[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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    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:]

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    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:]

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    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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