[Congressional Record (Bound Edition), Volume 146 (2000), Part 9]
[Senate]
[Pages 12858-12861]
[From the U.S. Government Publishing Office, www.gpo.gov]



                 SEPARATING FACTS, FROM PARTISAN SMOKE

  Mr. LEAHY. Mr. President, the Attorney General of the United States 
testified yesterday for almost 4 hours before the Senate Judiciary 
Committee to answer yet more questions about campaign finance 
investigations and independent counsel decisions. She did so with her 
typical candor and integrity.
  Not willing to settle for the fact that this hearing revealed nothing 
new, certain Republican Members have today sought to muddy the waters 
and twist the facts. I would like to cut through this political haze 
and set the record straight.
  These are rumored recommendation to appoint a special counsel.
  It is not the ``established custom'' and ``practice'' of the 
Judiciary Committee or its subcommittees to announce publicly 
confidential Justice Department information relating to pending 
matters. Although Senator Specter did so this past week when he held a 
press conference and spoke on national television about a reported 
recommendation of the Justice Department's Campaign Finance Task Force 
Chief Robert Conrad, that disclosure was highly unusual. Although the 
Senator has characterized this information as obtained by way of 
``official investigation,'' such information nor its source has been 
shared with me or, to my knowledge, with any Democratic Member of the 
Committee or the Senate.
  The only public statements of Mr. Conrad were made at a Judiciary 
Subcommittee hearing on June 21, 2000. In response to questions from 
Senator Specter regarding recommendations to the Attorney General with 
respect

[[Page 12859]]

to a special prosecutor, Mr. Conrad stated, ``That, I don't feel 
comfortable discussing in public. I would perceive whether I have done 
that or not as something that pertains to an ongoing investigation.'' 
(Subcommittee on Administrative Oversight and the Courts, ``Oversight 
Hearing on 1996 Campaign Finance Investigations''). Senator Specter 
pressed him to discuss the matter in private, to which Mr. Conrad 
responded a firm, ``no, I am not suggesting that. I am suggesting that 
my obligations as a prosecutor would prevent me from discussing that.''
  At the Judiciary Committee hearing yesterday, the Attorney General 
also declined to respond to any questions on recommendations that may 
or may not have been made regarding appointment of a special counsel. 
She said, ``With respect to the present matter, as I said at the 
outset, I am not going to comment on pending investigations . . . I 
think it imperative for justice to be done that an investigation be 
conducted without public discussion so that it can be done the right 
way.''
  Other than the Attorney General and Mr. Conrad's public refusals to 
confirm or deny the existence of any recommendation, or to reveal the 
subject matter of any such recommendation, we have only Senator 
Specter's representation of information purportedly obtained from 
unknown sources and press accounts from unidentified ``government 
officials'' that Mr. Conrad has made any recommendation to the Attorney 
General about appointment of a special counsel. We have no confirmation 
from the principals involved that such a recommendation has actually 
been made nor of the subject matter of any such recommendation. Before 
Members of Congress invite the American public to think the worst about 
the Vice President and put him in the position of trying to prove his 
innocence of allegations, which even the anonymous sources have not 
detailed, we should heed the advise of the Attorney General to ``be 
careful as you comment that you have the facts.''
  Despite the fact that the Attorney General has appointed seven 
independent counsels to investigate matters involving the President and 
various Cabinet Officers, and appointed a special counsel to 
investigate the tragic events at the Branch Davidian compound in Waco, 
Texas, Republican Members continue to press the charge that Attorney 
General Reno refused to appoint an independent counsel for campaign 
finance matters for some illegitimate reason. This charge is unfounded 
and refuted even by those people who disagreed with the Attorney 
General's decisions not to seek appointment of independent counsels for 
campaign finance matters, including the following.

       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.

  Quoting FBI Director Louis Freeh, August 4, 1998.

       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.

  Quoting Charles La Bella, Former Campaign Finance Task Force 
Supervisory Attorney, May 3, 1998.
  The integrity and the independence of the Attorney General are 
``beyond reproach,'' quoting Charles La Bella, Former Campaign Finance 
Task Force Supervisory Attorney, August 4, 2000.
  The Attorney General ``made no decisions to protect anyone,'' quoting 
Charles La Bella, Former Campaign Finance Task Force Supervisory 
Attorney, May 2, 2000.

       [A]ll 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 influence at all.

  Quoting Robert Litt, Former Principal Associate Deputy Attorney 
General, June 21, 2000.
  In response to whether he had any doubt about Attorney General Reno's 
integrity: ``No, I do not,'' said Larry Parkinson, FBI General Counsel, 
May 24, 2000.
  The only political pressure on the Attorney General has come from the 
Republican majority. I believe that it was on March 4, 1997 that 
Senator Lott first introduced a Senate resolution proposing a sense of 
the Congress that the Attorney General should apply for the appointment 
of another independent counsel to investigate illegal fund-raising in 
the 1996 presidential election campaign.
  Within 48 hours, on March 6, 1997, Senator Hatch had his own 
resolution to this effect added to the Judiciary Committee agenda. 
Ironically, Chairman Hatch made clear that we would not ask for an 
independent counsel to investigate the Vice President and telephone 
calls made from his White House office. He characterized the criticism 
of the Vice President as ``scurrilous criticism.'' He said that he did 
``not think that the speculation surrounding the Vice President is as 
serious as some would make it'' and indicated that he would not 
participate in making a big deal out of it. Even assuming that he had 
been engaged in a technical violation, the Chairman said that he would 
not call in an independent counsel to investigate those matters.
  Rather than act in a fair, balanced and bipartisan way, on March 13, 
1997, the ten Republican Senators on the Judiciary Committee served a 
letter on the Attorney General requesting the appointment of an 
independent counsel to investigate possible fund-raising violations.
  The very next day, March 14, 1997, we were called upon to debate on 
the Senate floor the Republican Senate resolution that the Attorney 
General should call for the appointment of an independent counsel. 
During the five days of Senate debate, Senator Bennett observed that he 
viewed the coffees at the White House as inappropriate but not illegal:

       [C]learly, it does not call for the appointment of an 
     independent counsel. It is something we can talk about in the 
     political arena. It is on the legal side of the line.

  Nonetheless, when the time came to vote on the resolution the 
Republicans adopted it on a straight party-line vote. They then 
proceeded to table an alternative resolution, S.J. Res. 23, that would 
have called upon the Attorney General to exercise her best professional 
judgment, without regard to political pressures and in accordance with 
the standards of the law and the established policies of the Department 
of Justice to determine whether the independent counsel process should 
be invoked. That more even-handed language that did not prejudge the 
outcome or tell the Attorney General what to do was, likewise, opposed 
by every Republican Senator.
  Thus, by their votes on March 14, 1997, every Republican Senator had 
evidenced that his or her mind was made up on these issues and as a 
party they marched lockstep to the conclusion that an independent 
counsel should be appointed. The House Republicans then refused to 
consider the resolution and it died without final action. Even after 
the multimillion dollar investigation by the Governmental Affairs 
Committee chaired by Senator Thompson into allegations of campaign 
finance, and the investigations by the Burton committee and in spite of 
the 20 convictions achieved by the Campaign Finance Task Force within 
the Department of Justice, the Specter investigation is now revisiting 
certain events from 1996.
  The American people know a partisan endeavor when they see one. The 
American people know that the upcoming nomination and election of the 
next President of the United States are no justification for dragging 
these matters back into the Senate for more politics of personal 
destruction and innuendo and leaks and partisan investigating for 
short-term political gain. I had hoped that we had our fill of these 
efforts when the Senate rejected the efforts by Kenneth Starr and the 
House Republicans to force President Clinton out of the office to which 
he was twice elected by the American people. Regrettably, I was wrong 
and, apparently, some on this Committee are still engaged in 
destructive partisanship.
  The Pendleton Act, 18 U.S.C. Sec. 607, prohibits the solicitation of 
campaign contributions, as defined by the Federal Election Campaign 
Act, on federal

