[Senate Hearing 106-1072]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 106-1072




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION


                             JUNE 27, 2000


                          Serial No. J-106-93


         Printed for the use of the Committee on the Judiciary

75-237                     WASHINGTON : 2001

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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
             Manus Cooney, Chief Counsel and Staff Director
                 Bruce A. Cohen, Minority Chief Counsel

                            C O N T E N T S




Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    27
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont....     2
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     8
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................    15
Torricelli, Hon. Robert G., a U.S. Senator from the State of New 
  Jersey.........................................................    10


Reno, Hon. Janet, Attorney General, U.S. Department of Justice, 
  Washington, DC.................................................    16

                       SUBMISSIONS FOR THE RECORD

Reno, Hon. Janet, Attorney General, U.S. Department of Justice, 
  Washington, DC:
    Notification to the Court of Results of Preliminary 
      Investigation and Order authorizing disclosure, filed 
      December 2, 1997...........................................    33
    Notification to the Court of Results of Preliminary 
      Investigation and Order authorizing disclosure, filed 
      November 24, 1998..........................................    63
Parkinson, Larry, memorandum to Director Freeh, December 4, 1998.    95



                         TUESDAY, JUNE 27, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:06 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Orrin G. Hatch 
    Also present: Senators Specter, Leahy, Grassley, Thurmond, 
Feingold, Feinstein, Kyl, Torricelli, Schumer, Sessions, and 

                       THE STATE OF UTAH

    The Chairman. General, if you could raise your right hand. 
Do you solemnly swear to tell the truth, the whole truth, and 
nothing but the truth, so help you God?
    Attorney General Reno. I do.
    The Chairman. Thank you.
    I am pleased to convene this hearing of the Judiciary 
Committee to continue its oversight of the Department of 
    I will shortly turn to Senator Specter who has been tasked 
by the committee to head up this effort. I have to commend 
Senator Specter for his hard work and diligence in pursuing 
this oversight project, often in the face of resistance from 
the administration and the Justice Department, and I am glad to 
have been able to facilitate his efforts to obtain the 
documents and information necessary to complete the work of 
this committee.
    Finally, I would also like to welcome our Attorney General 
and thank her for her attendance here today.
    The campaign finance abuses of the 1996 Presidential 
election were a low watermark in our political history. Public 
confidence in our institutions and system of justice has been 
severely undermined. Vigorous and timely enforcement of our 
election laws would have gone a long way towards restoring the 
public's faith. Unfortunately, the Justice Department, through 
its many stops and starts, has failed to accomplish this goal, 
and we now find ourselves on the threshold of a new election 
with many old questions that remain unanswered.
    I have made no secret of my strongly held view that an 
independent counsel for campaign finance-related matters should 
have been appointed long ago. The committee was the first to 
formally request the appointment of an independent counsel to 
investigate these matters. The work of this committee revealed 
that many others inside the Justice Department felt exactly the 
same way. FBI Director Freeh, Charles La Bella, Robert Litt, 
and now the current head of the Campaign Task Force, Robert 
Conrad, have all called for an investigation of one aspect of 
this matter or another by someone outside the Justice 
    The reasons in my view are clear. When investigating 
allegations against the President and Vice President, the 
Attorney General is inherently conflicted, and any decision she 
may render in these matters will not inspire the public's 
confidence. This is particularly true of any decision not to 
    While I am sure we will hear much commentary today about 
the provisions of the now-expired independent counsel law, the 
Ethics in Government Act, the provisions of which the Attorney 
General in my opinion incorrectly argued, unduly restricted her 
decision-making process. Those provisions no longer exist.
    The appointment of an outside special counsel is now 
governed solely by Justice Department regulations, not a 
statute. The Attorney General possesses the authority to 
appoint an outside prosecutor under her own regulations when, 
as here, it is in the public interest.
    There are many legitimate questions concerning the process 
at the Department that resulted in the Attorney General's 
refusal to appoint an independent counsel for campaign finance 
and the merits of those decisions. The committee will pursue 
those during today's hearing. There is also, however, the 
ongoing question of whether the Attorney General will use her 
authority to appoint an outside counsel under Justice 
Department regulations. The Attorney General certainly has the 
ability to do so.
    I respect the Attorney General's desire to make these 
decisions free from outside pressure, from members of Congress, 
the media, and others. That is understandable. I also agree 
with her public comments that such a decision should be the 
result of a thorough and objective evaluation of the facts and 
the law. It seems to me, however, that the ``pressure'' to 
appoint an outside counsel is coming from inside the Justice 
Department, from people she has chosen at various times to 
advise her and to head the Campaign Finance Task Force. The 
Attorney General and the Justice Department have been examining 
these facts for 4 years now which would appear to be ample time 
to be thorough, and it is now time to make a decision and to be 
held accountable for it.
    With that, we will turn to Senator Leahy.

                           OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    Attorney General Reno, thank you for your cooperation and 
your agreement to be here today. As you probably know, this 
hearing will take on the air more of an inquisition than an 
oversight hearing, but I think you can handle that.
    Before the inquisition begins, I want to commend you for 
making a real difference in America. Especially, since this may 
be the last time that you will be appearing before 
thiscommittee in the role as Attorney General. You have helped stop the 
steady increase in the crime rate. You have worked aggressively with 
Federal, State, and local enforcement officers to keep violence and 
property crime rates down.
    Under your leadership and the programs established by the 
Violent Crime Control and Law Enforcement Act of 1994, the 
Nation's serious crime rate has declined for 8 straight years. 
Murder rates have fallen to their lowest level in three 
decades. Since 1994, violent crimes by juveniles and the 
juvenile arrest rate for serious crimes have also declined. 
According to the FBI's latest crime statistics, there has been 
a 7-percent decline in reported serious violence and property 
crime from 1998 totals. All of these, certainly in my adult 
life, I have never seen the crime rates come down as much as 
they have during the time you have been Attorney General, but 
you have not stopped on that. You have worked to keep our 
schools and streets safe, and I wish the Congress would 
cooperate with you more.
    In my longer statement, which I will put in the record, we 
find such things that we have not done, like the Juvenile 
Justice Conference stalled, frankly, by the gun lobby; hate 
crimes, Bulletproof Vest Partnership Act, Innocence Protection 
Act, domestic violence, and Justice Department nominations.
    Let's talk about the independent counsel appointments, your 
determination not to call for the appointment of an independent 
counsel in connection with campaign finance, but your 
determination to pursue those matters through a Justice 
Department task force. That is a task force that you can look 
to as one that has had a great deal of success. It has obtained 
more than 20 convictions and pleas, actually a lot better than 
what we saw with the Special Counsel, and I am thinking of 
Kenneth Starr who spent over $50 million--$55.0 million--had 
dozens, even hundreds of FBI agents available to him over the 
period of time that he existed.
    The bottom line on your independent counsel decisions in 
1998 and 1999, where you determined rather than using the 
Justice Department, but rather to use independent counsel, is 
that after 82 days of hearings--82 days of hearings--and 
investigation after investigation after investigation before a 
series of Senate and House committees, and all the critics and 
all those out to undermine your authority, no one has been able 
to question your integrity and your independence and your 
decisionmaking. Not FBI Director Freeh, not Charles La Bella, 
nor really anybody on this committee has said they believe you 
sacrificed your integrity and your independent judgment to some 
corrupt influence.
    I should also note that nobody, including the chairman of 
the Specter investigations, Senator Specter, has said that the 
Vice President has done anything wrong.
    Now, I know you are going to be asked about decisions to 
appoint and not to appoint independent counsel. One focus I 
have been told will be on informal comments poorly made in 1996 
by Mr. Radek, the chief of the Public Integrity Section, to FBI 
officials relating to whether he felt pressure because the 
Attorney General had not yet been reappointed to a second term.
    Mr. Radek, who met frequently with these officials, does 
not remember any such conversation on this topic, acknowledges 
that he may have felt pressure to do a good job. Mr. Radek has 
denied the claims of the FBI that the pressure he felt was in 
any way related to the Attorney General's job status.
    I understand that one focus of this hearing will be to 
explore this dispute further, and I simply do not understand 
how any of this, if it happened at all, bears on the Attorney 
General's independent counsel decision.
    Those of us who appeared before this committee have 
repeatedly attested to the integrity of Attorney General Janet 
Reno. Those who talked to us, who testified before us, have 
repeatedly assured all of us that all decisions made by her 
were on the basis of her honest assessment.
    Let me just tell you a couple of the things. Charles La 
Bella, just this last May, told the Judiciary Subcommittee on 
Administrative Oversight in the Courts, as part of this 
investigation, that his perception was that the Attorney 
General made no decisions to protect anyone. FBI Director Louis 
Freeh told the House Government Reform Committee, ``I do not 
believe for one moment that any of her decisions, but 
particularly her decisions in this matter, have been motivated 
by anything other than the facts and the law, which she is 
obligated to follow.'' Robert Litt, just last week, said, ``The 
Department's deliberations in this matter have now been made 
public. The thousands of pages of memoranda analyzing this 
issue, which have been released to the public, make it 
abundantly clear that all of the Attorney General's decisions 
were made solely on the merits after full and, indeed, 
exhaustive consideration that the facts show and legal issues 
involved and without any political influence at all.'' Larry 
Parkinson responded that he did not have any doubt about 
Attorney General Reno's integrity. This goes on and on and on.
    I have been concerned about some of the oversight here. I 
did when the committee precipitously sent staff to Texas, 
barring Senator Danforth to complain that we are interfering 
with his investigation. I have been concerned about sending 
subpoenas to line attorneys who now have to be asked questions 
over and over again whether they are simply raising the points 
in a hearing or in a decision, whether they are devil's-
advocating something, and will they ever do that again.
    I think this is wrong. I think we are seeing now what is 
happening when we have cases underway; for example, Wen Ho Lee, 
where the committee has now received a formal request from Mr. 
Lee's defense attorney for the Republican report in this matter 
and what has been generated by it.
    We have heard that sitting Federal judges on pending 
criminal matters had been questioned about what they are going 
to do by members of this committee.
    I am hoping that we are not going to make the same mistake 
we saw when we had Kenneth Starr and a runaway operation in the 
House of Representatives that did not show very well on the 
whole Congress.
    Mr. Chairman, I will put my whole statement in the record, 
but based on your decision to turn this from the full committee 
to the subcommittee, to the Specter investigation subcommittee, 
I will also then yield my place to the Senator from New Jersey, 
Mr. Torricelli.
    [The prepared statement of Senator Leahy follows:]

             Prepared Statement of Senator Patrick J. Leahy

    Attorney General Reno, thank you for your cooperation and your 
agreement to be here today. This session will more resemble an 
inquisition than an oversight hearing, but I expect that you are 
steeled for that eventuality. Before our Republican members begin the 
inquisition, I wanted to commend you for making a real difference in 
America, especially because this may be the last time you appear before 
this committee in your role as Attorney General. You have not only 
helped stop the steady increases in the crime rate but have worked 
aggressively with our Federal, State and local law enforcement officers 
to keep the violent and property crime rates in this country going 
    Under your leadership, and the programs established by the Violent 
Crime Control and Law enforcement Act of 1994, the nation's serious 
crime rate has declined for eight straight years. Murder rates have 
fallen to their lowest levels in three decades. Since 1994, violent 
crimes by juveniles and the juvenile arrest rates for serious crimes 
have also declined. According to the FBI's latest crime statistics, 
released on May 7, 2000, in just the last year, there has been a seven 
percent decline in reported serious violent and property crime from 
1998 totals. Both murder and robbery registered eight percent drops, 
while forcible rape and aggravated assault figures each declined by 
seven percent from 1998. All Americans owe you an enormous thanks for a 
job well done.
    Yet you have not simply rested on your laurels. I, for one, 
appreciate your tireless efforts to press for additional change to keep 
our schools and streets safe. This Congress has left much unfinished 
business that deserves and requires our attention.
    Juvenile Justice Conference.--Last year when you joined us for the 
oversight hearing of the Department we were all grieving for victims of 
school violence in Columbine. With your help, the Senate moved swiftly 
to pass the Hatch-Leahy juvenile crime bill with a strong bipartisan 
73-vote majority, a bill that included a number of common sense 
measures on gun safety and school safety. Unfortunately, despite our 
best efforts, your efforts and those of the President, the Republican 
majority will not convene the conference on that legislation to send a 
final bill to the President that can make a difference in the lives of 
Americans. If the roles were reversed and you were holding an oversight 
hearing on our performance, you certainly would have much to criticize.
    Hate Crimes.--Last year, you joined us just as the Committee was 
postponing hearings on hate crimes. Unfortunately, this Committee never 
considered that legislation. Still, last Tuesday a strong bipartisan 
majority of the Senate, indeed a 57-vote majority that included a 
bipartisan majority from the members of this Committee, adopted the 
Kennedy-Smith amendment incorporating the Local Law Enforcement 
Enhancement Act of 2000 into legislation before the Senate. Senate 
adoption of this hate crimes legislation is a significant step forward. 
We thank you for your support of that important effort.
    Bulletproof Vest Partnership Grant Act.--I hope the Republican zeal 
for investigating, instead of legislating, does not further delay the 
Committee's consideration of the bipartisan Bulletproof Vest 
Partnership Grant Act of 2000, which would reauthorize and double the 
funding for this highly successful Department of Justice grant program 
to provide our nation's law enforcement officers with life-saving body 
armor. The Department of Justice has already provided more than 90,000 
bulletproof vests to law enforcement officers across the country under 
the 1998 law sponsored by Senator Campbell and me. I appreciate the 
Attorney General's support for the original Campbell-Leahy law and our 
reauthorization legislation.
    Innocence Protection Act.--I thank you for your recent comments on 
the importance of ensuring competent counsel for those charged in cases 
that can lead to the imposition of the death penalty. I agree. That is 
why perhaps the most important provisions of he Leahy-Smith-LaHood-
Delahunt Innocence Protection Act are those seeking to assist the 
States in establishing standards for competent counsel and helping 
provide the resources needed to ensure a fair trial.
    Domestic Violence.--I also commend you for helping to stem the tide 
of domestic violence and for moving aggressively to help the victims of 
this abuse and to improve rights and services for crime victims in 
general. We are hopeful this week that the Committee, at long last, 
will report the reauthorization of the Violence Against Women Act. I 
would also like to see us report additional crime victims legislation 
without delay.
    Justice Department Nominations.--I regret that the majority of this 
Committee and the Senate have stalled the many nominations for senior 
positions at the Justice Department, within law enforcement, and for 
the federal courts. That Dan Marcus, Randy Moss, David Ogden, and Bill 
Lann Lee have not been confirmed as the Associate Attorney General, 
Assistant Attorney General for the Office of Legal Counsel, Assistant 
Attorney General for the Civil Division and Assistant Attorney General 
for the Civil Rights division is regrettable and inexcusable.
    Independent Counsel Appointments.--I wanted to make a few pertinent 
observations, about your determinations not to call for the appointment 
of an independent counsel in connection with campaign finance but to 
pursue those matters through a Justice Department Task Force that has 
obtained more than 20 convictions and pleas--more in fact than were 
obtained by Kenneth Starr with all the FBI agents and more than $50 
million at his disposal over a period of 5 years.
    The bottom line on your independent counsel decisions in 1998 and 
1999 is that after 82 days of hearings, and investigation after 
investigation before a series of Senate and House Committees and with 
leaks and critics and all those out to undermine your authority, no one 
has been able to question your integrity and your independence in your 
decision-making. Not FBI Director Freeh not Charles La Bella, not even 
Senator Specter has said that he believes that you sacrificed your 
integrity and your independent judgment to some corrupt influence. for 
that matter I should also note that Senator Specter has not said that 
the Vice President has done anything wrong.
    I understand that the Attorney General today will be asked about 
her decision to appoint and not to appoint independent counsels. One 
focus, I have been told, will be on informal comments purportedly made 
in 1996 by Mr. Radek, the Chief of the Public Integrity Section, to FBI 
officials relating to whether he felt ``pressure'' because the Attorney 
General had not yet been reappointed to a second term. Mr. Radek, who 
met frequently with these officials, does not remember any conversation 
on this topic andacknowledges that he may have mentioned feeling 
pressure to do a good job. Mr. Radek has denied the claims of the FBI 
that the pressure he felt was in any way related to the Attorney 
General's job status. I understand that one focus of this hearing will 
be to explore this dispute further and I simply do not understand how 
any of this, if it happened at all, bears on this Attorney General's 
independent counsel decisions.
    All of those who have appeared before this Committee have 
repeatedly attested to the integrity of Attorney General Janet Reno and 
have repeatedly assured all of us that all decisions made by her were 
on the basis of her honest assessment of the facts and not the result 
of politics. Everyone, including those people who disagreed with her on 
some of the independent counsel decisions, has told us this. Let me 
remind everyone of what we have heard:
    Charles La Bella: In his May 3, 1998, press release, Mr. La Bella 
said that ``At the end of the process, I was completely comfortable 
with [the Attorney General's] decision not to seek an independent 
counsel and with the process by which she reached that decision.''
    In August 1998, he told the House Government Reform Committee that 
the integrity and the independence of the Attorney General were 
``beyond reproach.''
    Just this May, Mr. La Bella told the Judiciary Subcommittee on 
Administrative Oversight and the Courts as part of this investigation 
that his perception was that the Attorney General ``made no decisions 
to protect anyone.''
    FBI Director Louis Freeh: In August 1998, Director Freeh told the 
House Government Reform Committee: ``I do not believe for one moment 
that any of her decisions, but particularly her decisions in this 
matter, have been motivated by anything other than the facts and the 
law which she is obligated to follow.''
    Robert Litt: Just last week, in his statement to the Subcommittee, 
Robert Litt said: ``The Department's deliberations in this matter have 
now been made public. The thousands of pages of memoranda analyzing 
this issue which have been released to the public make it abundantly 
clear that all of the Attorney General's decisions were made solely on 
the merits, after full--indeed exhaustive--consideration of the factual 
and legal issues involved and without any political influences at all.
    Larry Parkinson: In response to whether he had any doubt about 
Attorney General Reno's integrity, FBI General Counsel Larry Parkinson 
responded: ``No I do not,'' at the May 24, 2000 Subcommittee hearing on 
this issue.
    The endless oversight on the topic of independent counsels has 
confirmed over and over again that the process worked. Some may 
disagree with some of the ultimate decisions, but that should not be 
the focus of oversight. Rather, the object of oversight should be to 
make sure that the process worked; that decisions were made on the 
basis of facts; and that judgments were not influenced by politics. We 
know that the process worked and that the Attorney General's decisions 
were made in good faith, relying on good prosecutorial judgment and 
after full consideration of all the facts as well as of the conflicting 
opinions of many different advisors.
    In the guise of ``oversight,'' this Committee has inappropriately 
politicized ongoing investigations. There should be no mistake about 
it: I believe that oversight by the Committee can be of great 
importance. That oversight must be conducted in a careful and 
considered manner. I have expressed my concerns about this hydra-headed 
investigation on a number of occasions. I noted my concern whensome on 
the Committee precipitously sent staff to Texas, prompting Special 
Counsel Danforth to complain about this Committee's interference with 
his investigation into what happened at the Branch Davidian compound in 
    I do not believe that line attorneys and line agents should be 
called to testify in oversight matters unless there are some sort of 
exceptional circumstances--like internal corruption. I worry about the 
long-term effects that some of the actions taken in these 
investigations may have. This Senate Judiciary Committee now issues 
subpoenas on a regular basis to hard-working and dedicated government 
employees. This Committee has subpoenaed past and present line 
attorneys to talk about long-ago disagreements with supervisors--even 
though everyone recognizes that line attorneys are not the ultimate 
decision-makers. Members of the Committee have launched personalized 
attacks on the credentials, integrity, capability and credibility of 
experienced and dedicated prosecutors. I am extremely concerned that 
these tactics have harmed individuals, the Justice Department as an 
institution, and as a result the American people.
    The Committee has already heard from Wen Ho Lee's defense lawyers 
and we are now being drawn into that ongoing prosecution. I will not be 
surprised if other defense counsel, who have been monitoring Senator 
Specter's hearings, use those hearings as a basis for defense motions 
to undercut other prosecutions by the Campaign Finance Task Force of 
the Department of Justice. These are other risks of delving prematurely 
into ongoing criminal matters.
    I had been warning over the last several months that this Committee 
was crossing lines that it should not cross when it made subpoenaing of 
line attorneys and agents its practice and began interfering in ongoing 
criminal investigations. Last week and this represent the culmination 
of those errors as we now have a circumstance in which leaks and 
innuendo about an ongoing matter have led you to being called before 
this Committee to be quizzed incessantly over open investigative 
matters that you cannot appropriately discuss.
    I know that you will resist political pressure from any source, 
even this Committee, when it comes to your exercise of your 
prosecutorial judgment. You and I both recall that this Republican 
Senate has been trying to pressure you to appoint a special counsel 
since 1997. This Republican Senate has been telling you how to do your 
job and exercise your judgment, although it has not done a very good 
job of fulfilling its own legislative responsibilities to the American 
people. Sometimes I have wondered out loud whether it is because of 
their lack of an effective legislative agenda that this Republican 
Senate has chosen to investigate rather than legislate.
    I had thought that I had seen it all. That is, until last week, 
when a Member of this Committee held a press conference to discuss 
rumors about confidential matters that may or may not actually be 
occurring at the Department of Justice. This Member stated on national 
television that his information did not come by way of ``leaks'' and 
that it had properly been disclosed to him in the course of the 
``official'' oversight investigation. My request for a bipartisan 
briefing on this new supposedly ``official'' and non-leaked information 
has been summarily brushed aside. That is not how we operated when he 
conducted a successful bipartisan investigation into the events at Ruby 
Ridge. The partisan and political nature of these proceedings could not 
be more transparent.
    The American public should know of the political influence this 
Republican investigation is attempting to assert on PENDING matters at 
the Justice Department because it is shocking.
    Consider some of the things that have already occurred:
    --a Republican Member of this Committee questioned a sitting 
federal judge about a case (the Peter Lee case) in which the defendant 
has a motion to terminate his probation--the interrogation by this 
Republican Member could well be viewed as an improper attempt to 
influence the judge's upcoming decision on this motion;
    --Republican Members of this Committee have publicly urged 
prosecutors to take certain positions at the upcoming sentencing of a 
defendant Maria Hsia in one of the pending campaign finance cases. 
United States Senators should not be pressuring prosecutors to take 
certain positions--we rely on prosecutors to exercise their 
considerable judgment in these matters. Of course, in this instance, 
since attorneys to both parties to that case--the Justice Department 
and Ms. Hsia--were present at that hearing, I am confident that each 
will take whatever steps necessary to protect the rights of both 
    --Republican Members insisted on conducting ``oversight'' of the 
Wen Ho Lee matter even though they well knew an investigation was 
pending. Sure enough, this Committee has now received formal requests 
from Mr. Lee's defense attorney for the Republican report on the matter 
and for other documents generated during the course of this oversight. 
And this is just the beginning. It would not surprise me if we received 
more requests for information from Lee's attorney as that case 
    --Republican staffers were sent to Waco to interview witnesses even 
before Senator Dunforth had an opportunity to do so. This resulted in 
angry letters from Senator Danforth warning this Committee not to 
interfere in his investigation.
    We have seen it over and over again--attempts to influence pending 
matters because of politics. Republicans insinuate that the Attorney 
General's decisions on campaign finance matters were somehow influenced 
by politics--yet everyone, even those who disagreed, have repeatedly 
and forcefully attested to her independence, her integrity and her 
dedication to relying on the facts and the law and nothing else. It is 
Republican Senators, not Attorney General Reno, who are trying to make 
this political and insist on behaving as partisans. It was not too long 
ago that Kenneth Starr and the House Republicans foisted a partisan, 
expensive and debilitating impeachment on the Senate and the country. 
The repeated misuse of the investigative and hearing apparatus of 
congressional committees for political campaigning by other means is a 
troubling legacy of the Republican-led Congress that history will not 
forgive. It is all the more troubling when the political investigative 
and hearing machinery are injected into our justice system. It seems 
that some are intent on retreading that road for partisan political 
gain and have already forgotten the lessons of the last several years.

