such luck.

This isn’t going to scare me or this committee off. I will not be

deterred. I want everybody here from the Justice Department, everybody, to understand something. If you think that I’m going to

be intimidated, you’d better think again. I think it is a real shame

that the Justice Department has sunk to this level.

What we have here in the documents tells one side of the story.

They tell it pretty convincingly. Today we will hear the other side,

from Mr. Radek.

Mr. Esposito, Mr. Gallagher, we appreciate you being here. We

will look forward to hearing from all of you.

I now recognize Mr. Lantos for his opening statement.

Mr. LANTOS. Thank you very much, Mr. Chairman.

10

Today, this committee is holding a hearing which the majority

has titled, The Justice Department’s Implementation of the Independent Counsel Act. A more appropriate title for this hearing

would be, Beating a Dead Horse, the Government Reform Committee Once Again Reviews the Independent Counsel Decision.

For the record, this committee’s repetitive, monotonous and unfruitful investigation has already cost the American taxpayer over

$8 million. Today, the committee is examining whether the Attorney General, Janet Reno, appropriately decided against appointing

an independent counsel to investigate campaign finance allegations. According to the chairman, the Attorney General has been

blocking for the President by deciding not to appoint an independent counsel.

Our committee already has explored and re-explored and re-explored again this issue. In fact, the committee held hearings on this

topic in December 1997, at which both the Attorney General and

the FBI Director, Louis Freeh, testified. The committee then

brought Director Freeh back to discuss the issue in August 1998.

These dates are significant because the chairman emphasizes a

memo written in 1996. The FBI director testified in December 1997

and in August 1998 on the same subject, and we shall hear from

him in a moment.

Director Freeh repeatedly said that he believed that the Attorney

General’s decision was motivated by nothing but the law and the

facts. I wish to repeat that. The FBI Director repeatedly testified

before this committee under oath that he believed that the Attorney General’s decision was motivated by nothing but the law and

the facts.

Now, however, Chairman Burton believes he has a smoking gun

on this matter. He claims that a December 1996, memo by Director

Freeh recently described in the media requires revisiting the independent counsel decision. On May 18, press accounts reported that

in this memo Director Freeh commented on remarks by Mr. Lee

Radek, Chief of the Public Integrity Section of the Department of

Justice, who purportedly made to FBI Deputy Director Mr.

Esposito that there was a lot of pressure on him regarding the

campaign finance investigation because the Attorney General’s job

might hang in the balance.

On May 19, Chairman Burton issued a press release on this 1996

memo. The press release states in part, ‘‘This committee has been

investigating the campaign fundraising scandal for 3 years. In that

time we have uncovered significant evidence that led us to conclude

that Attorney General Reno has been blocking for the President

and this administration. Now we have a piece of evidence from the

Director of the FBI’’—now meaning a memo dated 1996—‘‘that

makes it abundantly clear that we have been right all along. Janet

Reno and Lee Radek have been blatantly protecting the President,

the Vice President and their party from the outset on this scandal.’’

Director Freeh’s own statements before this committee, however,

directly contradict Mr. Burton’s theory. Director Freeh, who disagreed with the Attorney General’s decision regarding the appointment of an independent counsel for campaign finance matters, testified before our committee in December 1997, and August 1998, a

year and—almost a year and three-quarters after this memo, at

11

great length. At these hearings he made numerous statements

under oath regarding the Attorney General’s decision and her integrity. I suggest that we take a look at what he said.

[Videotape played.]

Mr. LANTOS. We have additional footage.

[Videotape played.]

Mr. LANTOS. As this videotape makes crystal clear, the Director

of the FBI, Mr. Freeh, discussed the Attorney General’s decision

extensively and under oath with this committee long after he wrote

the December 1996, memo, which, of course, contains nothing on

the basis of his own knowledge. That memo contains second- and

third-hand information. FBI Director Freeh stated under oath that

he does not believe the Attorney General was covering up for the

White House or for Democrats.

So today we have two choices. We either believe the Director of

the FBI that he was telling the truth in his testimony under oath

before this committee on two separate occasions, or we believe Mr.

Burton’s theory that the Attorney General was blocking for the

President. The committee today is not only repeating its own investigation on the independent counsel decision, it is duplicating recent Senate hearings on this same matter. As a matter of fact, we

had to postpone the commencement of this hearing because Senator Specter was conducting parallel hearings on the other side and

they ran overtime.

The Senate Judiciary Committee held a hearing 2 weeks ago and

one this morning on the same topic with virtually the same witnesses.

It is also worth noting that today’s hearing concerns the implementation of a statute that no longer exists. As a matter of fact,

I was amused to note in Chairman Burton’s opening remarks that

he quotes Mr. Radek in 1997 being critical of the independent

counsel statute.

Well, apparently the Republican-controlled House and Senate

agreed with Mr. Radek, because last year they chose not to renew

in any form the independent counsel statute. The independent

counsel statute was abandoned by the Congress because, on balance, it was deemed by the majority to be counterproductive.

So, as of today, we are discussing the implementation of a statute, and there are very few statutes that Congress abandons. This

happens to be one of them. Without any sunshine provision, we

just decided we better not renew it. So Mr. Radek’s judgment on

this issue certainly was seconded by the majority of both Houses

of Congress.

The Independent Counsel Act, which was enacted in 1978, put

limits on the Attorney General’s discretion regarding investigating

allegations of criminal wrongdoing by the President and other highlevel administration officials. Congress allowed the law to expire on

June 30, 1999. So we are going to spend some more time today

going around and around about whether the Attorney General appropriately used her discretion under the independent counsel statute when Congress has already provided the Attorney General with

substantially more discretion concerning Federal law enforcement

or executive branch officials by allowing the independent counsel

law to expire.

12

From time to time I was amused in all of these hearings to have

reference by the other side to a built-in conflict of interest between

an Attorney General and the President or Vice President because,

clearly, the Attorney General serves under the President. Well,

when the independent counsel statute was approved by the Congress of the United States, this was a well-known fact. As a matter

of fact, were the independent counsel statute still in effect, next

year an Attorney General will be appointed who will be appointed

either by Mr. Gore or by Mr. Bush, and clearly the same argument

could be raised as was raised all the time.

Congress knew what it was doing. Congress knew that a President appoints an Attorney General and the Attorney General decides whether an independent counsel is required to investigate alleged wrongdoing by high-ranking officials of the executive branch.

As we review and consider the documents that the Department

of Justice recently provided our committee, the key issue is whether the allegations of campaign fundraising abuses have been thoroughly investigated. The major documents we have received were

written between 1996 and mid-1998. We know that since then the

Department of Justice has examined a wide range of campaign

fundraising allegations. Since then, our committee has also examined numerous campaign finance allegations. In total, the chairman has unilaterally issued 915 subpoenas on campaign-finance-related matters.

We also know that since then the Department of Justice has

brought a number of campaign finance prosecutions. Individuals

central to the campaign finance allegations pleaded guilty to

wrongdoing, including Johnny Chung, Charlie Trie, John Huang,

have also come before the committee for detailed questioning.

These sessions did not produce evidence of major allegations that

the Department of Defense has ignored. In fact, none of these witnesses implicated any senior White House or Democrat party officials in wrongdoing. This committee should keep these facts in

mind as we proceed today. The chairman believes that there is a

massive coverup going on. Our job is to assess whether he has any

evidence at all to back up his allegations.

Thank you, Mr. Chairman.

Mr. BURTON. Thank you, Mr. Lantos.

I will now welcome our first panel to the witness table: Mr. Lee

Radek, William Esposito and Neil Gallagher.

[Witnesses sworn.]

Mr. BURTON. Mr. Radek, you are recognized for an opening statement.

STATEMENTS OF LEE RADEK, PUBLIC INTEGRITY SECTION

CHIEF, DEPARTMENT OF JUSTICE; WILLIAM ESPOSITO,

FORMER DEPUTY DIRECTOR, FEDERAL BUREAU OF INVESTIGATION; AND NEIL GALLAGHER, ASSISTANT DIRECTOR

FOR TERRORISM, FEDERAL BUREAU OF INVESTIGATION

Mr. RADEK. Good morning, Mr. Chairman and members of the

committee. I am here today in response to your request that I testify about matters relating to the Independent Counsel Act and its

application to campaign financing matters.

13

I serve within the Department of Justice as Chief of the Public

Integrity Section, a position that is and has always been a career

position. Indeed, no one within the section is a political appointee

or has ever held a political appointment. The work of the Section

is nonpartisan in fact as well as perception. As for me, I am, and

always have been, a nonpolitical career prosecutor. Including my

military service, I have more than 30 years of service with the Federal Government; and my career with the Department of Justice

spans 6 administrations and 10 Attorneys General.

I joined the Justice Department in 1971 through the Attorney

General’s Honors program. For 5 years, I served as a trial attorney

in the Criminal Division, dealing with labor racketeering and legislative matters. In 1976, I was selected to assist in the formation

of the Public Integrity Section, where I served as a line prosecutor

for 2 years. In 1978, I was selected to become Deputy Chief of the

Public Integrity Section, a position I held for 14 years.

In 1989, I was detailed to be part of the prosecution team that

handled the Illwind investigation into defense procurement fraud

and corruption. As part of that assignment, I became a Special Assistant U.S. Attorney in the Eastern District of Virginia. In 1992,

I was selected to be the Director of the Asset Forfeiture Office. In

1994, I returned to the Public Integrity Section as Chief, where I

have now served for 6 years.

As Chief of the Public Integrity Section, I have supervised the investigation and prosecution of corrupt public officials from the executive, legislative and judicial branches at every level of government, local, State and Federal. Over the years that I have had the

privilege to work with the fine prosecutors that make up the Section, the Section has conducted successful prosecutions and convictions of Federal judges, Members of Congress, Federal prosecutors,

a wide variety of State officials and numerous officials within the

Federal executive branch.

Of course, responsibility for prosecutions of the highest-level executive branch officials was removed from the Department by the

Congress when it passed the Independent Counsel Act in 1978.

However, from the time that the Independent Counsel Act was first

enacted until its demise in June 1999, the Public Integrity Section

was charged with the front-line responsibility for the administration of the act’s requirements. Our principal task was conducting

initial inquiries and preliminary investigations pursuant to the act,

gathering the necessary facts to enable Attorneys General to reach

the decisions charged to them by the act.

In a letter the chairman sent to me last week, he indicated that

the primary areas of interest of the committee to be explored in

this hearing were my role with respect to the Campaign Finance

Task Force and my role with respect to the Independent Counsel

Act matters relating to campaign financing. I will briefly outline

the facts with regard to these areas of interest and then will answer any questions you might have concerning them.

During the summer of 1996, allegations that both political parties may have violated campaign financing law in connection with

the upcoming national elections began to circulate. In the fall, several Members of Congress wrote to the Attorney General, requestVerDate 11-MAY-2000 11:52 Jul 26, 2001 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\DOCS\72912.TXT HGOVREF1 PsN: HGOVREF1
14

ing that she seek appointment of an independent counsel to investigate these allegations.

In November 1996, a response was sent to these Members, informing them that while there were no grounds to seek appointment of an independent counsel at that time, the Department took

these allegations seriously and intended to actively pursue them. It

was announced that it had been decided to establish a task force

within the Department, a team of investigators and experienced

prosecutors, which would assume responsibility for the handling of

all campaign financing matters arising out of the 1996 election

cycle. This would ensure that possible connections among the various matters were not missed and that any emerging independent

counsel issues arising out of these investigations would be promptly identified and handled pursuant to the requirements of the act.

Both campaign financing prosecutions and administration of the

Independent Counsel Act have been part of the historical responsibility of the Public Integrity Section. As a result, the task force,

while a separate entity from the Public Integrity Section, with its

own work space and personnel, was initially under my direct supervision. However, in the fall of 1997, the Attorney General named

Charles La Bella to be its head. At first, I continued to have a substantial advisory role with respect to the work of the task force, but

over time, as the work progressed and with the demise of the Independent Counsel Act, my role diminished. I have played no role in

task force decisions since last year.

Your letter, Mr. Chairman, also expressed an interest in my responsibilities with respect to the independent counsel decisions involving campaign finance. As I mentioned earlier, the Public Integrity Section has been responsible for the administration of the act

throughout its history, handling each independent counsel matter

since it was first passed in 1978. With respect to the independent

counsel matters connected to the work of the task force, the Section

and the task force worked together on each matter, developing the

necessary facts to permit the Attorney General to make a determination as to whether to seek appointment of an independent

counsel. On each matter, both I and the head of the task force—

along with many others involved in the process—made our recommendations to the Attorney General, sometimes jointly and

sometimes separately, based on our honest assessments of the facts

and the applicable law.

I was one of many people who gave the Attorney General recommendations. Her style has been to seek out the views of a variety of advisors, listen carefully to each of us, consider our arguments, ask her own questions, and then reach her own decisions.

Sometimes she followed my advice; sometimes she did not. At the

end of the day, it was the Attorney General who made the decisions, as was required under that statute; and the reasons for her

decisions on specific preliminary investigations are set forth in the

detailed formal filings made with the court.

It has been widely known there were internal disagreements

among various officials on a number of independent counsel issues,

particularly with respect to issues raised in the so-called ‘‘La Bella’’

memo. This, of course, is neither new nor should it be unexpected.

Any group of lawyers grappling with complex legal and factual

15

issues are bound to have disagreements, and the issues we faced

were both complex and difficult.

As you are aware, I disagreed with some of Mr. La Bella recommendations. But I also agreed with Mr. La Bella on many occasions during the time that we worked together. We were both nonpolitical career prosecutors. We had different interpretations of

some acts of the Independent Counsel Act, but I certainly agree

with his recent statement that the internal debate within the Department was never about politics and that nobody at the Department was politically protecting anybody.

Now, if you have any, I am prepared to answer questions, Mr.

Chairman.

Mr. BURTON. Thank you, Mr. Radek.

[The prepared statement of Mr. Radek follows:]

16

17

18

19

20

21

Mr. BURTON. Mr. Gallagher.

Mr. GALLAGHER. Mr. Chairman, with your permission, I do not

have an opening statement. I am prepared to answer questions.

Mr. BURTON. Thank you, sir.

Mr. Esposito.

Mr. ESPOSITO. I also do not have an opening statement and am

prepared to answer any questions you may have.

Mr. BURTON. Very good. We will proceed under the rules that

were adopted at the beginning of the hearing.

The last thing in the world that I would like to be doing today

is sitting here in front of three career government employees asking them questions about the internal deliberations of the Justice

Department. But there were some real problems with what went

on at Justice, and there is no doubt in my mind that congressional

oversight is essential. That is why I think it is essential that some

sunshine be allowed into the closed-door process that led the Attorney General to reject an independent counsel.

When the American people see what really went on, I don’t think

that they will be proud of what happened at Justice. I hope that

all of the media reads the La Bella and Freeh memos in question,

because we are not going to be able to cover all of that in detail

today, and I think they speak for themselves.

It is no secret to anyone that I believe the way that the Justice

Department has handled the campaign finance investigation has

been disgraceful, and one of the things that bothers me is that it

puts the career prosecutors and investigators on the task force in

a very difficult position. They are good, decent, honest men and

women. Unfortunately, the Attorney General has put them in a position where their work has been questioned and every decision is

second-guessed.

It mystifies me that the Attorney General would hold herself out

as the jury to make all of the tough calls that ended up giving the

President, the Vice President and her political party a free ride.

When you have a Chuck La Bella complaining about the Justice

Department going through contortions to avoid investigating matters, when you hear about government prosecutors being involved

in gamesmanship, when the head of a task force writes that this

type of investigation and posturing in the context of this investigation is unseemly, then something has gone very wrong.

For some reason, though, known only to the Attorney General,

she just didn’t want to appoint an independent counsel to look into

the activities of her boss and her political party. It wasn’t the first

time. She didn’t want anyone to look into the Whitewater matter.

Everyone tends to forget how that investigation uncovered corruption that led to the conviction of Governor Jim Guy Tucker of

Arkansas; and it led to the conviction of the President’s eyes and

ears at the Justice Department, Webb Hubbell. If Janet Reno had

had her way, Webb Hubbell would probably still be running a large

part of the Justice Department, and Jim Guy Tucker would never

have been prosecuted. If the Attorney General had won the day, no

one would have done anything about Henry Cisneros and the lies

he told under oath to the FBI.

The Attorney General did win the day on the campaign finance

independent counsel issue, and there will never be full confidence

22

that the Justice Department did the best job possible. The Attorney

General guaranteed that there will always be a cloud over this

matter, and that is abominable, and it borders on corruption.

Now I would like the witnesses to take a look at exhibit 1. I

think we will put that up on the screen.

[Exhibit 1 follows:]

23

24

25

Mr. BURTON. By now, you are all pretty familiar with this document. If you have it before you, it is probably easier to read. It is

a memo from Louis Freeh to Mr. Esposito. The date is December

9, 1996, which is very significant because that was right at the

start of the campaign finance investigation.

Mr. Esposito, this memo describes a conversation you apparently

had with Mr. Radek; is that correct?

Mr. ESPOSITO. Yes, sir.

Mr. BURTON. Where did that conversation take place?

Mr. ESPOSITO. In my office at the FBI headquarters.

Mr. BURTON. Who was there?

Mr. ESPOSITO. It was myself. My deputy was Neil Gallagher. He

was there. Mr. Radek and one of his deputies named Joe Gangloff.

Mr. BURTON. Can you tell us how the meeting between you and

Mr. Radek was set up?

Mr. ESPOSITO. I had called Mr. Radek earlier and asked him if

he could stop by my office so we could have a discussion on two

particular issues. The first issue was regarding a formal referral on

the matter that was involving the finance campaign; and the second was to have some input into the FBI—FBI having input into

the referral process when the Public Integrity Section makes a recommendation to the Attorney General.

Mr. BURTON. Can you tell us what happened at the meeting?

Mr. ESPOSITO. Yes. Mr. Radek and Mr. Gangloff showed up at

my office. Mr. Gallagher and I met them. We had a conversation

about the two points I just mentioned. The conversation was cordial, amicable. I don’t recall any disagreements that we had at that

time. It lasted less than 30 minutes, I think.

At the end of the meeting, just as I remember I was getting up

and Lee was in the process of getting out of his chair, he made the

statement that there is a lot of pressure on him, and the Attorney

General’s job could hang in the balance based on the decision he

would make.

Mr. BURTON. Mr. Radek apparently indicated he was feeling

pressure, and he said that her job could hang in the balance because of the pressure that was exerted on him and the decision she

would make?

Mr. ESPOSITO. Right. I remember specifically the job could hang

in the balance. Now, since it has been 31⁄2 years, I don’t remember

whether the word was pressure or stress.

Mr. BURTON. Was there any doubt in your mind that Mr. Radek

was linking the pressure that he felt and the Attorney General’s

job hung in the balance, was there any doubt about that?

Mr. ESPOSITO. No. It was said in the same sentence.

Mr. BURTON. Did Mr. Radek make it clear that he felt that the

Attorney General’s job hung in the balance as a result of the decision that the Public Integrity Section reached?

Mr. ESPOSITO. No, that was the extent of his statement.

Mr. BURTON. Mr. Gallagher, you were also at the same meeting.

Mr. GALLAGHER. Yes, Mr. Chairman.

Mr. BURTON. If you would, please, tell us what you remember

about Mr. Radek’s comment about his feeling pressure on the campaign finance investigation.

26

Mr. GALLAGHER. The memo that you have on the screen is accurate to the point that Lee Radek made a statement that he was

under a lot of pressure. And to put it into context, at the time there

was a lot of published reports that the Attorney General had not

yet been named in the new Cabinet, and there was a statement to

the fact that the Attorney General’s job might be on the line.

Mr. BURTON. Was there any doubt in your mind that there was

a linkage between the comment about pressure and the comment

about the Attorney General’s job hanging in the balance?

Mr. GALLAGHER. No, sir, there wasn’t.

Mr. BURTON. Mr. Radek, before I ask you to respond, I want to

put the Justice Department investigation in perspective. At the

time of your meeting with Mr. Esposito and Mr. Gallagher, who

was in charge of the Campaign Finance Task Force?