[[Page 12860]]

property. The Department of Justice has exercised a policy--through 
both Democratic and Republican Administrations--of declining to 
prosecute violations of section 607 that do not have some sort of 
aggravating factors like coercion of involuntary political donations. 
Indeed, the uncontroverted record of enforcement of the Pendleton Act 
demonstrates that both Republican and Democratic Justice Departments 
have applied this policy and declined to take action repeatedly over 
the past decades. By way of example, 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 on behalf of Republican congressional candidates. In 
1988, prosecution was declined when two Republican Senators sent 
solicitation letters as part of a computerized direct-mailing to 
employees of the Criminal Division of the Justice Department. In 
response to my question at the hearing yesterday, the Attorney General 
confirmed that this remained the Justice Department's policy.
  There is no evidence that fund-raising telephone calls, which the 
Vice President has acknowledged making from the White House, implicated 
any ``aggravating factors'' warranting prosecutorial attention. 
Nevertheless, and in the absence of such evidence, some have claimed 
that because a hard money component of the DNC media fund used to pay 
for television advertising in 1995 and 1996 may have been discussed at 
a meeting attended by the Vice President and fourteen others on 
November 21, 1995, the Vice President's statements two years later that 
he believed the media fund to be entirely of soft money were false. 
Yet, as the Attorney General testified yesterday, only two 
participants--not four as Senator Specter stated this morning--even 
recalled that the hard money component of the media fund had been 
mentioned at the 1995 meeting.
  The Attorney General testified that thirteen participants did not 
recall any such discussion and:

     [w]hile 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.

     The Attorney General explained that the Justice Department 
     lawyers had:

       concluded in this instance--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.

  The Attorney General did not ``discount'' the information provided by 
David Strauss, who was present at the time of the November 21, 1995 
meeting in considering whether to appoint an independent counsel to 
investigate the Vice President and his knowledge of the hard money 
component of the media fund. Rather, as the Attorney General patiently 
explained yesterday, she fully considered the notes and the fact that 
Strauss himself believed the media campaign had been financed entirely 
with soft money. Indeed, this issue is discussed in full in the 
``Notification to the Court Pursuant to 28 U.S.C. 592(b) of Results of 
Preliminary Investigation'' publicly filed on November 24, 1998.
  As the Attorney General explained, the fact that Strauss's 
contemporaneous notes reflect discussion of the hard/soft money split, 
does not bear on the Vice President's recollection of the matter. Any 
discussion about ``recorded recollection'' misses the boat. Federal 
Rule of Evidence 803(5) states that a:

     memorandum or record concerning a matter about which a 
     witness once had knowledge but now has insufficient 
     recollection to enable the witness to testify fully and 
     accurately, shown to have been made or adopted by this 
     witness when the matter was fresh in the witness' memory and 
     to reflect that knowledge correctly

Will not be considered hearsay. However, regardless of whether 
Strauss's notes could be admissible at a hypothetical trial, the fact 
remains that they are irrelevant on the question of what the Vice 
President, not Strauss, knew or heard.
  Although it was insinuated that thirteen memoranda from Harold Ickes 
are evidence as to the Vice President's knowledge of the hard money 
component of the media fund, as the Attorney General testified 
yesterday, only six or seven of those memoranda predated the telephone 
calls. In addition, as set forth in publicly filed court documents, 
there was no evidence that the Vice President had read them and the 
Attorney General testified that the Vice President's staff 
``corroborated his statement that he did not, as a matter of practice, 
read Ickes' memos.''
  As to the Standard of Proof to Move from a Preliminary Investigation 
to Independent Counsel, Republicans have repeatedly suggested that an 
independent counsel should have been appointed for the Vice President 
and have focused on whether there was ``specific and credible 
information'' regarding wrongdoing. This is a mischaracterization of 
the applicable standard under the now-lapsed Independent Counsel law. 
As the Attorney General clarified yesterday, that standard is only 
relevant to whether a preliminary investigation within the Justice 
Department should be commenced. Indeed, such an inquiry was conducted, 
and concluded, with regard to the Vice President on two occasions. The 
Attorney General also testified accurately that in order to seek an 
independent counsel following the conclusion of a preliminary 
investigation, she needed ``reasonable grounds to believe that further 
investigation is warranted'' of the matters that had been under 
investigation. This standard was also accurately reflected in the 
Attorney General's notifications to the court on this issue, in which 
she found no such ``reasonable grounds'' as to the Vice President.
  Regarding the Hsi Lai Temple Matter, Republican Members questioned 
the Attorney General about the Vice President's visit on April 29, 1996 
to the Hsi Lai Temple in Los Angeles and speculated that he was not 
fully forthcoming about his understanding of the nature of the event. 
The Vice President has consistently insisted that he was not aware this 
event was a fundraiser. Senator Smith observed yesterday:

       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.

