[House Report 106-1027]
[From the U.S. Government Publishing Office]
Union Calendar No. 595
106th Congress, 2d Session - - - - - - - - House Report 106-1027
JANET RENO'S STEWARDSHIP OF THE
JUSTICE DEPARTMENT: A FAILURE
TO SERVE THE ENDS OF JUSTICE
__________
TENTH REPORT
by the
COMMITTEE ON GOVERNMENT REFORM
together with
MINORITY VIEWS
Volume 2 of 2
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
December 13, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
68-229 WASHINGTON : 2000
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS III, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, District of
MARK E. SOUDER, Indiana Columbia
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
David A. Kass, Deputy Counsel and Parliamentarian
Kristi L. Remington, Senior Counsel
Jim Schumann, Counsel
Kimberly A. Reed, Counsel
Maria P. Tamburri, Assistant to the Chief Counsel
Robert A. Briggs, Chief Clerk
Philip Schiliro, Minority Staff Director
Philip S. Barnett, Miniority Chief Counsel
Kristin Amerling, Minority Deputy Chief Counsel
Paul Weinberger, Minority Counsel
?
LETTER OF TRANSMITTAL
House of Representatives,
Washington, DC, December 13, 2000.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: By direction of the Committee on
Government Reform, I submit herewith the committee's tenth
report to the 106th Congress.
Dan Burton,
Chairman.
C O N T E N T S
----------
Page
Findings of the Committee on Government Reform................... VII
I. The Attorney General's conflicted investigation..................1
A. Background on the Independent Counsel Act............. 3
B. A rocky start: early conflicts in the Justice
Department's campaign finance investigation.......... 9
C. Attorney General Reno changed her interpretation of
the Independent Counsel Act.......................... 14
D. Memoranda from FBI Louis J. Freeh and Task Force
Supervising Attorney Charles La Bella recommending
that an independent counsel be appointed............. 19
E. Department of Justice rebuttal memoranda.............. 44
F. Department of Justice's bad faith in its application
of the Independent Counsel Act....................... 54
G. The failure to appoint a special counsel for Vice
President Gore....................................... 59
II. The failures of the Justice Department investigation............63
A. The Justice Department failed to pursue the December
15, 1995, coffee tape................................ 63
B. The Justice Department has failed to question the
President and Vice President effectively............. 71
C. The Justice Department failed to pursue relevant
documents............................................ 74
D. The Justice Department failed to pursue key
individuals and entities............................. 84
E. The Justice Department failed to pursue the Kansas
conduit contribution scheme.......................... 107
F. The Justice Department failed to investigate leaks
harmful to the campaign fundraising investigation.... 116
III. The Justice Department's political interference with congressional
oversight......................................................123
A. Failure to comply with subpoenas for the Freeh and La
Bella memoranda...................................... 123
B. Failure to produce the Conrad memorandum.............. 143
C. The Justice Department's political gamesmanship....... 146
IV. The favorable treatment of the Attorney General's friends......154
A. The Justice Department's handling of the Soka Gakkai
matter............................................... 154
B. Robert Bratt.......................................... 181
Exhibits......................................................... 188
APPENDIXES
Appendix 1.--Correspondence between the committee and the Justice
Department..................................................... 638
Appendix 2.--Kansas Democratic party disclosure forms (receipts
and disbursements)............................................. 1862
VIEWS
Minority views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon.
Major R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski,
Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka
Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon.
Rod R. Blagojevich, Hon. Danny K. Davis, Hon. John F. Tierney,
Hon. Jim Turner, Hon. Harold E. Ford, Jr., and Hon. Janice D.
Schakowsky..................................................... 2008
Exhibits......................................................... 2034
Union Calendar No. 595
106th Congress Rept. 106-1027
HOUSE OF REPRESENTATIVES
2d Session Vol. 2 of 2
======================================================================
JANET RENO'S STEWARDSHIP OF THE JUSTICE DEPARTMENT: A FAILURE TO SERVE
THE ENDS OF JUSTICE
_______
December 13, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Burton, from the Committee on Government Reform submitted the
following
TENTH REPORT
On October 19, 2000, the Committee on Government Reform
approved and adopted a report entitled, ``Janet Reno's
Stewardship of the Justice Department: A Failure to Serve the
Ends of Justice.'' The chairman was directed to transmit a copy
to the Speaker of the House.
MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. MAJOR R.
OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. CAROLYN B.
MALONEY, HON. ELEANOR HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E.
CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON. DANNY
K. DAVIS, HON. JOHN F. TIERNEY, HON. JIM TURNER, HON. HAROLD E. FORD,
Jr., AND HON. JANICE D. SCHAKOWSKY
Over the past 4 years, Representative Dan Burton has waged
a vendetta against the Attorney General of the United States.
Mr. Burton has accused Attorney General Janet Reno of
``deceit'' \1\ and ``corruption.'' \2\ He has called her the
President's ``chief blocker.'' \3\ He has charged that the
Attorney General ``eroded the people's respect for the
Department of Justice'' \4\ and established a ``legacy'' of
``incompetence and partisan zeal.'' \5\ He has said that the
Attorney General has brought the Justice Department to ``shame
and disrepute'' \6\ and has made a ``mockery of justice.'' \7\
He also has stated, ``When you ask me, do I trust her, I
certainly do not.'' \8\
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\1\ Fox, ``Fox Special Report with Brit Hume'' (Mar. 14, 2000).
\2\ Testimony of Representative Dan Burton, House Committee on
Rules, Subcommittee on Rules and Organization of the House (July 15,
1999) (available at www.house.gov/reform/oversight/99--07--15db-
rules.htm).
\3\ Fox, ``The Edge with Paula Zahn'' (Mar. 14, 2000).
\4\ Testimony of Representative Dan Burton, House Committee on
Rules, Subcommittee on Rules and Organization of the House (July 15,
1999) (available at www.house.gov/reform/oversight/99--07--15db-
rules.htm).
\5\ Id.
\6\ Id.
\7\ NBC, ``Meet the Press'' (June 11, 2000).
\8\ NBC, ``Meet the Press'' (Aug. 29, 1999).
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In August 1998, Mr. Burton and the other Members of the
majority even voted to hold the Attorney General in contempt of
Congress.
There is a fundamental problem with Mr. Burton's
accusations against the Attorney General: they have no basis in
fact. Over the course of the committee's investigation, the
committee has heard testimony from a dozen Justice Department
lawyers and FBI officials who have worked with Attorney General
Reno. Several of these individuals, including FBI Director
Louis J. Freeh and former Campaign Finance Task Force head
Charles G. La Bella, have strongly disagreed with some of the
Attorney General's judgments. But not one witness has said that
the Attorney General is deceitful, corrupt, or partisan.
Rather, witness after witness has testified--under oath--to
the Attorney General's integrity. As Director Freeh testified,
``I have stated many times my respect for Attorney General
Reno. In the 4\1/4\ years we have worked together, I have seen
her bring nothing but integrity and honesty to the table.'' \9\
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\9\ Testimony of FBI Director Louis Freeh, House Committee on
Government Reform, hearings on ``The Current Implementation of the
Independent Counsel Act,'' 105th Cong., 1st sess., 1128 (Dec. 9-10,
1997) (H. Rept. 105-89).
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The majority's main complaint about the Attorney General
boils down to a dispute over conflicting interpretations of the
independent counsel statute. The majority believes that the
Attorney General was required to appoint an independent counsel
to examine campaign finance matters. The Attorney General
reached a different conclusion. This type of disagreement over
interpreting the law is not unusual. Unfortunately, Mr. Burton
seems to take the position that disagreeing with his opinion is
evidence of ``bad faith'' and ``corruption.''