Mr. RADEK. At the time of the meeting, there was no task force

that I am aware of. The concept occurred shortly after that meeting.

Mr. BURTON. Wasn’t Laura Ingersoll in charge of the investigation at that time?

Mr. RADEK. I had assigned Laura Ingersoll to begin to gather evidence that consisted mainly of newspaper information and various

allegations that were coming out. So, yes, to the extent that there

was an organized effort in this effort, Ms. Ingersoll was in charge.

Mr. BURTON. And she was a subordinate employee of yours in

Public Integrity?

Mr. RADEK. That’s correct.

Mr. BURTON. How many attorneys were on the task force examining campaign finance matters or were working with her at the

time?

Mr. RADEK. I don’t recall. It would be an estimate to say two to

three, maybe five.

Mr. BURTON. A recent GAO report says there were only about

four attorneys investigating in January 1997. Were all of these people your subordinates?

Mr. RADEK. There were early detailees to the task force, but for

purposes of this case they were my subordinates, yes.

Mr. BURTON. How many lawyers were there in the Public Integrity Section at the time?

Mr. RADEK. Probably around 25 trial attorneys.

Mr. BURTON. Going back to the meeting with Mr. Esposito and

Mr. Gallagher, do you have any recollection of that meeting?

Mr. RADEK. I have no recollection of that meeting.

Mr. BURTON. So you don’t make remember making that kind of

statement about there being a lot of pressure on you and the Attorney General’s job hanging in the balance?

Mr. RADEK. I certainly do not.

Mr. BURTON. Have you followed any of our hearings, Mr. Radek?

Mr. RADEK. I have followed some, Mr. Chairman, but not for

some time.

Mr. BURTON. Have you noticed at our hearings there seems to be

an epidemic of people not recalling or having memory loss?

Mr. RADEK. I have noticed that you have observed that on many

occasions, yes.

27

Mr. BURTON. The last time we had a meeting, we had three

counsels to the President. Every single one of them couldn’t remember where the bathroom was.

Mr. RADEK. I can’t speak for them, Mr. Chairman. I do not remember this meeting in any way; and Mr. Gangloff does not either,

as he testified this morning in front of Senator Specter.

Mr. BURTON. He is the associate?

Mr. RADEK. He is my principal deputy chief.

Mr. BURTON. He doesn’t remember either?

Mr. RADEK. No, sir.

Mr. BURTON. Gee, I wish I had him here so I could hear that.

You don’t recall the meeting so you don’t remember saying anything like that?

Mr. RADEK. That’s correct. I am quite certain that I would not

have said something like this because it simply would not have

been true. I felt no pressure because of the Attorney General’s job

status.

Mr. BURTON. Why do you think two men of the stature of Mr.

Esposito and Mr. Gallagher would lie?

Mr. RADEK. I have no explanation. The only explanation I can

offer is that they must have misinterpreted something that I said.

I was not in the habit of lying to them, and it would have been a

lie. It is simply not true that I felt pressure because of her job status.

I felt a lot of pressure, and I was willing to tell anybody and everybody that. The pressure I felt was coming from you and the Attorney General and the Congress and the media to do a good job.

And it was a pressure cooker, there is no doubt about it.

Mr. BURTON. But you don’t remember the meeting or saying that

or anything like that?

Mr. RADEK. No, I do not.

Mr. BURTON. In December 1996, it was being widely discussed

that Attorney General Reno might not be reappointed; is that correct?

Mr. RADEK. There was a lot of press speculation to that effect,

yes, sir.

Mr. BURTON. Those rumors were discussed in the press?

Mr. RADEK. Yes.

Mr. BURTON. Do you have any belief that individuals at the

White House were seriously considering not reappointing the Attorney General for a second term?

Mr. RADEK. I don’t believe everything that I read in the papers.

I know that the papers were reporting it.

Mr. BURTON. On that one thing I think you and I agree.

Mr. Esposito, after your meeting with Mr. Radek, did you think

that his comment was significant enough to tell anyone else?

Mr. ESPOSITO. After the meeting I went down and briefed the Director on the results of the meeting, including the statement that

was made.

Mr. BURTON. And you told him exactly what happened?

Mr. ESPOSITO. I did.

Mr. BURTON. Do you know if Director Freeh told the Attorney

General about the comment made by Mr. Radek?

Mr. ESPOSITO. He told me that he had.

28

Mr. BURTON. We have exhibit No. 1. In that the Director states

on December 6, 1996, he advised the Attorney General of Mr.

Radek’s statement. Is that accurate, Mr. Esposito?

Mr. ESPOSITO. It is accurate that he told me that he put it in the

memo, yes.

Mr. BURTON. Did Director Freeh tell you after his meeting with

the Attorney General that he told her about Mr. Radek’s statement?

Mr. ESPOSITO. Yes.

Mr. BURTON. Did he tell you what Ms. Reno’s reaction was?

Mr. ESPOSITO. She said she would look into the matter.

Mr. BURTON. When you got this memo from Director Freeh, did

you find it to be accurate? Did it reflect the discussion you had

with Mr. Radek?

Mr. ESPOSITO. Yes, it did.

Mr. BURTON. Mr. Gallagher, do you know whether Mr. Esposito

communicated this statement about pressure and the Attorney

General’s job hanging in the balance to anyone?

Mr. GALLAGHER. I was not party to that conversation between

Mr. Esposito and the Director.

Mr. BURTON. Do you have any knowledge whether this statement

was communicated to the Attorney General by Director Freeh?

Mr. GALLAGHER. Not beyond the existence of this memorandum.

Mr. BURTON. But you saw the memo?

Mr. GALLAGHER. Yes, sir.

Mr. BURTON. Do you have any information about what the Attorney General told Director Freeh she was going to do about this?

Mr. GALLAGHER. No, sir, I don’t.

Mr. BURTON. Mr. Radek, were you ever contacted by the Attorney General or anyone else at Justice Department about whether

you had made this statement about feeling pressure because the

Attorney General’s job hung in the balance?

Mr. RADEK. Not before the last several weeks, Mr. Chairman.

When this memo came to light, I was asked whether I made the

remarks. Just a couple of weeks ago.

Mr. BURTON. Mr. Esposito, were you ever contacted by anyone at

Justice who was investing whether Mr. Radek made this statement?

Mr. ESPOSITO. Yes, I was.

Mr. BURTON. You were contacted. When was this?

Mr. ESPOSITO. Within the last month.

Mr. BURTON. In the last month. Who contacted you?

Mr. ESPOSITO. Deputy Attorney General Eric Holder.

Mr. BURTON. And you told him exactly what happened.

Mr. ESPOSITO. Yes.

Mr. BURTON. Did he have any reaction?

Mr. ESPOSITO. No. He said that he saw the memo and wanted

my version since it was supposedly my conversation.

Mr. BURTON. He said that he would look into it or did he make

any comments?

Mr. ESPOSITO. He said that they were getting ready to turn documents over, and this memo had just come to his attention.

29

Mr. BURTON. Mr. Gallagher, were you ever contacted by anyone

at Justice who is investigating whether Mr. Radek made this comment?

Mr. GALLAGHER. No, sir.

Mr. BURTON. Mr. Radek, the Attorney General apparently told

Director Freeh that she would look into the matter. It doesn’t

sound like she did, did she?

Mr. RADEK. I’m aware of no effort she took to look into the matter.

Mr. BURTON. You obviously denied that she ever made that

statement. However, given the fact that the Deputy Director of the

FBI and the other senior officials said you made the statement,

don’t you think there should at least be an inquiry into it?

Mr. RADEK. It seems to me that if the connotation that some put

to this remark, and that is that I was under pressure not to do a

good job, is—was part of this, that, yes, she would have had some

duty to look into it.

I’m not sure that Mr. Esposito and Mr. Gallagher put that connotation to it, but—and I don’t even know whether Director Freeh

does. But if it was simply that I was under pressure to do a good

job, maybe she wouldn’t have been under such an obligation. It’s

hard to judge.

Mr. BURTON. The memo is pretty direct there. I can’t understand

why she didn’t go ahead and start an investigation of this.

Since Mr. Radek made this statement to you at the beginning of

the campaign finance investigation, Mr. Esposito, do you think he

should have been recused from the investigation?

Mr. ESPOSITO. That was a decision between the Director and the

Attorney General. My own personal opinion was no.

Mr. BURTON. Do you agree with Director Freeh, who stated that

Mr. Radek’s statement is an example of why Public Integrity in the

Criminal Division should have been taken off the campaign fundraising case?

Mr. ESPOSITO. That’s my understanding of the FBI’s position,

yes, sir.

Mr. BURTON. You agree with that?

Mr. ESPOSITO. Yes.

Mr. BURTON. Mr. Gallagher, do you think that Mr. Radek’s statement was an example of why Public Integrity should not have been

working on this case?

Mr. GALLAGHER. I would have to take the same position as Mr.

Esposito that it was a—that’s a decision between the Director and

the Attorney General.

Mr. BURTON. In fact, in the brief time that you oversaw the task

force, FBI agents before your promotion to Deputy Director, did you

have any concerns, Mr. Esposito, with the way the Justice Department was handling the investigation?

Mr. ESPOSITO. We had concerns, but those concerns were aired

on almost a weekly basis, and we tried to come to resolution.

I also was handed a note. I want to clarify for the record that

also I was contacted by someone else at the Justice Department regarding this memo. I was contacted by the Attorney General herself.

Mr. BURTON. When was this?

30

Mr. ESPOSITO. This was within the last month.

Mr. BURTON. In the last month.

Did she indicate there was going to be any investigation or anything about this?

Mr. ESPOSITO. She just wanted to know my version of what happened.

Mr. BURTON. OK. I think I’ll now yield to Mr. Shays, and I’ll

have more questions for these gentlemen later.

Mr. Shays.

Mr. SHAYS. Thank you.

Good afternoon, gentlemen.

Mr. Gallagher, are you aware of the problems that the task force

had in receiving documents from the White House?

Mr. GALLAGHER. Would you repeat the question, sir?

Mr. SHAYS. Are you aware of the problems that the task force

had in receiving documents from the White House? Are you familiar with the case of the White House videos? Are you familiar with

the White House e-mails?

Mr. GALLAGHER. I am familiar with the White House e-mails and

some of the earlier problems that we had receiving responses to

subpoenas. It was a difficult process.

Mr. SHAYS. Did the problems that the task force had in getting

timely compliance with the subpoenas to the White House further

support the case for an independent counsel?

Mr. GALLAGHER. It would have advanced the investigation to receive a more timely and thorough response to the subpoenas provided to the White House.

Mr. SHAYS. Mr. Radek, it seems that you didn’t think that the

White House response to DOJ’s subpoenas and requests were too

bad. In your response to Mr. La Bella’s memo you stated that, ‘‘The

document production issues raised by the White House with the

Department are the sort of routine give-and-take among executive

branch agencies that occur all the time.’’ You continued and said, ‘‘They do indeed create some tensions

and difficulties, but they’re common and not the sort of conflict of

interest that would justify a resort to the Independent Counsel

Act.’’

Would you characterize the failure of the White House to search

for thousands of missing e-mails as a routine give-and-take?

Mr. RADEK. I certainly would not, sir, given your statement of

the facts. Of course, we were unaware of any failure to search for

White House e-mails at that time.

Mr. SHAYS. It was reported within the last month that the President and Vice President were interviewed by the Campaign Finance Task Force, and I’d like to just ask you questions.

First, in 1996, was the Vice President asked about his role in the

Buddhist temple fundraiser?

Mr. RADEK. I participated in an interview of the Vice President

in 1996 which was a part of a preliminary investigation under the

independent counsel statute, relating to phone calls made from the

White House. During the time, the questions were confined to that

subject and no questions were asked about the Shi Lai Temple.

Mr. SHAYS. In 1997, was the Vice President asked about his role

in the Buddhist temple fundraiser?

31

Mr. RADEK. I was not in the decisionmaking process as to what

would be asked, but I don’t believe he was.

Mr. SHAYS. In 1998, was the Vice President asked about his role

in the Buddhist temple fundraiser?

Mr. RADEK. I don’t know.

Mr. SHAYS. In 1999?

Mr. RADEK. I don’t know.

Mr. SHAYS. OK. Why wasn’t he asked?

Mr. RADEK. I can tell you about 1996, when I participated in the

interview, we were focusing in on an independent counsel statute

with strict time limits; and we weren’t ready to ask the overreaching questions about all of the campaign finance issues of which the

Shi Lai Temple was a part.

Mr. SHAYS. Why weren’t you ready?

Mr. RADEK. We simply didn’t know all the facts yet.

Mr. SHAYS. Well, if you didn’t know all the facts, wouldn’t you

start to ask questions?

Mr. RADEK. You don’t ask them of the person who is presumably

at the top of the pyramid.

Mr. SHAYS. So you didn’t ask in 1996, you didn’t ask in 1997, you

didn’t ask in 1998, you didn’t ask in 1999 because you weren’t

ready.

Mr. RADEK. Again, I don’t know that they weren’t asked in 1998

or 1999.

Mr. SHAYS. Why don’t you know?

Mr. RADEK. I wasn’t involved in the questioning of the Vice

President by the task force.

Mr. SHAYS. You weren’t in charge of the Integrity Section.

Mr. RADEK. I was, but the task force was run separately and outside that section.

Shortly after Mr. La Bella’s arrival, my management role diminished.

Mr. SHAYS. In 1996, was the President asked about his knowledge of foreign money in the Presidential campaign?

Mr. RADEK. Foreign money in the Presidential campaign, I can’t

remember. He may have been. But I don’t recall that he was.

Mr. SHAYS. You think he may have been asked?

Mr. RADEK. I was just handed a note, sir, that there were no

interviews in 1996. I think that’s right. I think this thing didn’t get

started until the end of 1996. So I think the interviews you’re talking about and the ones I’m talking about are in 1997.

Mr. SHAYS. So it didn’t happen in 1996?

Mr. RADEK. I don’t think there were any interviews in 1996.

Mr. SHAYS. In 1997, was the President asked about his knowledge of foreign money in the Presidential campaign?

Mr. RADEK. I’m not sure. He may have been, but I don’t recall

that he was.

Mr. SHAYS. And your testimony is, in 1998, he was not asked

when Mr. La Bella was put in charge?

Mr. RADEK. Mr. La Bella arrived in September 1997. From that

time on, my management role diminished, and I was not part of

the interview process of the President or the Vice President; and

during those later——

32

Mr. SHAYS. 1996 and 1997, was the President asked about his relation with Charlie Trie?

Mr. RADEK. I don’t believe he was interviewed in 1996. We did

not ask him about that in 1997.

Mr. SHAYS. So in 1996 certainly he wasn’t asked. In 1997, was

the President asked about his relationship with John Huang?

Mr. RADEK. No, sir.

Mr. SHAYS. In 1996, he wasn’t interviewed, but in 1997 was the

President asked about his relationship with the Riadys?

Mr. RADEK. I don’t believe so.

Mr. SHAYS. Would you explain why you sought to use Commerce

to investigate and bypass the use of the FBI in investigating campaign finance abuses?

Mr. RADEK. I’ve described myself as an experienced prosecutor,

sir, so I can tell you I never sought to bypass the FBI. The John

Huang allegation involved allegations against an employee of the

Department of Commerce. And there were some allegations I think

early on about a conflict of interest involving him at Commerce. My

recollection is that the Commerce IG started that investigation

themselves. We were still in the process of gathering all kinds of

information. Part of that was the information from the Commerce

IG’s office.

We had informal contacts probably from myself to Mr. Esposito,

but I can’t recall specifically that we were getting the FBI involved.

The usual process was to contact the FBI verbally, ask them if they

would investigate and then follow that up with a formal procedure.

I think some of the references in the Freeh memorandum that is

exhibit 1 allude to the fact that we were asking the FBI to investigate and had not yet made a formal referral. Part of the meeting

that Mr. Esposito described in the earlier testimony—he said part

of the purpose of the meeting was to make a referral.

Mr. SHAYS. What boggles my mind is, you had a meeting with

Mr. Esposito in 1996, December 1996. The fact that you don’t remember it is another issue, but the meeting took place. You’re not

denying that the meeting took place?

Mr. RADEK. I’m not.

Mr. SHAYS. So the meeting took place; you just don’t remember

it?

Mr. RADEK. Yes, sir.

Mr. SHAYS. And in that we were talking about all those issues,

they weren’t issues that came up in 1998, they were issues that

came up in 1995 and 1996?

Mr. RADEK. I’m sorry, sir, what issues do you mean?

Mr. SHAYS. With the Riadys, with the abuse of campaign finance,

with John Huang, these are not new issues in 1996. Or if they

were new, they were there sitting for you to deal with. And if

you’re not going to deal with them, then an independent counsel

is going to deal with them.

And the irony is, no independent counsel is appointed and you’re

not dealing with those issues as you’ve testified.

Mr. RADEK. I don’t believe I have testified that I wasn’t dealing

with any issues, because I was. I mean, we were beginning to conduct an investigation.

33

Mr. SHAYS. The—it was reported within the last month that the

President and Vice President were interviewed by the Campaign

Finance Task Force; is that correct?

Mr. RADEK. It has been so reported, yes.

Mr. SHAYS. Is it correct that this was begun last month?

Mr. RADEK. I believe so, but I’m not sure. I don’t have any independent knowledge of it. I’ve read the papers.

Mr. SHAYS. We have requested those interviews and have been

told that they are part of an ongoing case and therefore cannot be

produced to the committee; is that correct?

Mr. RADEK. I don’t know.

Mr. SHAYS. You don’t know if it’s an ongoing investigation?

Mr. RADEK. I don’t know. I believe it’s part of the e-mail investigation, but I’m not sure. I’m not part of that.

Mr. SHAYS. So you don’t know if the President and Vice President are subject to an ongoing investigation?

Mr. RADEK. I don’t know.

Mr. SHAYS. Should that be a responsibility in your position?

Mr. RADEK. We administer now what are called the independent

counsel regulations or the special counsel regulations. If there were

an issue that came to the attention of someone within Justice or

the Attorney General that amounted to an allegation against the

President or Vice President, I would assume that I would be informed, so that we could tee that up for the Attorney General.

Mr. SHAYS. Mr. Esposito, how many times has Mr. Radek met in

your office? Is it a common occurrence?

Mr. ESPOSITO. Not in that particular office. I think that was

probably one of the only meetings that we had in my office at that

level. Mr. Radek and I had gotten together on several occasions in

other offices I have occupied through years.

Mr. SHAYS. Are you in the same building?

Mr. ESPOSITO. No.

Mr. SHAYS. Separate building?

Mr. ESPOSITO. Separate building, yes.

Mr. SHAYS. Mr. Radek, have you reviewed any of your calendars

to see if a meeting like this took place?

Mr. RADEK. I have reviewed my leave records. I was on leave the

2 days after that meeting. I don’t have any calendars that indicate

where I was that time. I don’t save my calendars. I usually don’t

mark appointments down on calendars. They don’t do much good.

I have a secretary who reminds me, and they don’t save the calendars either.

Mr. SHAYS. But you don’t challenge the fact that the meeting

took place?

Mr. RADEK. I do not challenge that fact. I’ve seen notes that it’s

on Mr. Esposito’s calendar. I believe that.

Mr. SHAYS. You don’t even challenge the fact that Mr. Esposito

said this; you just don’t remember it?

Mr. RADEK. I do not remember it. On the other hand, I’m reasonably confident that I would not have said what is attributed to me

in that memorandum. I’m quite confident.

Mr. SHAYS. So how do you explain the difference between the two

of you? You’re obviously good friends.

34

Mr. RADEK. I cannot explain it except to say, they must have

misunderstood something else I said.

Mr. SHAYS. Thank you, Mr. Chairman. I yield back to you.

Mr. BURTON. Let me go on. There’s one matter referred to in the

Freeh memo where the Justice Department was saying that they

were using FBI agents to investigate an allegation when, in fact,

they were using the Commerce Department IG agents. You know,

we have heard the Justice Department say that the FBI was handling this investigation when in fact it was the Commerce Department.

Why is there that discrepancy?

Mr. RADEK. I don’t know why there was that discrepancy. It was,

from the very beginning, my intention and I think everybody on

the Department of Justice side of Pennsylvania Avenue to get the

Bureau involved as quickly and as deeply as we could. There was

never any intention to circumvent or bypass them. You know, the

fact that a formal referral may have been late is something that

I have apologized for more than once.

Mr. BURTON. So this wasn’t like when you sent U.S. Marshals

over to take control of the Waco information directly from Director

Freeh where you jerked it right out of his hands?

Mr. RADEK. I have no knowledge of that.

Mr. BURTON. Didn’t have anything to do with that? That’s not

comparable to that?

Mr. RADEK. I don’t know.

Mr. BURTON. I see.

Mr. RADEK. I’m not a part that process, sir.

Mr. BURTON. In early 1997, this committee was starting to try

to get documents from the White House. We had to threaten the

White House counsel with contempt of Congress before we got the

documents. Did the FBI, Mr. Esposito, ever have that kind of problem with getting documents from the White House?

Mr. ESPOSITO. The only problems we had were the same problems that Mr. Gallagher and Mr. Radek had just talked about.

There had been subpoenas issued and we were waiting for the documents to come back.

Mr. BURTON. Did you get them?

Mr. ESPOSITO. I think eventually they got them. But—— Mr. BURTON. But it was a long time. You didn’t get them in compliance with the subpoena.

Mr. ESPOSITO. The person that would be more appropriate from

the FBI standpoint to answer that is Mr. Parkinson, who is here.

And he is the General Counsel and followed this investigation. I retired in 1997, so I don’t know what happened after that.

Mr. BURTON. Was the Public Integrity Section and Mr. Radek

supportive of efforts that you were putting forth to try to force the

document production from the White House, did they help you out?

Mr. ESPOSITO. We had several meetings to discuss the production

of documents from——

Mr. BURTON. What happened at those meetings? Did they help

you? Were they trying to be cooperative or were they an impediment?

Mr. ESPOSITO. No. Most times they were helpful.

Mr. BURTON. So you got the documents?

35

Mr. ESPOSITO. We did not get the documents until later on.

Mr. BURTON. How long? How much later?

Mr. ESPOSITO. I don’t really know when the documents arrived.

I mean, I didn’t come to this hearing to—I’m not prepared.

Mr. BURTON. You’re not prepared for that. OK. It appears that

my time has run out. I’ll now yield to Mr. Lantos for his time.

Mr. LANTOS. Thank you, Mr. Chairman. As I was listening to

your questioning and the questioning of my friend, Mr. Shays, the

titles of two books came to my mind. One, I think it was a best

seller by Deborah Tanner, entitled ‘‘You Just Don’t Understand’’;

and the other by John Gray, entitled ‘‘Men Are From Mars, Women

Are From Venus.’’ Both of these, in different ways, deal with fundamentally semantic issues.

There is very little doubt in my mind that all three of you gentlemen are telling the truth under oath as you remember it. I personally find it far less surprising than apparently the chairman does

that not everybody is blessed with a photographic memory.

In this town, we spend much of our lives going to meetings and

listening to people; and as we do this, many hours a day, 5 days

a week or more, some details just vanish. And I think it might not

be inappropriate for the committee to take a somewhat less malign

and perhaps more benevolent interpretation of the apparent conflict that is here.

I would like to begin my part of the questioning in a fairly systematic fashion. Today’s hearing focuses on disagreements within

the Department of Justice regarding whether an independent counsel should have been appointed to investigate the 1996 ClintonGore campaign. This is the third hearing this committee has held

to criticize the Attorney General for not appointing an independent

counsel.

Let me, by the way, associate myself with the extremely laudatory comments concerning Attorney General Reno that we saw on

the film clip by the Director of the FBI. I don’t think there is a

Member of Congress or there is a member of this or past administrations who has more integrity than Janet Reno. And I think

when her record will be looked at with some degree of historical

perspective this will be obvious even to her most hardened critics.

With all the attention and criticism being focused on the issue

of the independent counsel, some people watching this hearing may

be under the impression that the campaign finance allegations

against the Clinton-Gore administration have not been thoroughly

investigated. Now, if this were true, it would be a serious matter.

But the facts don’t support this allegation. As I mentioned in my

opening statement, FBI Director Louis Freeh has repeatedly reassured this committee that the Department of Justice’s campaign finance investigation has been both aggressive and thorough.

Let me read a quote from Mr. Freeh regarding the Department

of Justice’s Campaign Finance Task Force. On December 9, 1997,

the Director of the FBI told the following to this committee: ‘‘I can

assure you, Mr. Chairman, that the FBI is not being impeded in

any way in conducting our investigation. The task force was formed

last December. Their marching orders are to go wherever the evidence leads them.’’

36

On August 4, 1998, Mr. Freeh reiterated this point. In response

to a question from the ranking member, he said that the FBI and

the Department of Justice had conducted the investigation in the

same manner as an independent counsel would. Here is his exchange with Mr. Waxman.

Mr. WAXMAN. So it’s fair to say in substance that you have conducted the campaign finance investigation in the same way that you would expect an independent

counsel to conduct the investigation. Is that accurate?

Mr. FREEH. Yes.

Now, my question to you, Mr. Radek, is, do you agree with Director Freeh’s statement that the FBI and the Department of Justice

have conducted a thorough investigation of the allegations of campaign finance abuse?

Mr. RADEK. Yes, sir, I do. It’s been some time since I’ve been involved with the direct management. But when I was involved and

for those periods of time when I was an advisor I thought that the

strategy and the effort put out by the Campaign Finance Task

Force was exemplary. In fact, Mr. La Bella’s differences with me

have been criticized, but I thought that the way he sought to build

the case and the way he went about it was very good, and I agreed

with his strategy. And I think that the people who are running it

now are doing a good job.

Mr. LANTOS. Thank you very much.

Mr. Esposito, same question to you. Do you agree with Director

Freeh’s statement that the FBI and the Department of Justice has

conducted a thorough investigation of the allegations of campaign

finance abuse?

Mr. ESPOSITO. I left the FBI in October 1997. And when I first

became involved in this matter, which was late 1996, I thought we

had put in as much resources as we possibly could; and if we needed to add resources we did. I think both made a valiant effort to

do whatever they could to get the job done.

Mr. LANTOS. Thank you very much.

Mr. Gallagher, same question.

Mr. GALLAGHER. At the end of the investigation, I think that is

a very accurate statement.

Mr. LANTOS. Thank you very much. In fact, the Campaign Finance Task Force has looked into every credible campaign finance

allegation, ranging from conduit contributions to foreign contributions. Where it has found violations of law, it has punished them.

To date, the task force has indicted 25 individuals and one corporation of campaign finance violations, including such prominent

Democratic fundraisers as John Huang, Charlie Trie and Johnny

Chung.

The task force has also looked into a number of sensational allegations from various sources and found them without merit. It

looked into an allegation by our former colleague Jerry Solomon

that John Huang had committed espionage. The task force found

that Mr. Solomon’s allegation was based on nothing more than gossip at a congressional reception.

According to the Los Angeles Times, ‘‘A GOP Congressman who

said in 1997 that he had ‘evidence’ former Democratic fundraiser

John Huang had passed classified information to an Indonesian

company never received such reports.’’ Notes taken by FBI agents

37

who investigated the case show that ‘‘Solomon, who headed the

House Rules Committee when he made the charge, had based it on

a casual remark by a Senate staff member, not on intelligence reports as he claimed at the time,’’ from the Los Angeles Times.

[The information referred to follows:]

38

39

40

41

Mr. LANTOS. The task force also investigated widely publicized

allegations that the Clinton administration allowed the transfer of

sensitive technology to China by the Loral Corp. in return for campaign contributions. In fact, in a speech on the House floor, the

chairman raised the possibility that the administration had engaged in treasonous conduct relating to that corporation. The task

force concluded that this allegation had no basis in fact.

The Los Angeles Times wrote an excellent account about that investigation. It wrote that several department officials, including

Charles La Bella, felt that the Loral accusations were baseless. According to the Los Angeles Times, Mr. La Bella felt that Loral’s

chief executive was a victim of Justice Department overreaching.

[The information referred to follows:]

42

43

Mr. LANTOS. The RNC, the Republican National Committee, is

running political commercials about the Vice President’s appearance at a Buddhist temple during the 1996 campaign. But this

issue was also thoroughly investigated by the FBI and the Department of Justice. An excellent summary of the facts about this investigation was recently published in the ‘‘American Lawyer’’ and

summarized by Stuart Taylor in the ‘‘National Journal.’’ According

to the American Lawyer, ‘‘The evidence is now overwhelming that

the temple event wasn’t supposed to be a fundraiser.’’ The article

notes that the Vice President’s statements on the subject have been

honest, accurate and consistent, and notes that press accounts of

the issue, as well as accusations leveled against the Vice President,

all hinge on fuzzy thinking, malevolent assumptions and the intransigent refusal to credit exonerating evidence.

I would like to make these articles part of the record Mr. Chairman.

Mr. BARR [presiding]. Hearing no objection, so ordered.

[The information referred to follows:]

44

45

46

47

48

49

50

51

52

53

54

55

Mr. LANTOS. For those who doubt the thoroughness of the FBI

and Justice Department investigation, we must not forget that

nearly every allegation, no matter how credible, has also been investigated by this committee. This committee has issued over 900

subpoenas, 450 formal document requests, taken sworn testimony

from 200 individuals and spent over $8 million investigating allegations as wide ranging as foreign contributions, Indian casinos, influence peddling, coal deposits in Utah, conduit contributions and

the First Lady’s trip to Guam.

No one has stopped Chairman Burton from investigating any

subject that he wants. In fact, with the consent of every single

Democrat on this committee, he immunized three key witnesses in

the campaign finance investigation—John Huang, Charlie Trie and

Johnny Chung—and brought them before our committee. Yet none

of them had any evidence implicating any senior White House or

DNC official in intentional wrongdoing.

The fact of the matter is, the 1996 elections have been thoroughly investigated at a cost of millions and millions of taxpayer

dollars. The question of whether or not an independent counsel

should have been appointed may be an interesting legal issue, but

ultimately it has no bearing on the facts. Director Freeh, who

strongly disagreed with the Attorney General’s decision not to seek

an independent counsel, told our committee, ‘‘On issues of fact, the

Attorney General and I do not disagree.’’ As a result of the discussion we are having here today with our

witnesses, it is little more than an academic exercise designed to

embarrass the Attorney General. It has no bearing on whether

credible allegations were properly investigated.

Now, I have some questions for you, Mr. Radek. The Attorney

General has been accused of deliberately misinterpreting the law

in order to avoid appointing an independent counsel to investigate

allegations of Democratic wrongdoing. Chairman Burton accused

her of, ‘‘protecting the President and his friends. Janet Reno has

defied the spirit and the letter of the independent counsel statute.’’

In fact, from the documents that the Department of Justice provided our committee, the Attorney General appears to have applied

the Independent Counsel Act in a uniform manner regardless of

who the target of the investigation was.

One may agree or disagree with her reading of the law, but it

is simply inaccurate and untrue to say that she has not applied the

law even-handedly. In seven cases, including that of Interior Secretary Bruce Babbitt, she has determined that the evidence supports the appointment of an independent counsel. In other cases,

including cases involving the FBI Director, former White House

Deputy Chief of Staff Harold Ickes, CIA Director George Tenet, and

Vice President Gore, the Attorney General has decided that the evidence does not support the appointment of an independent counsel.

But it appears that the legal standard was the same in each case.

Mr. Radek, it is evident that there were vigorous arguments

about whether to appoint an independent counsel in these cases.

According to the testimony of FBI Director Freeh, these disagreements were the result of a good-faith disagreement as to legal

standards. Do you agree?

Mr. RADEK. I do agree.

56

May I say with respect to your comment about being even-handed, in all of my conversations with the Attorney General, she was

always concerned about an even application of that statute. And in

each and every instance she would tend to go over previous appointments by both herself and other Attorneys General and compare the decision that she was going to make on what was in front

of her, so that she could consider whether she was engaged in an

even application of that statute.

Mr. LANTOS. Thank you very much.

Mr. Esposito, what is your view on this subject?

Mr. ESPOSITO. I really have no view on it as far as the—I’m not

familiar with all the referrals that she made and did not make.

I can say this: My dealings with the Attorney General was quite

extensive, especially in my last year in the FBI. I found her to be

a person of high integrity, a person who would do the right thing.

Mr. LANTOS. Thank you.

Mr. Gallagher, same question.

Mr. GALLAGHER. On the issue of the interpretation of the statute,

I would defer to the FBI General Counsel, who is available should

you want to pursue that issue further.

With respect to the discussion between the FBI and the Department of Justice, yes, we did disagree on interpretation of the statute. We had weekly meetings with the Attorney General that—we

had the opportunity, and she did invite our comments. We had debates with Lee Radek.

There was 1 day in April 1997, a day and a half, I recall, that

they had—we had about a 12 to 14-hour discussion on the independent counsel statute. So we did debate; we did disagree, but we

had our opportunity to speak our opinion.

Mr. LANTOS. Much has been said of the La Bella memo. I want

to read a letter from Charles La Bella to the Attorney General

dated July 20, 1998.

And I want to make this whole letter part of the record, Mr.

Chairman.

Mr. BARR. Hearing no objection, so ordered.

[The information referred to follows:]

57

58

59

Mr. LANTOS. ‘‘Dear Madam Attorney General, I want to begin by

reiterating what I’ve said on numerous occasions to you and others.

During my stay in Washington, you have been courageous, diligent

and inspirational in the discharge of your duties. It has been a

privilege to watch you in action. You have the keen instincts and

sound judgment of a seasoned prosecutor, as well as a command of

the law that any appellate lawyer would envy.’’ Now, let me return to the case of the Vice President, because for

obvious political reasons this is now much in the media. In the case

of the Vice President, it appears that—it appears clear that everyone agreed that no case should be brought against him. The only

dispute was about whether the technical requirements of the independent counsel law were triggered.

Charles La Bella, in a November 1997 memo to Mark Richard,

wrote, ‘‘Ten out of ten prosecutors would decide that no further investigation would be warranted.’’ In another memo to Mark Richard on November 30, 1997, Mr.

La Bella wrote, ‘‘On the whole, I find the Vice President to be credible and forthcoming.’’ Similarly, Mr. Litt, another experienced prosecutor at the Justice

Department, wrote to the Attorney General on November 22, 1998,

‘‘As a prosecutor, I would not bring this case.’’ Now, I have a question, Mr. Radek. Given these quotes, it seems

to me that we are not talking about a situation where anyone was

trying to protect the Vice President. This was simply a legal dispute among lawyers and people of good faith as to whether the

final decision not to bring a case should be made by the Attorney

General or an independent counsel.

Would you agree with this?

Mr. RADEK. Yes, that’s the way most of us felt. That was the import of the decision. But that still required us to make an analysis

under the statute. We were bound by the law.

Mr. LANTOS. Do you have any comment on this, Mr. Esposito?

Mr. ESPOSITO. No. The investigation of the Vice President and

the memos you referred to came about after I left the FBI.

Mr. LANTOS. Mr. Gallagher.

Mr. GALLAGHER. No, Mr. Lantos.

Mr. LANTOS. Now, Mr. Radek, Chairman Burton recently stated, ‘‘Janet Reno has been blatantly protecting the President, the Vice

President and their party from the outset of this scandal.’’ But

what this statement ignores is that the Attorney General applied

the same standard to Republicans as she did to Democrats.

Has the Attorney General ever declined to appoint an independent counsel in any cases involving Republicans?

Mr. RADEK. Yes, she has.

Mr. LANTOS. What were those cases?

Mr. RADEK. I’m not at liberty to say, sir.

Mr. LANTOS. It appears to me that if this Attorney General were

trying to further a partisan agenda, she would have appointed an

independent counsel in those cases involving Republicans rather

than declining to do so under the same standards she did with respect to the President and the Vice President.

There have been allegations that Haley Barbour, then chairman

of the Republican National Committee, participated in a scheme in

60

1994 to obtain nearly $2 million in illicit foreign funds for the Republican National Committee.

Mr. Radek, did the Attorney General consider appointing an

independent counsel in that case?

Mr. RADEK. I don’t recall a formal decision on whether an independent counsel should conduct that investigation or not. But during the weekly meetings with the Attorney General, matters were

brought to her attention that would necessarily require a decision

on her part as to whether or not she felt there was a conflict either

on her own part or on the part of the Department of Justice. If she

did, then she could consider those under the discretionary clause

of the independent counsel statute. Mr. Barbour is not a covered

person under the independent counsel statute so the mandatory

provisions would not apply.

Mr. LANTOS. What is the status of the Haley Barbour investigation?

Mr. RADEK. I believe it’s closed, but I haven’t been involved in

it in some time.

Mr. LANTOS. Charles La Bella states in his July 16, 1998, memo

as follows:

For its part, the Republican National Committee had its fair share of abuses. The

Barbour matter is a good example of the type of disingenuous fundraising and loan

transactions that were the hallmark of the 1996 election cycle. In fact, Barbour’s

position as head of the Republican National Committee and the National Policy

Forum and the liberties he took in these positions make the one $2 million transaction even more offensive than some concocted by the DNC. Indeed, with one $2

million transaction, the RNC accomplished what it took the DNC over 100 White

House coffees to accomplish.

Mr. Radek, Mr. La Bella’s point seems to be that what Mr.

Barbour did was similar to, if not more offensive than, what Democrats were alleged to have done.

Did the Attorney General apply the same standards to that

Barbour matter as to the alleged Democratic abuses?

Mr. RADEK. In terms of investigating and a decision to prosecute,

absolutely. In terms of independent counsel issues, the Attorney

General would not be required to make an independent counsel decision on someone who is not a covered person, although she could

utilize the statute under the discretionary clause.

But I can say that with that, as with all matters, independent

counsel statute or otherwise, one thing the Attorney General was

always concerned about was the even application of the law, the

criminal law, and the independent counsel statute.

Mr. LANTOS. Mr. Esposito, do you agree that the Attorney General acted even-handedly?

Mr. ESPOSITO. I have no comment, because I’m not familiar with

the matter that you’re discussing.

Mr. LANTOS. Do you have any reason to doubt that she acted

even-handedly?

Mr. ESPOSITO. No, in all matters that I’ve dealt with her on, she

acted very even-handedly.

Mr. LANTOS. Mr. Gallagher.

Mr. GALLAGHER. All matters that I observed, she—the Attorney

General certainly acted even-handedly.

Mr. LANTOS. Among the numerous documents that the Department of Justice has provided to this committee in connection with

61

the 1996 campaign finance investigations is a memo written by

you, Mr. Radek, dated September 25, 1998, to Assistant Attorney

General James Robinson of the Criminal Division. In that memo

you state, ‘‘The issues in the Republican National Committee investigation are largely identical to the issues in the Democratic National Committee investigation. The principal difference is that the

facts of the RNC media project have not been fleshed out as much.’’ Did you think these issues were similar?

Mr. RADEK. I thought the issues were similar. That’s not to say

I thought they should have been fleshed out. I thought that the entire Common Cause allegation was—did not allege a crime; and for

that reason, from the very beginning, I thought all arguments that

it should be investigated or that it should have an independent

counsel appointed on that issue were—just had no merit.

For purposes of clarification, let me say the Common Cause issue

is that both the Republicans and the Democrats engaged in a pattern of using soft money to pay for issue ads, which ads were for

the purpose of helping them in the election. And Common Cause

argued that those caused those to become, in their character, Federal money expenditures or hard money expenditures.

Mr. LANTOS. In a November 22, 1998 memo, Robert Litt wrote

that a lesser standard of imputed knowledge was apparently applied to the Director of the FBI, regarding whether he testified

falsely to Congress on March 5, 1997, and to the Vice President.

Specifically, Mr. Litt states, ‘‘In the Freeh matter, there was evidence from which one could have inferred that Director Freeh knew

his statement was false, yet the Attorney General found this outweighed by other evidence showing that he did not.’’ Mr. Radek, do you see a difference between how the Attorney

General handled the decision about whether to appoint an independent counsel to investigate Director Freeh and how she handled

the decision about whether to appoint an independent counsel to

investigate the Vice President?

Mr. RADEK. I see no difference. I think they were quite similar,

and I thought she considered one when applying the statute to the

other.

Mr. LANTOS. Now, over the past several years, Chairman Burton

and others have followed the pattern of making sensational allegations before the facts have been gathered. Further investigation

has shown that many of these allegations turned out to be unsubstantiated. I wish to offer a few examples of these unsubstantiated

allegations.

In November 1995, Mr. Burton suggested on the House floor that

Deputy White House Counsel Vince Foster had been murdered.

What are the facts? Investigations by the Federal Park Police, Robert Fisk, and Kenneth Starr have all concluded that there was no

evidence of any wrongdoing connected to Mr. Foster’s suicide.

An allegation was made in January 1996 by Mr. Burton, stating

that the White House had illegally contacted the IRS to harass

fired White House employees. What are the facts? Investigations by

the General Accounting Office, the Department of Justice and the

Department of Treasury all concluded that there was no improper

contact between the White House and the IRS.

In June 1996——

62

Mr. BARR. The gentleman’s time has expired. The Chair recognizes the majority counsel for 30 minutes.

Mr. WILSON. Good afternoon. I know it’s been a fairly long day,

and I’ve got a lot to cover and I’ll go as quickly as I can.

A couple of preliminary things: Mr. Radek, I wanted to ask you

about a number of specific memos, but just some housekeeping

matters.

Does the Public Integrity Section, Mr. Radek, now handle matters that relate to appointments of special counsels under the Department of Justice regulations?

Mr. RADEK. We will administer—but we haven’t had the opportunity to do so yet—the special counsel regulations, yes, sir.

Mr. WILSON. Are there any pending decisions that pertain to appointing special counsels in any campaign finance matters?

Mr. RADEK. There are none.

Mr. WILSON. Mr. Radek, in July 1997, I believe July 6, 1997, you

gave an interview to the Sunday New York Times Magazine, and

you went on the record as saying, ‘‘Institutionally, the independent

counsel statute is an insult.’’ Prior to your statement the Attorney

General had supported the statute both very publicly and under

oath.

At the time you made the statement in 1997, were you authorized to make that statement by anybody at the Department of Justice?

Mr. RADEK. Not specifically. I was authorized to give that interview by the Department.

Mr. WILSON. But specifically, on taking the point about the independent counsel statute being an insult, did you ask anybody in

the Department of Justice whether that was an appropriate official

position of the Department?

Mr. RADEK. I did not, but of course I wasn’t giving an official position of the Department; I was giving my own opinion.

Mr. WILSON. Did you ask anybody in advance of giving that position?

Mr. RADEK. I did not.

May I say, sir, that with respect to that remark, while it—maybe

the use of the word ‘‘insult’’ is unfortunate. What I said and what

I meant is a position that has been agreed with by many. Most particularly, when the statute was being reenacted time before last,

Associate Attorney General Rudy Guiliani testified before the Senate Committee on Governmental Affairs against the reenactment of

the statute, and he said,

The system depends quite properly on the integrity of the Department of Justice

personnel. The assumption upon which the special prosecutor law is premised that

the Department of Justice should not be trusted to investigate or prosecute certain

Federal offenses is simply unfounded. There is no basis for assuming that the Department of Justice personnel cannot fairly and thoroughly investigate crimes by

public officials. The conduct of such investigations and prosecutions should be returned to those professionals in the Department of Justice who are best equipped

to handle them.

Mr. WILSON. I understand that there are many people that object

to the various parts of the independent counsel statute. But what

I was asking is, when the Attorney General had taken a very public position under oath about the statute, whether you had asked

in advance of going out and making that statement whether that

63

was an appropriate statement to make. But let me move on to

something else.

Exhibit 60—there is no need to turn to it; I will ask a very specific question about it—is a memorandum from your deputy to Assistant Attorney General Robinson. It notes that, ‘‘Lee J. Radek,

Chief, Public Integrity Section, has been recused from this matter.’’ And he was discussing matters pertaining to investigations of Harold Ickes.

And the simple question is, why were you recused from that matter?

[Exhibit 60 follows:]

64

65

66

67

68

69

70

71

72

Mr. RADEK. I was involved in the Ickes independent counsel matter up till close to the end. Near the end of the investigation, Independent Counsel Carol Bruce contacted—who had been in touch

with the task force, because there were some related matters—indicated that there might be a close connection between the investigation that was ongoing with respect to Mr. Ickes and her investigation of Mr. Babbitt.

I was recused from the Babbitt investigation because the subject

of that investigation was a close friend of my wife’s family.

Mr. WILSON. During the last couple of years, the committee has

had some interest in some investigations, internal investigations,

within the Department of Justice of leaks about sensitive campaign

finance matters or statements that have been made by senior Department of Justice officials. And we are well aware that the Department of Justice Office of Professional Responsibility has conducted a number of leak investigations within the Department of

Justice.

First of all, Mr. Radek, have you been questioned in any of these

leak investigations?

Mr. RADEK. I have been asked to sign affidavits or statements,

sworn statements, in a number of leak investigations, some related

to campaign finance, yes.

Mr. WILSON. That sounds like the answer is, no, you’ve not been

questioned; you’ve just been presented with an affidavit to sign.

We can move a bit faster if you’ll just answer the simple question.

Mr. RADEK. The answer is, I don’t recall being interviewed, but

I would have to check my records. I would rather check with OPR

to be sure; I don’t recall.

Mr. WILSON. Are you aware of whether the Department of Justice has identified the sources of any of the leaks about the campaign finance investigations that have been ongoing?

Mr. RADEK. No, I’m not aware.

Mr. WILSON. I’ll put an example up of something, and then I

want to ask you a few questions about that.

On October 2, 1998, the following statement appeared in the

Washington Post, ‘‘And a senior Justice Department official said

that some investigators have concluded that John Huang does not

have information that would support the prosecution of the Democratic officials who received and spent the funds he raised or the

White House officials who promoted his career in Washington.’’

Now, I’m well aware that the Department of Justice has conducted an investigation about this leak. If I were a defense attorney, I would be very happy to receive information about this, because it talks about the substance of the investigation. It’s a tipoff. And if I were a defense attorney, I would understand at that

point that I could hang tough, and I wouldn’t have to provide much

cooperation because it says that senior DOJ officials have come to

the conclusion.

Now, when you were making determinations about whether to

recommend an independent counsel appointment, did you ever take

any of these leaks into account when you made your recommendations?

Mr. RADEK. In what way?

73

Mr. WILSON. Well, that it was a matter that perhaps necessitated

an outside look at the investigation?

For example, if the individual privy to sensitive information is

leaking information to defense counsel, that stands for the proposition perhaps that somebody from outside should be in charge.

Mr. RADEK. I can’t say that I took any leak into consideration as

the basis of a conflict of interest for the Department, no. I don’t recall any leaks that were detrimental to the investigation on any of

the particular independent counsel matters. There may have been

some; I just don’t recall. But I agree with your statement that leaks

are just devastating, and they can be—they can just derail an investigation as quick as anything. And it was quite upsetting to see

leaks in this matter as well as any other.

Mr. WILSON. From our perspective, one of the things you said in

the New York Times interview comes to bear here, and that is,

when you were quoted, you took a very public position in the New

York Times. You said, ‘‘The statute is a clear enunciation by the

legislative branch that we cannot be trusted on certain species of

cases. And when you have individuals who are leaking information

that’s beneficial to defense attorneys, that in some respects goes to

support the underlying proposition.’’ Mr. RADEK. Well, sir, what you’re saying is that the Department

of Justice prosecutors who are trying to do these cases are responsible for the leaks, and I wouldn’t make that leap of faith. I don’t

know who is responsible for them, but I don’t think it was anybody

on the investigative and prosecutive teams.

Mr. WILSON. But therein lies the question for us. It’s somebody

privy to the information, and that person is providing the information in a public way, and it ultimately gets back to defense counsel.

I think you answered the question. The question was, did you

take this into account when you were considering whether somebody independent should handle these cases; and your answer was

no. So that’s a fair characterization.

Mr. RADEK. Right.

Mr. WILSON. One of the things that’s been troubling—this is a

small point, and I’ll move away from it—you’ve been very public.

You attended the White House correspondents dinner, the radio

and television correspondents dinner.

Just some brief help on whether you think it’s appropriate for

the head of the Public Integrity Section which—all of the Department of Justice should be nonpolitical, but to be the guest of media

while there are ongoing leak investigations and there are sensitive

investigations of public corruption matters, is it an appropriate

thing for the head of the Public Integrity Section to go to events

like that?

Mr. RADEK. I thought it was appropriate or I wouldn’t have gone.

I don’t leak, and I think my reputation in the Department is solid

enough that people aren’t going to believe that I’m leaking. And so

I didn’t feel many qualms about going to such events, where I saw

you, I believe, at one of them.

Mr. WILSON. One of the things that you had said earlier about

the meeting with Mr. Esposito and Mr. Gallagher was, you were

not in the habit of lying to them, and consequently, that stands for

the proposition you wouldn’t have made something up when you

74

were talking to them. I want to focus on a few things that came

out in memoranda that you wrote—and not theories or legal theories or speculative aspects, but some factual matters that were put

down in memoranda that you wrote—and then there were responses to those factual matters from other individuals.

And the first one I wanted to take a look at, and I think there’s

a book there in front of you, exhibit No. 7 in front of you. It’s a

memo from yourself to the acting Assistant Attorney General Mark

Richard, and the subject of the memo is, ‘‘The Position of the Office

of Legal Counsel on Legal Issues Relevant to the Independent

Counsel Matter Involving Vice President Gore.’’ [Exhibit 7 follows:]

75

76

77

78

79

80

81

Mr. RADEK. I’m sorry, exhibit 7?

Mr. WILSON. Exhibit 7, yes.

Mr. RADEK. I have it. I’m sorry.

Mr. WILSON. There’s—I’m off on this subject that I just described. If you turn five pages into the exhibit, there’s another

memorandum, and it’s from the acting head of the Office of Legal

Counsel to yourself——

Mr. RADEK. Yes.

Mr. WILSON [continuing]. And it was drafted on the same day as

your memorandum to Mr. Richard. And I just wanted to read a

couple of quotes from this memo and ask you some things about

them.

At the end of the first paragraph, the head of Office of Legal

Counsel states, ‘‘As I have already expressed to you, we have several concerns about this memorandum which I will briefly describe

below.’’

She goes on—at the end of the second paragraph, she goes on to

state, ‘‘Your memo unfortunately leaves a different and incorrect

impression.’’

And then following from that at the start of the third paragraph—again that’s the acting head of the Office of Legal Counsel

who states, ‘‘To the extent that the memorandum attempts to report on remarks made by OLC lawyers at the meeting, it does so

incorrectly and incompletely.’’ Thus, not only did the memorandum

leave the mistaken impression that, ‘‘OLC positions,’’ were expressed, it also mischaracterized the comments that individual lawyers offered during the meetings—during the meeting, singular.

Do you recall whether Dawn Johnsen spoke to you about this

memorandum?

Mr. RADEK. I don’t recall whether she spoke to me about this

memorandum. She spoke to me about these issues.

Mr. WILSON. Now, Ms. Johnsen was a Clinton appointee, correct,

head of Office of Legal Counsel?

Mr. RADEK. Yes. I’m not sure she was a political appointee. She

was acting at this time, but she was head of Office of Legal Counsel.

Mr. WILSON. OK. Well, moving to another subject and——

Mr. RADEK. Aren’t we going to put this memo in context as to

what it is? It’s an argument among some people who said some

things at a meeting. And the fact is that OLC didn’t want to be

put on the record as taking any position. So it was in Dawn

Johnsen’s interest to take off the record what my memorandum

said that they had said. In fact, I double-checked with several people at the meeting who agreed with me that my memo was accurate.

Mr. WILSON. So you dispute her characterizations?

Mr. RADEK. I do, and did at the time.

Mr. BARR. Would counsel yield? I’m glad that Mr. Radek’s memory is a little bit better. Maybe we can go back to something else

and see if your memory is better.

We talked earlier about the memorandum from the Director of

the FBI to Mr. Esposito, dated December 9, 1996, and the meeting

between Mr. Esposito and yourself that you acknowledge took

82

place, although you apparently have no recollection of what was

said there.

Have you ever seen this memo before, December 9, 1996, from

the Director of the FBI to Mr. Esposito?

Mr. RADEK. Yes, I saw this memo for the first time on the 4th

of last month.

Mr. BARR. When?

Mr. RADEK. The 4th of last month.

Mr. BARR. You never saw it before then?

Mr. RADEK. No.

Mr. BARR. Did you ever hear about it before then?

Mr. RADEK. No.

Mr. BARR. You’re quite sure?

Mr. RADEK. Yes.

I heard about it the day before. I’m sorry.

Mr. BARR. So your memory is very clear on the fact as you sit

here today your testimony is that you never saw this memo before,

never even heard about this memo before just recently?

Mr. RADEK. Yes.

Mr. BARR. At the time—you now say you first saw this memo

just recently—did you place a memo into the record to the Director

of the FBI, to the Attorney General, to Mr. Esposito or anyone else

disputing the characterization of your meeting and your comments

with Mr. Esposito?

Mr. RADEK. I did not.

Mr. BARR. OK. Why not?

Mr. RADEK. The one thing is, I can’t even remember the meeting,

so it’s difficult for me to categorically deny something at a meeting

that wasn’t there.

Mr. BARR. So you’re not categorically denying these comments

then?

Mr. RADEK. Yes.

Mr. BARR. You are?

Mr. RADEK. Oh, yes.

Well, I’m not categorically denying them. I’m saying that I don’t

remember the meeting and I don’t remember saying them. And it

is not something I would have said.

Mr. BARR. I thought earlier you said you remembered the meeting, you just didn’t remember the comments.

Mr. RADEK. I do not remember the meeting.

Mr. BARR. We’re getting somewhere, I suppose, now. I would like

to place in the record a copy if we could have somebody give these

copies to the witnesses. This is a page—I believe, Mr. Esposito, you

can testify to this when you see it, of your calendar. Even though

other people say that they don’t keep calendars, apparently, you

find them useful.

Mr. ESPOSITO. Well, I just happened to look through some boxes

and actually found my 1996 calendar.

Mr. BARR. And this page is in fact, is it not, an accurate photocopy of a page from your calendar from the month of November

1996, the date of November 20, 1996?

Mr. ESPOSITO. Yes, it is.

Mr. BARR. Is it an accurate photocopy of the original?

Mr. ESPOSITO. Yes.

83

Mr. BARR. Was it kept, at the time, in the normal course of business?

Mr. ESPOSITO. Yes, sir, by either myself or my secretary.

Mr. BARR. At 4:30 p.m. on November 20, does it not indicate your

meeting with Mr. Radek and his deputy?

Mr. ESPOSITO. Yes.

Mr. BARR. Mr. Radek, does this refresh your recollection in any

way?

Mr. RADEK. It does not. I saw this this morning.

Mr. BARR. So you still maintain under oath that you have no

recollection of that meeting having taken place?

Mr. RADEK. That’s correct.

Mr. BARR. But you do state that you never made statements such

as related to the Director of the FBI to Mr. Esposito in the middle

of the memo dated December 9, 1996, that you were under pressure and that the Attorney General’s job might hang in the balance?

Mr. RADEK. I don’t recall the meeting. I don’t recall the conversation. I am sure that—— Mr. BARR. Is it possible that you made those statements?

Mr. RADEK. It is not possible. Not the statement that you just

said but the statement in the memo that says I was under pressure

because the Attorney General’s job hangs in the balance.

Mr. BARR. That is not what it says. All I’m saying is whatever

these statements were, I am not characterizing them in any way,

whatever the statements were, as reflected in this memo, by the

head of the FBI to Mr. Esposito, reflecting also the fact that the

Director of the FBI related these statements to the Attorney General, you have, one, no recollection of your having made them and

you dispute them; is that accurate?

Mr. RADEK. The statements in this memo, yes, sir.

Mr. BARR. Now, therefore, when you first saw this memo and you

saw statements attributed to you that you apparently very strongly

disagree with, you took no steps to correct the record?

Mr. RADEK. I informed the Deputy Attorney General of what I

just told you.

Mr. BARR. You took no steps verifiable on the record to correct

the record? You didn’t send anybody a memo?

Mr. RADEK. I told the Deputy Attorney General that I did not remember the meeting and this is not something I would have said.

Mr. BARR. You didn’t relate that to the head of the FBI?

Mr. RADEK. No, I don’t usually talk to the head of the FBI?

Mr. BARR. You don’t usually talk to the head of the FBI?

Mr. RADEK. That’s correct.

Mr. BARR. You met with Mr. Esposito?

Mr. RADEK. I deal with Mr. Freeh’s subordinates.

Mr. BARR. Do you take exception or umbrage to these statements

attributable to you?

Mr. RADEK. I do. They are not correct in my opinion.

Mr. BARR. You have taken no steps on the record to correct

them?

Mr. RADEK. I have informed the Deputy Attorney General that

they were incorrect in my opinion.

Mr. BARR. Counselor.

84

Mr. WILSON. Just going back to our previous discussion, effectively you have said that the head of the Office of Legal Counsel

is misstating, in fact lying. She said very clearly that your memorandum mischaracterized comments of individual lawyers offered

during the meeting. It also says that the reports of remarks made

by OLC lawyers in the meeting does so incorrectly and incompletely and you obviously dispute that?

Mr. RADEK. Yes, I do.

Mr. WILSON. Just turning briefly to the Common Cause allegations, when were the Common Cause allegations formally closed

out?

Mr. RADEK. That is a matter of some dispute. It was my impression that when the Attorney General testified before Congress saying that she had closed them out, that that ended the matter. But

you have to understand that the Attorney General had one working

command throughout the campaign finance investigation, and that

is leave no stone unturned. If we heard it once, we heard it a thousand times, and I am sure that these gentlemen along side me will

support that.

When Mr. La Bella came on board and brought Mr. Clark with

him from San Diego, they chose to reexamine—— Mr. BARR. Is that Mr. Steve Clark?

Mr. RADEK. Yes, it is.

Mr. BARR. Thank you.

Mr. RADEK. They chose to reexamine that issue, so it was probably never closed for this reason. The Attorney General said that

she was not going to close anything unless the Director of the FBI

signed off on it. I am sure that he never signed off on the Common

Cause allegations. To the extent in my answer to Mr. La Bella’s

memo I said that it had been disposed of, technically I was incorrect.

Mr. WILSON. You said in your memorandum, ‘‘The Common

Cause allegations were thoroughly considered, analyzed at length

and closed on their merits.’’ There is no ambiguity there. Apparently 20 days after you made this very strong pronouncement, the

head of the Criminal Division, which would be your boss, said that

there should be preliminary investigation to possibly consider appointment of an independent counsel and it surprises me that you

have taken a very strong position in a memorandum to a superior

of yours about something being closed and yet 20 days later a superior of yours is saying that we should do an independent counsel

investigation. You said it wasn’t closed.

Mr. RADEK. But there is an intervening event which was that the

auditors of the FEC came out that this could violate the statute.

This is the first time that the FEC had given any hint that this

might be a violation.

Mr. WILSON. We still have you saying the allegations were thoroughly considered, analyzed at length and closed on their merits.

If there was an ongoing investigation, perhaps that is not accurate.

Mr. RADEK. The FEC is not the Department of Justice, and it

was my position that it was up to the FEC to decide whether this

was a violation. It was my opinion at the time I wrote that that

it was closed. I overlooked the fact—I was aware that Mr. La Bella

had been revisiting the issue. Yet the Attorney General had testiVerDate 11-MAY-2000 11:52 Jul 26, 2001 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 C:\DOCS\72912.TXT HGOVREF1 PsN: HGOVREF1
85

fied that she had resolved the matter. In my mind that resolved it.

The fact that Mr. Robinson reopened it was due to an intervening

fact and that was the audit report. Mr. Robinson’s memo in my

opinion were not inconsistent, but my opinion was inaccurate because I had ignored the fact that Mr. La Bella and Mr. Clark had

been reexamining it. I apologized to Mr. La Bella after I made that

mistake and he pointed it out.

Mr. WILSON. This is important for us to go through. There appears to be a series of these types of errors or misrepresentations,

and one of the concerns we have is that you are providing advice

on appointment of independent counsel, and one would hope that

the advice you are providing was accurate and full.

Mr. RADEK. That’s correct.

Mr. WILSON. And there appears to be a problem with this one.

Exhibit 11 is a memo from yourself to the Acting Assistant Attorney General Mark Richard, the head of the division which the Public Integrity Section is in. The memo is dated November 21, 1997.

On page 5 of this memo you state very clearly, ‘‘It is worthy of note

that the four prosecutors who participated in the interview each

found the Vice President to be credible and forthcoming.’’ [Exhibit 11 follows:]

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

132

Mr. WILSON. Now, 9 days later Mr. La Bella took a very different

view from the one that you advanced in this memorandum. Exhibit

16, if you turn to that, is a memo from Mr. La Bella to the Attorney General. The memo provides a recommendation that the Attorney General appoint an independent counsel to investigate the Vice

President. But of particular interest in this connection is the part

where Mr. La Bella takes issue with the way you characterized the

view of the prosecutors who were in the interview with the Vice

President and this is what Mr. La Bella told the Attorney General.

And it is page 4 of Mr. La Bella’s memo to the Attorney General.

He said, ‘‘Although the memorandum states that the four prosecutors,’’ and he is referring to your memo, ‘‘Although the memorandum states that the four prosecutors who participated in the interview of the Vice President, each found him to be credible and forthcoming, this somewhat overstates my own impression of the interview. While the Vice President did present his case well and plausibly, there were certain answers which seemed somewhat less convincing than others.’’ It appears there is a stark contrast on a factual representation on a memo that you wrote and then Mr. La

Bella comes back after the fact and takes issue with the way you

characterize this factual matter.

[Exhibit 16 follows:]

133

134

135

136

137

138

139

140

141

Mr. RADEK. I think ‘‘stark contrast’’ grossly overstates it. My

memo is based on remarks that Mr. La Bella made to me shortly

after we interviewed the Vice President, in which case he gave me

the impression that he clearly thought the Vice President was credible. The first I learned that he was having some problems with it

was when I saw his memo disagreeing with it, and again I don’t

think that the contrast was so stark. He said that he had some

problems with it. As a result of this disagreement there was an investigation conducted by another Deputy Assistant Attorney General with no conclusions drawn—— Mr. WILSON. It is certainly significant enough for him to come

back and put on paper disagreement with the way that you characterize it. And he goes on page 4 to present the whole thing fully.

He does say that ‘‘this is not to say that I found the Vice President

to be untruthful. On the contrary, I found him to be credible and

forthcoming. However, his answers to one or two questions gave me

sufficient pause so I would not rely on his interview as a bulwark

for a determination not to appoint an independent counsel,’’ which

again is a contrast to the way you characterized his state of mind.

Mr. RADEK. Contrast, but that was the first I heard of it and I

can assure you that we didn’t rely on his statement as a bulwark

either.

Mr. WILSON. What were the other statements referred to by Mr.

La Bella? Did the other agents agree with your characterization or

did they agree with Mr. La Bella’s characterization?

Mr. RADEK. There was some dispute as to what their characterization, which they believed and which they agreed with.

Mr. WILSON. You found out later that there was some dispute

from other people as to what their state of mind was?

Mr. RADEK. I am not sure to what you are referring.

Mr. WILSON. You described there was some dispute in terms of

the other prosecutors?

Mr. RADEK. I’m sorry, I thought you said agents. I’m sorry. I

don’t think there was any disagreement with respect to other prosecutors.

Mr. WILSON. Only Mr. La Bella took issue?

Mr. RADEK. That is my best recollection.

Mr. WILSON. Just one last question. Exhibit 35 is a memorandum, if you would just take a moment to refer to that.

[Exhibit 35 follows:]

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

166

167

168

Mr. RADEK. Uh-huh.

Mr. WILSON. You had completed a memorandum on August 24,

1998 regarding the perjury investigations of the Vice President,

and the following day a task force prosecutor took exception to a

number of the factual points that you made in your memorandum.

I wanted to go through and read a couple of the factual points and

differences and ultimately get your comment on that.

This is the task force prosecutor responding to your memo and

he says, in Radek’s memo he indicated that only Leon Panetta recalled discussing soft and hard money splits in conjunction with

the media fund. In fact, Panetta was not the only person with such

a recollection. The task force attorney’s memo states that we now

have Panetta, Watson and the contemporaneous Strauss notes,

with quotation marks, all indicating that this topic was raised. On

the other side is a group of people who basically don’t recall. This

is a classic white collar scenario. Yet the memorandum, which is

your memo, gives more credence to the don’t recalls than to the explicit memories. Certainly a lineup like this warrants additional inquiry.

Now, the prosecutor goes on and he says, and here is another

quote, the Radek memo says Panetta’s impression was the Vice

President was following the hard money discussion. The agents’

notes reflect that the Vice President was listening attentively so he

takes exception with your characterization of how the Vice President was—whether it was an impression or whether he was actually following something attentively. He goes on in the memo to

say—to point out that you say in your memo that Panetta may

have——

Mr. BURTON. Excuse me, counsel’s time has expired, but I would

yield to you 5 minutes to conclude that question.

Mr. WILSON. Just providing the quote, he indicates that your

memo states that Panetta may have contradicted himself. However,

the agents’ notes do not support this. Panetta recalled the general

topic, though not the specific details. Let me take one moment and

reset this clock.

At another point the prosecutor says, ‘‘the agents disagree vehemently with the characterization of the Panetta interviews.’’ Specifically they assert that he did not change his statement, although

the Radek memo says he did so three times. Here the prosecutor

is saying in your memo you are saying that Panetta changed his

view three times and according to the prosecutor the agents are

disagreeing vehemently with your characterization. The memo also

goes on to criticize your memo for failing to mention that the Vice

President said in a press conference that the phone calls were designed to solicit money for the campaign, according to the memo.

Of course the press conference stood in stark contrast to his statements during later FBI interviews, so again he takes issue with another of your characterizations.

In another point he points out in your memorandum you suggest,

‘‘The media fund was not an item in the DNC budget during the

spring and summer of 1995. However, Watson recalled the agenda

of the June 8, 1995 meeting included the media fund.’’ So he is saying there is a factual disagreement where you are saying that it

169

doesn’t do one thing and he is saying that Bobby Watson gave different testimony. Just a couple of other points.

He notes that your memorandum suggests that Marvin Rosen recalled the focus of the fundraising proposals presented to the President and Vice President during the November meeting was on raising soft money and the agents’ notes indicate that Rosen had no

recall whether the events were intended to raise soft or hard

money. So you have made one characterization about what Marvin

Rosen thought and the prosecutors saying that the agents say that

is not correct at all.

And there are a number of other statements along this line

where he walks through the factual statements that you have

made in your recommendation to your superior and he simply

points out that your factual assessments are incorrect. I guess the

simple question is how could you and the person who wrote this

memo be so far apart on factual matters?

[Exhibit 36 follows:]

170

171

172

173

174

Mr. RADEK. Well, the fact is that we were not far apart on factual matters. The factual matters that you discuss are small and

for the most part insignificant. For instance, the debate—— Mr. BURTON [presiding]. Let me interrupt for a second. Who is

the person who wrote that memo?

Mr. RADEK. Mr. La Bella’s deputy.

Mr. BURTON. What is his name? We had it awhile ago.

Mr. WILSON. It has been redacted.

Mr. BURTON. The fact of the matter is that if it is who I think

it is, he felt so strongly about it he resigned.

Mr. RADEK. No, it is not Mr. Clark.

Mr. BURTON. Mr. Clark was not one of those.

Mr. RADEK. Mr. Clark was doing the analysis on the Common

Cause allegation and left and you have his memorandum.

Mr. BURTON. Judy Feigin is the lady’s name and she had substantial differences, as did Mr. Clark, in the way you were conducting the investigation?

Mr. RADEK. Yes, they did. They were both from San Diego and

Mr. La Bella brought them with him.

Mr. BURTON. Oh, it was Mr. La Bella?

Mr. RADEK. I did not say that.

Mr. BURTON. Why would you say they were both from San Diego?

Mr. RADEK. I was describing who they were.

Mr. BURTON. The fact of the matter is Mr. La Bella didn’t like

the way it was being handled. She didn’t like the way it was being

handled. Mr. Clark didn’t like the way it was being handled, and

they quit. So there was a strong, strong difference in the way that

you were conducting this and the way they thought it should be

conducted?

Mr. RADEK. Mr. Clark quit. Mr. La Bella left to become the Acting U.S. Attorney in San Diego.

Mr. BURTON. He was in line to become the U.S. Attorney in San

Diego, and he was passed over and a subordinate of his became the

U.S. Attorney. And to everybody that followed this, it looked as

though that Mr. La Bella was passed over because he was so vehement in his opposition and he felt there should be an independent

counsel and you folks, top brass at Justice, didn’t want it.

Mr. RADEK. Thanks for the compliment about top brass, Mr.

Chairman, but with respect to Mr. La Bella’s appointment, I can

assure you I had nothing to do with it. You know better than I that

the person who appoints and names the U.S. Attorney is a member

of this branch of government and not the executive branch and Mr.

La Bella’s appointment, nomination was handled the same way

they all are, and that is by a Senator in the U.S. Senate and then

confirmed—— Mr. BURTON. The recommendation is made by the Attorney General and the final decision is made by——

Mr. RADEK. The recommendation is made by the U.S. Senator,

whatever that party is.

Mr. BURTON. If that is the case, it is a sister-in-law of one of the

members of the White House.

Mr. RADEK. But don’t put that on the Department of Justice is

all that I am saying.

Mr. BURTON. Mr. Lantos.

175

Mr. LANTOS. Thank you, Mr. Chairman.

Let me change the subject for a minute. Senator Orrin Hatch,

chairman of the Senate Judiciary Committee, has stated he, ‘‘is not

nearly as concerned with the allegations about some of the occurrences with the White House with regard to a phone call or phone

calls that may have been made although they may unknowingly

have violated the law.’’ Nevertheless, the La Bella memorandum

cites the Vice President’s call solicitations from the White House as

grounds for seeking an independent counsel.

Mr. Radek, in deciding whether to prosecute a case such as this

one, is it appropriate to look at prior Justice Department precedent

on prosecutions involving solicitations made from Federal property

were initiated?

Mr. RADEK. When making a decision whether to prosecute or

whether to have an independent counsel, yes, sir.

Mr. LANTOS. Do you agree with that, Mr. Esposito?

Mr. ESPOSITO. I have never seen the La Bella memo.

Mr. LANTOS. I am raising an issue irrespective of the principle.

If certain violations are not prosecuted historically, is it fair not to

have them prosecuted currently?

Mr. ESPOSITO. I think the Department of Justice looks at past

precedent.

Mr. LANTOS. Do you think that is a proper procedure?

Mr. ESPOSITO. Yes.

Mr. LANTOS. How about you, Mr. Gallagher?

Mr. GALLAGHER. With all due respect I would have to defer to

the FBI general counsel, which has reviewed this entire matter and

would be more appropriate to comment to that question. I can’t

speak to it personally.

Mr. LANTOS. Was the Justice Department correct, Mr. Radek, to

consider the precedent that in 1988 the Department learned that

Senators Orrin Hatch and Gordon Humphrey had sent solicitation

letters to Federal employees but the Department of Justice declined to prosecute?

Mr. RADEK. The outcome of that line of inquiry within the Department was that it was clear that the Department’s prior practice was not to prosecute solicitations on Federal property, the 607

violation, without aggravating circumstances. To the extent those

matters you cite stand for that principle, it would be proper to consider them, yes.

Mr. LANTOS. Was the Department of Justice correct, Mr. Radek,

to consider the precedent that in 1976 the Department declined

prosecution when Federal employees complained about receiving

solicitation letters from then President Jerry Ford for Republican

congressional candidates, letters that the Department found were,

‘‘patently coercive in content and tone?’’

Mr. RADEK. Again to the extent that there were no aggravating

circumstances, that is one that should be factored in to determine

what the Department’s prior practice had been and to the extent

it had policy.

Mr. LANTOS. Let me go back to the Common Cause issue. During

his opening statement the chairman repeatedly referred to the Justice Department’s handling of the complaint filed by the campaign

finance watchdog group Common Cause. He referred to several

176

quotes by Mr. La Bella expressing his frustration at the Department’s handling of this complaint. It is important that we understand what actually occurred with regard to the Common Cause

complaint because when we have all of the facts before us, the dispute between Mr. La Bella and others at the Justice Department

is ultimately utterly insignificant.

First, I think some background may be useful. Following the

1996 campaign, Common Cause filed a complaint with the Justice

Department alleging that issue ads run by both the Democratic National Committee and the Republican National Committee violated

Federal campaign finance laws. Common Cause further alleged

that the White House had violated campaign finance laws by DNC

issue ads to evade campaign spending restrictions. After Mr. La

Bella submitted the memo the chairman quoted, Attorney General

Reno determined that the preliminary investigation of the Common

Cause allegations should be triggered under the Independent Counsel Act; is that correct, Mr. Radek?

Mr. RADEK. It is accurate in terms of time but the triggering

event for the Common Cause investigation was the audit report

from the FEC auditors.

Mr. LANTOS. Can you tell us what that investigation entailed?

Mr. RADEK. The investigation was primarily an analysis of

known facts, and the known facts were these. There were a whole

bunch of issue ads and we knew what they were and what they

said. They were ads that clearly promoted on the part of the Democrats a Democratic message and on the part of the Republicans a

Republican message. Then there were a lot of rulings out of the

Federal Election Commission that some good legal minds sweated

and strained over for a long time trying to figure out what the

state of the law was. There was not much in terms of factual development of issues because it was assumed that the President was

involved in it. There was testimony that he was in on the planning

of the issue ads, the Vice President the same.

And if we were to look at the Republicans under the independent

counsel statute that would be as a conflict of interest, under the

discretionary clause.

What was difficult was the law. We had to figure—under the

independent counsel statute we had to determine whether there

was a violation of the law. My position is and was that it is not

a violation until the FEC says it is a violation. And particularly in

a murky area like this where the FEC had hinted it was not a violation and in the end said it was not a violation, it seemed to me

to be close to irresponsible to even conduct a criminal investigation

of people who had or were taking advantage of this loophole.

Mr. LANTOS. Is it fair to say that there was considerable disagreement within the Department regarding the laws regulating

issue advertising?

Mr. RADEK. There was considerable disagreement in the Department on almost every issue; but yes, Common Cause was one that

people found very difficult conceptually and there was a certain

sort of basic appeal to the simply stated issue stated by Common

Cause until you examined the law and the fact that soft money

could be used on the most blatant of Federal campaigns because it

was usable for State and local candidates. And so the law was realVerDate 11-MAY-2000 11:52 Jul 26, 2001 Jkt 000000 PO 00000 Frm 00184 Fmt 6633 Sfmt 6633 C:\DOCS\72912.TXT HGOVREF1 PsN: HGOVREF1
177

ly difficult to get through; and yes, there was considerable disagreement throughout that process.

Mr. LANTOS. Is it fair to say that there was considerable disagreement among election law experts regarding the laws regulating issue advertising?

Mr. RADEK. Yes, that’s correct.

Mr. LANTOS. Can you also explain the division of election law enforcement responsibilities between the FEC and the Department of

Justice?

Mr. RADEK. The Federal Election Commission is the entity that

has exclusive jurisdiction for interpreting the statute and administering it civilly. The Department of Justice enforces it criminally.

Mr. LANTOS. At the conclusion of the preliminary inquiry, the Attorney General determined that an independent counsel should not

be appointed to investigate the Common Cause complaint. She had

two reasons for her decision. The first reason is that it would be

too difficult, if not impossible to bring successful prosecutions

against those who had relied on advice of counsel from election law

experts who had good faith interpretations of the laws.

The second reason is that it was the long-standing policy of the

Department of Justice to defer to the FEC for interpretations of

ambiguities in campaign finance laws. In fact, both parties and

their campaign committees now recognize that issue ads are legal.

Press accounts indicate that both parties are rushing to raise huge

sums of soft money to run issue ads this fall; is that correct, Mr.

Radek?

Mr. RADEK. Yes, sir. I believe that is based upon a decision by

the Federal Election Commission on this issue, that is the board,

not the auditors.

Let me say with respect to the independent counsel decision,

there was extensive factual investigation conducted during the preliminary investigation, and that had to do with whether or not the

President, the Vice President, or the heads of the parties, particularly the Democratic Party, had received advice of counsel consistent with what—what the state of the law and whether that advice

of counsel would fit into defense and whether it was legitimate.

Mr. LANTOS. Much of this discussion today and much of the work

of our committee for quite some time has really hinged on whether

one gives singular malign interpretations to certain events or appearance of certain events, or whether one takes a somewhat more

benign view.

I want to go back to the early discussion we had with respect to

Mr. Esposito’s recollection of your statement at the meeting you

don’t recall attending, that you were under a great deal of pressure. This is a statement that I suspect many people in public life

can make, particularly during difficult and tension-filled periods, so

I don’t see anything remarkable. But I would like to deal with the

issue of the alleged statement that the Attorney General’s job

hangs in the balance.

I recall that there was a great deal of criticism of the Attorney

General at the time and her job was in fact hanging in the balance

and I wonder if, Mr. Esposito, you could explain to me in plain

English how you combine these two realities into a factual statement that on the face of it would be absurd.

178

Mr. Radek obviously is an extremely intelligent person, and I

agree with him and his conclusion that he could never make such

a statement because the statement would be so palpably absurd

and idiotic and counterproductive and stupid, and I have difficulty

seeing your rationale in taking statements from an individual and

connecting them in a way which are so self condemnatory. So can

you enlighten me on that subject.

Mr. ESPOSITO. Sure. I am not trying to make any conclusions.

Mr. LANTOS. Well, you have already. What I am trying to get at,

please understand what I am saying.

I stated earlier there is little doubt in my mind that all three of

you to the best of your recollections are telling the truth. There is

not the slightest doubt in my mind that Mr. Radek is telling the

truth. There is no doubt in my mind that the two of you to the best

of your ability are telling the truth. But there is a fundamental

flaw in your position, and that fundamental flaw in your position

is that the statement you allege was made would be an unbelievably idiotic, damaging, destructive, horrendously inappropriate

statement which an individual with Mr. Radek’s extraordinary

public service of 30 years and his legal background soberly would

never make. How do you explain this?

Mr. ESPOSITO. I can’t explain it.

Mr. LANTOS. Is it—— Mr. ESPOSITO. You have asked me a question. May I answer it.

I can’t explain it. All I can tell you is this was the statement that

was made. Why he made it, you will have to ask him; but he can’t

recall. I am telling you that is the statement that was made. I

didn’t put two facts together. I haven’t drawn any conclusions. I am

just repeating the statement that I heard.

Mr. LANTOS. You remember it verbatim?

Mr. ESPOSITO. What I remember verbatim is that the Attorney

General’s job could hang in the balance.

Mr. LANTOS. It was hanging in the balance. There is no question

about it. That is a statement of fact. But you connect these two

items, the pressure that Mr. Radek is under and the Attorney General’s job which was obviously up for grabs.

Mr. ESPOSITO. It was said in the same sentence. How can you not

connect it?

Mr. LANTOS. Well, it is perfectly obvious that two statements can

be made consecutively without a connection being made between

the two of them as to causality. That should be obvious to you, Mr.

Esposito. You created the causality, it seems to me, because I can’t

conceive Mr. Radek, whom I have not met until this afternoon,

would be making such a statement, just as it would not be plausible for me to have you make idiotic statements or Mr. Gallagher

make idiotic statements. If you make idiotic statements and you

are sober, maybe you misunderstood the statement. Is that a conceivable option?

Is it conceivable to you that you misunderstood the statement,

that you put two things together which really didn’t belong together?