  Perhaps, the answer is as simple as this: that the Vice President did 
not know the temple event was a fund-raiser, just as he says.
  The record is clear that the Vice President was initially scheduled 
to attend a fund-raising luncheon at a restaurant in Los Angeles on 
April 29, 1996, and that after the lunch, he was supposed to go to the 
temple, about 20 minutes away, for a community outreach event. No 
tickets were to be sold and no fund-raising was to take place at the 
temple. A few weeks before the events, the Vice President's schedulers 
determined there was not enough time for two events. The guests 
previously invited to the restaurant luncheon were told they could 
attend a luncheon at the temple dining hall after the formal 
ceremonies.
  Although the luncheon at the temple was a DNC-sponsored event, no 
tickets were sold, no campaign materials were displayed, no table was 
set up to solicit or accept contributions, and the Vice President spoke 
about brotherhood and religious tolerance, not fund-raising. Attendees 
included a Republican member of the Los Angeles County Commission.
  Notwithstanding these facts, Republican Senators have insisted that 
an email from an aide to the Vice President on March 15, 1996, suggests 
that the Vice President knew the Hsi Lai Temple event was a fund-
raiser. This conclusion is wrong and ignores relevant facts. First, the 
original plan had been for the Vice President to participate both in a 
fund-raiser at a restaurant and a visit to the temple on April 29, 
1996. Later that day he was to attend another fund-raiser at a private 
home in San Jose. The email to which

[[Page 12861]]

the Republicans referred at the hearing, dated March 15, 1996, is from 
an aide and states in relevant part: ``we've confirmed the fundraisers 
for Monday, April 29th. The question is whether you wish to seriously 
consider [another invitation in New York.].'' The Vice President 
replied by email that ``if we have already booked the fundraisers then 
we have to decline.'' Obviously, the fund-raisers to which these emails 
refer are the one fundraiser originally scheduled at a restaurant in 
Los Angeles, later cancelled, and the fundraiser in San Jose. They do 
not refer to the Hsi Lai temple visit.
  Regarding oversight of the Peter Lee case, Senator Specter has 
claimed that the Peter Lee case is a closed matter and that it was 
somehow appropriate to interview the district court judge in that case. 
The record should be clear that the Lee case is in fact pending in at 
least two respects. First, Lee filed a motion to terminate his 
probation on September 28, 1999. Opposition to the motion was filed by 
the government on October 6, 1999. A decision on that motion had not 
yet been rendered at the time of the Senator's interview of the judge 
in February 1999 and may remain pending today. In addition, until 
either this motion is granted or Lee's term of probation expires, Lee 
will remain under the supervision of the court and the Probation 
Department. Should he commit any violations, his probation could be 
revoked by the judge and he could be sentenced to a term of 
imprisonment.
  Concerning the idea that Judiciary Committee Senators should have 
standing in independent counsel matters, I have heard the suggestion 
that the Judiciary Committee should have standing to seek judicial 
review of the Attorney General's decisions on special counsel matters. 
This proposal seeks yet again to politicize the integrity of the 
process. It also ignores the fact that the independent counsel law is 
no longer in effect. The special counsel process is simply governed by 
Attorney General regulations. Surely this Committee should not have 
standing to intervene in the application of internal Justice Department 
regulations.
  I have expressed concern about the damage that can be done to the 
integrity of the criminal justice system if the majority in Congress 
politicizes prosecutorial decision-making, including by interfering in 
ongoing criminal matters and pending investigations. Authorizing the 
majority of a standing Congressional Committee to initiate a criminal 
investigation is a bad idea.

                          ____________________