It is the height of irony that the majority pronounces
judgments on the handling of the campaign finance investigation
by the Department of Justice given the widespread criticism
this committee has received for misconduct in its own campaign
finance investigation. The committee's campaign finance
investigation has been referred to as a ``case study in how not
to do a congressional investigation and as a prime example of
investigation as farce,'' \10\ a ``parody of a reputable
investigation,'' \11\ and ``its own cartoon, a joke, and a
deserved embarrassment.'' \12\
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\10\ ``House Probe of Campaign Fund-Raising Uncovers Little, Piles
Up Partisan Ill Will,'' Los Angeles Times (May 2, 1998) (quoting Norman
Ornstein, a congressional expert at the American Enterprise Institute).
This article and other news stories are attached as exhibit 1.
\11\ ``A House Investigation Travesty,'' New York Times (Apr. 12,
1997). This editorial is attached with other editorials and
commentaries as exhibit 2.
\12\ ``Mr. Burton Should Step Aside,'' Washington Post (Mar. 20,
1997).
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Three years ago, the chief counsel of the committee quit
and told Mr. Burton that he had ``been unable to implement the
standards of professional conduct I have been accustomed to at
the U.S. Attorney's office.'' \13\ Two years ago, when Mr.
Burton released doctored transcripts of former Associate
Attorney General Webster Hubbell's phone conversations, one
Republican investigator was quoted saying, ``I'm ashamed to be
part of something that's so unprofessional.'' \14\ Over the
course of the investigation, the majority has gone through four
chief counsels and at least three different chief
investigators. One former senior Republican investigator said,
``Ninety percent of the staff doesn't have a clue as to how to
conduct an investigation.'' \15\
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\13\ Letter from John P. Rowley III to Representative Dan Burton
(July 1, 1997).
\14\ ``Burton Tape Fiasco Pitted Panel's Pros Vs. Pols,'' the Hill
(May 13, 1998).
\15\ Id.
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This committee is in no position to criticize the Attorney
General--and the majority's report reflects this fact. As will
be discussed below, the report is based on unfounded
allegations and improperly injects the committee into
prosecutorial decisions. The report is also highly partisan.
I. Unfounded Allegations Regarding Attorney General Reno and the
Justice Department
Over the last 6 years, the majority has made a series of
false allegations of wrongdoing by the Clinton administration.
These allegations have included accusations that Deputy White
House Counsel Vince Foster was murdered as part of a coverup of
the Whitewater land deal; that the White House intentionally
maintained an ``enemies list'' of sensitive FBI files; that the
IRS targeted the President's enemies for tax audits; that the
White House may have been involved in ``selling or giving
information to the Chinese in exchange for political
contributions''; that the White House ``altered'' videotapes of
White House coffees to conceal wrongdoing; that the Clinton
administration sold burial plots in Arlington National
Cemetery; and that problems with the White House e-mail
archiving system are ``the most significant obstruction of
Congressional investigations in U.S. history'' and ``reach much
further'' than Watergate.
As documented in a staff report recently released by
Representative Henry A. Waxman, these allegations have proven
to be unsubstantiated.\16\ According to Al Hunt of the Wall
Street Journal, ``the accusations have a common denominator:
They are blatantly false.'' \17\
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\16\ Minority Staff Report, ``Unsubstantiated Allegations of
Wrongdoing Involving the Clinton Administration'' (October 2000)
(attached as exhibit 3).
\17\ ``Congress Forfeits Its Role,'' Wall Street Journal (Sept. 21,
2000).
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Attorney General Janet Reno and the Department of Justice
have been frequent targets of these false allegations. Further,
in its efforts to suggest wrongdoing on the part of the Justice
Department, the majority has unfairly smeared numerous
individuals along the way. The major allegations that have been
leveled against the Department and others over the last few
years and in the majority's report--and the actual facts as
established in the record before the committee--are described
below.
Allegation: Attorney General Reno has been
``blatantly protecting the President, the Vice President and
their party from the outset of this scandal'' \18\ and ``the
record clearly shows that this Justice Department has bent over
backwards to avoid investigating the President, the Vice
President and other senior White House officials.'' \19\ It is
``evident to anyone who's been closely involved in this that
she's blocking for the president.'' \20\ It is ``hard to escape
the conclusion that the Attorney General has acted politically
to benefit the President, the Vice President, and her own
political party.'' \21\
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\18\ Press release, House Committee on Government Reform (May 19,
2000).