Mr. ESPOSITO. What I heard was he was talking about pressure,

pressure on him, and as a matter of fact the Attorney General’s job

could hang in the balance. That came out—in the same 2 seconds.

179

Mr. LANTOS. Well, try to reconstruct verbatim what the statement was because you fly in the face of logic in connecting these

two statements. Both of them could well have been made utterly

innocently and innocuously.

Mr. GALLAGHER. Mr. Lantos, may I respond?

Mr. ESPOSITO. I think it is a totally inappropriate statement, and

that is why I remember it and that is why I reported it 30 minutes

later to the Director of the FBI.

Mr. LANTOS. If it was such a totally inappropriate statement in

your judgment, why didn’t you probe at that point?

Mr. ESPOSITO. My comment to—nobody has asked me yet at this

hearing, but it was at the end of the meeting. I was standing and

I believe Lee was rising out of his chair when he made his statement. I think my response was something to the effect I am sure

that you will do the right thing, Lee. Then he and Joe left my office.

Mr. LANTOS. Does it make sense to you if in fact what you say

hypothetically is true, that Mr. Radek would confide in you that

the Attorney General is worried about her job?

Mr. ESPOSITO. He didn’t say that the Attorney General is worried

about her job.

Mr. LANTOS. Well, if your job is hanging in the balance, you presumably would be worried about retaining your job?

Mr. ESPOSITO. I am not going to presume anything.

Mr. LANTOS. You connected two conceivably plausible statements

in a causal sequence which according to your own admission makes

no sense.

Mr. ESPOSITO. No, I was agreeing with you that you’re right. I

never said that it didn’t make sense. I said it was inappropriate.

Mr. LANTOS. Inappropriate. Have you heard him make many

other such weighty, inappropriate statements?

Mr. ESPOSITO. No.

Mr. LANTOS. Was this out of character?

Mr. ESPOSITO. Yes.

Mr. LANTOS. Doesn’t that give you pause that perhaps you misunderstood?

Mr. ESPOSITO. No. I think this was a time at the beginning of

a very important investigation and there was a lot of stress and

pressure on the Public Integrity Section, as there was on the Bureau to move forward in this investigation.

Mr. LANTOS. Mr. Gallagher.

Mr. GALLAGHER. There are two points, one whether or not the

meeting occurred. I had not seen the calendar or wasn’t aware of

a calendar entry by Mr. Esposito when I testified last week. I spoke

from my recollection and I was in the adjoining office. Mr. Esposito

asked me to join him in the meeting, and that is what I testified

to.

With respect to——

Mr. LANTOS. May I stop you there for a second. I will give you

plenty of time to answer.

Mr. GALLAGHER. Thank you, sir.

Mr. LANTOS. There is no doubt in my mind that the two of you

recall a meeting that took place. There is no doubt in my mind that

Mr. Radek doesn’t recall that meeting.

180

I have scores of meetings with colleagues and constituents, not

all of which I recall. And I have absolutely no difficulty accepting

the fact that Mr. Gallagher and Mr. Esposito, you are accurately

reflecting the fact that there was a meeting; and Mr. Radek accurately reflects his memory that he doesn’t recall that meeting. I

have no trouble with that.

Where I have trouble, having listened to him now for a couple

of hours, is accepting your characterization of his alleged statements which would be disloyal to the Attorney General, to whom

he is very loyal, and it would be just on the face of it so blatantly

stupid that I am convinced that he would never make it. And you

just stated, Mr. Esposito, that it was very out of character, that it

didn’t make sense. It didn’t reflect the pattern of thoughtful, proper, intelligent, logical dialog you had with this gentleman.

Now, if I would be in your boots, I would say one of the possibilities is that I misconstrued the remarks.

Mr. GALLAGHER. Mr. Lantos, if I could add on that point.

Mr. LANTOS. Please.

Mr. GALLAGHER. After the meeting I concluded—Mr. Esposito

and I did not speak particularly about this statement. What we

talked about was the strategy that the FBI would begin to put together to create the task force. I was unaware of the fact that he

was going to go down the hall and talk to the Director.

Mr. LANTOS. Yes.

Mr. GALLAGHER. I was unaware of the fact that the Director was

going to make a decision to talk to the Attorney General about it

and document his observations and the fact that he talked to the

Attorney General in a memorandum.

It was not until some days after this memorandum was prepared

that I had an opportunity to see it.

The memorandum as to the statement attributed to Lee Radek

is accurate. He did make the statement. I cannot interpret why he

made the statement. I respect Lee Radek. He is a friend. I respect

him as an attorney. We have had a lot of professional contacts. I

walked away from that statement with the appreciation that what

he was saying was that this was going to be a very tough, critical

investigation and it was a statement of fact that the Attorney General’s job may be on the line. May hang in the balance was what

was said. When I saw it, I had no difficulty with the accuracy of

the statement and didn’t know that it was being documented.

Mr. LANTOS. Of course, you see the Attorney General’s job being

on the line was obvious to anyone who listened and watched the

Sunday morning television programs. There was Republican Senator after Republican Senator calling for her resignation. There

was unbelievable pressure in this body to get rid of her. This was

a statement of fact.

Mr. GALLAGHER. Correct. But——

Mr. LANTOS. What is so sinister about it if you don’t connect the

two?

Mr. GALLAGHER. The difficulty I have is that you are asking me

to analyze a statement that I did not make nor did Bill Esposito

make. It was made by Lee Radek in our presence. We only reported

what he said and I can’t get into what is behind it and unfortunately he doesn’t recall either the meeting or the statement. So the

181

difficulty is to analyze a statement that we don’t have the person

who made it recalling it.

Mr. LANTOS. But we can still analyze the statement, Mr. Gallagher, whether he recalls it or not. I have no difficulty analyzing it

in a benign fashion. I think both statements are accurate. He was

under great pressure, period. The Attorney General’s job was in the

balance. Well, it was.

Mr. GALLAGHER. Unfortunately, as I said, there wasn’t a period

in between them. They were connected.

Mr. LANTOS. How in an oral conversation do you know where the

periods and the semi-colons are. Explain that to me.

Mr. GALLAGHER. It was one simple statement. It was not separated by any pause. It was not separated by other statements. It

was connected.

Mr. LANTOS. How was it connected?

Mr. GALLAGHER. It was one statement.

Mr. LANTOS. Say the sentence.

Mr. GALLAGHER. It lasted a number of seconds. It was not—I did

not take it to be a dramatic statement. I share your opinion that

there was a lot of publicity to the fact that the Attorney General’s

job may hang in the balance. There was a lot of discussion of that.

I recall the statement by Mr. Radek about the pressure, and the

way that he said it, that there was pressure on him because the

attorney’s job may hang in the balance, was said. That is not a direct quote but is very close to that. But I took away from that what

he was attempting to convey—or the implications that I took and

they may differ from what the Director of the FBI, how he reacted

to it, but the implication that I took was that Lee Radek was making a statement of how sensitive and tough this investigation was

going to be that we were about ready to enter. The whole purpose

of this meeting, and it was an extraordinary meeting because it is

the only meeting that I recall in Bill Esposito’s office with Lee

Radek and myself talking about campaign financing and the structure of the investigation that was to begin. That is why I recall the

meeting and that is why I recall the statement.

Mr. LANTOS. Well, let me ask you whether my benign interpretation of the two sentences, which for the sake of argument I accept,

what is wrong with my benign interpretation? Obviously there was

a great deal of pressure because they were beginning a major investigation and obviously the Attorney General’s job was in the balance. Everybody knew that. The New York Times, the Washington

Post, had headlines and editorials on a weekly basis on this subject.

Mr. GALLAGHER. The difficulty I have is to separate them when

I as one of the two people who heard it said did not hear or understand any separation from the two points. They were connected as

I heard them.

Mr. LANTOS. Well—and if you connect it, what does it mean to

you?

Mr. GALLAGHER. What it means to me and what I took from that

statement as I heard it, that Lee Radek, and I didn’t take it so

much out of character with him because Lee Radek was emphasizing that this was going to be a very difficult, sensitive investigation. That is the impression I took from it.

182

Mr. LANTOS. That is obvious.

Mr. GALLAGHER. So I did not overreact to it. I did not put any

great significance on it. I did not know once Bill Esposito would

discuss it with the Director it would become an issue that would

be raised with the Attorney General. Maybe that is my naiveness,

naivete.

Mr. LANTOS. No, it is not your naivete because your interpretation is exactly my interpretation. You have just substantiated the

case that I am making. You heard these two statements. You didn’t

think they were so extraordinary. You didn’t run and write a memo

about it. You didn’t go to the head of the FBI to report it. You just

thought yeah, that is right. It is a very sensitive investigation,

great pressure. The Attorney General’s job is in the balance. All of

those statements are true.

Mr. GALLAGHER. But the issue is that the Director of the FBI did

read a higher degree of sensitivity into it and—— Mr. LANTOS. That is what the FBI does. We want you guys to

sniff for something in every conceivable context. I don’t blame

Louis Freeh and I don’t blame Mr. Esposito. I am merely putting

a more rational interpretation on some obvious statements. Mr.

Radek, as the Justice Department, was under a great deal of pressure; and the Attorney General’s job was in fact in the balance.

Mr. GALLAGHER. But they were connected.

Mr. LANTOS. Of course they were connected. If she was in the

flower growing business, then the pressure would be less severe.

We all understand that.

Mr. GALLAGHER. The difficulty you and I would have is attempting to interpret a statement made by someone else.

Mr. LANTOS. That was my point to Mr. Esposito. You know, I

would like to sort of go back to an early dialog we had. Let’s put

this statement or statements aside for a moment, although I would

like to state for the record that not only do I think that a benign

interpretation can be made of the alleged statements, but the only

rational interpretation of the alleged statements is a benign interpretation.

Do either of you believe that the Attorney General in fact based

her decisions on political considerations or because she was concerned about retaining her job, Mr. Esposito?

Mr. ESPOSITO. Not for a minute do I believe she would make a

decision just to keep her job.

Mr. LANTOS. How can you immediately go, consider this statement so evil so as to run to the FBI Director to report it?

Mr. ESPOSITO. I never said it was evil.

Mr. LANTOS. It would have been evil. If she would make her decision for the purpose of keeping her job, that is unacceptable, isn’t

it?

Mr. ESPOSITO. First of all, I did not run down to the Director’s

office. Immediately after the meeting, after Mr. Gallagher and I

had a few minutes of discussions, I reported the results of the

meeting. The main focus of the meeting was two points which I

previously testified to. Also in the context of the discussion, this

came up. That was my job, to brief the Director on the results of

the meeting because the Director and I had discussed having a

meeting to begin with.

183

Now, you asked me a question about the Attorney General. I answered the question on the Attorney General. I have a great deal

of respect for the Attorney General and her integrity. I always

think she would do the right thing, and if it would cost her her job,

I believe she would still do it.

Mr. LANTOS. Mr. Gallagher, what is your answer to that same

question?

Mr. GALLAGHER. I have the highest respect for the Attorney General. I have dealt with her on many issues, and I have no reason

to question her at all.

Mr. LANTOS. Well, let me say I share the highest respect you

have for the Attorney General, and I have very high respect for all

three of you. I only wish I were as sure of everything that you are

apparently sure of everything, Mr. Esposito, because I am never

sure that I hear you right or I hear my wife right or my friend

right. Different people may have different interpretations of the

same sentences and it is appropriate to give a professional colleague the benefit of the doubt.

I yield back the balance of my time, Mr. Chairman.

Mr. BURTON. We were going to give you the remainder of your

5 minutes. So you have another 21⁄2, 3 minutes if you would like.

The gentleman yields back the balance of his time.

Mr. Shays.

Mr. SHAYS. Thank you, Mr. Chairman.

I feel like I am walking in a cesspool and somebody is saying

drink the water, it’s clean. That is the way that I have felt for a

number of years. I can’t reconcile a lot of things. I can’t reconcile

the public confidence in the Attorney General and the private

memos that say something very different. There are a lot of things

that strike me as silly. There are a lot of things that strike me as

absurd and there are a lot of things that strike me as down right

dangerous. I can’t reconcile, Mr. Radek, your telling me that you

didn’t get involved with the President or Vice President after September 1997 when you wrote a memo in November 1998 talking

about the independent counsel and why the President shouldn’t

be—and the Vice President—excuse me, why the Vice President

shouldn’t have an independent counsel, as if somehow you weren’t

involved. I can’t reconcile that.

I can’t reconcile a memo that is clear as clear can be, and I am

going to read part of it. It is the memo that came out by Mr. Freeh

to you, Mr. Esposito. I mean, I knew about the Freeh memo to

Reno in November 1997 and the La Bella memo in 1998, in July

1998, both recommending independent counsels, so we may love

the Attorney General but it was very clear there was no doubt in

either person’s mind that an Attorney General should appoint an

independent counsel based on just the law requiring it and based

on even if the law didn’t require it, just her discretion. I can’t reconcile that she didn’t, but you know, that is her opinion and she

took her position. But I didn’t know about the Freeh memo to you,

Mr. Esposito. I didn’t know that there was a memo that said, ‘‘As

I related to you this morning, I met with the Attorney General on

Friday, December 6, 1996, to discuss the above-captioned matter,

and it is entitled Democratic National Campaign Matter. I stated

that the DOJ had not yet referred the matter to the FBI to conduct

184

a full criminal investigation. It was my recommendation that this

referral take place as soon as possible.’’ It blows my mind that the

FBI wasn’t given this referral.

Then he continues to say to you, Mr. Esposito, ‘‘I also told the

Attorney General that since she had declined to refer the matter

to the independent counsel, it was my recommendation that she select a first rate DOJ legal team from outside Main Justice to conduct the inquiry. In fact I said that these prosecutors should be

junkyard dogs and that in my view the PIS was not capable of conducting the thorough kind of investigation that was required.’’

Not a very good recommendation of you, Mr. Radek. ‘‘I also advised the Attorney General of Lee Radek’s comments to you that

there was a lot of pressure on him and PIS regarding this case because the Attorney General’s job might hang in the balance or

words to that effect. I stated that those comments would be enough

for me to take him and the Criminal Division off the case completely. I also stated that it didn’t make much sense for PIS to call

the FBI the lead agency in this matter while operating a task force

with the Department of Commerce IG’s who were conducting interviews of key witnesses without the knowledge and participation of

the FBI. I strongly recommended that the FBI handpick DOJ attorneys from outside Main Justice to run this case as we would in any

matters of such importance and complexity.’’ It goes on. ‘‘I intend

to repeat my recommendation from Friday’s meeting.’’ He goes on.

I want to know, Mr. Radek, if you were told the moment after

he met, Mr. Freeh met with the Attorney General that you had, according to Mr. Freeh, made comments that questioned your ability

to do your job?

Mr. RADEK. I’m sorry, what is the question? Did I know that?

Mr. SHAYS. Did the Attorney General who you all seem to be in

awe of come to you and tell you that this comment had been made?

Mr. RADEK. No. I was unaware the comment was made until I

saw this memo.

Mr. SHAYS. So the Attorney General after she was confronted by

the Director of the FBI that your integrity was in question, and

would you agree that this raises questions about your integrity?

Whether or not you think that you made that statement, don’t you

think that this raises questions about your integrity?

Mr. RADEK. It seems to me that the Director is drawing an inference that questions my integrity, yes, sir.

Mr. SHAYS. Mr. Esposito, I am happy that you spoke to the FBI

Director. You did what you should do. And you are not happy that

you are here today. And you are all people that work with each

other and I know that, but you heard it. You were obligated to step

forward and you spoke to your Director. He was obligated to speak

to the Attorney General. Would someone tell me why the Attorney

General didn’t tell you, Mr. Radek, about this memo? Obviously

you can’t, can you?

Mr. RADEK. No, I can’t.

Mr. SHAYS. Can you tell me, Mr. Esposito?

Mr. ESPOSITO. No.

Mr. SHAYS. Mr. Gallagher.

Mr. GALLAGHER. I can’t.

185

Mr. SHAYS. How can you tell me that you have confidence in

their investigation? It doesn’t make sense to me. It is not logical

to me. It is not—how can you praise her when you have—she has

been confronted with a question of integrity and she doesn’t even

go to the individual who was in fact accused of making the statement?

Let me ask you a question, Mr. Esposito. If your integrity was

questioned, and you are the Deputy Director of the FBI, correct?

Mr. ESPOSITO. Correct.

Mr. SHAYS. If your integrity was questioned and someone went

to your Director, Mr. Freeh, and you were accused of making statements that made it seem like you could not carry out your job,

would you expect Mr. Freeh to come to you and confront you?

Mr. ESPOSITO. Yes, I would.

Mr. SHAYS. Well, I’ll just say for the record my time has run out.

It doesn’t make sense to me, why the Attorney General who you

all praise with her integrity and that she’s doing a great job didn’t

do a great job in this instance. And it raises gigantic questions to

this Member of Congress about what the hell is going on at DOJ.

Mr. BURTON. Gentleman yields back his time because his time

has expired.

Mr. Barr.

Mr. BARR. Thank you. Mr. Chairman, sometimes at these hearings when I listen to Mr. Waxman or, in this case, Mr. Lantos,

questioning administration witnesses, they are operating in a different dimension. Sometimes, I don’t know whether you remember,

Mr. Chairman, the bizarro world, the bizarro world of Superman

which was another dimension into which he would occasionally traverse, everything was the opposite. Up was down, left was right,

clean was dirty, dirty was clean. Everything was all jumbled together. And Mr. Lantos’s statements, apparently to which Mr.

Radek subscribes also, they’re perfectly normal and acceptable and

understandable for statements to be made, that an Attorney General’s job is in the balance, if he or she follows the law and recommends the appointment of an independent counsel, may be entirely acceptable in the Clinton bizarro world, but it is not acceptable in the world of prior administration’s Republican and Democrat. And it is not acceptable, Mr. Chairman, in the world of the

majority on this committee.

That is why you have convened these hearings when the other

side would never dream of convening these hearings, because in

their world, for an Attorney General to be confronted with statements by a head of the Public Integrity Section that raised the

question about her integrity and her job being in the balance, simply if she happens to follow the law or recommend—and recommend the appointment of an independent counsel, would, in fact,

be subject to great questioning, because that would not be acceptable in any way, shape, or form. It’s just absolutely mind-boggling

that that witness and Mr. Lantos could be sitting here bantering

back and forth, that this is perfectly understandable. It is perfectly

understandable only in the context of the administration in which

the evidence is offered.

In contrast, Mr. Chairman, the lethargy with which the Public

Integrity Section approached the campaign financing matters here

186

with the way they’ve tried to come after the head of the FBI on

March 5, 1997, just short—relatively shortly after the director’s

memo of December 1996, apparently the director made a mistake

in testimony before the Congress on a completely unrelated matter.

And immediately, the Department of Justice, the Clinton Department of Justice launched into action and immediately felt the need

to trigger a preliminary investigation, even though it was an inadvertent mischaracterization in the director of the FBI’s testimony,

which he immediately, when he realized it was inaccurate, corrected the record, yet the Department of Justice immediately

launches a preliminary investigation into that matter.

Now, they concluded relatively quickly that there were no

grounds to continue with the appointment of an independent counsel, but in that case, they certainly had no hesitancy at all that the

minimum threshold necessary to begin a preliminary inquiry was

met. Whether or not that was an effort, another effort to get back

at the head of the FBI for standing for the rule of law and demanding that the law be upheld, I don’t know.

We will probably never know, but the fact of the matter is, Mr.

Chairman, that even though, as we saw earlier in Mr. Lantos’ continuous efforts to, you know, make sure there’s plenty of sunshine

out there and everybody is lovey dovey with everybody else, he

played a testimony from Director Freeh of about 3 years or so ago.

At that time, we did not have, Mr. Chairman, the memos that we

now have before us as you indicated at the beginning of these hearings. It’s taken about 21⁄2 years to get these memos, even though

they’ve been under subpoena for quite some time.

At the time that Mr. Freeh testified back then, had we heard the

brief snippet of today, we did not have those. At that hearing, the

chairman will recall, and I presume these witnesses will recall,

that Mr. Freeh had to be very circumspect about how he discussed

these matters and how he answered questions regarding them because the memos had not been made public and we did not have

them.

