    [House Hearing, 106 Congress]
    [From the U.S. Government Publishing Office]

     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

                                   __________

                        U.S. GOVERNMENT PRINTING OFFICE
    72-912                     WASHINGTON : 2001

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                         COMMITTEE ON GOVERNMENT REFORM

                         DAN BURTON, Indiana, Chairman
    BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
    CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
    CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
    ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
    JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
    STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
    JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
    THOMAS M. DAVIS, Virginia            CAROLYN B. MALONEY, New York
    DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, Washington,
    MARK E. SOUDER, Indiana                  DC
    JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
    STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
    MARSHALL ``MARK'' SANFORD, South     DENNIS J. KUCINICH, Ohio
        Carolina                         ROD R. BLAGOJEVICH, Illinois
    BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
    DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
    ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
    LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
    JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
    GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
    DOUG OSE, California                             ------
    PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont
    HELEN CHENOWETH-HAGE, Idaho              (Independent)
    DAVID VITTER, Louisiana

                          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

                                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

     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
    minority 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:]

        [GRAPHIC] [TIFF OMITTED] T2912.870

        [GRAPHIC] [TIFF OMITTED] T2912.871

        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 2\1/2\ 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 2\1/2\ 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 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 2\1/2\ 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,

        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.
        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 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.
        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 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 high-level 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.
        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.
        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, requesting 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 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:]

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        [GRAPHIC] [TIFF OMITTED] T2912.005

        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 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:]

        [GRAPHIC] [TIFF OMITTED] T2912.006

        [GRAPHIC] [TIFF OMITTED] T2912.007

        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 3\1/2\ 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.
        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.
        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.
        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.
        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?
        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?
        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----
        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.
        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.
        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?
        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 Clinton-Gore 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.''
        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 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:]

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        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:]

        [GRAPHIC] [TIFF OMITTED] T2912.011

        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:]

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        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.
        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:]

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        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 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 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----
        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 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:]

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        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 tip-off. 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?
        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 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:]

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        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 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.
        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.
        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 testified 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:]

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        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:]

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        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:]

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        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 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:]

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        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.
        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 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 really 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.
        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.
        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.
        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 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.
        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.
        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 2\1/2\, 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 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.
        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 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 2\1/2\
    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 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.
        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 2\1/2\ 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 2\1/2\ 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.
        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 2\1/2\,
    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.
        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.
        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.
        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?
        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 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 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 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:]

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        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?
        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----
        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 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.
        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:]

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