    The Chairman. We will now take the statements of the 
chairman of the subcommittee and the ranking member, Senator 
Specter and then Senator Torricelli, and then we will listen to 
the Attorney General.

                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    At the outset, let me observe that the Spanish Inquisition 
would really marvel at this proceeding today under these Klieg 
lights, out in the public, and a comment or two about Wen Ho 
Lee, where the subcommittee has recommended specific 
legislation which has been supported by the full committee, and 
to correct the misstatement about judges on pending matters, 
Judge Hatter was questioned about a closed matter, and the only 
judge at issue, but on to the subject matter at hand, I join in 
welcoming you here, Attorney General Reno.
    The focus of what the subcommittee has been doing involves 
espionage cases, campaign finance, and Waco. With respect to 
the issue of independent counsel, a good bit of our focus today 
will be about your decisions not to appoint independent 
counsel, and by way of setting the stage, with respect to your 
judgment not to have independent counsel as to the Vice 
    As to the distinction between hard money and soft money and 
whether the Vice President knew that he was soliciting hard 
money, the established record shows that four witnesses 
testified that hard money was discussed in the Vice President's 
presence at the famous November 21st meeting; that one of the 
witnesses, Leon Panetta even went so far as to point out that, 
``The purpose of the meeting was to make sure they knew what 
the hell was going on''; that included among those four 
witnesses was the Vice President's Chief of Staff David Strauss 
who had a written memorandum putting in writing the fact that 
there was a discussion about 35-percent hard money. Then there 
were the 13 memoranda from Harold Ickes which went to the Vice 
President marked ``hard money'' and the testimony of the Vice 
President's assistant that they very carefully culled the in-
box to leave out matters that the Vice President wanted 
excluded, but always left in the items with respect to what Mr. 
Ickes had sent, and then the Vice President's own statement 
that, the subject matter of the memorandums would have already 
been discussed in his and the President's presence. The Vice 
President further acknowledged that he, had been a candidate 
for 16 years and had a good understanding of the hard money.
    At this point, it is important to put in perspective that 
the independent counsel law then in effect did not call for a 
conclusion that the Vice President had committed the crime, but 
only that there was specific and credible information, not 
evidence, just information, that there may--and I emphasize the 
word ``may''--have been a violation of the Federal criminal 
    Then there is the question of the coffees, 103 of them, 
some $26 million contributed, over $7 million within one month 
of the donors' attendance. The Vice President was questioned 
about this matter on April 18. Question: ``In terms of a 
fundraising tool, what was the purpose of the coffee?'' Answer: 
``I don't know.'' Further down, page 53: ``With respect to 
raising the $108 million, did you have discussions with anybody 
concerning the roles that coffee would play in raising that 
type of money?'' Answer: ``Well, let me define the term 
`raising' if I could.'' Shades of what ``is'' is. At page 59, 
question: ``You had indicated earlier that you may have 
attended one coffee. What were you talking about?'' Answer, a 
little farther down, page 60: ``Although it was not my practice 
to go to any of these coffees, there may have been one--one 
that I attended briefly perhaps because some of the invitees 
were known to me.''
    Then the attorney for the Vice President submitted a letter 
on the subject, 2 days later, pointing out that according to 
the Vice President's schedule, he was designated to attend four 
White House coffees and the Vice President hosted approximately 
21 coffees in the Executive Office Building.
    Very briefly on the issue of the Buddhist Temple, to put 
the matter in perspective, shortly before the scheduled 
fundraiser, the Vice President's scheduler sent him an e-mail 
message asking whether he would be interested in adding another 
stop on the April 29 itinerary on top of the ``two fundraisers 
in San Jose and L.A.'' The Vice President responded: If we 
already have booked the fundraisers, then we have to decline.
    Again, Ickes' memos were specific to the President about a 
$250,000 take from a fundraiser, and a second one, a $325,000 
take from a fundraiser. It is in this context, Madam Attorney 
General Reno, that we raise the question about the lower level 
of sufficiency to establish with specific and credible 
information the level for calling for independent counsel.
    Again, as I said last Thursday, in fairness to the Vice 
President, it is a very different level of evidence than that 
required for a criminal prosecution or for an indictment.
    One of the issues in sharp focus today will be why on the 
first four times the Vice President was questioned, he was 
never asked about the Hsi Lai Buddhist Temple. It was only when 
the subcommittee issued subpoenas and had the La Bella and 
Freeh memoranda with a return date of April 20 that the 
Department of Justice finally got around toquestioning the Vice 
President on April 18.
    So this is a brief focus, in addition to the decision that 
you made not to appoint independent counsel, with President 
Clinton and the Vice President on the soft money coordination 
issue, and advice of counsel.
    One final comment. The Vice President's surrogates have 
raised an issue that my disclosure of what Mr. Conrad 
recommended was inappropriate. That disclosure was made in the 
course of the Committee's business, but before making that 
disclosure, we called in Robert Conrad and asked him the 
questions head on, and it was only when he failed to disclose 
them did the disclosure come from the subcommittee. That was 
done so that there could be public accountability.
    There was a substantial period of time between the La Bella 
recommendation and the Freeh recommendation, the Freeh 
recommendation in November of 1997 and the La Bella 
recommendation in July 1998, until we finally got the specifics 
on their memoranda on April 20 in the year 2000. I do not take 
lightly the comments of the Vice President's surrogates 
accusing me of McCarthy-like tactics and being in cahoots with 
the Bush campaign. I have not, and would not, discuss this 
matter with the Bush campaign. As to the reference of McCarthy-
like tactics, that is a matter which I will take up personally 
with the Vice President to see if it was authorized, and if so, 
I will take it up with him in some substantial detail.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Specter.
    We will turn to Senator Torricelli. Senator Thurmond has to 
leave. He says he has a very short statement, and we will grant 
him that time. Then we are going to go to the Attorney General.

                      STATE OF NEW JERSEY

    Senator Torricelli. Thank you, Mr. Chairman. Madam Attorney 
General, good afternoon.
    Madam Attorney General, I welcome you to the committee and 
thank you very much for your attendance today, hoping that at 
long last through your testimony and questions that we are 
about to ask, we can bring what has been a matter that has 
proceeded for literally years to some conclusion.
    I think, Madam Attorney General, it would be fair to say, 
as I begin my own statement, that not only do I hold no brief 
for the Attorney General, but indeed, I have on occasions not 
hesitated to criticize judgments of the Justice Department when 
I found reason to disagree with them.
    Indeed, in the matter of Wen Ho Lee and the prosecution of 
Peter Lee, I have expressed my concerns, joined with the 
Republican majority in their investigations, and never 
hesitated to reach a judgment on how I believe the matters 
should have been dealt with differently, but it is 
inconceivable to me that either the Justice Department 
generally or Janet Reno specifically could be criticized on 
questions with regard to either her independence, which raises 
issue of integrity, or her willingness to use the independent 
counsel statute. The facts simply do not support either.
    Indeed, the only area of criticism open to those who are 
raising issues with regard to the independent counsel statute 
is that on occasion they simply do not agree with the final 
judgment. No Attorney General could be less vulnerable to 
attack on issues of independence. No Attorney General could be 
less vulnerable to attack on issues of using the independent 
counsel statute or using outside counsel when otherwise 
generally necessary.
    On several different occasions, Janet Reno has appointed 
independent counsels to investigate the President of the United 
States, for whom I assume she has both affection and loyalty, 
and fellow members of the Cabinet. Not simply more than any 
other Attorney General in the history of the United States, but 
more than her predecessors combined, she has sat across a 
Cabinet table with colleagues and friends and appointed 
independent counsels, I assume, at some personal discomfort 
because it was the right thing to do and the facts justified 
    I do not even make this claim because I necessarily agree 
with all those instances in which she appointed an independent 
counsel. Indeed, I believe she has erred on the side of 
appointing them even when not always justifiable. At enormous 
cost in human terms and to the taxpayers, we have witnessed 
independent counsels being named against former Agriculture 
Secretary Mike Espy, who was prosecuted for accepting sports 
tickets, but who after 4 years and a $17 million investigation 
was acquitted on all 30 counts.
    Housing Secretary Cisneros charged with felonies related to 
his relationship with a woman, plead guilty to a misdemeanor 
after a multimillion-dollar investigation and paid a $10,000 
    The matter of Ken Starr, his judgment, his cost, his 
investigation speaks for itself.
    Yet, incredibly, incredulously, the Attorney General of the 
United States now faces this Congress with the allegation that 
she has hesitated to appoint an independent counsel on another 
matter. Her independence, her integrity and her willingness to 
examine her own administration are being brought into question.
    The issue now before the committee appears to be centered 
on whether when confronted with appointing an independent 
counsel under the statute previously or now under internal 
Justice Department guidelines there was unanimity on her 
judgment. Indeed, wouldn't it have been extraordinary if upon 
solicitingadvice from all of her assistants, in Public 
Integrity, the Criminal Division, her deputy, each of these people had 
reviewed all the facts, considered the law, and reached the same 
judgment? If there is one thing that characterizes the difference 
between Janet Reno's judgment in dealing with whether to appoint an 
independent counsel on the campaign-related issues with the Vice 
President and the seven other instances involving the President and 
members of the Cabinet, it is the breadth of advice that she sought, 
not simply from all of her own senior advisors, but from the director 
of the FBI and the leadership of the Campaign Finance Task Force.
    Some members seem to react with extraordinary surprise that 
there was a difference of judgment. The surprise, however, 
would have been if they were all of the same mind and all came 
to the same judgment, given the extensive number of people that 
were consulted, indeed the unprecedented number of people that 
were questioned.
    Among those consulted was, perhaps one of the more senior 
officials of the Justice Department, Mr. Radek, a professional 
of no particular partisan persuasion, 29 years with the 
Department of Justice, 20 of those years with the Public 
Integrity Section. Mr. Radek appeared before our committee. He 
concluded, and I quote, ``There was no substantive basis to 
proceed under the clause of the statute.'' He further shared 
with the committee not that it was his judgment nor that of a 
majority of his staff nor of an overwhelming majority of his 
staff, but that it was the unanimous judgment of career 
prosecutors in the Public Integrity Section that there was no 
basis for using the mandatory provisions of the independent 
counsel statute with regard to Vice President Gore. He further 
added to the committee that had there been an independent 
counsel and we proceeded under the mandatory provisions of the 
law, there was no evidence upon which to build a case with 
regard to Vice President Gore.
    During the course of the Attorney General's review of a 
preliminary inquiry of the facts, it must be assumed by those 
who think that a misjudgment was made by the Attorney General 
in not appointing an independent counsel that she made her 
judgment without a complete review of the law or the facts as 
they apply to the Vice President. The record is directly the 
    250 witnesses were interviewed, including the Vice 
President. Thousands of documents were obtained from the White 
House, the DNC, the Clinton-Gore campaign, and a variety of 
individuals who received telephone calls from the Vice 
President. It was on this basis that Mr. Radek and each and 
every one of the career prosecutors of the Justice Department 
advised the Attorney General that she should not proceed and, 
if she proceeded, there was no case to be made.
    It is worth noting that Mr. Radek is the single individual 
in the Department of Justice with the greatest experience in 
the application of the independent counsel statute, the most 
experienced in law enforcement, the most experienced with the 
statute, and the most experienced with campaign finance-related 
issues. Indeed, his combined staff has a multitude of years of 
experience compared to Mr. La Bella, Mr. Conrad, and Mr. Freeh 
on campaign-related issues and issues relating to the statute.
    Indeed, Mr. Radek testified before our committee that he 
believed that it was significant that his own staff had more 
experience specifically with the statute, and that the other 
individuals involved had little and in some cases none.
    Now the statute has expired. In its place the Attorney 
General has enacted regulations providing for an office of 
special counsel to handle those cases that once would have been 
referred to an independent counsel. It is worth noting that the 
Attorney General was not required to write these procedures, to 
establish special counsel provision within Justice, but she did 
so. It was the right thing to do, and now she has followed 
those procedures.
    The question then turns to the individual instances that 
are leading some to question the Attorney General's judgment 
with regard to independent counsels. Before briefly examining 
the three instances, I want simply to point out to my 
colleagues, that this is not the first time that I have been in 
this hearing room on these issues addressing these questions. 
As indeed three successive Campaign Finance Task Force heads 
have led inquiries, so too the Government Affairs Committee 
occupied months and thousands of hours of review of some of 
these same issues.
    Indeed, over the course of 3 years, the House and Senate 
expended $11 million, questioned hundreds of people, only to 
have their own efforts duplicated by the Justice Department and 
the FBI itself, the same issues, the same law, the same facts, 
only to be assumed to the same equation. It was not for lack of 
effort or desire or motivation that Mr. Thompson and the 
bipartisan members of this committee could find no substantive 
basis to find violations of the law by the President of the 
Vice President. We came to the same conclusion as Mr. Radek and 
professional prosecutors within the Justice Department.
    Let me turn to each of these three instances. First, the 
visit to the Buddhist Temple. It is alleged that the Vice 
President knew that he was attending a fundraiser at a 
charitable non-profit institution, the Buddhist Temple, where 
violations of the law occurred. The Government Affairs 
Committee examined this issue. No doubt, the Justice Department 
has done so again.
    We found the following. No tickets were sold. No campaign 
materials were displayed. No campaign table was set up for 
information, solicitation, or acceptance of money. The Vice 
President made no mention of fundraising in his speech, but 
spoke about religious tolerance and brotherhood.
    The committee was further persuaded that the only paper the 
Vice President actually received on that day in visiting the 
Buddhist Temple was his schedule. His schedule makes no mention 
of a fundraiser, solicitation of funds, people raising funds, 
commitment to the campaign or involvement in the campaign. The 
only paper before the Vice President of the United States was 
instructions that he was to extend brief remarks from the 
podium and exit, take photos with 150 guests, pay homage in the 
shrine. This is a fundraiser? This is leading the Vice 
President of the United States to solicit funds? $11 million 
later, Mr. Chairman, this is what our committee found.
    With respect to the White House coffees, according to the 
popular press it appears that the Campaign Finance Task Force 
was intrigued by the number of coffees that were held. The Vice 
President in answering their questions relied upon the belief 
that the question was as to coffees held in the White House. 
The Vice President seemed to have answered that question both 
honestly and accurately. Upon reflection, there are some who 
are now arguing that the question did not differentiate between 
coffees held in the Old Executive Office Building, of which 
there were a greater number, and those held at the White House. 
This is the nature of a Federal law enforcement inquiry? This 
question of whether or not we were distinguishing between the 
appropriate buildings of the White House complex and the 
numbers of coffees is the basis of a serious allegation of 
perjury? On what basis could it be argued that the Vice 
President was attempting to mislead someone.
    The Justice Department knew how many coffees were held. The 
popular press, the American people, and the Justice Department 
knew where they were held, the numbers that were held, and who 
was in attendance. The facts were not material, they were not 
new, and they misled no one, nor did the Vice President clearly 
have the intention to do so.
    The third issue at hand is the solicitation of hard, as 
opposed to soft, money. The allegation centers largely on a 
single meeting in which 15 people were in attendance. They have 
all been interviewed by committees of the Congress, by the 
Justice Department, and by the task force. There has been a 
great deal of attention paid to the fact that two people--two--
remember a mention of hard money. At a later date after 
reviewing documentation, a third raised the possibility. There 
were 15 people there.
    Apparently, if the President and the Vice President of the 
United States do not remember a discussion of hard money, they 
have good company because neither did 12 other people. The 
entire charge rests on the belief that the Vice President of 
the United States reads every memorandum that reaches his desk, 
every word that is ever said at a meeting, and nothing is ever 
to be forgotten. That somehow these two individuals have 
extraordinary credibility in their recall, but another 12 do 
not, including the President and the Vice President, and this 
is alleged to be an offense which would warrant the appointment 
of an independent counsel.
    Madam Attorney General, the best conclusion to be reached 
on how you have performed your responsibilities as Attorney 
General, the integrity with which you have come to your 
position, the independence with which you have weighed your 
judgment, is that somehow through all these years, you have 
managed to have everybody disagree with you on something, at 
some time, in some way. Good for you. That is the way Attorneys 
General should be.
    I am among those who have disagreed with you, but I cannot 
argue that you did not err on the side of independence, that 
you did not have the courage to look the President of the 
United States in the eye, and Cabinet member who I know you 
have great affection for, and have served with over the years, 
and questioned them when they were wrong and stood up for what 
needed to be done.
    It is, Mr. Chairman, though we will endure this hearing 
today, time to bring these long proceedings to a close.
    A New York Times editorial on Sunday may have actually put 
it in the best perspective. These issues now belong to the 
American people. Vice President Gore may have made some 
mistakes of judgment. I do not believe he made mistakes of law. 
I commend those questions now to the American voter. Vice 
President Gore, like all Americans, deserves to be judged by 
the totality of his record and his service. He has done some 
things he would like to change. He has done a great deal that 
is good.
    I hope, Mr. Chairman, after several years of reviewing the 
same questions and the same facts, which always seem to come to 
the same conclusion, this can finally come to an end. And I 
hope that somehow, despite all the doubts and thecynicism, we 
can have some confidence in professionals at the Justice Department who 
have reviewed this for so many years and seem to overwhelmingly agree 
with the Attorney General. Even those who disagreed with the Attorney 
Genearl on the facts and would have decided differently have said they 
respect those in the Department who saw it differently and do not 
question the Attorney General's independence or integrity. They believe 
that justice was done. If Mr. Freeh, Mr. La Bella, and Mr. Conrad can 
come to that judgment, so can we.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    Senator Thurmond has asked for just a short statement, and 
then we are going to turn to the Attorney General.

                       OF SOUTH CAROLINA

    Senator Thurmond. I have an urgent appointment, and I thank 
Senator Hatch for his kindness.
    Mr. Chairman, our Nation is built upon a system of laws 
that the Attorney General is duty bound to uphold. The issue of 
appointing an independent counsel to investigate the 1996 
Clinton-Gore campaign fundraising irregularities has tested our 
duty like nothing else, and thus far, Ms. Reno has failed to 
meet her obligations in this matter.
    This committee has been calling on the Attorney General to 
appoint an outside counsel for over 3 years. We are not alone. 
The Director of the FBI, a former judge, has repeatedly told 
her that she has no other choice, and her hand-picked career 
prosecutor, Mr. Charles La Bella, agreed. Even a top Justice 
Department official who has always been a strong defender of 
the administration, Mr. Robert Litt, recommended an independent 
counsel for the Vice President. It seems that about the only 
top advisor to the Attorney General who always felt otherwise 
was Mr. Lee Radek, who even admitted to the FBI back in 1996 
that his office was under pressure about recommending an 
independent counsel because the Attorney General's job might 
hang in the balance.
    We learned last week that the current chief of the campaign 
finance investigation, Mr. Robert Conrad, who is also a career 
prosecutor, apparently has concluded that a special counsel is 
needed. The Attorney General was reportedly angry about the 
disclosure of Mr. Conrad's recommendation and has opened an 
investigation. However she has no one to blame but herself. If 
she had appointed an independent counsel when she had a duty to 
do so under the statute, this matter would have been over a 
long time ago, and the Vice President may have been exonerated. 
In any event, as it stands, a dark cloud hangs over the Vice 
President. Yet, again, we have serious issues raised about the 
truthfulness of our top elected officials in the current 
administration when they are questioned under oath.
    The cloud will remain until this matter is properly and 
fully investigated by someone outside the Department of 
Justice. By avoiding the inevitable, it is the Attorney 
General, not unnamed sources in the Justice Department or this 
committee, who are doing a disservice to the Vice President. We 
must always work to maintain the people's confidence in the 
fairness and the impartiality of our system of justice.
    Today, the public has no confidence in the way the campaign 
finance investigation has been handled. The only way to remedy 
this and to restore public trust is to appoint a special 
    So I encourage the Attorney General yet again to appoint a 
special counsel, but I have no confidence that she will. If she 
would not do so when the plain words of the independent counsel 
law required it, it is wishful thinking to expect that she will 
exercise her discretion to appoint one now. But we must 
continue to encourage her to do what is right once and for all.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Thurmond.
    Madam Attorney General, welcome to the committee. We turn 
the time over to you.

                   OF JUSTICE, WASHINGTON, DC

    Attorney General Reno. Good afternoon, Mr. Chairman and 
members of the committee.
    Since my first hearing before you on March 9th, 1993, we 
have worked together in a bipartisan matters on many issues 
that affect the American people in very significant ways. I am 
very proud and very grateful for the opportunity to work with 
you, and I want to thank you all for the thoughtfulness and the 
kindness that you have shown me.
    Mr. Chairman, I understand that you sometimes think I am 
crazy when I tell you that I appreciate the oversight function, 
but I have before this committee because it brings new issues 
to our attention, and it sharpens our decision-making at the 
Department of Justice. I moan and groan as I get ready for 
them, but I always find them helpful.
    In the course of these oversight functions and committees, 
we have debated and disagreed, sometimes fiercely, on a number 
of issues, and today, obviously, is no exception, but I think 
our Founding Fathers valued the spirit of spirited debate and 
thought it one of the most important foundations of our 
    I am going to take just a moment to reflect on something. 
One of the most extraordinary experiences that I have had as 
Attorney General is to welcome my colleagues, Ministers of 
Justice, Ministers of the Interior, law enforcement officials 
from the emerging democracies to my conference room, to look at 
how they act almost with stars in their eyes as they are 
commenced on a great new undertaking. To see some of them fail 
and some of the succeed makes you realize how fragile democracy 
is and what a cherished institution it is and how we must not 
take it for granted.
    This scene is the epitome of democracy. It represents the 
hallmarks of it, representative government, public 
accountability, and the peaceful transfer of power. It is 
almost a miracle, but it is a great testament to the strength 
and the wonder of the human spirit.
    It is a miracle that we have a Constitution that had stood 
the test of time in the advance of technology that our Founding 
Fathers never dreamed would be possible, but at the heart of 
that document, essentially and required is the respect for 
individuals and the different opinions we hold. Although I may 
disagree with so many of you on so many occasions and agree 
with you completely on others, I respect you and I respect your 
    In this spirit, the Department has tried very hard to 
cooperate with and facilitate the oversight process, thus 
following the longstanding executive branch policy and practice 
of seeking to accommodate congressional requests for 
information to the fullest extent with the constitutional and 
statutory obligations of the executive branch.
    A Constitution also wisely assigns each branch of 
Government distinct and limited roles. Among the most important 
functions of the Justice Department as part of the executive 
branch is the faithful execution of the laws, including the 
vigorous but fair prosecution of criminals.
    When there is conflict between the legislative and 
executive branch, I want to--and I think our task as public 
servants is to find solutions that respects our individual 
duties and permits both branches to do their job responsibly.
    One issue will come out today, amongst many others, that I 
think I have got to address because I think it will require no 
comment on a number of occasions, and that is I do not think it 
proper for me to comment on pending investigations and pending 
prosecutions. I think those matters should be handled 
thoughtfully and professionally, not in headlines, but in 
courtrooms and in the processes of an investigation. I mean no 
disrespect whatsoever to the committee when I tell you that I 
cannot comment. I just feel very strongly that we must be 
careful in order to protect the investigation, protect leads, 
protect the reputation of people involved, lest information 
disseminated impede our careful and professional process that 
we pursue.
    I know that some of you have been concerned about the 
Department response, and if we have not done it as well as you 
would like, I will keep trying harder in the time I have 
remaining. There is always opportunity for improvement, but at 
the same time, people should be careful to reflect accurately 
on a situation.
    First, we are required by law to review material for 
privacy, grand jury secrecy, and other obligations. That takes 
    Second, we have competing demands from many Senators and 
Members of the House who each express a very strong sense of 
urgency about his or her own request, all at the same time.
    Third, the offices at the Department are poised to respond 
to these requests, but they operate under statutory caps on 
personnel and salaries, despite marked increases in requests on 
these offices by the various committees of Congress. In 
addition, the same people who are responding to the document 
requests and requests for information are also the people that 
are trying to move what you and I would consider to be the 
agenda of the American people alone.
    Fourth, and most importantly, the Department has in myview 
been very responsive. It has produced to this committee alone more than 
8,000 pages in May and June relating to the appointment of independent 
counsels. We have produced or given access to tens of thousands of 
documents on Peter Lee, Wen Ho Lee, Johnny Chung, John Huang, Charlie 
Trie, and Maria Hsia, among others, over 800 pages on the Loral waiver 
issue and over a half-a-million pages on Waco.
    Last, and importantly, we must be careful not to confuse 
our inability to provide you with certain material as being 
unresponsive. If I determine that a particular document's 
dissemination will interfere with an ongoing investigation of 
criminal prosecution and cannot provide that document to you at 
a particular time, this is not in my view being unresponsive. I 
am required by law to provide answers to you that you may not 
like, but I can assure each of you that much thought and 
reflection goes into a decision to say that I can't do this. 
This is not a matter I or anyone at the Department takes 
lightly, and it in no way indicates disrespect for the 
    Much comment has been made about how I do things and who I 
rely on. I urge you to read carefully the filings made with the 
court on the matters relating to the independent counsel, for 
these are the documents where I have laid out the thorough 
investigation of the facts at issue, the careful analysis of 
the law involved, and the consistent reasoned application of 
the law to the facts that has gone into each of these matters.
    This work is complex. It is fact-intensive. Sound bites and 
quick appraisals are not conducive to thorough analysis. 
People's reputation often rests on how we talk about important 
matters. I urge you to read carefully the documents submitted. 
I think that these documents may provide additional information 
that would be helpful.
    I value honest debate about all matters that come before 
me. I don't like ``yes people.'' Somebody said some of my 
decisions are unanimous. I don't think I have ever had a 
unanimous decision one way or the other. I think the mix has 
always been interesting. It is no secret by now that I rely on 
a wide variety of people, nor do I count up the votes on each 
side. I don't say the majority wins or I don't say this person 
wins. I make the best judgment I can.
    Under the independent counsel statute, when it existed, 
Congress placed on me the responsibility to make the judgment. 
I made the best judgment I could, and I will continue to try to 
do that.
    As I told you once, Mr. Chairman, I don't do things based 
on polls. I do things based on the evidence and the law.
    Senator Specter has commented on one of the particular 
cases, and has said that the standard for determining the 
appointment of a special counsel is that there be specific and 
credible information that a crime may have been committed. That 
is the standard that has been used not for the application of 
independent counsel, but for the triggering of a preliminary 
investigation which was done in the case to which he refers, 
and there is a provision for a preliminary investigation which 
is permitted and authorized by the Act. That was triggered. The 
preliminary investigation was conducted, but the bottom line at 
that point was in determining whether the application should be 
made was whether reasonable--it was necessary to have further 
investigation, and whether further investigation was reasonable 
and warranted.
    Thus, I think we look at each of the standards and try our 
best to make the best judgment we can, and I will look forward 
to that opportunity to talk with you today about it.
    I have said when I appeared before you last that the 
American people should be extraordinarily proud of the people 
in the Department of Justice. If you want to blame somebody, if 
you reach disagreement, blame me. Don't blame them. They work 
so hard for you. They try to give you the best advice they can.
    Director Freeh will disagree with me, but he has done so 
much for this country. There are people that you never hear 
about that do incredible jobs going over the law, getting the 
facts, agents, border patrol officers, just so many different 
people in so many different ways. The American people should be 
very proud of them, and you, since many of them have served 
through one administration after another, should be equally 
proud of them. I know that I am, and I appreciate the 
opportunity to be here today, Mr. Chairman.
    [The prepared statement of Attorney General Reno follows:]

                    Prepared Statement of Janet Reno

    Good afternoon, Mr. Chairman and Members of the Committee.
    Since my first hearing before the Committee on march 9, 
1993, we have worked together, in a bipartisan manner, on a 
number of important law enforcement initiatives. I am proud and 
grateful for the opportunity to work with you on so many 
matters important to the American people. I want to thank you 
for the thoughtfulness and kindness you have shown me over 
these years.
    We have debated and disagreed on a number of issues. Today, 
I expect, there will be disagreement about matters involving 
the now expired Independent Counsel statute and the 
Department's Campaign Financing investigation. But, the 
founding fathers valued spirited debate as much as anything. I 
have told you this before, Mr. Chairman, I appreciate 
Congressional oversight. It brings new issues to our attention 
and it sharpens our decisionmaking at the Department.
    Our democracy must be cherished--we cannot take it for 
granted--its hallmarks are representative government, public 
accountability, and the peaceful transfer of power. And it is a 
miracle or a testament to the American spirit that we govern 
ourselves according to a Constitution that has stood the test 
of time and the advance of technology. But at the heart of that 
document is respect for individuals and the different opinions 
we often hold. Although we may disagree, I respect you and your 
    In this spirit, the Department tries very hard to cooperate 
with and facilitate the oversight process, thus following the 
longstanding Executive Branch policy and practice of seeking to 
accommodate Congressional requests for information to the 
fullest extent consistent with the constitutional and statutory 
obligations of the Executive Branch. Attorney General William 
French Smith captured the essence of the accommodation process 
in a 1981 opinion: ``The accommodation required is not simply 
an exchange of concessions or a test of political strength. It 
is an obligation of each branch to make a principled effort to 
acknowledge, and if possible to meet, the legitimate needs of 
the other branch.'' [Opinion of the Attorney General for the 
President, Assertion of Executive Privilege in Response to a 
Congressional Subpoena, 5 Op. O.L.C. 27, 31 (1981).]
    The Constitution wisely assigns each branch of government a 
distinct and limited role. Among the most important functions 
of the Justice Department as a part of the Executive Branch is 
the faithful execution of the laws which includes the vigorous 
but fair prosecution of criminals. When there is conflict 
between the Legislative and Executive Branch--our task as 
public servants is to find solutions that respect our 
individual duties and permit both branches to do our jobs 
    One issue that will arise today is how we deal with open 
investigations. I cannot discuss most aspects of an ongoing 
investigation, lest information disseminated impede our careful 
and professional conduct of these important law enforcement 
    Another example of that accommodation is how we respond to 
your requests for documents about matters we are charged with 
investigating and prosecuting. The Department has to date 
produced hundreds of thousands of pages of documents responsive 
to your requests, and is continuing to produce materials. We 
have done so despite our deep concerns about the consequences 
of public release of much of this material. I know your 
Committee has been very sensitive to many of our concerns, 
particularly where the personal privacy of individuals is 
concerned, and I am grateful for that.
    During my time as Attorney General, Congressional oversight 
requests have implicated important Departmental institutional interests 
with respect to ongoing law enforcement and litigation matters, pre-
decisional deliberative documents on completed matters, and testimony 
or interviews from line attorneys. I have been particularly concerned 
about the oversight requests regarding ongoing law enforcement matters. 
Although Congress has a legitimate interest in determining how the 
Department enforces statutes, Congressional inquiries during the 
pendency of a matter pose an inherent threat to the integrity of the 
Department's enforcement functions. Such inquiries inescapably create 
the risk that the public and the courts will perceive undue political 
and Congressional influence over law enforcement decisions.
    I have also been concerned by the recent frequent efforts to breach 
our line attorney policy. The Department needs to ensure that its line 
attorneys can exercise the independent judgment essential to the 
integrity of law enforcement and litigation functions and to public 
confidence in those decisions. By questioning the Department's Senate-
confirmed leadership and if necessary, component supervisors, Congress 
can fulfill its oversight responsibilities without undermining the 
independence of line attorneys. I ask all of you to consider the 
demoralizing and chilling effect of the recent line attorney 
questioning on the dedicated career government employees who carry the 
major burden of our law enforcement efforts.
    I recognize that the Department's efforts to safeguard the 
Department's institutional interests have often led Congressional 
Committees to express great frustration and impatience in the course of 
their oversight inquiries. But our law enforcement responsibilities 
require that the leadership of the Department always have these 
interests in mind when we respond to oversight inquiries. I appreciate 
the Senate Judiciary Committee's willingness to work closely with us in 
the process whereby Committees and the Department seek a mutual 
accommodation of Committee oversight needs and Departmental 
institutional concerns. It is our experience that good faith 
negotiations during the accommodation process almost always result in 
an acceptable resolution.
    Mr. Chairman, you and other members of this Committee have asked to 
know why I've made the decisions I have in the past with respect to 
Independent Counsel decisions and the Campaign Finance Task Force. I 
urge you to read carefully the filings made with the Court on these 
matters--for these are the documents where I have laid out the thorough 
investigation of the facts at issue, the careful analysis of the law 
involved and the consistent, reasoned application of the law to the 
facts that has gone into each of these matters.
    So much of what you as Senators and I as Attorney General are 
called to work on is complex and fact intensive. Sound bites and quick 
appraisals are not conducive to thorough analysis. People's reputations 
often rest on how we talk about important matters. I urge you to read 
carefully the documents submitted in the past. I think that the 
complete documents explaining why we made our decisions will be most 
useful to you.
    I want to explain to you today--as best I can--how I approach these 
    I value honest debate about all matters that come before me--
whether they are Independent Counsel decisions or matters of less or 
more significance. It is no secret by now that I have no particular use 
for ``yes people.'' Nor do I count up the votes on each side of an 
issue and go with the majority. Mine is a deliberative process in which 
I consider not the number of people who hold a particular viewpoint or 
what the polls say, but the reasons behind the recommendations brought 
to me.
    I rely on the good work of attorneys and investigators at the 
Department, including the work of the task Force, past and present. 
These prosecutors and investigators assumed adifficult task under 
intense pressure and the intense glare of constant scrutiny from the 
media and the Congress. To date they have responsibility for more than 
120 investigations, convicted 20 individuals and one corporation; and 
more trials are pending. Their work and the cases they have brought 
have illuminated the difficulties that our inadequate campaign 
financing laws place on those who seek to address abuses of our 
election system. They have my great respect, admiration and gratitude, 
and deserve the appreciation of the nation for a job well done.
    This group of dedicated career employees serve as one good example 
of the 124,000 employees of the Department of Justice, hard working men 
and women who serve the American people here and around the world every 
day. They uphold our liberties. They prosecute crime--from street 
crimes to sophisticated white collar schemes. They catch spies, 
cybercriminals, drug lords and terrorists. They stand guard at our 
borders. All around the country, the Justice Department and its law 
enforcement components are full partners with police, mayors and 
neighborhoods in preventing crime wherever possible and in the 24-7 
world of protecting the public. As a nation, we are grateful for their 
dedication and hard work.
    In the end, I am responsible for decisions of the Department, 
including those concerning Independent Counsels. Congress ensured this 
when it drafted the Independent Counsel Act and it ensured my further 
and increased responsibility and accountability in this area when you 
allowed that statute to lapse and to let regulations put in place by 
the Department govern the appointment of Special Counsels by the 
Attorney General.
    I make my decisions on the facts as I see them, the significance of 
the evidence as I weigh it, and the law as I interpret it. I do not 
come to these decisions lightly nor in a vacuum.
    Much has been made of the fact that several people have advised me 
at various times to seek the appointment of an Independent Counsel when 
I ultimately decided not to do so. This should come as no surprise to 
anyone. In each and every instance--whether I sought the appointment of 
an Independent Counsel or not--there were always people of the opposite 
view who weighed in thoughtfully and vigorously. I say not boastfully 
but somberly, I have not been shy about appointing Independent Counsels 
when the facts and the law required it. Not a single one of these 
decisions was the product of an internal poll.
    It has been said that I ignored those who advised me to seek the 
appointment of an Independent Counsel on the theory that a ``loose 
enterprise'' may have been at work despite the lack of specific and 
credible information that a crime may have been committed to justify 
the appointment of an Independent Counsel. Following that theory 
loosely would have been inappropriate. There is a grave danger in not 
adhering to the law's requirement for facts as opposed to rumor, 
innuendo and speculation. Public officials are not above the law--but 
they must not be below the law either.
    I know you will want to discuss this afternoon several decisions I 
made under the now defunct Independent Counsel Act.
    However difficult and controversial those decisions were and remain 
today, my decisions under the Act were always--I repeat, always--based 
on the facts as I understood them and the law as I interpreted it.
    I have said before--but it is certainly no less true today--I make 
the best decisions I can with the information I have at the time. I 
base my decisions on the facts and the law. I stand by these decisions 
and the work of the dedicated lawyers in the Department of Justice--
whose opinions I value all the more because they are presented to me 
without fear or favor.
    In closing, let me say that while the decisions are mine, the 
appropriate exercise we are going through is about justice and the 
Department of Justice--the Department of Justice as an institution that 
will endure from Administration to Administration through the hard, 
courageous, and yes, sometimes contentious, work of its dedicated, 
career employees.
    In my confirmation hearing some seven plus years ago now, I told 
you that I wanted to work with the dedicated men and women at the 
Department of Justice to establish as hallmarks of that Department, 
excellence, integrity and professionalism. I look back and say, without 
ego but with pride, we at the Department have done that. You in the 
Senate know as well as I, that in the profession of law disagreement is 
a critical aspect of professionalism; it ensures rigorous analysis and 
critical thinking on so many important issues.
    I am proud of the work that we do at the Department of Justice. And 
I believe that while we disagree sometimes, on this you and I can 
agree, that there is a exemplary amount of excellence, professionalism 
and integrity at the Department of Justice.
    Thank you, Mr. Chairman and Members of the Committee. I am happy to 
respond to your questions.

    The Chairman. Well, thank you, Madam Attorney General.
    I will defer to Senator Specter who I believe is going to 
have 5-minute rounds.
    Thank you, Madam Attorney General. I appreciate your 
appearing. I appreciate you being here.
    Attorney General Reno. Thank you, Mr. Chairman.
    Senator Specter [presiding]. Attorney General Reno, I begin 
with a memorandum which has been the subject of considerable 
discussion, and that was from FBI Director Freeh to Mr. 
Esposito dated December 9, 1996. I will read the pertinent 
part. ``I also advise the Attorney General of Lee Radek's 
comment to you that there was a lot of `pressure' on him and on 
PIS, the Public Integrity Section, regarding this case because 
`the Attorney General's job might hang in the balance' (or 
words to that effect).'' I stated those comments would be 
enough for me to take him and the Criminal Division off the 
case completely.
    Did Director Freeh say that to you, Attorney General Reno?
    Attorney General Reno. I don't have any recollection of it, 
Senator. What I have in terms of a recollection of the things 
that he covers in the whole memo is his reference at a time and 
place different than he suggests that this meeting took place 
in which he talked about the need for a junkyard dog prosecutor 
and that he was anxious to have the matter referred to the FBI, 
but I am sure he thinks he said it in those words or in so many 
other words, but I don't remember it, sir.
    Senator Specter. Well, in this memo, he talks about the 
junkyard dog concept, but I come back to this point, Attorney 
General Reno, because it is a very unusual point to refer to 
one of your top deputies, Mr. Radek, talking about pressure on 
him and on his unit, with the Attorney General's job might hang 
in the balance. If in fact that was said, isn't that something 
of sufficient importance that you would remember?
    Attorney General Reno. Yes, I think so, sir, but I think 
Director Freeh--I feel very strongly that he thinks he said it. 
I don't know how he said it or the circumstances that occurred 
at that moment, but I have no memory of it, and clearly, if I 
had had any memory of it, I would have gone back to Lee Radek 
and said, ``What is this all about?''
    Senator Specter. But you think that if it had been said, 
you would remember it?
    Attorney General Reno. I think if I had understood it, I 
would have remembered it. I think he said it, or thinks that he 
said it, in that or so many other words, and it's the so many 
other words and so many other words that is the puzzle to me of 
what I might have confused. I note that Neil Gallagher said 
that there was pressure to do a good job because it was going 
to be a critical and sensitive investigation.
    Senator Specter. Neil Gallagher and Mr. Esposito confirmed 
that Mr. Radek did say that.
    Attorney General Reno. I understand that, and that is 
    Senator Specter. Of course, they were not present.
    Attorney General Reno. That was what was confusing to me 
that they talk about the pressure to do a good job. I don't 
know how Director Freeh said it, but I did not understand it.
    Senator Specter. Let me move to another subject because the 
time is very short.
    I quote very briefly from your testimony on confirmation 
about the need for independent counsel where you said, ``It is 
absolutely essential for the public to have confidence in the 
system, and you cannot do that when there is a conflict or an 
appearance of conflict in the person who in effect is the chief 
prosecutor. The credibility and public confidence engendered 
with the fact that an independent and impartial outsider has 
examined the evidence and concluded that prosecution is not 
warranted serves to clear a public official's name in a way 
that no Justice Department investigation ever could.''
    Now, I have recited key facts as to the Vice President, and 
there have been references made to Cisneros and Espy. I turn 
now to Alexis Herman where you appointed the independent 
counsel, but in your submission said, ``While I cannot 
conclusively determine at this time that any of these 
allegations are credible, much of the detail of the story he 
has told has been corroborated, though none of it clearly 
inculpates Herman. Although our investigation has developed no 
evidence clearly demonstrating Secretary Herman's involvement 
in these matters and substantial evidence suggesting that she 
may not have been involved, a great deal of Yahni's story has 
been corroborated. We are, thus, unable to conclude that it is 
not credible.''
    Now, it is true that asking for independent counsel means 
that you have to make a determination.
    A red light went on. I will finish within 30 seconds.
    You must make a determination that there are reasonable 
grounds to believe that further investigation is warranted. We 
are not saying that the Vice President committed perjury, as 
Senator Torricelli has raised the question, but only of 
sufficient evidence to go further. In light of what is on the 
record to the Vice President, how can you order independent 
counsel for Alexis Herman, but not for Vice President Gore?
    Attorney General Reno. First of all, I did not order an 
independent counsel. I don't have that power. The court----
    Senator Specter. Recommended it.
    Attorney General Reno. I apply to the court, and the court 
    In that instance, I have got to trigger a preliminary 
investigation, if I can, on two accounts: one, if I have 
specific and credible information that a crime may have been 
committed; or, two, if I cannot show that the information was 
either specific and credible or that I can disprove it. So that 
is what precipitated the triggering of the preliminary 
investigation in Secretary Herman's case.
    In the course of the investigation, I could not disprove or 
I could not prove that he was not credible, and, thus, felt 
that the further investigation was necessary because I, under 
the Independent Counsel Act while conducting a preliminary 
investigation, did not have the tools to get to the answer that 
was--such as a grand juryproceeding, subpoenas, or immunity 
    In the instance of the Vice President, you have spoken of 
poor people who remembered. Mr. Strauss did not remember. When 
shown his notes, he said that must have been the case, but he 
had no memory. We interviewed 15 people, two of whom remembered 
the discussion. The wide variety of--and everybody gave 
information. Nobody seemed to withhold information. And we 
could not, as we spell out in the submission to the court, 
which has been a matter of public record, which is a very 
careful report on just what we did. As noted above, in order to 
prove a violation of Section 1001 in this case, the Government 
would have to prove beyond a reasonable doubt that at the time 
he made the telephone calls that were at issue in the '97 
investigation, the Vice President actually knew that the media 
campaign had a hard money component or that the limit on hard 
money was $20,000. In this case, there is no direct evidence of 
such knowledge. While the Vice President was present at the 
meeting, there is no evidence that he heard the statements or 
understood their implications so as to suggest the falsity of 
his statements 2 years later that he believed the media fund 
was entirely soft money, nor does anyone recall the Vice 
President asking any questions or making any comments at the 
meeting about the media fund, much less questions or comments 
indicating an understanding of the issues of the blend of hard 
and soft money needed for DNC media expenditures.
    Witnesses were also asked whether they recalled any other 
discussion with the Vice President about the hard money 
component of the media fund. None recalled any, nor did any 
recall the Vice President saying or doing anything at any other 
time that would indicate that indeed he knew, whether from the 
meeting or some other source, that there was a hard money 
component to the media fund.
    I would ask each of you, I would ask everybody listening, 
if you had a meeting--if you had a meeting 2 years before of 
this committee and somebody raised a subject and you did not 
hear it or do not remember it, can you be expected to remember 
everything you hear at every meeting you go to? And what we 
concluded in this instance was that the range of impressions 
and vague misunderstandings among all the meeting attendees is 
striking and undercuts any reasonable inference that a mere 
attendance at the meeting should have served to communicate to 
the Vice President an accurate understanding of the facts.
    We concluded that there was under the law, as the statute 
spells it out--the statute provides that I shall apply to the 
division of the court for the appointment of an independent 
counsel if, upon completion of the preliminary investigation, I 
determine that there are reasonable grounds to believe that 
further investigation is warranted. I concluded that there was 
    Let me make sure that--15 attendees were interviewed. The 
President submitted a statement, and one other attendee has 
testified about the meeting under oath saying he had no memory 
of it.
    Senator Specter. Thank you.
    Senator Leahy.
    Senator Torricelli.
    Senator Torricelli. Thank you, Mr. Chairman.
    Madam Attorney General, in reaching judgments about the 
application of the Independent Counsel Act, it was your 
practice to consult with a wide range of senior officials in 
the Justice Department?
    Attorney General Reno. That's correct, Senator.
    Senator Torricelli. And was this a standard list, or did it 
change on occasion?
    Attorney General Reno. It changed, depending on the 
circumstances, and as people came and left the Department.
    Senator Torricelli. Mr. Esposito of the FBI testified that 
actually in this instance he believed that, to your credit, you 
consulted with a larger group of people, that the FBI had not 
always been consulted in the past and asked for their advice on 
independent counsel, but in this instance, given the 
seriousness of the matter, you seemed to expand the list to get 
a wider range of opinions.
    Attorney General Reno. I included the FBI in my weekly 
meetings, asking them on each occasion--sometimes the meetings 
weren't weekly, but they were on the average of about once a 
week--asking if there was anything else that I should know or 
argue, did they want to argue with me, did they want to 
disagree with me. I tried to be as open and as accessible as I 
    Senator Torricelli. In the seven other instances when you 
named an independent counsel, were all of these senior 
officials in the Justice Department always of a single mind and 
did they have a single perspective on whether the appointment 
should be made and on how the Department should proceed, or was 
it common to have occasionally someone disagree?
    Attorney General Reno. I think I made the statement earlier 
that they were not all unanimous, but I think there were--I 
would have to go back and look at it, and I am not sure that 
there were any that were unanimous, but----
    Senator Torricelli. So it might be unreasonable that this 
Congress--this committee is questioning the judgment you made 
because there was not a unanimous consensus among your advisors 
with regard to a campaign to finance independent counsel, but 
in fact it was not unusual in the Department for people in 
other instances,which have received no attention, upon which we 
have had no hearings, your judgment has not been questions--it was not 
unusual there for there to be disagreements.
    Attorney General Reno. And if you look at the Supreme Court 
of the United States, 5-4 decisions are often commonplace.
    Senator Torricelli. In proceeding with the preliminary 
investigation of the Vice President in 1997 and 1998, the FBI 
and the Department of Justice interviewed approximately 250 
witnesses, including the Vice President, former members of the 
staff, DNC officials, White House officials, reviewed phone 
records, interviewed the Vice President personally. In reaching 
this preliminary inquiry, was this equally exhaustive of the 
process you went through in other preliminary investigations? 
It would appear to me that, indeed, you went to some 
extraordinary lengths that might seem beyond other instances. 
How would you compare the amount of investigatory work that 
went into this preliminary inquiry with others that were 
    Attorney General Reno. I tried to be as thorough and as 
complete as I could each time I asked the court for the 
appointment of an independent counsel or I notified the court 
that there was no basis for concluding that a further 
investigation was warranted. So I don't think it was 
exceptional. We just tried to be thorough in all the instances, 
    Senator Torricelli. Let me read for you the memoranda, the 
views of a couple of people, on the central question that 
Senator Specter raised about whether or not you were under 
political pressure or some other influence in not naming an 
independent counsel.
    Mr. La Bella in his memorandum writes of discussions with 
Director Freeh. He repeatedly had assured us and the Congress 
that while there had been disagreements from time to time over 
investigative strategy, the investigation had not been impeded 
or blocked in any way. Mr. La Bella then writes of the task 
force generally, and Mr. La Bella personally and repeatedly 
told us that no investigative steps were closed to them, that 
they were free to follow any leads, and that if their efforts 
developed specific and credible information that any covered 
person may have violated the law, the Attorney General would 
trigger the Act.
    Now, it is being alleged by this committee that there was 
pressure involved or a compromise of judgment, and cited are 
Mr. La Bella and Mr. Freeh as principal witnesses. I have just 
read you two statements quoting Mr. La Bella and Mr. Freeh 
making very clear there was no inappropriate pressure, no other 
judgments, indeed they tesfify to your own independence of 
    Are these statements consistent with what Mr. La Bella and 
Mr. Freeh told you personally, that while they may have 
disagreed with your decision, they have never questioned your 
independence in doing so?
    Attorney General Reno. Mr. La Bella sent me a letter that I 
will treasure that sets forth his feelings, and one of the 
things that I prize most from these 7 years is something that 
was given to me by the FBI. It is an Honorary Special Agent 
badge, and it is something that I treasure. It could not have 
been given, I think, without Director Freeh's approval. He 
presented it to me, and he presented it to me after we have had 
our disagreements, but there is something----
    Senator Torricelli. Madam Attorney General, you should know 
that people may have the impression that those who disagreed 
with you on the independent counsel statute, not only including 
Mr. Freeh and Mr. La Bella, but indeed the line attorney, Mr. 
Mansfield and others, that because they disagreed with you, 
they may believe that you had reached the wrong judgment or 
that it was not a fair judgment or that the facts only 
supported a contrary judgment.
    In many of our hearings, there have been few of us present, 
other than the members of the committee itself. So those of us 
who are joining for the first time today should know this. Not 
one of them, not one individual who disagreed with you on the 
appointment of the independent counsel, hesitated to say to 
this committee that based on the facts and the law, a 
reasonable person would not have reached the same judgment that 
you reached.
    Finally, if I could, Mr. Chairman--I know the time has 
expired, and I will then conclude.
    Senator Specter. Senator Torricelli, we are going to come 
back for another round. I do not mind your asking another 
question, but I do not want to establish the precedent that we 
are going to go to 10-minute rounds here. So I would ask you to 
wait for the next round.
    Senator Torricelli. Fine, Mr. Chairman.
    The Chairman. Senator Grassley.