However, at the time, in response to questioning by myself, he

said that his recommendation was based on more than one aspect

of the statute regarding appointment of independent counsel. I

asked him at that time if he was aware of the fact, of course, that

there were only two bases on which an independent counsel could

be triggered, one was conflict of interest and the other was credible

evidence that covered persons, including the President and Vice

President, might have violated Federal laws.

In response, then, he answered yes. We know now, based on the

memos that are before this panel today and before these witnesses

today, that the director went into quite some detail criticizing the

manner in which Mr. Radek’s office presupposed that the covered

persons were telling the truth. They gave them every inference of

every—they had the benefit of every inference of what they were

saying, and their self-serving statements were true and correct,

and therefore contrary. And the director says this, contrary to the

way a normal investigation progresses in which, right off the bat,

you don’t give the potential defendants or those that are the subject of an investigation, the benefit of every doubt. You, in fact, ask

relatively probing questions. You remain somewhat skeptical. That

187

in the case at hand, quite the opposite was done, and therein lies

the essence of the director’s disagreements with the way the Public

Integrity Section was handling this investigation.

You have not gone into this, Mr. Chairman, but I think it’s also

relevant to have a little bit of history in this area with regard to

why Mr. Radek may have been doing so much to ensure that the

FBI was cut out of this. The fact of the matter is that with regard

to a previous matter of the appointment of an independent counsel

regarding Henry Cisneros, the FBI there also had recommended

that, based on credible evidence, an independent counsel needed to

be applied for. The Department of Justice resisted that effort. It

was only when the director of the FBI insisted over the objections

of the Public Integrity Section that the Attorney General move forward with the seeking of the appointment of an independent counsel.

And I think that was perhaps, more than anything else, something that gave rise to the bad blood here and why the Office of

the Public Integrity Section resisted so substantially the efforts by

the head of the FBI to see that the independent counsel law was

enforced, as well as the efforts by Mr. La Bella.

So, at least on this side of the aisle, Mr. Chairman, I don’t want

there to be any presumption that we agree that it is perfectly normal and healthy for some statement to be made that the Attorney

General was under a lot of pressure, and her job might hang in the

balance if, in fact, an independent counsel is appointed. That is entirely unacceptable. That has never happened as far as we know

in any prior administration Republican or Democrat, faced with

similar allegations.

Even those in the Carter administration, before the independent

counsel statute, per se, came into existence. And that’s why, Mr.

Chairman, I appreciate very much your holding these hearings, so

that we can at least set the record straight today, which we were

not able to do because we didn’t have these documents available at

the last time the director of the FBI testified on these matters.

Mr. BURTON. Thank you, Mr. Barr. I guess we’re about to conclude the hearing.

You have some more questions.

Well, let me get back to you in just a second, then. On November

the 1st, 1996, Mr. Radek, you wrote a letter to Mr. Steven

Zipperstein, chief assistant, U.S. attorney in California for the central district. And you said, this is to confirm the substance of the

conversation on October 31, 1996, among Assistant U.S. Attorney

Steve Mansfield, you and myself concerning two matters potentially venued within your district. It involved the Hsi Lai Temple

and it involved another issue. And you directed them not to continue their investigation, even though they were sending out subpoenas and ready to go after, maybe possibly impaneling a grand

jury.

You said that the reason was the Public Integrity Section, which

was responsible for all potential independent counsel matters, has

been assigned to examine all of the allegations to determine whether further investigation is warranted and whether appointment of

an independent counsel might be appropriate.

188

As would be necessary in any matter with potential independent

counsel ramifications, your office should take no steps to investigate these matters at this time. So you stopped him from conducting the investigation. And you said, in addition, we would appreciate it if you would immediately provide us with any background

or other information you may have gathered to date concerning either of these matters.

Well, the end result was you didn’t appoint an independent counsel. I’m not sure you probably ever had any—had any desire or inclination to do that. But for some reason, you did want to take it

out of the hands of the U.S. Attorney out there who was really hell

bent for leather to pursue that. And as a result, I don’t know that

anything was ever done with that.

So that along with everything else we’ve been reading in these

memos would lead one to believe that there is an attempt by the

Justice Department and the Public Integrity Section not to go after

people who are connected with this White House. And that’s what

Mr. La Bella’s memo said, in effect. I don’t know, I hope everybody

reads the La Bella memo. All this stuff today, if you watched this

whole hearing, I’m sure people are going to say, my gosh, it looks

like somebody making sausage. How do you understand all the

ramifications of this? But the fact of the matter is there has been

no thorough investigation of Mr. Ickes, the President, the Vice

President. They weren’t even asked questions about illegal campaign activities. They weren’t even asked questions about people

they were connected with. And it was apparent, apparently intentional.

Now, you know, that bothers us a great deal and that’s why we

have been so aggressive in investigating this and why we’ve been

diligent. And the Justice Department, for 21⁄2 to 3 years, has kept

us from getting documents which we finally got, because I was

going to bring the chief lieutenant for Eric Holder before the committee with the documents, and if he didn’t bring them, I was going

to hold him in contempt of Congress, I was going to take him to

the floor.

I think they knew that so they finally coughed up the documents

after 21⁄2 years. You know, and then you look at these memos here.

This is the memorandum to Mr. Esposito from Mr. Freeh. It was

unfortunate that DOJ declined to allow the FBI to play any role

in the independent counsel referral deliberations. I agree with you,

that based on the DOJ’s experience with the Cisneros matter,

which was only referred to the independent counsel because the

FBI and I intervened directly with the Attorney General, it was decided to exclude us from this decisionmaking process. Keep them

out of there.

I admire your loyalty, I really do, saying that you believe that

the Attorney General and the people over at Justice would not do

this. And I think publicly that’s probably as it should be. Louis

Freeh and you fellows are loyal. But won’t you read the memos.

You see either gross, incompetent over there or deliberately blocking a thorough investigation of the White House and all these other

things that have been going on over there.

189

While I admire your loyalty and your public position, when you

read these private memos, it sure paints a different story. Now, I’m

going to sum up, then I’m going to let Mr. Shays go next.

Freeh, La Bella and DeSarno sat right where you folks are sitting, and they said there should be an independent counsel. The

memos, I believe, speak for themselves. I think when you read the

memo from Louis Freeh, and I spent hours reading it and I spent

hours reading Mr. La Bella’s memo, I think they speak for themselves. The problem is making sure the American people understand how strongly both Louis Freeh and the FBI and Mr. La Bella

felt about this. One of his subordinates felt so strongly, he resigned, Mr. La Bella’s subordinate resigned, because he said it was

such a biased mess.

Mr. Radek, my three, four former counsels to the President who

sat there, right there on the e-mail thing, just a few weeks ago, and

several other people going all the way back to the FBI scandal,

when they were taking FBI reports, Mr. Livingstone and Mr.

Marcesa and even the travel office investigation, the memory loss,

the inability of anybody to remember anything, just makes me

want to vomit. You can’t be indicted for perjury if you don’t remember.

So what happens when we have who was the chief counsel that

was here, Chuck Ruff said when he was investigating the Whitewater investigation, he said, if I’m ever in this position, I’m paraphrasing, he said the best thing to do is to say you don’t remember.

And Mr. Ruff didn’t remember. Neither did his subordinate. Neither did the new counsel, Ms. Nolan. None of them remembered

anything. And now today, Mr. Radek doesn’t remember. He just

doesn’t remember a meeting that is that significant when they’re

talking about one of the most important cases in the history of the

United States. He doesn’t remember the pressure statement, he

doesn’t remember saying, you know, that the Attorney General’s

job hangs in the balance. That’s pretty strong stuff. I don’t know

how you forget that. They didn’t forget it. Louis Freeh didn’t forget

it. He went to the Attorney General and talked to her about it, but

she didn’t remember either.

The epidemic from the White House has spread to the Attorney

General and now to you, Mr. Radek. It’s just amazing. And the

thing that bothers me the most is that if the Attorney General and

I say if, if the Attorney General’s job and her position was so important, that she did not appoint an independent counsel in accordance with the law that was passed by Congress, if she deliberately

did not appoint an independent counsel, because she wanted to

keep her job or she wanted to protect the President and not have

a thorough investigation, that is obstruction of justice. That is a

felony. That’s obstruction of justice if that’s what she did.

I’m not sure we’re ever going to find out, but, by golly, after reading all this stuff and going through this for 21⁄2, 3 years, I’m convinced that’s what they did. And you too, Mr. Radek.

And finally, Louis Freeh, as I said, as well as you gentlemen,

publicly support the Attorney General. But all of the evidence and

the information we have here shows just the opposite. And I think

it’s a tragic shame and it’s a black stain and a blot on the justice

of the United States of America and the Justice Department.

190

Mr. Shays.

Mr. SHAYS. I’m not going to keep you here much longer. I just

want to resolve in my mind, Mr. Riady—excuse me, Mr. Radek. Is

it Radek or Radek?

Mr. RADEK. It’s Radek, Mr. Shays. Thank you.

Mr. SHAYS. I heard Mr. Lantos say ‘‘Radek,’’ and he’s usually

right on the mark, so it made me wonder.

Mr. Radek, I’m interested to know under what basis you make

the statement that the temple, Buddhist Temple fundraiser was

not meant to be a fundraiser but an outreach. You made reference

to that.

Mr. RADEK. I don’t know that I ever adopted that position. If

there is a document where I did, I would be glad to examine it.

Mr. SHAYS. I thought you made reference to the fact that—— Mr. RADEK. No, I think that was the Vice President’s interview;

he probably said something to that effect.

Mr. SHAYS. I heard ‘‘the temple,’’ and I didn’t think it was Mr.

Esposito.

Mr. RADEK. I said that the Hsi Lai Temple was one part of the

campaign financing investigation.

Mr. SHAYS. Right. And you did not feel—what interests me is

that Mr. Trie suggested it, Mr. Huang arranged for it, and Mr.

Hsia—excuse me, Maria Hsia carried it out. Tell me what was illegal about that event.

Mr. RADEK. Well, there were several offenses committed, but the

focus of the investigation was, as you suggest, whether there was

a conspiracy among what the FBI liked to call the opportunists, the

people who were the fundraisers who were going out and raising

money and presumably trying to get favors in return for that. To

raise foreign contributions, to raise contributions that were what

we call strawman contributions, that is, contributions made in the

name of another.

Mr. SHAYS. That’s laundered money.

Mr. RADEK. Well, it is. I’m not sure it technically fits the money

laundering statute, but I would rather reserve a legal opinion on

that since we may be trying to use that. It may well be money

laundering. And there’s a lot of crimes that flow from that, like

false statements to the FEC, interference with the FEC or some

other Federal function. And that was the type of charges that were

brought against from Maria Hsia for which she was convicted.

Mr. SHAYS. So it’s—it was illegal though, clearly illegal.

Mr. RADEK. There was illegal activity involved in that fundraiser

in terms of foreign and strawman contributions.

Mr. SHAYS. Which I call laundered money and you don’t. It was

money supposedly given by individuals, and it wasn’t their money.

It was laundering money to cover up who actually was giving the

money.

Mr. RADEK. Yes. There’s a specific FEC crime, FECA crime. It is

contributing in the name of another. That violated it. It may or

may not violate the money laundering statute.

Mr. SHAYS. But it was under FEC and you seem to carry a lot

of weight with what the FEC says.

Mr. RADEK. The act, FECA, the Federal Election Campaign Act.

Mr. SHAYS. But it was illegal.

191

Mr. RADEK. Yes.

Mr. SHAYS. And the President was involved in it.

Mr. RADEK. I don’t know that the——

Mr. SHAYS. The Vice President was involved.

Mr. RADEK. The Vice President appeared there, yes.

Mr. SHAYS. He was the attraction.

Mr. RADEK. Yes.

Mr. SHAYS. That was why people came.

Mr. RADEK. Yes.

Mr. SHAYS. OK.

Mr. RADEK. Where are we going with this?

Mr. SHAYS. Where we are going with it is I’m just trying to understand your logic. Because you recommended in 1998 not to move

forward, and yet you’re telling me that you didn’t get involved in

this investigation after 1997 when asked specifically about whether

the Vice President was questioned, and you kind of waved it off

like I wasn’t involved, ‘‘you’’ meaning——

Mr. RADEK. The 1997 interview of the Vice President I took part

in. I know what was asked at that interview. So I could answer

your question. The subsequent interviews I was not involved in,

but when they involved the independent counsel issues, obviously

I became aware of the contents of the interview. That doesn’t mean

to say that I know whether or not, in the course of that interview,

someone may have asked a question about the Hsi Lai Temple.

That’s all I’m saying. I wasn’t involved in the interviews.

Mr. SHAYS. But what bothers me is you wouldn’t know, because

you wrote a memo, memo 35 in our exhibit, and the title is to recommend that the Attorney General not trigger a preliminary investigation in this matter.

Mr. RADEK. This has nothing to do with the Hsi Lai Temple, I

believe.

Mr. SHAYS. It has with the phone calls.

Mr. RADEK. Yes. Which had nothing to do with the Hsi Lai Temple.

Mr. SHAYS. Right.

Mr. RADEK. The Hsi Lai Temple was a separate particular part

of the campaign finance investigation.

Mr. SHAYS. What I want to know is why you didn’t speak to that

issue.

Mr. RADEK. The issue of whether the Vice President spoke at a

fundraiser where illegal contributions were committed? It wasn’t a

terribly relevant issue. The issue you’ll find addressed in the Attorney General’s letter in late 1996, I think it was, to the

Congress——

Mr. SHAYS. Let me understand. Maybe you’re dead right, and I’m

just foolish to wonder, but if I’m involved in a fundraising event

that is raising illegal money, somehow I don’t have to—you kind

of dismiss it like, you know, you foolish person. Of course, we

wouldn’t look at that.

Mr. RADEK. No, sir. We looked at it thoroughly, and eventually

Maria Hsia was indicted for that. Of course, we looked at anybody

who was involved. We never came across any specific and credible

evidence that the Vice President was involved in illegality.

192

Mr. SHAYS. And I wanted to know if you asked him the questions.

Mr. RADEK. I did not ask him the questions when we interviewed

him in 1967.

Mr. SHAYS. Why didn’t you see if he was asked in 1997 and 1998

if you’re in charge of Public Integrity?

Mr. RADEK. I was no longer involved in that, but the processes

were there that if the allegation arose—— Mr. SHAYS. I obviously don’t understand what you just said to

me. You were not involved in what?

Mr. RADEK. I was not involved in the task force’s work to the extent that they were still investigating the Hsi Lai Temple.

Mr. BARR [presiding]. The gentleman from Connecticut will have

5 additional minutes without objection.

Mr. SHAYS. I just want to understand, if you’re in charge of Public Integrity, it’s my sense we either have an independent counsel

who looks at the integrity of our public officials or you do.

Mr. RADEK. Now, in this instance, there is a lot of other people

who look at them. As the acting chairman can tell you, most of the

corruption work is done by U.S. Attorneys. In this case, the task

force after Mr. La Bella’s arrival stopped being part of the Public

Integrity Section, it became a separate entity. To the extent that

the investigation continued, I stayed on for a while in an advisory

capacity. And as independent counsel matters would come up, I

would be called in to do a preliminary investigation and to give an

opinion, along with everybody else. I was no longer in charge of directing where the task force went or what it investigated.

Mr. SHAYS. So Mr. La Bella does his investigation and he recommends that an independent counsel be appointed with no reservation whatsoever.

Mr. RADEK. At the end of his tenure, he wrote that report which

you’re releasing today which summarized—was intended to summarize all of his investigations, and he recommends an independent counsel for various particular matters and sort of for the whole

thing.

Mr. SHAYS. I’m sure you read them, his memo.

Mr. RADEK. I did. And I responded to it and I presume you’re releasing my memo as well.

Mr. SHAYS. And the Director of the FBI recommended an independent counsel. And you, at every instance, recommended that

there not be one. Is—— Mr. RADEK. Not exactly true, sir. There was somewhere I recommended an independent counsel.

Mr. SHAYS. What were the instances where you recommended an

independent counsel?

Mr. RADEK. There were some that were appointed and there was

one where she disagreed with me.

Mr. SHAYS. I want you to be specific. What particular areas did

you recommend an independent counsel?

Mr. RADEK. On Alexis Herman.

Mr. SHAYS. Related to the President or Vice President, and as it

related to campaign abuse?

Mr. RADEK. Alexis Herman, Harold Ickes. That’s all.

Mr. SHAYS. OK. But not the Vice President?

193

Mr. RADEK. No, sir.

Mr. SHAYS. Not the President?

Mr. RADEK. That’s correct.

Mr. SHAYS. Did you write—— Mr. RADEK. Although I was deeply involved in the Monica

Lewinsky matter, but not related to campaign finance.

Mr. SHAYS. Did you write memos arguing that the President and

the Vice President should not have a special counsel?

Mr. RADEK. I did.

Mr. SHAYS. Do we have all of those?

Mr. RADEK. I believe so. I’m not in charge of document production, but I’m reasonably sure you do.

Mr. SHAYS. So you took an active interest in recommending that

the President and the Vice President not have independent counsel

look at campaign abuses, but you tell me that there are areas

where you did not question or areas where you were not involved.

So I—just reconcile that.

Mr. RADEK. But that’s not to say that someone wasn’t doing it.

When I stopped being involved, the task force continued its work.

And I’m quite confident that the work was done well, and I think

the results will speak for it. They’ve had numerous convictions. The

investigation continues. And it’s a logical, well-structured investigation that I think—that I’m sure is ongoing now. What I’m saying is my personal involvement only involved the independent

counsel decisions after some point when Mr. La Bella was there because that’s my job.

Mr. SHAYS. If soft money was used by the President or his media

people and directed to certain States and the President was, in

some way, involved in writing those acts, do you consider that an

illegal act?

Mr. RADEK. I do not.

Mr. SHAYS. Why?

Mr. RADEK. Because the FEC hasn’t said it’s illegal, and now the

FEC has now said it’s not illegal. Coordination, no matter how

closely the President participated, doesn’t seem to be an issue at

all, and the FEC has ruled that instead, the only thing that matters is the content of the ads. If the ads contain an electioneering

message, then they need to be paid for with hard money. Otherwise, it’s soft money.

Mr. SHAYS. So we know it’s soft money.

Mr. RADEK. I’m talking about what’s permissible. The FEC has

said it’s OK for soft money to be used.

Mr. SHAYS. And directed by an individual like the candidate and

his media people?

Mr. RADEK. Yes. No matter how closely he coordinated it, it’s irrelevant.

Mr. SHAYS. And the basis for that is what, decision of the FEC?

Mr. RADEK. The FEC decision, I believe, on the Common Cause

case, but there’s a number of opinions that lead up to it that told

us that’s where they were going.

Mr. SHAYS. Well, I’ll just conclude by saying the public statements are very laudable about people like the Attorney General.

The memos that we have are just replete with statements questioning the veracity of the investigation by the FBI, by people who

194

were in DOJ, and I don’t know how to reconcile that. And I don’t

know how to reconcile the fact Mr. Radek, in particular—Radek,

excuse me I don’t know how to reconcile the fact that there was a

meeting that you don’t remember, that two people here remember.

I don’t know how to reconcile the fact that they felt so concerned

that they spoke to the director of the FBI, and the director of the

FBI felt so concerned that he spoke to the Attorney General and

then, as she says, I take full responsibility. But I don’t know what

taking full responsibility means anymore with this Attorney General, because she obviously didn’t speak to you according to your

statements, and you certainly would have remembered that. So she

just let it hang. And the statement you’re accused of making is basically saying, in so many words, that you were concerned about

what you did as it related to an independent counsel of the President or Vice President because she may, in effect, not get reappointed. That was the gist of it. And I would think that if she

was confronted with that, she would call you and say what the

heck are you making statements like that for? And then you could

have said I wasn’t making a statement. And then you could have

gone back and set the record straight. But instead, she allows this

to be a public record with no answer.