\19\ Statement of Representative Dan Burton, House Committee on
Government Reform, ``Has the Department of Justice Given Preferential
Treatment to the President and Vice President?,'' 106th Cong., 6 (July
20, 2000) (stenographic record) (hereinafter ``July 20 hearing'').
\20\ Representative Dan Burton appearing on Fox, ``Hannity &
Colmes'' (Aug. 3, 1999).
\21\ House Committee on Government Reform, majority report
entitled, ``Janet Reno's Stewardship of the Justice Department: A
Failure to Serve the Ends of Justice,'' i (hereinafter ``majority
report'').
The Facts: Mr. Burton's allegations have been repeatedly
refuted by sworn statements before this committee and other
committees from, among others, FBI Director Louis Freeh and
Charles La Bella, the former head of the Campaign Finance Task
Force. Although Mr. Freeh and Mr. La Bella disagreed with
Attorney General Reno's decision regarding appointing an
independent counsel for campaign finance issues, they
repeatedly affirmed their belief in the Attorney General's
integrity and denied that she acted to protect the President or
others or to impede their investigation.
For example, Mr. La Bella stated, ``My perception is [the
Attorney General] made no decisions to protect anyone.'' \22\
He also said:
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\22\ Testimony of Charles La Bella, Senate Committee on the
Judiciary Subcommittee on Administrative Oversight and the Courts,
``Hearing on 1996 Campaign Finance Irregularities'' (May 2, 2000).
The Attorney General and the Deputy Attorney General
have fully supported the Task Force, and I have every
confidence in the way they are handling the matter.
They are committed to a vigorous investigation and
prosecution of all campaign finance matters and have
told me to pursue the evidence wherever it leads. That
is what I have done and what I expect the Task Force to
continue to do.\23\
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\23\ Statement of Charles La Bella (May 3, 1998).
According to Mr. La Bella, ``when you jump to the
conclusion that this is corruption, I think you're making an
incredible leap.'' \24\
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\24\ Fox, ``Hannity & Colmes'' (Mar. 13, 2000).
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Similarly, Mr. Freeh stated:
I have tremendous respect for our Attorney General. . .
. 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. If
I thought anything differently, I would not be sitting
here today as the FBI Director. I think in all of the
matters that I have dealt with her, and this is over 5
years, you get to know a person pretty well. She has
always brought honesty and integrity to the table.\25\
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\25\ Testimony of Louis J. Freeh, House Committee on Government
Reform, hearing on ``The Need for an Independent Counsel in the
Campaign Finance Investigation,'' 105th Cong., 71 (Aug. 4, 1998)
(hereinafter ``August 4 hearing'').
Mr. Freeh's and Mr. La Bella's views about the Attorney
General have been echoed by other senior FBI and Justice
Department officials appearing before our committee. William J.
Esposito, former Deputy FBI Director, testified, ``My dealings
with the Attorney General [were] quite extensive, especially in
my last year in the FBI. I found her to be a person of high
integrity, a person who would do the right thing.'' \26\ He
further stated that ``in all matters that I've dealt with her
on, she acted very even-handedly.'' \27\ Neil Gallagher,
Assistant FBI Director for Terrorism, stated, ``I have the
highest respect for the Attorney General. I have dealt with her
on many issues, and I have no reason to question her at all.''
\28\ And Robert Conrad, a career prosecutor who has been chief
of the Campaign Finance Task Force since January 2000, told our
committee that ``my experience has been that I have had a fair
hearing from her on issues that I have brought before her and
my expectation would be that I would have a fair hearing on any
recommendations in the future.'' \29\
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\26\ Testimony of William J. Esposito, House Committee on
Government Reform, ``The Justice Department's Implementation of the
Independent Counsel Act,'' 106th Cong., 73-74 (June 6, 2000)
(stenographic record) (hereinafter ``June 6 hearing'').
\27\ Testimony of William J. