[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
__________
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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.
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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.
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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.
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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.
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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.]
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