Mr. RADEK. I can’t reconcile that either, Congressman. I can tell

you that Bill Esposito and I were friends for a long time. In fact,

we had some very frank discussions at times about what was

wrong with the Department of Justice and/or the FBI. And the fact

that he did not, that he was disturbed by this remark and did not

ask me about is something I won’t understand, and I haven’t discussed it with him prior to this testimony. I hope to discuss it with

him sometime.

Mr. SHAYS. But you questioned him?

Mr. RADEK. But beyond that, let me say this: There’s a couple

of things in your question that sort of aren’t supported by the evidence. One is the decision on an independent counsel. I think if you

look at the memorandum and listen to these two gentlemen’s testimony, what they say I said, of ‘‘the investigation.’’ Now, whether

or not that related to an independent counsel, I don’t read from

this being a part of the argument.

And I agree that there is a sinister interpretation to be taken

from this memorandum. Mr. Gallagher, I believe, didn’t walk away

from that meeting with a sinister interpretation, and it sounds to

me like Mr. Esposito was puzzled, as I would have been if I heard

somebody like me make this remark, which, to me, again, disappoints me that he didn’t ask me about it at that time.

Mr. SHAYS. And yet, there you go again. You don’t have any interest in voicing the same concern about the Attorney General?

Mr. RADEK. Well, sir, I can say that the Attorney General wasn’t

bashful about asking me about things that happened, and I have

no explanation as to why she didn’t ask this. But you know, I

would have to speculate that somehow it got communicated to her

in a manner less effectively than is stated here.

Mr. SHAYS. But that’s the gentle way. The stronger way is to say

that your integrity was questioned by the director of the FBI because of a statement you are believed to have made, and you were

confronted with that. That’s the way I look at it. And it raises a

195

gigantic question of what other things she didn’t act on when she

should have. I mean, the fact is we do know, we do know that Mr.

Esposito felt the statement was made. We do know that Mr. Gallagher felt the statement was made.

Mr. Gallagher, would you say that you didn’t think it was sinister, you just passed it off? I heard you respond to Mr. Lantos, but

I mean, did you come to the same conclusion Mr. Esposito did?

Mr. GALLAGHER. I came to the conclusion that, first of all, the

statement was made and in a connected fashion, but the impression I took at the time in the context of the discussion was that

what Lee Radek was conveying to us of the sensitivity of this investigation. That’s what I took away from it.

Mr. SHAYS. Did you think that—so you don’t come to the same

conclusion that Mr. Esposito came, that he was concerned that potentially how he made a decision on independent counsel might affect whether or not the Attorney General was going to have her

job?

Mr. GALLAGHER. At the time, I did not come away with that reaction. And perhaps it’s because what I was focused on was moving

forward with the investigation. The purpose of this meeting that

day was to get from Lee Radek an appreciation of what the Public

Integrity Section had been doing up to this point so the FBI could

get some control of the investigation. We were seeing in the paper

a lot of reports about events that would become the campaign financing, and we weren’t asked to do anything yet.

So the purpose of the meeting was to ask Lee Radek to come

over, discuss the investigation so we could get a plan together and

move forward.

Mr. SHAYS. So based on your answer, and truth requires me to

ask this question, your conclusion basically was not the same as

Mr. Esposito’s?

Mr. GALLAGHER. I don’t know that it’s in conflict with Mr.——

Mr. SHAYS. You can’t have it both ways.

Mr. GALLAGHER [continuing]. Would not be as strong.

Mr. SHAYS. You can’t have it both ways. You either have to decide in your own mind if you thought Mr. Radek was, in fact, suggesting that his job was on the line or her job was on the line based

on this, his decision about an independent counsel, which is what

Mr. Esposito felt and told the director of the FBI or he didn’t. And

you can’t say you agree with Mr. Esposito or not. You basically are

suggesting otherwise.

Mr. GALLAGHER. I am suggesting that—well, I’m not suggesting,

I’m stating that what I heard Lee Radek say was that there was

a lot of pressure on him because the Attorney General’s job might

hang in the balance. I can’t interpret what he meant by that statement.

Mr. SHAYS. But you did interpret it. You did not interpret it as

being, in fact, a suggestion that the Attorney General might lose

her job if he didn’t make the right suggestion.

Mr. GALLAGHER. Your statement went a little further than that.

Your statement, as I heard you just stated, was that you tied it to

her decision on the independent counsel. I don’t recall Lee Radek

making a statement that day in the context of the statement that

196

tied the pressure of the Attorney General’s job and independent

counsel.

Mr. SHAYS. So what’s on the table, bottom line, is that Mr.

Esposito, you heard it a certain way and you reported it. And no

action was taken afterwards by the Attorney General as far as confronting Mr. Radek with this and as far as resolving this.

And Mr. Esposito, let me ask you this question, do you regret not

asking Mr. Radek to go in more detail about what he meant?

Mr. ESPOSITO. Looking back on it, yes.

Mr. SHAYS. Fair enough. Thank you. I yield back.

Mr. BARR. I’d like to ask unanimous consent that the GAO briefing report to the chairman, Committee on the Judiciary House of

Representatives, dated May 2000 entitled Campaign Finance Task

Force Problems and Disagreements Initially Hamper Justice Investigation, be made a part of the records. Without objection, so ordered.

[The information referred to follows:]

197

198

199

200

201

202

203

204

205

206

207

208

209

210

211

212

213

214

215

216

217

218

219

220

221

222

223

224

225

226

227

228

229

230

231

232

233

234

235

236

237

238

239

240

241

242

243

244

245

246

247

248

249

250

251

252

253

254

255

256

257

258

259

Mr. BARR. Mr. Radek, I think that exhibit 35, there is a fairly

lengthy memo dated August 24, 1998 that you wrote to Mr. Robinson, the Assistant Attorney General Criminal Division. Do you recall that memo?

Mr. RADEK. I do.

Mr. BARR. Apparently a task force prosecutor the very next day,

after reviewing your memo, took exception to a number of the factual points that you made in there. Are you aware of that?

Mr. RADEK. I am.

Mr. BARR. Were those disagreements followed up on, in other

words, where this prosecutor indicated that the agents disagreed

with the characterization of their positions, was that followed up

on?

Mr. RADEK. I’m sure it was. I can recall that some were specifically, but I’m sure that they all were.

Mr. BARR. But did you followup on it?

Mr. RADEK. There were followups on the Vice President’s credibility, on the Panetta statements and things like that. So yes, we

did.

Mr. BARR. Well, your memo, I believe, says that it was Panetta’s

impression that the Vice President was following the hard money

discussions, and the agents’ notes reflect that Panetta said the Vice

President was listening attentively. Would that be important evidence showing intent?

Mr. RADEK. Yes. I don’t see much difference between what he

said and what his impression was.

Mr. BARR. So your view is, as a prosecutor, that if you have additional witnesses that make statements indicating, and these are

trained agents, credible witnesses, I presume you would agree and

they make statements to the effect that a key witness said that the

Vice President was listening attentively with regard to questions

over whether or not he was following discussions of hard money

and soft money, that that would not be relevant?

Mr. RADEK. Oh, no, quite relevant, sir. I’m saying there was not

much difference in that and his saying the Vice President was paying attention.

Mr. BARR. But neither one swayed you.

Mr. RADEK. Neither one swayed me. They were certainly evidence that I considered in making my recommendation.

Mr. BARR. You considered it and did not follow it?

Mr. RADEK. I didn’t consider it to be determinative. I certainly

considered it.

Mr. BARR. That’s certainly obvious.

Also, in the memo, you say that Gore stated that he and the

President did not often attend DNC budget meetings like that held

on November 21st. In fact, the agents, I believe, reported that most

witnesses indicated that the President and Vice President did, in

fact, attend the DNC budget meetings. Was that discrepancy between your memo and witnesses stating that the President and

Vice President, as a matter of course, attending the DNC meetings,

going, of course, to the issue they were aware of, the hard-money/

soft-money activities, was that followed up on the difference between your memo and what the agents said most witnesses reported?

260

Mr. RADEK. I don’t specifically recall. Although, I still believe

that at the end of this, that I was, and still am under the impression that they did not attend those meetings.

Mr. BARR. Despite—did you attend the meetings?

Mr. RADEK. No, sir.

Mr. BARR. The witnesses did and said that the President and

Vice President did attend them, but that was not persuasive to you

either.

Mr. RADEK. There were witnesses and there were calendars, and

there was a lot of evidence as to which meetings they attended and

which they didn’t. My impression now, as my best recollection, is

it was my conclusion that they did not attend many of them.

Mr. BARR. On a whole range of issues as we’ve gone over today

through questions with the majority counsel, there is a great deal

of evidence indicating that an independent counsel should have

been triggered. You know, these witnesses’ and the agents’ testimony. What can you tell us, as of today, what is the status of the

Common Cause investigation?

Mr. RADEK. I’m quite sure it’s dead. The FEC’s ruling that this

is not an offense I think controls and stated what I thought was

obvious from the beginning, that that was not a violation. It was

a loophole.

Mr. BARR. The FEC is the controlling authority?

Mr. RADEK. Yes, sir.

Mr. BARR. Really?

Mr. RADEK. Yes.

Mr. BARR. Not the Department of Justice?

Mr. RADEK. No. I mean, we could prosecute it. But if the FEC

said it wasn’t a violation, after we got a conviction, I think we’d

have to, in good conscience, dismiss it.

Mr. BARR. Are you aware of how few attorneys and investigators

the FEC has?

Mr. RADEK. Oh, yes, sir, I am.

Mr. BARR. Are you aware of how many the Department of Justice

in contraposition to that?

Mr. RADEK. Yes, sir. In fact, the FEC reached out to the FBI for

help during this.

Mr. BARR. You defer to the FEC?

Mr. RADEK. Well, sir, I don’t defer to them, you did. I didn’t pass

the law that gave them the ability to interpret the statute.

Mr. BARR. Nobody on this committee has deferred to the FEC.

What we’re trying to get to the bottom is, despite the fact that we

have a number of FBI agents, we have a number of witnesses who

are testifying that lead them to the conclusion that the allegations

contained in the Common Cause complaint were, in fact, meritorious, and that an independent counsel should be appointed, including the gentleman sitting behind you, Mr. Parkinson, the general

counsel for the FBI, that you’re sitting there, and you’re saying, despite all of that, I’m going to defer to the FEC.

Mr. RADEK. Sir, if we’re going to count heads on this issue—you

know, the heads probably broke evenly, although I got to say, I

think there were more people who agreed with me that it was not

a violation. It’s not a matter of a democracy. It’s a matter——

261

Mr. BARR. We’re not talking about democracy. You’re being silly,

Mr. Radek.

Mr. RADEK. Exactly.

Mr. BARR. What I’m saying is we have a number of trained FBI

agents those aren’t just heads, those are trained FBI agents. We

have a number of witnesses. We have the general counsel for the

FBI. We have the head of the FBI. We have the special-appointed

Assistant U.S. Attorney in charge of CAMPCON, or the Campaign

Contributions scandal. We have other attorneys. We have Mr.

Steve Clark, who felt so frustrated at his inability to reach you

with evidence that was persuasive to so many other people yet not

to yourself, that’s what we have stacked up against your absolute

intransigence in seeking the appointment of an independent counsel.

And now, after the fact, making a ludicrous statement that

you’re going to defer to the FEC, completely abrogate your legal responsibility and the ethical obligation that you have to the Department of Justice and to the FBI as the investigators in this case,

and defer to the FEC, which nobody can maintain with a straight

face. You may be the first. But nobody has maintained with a

straight face, has the capability, the legal or the investigative expertise to look into an issue, the controlling decision on these sorts

of complicated matters. Yet, you’re willing to do that and apparently have been willing to do that. That’s our concern. It’s not a

matter of democracy or counting heads, that’s silly, and you know

it’s a silly characterization. That’s not what we’re talking about

here.

Mr. RADEK. Sir, after I said counting heads, you began to count

heads again. So I don’t think it was a silly characterization of what

you were saying.

Mr. BARR. Maybe that’s the nub of this whole thing. We’re in

completely different universes here, as I said earlier.

Mr. RADEK. I don’t mean to be argumentative, but—— Mr. BARR. I don’t mind.

Mr. RADEK [continuing]. My recommendation, along with the recommendations of some very good people in the FBI, FBI legal counsel’s office up and down the line at Justice, and everybody that the

Attorney General asked to see were based on sound legal arguments. And the arguments on the other side were quite valid, they

were quite good, they didn’t carry the day with the Attorney General, who was the decisionmaker. I think that it was an invalid argument to say that before the FEC had decided this issue, this was

a crime that we were going to put people—potentially put people

in jail for. I think that that’s an abuse of prosecutorial discretion.

Mr. BARR. You think that the head of the FBI was exercising improper prosecutorial discretion in recommending that the Attorney

General simply follow the law and seek the appointment of an

independent counsel?

Mr. RADEK. The head of the FBI is not, does not exercise prosecutorial discretion anymore. He’s the chief of police. If you want

the chief of police to make—— Mr. BARR. He was recommending to the Attorney General that

she follow the law based on not just his impression, not just something he read in the paper, but based on the testimony, the very

262

solid investigation of large numbers of FBI agents, of the FBI general counsel Mr. Parkinson, of Mr. La Bella, they were recommending that the Attorney General seek the appointment of an independent counsel with regard to the campaign violations alleged in

the Common Cause complaint and in other complaints.

And that is not—and I’m impressed that you can make the statement with a straight face that that is an improper exercise of prosecutorial discretion. It is not. It is simply following the law and the

evidence as presented by FBI agents and by credible witnesses.

Mr. RADEK. In my opinion, the Attorney General followed the law

and she made the right decision. That was my recommendation to

her. She followed it. She understood——

Mr. BARR. It’s very interesting. You all are really very clever.

And I give you credit for that also, you and the Attorney General.

I think Mr. Parkinson, in one of his memos, sort of laid this out.

He didn’t use the term ‘‘clever,’’ I’m using that.

What he said basically is that you can take a very complex investigation composed of many parts and you can technically correctly

and technically legally look in a compartmentalized fashion at each

separate allegation, much like, for example, a traffic officer coming

upon the scene of a 50-car sequential pileup, and look at each one

of those, and see that, aha, there might be a taillight busted here,

and you look at that and then you go to the next car and you say,

aha, there might have been faulty brakes here. But none of those,

in and of themselves, rise to the level that prosecution ought to be

exercised and a case brought. Yet, if you look at the whole picture

clearly, it warrants it.

You all were very clever. What you do is compartmentalize these

things, you look at each separate one and conclude that it, in and

of itself, does not rise to the level that would warrant the appointment. And even though you may be technically correct and very

smug in going back to the American people and say we did not

technically violate the law in not seeking the appointment of an

independent counsel, you have clearly, I believe, by failing to deliberately, failing to see the forest for the trees, you have subverted

the intent of the Congress and the intent of the American people

in having the laws that protect them against these sorts of violations, according to the law at the time when the independent counsel, prior to last year, when it went out of existence, when it

lapsed, was the only way that we provided for these sorts of things

to be handled and give the American people the assurance they

would be handled, and that criminal provisions would apply. You

subverted that.

Technically, maybe you were correct in being able to do so and

pass a lie detector test that you hadn’t violated the law in any particular instance. But overall, you thwarted the ability of the American people to have justice done. And yet, when a specious allegation was raised against the heads of the FBI that you all had a—

all were peeved with, you know, you launched immediately into a

preliminary investigation. And yet, despite voluminous evidence

here, you failed to do so.

263

That is an injustice to the American people and it does subvert

the rule of law. Mr. Lantos may not care about that, but a lot of

people do. And I don’t think you served the Nation well. These proceedings are concluded.

[Whereupon, at 5:55 p.m., the committee was adjourned.]

[Additional information submitted for the hearing record follows:]

264

265

266

267

268

269

270

271

272

273

274

275

276

277

278

279

280

281

282

283

284

285

286

287

288

289

290

291

292

293

294

295

296

297

298

299

300

301

302

303

304

305

306

307

308

309

310

311

312

313

314

315

316

317

318

319

320

321

322

323

324

325

326

327

328

329

330

331

332

333

334

335

336

337

338

339

340

341

342

343

344

345

346

347

348

349

350

351

352

353

354

355

356

357

358

359

360

361

362

363

364

365

366

367

368

369

370

371

372

373

374

375

376

377

378

379

380

381

382

383

384

385

386

387

388

389

390

391

392

393

394

395

396

397

398

399

400

401

402

403

404

405

406

407

408

409

410

411

412

413

414

415

416

417

418

419

420

421

422

423

424

425

426

427

428

429

430

431

432

433

434

435

436

437

438

439

440

441

442

443

444

445

446

447

448

449

450

451

452

453

454

455

456

457

458

459

460

461

462

463

464

465

466

467

468

469

470

471

472

473

474

475

476

477

478

479

480

481

482

483

484

485

486

487

488

489

490

491

492

493

494

495

496

497

498

499

500

501

502

503

504

505

506

507

508

509

510

511

512

513

514

515

516

517

518

519

520

521

522

523

524

525

526

527

528

529

530

531

532

533

534

535

536

537

538

539

540

541

542

543

544

545

546

547

548

549

550

551

552

553

554

555

556

557

558

559

560

561

562

563

564

565

566

567

568

569

570

571

572

573

574

575

576

577

578

579

580

581

582

583

584

585

586

587

588

589

590

591

592

593

594

595

596

597

598

599

600

601

602

603

604

605

606

607

608

609

610

611

612

613

614

615

616

617

618

619

620

621

622

623

624

625

626

627

628

629

630

631

632

633

634

635

636

637

638

639

640

641

642

643

644

645

646

647

648

649

650

651

652

653

654

655

656

657

658

659

660

661

662

663

664

665

666

667

668

669

670

671

672

673

674

675

676

677

678

679

680

681

682

683

684

685

686

687

688

689

690

691

692

693

694

695

696

697

698

699

700

701

702

703

704

705

706

707

708

709

710

711

712

713

714

715

716

717

718

719

720

721

722

723

724

725

726

727

728

729

730

731

732

733

734

735

736

737

738

739

740

741

742

743

744

745

746

747

748

749

750

751

752

753

754

755

756

757

758

759

760

761

762

763

764

765

766

767

768

769

770

771

772

773

774

775

776

777

778

779

780

781

782

783

784

785

786

787

788

789

790

791

792

793

794

795

796

797

798

799

800

801

802

803

804

805

806

807

808

809

810

811

812

813

814

815

816

817

818

819

820

821

822

823

824

825

826

827

828

829

830

831

832

833

834

835

836

837

838

839

840

841

842

843

844

845

846

847

848

849

850

851

852

853

854

855

856

857

858

859

860

861

862

863

864

865

866

867

868

869

870

871

872

873

874

875

876

877

878

879

880

881

882

883

884

885

886

887

888

889

890

891

892

893

894

895

896

897

898

899

900

901

902

903

904

905

906

907

908

909

910

911

912

913

914

915

916

917

918

919

920

921

922

923

924

925

926

927

928

929

930

931

932

933

934

935

936

937

938

939

940

941

942

943

944

945

946

947

948

949

950

951

952

953

954

955

956

957

958

959

960

961

962

963

964

965

966

967

968

969

970

971

972

973

974

975

976

977

978

979

980

981

982

983

984

985

986

987

988

989

990

991

992

993

994

995

996

997

998

999

1000

1001

1002

1003

1004

1005

1006

1007

1008

1009

1010

1011

1012

1013

1014

1015

1016

1017

1018

1019

1020

1021

1022

1023

1024

1025

1026

1027

1028

1029

1030

1031

1032

1033

1034

1035

1036

1037

1038

1039

1040

1041

1042

1043

1044

1045

1046

1047

1048

1049

1050

1051

1052

1053

1054

1055

1056

1057

1058

1059

1060

1061

1062

1063

1064

1065

1066

1067

1068

1069

1070

1071

1072

1073

1074

1075

1076

1077

1078

1079

1080

1081

1082

1083

1084

1085

1086

1087

1088

1089

1090

1091

1092

1093

1094

1095

1096

1097

1098

1099

1100

1101

1102

1103

1104

1105

1106

1107

1108

1109

Æ