                         STATE OF IOWA

    Senator Grassley. Mr. Chairman, I am going to use my time 
for a statement that the Attorney General can respond to or not 
respond to, as she likes, during my time on the first round. 
And then I have some questions I will ask on the second round.
    During the course of the Justice Department oversight 
investigation, my judgment has been that the Justice Department 
gets mixed reviews. I do not believe the Department deserves 
the criticism it got for the Wen Ho Lee case. The FISA issue 
was a close call and other agencies were more responsible for 
the shortcomings of that case. And that is especially true of 
the FBI and the Energy Department.
    In the Peter Lee case, I believe that was also a close 
call, and the Navy did a lot to undermine that case. Yes, there 
was a communication lapse in that case at the Department of 
Justice, but there was sensitive information involved in that 
case, the protection of which goes a long way to explaining 
decisions made in that case.
    So that brings us now to the present subject, the campaign 
fundraising case. Of all of the cases that we have looked at, 
this is the one which I believe criticism of the Attorney 
General's position is warranted. We now know that a second 
attorney, handpicked by the Attorney General to look into the 
matter, has recommended an outside counsel to investigate the 
Vice President. The director of the FBI recommended the same, 
so did the former principal associate deputy AG, Robert Litt.
    It seems the Attorney General's judgment to deny the 
appointment of an outside counsel was based mainly on the 
arguments of Lee Radek, chief of the Public Integrity Section. 
Mr. Radek's section has a reputation. The reputation of that 
office is that it is a big black hole. Mr. Radek is called 
``Dr. No'' by the investigative community because he declines 
their cases almost automatically. If you are seeking a legal 
opinion to not do something, just go to Public Integrity. They 
are a factory with a fast-moving assembly line of negative 
arguments for prosecution.
    I noted at our last hearing that Mr. Radek and the Attorney 
General changed their legal arguments in midstream about the 
hard money versus the soft-money issue. First, the argument was 
that there were no illegalities. Then when the FEC report came 
out in August 1998 saying there were illegalities, their 
argument conveniently switched to an advice of counsel 
argument; in other words, a new argument was needed, so they 
went to Dr. No for an argument off his assembly line.
    You may remember, Mr. Chairman, when Mr. Radek testified in 
May, we raised a lot of these issues, and they were written 
about in the newspaper the next day. Later that week in May, 
the Inspectors General had their monthly meeting, and the issue 
was raised there. There was a prominent U.S. attorney present 
in the room who offered up their offices as an alternative to 
Public Integrity. Some of the Inspectors General vowed to take 
up the offer and some vowed never to deal with the Public 
Integrity Section again.
    The same concerns about Public Integrity are shared with 
the U.S. attorney community. I raise this issue to make a 
point. I cannot believe that the Attorney General and those 
around her did not know about Public Integrity's reputation and 
its practices. If I were aware of that reputation, and at the 
same time getting conflicting arguments from the FBI director, 
your handpicked attorney of the case, and the principal 
associate deputy attorney general, I would have thought twice 
about taking Mr. Radek's advice.
    Mr. Chairman, I do commend the Attorney General for an 
important point, and that is her appearance here. She is here 
to be accountable, as she always has in these oversight cases. 
I am sorry to say that the same cannot be said about the FBI 
director. He has chosen not to come, despite the best efforts 
of Senator Specter. This committee too often gives the director 
a pass when he most needs to give an accounting of his input 
into this decision-making process. We know from documents we 
have read that he was most emphatic about the need for an 
independent counsel, and without his appearance there is a 
colossal void in the context of this hearing and the public's 
    I thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Grassley.
    Senator Leahy.
    Attorney General Reno. Could I----
    The Chairman. Yes, of course, you may respond, Attorney 
General Reno.
    Attorney General Reno. Thank you for those comments, and I 
appreciate it because, Senator Grassley, from the time I first 
came to make my first courtesy call on you, and you talked to 
me about Qui Tam, you have always been vigorous and 
constructive in your discussions, and I appreciate it very 
    One thing I emphatically disagree with you about, and that 
is Lee Radek. Would that there were more people like Lee Radek 
in this world. He calls it like he sees it. He has pursued 
corruption, where U.S. attorneys recuse themselves. He never 
gets flustered. He tells me exactly what he thinks. I do not 
always agree with him. But that man is an extraordinary public 
servant, and he has taken more slings and arrows than anybody 
deserves, and he is just an extraordinary man. I wish, with all 
of my heart, Senator, because I think you would appreciate it, 
that you could sit in the conference room and watch some of 
these discussions and understand what goes into it. But he is a 
very special person and a very distinguished public servant.
    With respect to us changing our minds, let me tell you 
precisely the process because it was not a matter of mind 
changing. Under the Federal Election Campaign Act, for me to 
prove a case of violation of the act, I must show that it was 
willful and knowing. The previous administrations had entered 
into a Memorandum of Understanding with the Federal Elections 
Commission. Because the standards, particularly with respect to 
what was an electioneering message which went to the issues 
advertising, because the Commission,which is responsible under 
437 for construing and developing the policy with respect to the 
Campaign Act, had never developed standards, the issue was we cannot 
show that it was knowing and willful because we do not know what the 
standards were.
    We knew the Federal Elections Commission was pursuing the 
issues that had been raised by Common Cause. And when the 
Federal Elections Commission, we said if they refer it back to 
us, we will trigger the Independent Counsel Act if they think 
there was a willful and knowing violation.
    Now, the Commission did not act, but the Audit Division 
acted and concluded that both the Democratic and the Republican 
candidates, that the issue ads had violated the Campaign Act. 
At that point, I triggered it. It was not a change of mind or a 
change of argument.
    I went then through a preliminary investigation, as the 
Independent Counsel Act provides for, and we very carefully 
reviewed it. The defense was what did the lawyers say? And the 
finding that we spell out here is very detailed, shows the 
great lengths we went to. It is 31 pages. It goes into great 
detail as to how we went through the process. And if somebody 
relies, in good faith, on advice of counsel, I cannot show, and 
no reasonable investigation could further show that that advice 
and reliance was not warranted. So that is where we ended up. 
It was not a change of mind. It was trying to use the MOU that 
had existed from one administration to another and the 
investigation to take us to where we are at.
    The Chairman. Senator Leahy.
    Senator Leahy. Mr. Chairman, you know we speak about 
pressure and who is pressuring who. But in this committee, we 
have had a member of this committee question a sitting Federal 
judge about a case, the Peter Lee case, in which the defendant 
has a motion to terminate his probation.
    We publicly urged prosecutors to take certain positions at 
the upcoming sentencing of Defendant Maria Hsia, even though 
prosecutors are supposed to be independent. The only 
interesting thing about that, in that hearing, we had attorneys 
for both Maria Hsia and the Justice Department here, so they 
probably both use that public pressure however they want.
    We wanted to conduct oversight of the Wen Ho Lee matter, 
even though an investigation was pending. And now we find that 
Wen Ho Lee's attorney is asking for our internal documents on 
    Probably the only reason we are not down at the trial in 
Waco is that, after Republican staffers were sent to Waco to 
interview witnesses even before Senator Danforth had an 
opportunity to do so, he angrily told us to butt out.
    So let me ask you a couple of direct questions on pressure. 
Did you ever put pressure on Mr. Radek or anyone else to come 
out any particular way on any particular matter?
    Attorney General Reno. The only thing I ever did to Mr. 
Radek, I think, was to tell him that I wanted to make sure that 
campaign financing cases that were in the U.S. Attorney's 
Offices were brought to Washington so that we could review them 
to make sure that we were consistent in our approaches. And he 
objected, and I said I thought we should.
    Senator Leahy. Did you ask him to come out a certain way, 
though, in determining which way, whether to prosecute or not 
to prosecute on those campaign finance cases?
    Attorney General Reno. Never.
    Senator Leahy. Did the President----
    Attorney General Reno. And if I had told him to, he would 
have told me to take a flying leap.
    Senator Leahy. I am sure he would have. I know him.
    Did the President of the United States ever pressure you to 
come out a particular way on any particular matter?
    Attorney General Reno. No, sir.
    Senator Leahy. Did the Vice President of the United States 
ever pressure you to come out a particular way on a particular 
    Attorney General Reno. No, sir.
    Senator Leahy. We do know that in the Senate, the Senate 
Republicans have been calling for an appointment of an 
independent counsel since at least March 1997, when they passed 
the Senate resolution to that effect even before the facts came 
out. Is it safe to say, however, you do not take pressure here 
    Attorney General Reno. I always try to listen and learn.
    Senator Leahy. Not quite the question, but I think we both 
know the answer.
    Can you remember of things 2 years ago? Some of us 
sometimes have a little trouble remembering 2 hours ago. But I 
know some have criticized the fact that the Vice President 
submitted a statement, following an interview with FBI and task 
force investigators, to clarify some of his answers relating to 
coffees. Well, FBI Director Freeh testified before a House 
appropriations subcommittee recently, he then sent a statement 
clarifying certain of his answers. And, in fact, we encourage 
witnesses before this committee, once they have read the 
transcript, if they want to clarify something, they should do 
    Some have claimed that the Vice President must have known 
the media fund, which was the subject of the disputed telephone 
calls, had a hard-money component because there was a 
memorandum written by somebody to the Vice President.That is 
basically the same thing when Director Freeh let the subcommittee know 
in the House, ``Well, there is a memorandum here which I had not seen. 
I want to add to my understanding.'' That certainly would not suggest 
anything wrong on his part, would it?
    Attorney General Reno.  No, sir.
    Senator Leahy. And is it possible to assume that not all of 
us in public office read every single item put before us?
    Attorney General Reno. I think there are too many trees 
that have been cut down to permit us to do that.
    Senator Leahy. And DOJ I think has a policy declining to 
prosecute violations of these minor matters, the de minimus 
matters. In fact, in 1976, the Justice Department declined to 
prosecute officials responsible for sending letters signed by 
President Ford to Federal employees at their workplaces, 
soliciting contributions for Republican congressional 
candidates. In 1988, prosecution was declined when two 
Republican Senators, one still serving, sent solicitation--in 
fact, is serving as a member of this committee--sent 
solicitation as part of a computerized direct mailing to 
employees of the Criminal Division of DOJ. Would you not say 
they probably did just the right thing to ignore those?
    Attorney General Reno. Yes, sir.
    Senator Leahy. And in the Buddhist Temple, we should note 
if this was a democratic fundraiser and was expected to be, I 
am sure that Vice President Gore was probably very surprised to 
see a number of Republican elected officials who were there. 
And that may be one reason why he might not have thought it was 
a fundraiser, when the Republicans, elected Republicans, were 
present at that event.
    Thank you, Mr. Chairman
    The Chairman. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Senator Leahy, I am proud to say that there are elected 
Democrat officeholders at some of my fundraisers.
    Senator Leahy. You never invited me.
    Senator Kyl. I did not invite you. That is right. But when 
you are ready to contribute, let me know.
    Madam Attorney General, I wanted to ask you, first, about 
the ``willful and knowing'' standard, as it pertained to the 
Vice President's knowledge or lack of knowledge about the 
fundraising constituting or including hard-money fundraising.
    You said, as I recall, that his mere attendance at meetings 
was not enough to conclude that the Vice President knew that 
hard money was involved; is that correct? Words to that effect?
    Attorney General Reno. We go into great detail, sir, but 
that is generally correct.
    Senator Kyl. Obviously, it can be that records and other 
witnesses' testimony can rebut a single person's denial.
    Attorney General Reno. That is correct. And we were seeking 
to determine whether there was any evidence from which one 
might reasonably infer that the Vice President actually knew. 
It might be supported, for example, by other attendees who 
might specifically recall something. We pursued each and 
developed no information.
    Senator Kyl. Well, that is exactly what I wanted to ask 
you. What other evidence did you consider that may have 
suggested that the Vice President knew or should have known 
that hard money was involved?
    Attorney General Reno. Such an inference might be 
supported, for example, by information that these facts were 
discussed in sufficient detail and focus at the meeting that 
many other attendees specifically recall them, that the Vice 
President made comments or asked questions in the course of the 
discussion that would seem to reflect an active understanding 
of the details, that the participants recalled any affirmative 
discussion of a need to raise hard money for the media fund, 
that the Vice President read memoranda that made these points 
or that anyone spoke directly to the Vice President on any 
occasion about the need to raise hard money.
    Senator Kyl. And was there not evidence to support some of 
those possibilities?
    Attorney General Reno. We found none.
    Senator Kyl. None at all?
    Attorney General Reno. No, sir.
    Senator Kyl. There was no one who recalled a discussion of 
hard money at those meetings?
    Attorney General Reno. As I told you previously, there were 
    Senator Kyl. So the answer was not that there was none, but 
that there was some, but that you did not consider it 
    Attorney General Reno. What I said was that we did not have 
any information that these facts were discussed in sufficient 
detail and focus at the meeting that many other attendees 
specifically recall them. And 15 individuals, including the 
President and Vice President, attended the meeting. All 15 were 
interviewed, with two exceptions: one, who testified under oath 
in the course of a congressional investigation that he had no 
recollection of the meeting, and that if he attended at all, he 
likely would have left after just a few minutes; and the 
President, who provided us with a statement that he had no 
independent recollection of the meeting.
    Senator Kyl. Did any of the witnesses testify that they 
recalled hard money being discussed at these meetings?
    Attorney General Reno. No attendees recall any particular 
questions or comments by the Vice President; two recall----
    Senator Kyl. Well, that--I am sorry--that was not my 
    Attorney General Reno. Only two of the fifteen attendees at 
the meeting even recall the topic of a hard-money component to 
the media fund being raised during the meeting. While the 
author of the notes had no specific recollection of the 
meeting, he did confirm, based on his habit and practice, his 
belief that the words noted in his handwriting were things said 
during the meeting, that he recorded them as they were said.
    Senator Kyl. Were there any other memoranda that you 
believe came to the attention of the Vice President that 
suggested that hard money was involved?
    Attorney General Reno. The issue was raised previously, as 
I recall, about the Ickes memorandum. Six or seven of the 
memoranda were received before the telephone calls were made. 
The remainder were made afterwards.
    Senator Kyl. Rather than asking you to recall each of 
those, Madam Attorney General, since I have just one other 
quick question, would you be willing to submit, at this point 
in the record, the evidence that was considered, but deemed 
insufficient, to supply the ``willful and knowing'' attribution 
to the Vice President?
    Attorney General Reno. I trust it is a matter of record 
with the committee. It has been public record for some time, 
and it is the notification that we filed with the Court on this 
issue. The first, with respect to the first matter, it was 29 
pages in length, and I believe 19 pages in length for the 
second matter.
    Senator Kyl. Would you then simply just direct the 
committee's attention to the points where that specific 
evidence is?
    Attorney General Reno. Yes, I can do that right now.
    Senator Kyl. Well, no, if I might, while I still have just 
a moment, if you would just do that for the record, that will 
be sufficient for my purposes.
    Attorney General Reno. Yes, sir.
    [The information follows:]

    Senator Kyl. Since no one, and I want to make this clear, 
there is a bit of a straw man here about your independence, I 
know of no one who has ever questioned whether you are 
independent enough. The question, I think, is whether you are 
too independent or too independent at least of the advice of 
some very top professionals who were brought in to give you 
    Now, we know who did recommend appointment of special 
counsel; people like Charles La Bella, and Mr. Conrad, Mr. 
Freeh. My question is this: Were there others? And I presume 
that some of the staff people of these people also recommended 
that. And to have rejected their advice, it seems to me, you 
must really have had confidence in the advice of the others who 
came to a different conclusion. Could you tell us who those 
people are.
    Attorney General Reno. I cannot give you each person who I 
sought advice from with respect to each matter, but I will try 
to make sure that you have as much as I can pull together. I 
think you have all of the documents, and I think that is where 
I rely primarily.
    The Chairman. Senator Kyl, we have stopped others at this 
    Senator Kyl. Yes, and I am happy to be stopped. I presume, 
then, you will submit for the record the names of the people 
that you relied upon in addition.
    Attorney General Reno. Senator, I am trying to tell you 
that I think we have given the committee all of the information 
with respect to what was in writing. I do not know that I can 
go back and give you everybody that I have relied on. But as I 
told you, I will try to do my best.
    Senator Kyl. I would appreciate that. Thank you.
    The Chairman. We will have a second round, Senator Kyl.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Madam Attorney General, I have been privileged to be on 
this committee during your entire tenure, and I can certainly 
say no one has been more resistant to political pressure, 
tougher or more independent than you. And I think you have made 
that very clear. I think when Senator Torricelli mentioned that 
you have essentially triggered an independent counsel for five 
of your fellow colleagues on the Cabinet, plus the President of 
the United States himself, I think that is a pretty good 
testament to independence.
    As I read the regulations that govern the appointment of 
special counsel, the decision of whether to appoint a special 
counsel is vested in you, the Attorney General, not those who 
advise you, unless you recuse yourself from the issue. The 
decision is not in the hands of the director of the FBI or the 
head of the Campaign Financing Task Force or any other person, 
other than you.
    Would you tell me if I am correct in understanding the law. 
And can you explain the corrosive impact on the authority of 
the Attorney General, any Attorney General, of subordinates 
publicly leaking the recommendations that are entrusted, by 
law, to the discretion of the Attorney General, himself or 
    Attorney General Reno. I think you are correct in the law. 
And I think leaks are very damaging to good, fruitful 
conversation. But my policy has been I do not walk away from 
it. I just try to let people know how damaging leaks can be. 
But I still try to reach out to a variety of people, those that 
say yes and those that say no, because I find that sometimes 
they change their positions and sometimes they are advocating 
another point of view.
    I think this Nation, as I said at the outset, the 
foundation of this Nation is spirited debate, and I think it is 
important that we have it.
    Senator Feinstein. But the point I wanted to establish is 
you could essentially have everyone advising you to do one 
thing, and you could turn around, within your discretion, and 
do exactly the opposite. But when somebody that works in this 
confidential capacity essentially leaks the advice they give 
you, it effectively corrodes the authority of the institution 
of Attorney General itself, and I think sets a kind of 
precedent, which does not brook well for this particular 
office, which after all is one of the chief law enforcement 
officer for the Nation, where staff serving that officer should 
be able to do so in confidence and certainly without leaking.
    Attorney General Reno. I would agree with you, but I am not 
going to let it corrode it.
    Senator Feinstein. Well, I hope not, and I appreciate that 
very much.
    Thanks, Mr. Chairman.
    The Chairman. Thank you very much, Senator Feinstein.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    I think, Attorney General Reno, that maybe we are, at 
times, too hard on a team of prosecutors struggling with 
difficult issues. But we are dealing with an unusual case, a 
case of national importance, that has been followed since the 
story broke late in the 1996 election cycle and needs to be 
brought to rest with thorough investigation and thorough 
    So I think we should be reluctant to impose ourselves on 
the Department of Justice. But when a string of lawyers and 
people chosen by you, such as Mr. Litt, Mr. La Bella and now 
Mr. Conrad, all say that an independent counsel ought tobe 
appointed, I think that requires us to give it most serious 
consideration, and the public is entitled to this exchange, so that you 
have to talk about it, and we can perhaps ask some questions about it.
    One of the things that I think is important to note is the 
circumstances involving the Buddhist Temple fundraiser. To me, 
from the beginning of the fundraising issues, this one struck 
me as the one that could be most troublesome to the Vice 
President and others. There has been a concern about the phone 
calls, and perhaps that may or may not be a violation, may not 
be a violation that would be worthy of a prosecution, but there 
were some serious issues raised.
    We know that it was indeed a political fundraiser, and 
Maria Hsia has been convicted of felonies related to that 
event. We know it is a criminal violation to file false 
campaign contribution reports. It is a criminal violation to 
make a political fundraiser appear to be a nonpolitical event 
in order to circumvent income tax laws that prohibit taxexempt 
organizations from doing fundraisers. It is a criminal 
violation to conspire with others to commit any of those crimes 
under title 18, section 371, and it is a violation of 1001, the 
False Statements Act, to make a false statement to 
    So that is a matter of real seriousness to me, and this is 
a matter apparently Mr. Conrad has just now become focused on. 
He has been in office about 6 months, I understand, and for the 
first time in 4 years, the Vice President has now been 
interviewed about this event. And last Thursday, after that 
interview, we learned that Mr. Conrad has now recommended a 
special counsel to investigate possible criminal violations by 
the Vice President.
    Last Friday afternoon, the Vice President has released a 
transcript showing his answers to the questions. However, the 
public does not know and probably shouldn't know all the 
information that was available to Mr. Conrad, your chosen 
prosecutor, when he decided it was appropriate to do a special 
    So I am concerned about that, and I was impressed with Mr. 
Conrad because he seemed to me to be a line prosecutor of solid 
experience. And I believe that he had the kind of background 
that probably would lead him to make good decisions in this 
case. He certainly did not appear to be a person that was 
grandstanding in any way.
    Now, the transcript shows that the focus of the 
investigation was on the people who were there at that 
fundraiser and their relationship with the Vice President. And 
I think that is important.
    Also, I would want to suggest that in the prosecutions I 
have done in 15 years with the Department of Justice, I have 
been involved in cases which I personally prosecuted county 
commissioners, mayors, judges, sheriffs, chiefs of police, and 
those kinds of cases. Normally the question comes down to a 
question of knowledge. We can prove that an illegal fundraiser 
occurred. We can prove that foreign money was placed into the 
Democratic National Committee coffers. We can prove that money 
was laundered through the nuns, conduit violations of the law. 
The question simply is: Does the Vice President know? Is he 
knowledgeable about these things that went on all around him?
    That is the question. And it is easy for someone to say I 
didn't know, but a good investigator and a good prosecutor, in 
my opinion, in my experience, has to be prepared to go further 
and to look at other evidence.
    Now, I hope and pray that there is nothing here that would 
implicate the Vice President seriously in these matters. 
However, I think there is some evidence that raises questions.
    Earlier it was suggested that the Vice President's schedule 
was not clear about whether or not it was fundraiser, but his 
schedule, which I have a copy of, said DNC luncheon at Hacienda 
Heights--that is the area in question--$1,000, $5,000 per head, 
150 to 200 people. That indicates to me in pretty common 
language that it was a fundraiser. And he has denied that. The 
Vice President has flatly denied that he knew it was a 
    We also have an e-mail that he personally sent after being 
inquired by e-mail whether he would want to go to New York 
because to do so would conflict with two fundraisers--``two 
fundraisers in San Jose and L.A.'' And he was told we have 
confirmed the fundraisers for Monday, April 29, the day of this 
temple fundraiser. Vice President Gore responded: If we book 
the two fundraisers, we have to decline--that is, decline the 
New York invitation. That would indicate that he had 
information that this would be a fundraiser. So we are looking 
at some very, very serious matters, in my opinion.
    My time has run out. I would be delighted----
    Attorney General Reno. I would agree that Robert Conrad is 
a fine prosecutor, an ethical man, and very diligent, and I 
have a great admiration for him.
    Senator Specter. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    Madam Attorney General, welcome. I also want to join with 
others in saying I have enjoyed working with you over the years 
on a wide variety of matters, and I appreciate the dedication 
and professionalism of the Department of Justice.
    I will use my limited time to make a few brief comments, 
and, of course, if you wish to respond, please do so.
    One area where we have differed, Madam AttorneyGeneral, is 
in our approach to the enforcement of the campaign finance laws. As you 
know, I first called for an independent counsel to investigate campaign 
finance violations in the 1996 elections over 3 years ago. I was one of 
only two Democratic Senators to do so. I believed then and I believe 
now that there were serious abuses of the law by both political parties 
in the 1996 campaign, and that an independent investigation is the only 
way to get to the bottom of the abuses in a way that will command 
public confidence.
    Let me stress, as this political season is upon us, that I 
said that both parties' fundraising activities should be 
scrutinized in such an investigation, and, Madam Attorney 
General, congressional elections should be a part of it.
    Those who call for a partisan investigation or to limit it 
to certain events seem generally to seek an investigation to 
accomplish political goals rather than to uncover all of the 
abuses of our current laws that have occurred.
    I also believe that some of the same activities of 
questionable legality that arose in the 1996 campaign are going 
on today. In particular, both Presidential campaigns are taking 
advantage of loopholes in the campaign finance law by 
participating in television advertising campaigns funded with 
soft money donations. These ads, which have already hit the 
airwaves, are billed as ``party-building'' issue ads. They talk 
about the candidates. They show their faces. They promote them 
and attack their opponents. But they avoid the use of the so-
called magic words of express advocacy that would make them 
clearly illegal.
    Madam Attorney General, I have never accepted the flawed 
legal opinion under which both parties and their candidates are 
now operating and its perverse conclusion that the ``magic 
words'' distinction applies to ads run by the parties. We all 
know that if a candidate runs an ad, it must be paid for with 
hard money whether or not it uses the magic words. I think the 
same should apply to parties who run ads supporting their 
candidates or attacking another party's candidate.
    Nothing in the Buckley case suggests that parties should be 
treated more like independent groups than like candidate with 
respect to this issue. The participation of the two major 
Presidential campaigns in the use of the soft money loophole to 
fund phony issue ads is unseemly and wrong. Once nominated, 
each of the major Presidential candidates will receive over $65 
million in public funds to run his general election campaign. 
The taxpayers of this country have a right to expect them to 
abide by the spirit as well as the letter of the law if they 
are going to take advantage of this public financing system.
    I understand that outside watchdogs, Common Cause and 
Democracy 21, have indicated that they intend to request a 
Department of Justice investigation of the ongoing Presidential 
campaigns, and I think it would be entirely appropriate for you 
to conduct such investigation or, Madam Attorney General, to 
appoint a special counsel to do so.
    As I have said over and over again, however, any such 
investigation should include both parties and both Presidential 
and congressional campaigns. This problem is not unique to one 
party or to the Presidential race.
    Madam Attorney General, I appreciate the dilemma you are 
in. I think it is entirely appropriate for you to attempt to 
keep the Department's criminal investigations out of politics. 
Unfortunately, the very nature of these allegations make that 
very difficult. And so I make this recommendation: Madam 
Attorney General, appoint a special counsel with a wide-ranging 
mandate to investigate campaign finance violations in both the 
1996 and 2000 campaign; insist that the special counsel 
consider allegations of wrongdoing by both parties and in both 
the Presidential and congressional campaigns; remove this issue 
to some extent from partisan debate by authorizing an 
investigation that is deliberate, complete, and detailed.
    I understand that this investigation may not be completed 
by November, but it will put the parties and the candidates on 
notice that their activities in this upcoming election will be 
closely scrutinized. And if that leads the parties and the 
campaigns to be less aggressive in exploiting loopholes in 
current law that the Congress has thus far failed to close, 
that will be a beneficial side effect of your decision.
    Thank you, Mr. Chairman, and I appreciate the opportunity 
to make a statement.
    Senator Specter. Do you care to comment, Attorney General 
    Attorney General Reno. I remember in April of 1997 your 
thoughtful comments. They were constructive, and I have 
remembered them for a long time, and I appreciate them.
    I don't pass judgment on the Federal Election Campaign Act 
or its effectiveness in making my determinations. What I have 
got to do is be able, if I am going to prosecute, to show that 
the conduct is willful, that the violation is willful and 
    I have conducted an extensive investigation on the issue. 
The advice of counsel defense is there. It won't go away. Under 
the Independent Counsel Act, I made the determination that 
further investigation would produce nothing. I think the 
answers have got to be found in another arena to address the 
issues that you are talking about, but I would look forward to 
working with you.
    Senator Feingold. Thank you very much.
    Senator Specter. Senator Smith.
    Senator Smith. Thank you, Mr. Chairman.
    Madam Attorney General, I am just trying to understand how 
you arrived at your judgment. I respect the fact that you have 
the right to make this judgment over the recommendations of 
people who work for you, which you have described as competent, 
intelligent, dedicated people. But without replaying the whole 
thing, I mean, you have--in November of 1997, you have Freeh 
saying I am convinced now more than ever this should be 
referred to an independent counsel; La Bella again saying he 
recommended the appointment, and that is in July 1998; in 
November of 1998, Litt saying, ``One could infer that Gore knew 
what he claimed he did not know, that the media campaign was 
paid for in part with hard money''; and now the latest with Mr. 
Conrad, and then on top of that you have the Vice President in 
his deposition before Mr. Conrad saying, ``I sure as hell did 
not have any conversations with anyone saying this is a 
fundraising event.'' That is what he told the investigators. 
Senator Sessions just showed the memo which referred to so much 
per head.
    I have been to fundraisers many times, as we all have. I 
went to one this morning. I knew what I was going to, and I 
knew how much the price was for the person that I attended for.
    So my only question to you is, they work for you, you make 
the call, and you did. But don't you think the public has a 
right to know what went through your mind in making that call. 
Why did you overrule those four people and at the same time 
ignore information that was out there in the domain about Mr. 
    And I would add one other thing. Maria Hsia was a longtime 
associate of Vice President Gore, of Senator Gore, and he had 
known her back at least as far as 1989, and she had done 
fundraising for him. And he was aware that Maria Hsia was at 
this event and had a lot to do with coordinating the event. And 
I just have one follow-on question, if you could just respond 
to that. I am just interested in how do you make this judgment. 
How do you make that judgment? What did you--what went through 
your mind to overrule those four people and the other 
    Attorney General Reno. First of all, you give the 
impression that I overrule all my advisers.
    Senator Smith. No. I just said these four.
    Attorney General Reno. Well, the reason I made my 
determination is expressed in notifications filed with the 
court that had been a matter of public record, and I will be 
happy to make those available to you, Senator. They have been 
made available and are publicly available.
    With respect to the prosecutions and what we have done, 
there have been approximately 25 prosecutions and 20 
    With respect to the present matter, as I said at the 
outset, I am not going to comment on pending investigations. I 
think it is imperative for justice to be done that people don't 
comment until they have all the facts. That includes me. I am 
going to conduct a thorough review of everything. I am going to 
make my best judgment. But I would urge you with all my heart, 
be careful as you comment that you have the facts.
    Senator Smith. Well, so you are saying that it is still 
ongoing. In your mind, you are still looking into this matter. 
Is that correct?
    Attorney General Reno. I am not commenting on what I am 
doing, but I think it imperative for justice to be done that an 
investigation be conducted without public discussion so that it 
could be done the right way.
    Senator Smith. Well, it started in November of 1997, as far 
as we know, with Mr. Freeh's memo, so it is 3 years later. I 
don't know when we get it done. Sometime, I guess, by the end 
of this century, maybe.
    The final question that I have, I don't understand for the 
life of me why any individual would deny that he or she 
attended a fundraiser. Attending a fundraiser is not a bad 
thing. Now, it was an embarrassing fundraiser in the sense that 
nuns were asked to contribute money. I will grant you that. But 
why would any individual say I didn't attend--I don't know, 
excuse me, that it was a fundraiser when all this documentation 
proves otherwise. So I think it would go to the next question. 
Foreign contributions were passed at that fundraiser. So if you 
are going to continue your investigation, I would hope that 
somebody might ask the Vice President a little bit about how 
much he knew about whether or not there were foreign 
contributions. He was asked that in the Conrad questioning, and 
he said that, of course not, I did not know that illegal 
contributions of foreign contributions had been solicited.
    But it makes no sense to me that somebody would deny they 
are attending a fundraiser when, in fact, everybody knows they 
attended a fundraiser. His schedule says he attended a 
fundraiser. And his background briefing papers say he attended 
a fundraiser, and the dollars that are going to be at that 
fundraiser are indicated. So there is something here that we 
don't know about that makes no sense to me, and that is where I 
am at.
    I mean, attending a fundraiser is not bad. We all do it. 
But attending a fundraiser with illegal contributions is bad if 
you know it. And my concern is that we don't have the answer to 
that question.
    Attorney General Reno. I cannot comment on a 
pendinginvestigation, but I can----
    Senator Smith. Well, obviously you are not going to but----
    Attorney General Reno. But I can comment on the need for 
everyone to let an investigation be conducted the right way. As 
you point out, you don't know something. Let's wait until we do 
it the right way and find out as much information as possible.
    Senator Smith. Should the American people know this before 
the election?
    Senator Specter. Senator Smith, we have stopped everybody 
at this point.
    Senator Smith. Fine.
    Senator Specter. We will have another round.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman.
    Mr. Chairman, to the extent that we are today examining 
whether the Attorney General should appoint a special counsel 
to investigate the 1996 election, I feel compelled to say that 
the committee is acting beyond its purview and, therefore, 
risks being labeled as partisan. Our role in these matter is 
one of oversight. I am worried, however, that if we are here 
quizzing the Attorney General on a decision she has not yet 
made, this committee will be perceived as going beyond 
oversight and instead attempting to influence an executive 
branch decision that should be made on the merits and on the 
merits alone.
    This is ironic because the Justice Department is being 
criticized here for making decisions based on political 
influence and not on the merits. Yet this committee now appears 
to be applying a pressure of its own.
    I have no questions.
    Senator Specter. Thank you very much, Senator Schumer.
    Attorney General Reno, would you care to take a break?
    Attorney General Reno. I am fine. Thank you, sir.
    Senator Specter. The second round will also be 5 minutes. 
In very brief response to what Senator Schumer has had to say, 
the questions have related to the decisions made by Attorney 
General Reno in declining independent counsel as to the Vice 
President, the decision already made, declining independent 
counsel as to the President and Vice President. Her appearance 
was requested on May 25, which was substantially in advance of 
the information as to Mr. Conrad's recommendation.
    Attorney General Reno, I am going to come back and----
    Senator Schumer. Mr. Chairman, if I might just respond?
    Senator Specter. All right. We will stop the clock. Go 
ahead, Senator Schumer. You had some time left.
    Senator Schumer. Once it is known there is an ongoing 
investigation into these matters, there shouldn't have been a 
    Senator Specter. Well, I disagree with that. But this is 
the first time that it has been raised, and had you raised it 
earlier, I would have been willing to consider it. You and I 
have talked about the matters, and I would always give 
consideration to whatever you had to say. This is the first 
time I have heard your comment.
    Attorney General Reno, I am going to go into some detail, 
as soon as I have the time to do so, about the number of 
witnesses who had testimony that the Vice President knew about 
hard money and also about the advice of counsel defense which 
you have talked about, and also the issue of pressure which has 
been raised. But I want to talk for a moment and ask you about 
a broader question, and the broader question that I want to 
broach is the lateness of the Department of Justice's inquiry.
    You and I first started to talk about this matter in April 
1997, more than 3 years ago, and in November of 1997, FBI 
Director Freeh called for independent counsel. And within a 
week a letter was addressed to you by me asking for his report 
so we could get to the specifics.
    And on July 16, 1998, La Bella submitted a memorandum 
calling for independent counsel, and on the 23rd of July, I had 
asked for that report.
    Now, we have had the recommendation of Mr. Litt, one of 
your top deputies, calling for independent counsel. And it was 
not until April 18th of this year, just 2 months ago, that the 
Vice President was questioned about the Hsi Lai Buddhist Temple 
and about the coffees, although those matters were well known 
back in 1997 and were commented on extensively by the 
Governmental Affairs Committee at that time. And it appears 
that the questioning of the Vice President on April 18 may have 
been motivated by the fact that the Judiciary Committee 
finally--finally--issued subpoenas for the Freeh and La Bella 
memoranda which were returnable on April 20. And they were 
known to the Justice Department several weeks in advance of 
that time, so that the Justice Department finally got around to 
asking the Vice President about the Hsi Lai Temple and the 
coffees on April 18th, although the Vice President had been 
questioned on four prior occasions.
    Now, it appears to me that it may well be too late at this 
point to have special counsel--that is the name now under the 
Attorney General's regulationsbecause it would interfere with 
the election in 2000. And it is curious that matters arising 
out of the 1996 election should not have been laid to rest long 
ago when they were the focus of attention within a few months 
after the 1996 election.
    I would be interested in your comments, although I ampretty 
sure of the answer, as to whether special counsel could be appointed 
and clear the Vice President before the Democratic Convention. And I 
think that is not realistic, probably not even realistic to have 
special counsel appointed and clear the Vice President or not clear the 
Vice President before the general election.
    Now, it may be that the only alternative America has at 
this point in this election is to leave it to the political 
process with the Vice President stating his position and his 
opponent in a Presidential campaign stating his position. And 
it may be only 20/20 hindsight, but in light of the very 
emphatic statements you made when you came for confirmation, 
asking this committee to approve you, which we did, asking for 
our votes, which I cast in the affirmative, about the need to 
have somebody outside to give credibility, no matter how 
professional and credible the Attorney General is. And I have 
never questioned your credibility or your integrity. But you 
said that the only way to do it--you quoted Archibald Cox--was 
to have somebody from the outside.
    Now, a focus of the question is: Why so late? It is true 
you made the decisions before. A two-part question: As close as 
the matter was with your own view of independence and with the 
body of evidence available, why not then? And why now? Why ask 
a new chief counsel of your campaign task force to question the 
Vice President on April 18th when it is too late because the 
matter can't be resolved in a timely way for this election?
    Attorney General Reno. I can't comment with respect to the 
specifics, but I can talk to you generally about how an 
investigation is conducted. That is like preaching to the choir 
because you are an experienced prosecutor. And in some--
    Senator Specter. Madam Attorney General, may I interrupt 
you? This is the first time and the last time I will do it, I 
    The Vice President has disclosed publicly that he was 
questioned on April 18, and Mr. Conrad confirmed that. So it is 
not a disclosure. We know that happened. Why was he questioned 
on April 18th? What can be accomplished at this late date?
    Attorney General Reno. First of all, you alluded to the 
release of the La Bella and Freeh memoranda. Let me point out 
to you that both Director Freeh and Mr. La Bella have 
consistently been opposed to the release of it because at the 
time they were concerned that it would give a road map to the 
course of the investigation and would be counterproductive to 
the investigation.
    For me to discuss why something was done when would do the 
same thing, and it is not right to discuss it.
    What I can talk about in generalities and not reference a 
specific case, you probably didn't have prosecutors in your 
office, but I sometimes had prosecutors in my office that would 
go interview somebody without having all the facts. And the 
interview was not nearly as good as the prosecutor who went 
armed with all the facts, working towards the issues. And I 
can't discuss the timing because I think that would be 
inconsistent with my duty. But I just simply tell you that when 
people are interviewed, when things are done, depend on all the 
facts of the investigation. And I will remind you that 
approximately 25 people have been prosecuted, some 20 
convicted, and many have cooperated.
    Senator Specter. Well, Madam Attorney General, one 
concluding comment. I disagree with you decisively about these 
issues and this timing, and you may make whatever judgment you 
like as to your comments, but the Senate has very important 
congressional oversight responsibilities and we can comment, 
both officially and as citizens with our First Amendment 
rights. And we are dealing with matters, an election for the 
year 2000, which is a great deal more important for this 
country than any individual prosecution. Prosecutions pale even 
by congressional oversight on the enactment of legislation.
    But I have expressed my views and you have expressed yours. 
Senator Torricelli.
    Attorney General Reno. I would just simply say, Senator, 
you can tell me that I am wrong, but I will have greater 
confidence in your telling me I am wrong when you have all the 
    Senator Torricelli. Mr. Chairman, I would like to actually 
ask several questions, but first I feel it necessary to return 
to my friend Senator Sessions' reading of the Vice President's 
email. The emails in question were written on March 15, 1996 
from the scheduler to the Vice President. They refer to a 
scheduling matter on April 28th, some 6 weeks later.
    Madam Attorney General, I would assume that the Vice 
President of the United States in the middle of a reelection 
campaign in a national campaign is far busier than I am. Would 
you concede his schedule is probably somewhat more full than 
your own at that period of the year?
    The scheduler asks him a question by email about an event 
that he is invited to go to in New York at the same time as two 
fundraisers in California, one in San Jose, one in Los Angeles, 
6 weeks later. There is no mention who is hosting it, no 
mention who is attending it, the word Buddhist, indeed, no 
nation in the world practicing the Buddhist faith is even 
mentioned. There are no details. There are two fundraisers in 6 
weeks. The e-mail asks: Are you going to goto the fundraisers 
you have already accepted or the event in New York?
    To suggest that this is some significant piece of evidence 
that the Vice President was aware he was going to a Buddhist 
fundraiser is somewhat taking liberty with the facts. This 
piece of paper would not establish that the Vice President 
indeed knew anything.
    Second, the committee had the opportunity to hear from a 
Craig DeSantos. Are you familiar with Mr. Mansfield
    Attorney General Reno. Yes.
    Senator Torricelli. He seems to be a very fine man, and 
indeed he disagrees adamantly with your recommendation not to 
have an independent counsel. He disagreed with your judgment to 
bring the case to Washington, but said he had no reason to 
think it was anything but proper, and that it was a judgment 
call that was properly made.
    In questioning Mr. Mansfield, the majority of the committee 
seemed to think it significant that Mr. Mansfield had begun a 
prosecution, an investigation of the Buddhist Temple case and 
the case was removed from Los Angeles to Washington. But, 
indeed, in the course of questioning Mr. Mansfield, the 
following became clear from memorandum written by Mr. DeSantos. 
Mr. DeSantos believed: A, Mr. Mansfield had too much of a 
workload to handle the case; B, he had not properly handled the 
Kim campaign finance case because he was focusing no--the was 
focusing on ancillary matters rather than the critical 
questions; third, there was a policy directive to be careful 
not to interfere with elections, and we were in the middle of a 
national campaign; fourth, Mr. Mansfield had alleged he had 
already prepared subpoenas and had begun the investigation. 
Actually, upon questioning and a review of memorandum, it is 
clear that, in fact, Mr. Mansfield had done nothing of the 
kind; he had issued no subpoenas, prepared no subpoenas, and 
done almost no investigations.
    Therefore, the removal of the case from Los Angeles to 
Washington was with absolutely no practical impact on the case 
whatsoever, and significantly, as I suggested, Mr. Mansfield 
even testified that he did not take issue with the decision. I 
think that is significant since among all the people produced 
to testify before this committee, he was represented as the one 
who was going to disagree with your decisions the most. In 
fact, this disagreement did not exist.
    Third, I would now like to read something into the record. 
Senator Specter and I have at great length read hundreds of 
memorandums, thousands of pages of testimony, and most of my 
colleagues have probably not had the opportunity. It might 
appear frightening to them, but I am going to read the entire 
text of Mr. La Bella's memorandum dealing with Vice President 
    Now, the light is on yellow, so this might seem impossible, 
and maybe I won't succeed. But I can accomplish this in 30 
seconds, and not just because I am from New Jersey.
    Here is the entire memorandum regarding the Vice President 
of the United States in this investigation: ``During the 
investigation concerning Vice President Gore's fundraising 
calls from the White House, the Department concluded that he 
did not solicit hard money and, therefore, could be in no 
violation of 607. The fact is that Gore, using a credit card, 
placed several calls to the White House to pitch soft money 
contributions. The Vice President denied that he was aware that 
the soft money contributions were routinely being split between 
receipts by the DNC between soft and hard accounts. He stated 
in his interview that he did not recall the Ickes memo directed 
to him on the issues or the discussions at the regular 
Wednesday night meetings about this point. The Vice President's 
failure to recall reading the memo sent him is reminiscent of 
his claim not to have read the April 1996 memo advising him 
that he was to attend the Hacienda Heights, California, temple 
event. Quite apart from the 607 analysis, it is evident that to 
the extent that either the Common Cause allegations, conspiracy 
to defraud the United States, presents a viable potential 
violation of Federal law, the Vice President would certainly be 
among those whose conduct would be reviewed. Like President 
Clinton and Harold Ickes, he participated in the fundraising 
and strategic effort of the White House as they impacted the 
DNC and the Clinton-Gore 1996 campaign.''
    That, Madam Attorney General, as you are well aware, is the 
sum total of Mr. La Bella's recommendations, evidence, and 
allegations regarding the Vice President. This committee is led 
to believe that based on that analysis, your judgment not to 
appoint an independent counsel is somehow suspect, that this 
was not a judgment call upon which reasonable people could 
    Mr. Radek, upon having read that memorandum, concluded the 
following: ``The portion of the report devoted to Vice 
President Gore is only one-page long. It is so superficial that 
I am at a loss at to know how to proceed. Because we are 
offered no facts or analysis, I am unable to offer any views on 
this recommendation. With respect to the apparent criticism of 
the Attorney General's conclusion last year that the 
fundraising calls did not warrant appointment of independent 
counsel, the report makes no specific points. Thus, I am unable 
to even respond. Our conclusions that these were soft money 
solicitations and, thus, outside the scope of Section 607 was 
based on the results of hundreds of interviews with those 
whoparticipated in the calls and the examination of scores of 
documents. In addition, as a wholly independent ground supporting our 
recommendation, we documented a well-established departmental policy of 
not prosecuting 607 violations absent aggravating circumstances not 
present here.''
    A great deal will be said in this committee; an enormous 
amount has been written. That is the conflict. Mr. Radek I 
think put it best: It was too simple, in my opinion too 
sophomoric, it presented no compelling evidence, nothing that 
should have denied you reaching the judgment you actually 
reached. Indeed, I believe Mr. Radek was kind.
    That, Mr. Chairman, I am sure our colleagues are surprised 
to know, is what Mr. La Bella found after his investigation. 
That is the report. That is all that is before this committee.
    Senator Specter. Well, I am going to take the liberty of 
the chairman for just less than minute to supplement what you 
read as to what Mr. La Bella wrote, because there is more. In 
addition, he wrote, ``The type of analysis involved in 
determining whether the Vice President was part of the scheme 
to solicit soft money, knowing that it would be turned to hard 
money for the media campaign, is subjective and open to debate. 
By routinely embracing the most innocent inference at every 
turn, even if the inferences are factually indefensible, the 
memorandum creates an appearance that the Department is 
straining to avoid the appointment of an independent counsel 
and foreclose what many would characterize as an impartial 
review of the allegations. When you look at the facts, the 
memos, the messages, and the DNC practice, it is hard to say 
that there is only one conclusion to be reached, but there is a 
great deal more'' than La Bella. There is Freeh, there is 
Parkinson, there is Litt, and now there is Senator Grassley.
    Senator Grassley. Well, first of all, Mr. Chairman, based 
on comments that the Attorney General made in response to my 
opening statement on the advice of counsel argument, I want to 
enter a document in the record as a counterresponse. I don't 
know if General Reno knows if you have had--if she has had a 
chance to review the FBI internal documents that they provided 
our subcommittee, but I think that these documents show that 
the FBI general counsel, as articulated by the Director, 
scoffed at the legitimacy of the advice of counsel argument. I 
believe that document is from Larry Parkinson. He is the FBI 
general counsel. And so I hope to pursue the issue of inserting 
that memo in the record to balance out the Attorney General's 
response. The document is located in S-407, and I have asked 
the staff to retrieve that, and I hope that we could put that 
in there to balance----
    Senator Specter. Without objection, it will be made a part 
of the record.
    [The letter follows:]

                                                  December 4, 1998.
To: Director Freeh.
From: Larry Parkinson.
Subject: Independent counsel matter: Potential election law violations 
        involving President Clinton and Vice President Gore.
    For purposes of your consultation with the Attorney General on the 
pending independent counsel matter, this memorandum is intended to 
summarize our discussions on the key issues. For the reasons stated 
below, it is appropriate to recommend that she seek the appointment of 
an independent counsel to investigate potential election law violations 
involving President Clinton and Vice President Gore. Because similar 
allegations have been made against the Dole presidential election 
campaign, the independent counsel should be authorized to investigate 
those allegations as well.
    This memorandum is divided into two parts. The first section 
focuses primarily on the narrow question presented at the end of this 
90-day preliminary inquiry: is the advice of counsel defense sufficient 
for the Attorney General to conclude by ``clear and convincing 
evidence'' that the President and Vice President lacked the requisite 
criminal intent? The second section discusses broader issues that 
justify the appointment of an independent counsel (regardless of the 
outcome on the narrow legal issue).

                   I. THE 90-DAY PRELIMINARY INQUIRY

A. Threshold issues
    The Radek/Vicinanzo memorandum dated November 20, 1998 (``DOJ 
memo'') streamlines the discussion by resolving correctly several 
important threshold issues. First, the memo defers appropriately to the 
FEC auditors' conclusion that the DNC-financed ``issue ads'' can be 
attributed to the Clinton/Gore campaign committee, thereby violating 
the spending limits. That conclusion obviously has been strengthened by 
this week's public release of the Audit Division's final report. The 
audit report, along with the very strong concurring opinion by the FEC 
Office of General Counsel, makes a compelling statement that the 
Clinton/Gore campaign illegally benefited from the media campaign.\1\ 
Therefore, the basic facts that led to the initiation of the 90-day 
preliminary inquiry--the audit finding--have become stronger.\2\
    \1\ As you know, the career FEC auditors and lawyers reached 
similar conclusions about the Dole campaign.
    \2\ The FEC Commissioners met in public session on December 3, 
1998. Campcon had agents in attendance and has reported that several of 
the Commissioners appeared hostile to the Audit Report. As expected, 
the final resolution by the Commission is uncertain. One thing that 
does appear certain, however, is that there will be no resolution for 
at least several months. Thus, there appears to be little reason for 
the Attorney General to seek a 60-day extension of the preliminary 
    The DOJ memo also resolves the issue of control, after setting 
forth a good factual summary of the genesis and development of the 
issue ad campaign. The memo correctly concludes that the ad campaign 
was controlled in all major respects by the White House:

        [T]here was little dispute that the DNC issue ad campaign was 
        not only coordinated with the White House but controlled by it. 
        Fowler described the White House control as ``near absolute.''

DOJ Memo at 29. Among many other things, the memo relies on the April 
17, 1996 from memo from Ickes to Fowler establishing that all DCN 
expenditures were subject to prior White House approval.\3\
    \3\ This total White House control of DNC expenditures raises a 
significant legal issue. As you will recall, in our January 30, 1998 
memorandum to DAG Holder, we argued strongly that this was a case about 
``control'' and not mere ``coordination.'' Based on their discussions 
with the FEC auditors and attorneys, our agents believe that the FEC 
has acquired only a fraction of the evidence that Campcon has obtained 
regarding ``control.'' When asked how they would treat a situation in 
which there was total control of committee expenditures by a campaign, 
the FEC staff responded that it was an intriguing scenario with which 
they had never been faced.
    With respect to the purpose of the media campaign, the DOJ memo 
appears to give credence to the witness statements that the primary 
purpose of the issue ads was to aid the Democratic party and not to 
reelect the President. Such statements appear to be disingenuous at 
best; the documentary evidence clearly indicates that the primary 
purpose of the ads was the reelection of the President. In fact, the 
FED Audit Report takes the matter a step further: not only does it 
flatly reject the argument that the adswere not intended primarily to 
reelect the President, it essentially alleges an outright fraud:

          The Audit Division does not dispute that the advertisements 
        in fact address pending political issues. However, the facts 
        ascertained during the audit indicates that the primary purpose 
        for addressing these issues was to assist President Clinton's 
        reelection. It further appears that those facts which might 
        otherwise demonstrate that the purpose and ``targeting'' of the 
        advertisements were related to an overall party agenda (rather 
        than the President's reelection) are true because of a 
        deliberate effort to conceal the actual purpose of the 

FEC Audit Division Report on Clinton/Gore `96, at 42 (emphasis added).
    Although its own analysis of ``purpose'' leaves something to be 
desired, the DOJ memo does reach a very significant conclusion: ``it is 
clear that [President Clinton and Vice President Gore] both were 
sufficiently involved to be deemed coconspirators or aiders and 
abettors of any potential criminal violations of the FECA or PPMPAA.'' 
DOJ Memo at 31. This is an enormously significant conclusion in light 
of the FEC audit findings that there were violations of the relevant 
statutes. We are left, then, with the sole issue of whether the 
President and Vice President committed such violations ``knowingly and 
B. Advice of counsel defense
    I view the advice of counsel defense as fairly strong in this case, 
but not strong enough to satisfy the ``clear and convincing'' standard 
under the Independent Counsel Act. I strongly disagree with the 
statement in the DOJ memo that ``it is hard to imagine a more 
compelling set of facts establishing an advice-of-counsel defense.'' 
DOJ Memo at 40. While there appears to be no dispute that two of the 
lawyers representing the DNC and Clinton/Gore--Sandler and Utrecht--
were involved significantly in the ad campaign process, the DOJ memo 
itself notes certain factors that cut against a viable advice of 
counsel defense.
            1. No direct contact between lawyers and principals
    The memo points out that where the attorneys never advise the 
principal clients directly, this undercuts to some degree the advise of 
counsel defense. It appears to be undisputed that the two experts, 
Sandler and Utrecht, never had direct contact with the President or 
Vice President. Instead, their advice filtered through intermediaries. 
The principal intermediary was Harold Ickes, who is, after all, the 
subject of a separate investigation for perjury. (While the perjury 
allegations are unrelated to media fund issue, does it make sense to 
shut down an investigation based on an advice of counsel defense where 
the person actually relaying the advice is about to have his own 
independent counsel?)
    There appears to be relatively little evidence that actual legal 
advice was transmitted to the President or Vice President. Instead, 
this seems to be a situation in which the President and Vice President 
were told that ``lawyers were involved'' and that seemed to satisfy 
them. (See, e.g., DOJ memo at 40: ``The Vice President felt confident 
that Quinn, who had some expertise in this area and was a good lawyer, 
had ensured that the ads were legal.'') While certainly relevant to 
state of mind, this kind of evidence is not particularly persuasive in 
establishing a solid advice of counsel defense.
    It also appears that the President and Vice President were relying 
primarily on Ickes and Quinn, even though they were not acting in a 
legal capacity. At the time, Ickes was Deputy Chief of Staff to the 
President and Quinn was Chief of Staff to the Vice President. The fact 
that they also happened to be lawyers does not necessarily mean they 
were dispensing ``legal advice'' for purposes of analyzing an advice of 
counsel defense.
    Finally, there is one clear indication that the legal advice of 
Sandler and Utrecht may not have been getting through. As noted in 
footnote 11 of the DOJ memo (p. 22), ``Sandler and Utrecht stated that 
they consistently applied the `electioneering message' legal standard, 
not the express advocacy standard, when they reviewed the content of 
the DNC ads. Yet virtually every other witness recalls Sandler and 
Utrecht's advice in terms of express advocacy.'' While the memo 
concludes that this inconsistency is not significant, certainly it 
raises some question about whether the attorneys' advice was being 
heard and heeded.
            2. The attorneys were not disinterested
    The DOJ memo points out accurately that Sandler, as general counsel 
for the DNC, and Utrecht, as general counsel for the Clinton/Gore 
campaign committee, ``worked for organizations with an unmistakable 
interest in ensuring the reelection of President Clinton,'' DOJ Memo at 
38. The memo also states that ``courts have declined to instruct juries 
on advice of counsel where the evidence indicated that the attorney was 
not disinterested in the outcome.'' Without impugning their integrity 
or professionalism,\4\ Sandler and Utrecht certainly were not 
disinterested in the outcome.
    \4\ Apparently both Utrecht and Sandler are recognized experts in 
the election law arena, which has very few practitioners. Utrecht in 
particular is a very impressive witness, according to the agents who 
interviewed her.
            3. No one sought advice from the FEC
    If the DNC or Clinton/Gore truly wanted disinterested--and 
dispositive--advice on whether the spending for ``issue ads'' was 
properly allocated, they obviously could have gone to the FEC. They 
chose not to, presumably because they were afraid they might receive an 
answer they did not like. (When I met with the FEC's Chief Auditor in 
September 1998, he reacted viscerally when I asked him if the DNC or 
Clinton/Gore had ever sought advice on these matters.)
            4. The Sandler memo
    There is one clear indication that Sandler--one of the two lawyers 
critical to a viable advice of counsel defense--had doubts about 
whether the media campaign was violating the law. In a February 2, 1996 
memo to Don Flowler, Sandler stated:

        Under (the FEC's legal) test, the DNC is bumping up right 
        against (and maybe a little bit over) the line in running our 
        media campaign about the federal budget debate, praising the 
        President's plan and criticizing Dole by name.

(Emphasis added). When the same memo was sent to Ickes at the White 
House, it had been rewritten to state that the FEC's ``electioneering 
message'' test ``is the standard we are applying (albeit aggressively) 
in the current DNC media campaign.'' When interviewed about these 
memos, Sandler gave a contorted explanation which led our agents to 
believe he was lying.
            5. The investigation was by definition limited
    As is true in any preliminary investigation conducted pursuant to 
the Independent Counsel Act, we conducted this 90-day inquiry \5\ 
without the use of standard investigative tools. Therefore, we had to 
rely on voluntary production of documents, voluntary statements by 
witnesses, and agreed-upon attorney-client privilege waivers. While our 
agents felt that they received full document production from the DNC, 
they were not confident that all relevant White House documents had 
been produced. While I am unaware of any specific documents we believe 
to be missing, Campcon has had significant difficulties with White 
House document production since the Task Force began its work.
    \5\ In fact, because of the deadlines required for preparation and 
review of the DOJ memo and subsequent deliberations, the actual 
investigation was approximately 60 days.
C. The ``clear and convincing evidence'' standard
    Under all the circumstances, it is reasonable to conclude by 
``clear and convincing evidence'' that the president and Vice President 
lacked the requisite state of mind? As we pointed out during 
deliberations on the recent Gore and Ickes matters, Congress clearly 
intended to set a very high threshold before an Attorney General could 
close a case, either before or after a preliminary investigation, on 
the ground that the subject lacked the state of mind necessary to 
commit the alleged crime. In 1987, Congress amended the Independent 
Counsel Act in an effort to curb what it viewed as a ``disturbing'' 
practice by the Department:

          A third problem with the Department of Justice's 
        implementation of the statute is its practice in several cases 
        to decline further proceedings, despite specific information 
        from a credible source of possible wrongdoing, due to a lack of 
        evidence of the subject's criminal intent. The decision not to 
        proceed has sometimes been made even in the face of conflicting 
        or inconclusive evidence on the subject's state of mind.
          * * * * * * *
          The Justice Department's demand for proof of criminal intent 
        to justify continuing independent counsel cases is disturbing, 
        because criminal intent is extremely difficult to assess, 
        especially in the early stages of an investigation. Further, it 
        often requires subjective judgments, which should ideally be 
        left to an independent decisionmaker. It is not the type of 
        factual question that the Attorney General's limited role in 
        the independent counsel process and lack of access to important 
        investigative tools such as grand juries and subpoenas.

1987 U.S.C.C.A.N. at 2159-60.

    The 1987 conference agreement emphasized, ``The conferees believe 
it will be a rare case In which the Attorney General will be able to 
meet the clear and convincing standard and in which such evidence would 
be clear on its face. It would be unusual for the Attorney General to 
compile sufficient evidence at that point in the process.'' Id. At 2190 
(emphasis added).
    The question is whether this is one of those ``rare cases.'' We 
should bear in mind the accurate conclusion that the President and Vice 
President ``both were sufficiently involved to be deemed coconspirators 
or aiders and abettors of any potential criminal violations of the FEC 
or PPMPAA,'' DOJ memo at 31. There was a conscious, well-orchestrated 
effort by the White House to evade the spending limits through the 
media campaign. Moreover, this kind of campaign was unprecedented, as 
the President readily acknowledged when he bragged to his supporters 
about how he had found a new way to spend enormous amounts of money for 
the campaign. Under all the circumstances, notwithstanding the 
potentially viable advice of counsel defense, this matter should not be 
closed on a ``clear and convincing'' finding.


    Even if the Attorney General determines that there is ``clear and 
convincing'' evidence of a lack of intent in this 90-day matter, she 
should step back and consider the impact of closing this investigation. 
It would be fair to summarize the decision in the following way:
    --For two years, the investigators advocated a need to conduct a 
broad investigation of the entire campaign financing scheme conducted 
by the White House and the DNC, including both the raising of campaign 
money and the spending of that money. The media campaign was critical 
to the reelection and many of the apparent criminal abuses resulted 
from the need to keep the money flowing into the media fund.
    --For nearly two years, investigation of the media fund was largely 
off-limits while the Department debated internally about the scope of 
the campaign finance laws and whether we should defer to the FEC. In 
the meantime, the Task Force pursued a variety of individual cases 
largely independent of one another.
    --While we were debating internally on the broader issues, the FEC 
was actually working on a comprehensive audit of the two presidential 
campaigns (much to our surprise). Contrary to the prevailing view 
within DOJ, the FEC auditors found massive violations of the law by 
both presidential campaigns.
    --Faced with evidence of legal violations, the Department was 
forced to initiate a preliminary investigation under the Independent 
Counsel Act.
    --The preliminary investigation consisted primarily (but not 
exclusively) of an examination of an advice of counsel defense. We went 
to the subjects and their lawyers and asked them what happened. They 
informed us that the subjects had no criminal intent, notwithstanding 
the apparent violations. After investigating that issue, we agreed with 
the subjects and closed the entire matter, with one exception:
    --The exception is the related investigation of the Dole campaign. 
Since we have no evidence relating to an advice of counsel defense for 
that campaign, we will keep that investigation alive, particularly in 
light of the FEC's recent Audit Report.
    The media fund/Common Cause allegations have always been the 
biggest piece of the campaign finance scandal. In large part, those 
allegations led to the creation of the Campcon Task Force in the first 
instance. Nevertheless, those allegations have never been investigated 
in any comprehensive or organized way. Nearly a year ago (January 
1998), we sent a detailed memorandum to the Department seeking a 
comprehensive investigation of the Common Cause allegations. In that 
memo, we stated:

          ``[T]he Common Cause allegations are the most serious of 
        those issues raised in connection with the investigation of 
        campaign finance.'' In a series of well-researched submissions, 
        Common Cause has described a scheme to circumvent the FECA and 
        presidential funding laws on a breathtaking scale. For knowing 
        and willful violations of these laws, Congress provided for 
        criminal penalties.
          It has been nearly 16 months since Common Cause first brought 
        these allegations to the attention of DOJ. The Department has 
        on more than one occasion written to Common Cause stating that 
        the Task Force is ``reviewing a variety of campaign financing 
        issues arising out the last national election'' and is 
        ``examining'' the soft money issues raised by Common Cause. In 
        fact, the Task Force has undertaken no actual investigation of 
        these allegations. Consequently, some of the most fundamental 
        questions relating to the 1995-96 presidential campaign remain 
          --How were the campaign funds raised?
          --How were they spent?
          --How were they allocated and reported for FECA purposes?
          --Who made the fundraising and spending decisions?
          While the Task Force has uncovered partial answers to these 
        questions, in particular the last one, it is not because we 
        have addressed them in any systematic investigative fashion. 
        Instead, our information has come primarily from Common Cause, 
        the newspapers, and tangentially from our investigation of 
        other matters.

    Very little has changed in the last year. After several months of 
memos and discussions last winter, in February the Attorney General 
took under advisement the matter of whether the Common Cause 
allegations could be investigated. We never received a response until 
July of 1998, when we read (with great surprise) the Attorney General's 
congressional testimony in which she stated that the Department was 
deferring to the FEC.\6\
    \6\ In April 1998, the Task Force investigators developed a 
investigative plan and dubbed it the ``Media Fund'' plan. Because it 
was never clear how the Task Force could investigative the ``media 
fund'' while steering clear of the Common Cause allegations, the 
investigative plan was necessarily truncated. In any event, beginning 
in May, the investigators began to conduct the ``media fund'' 
investigation and obtained a significant amount of information that 
became very useful during the current 90-day preliminary investigation. 
That investigation consisted primarily of interviews of state party 
officials in a dozen key battleground states (focusing on the use of 
the state parties as conduits for the DNC), document production by the 
media consultants, and interviews of three DNC employees (Brad Marshall 
and two lower-level employees).
    Our January 1998 memorandum also recommended the immediate 
appointment of an independent counsel:

          Because the Common Cause allegations clearly involve the 
        President, they must be investigated by an Independent Counsel. 
        Moreover, the Attorney General should seek the appointment of 
        an Independent Counsel immediately. Since the Department has 
        had the allegations for nearly 16 months, a preliminary inquiry 
        does not appear to be an option. Finally, we once again would 
        incorporate by reference the FBI's prior written submissions 
        recommending that, independent of the mandatory provision of 
        the Independent Counsel statute, the Attorney General should 
        exercise her discretionary authority pursuant to the political 
        conflict of interest provision.

    Notwithstanding the passage of time, our arguments remain the same. 
If anything, the need for investigation has increased. Intentionally or 
not, the Department has deferred to the FEC, which has spoken publicly 
in a resounding way.
    For nearly two years, the Department has been investigating the 
potential criminal conduct of the President and Vice President. That is 
an inherent conflict of interest that the Independent Counsel Act was 
designed to address. Even if the Attorney General concludes by ``clear 
and convincing evidence'' discretionary authority and seek the 
appointment of an independent counsel.

    Attorney General Reno. Do you have that, sir?
    Senator Grassley. Yes, I think we do have it.
    Attorney General Reno. May I see it, please?
    Senator Grassley. Oh, we have it in 407.
    Senator Specter. I think we can provide a copy momentarily. 
That is a subject that I intend to ask the Attorney General 
    Senator Grassley. Well, since I have asked the staff to get 
that--we do not have it, so we would request then that that be 
given to us so we can include it in the record.
    Senator Specter. Well, I am sure we can obtain it. All of 
those documents have been released into the public domain.
    Attorney General Reno. I would refer you to page 3 of a 
memorandum from Larry Parkinson to Director Freeh. ``I view the 
advice of counsel defense as fairly strong in this case, but 
not strong enough to satisfy the `clear and convincing' 
standard under the Independent Counsel Act.''
    Senator Grassley. OK.
    Attorney General Reno. That is somewhat at odds with 
whatever document you have, sir, and I would like to see it, 
    Senator Grassley. Okay. Well----
    Senator Specter. Well, we will get to that. Mr. Parkinson 
in that memorandum----
    Attorney General Reno. I am just--let me deal with Senator 
Grassley. All I am trying to say is he read something to me. I 
have a Parkinson memo on this issue. I would like to be able to 
see what you are reading from so that I might appropriately 
respond, since it does not seem to be what I have.
    Senator Specter. Well, we will be glad to make that 
document available to you. But----
    Attorney General Reno. May I make--because you I know you 
have this, and I do trust that you will look at it and note 
that he viewed the advice of counsel defense as strong.
    Senator Specter. Well, the memorandum by Mr. Parkinson goes 
into some detail in dismissing the advice of counsel argument 
on a number of grounds: first, that the two lawyers, Joseph 
Sandler and Lynn Utrecht were not disinterested parties. Mr. 
Sandler was general counsel for the DNC, and Mr. Utrecht or 
Lynn Utrecht was general counsel for the Clinton-Gore campaign.
    He further dismisses the advice of counsel argument on the 
ground that those lawyers did not give their advice directly to 
the President and Vice President, but to intervening 
individuals, Mr. Ickes and Mr. Quinn, who were not 
disinterested parties.
    And, finally, he dismisses the advice of counsel argument 
on the ground that there was a reservation by Mr. Sandler who 
said, ``Under the test, the DNC is bumping up right against and 
maybe a little bit over the line.'' So that as you accurately 
quote, Attorney General Reno, he does say that it doesn't 
satisfy the clear and convincing evidence test, but Mr. 
Parkinson thoroughly debunks the advice of counsel defense in 
his written memorandum.
    Attorney General Reno. No, Senator, I would take issue with 
you. He does not debunk it. He calls it fairly strong. What he 
says is: I can't meet the clear and convincing evidence test 
that the statute requires for showing intent. But he does not 
address the points made in 6 through the end of the 
notification to the court, and I would ask that Senator 
Grassley be given a copy of it so that he can understand the 
lengths that we went to, the law that we considered, and I will 
be happy to make this available to him if it is not with the 
    Senator Specter. Well, we are going to get into the point a 
little later in detail. Whether you agree with the conclusion 
that he debunks it or not, he conclusively comes to the 
judgment that it was not sufficient to reject the appointment 
of independent counsel. Wouldn't you agree with that, Attorney 
General Reno?
    Attorney General Reno. Let me get it for you again and just 
go over the points so that you can understand.
    Senator Specter. Well, I do understand, and Mr. Parkinson 
comes to the conclusion----
    Attorney General Reno. Well, he certainly didn't debunk 
    Senator Specter. Excuse me. I want to finish my sentence. 
That the defense of advice of counsel does not constitute clear 
and convincing evidence to negate the requisite intent. Isn't 
that correct?
    Attorney General Reno. He says, ``I view the advice of 
counsel defense as fairly strong in this case, but not strong 
enough to satisfy the `clear and convincing' standard under the 
Independent Counsel Act.''
    Senator Specter. That is what I said.
    Attorney General Reno. He and I disagree on that, and we 
have set forth our position and I think made it very clear.
    Senator Specter. Well, I understand you disagree. The point 
was whether Mr. Parkinson found the clear and--found the advice 
of counsel argument sufficient to reject----
    Attorney General Reno. He did not find it sufficient, as I 
pointed out, but neither did he debunk it.
    Senator Specter. Well, I think the point has been made. He 
said that the argument did not support your conclusion that 
independent counsel should not be appointed.
    Attorney General Reno. I was responding to Senator 
Grassley's comment that indicated that he did not think 
theadvice of counsel defense was very strong.
    Senator Specter. Senator Grassley and I have passed the 20-
year test. We help each other out occasionally.
    Senator Grassley.
    Attorney General Reno. I don't think Senator Grassley needs 
anybody to help him. I have found him very constructive and 
very thoughtful and an excellent advocate.
    Senator Grassley. Now, we will have to end this right here 
by my saying to you that we are going to pursue that document 
from S-407, get that to you, and if we--we may have to do it by 
our response in writing, but we will give you a chance to 
respond to that.
    Attorney General Reno. Thank you, sir.
    Senator Grassley. I think I might have time for a couple of 
questions, and I am well aware of your admonition that I should 
be appreciative of Mr. Radek's work, as you are.
    Attorney General Reno. Could I just say something? 
Everybody has been calling him Mr. ``Ra-dek.'' It is Mr. ``Ray-
    Senator Grassley. Well, Mr. Radek. Now, going on from that 
point, we are talking about the same person.
    I want to ask you a question, and that is in reference to 
the fact that I had made reference to an inspectors general 
meeting and how a U.S. attorney had offered their services as 
an alternative to career investigators trying to present 
evidence of misconduct against high-ranking officials. I was 
wondering if you were aware of the feeling among at least some 
U.S. Attorneys--and there was only one U.S. Attorney at this 
meeting that spoke about this--of the frustration with the 
Public Integrity Section. And were you aware of that Public 
Integrity Section's reputation?
    Attorney General Reno. I am aware of their reputation of 
calling it like they see it, of looking at all the evidence, of 
not jumping to conclusions, of making the best judgment they 
can. I am also away, after 22 years as a prosecutor, that 
nothing can get an investigator more upset than somebody that 
tells them you need to get more evidence, and that there is an 
inevitable tension and conflict. And I think it is important 
that we look at each case.
    I have met with the inspectors general, talking about how 
we can build better lines of communication. I have worked with 
the U.S. Attorneys in the Criminal Division to make sure that 
there is coordination between them and that some of the tension 
that exists be resolved by establishing direct lines of 
communication and understanding what is necessary.
    Senator Grassley. On another point, but still in regard to 
Mr. Radek, at a previous hearing he had expressed his 
displeasure with the independent counsel. So my question to you 
is: Did he ever express his displeasure with the independent 
counsel statute to you?
    Attorney General Reno. Yes.
    Senator Grassley. Then my question to you is: How did you 
weigh that in your decision?
    Attorney General Reno. Well--do we have that?
    Apparently, when the Independent Counsel Act was being 
considered, for example, in 1981, the then Associate Attorney 
General Rudolph Giuliani testified before the Senate Committee 
on Governmental Affairs urging that the action be repealed. 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.''
    I think I relied on Lee Radek like the administration at 
the time relied on Rudy Giuliani as a vigorous prosecutor.
    Senator Grassley. And so then the bottom line of that is 
that Mr. Radek's view of the independent counsel law and the 
fact that he didn't like that was in no way--or you saw that in 
no way of lessening his opinion about whether or not there 
ought to be an investigation or counsel----
    Attorney General Reno. There are so many things that come 
up where people disagree and still carry out the law and do it 
the right way.
    Senator Specter. Thank you very much, Senator Grassley.
    Senator Kyl.
    Senator Torricelli. Mr. Chairman, if I could ask how we are 
going to proceed here, the Democratic Party obviously would 
like to continue to be heard in this rotation.
    Senator Specter. All they have to do is appear and they 
will be heard, as the court crier says all the time.
    Senator Torricelli. Previously we have been alternating a 
balance, regardless of the number of people who were here on 
each side. Is it your intention now to proceed entirely with 
the Republican side before returning----
    Attorney General Reno. While you are deciding that, may I 
take a break?
    Senator Specter. Yes, of course. We will take a 10-minute 
    [Recess 4:38 to 4:47 p.m.]
    Senator Specter. We will turn to Senator Sessions.
    Senator Sessions. Senator Torricelli and I have talked 
about this email matter, and he raised a point of interest, 
skillfully, as he always does. I would note that the e-mail I 
had reference to was dated March 15 from his assistant to Vice 
President Gore saying that Rabbi Grossman hasinvited you to 
appear to give the keynote address at the rabbinical counsel in New 
York. Then she went on to say, ``This is the same evening you wanted to 
fly out to California and do the two fundraisers in San Jose and 
L.A.''--Los Angeles--``while Sarah and Mrs. Gore visit colleges.''
    So I would just say that responds directly to his inquiry 
and direction about the fundraisers, and she said further, ``We 
have confirmed those two fundraisers for Monday, April 29.''
    Then the Vice President the next day, March 16, responds, 
``If we have already booked the fundraisers, then we have to 
decline.'' And there were two that day, the San Jose and the 
temple fundraiser. And I must note that that appears to be the 
16th, the day after the Vice President, as I recall the facts, 
met with John Huang, Maria Hsia, and the temple master in the 
White House. And I would suggest it would be quite likely that 
they would have discussed on that day that a fundraiser was to 
occur in the Buddhist temple fundraiser, at least in Los 
Angeles. It is a matter that does not prove a criminal case. It 
is a matter that I would suggest that provides some credence to 
the fact that the Vice President would have known this was a 
fundraiser; would you not agree, Attorney General Reno?
    Attorney General Reno. I will not comment, sir. I do not 
think it is right to comment on a pending investigation before 
all of the facts are in, and I shall not.
    Senator Sessions. I appreciate that and respect that. Our 
problem here is that the Executive Branch has exclusive 
prosecutorial responsibility and since we have given up the 
independent counsel procedure, there is no other procedure for 
that. So I think it is particularly legitimate, under this new 
time, that the Congress watch closely when the Executive Branch 
is called upon to investigate itself. And that is why I justify 
Senator Specter's concern about this and desire to have a 
hearing. And I am not asking you to say what you cannot say, 
but I do believe that it is a matter of utmost importance and 
that the American people need to have complete confidence in 
this procedure.
    Attorney General Reno. And I do urge you to watch 
    Senator Sessions. The matter that really has caused me 
distress and to lose some confidence in what has taken place so 
far with regard to this investigation and its late ripening was 
what occurred in 1996, Attorney General Reno. That is when 
Assistant U.S. Attorney Mansfield prepared, at least initially, 
some papers toward commencing an investigation of the temple 
fundraiser after he read about it in the newspaper. Of course, 
he had successfully convicted Republican Congressman Kim on 
campaign finance matters, and he saw this arise in the 
newspaper and begin to take some steps toward proceeding with 
it. Perhaps there was a misunderstanding about whether he 
actually issued subpoenas, but we saw the paperwork where he 
had commenced the paperwork toward issuing subpoenas.
    And I guess my question to you is, well, before he got very 
far toward that end, he received a directive, verbal and 
written, from Mr. Radek to stop the investigation, that Mr. 
Radek and Public Integrity was taking it over. Were you aware 
that that directive had gone out to stop that investigation?
    Attorney General Reno. I was aware that they were trying to 
do everything they could to make sure that any case that might 
be subject to the Independence Counsel Act be appropriately 
    Senator Sessions. So you basically understood that Los 
Angeles would be stopped from what they were doing and that 
Public Integrity would take it over.
    Attorney General Reno. That is correct.
    Senator Sessions. Were you aware that from the date that 
Public Integrity took that over--well, let me back up. One of 
the things that triggered that, if you will recall, was a 
letter from Senator McCain and five Congressmen requesting an 
independent prosecutor, listing some concerns. Part of that was 
the Buddhist Temple fundraiser that they listed. Do you recall 
    Attorney General Reno. I recall the 5-star letter, sir.
    Senator Sessions. Yes. And that is what triggered, as I 
understand it, Mr. Radek's and your decision to intervene and 
take it over. Were you aware that after it was taken over that 
no subpoenas were issued, no witnesses were interviewed, no 
records were obtained from the Buddhist Temple fundraiser, and 
that the recommendation Mr. Radek made to you to decline an 
independent counsel at that time was based solely on newspaper 
articles and maybe the letter from the Senators and 
    Attorney General Reno. I do not know to what you are 
referring, sir.
    Senator Sessions. Well, in our hearings, Mr. Radek 
testified that he did not conduct any investigation, did not 
interview any witnesses, and did not obtain any records, as the 
assistant U.S. attorney in California had planned to do, but 
yet he still made a recommendation that there was no basis for 
an independent counsel. And my question is did you know he had 
conducted no investigation to obtain any information?
    Attorney General Reno. I do not think so, sir. If you have 
the language from--if you have the transcript, I will take a 
look at it and try to understand it better.
    Senator Sessions. I hope you would because, to me, 
Mr.Mansfield, the experienced prosecutor in California, testified that 
he was very concerned and actually had a contentious telephone call or 
two with the Public Integrity Section, in which he expressed concern 
that witnesses would disappear, that records could be destroyed. And we 
know, since that time, that a number of the witnesses have left the 
country, that Ted Sioeng has left the country, a man whom the Vice 
President was sitting next to at this fundraiser, that one of the nuns 
admitted destroying evidence ``because we did not want to embarrass the 
Vice President,'' and that the video of the event was never obtained.
    Are you familiar with those circumstances?
    Attorney General Reno. No, sir. What I am familiar with is 
a letter to Congressman Gilman, dated November 29, 1996, in 
which he said, ``Mark Richard wrote saying the issues raised in 
your letter, taken as a whole, are extraordinarily complex, 
both factually and legally, and warrant careful consideration. 
Indeed, public interest organizations, the press, members of 
Congress and the public have recently expressed concerns about 
campaign financing practices by both parties in the recent 
national election. As a result of these serious and legitimate 
concerns, a task force has been created within the Public 
Integrity Section of the Criminal Division, composed of career 
Federal prosecutors, to explore fully the range of allegations 
and issues that have been raised. The task force will determine 
which, if any, warrant criminal investigation or any other 
action by either the Department or an independent counsel and 
will conduct, with the assistance of the appropriate 
investigative agencies, any criminal investigations that are 
    My understanding is that the Temple matter was thoroughly 
investigated by the task force, and if we, at that time, had 
uncovered any information that showed that there was specific 
and credible information that a covered person may have 
committed a crime, we would have triggered the Independent 
Counsel Act.
    Senator Sessions. But what happened was, just to be clear, 
in Mark Richards' letter that you just referred to, on Page 1, 
the last paragraph, says, ``We reviewed your letter * * *'' 
that is to the Congressman ``* * * as well as press reports and 
correspondence we have received.''
    But it indicates pretty plainly that they did nothing else, 
and this was the 30-day preliminary inquiry period that, it 
seems to me, quite important that that investigation should 
have initiated, key witnesses should have been interviewed, 
documents should have been obtained, if possible, and then we 
would have been in a lot better position to make a decision 
than based on press reports; would you not agree?
    Attorney General Reno. I think that there are certain 
thresholds for investigation. And I think before we trigger the 
preliminary investigation, that we have got to have specific 
and credible evidence.
    Senator Sessions. Well, what we do know is that, later on, 
the Vice President was interviewed a little over a year later 
and a decision was made, apparently at the highest levels, not 
to ask about the Buddhist Temple matter. And it was only 4 
years later, after this assistant United States attorney had 
been prepared to investigate, that the Vice President was even 
asked about it, and that was just a few months ago. And it was 
after that that Mr. Conrad has now concluded a person outside 
the Department should be called upon to conduct this 
investigation, pursuant to your procedures for a special 
    I guess my time has expired, but if you would like to 
comment on that----
    Attorney General Reno. Yes, I would. Mr. Conrad, and Mr. La 
Bella before him, and Mr. Vicinanzo have conducted the 
investigation in the manner that they thought was best. And I 
am not talking about the Independent Counsel Act. I cannot talk 
about the course of a pending investigation. I do not think 
that is right or proper to try something in a committee 
hearing, as opposed to a court. But I feel very strongly that 
all three men are very able prosecutors and made their best 
judgment. I cannot control the timing of an investigation 
because I cannot control the course of trial dates, appeals and 
the like. But I am committed to making sure that justice is 
done promptly and swiftly, no matter what the ultimate result 
    Senator Sessions. Well, you have a lot of responsibilities, 
but I believe your staff, and we have had indepth hearings 
about it, failed you. And in a sense, you failed to supervise, 
in making that declination of independent counsel at that early 
date without even commencing any investigation. I think that 
was an error, and that has caused us to be at this late stage, 
and also has caused me to believe that the American public have 
a greater interest in having a special outside counsel 
conducting this than an inhouse counsel.
    Attorney General Reno. I know you feel that way, sir. If 
circumstances justify the appointment of a special counsel, I 
will be the first person to do it.
    Senator Sessions. Thank you very much.
    Senator Specter. Attorney General Reno, we have brought 
down the memo, and I will be glad to make a copy of it 
available to you, on Parkinson. Let me know preliminarily that.
    It starts off under the ``Advice of Counsel Section'' 
asfollows: ``I view the advice of counsel defense as fairly strong in 
this case, but not strong enough to satisfy the `clear and convincing' 
standard under the Independent Counsel Act.''
    You read the part about it viewing it as strong. But then 
he goes on to say, ``I strongly disagree with the statement in 
the DOJ memo * * *'' that is your memo ``* * * that it `is hard 
to imagine a more compelling set of facts establishing an 
advice of counsel defense.' ''
    The ``clear and convincing'' test was put into effect in 
the Independent Counsel statute with the Congress in 1987 
because thenAttorney General Meese was declining independent 
counsel on the ground of state of mind. So the Congress took a 
look at it, and the legislative history is clear, but even 
beyond the legislative history, the statute says that there 
have to be clear and convincing evidence of no criminal intent 
in order to rule out appointment of independent counsel.
    We are going to take a break in just a few minutes. A vote 
has been called at 5 o'clock. We will give you a chance to read 
    Attorney General Reno. That is what I have been reading 
from, sir, and that is what I would like to respond to.
    Senator Specter. Go ahead.
    Attorney General Reno. Okay. It is going to take some time. 
So if you want to wait until you come back, I----
    Senator Specter. Well----
    Attorney General Reno. I want to go through the entire 
    Senator Specter. All right. I would prefer, in the 4 
minutes or so that I have left, to come back to a couple of 
questions which were pending on how many witnesses there were 
who provided evidence on hard money. In your statement, you say 
``only two----''
    Attorney General Reno. Which case are you talking about, 
    Senator Specter. Hard money, the question about whether the 
Vice President knew that----
    Attorney General Reno. Are you talking about the second 
notification with respect to the preliminary investigation?
    Senator Specter. I am referring to the notification, which 
you signed on August 26, 1998.
    Attorney General Reno. OK, sir.
    Senator Specter. It is a closed matter. And at Page 9, and 
you have referred to this, ``Only two of the fifteen attendees 
at the meeting even recall the topic of a hardmoney component 
to the media fund being raised during the meeting.''
    Now, the evidence showed that there were four witnesses who 
made statements to the FBI regarding the hard money. Leon 
Panetta, White House chief of staff, said there was, among 
other things, ``There was always a discussion and examination 
of the overall DNC budget and, at a minimum, a reference to the 
hard/soft breakdown in the media fund.'' Recalls the Vice 
President being there for all of these discussions as part of 
gearing up the reelection campaign. Meetings were structured 
around presentation to the President and to the Vice President.
    And on your point that there was lack of focus, and I 
commented on this before, Mr. Panetta was quoted as saying, 
``Make sure they knew what the hell was going on.''
    Now, David Marshall, ``recalled general discussion 
regarding the media campaign, including how much the DNC had 
spent to date and how much hard money was needed and how much 
soft money was needed to fund the media campaign.''
    Brian Bailey, specifically, ``he recalls individuals 
discussing hard/soft money at the November 21, 1995, meeting,'' 
and that is the one that the President attended.
    Now, when you disagree with what David Strauss provided 
because he had made contemporaneous notes of the November 21st 
meeting, 65-percent soft and 35-percent hard, it may be true 
that he has no independent recollection, did not testify, but 
his recollection was recorded, I do not think there is any 
doubt that that is evidence. Whether he remembers it or not, if 
he has prior recollection recorded, that is admissible 
    So my question to you: Is it not a fact that there were not 
two of the fifteen attendees, but there were three who 
recalled, and a fourth provided evidence in the form of prior 
recollection recorded?
    Attorney General Reno. My understanding is that there were 
two who recalled the discussion, that a Mr. Bailey did not say 
he remembered the statements; rather, when shown Strauss's 
notes, he said they might be referring to hard/soft split of 
funding for the media fund, but had no memory of the statement.
    Senator Specter. Can you speak into the microphone, please.
    Attorney General Reno. The other person cited by Mr. 
Parkinson, Strauss, also had no memory of the discussion of the 
    Senator Specter. But is it not true that Strauss had 
recorded his prior recollection?
    Attorney General Reno. That is correct. But the issue is 
what was remembered, what was heard, what was understood, what 
was remembered.
    Senator Specter. Is not the issue what evidence there was, 
not what was remembered?
    Attorney General Reno. I am looking----
    Senator Specter. If there is prior recollection recorded, 
is that not evidence?
    Attorney General Reno. I am looking for evidence of what 
the Vice President heard, understood and remembered.
    Senator Specter. Well, let us focus on----
    Attorney General Reno. Because I cannot prosecute when I 
cannot prove a willful and----
    Senator Specter. Well, let us focus on this for just a 
minute, and I am going to come to the point as to whether the 
standard was what you could prosecute on because I do not think 
that is the standard under the----
    Attorney General Reno. That is not the standard, sir. The 
standard, what I concluded in this instance was, ``Thus, I do 
not believe--the evidence I do not believe provides reasonable 
grounds to believe that further investigation of this matter is 
warranted. Notably, others attending the meeting also left it 
with an inaccurate understanding of the funding of the media 
campaign. The range of impressions and vagueness of 
understandings among all of the meeting attendees is striking 
and undercuts any reasonable inference that mere attendance at 
the meeting should have served to communicate to the Vice 
President an accurate understanding of the facts.''
    Senator Specter. I am going to come back to that, as I say, 
as to what the prosecution standard was.
    But for just a moment, I want to focus on what is evidence. 
You proceed on evidence. Now, it may be a recollection, where a 
witness would testify as to what the witness recollected. But 
when David Strauss had a contemporaneous memorandum which says, 
``65-percent soft/35-percent hard,'' that is prior recollection 
recorded. And that is admissible evidence, is it not?
    Attorney General Reno. I need to prove--I need evidence 
that shows what the Vice President heard, what he understood 
and what he recollected. Just because David Strauss heard 
something, does not mean the Vice President heard it.
    Senator Specter. Well, of course it does not. But it raises 
an inference that if David Strauss is in a meeting with the 
Vice President and heard something, that the Vice President 
heard it. It does not prove it, but a jury could find it.
    Attorney General Reno. And if David Strauss does not 
    Senator Specter. Well, that is what I am focusing on. He 
does not have to remember, Attorney General Reno, if he has 
prior recollection recorded. Evidence in a court of law is 
satisfied by prior recollection recorded, as well as by current 
recollection as to what he heard. Are you denying that as a 
basic evidentiary rule?
    Attorney General Reno. I am talking about if you want 
evidence in as to David Strauss's memory, that is one thing. I 
am trying to prove what the Vice President remembered.
    Senator Specter. OK.
    Senator Torricelli. Mr. Chairman, may I make an inquiry 
here? We are in the middle now of a vote in the Senate. There 
are going to be three successive votes on the Senate floor. The 
Attorney General has been here now for 3 hours and 8 minutes. I 
would appreciate a moment to say before I leave, I hope it 
would not be the committee's intention to keep her here by 
herself for an hour while we go with these votes, since she has 
been through several rounds of questioning. But in any case, 
Mr. Chairman, now in this round, you have addressed her for 10 
minutes. I would like a moment, before we break to go to the 
vote, and it would be my hope then that the Attorney General 
would have the option of leaving at this point, in fairness to 
her, after so many hours of cooperative testimony.
    How would you like to proceed?
    Senator Specter. Well, if you wish to question now, I would 
be glad to defer to you. And what I would suggest--well, I 
would ask the Attorney General are you willing to stay longer?
    Attorney General Reno. Are you going to keep me waiting for 
an hour?
    Senator Specter. No. What I would plan to do is to leave 
here at about 5:18, go and vote and come back
    Attorney General Reno. How long?
    Senator Specter. About 10 minutes.
    Attorney General Reno. How long after that? Because I have 
    Senator Specter. About 15 minutes.
    Attorney General Reno. When do you think you will conclude?
    Senator Specter. Before 6 o'clock.
    Attorney General Reno. OK.
    Senator Specter. Senator Torricelli.
    Senator Torricelli. Thank you.
    Madam Attorney General, thank you very much for your----
    Attorney General Reno. I will have to leave at 6:00, 
Senator, because I do have a meeting.
    Senator Specter. I am going to leave now and come back, and 
it will abbreviate the time.
    Attorney General Reno. OK.
    Senator Torricelli. Which makes me the only Democratic 
chairman of a committee in the entire Congress of the United 
States, Madam Attorney General. This is an enormously powerful 
    I, actually, for the record, first, wanted to clear up 
several things. Indeed, from the testimony the committee has 
heard in recent weeks, your recollection, Madam Attorney 
General, is correct. Indeed, Mr. Strauss only recalled the 
hard-money discussion on his third interview. There are only 
two people who remembered it initially, leaving thirteen who 
did not. And it is important that the record reflect that.
    Second, it is important Senator Sessions should know that 
on the schedule for that day, it may well be that the e-mails 
indicated the Vice President was going to a fundraiser on the 
29th. They do not indicate whose it was or anything about a 
Buddhist Temple. But more significantly, the Buddhist Temple 
event was at 1:30 p.m. Indeed, at 6:30 p.m. that night, he did 
have a meeting with the Finance Committee Steering Committee at 
the DNC. That is not in dispute. So, if the e-mails suggested a 
fundraiser on the 29th, it was correct, but it was not 
necessarily the Buddhist Temple event.
    Third, Senator Specter, I am sure did not, in any way, 
intend to mislead the committee. But I read earlier from the La 
Bella memorandum of July 16, 1998, an excerpt, a single page 
dealing with Vice President Gore. I read that into the record 
to give credence to Mr. Radek's conclusion that the memorandum 
was I think his term was simplistic; in any case, that it 
consisted of a single page and was not enough of a foundation 
for the naming of an independent counsel.
    Senator Specter read an additional excerpt. It is important 
for the record to note that is not from the La Bella memorandum 
of July 16. It does not have anything to do with the July 16th 
memorandum of Mr. La Bella. It was written at a later time in 
response to the Justice Department's decision, and there is no 
evidence that that was part of your deliberations or your 
decision-making process. I know he did not want to mislead the 
committee, but I do think it is important the record make clear 
my point stands. There was one page of analysis with regard to 
the Vice President. And as Mr. Radek suggested, it was very 
simple in its analysis.
    Third, I would like to conclude by returning to Senator 
Feingold's point. Madam Attorney General, it is too late for 
the 1996 elections. And people in both parties have regrets how 
they were conducted, and there were mistakes made, not simply 
by the President, and the Vice President or Senator Dole, but 
indeed in many congressional elections. The laws are not being 
respected. There are problems. People in our country are not 
regarding them properly.
    It is too late for 1996. It is not too late for 2000. The 
burden is primarily on this Congress, which has failed to meet 
its responsibility with comprehensive campaign finance reform. 
That is our problem, and we should be answerable to the 
American people for it. It is a breakdown of congressional 
    But there is something additional in the Justice 
Department. While the Congress should be making clear that 527 
organizations, as identified in the tax code, should not be 
used for blatant political purposes, coordinated with 
campaigns, misused by organizations, they are not only a policy 
problem--in my judgment, they are a legal problem.
    And I would hope that at this point if the Campaign Finance 
Task Force and the Justice Department can make a great 
contribution, it is not correcting the past in 1996, it is also 
helping to deal with the 2000 elections. These organizations 
are illegal. They are improper deductions from people's taxes, 
conduits for private, corporate and even foreign money in the 
electoral process. They are being coordinated with campaigns. 
And after the 2000 elections, Madam Attorney General, it is 
going to be too late. People are going to win or lose elections 
based on the misuse of the tax code for these purposes. And 
just because the Congress has failed, does not mean the Justice 
Department has to fail. I hope you will take that under 
    Now, as a closing point, I only want to leave you then with 
this: I actually, unlike my colleagues, do not fault Senator 
Specter for revealing what was told to him about the interview 
of the Vice President. That was his judgment. But there is 
another matter. The choice between George W. Bush and Al Gore 
should be made in a debate between the candidates, not a debate 
between leaks from the Justice Department and statements by the 
Vice President. This cannot happen again, and it is wrong.
    You will make your judgments, the Department will make its 
own judgments. They should be done privately, and they should 
be done so on the merits. This situation should not repeat 
itself. And I do not believe this is a failure of policy. It is 
a violation of the law. FBI agents were present at the Vice 
President's interview. The Vice President was placed under 
oath. Both of those must have been in contemplation if there 
was a future grand jury or a legal proceeding.
    As you know from the case of the Office of Independent 
Counsel in the Lewinsky matter, in the rulings of the United 
States Court of Appeals, a matter likely to be presented, in 
the words of the Court, to a grand jury is a Rule 6(e) 
violation. It is a felony.
    I do not know how it is done. I do not pretend to be giving 
advice on how you administer the Justice Department.But, Madam 
Attorney General, someone has let the Department down. Someone has 
violated the laws of the United States in revealing information that 
should have belonged to you and your associates alone--not the media, 
not me, not this committee, not any partisan political activity. 
Someone let you down. I hope that you are vigorous in finding out how 
that happened, whether it is polygraphing people who had access to the 
information, whether it is taking their statements. I do not know who 
it is.
    And indeed, unlike some of the committee, I have a great 
regard for Mr. Conrad. He seems to be a man of integrity. I 
believe he is a serious man. He is entitled to have views that 
differ from me and differ from you. I think he is a good man. 
But someone who had access to his thinking and the things that 
he was writing, did not do right by the Department of Justice.
    Madam Attorney General, thank you very much for your 
testimony today. No one, under the cruel and--unusual cruel and 
punishment provisions of the Constitution should be held before 
this committee for 3 hours and 15 minutes. You were great to do 
    Attorney General Reno. Thank you, sir.
    Senator Torricelli. And now for the first time in this 
Congress, as a Democrat, I get to say the committee is in 
    Attorney General Reno. Thank you.
    Senator Torricelli. Thank you.
    [Recess from 5:16 p.m. to 5:22 p.m.]
    Senator Specter. Attorney General Reno, I want to come back 
to the point of how many witnesses there were who testified 
that hard money was discussed in the meeting attended by the 
Vice President on November 21, 1995. I want to come back to the 
point about the available evidence.
    Now, it is certainly true that because four witnesses can 
provide evidence that hard money was discussed, it does not 
establish with mathematical certainty that the Vice President 
knew hard money was discussed, but it is pretty strong 
evidence. And you had discounted what David Strauss had said 
because, as you put it, he did not recall, but there were 
contemporaneous notes of his which showed, ``35-percent hard, 
65-percent soft.''
    Now, my question: Is not that prior recollection recorded 
an evidence which could be presented on the issue as to whether 
the Vice President heard a discussion of hard money?
    Attorney General Reno. I do not see how that proves that he 
heard, that he understood and that he recollected.
    Senator Specter. Well, that is an interesting observation, 
but it does not relate to my question.
    Let me start again. My question is whether he heard, and 
then the inference is to whether he knew and understood. But he 
said that he is an experienced fundraiser, and we know that as 
a matter of his record. So the question is, when you discount 
the evidence by saying there are only two of the fifteen 
attendees who could provide evidence, and you discount Strauss 
because he has no recollection, I come back again to the point 
that, as a matter of the law of evidence, that is prior 
recollection recorded and could come before a grand jury or 
come before a court probative on the issue as to whether the 
Vice President heard it; is that not true?
    Attorney General Reno. I am sure, sir, that your knowledge 
of evidence has given you some reason to believe that this 
could be relevant, and so I will be happy to go back and check 
    Senator Specter. Well, there cannot be a conclusive, you 
cannot mathematically say that the Attorney General is wrong on 
a judgment call. But I think you can say, as a matter of law, a 
prior recollection recorded is evidence that could be presented 
to a grand jury or to a trial court. And the balance of the 
record shows that there were three witnesses who heard hard 
money discussed, all of which would have been relevant to 
whether the Vice President heard it. That, I think, is a matter 
of law.
    Would you care to comment?
    Attorney General Reno. Yes, my determination had to be 
whether the evidence was clear and convincing, and I determined 
that the evidence was clear and convincing.
    I would ask you, if we are all to be judged in terms of 
whether we are correct or whether we are incorrect by something 
that happened 2 years before, and we are at a 2-hour meeting, 
and people talk about a variety of complex subjects, and we are 
expected to remember or it is to be inferred that we should 
remember, I do not think is realistic. And, therefore, I found 
that the evidence was clear and convincing that he did not have 
the intent to falsely state.
    Senator Specter. Well, the evidence that you disregarded in 
coming to that conclusion was one person who heard and another 
person who could have provided evidence of prior recollection 
recorded. So that the base of your recitation of facts is 
    But let me move on to the next point, and that is that the 
independent counsel statute was structured to give the 
Department of Justice a very limited window on its 
investigation. You could not use a grand jury to call 
witnesses, put them under oath.
    Attorney General Reno. Could I make one correction to what 
I believe your point is? You indicated that Mr. Strauss had his 
recollection refreshed by his notes.
    Senator Specter. No, I did not say that at all.I said it 
was prior recollection recorded, which is different from present 
recollection refreshed. Present recollection refreshed is when somebody 
looks at his notes, and he remembers. Prior recollection recorded is 
where someone looks at his notes and says, ``I still do not remember--
    Attorney General Reno. But my bottom line is, if the man 
who made the notes cannot remember, I think the evidence is 
clear and convincing.
    Senator Specter. Well, you are at variance with the 
clearcut established law of evidence that prior recollection 
recorded is admissible.
    Attorney General Reno. Assume for the moment that the fact 
that he made the notes is evidence that it was discussed, it 
was clearly discussed according to two people, and the notes 
indicate that it was discussed. But there are a variety of 
recollections. Only two people remembered it without having--
and even Mr. Bailey concluded that there was a discussion of 
hard and soft, but he was unclear as to what was involved.
    I just do not think, Senator, from a commonsense point of 
view, that if there was a meeting of this Judiciary Committee 2 
years ago, and you spent 2 hours discussing different subjects, 
that the fact that Senator Grassley said something about hard 
and soft money that two other members of the committee heard, 
and one took notes and those notes indicated that that--he 
verified that that would be his habit to record what he heard, 
that that would be clear and convincing evidence that Senator 
Hatch heard or did not hear.
    Senator Specter. Well, the difficulty with your analysis, 
Attorney General Reno, is that it is not just those four 
witnesses. And I pause at some length because an inference is 
raised that you discount everything you can to come to a 
    Attorney General Reno. No, I looked for everything I could.
    Senator Specter. Well, it was not a question, it was a 
comment. And that you leave out Strauss, where as an 
evidentiary matter he should have been considered, and----
    Attorney General Reno. I do not leave him out.
    Senator Specter. Let me finish now. I will not interrupt 
    And you leave out Bailey, where he should have been 
included. If you want to comment, you can. I want to move on.
    Attorney General Reno. Yes, I would like to comment.
    Senator Specter. Go ahead.
    Attorney General Reno. I did not leave it out. And I would 
again urge you, as I have urged the whole committee, to read 
the notification. ``While the author of the notes had no 
specific recollection of the meeting, he did confirm, based on 
his habit and practice, his beliefs that the words noted in his 
handwriting were things said during the meeting that he 
recorded as they were said. Reviewing his notes, this attendee 
could not recall who might have uttered the words `65-percent 
soft, 35-percent hard, corporate, or anything over 20K from an 
individual or hard-money limit 20K' during the meeting. He was 
also unable to provide an explanation about what each of the 
phrases might have meant within the context of the meeting.''
    ``He did not recall the issue of hard and soft money being 
discussed by those attending, but noted that these issues were 
often discussed at DNC budget meetings. He was also unable to 
say whether the words were used with regard to the media fund, 
the DNC's operating budget or something else. Notably, this 
individual, who attended the meeting and who was paying enough 
attention to what was being said to take verbatim notes of some 
points, also told us during his interview that he believed the 
media campaign was financed entirely with soft money.''
    Senator Specter. Attorney General Reno, I believe the 
record shows that there were four people in a position to 
provide evidence. And as your statement said, you focused on 
only two. But I want to go to the balance of the----
    Attorney General Reno. No, sir. I just focused on one of 
those that you specifically talked about, and I gave you my 
reasons for concluding that it did not----
    Senator Specter. Well----
    Attorney General Reno [continuing]. Undermine my conclusion 
that the evidence was clear and convincing.
    Senator Specter. My reading of the law of evidence is that 
the testimony that he gave, although not perfect, because most 
witnesses' testimony is not perfect, would have been admissible 
and considered by a jury.
    But let me ask you about the balance of the witnesses. And 
I had started to develop the point about the Department of 
Justice's role at the preliminary inquiry being very limited. 
You cannot use a grand jury, and you cannot put people under 
oath. And there is a very big difference between an interview 
and calling somebody before the grand jury, under oath, and 
that is not open to the Department of Justice at that stage. 
But an independent counsel could have done that, so that there 
might well have been more testimony produced by the individuals 
if the matter had been pursued.
    In regular investigations, the Department of Justice does 
not stop at just an interview. If they find a witness who does 
not testify about a recollection or the witness may have the 
capacity to do so, they use the grand jury. Does the Department 
not do that?
    Attorney General Reno. The Department uses the grand jury 
in a variety of circumstances.
    Senator Specter. Well, the point is that your judgment was 
made at a preliminary stage, where there were investigative 
tools available, specifically the grand jury, which was not 
utilized; is that not correct?
    Attorney General Reno. I did not use the grand jury, sir.
    Senator Specter. And then there are the 13 Strauss 
    Attorney General Reno. The Ickes memoranda, sir.
    Senator Specter. Ickes memoranda. Pardon me. You are right. 
I misstated that.
    There are 13 Ickes----
    Attorney General Reno. And there were not 13, about 6 or 7 
came before the phone calls, and the others came after.
    Senator Specter. Okay. You had made that distinction. The 
FBI report does not make it, but I will accept that.
    But if you have six or seven Ickes memoranda, and you have 
an evidentiary base for the Vice President's secretary, who 
culls his in box, but who leaves the Ickes memos in the in-box, 
that raises an inference that the Vice President might have 
known from the Ickes memoranda that hard money was involved, 
does it not?
    Heather Marabeti testified----
    Attorney General Reno. Excuse me just a minute, sir.
    Senator Specter. ``When they, people reviewing his in box, 
what were they reviewing it for?''
    Answer: ``They reviewed it for documents that did not need 
to be in.''
    Question: ``I know that Mr. Ickes sent a lot of internal 
memorandums. Were his the type of memorandums that needed to be 
in the inbox?''
    Answer: ``His were the type of memos that stayed in the in 
    So you have the four people providing evidence as to what 
happened; you have the Ickes memoranda; you have the Vice 
President's statements that, although he did not read the 
memos, as he did a general rule read memos authored by Mr. 
Ickes, he nonetheless said that, ``The subject matter of the 
memorandums would have already been discussed in his and the 
President's presence.''
    And then you have the Vice President's admission about his 
knowledge of fundraising, that ``He had been a candidate for 16 
years and thought he had a good understanding of hard/soft 
    So there is an aggregate of information beyond the specific 
witnesses. Do you care to comment?
    Attorney General Reno. Yes. His staff corroborated his 
statement that he did not, as a matter of practice, read Ickes' 
    Senator Specter. Yes, I know. I just said that. And the 
Vice President then added to that, that the memorandums, as he 
put it, had already been discussed in his presence and in the 
presence of the President.
    But let me move on, unless you want to comment further, 
    Attorney General Reno. No. I just want to say, sir, if we 
get into the business of assuming that people hear something 
that was said 2 years previously, when there is such a 
diversity of recollection and where people who, even though 
they were there, conclude that the only money being sought was 
soft money, it is going to create a very difficult situation 
for people in Government.
    Senator Specter. Well, Attorney General Reno, it is more 
than a judgment call, it is what I consider to be a 
misstatement of the facts. But Director Freeh dealt with this 
directly, and you do not have to agree with him, and the 
committee does not have to agree with him, unless we think that 
his basis is correct, and he says, ``Based on the facts, the 
Attorney General simply cannot reach such a conclusion. The 
evidence tends to show that the Vice President was an active 
participant in the core group fundraising efforts, that he was 
informed about the distinction between hard and soft money, and 
that he generally understood there were legal restrictions 
against making telephone solicitations from Federal property.''
    And La Bella said about the same thing, ``By routinely 
embracing the most innocent inference at every turn, even if 
the inferences are factually indefensible, the memorandum 
creates an appearance that the Department is straining to avoid 
the appointment of an independent counsel and foreclose what 
many would characterize as an impartial review of the 
    Do you care to comment?
    Attorney General Reno. Yes. As you well know, Director 
Freeh, and Mr. La Bella and I have some disagreements, as you 
and I have some disagreements. But I can tell you that this was 
carefully reached. We reviewed all of the evidence, and we 
reached the conclusion that we did based on the best judgment 
we could make. You disagree with my judgment, but that is where 
we stand.
    Senator Specter. Let me move on, Attorney General Reno, to 
the Department of Justice inquiry about the Loral and Hughes 
matter, about their providing information to the People's 
Republic of China and a waiver which was signed by the 
President, notwithstanding that the PRC had sold M-11 missiles 
to Pakistan which was instrumental in the standoff on the 
subcontinent between Pakistan and India.
    And the Department of Justice had an investigation 
inprocess at the time the President was considering the waiver. And Mr. 
Litt contacted Mr. Ruff, and he testified that he opposed the granting 
of the waiver and ``I said that the judgment of the Department was that 
it could have an adverse impact, not on the actual conduct of the 
investigation, but on the jury appeal of any prosecution that might 
subsequently be brought.''
    And my question to you is why did not someone of a higher 
rank, like you or perhaps even the deputy attorney general, 
weigh in on that important issue?
    Attorney General Reno. The White House does not ordinarily 
consult with the Department on whether to grant waivers 
permitting the export of dualuse technologies to the PRC.
    Senator Specter. Well, they listened to the Justice 
Department on this issue.
    Attorney General Reno. May I finish, please?
    Senator Specter. Sure.
    Attorney General Reno. Moreover, the foreign relations 
issues raised by requested waivers are outside the Department's 
expertise. When the White House asked whether granting the 
waiver would impact the criminal case, however, the Department 
unambiguously responded that granting the waiver would have 
serious adverse impact if the case went to trial.
    As I have testified previously, I believe that I should 
have been informed. I understand that Bob Litt did not tell 
either me or Deputy Attorney General Eric Holder about his 
conversation with Mr. Ruff because there was no disagreement 
within the Department that the waiver would hurt the criminal 
case. Still, I believe that Mr. Litt should have told us about 
the matter.
    Senator Specter. I do not quite understand that. Was not 
that this matter of sufficient importance for the Attorney 
General or at least the Attorney General's deputy?
    Attorney General Reno. As I indicated, I was not advised of 
the matter, and I think I should have been.
    Senator Specter. You say you were not advised of the 
matter, but you think you should have been?
    Attorney General Reno. Yes, sir, I said that.
    Senator Specter. Had you known about it, would you have 
weighed in personally?
    Attorney General Reno. It would have depended on the 
    Senator Specter. Well, do you know the circumstances?
    Attorney General Reno. I do not know what the circumstances 
would have been if I had been advised of it.
    Senator Specter. Well, do you now know what the 
circumstances were at that time?
    Attorney General Reno. I do not know what the circumstances 
were, as they unfolded, or what they would have been if I had 
been advised.
    Senator Specter. Attorney General Reno, there have been 
press reports, the New York Times reported June 23rd, that 
``The official said that Mr. Conrad had been told to avoid 
putting his views in writing, and at times felt stymied in his 
efforts to communicate directly with top officials.''
    And the Associated Press reported that ``It is like a 
roller derby at Justice. They are slamming him * * *'' 
referring to Conrad ``* * * against the boards as hard as they 
can,'' the source added. ``They are trying to intimidate him to 
get him to change his views.''
    Attorney General Reno. I do not think anybody can 
intimidate Mr. Conrad, sir.
    Senator Specter. Well, I hope not. Do you intend to look 
into those reports?
    Attorney General Reno. I have talked with Mr. Conrad, and 
have talked with him to make sure that he is perfectly 
comfortable, and he said that he was.
    Senator Specter. With respect to the La Bella memorandum, I 
understand that Senator Torricelli commented about the timing 
of it. The second La Bella memorandum was written, I am advised 
by staff, prior to Mr. Radek's critique.
    We are in the last stages of another vote, but let me pick 
up one final subject with you because I do not want to leave it 
hanging, and that is the discussion that we had about Mr. 
Parkinson's memo on the ``advice of counsel'' defense, and his 
enumeration of a great many reasons why he thought that the 
``advice of counsel'' defense should not have led you to rule 
out independent counsel: the absence of direct contact between 
the lawyers and the principals; the attorneys who gave the 
advice having an interest; one of the attorneys saying that the 
advice was ``bumping up right against, and perhaps a little bit 
over, the line''; all of which led him to conclude that the 
clear and convincing evidence standard was not met and the 
independent counsel should have been appointed.
    Would you care to comment?
    Attorney General Reno. Yes, sir. I would refer you to our 
notification, which sets forth our position with respect to 
those matters.
    Senator Specter. Attorney General Reno, thank you very much 
for coming in today. You are an excellent witness, and you make 
your case very effectively.
    That concludes the hearing.
    Attorney General Reno. And you are an excellent Senator, 
and you make your case very effectively.
    [Whereupon, at 5:44 p.m., the committee was adjourned.]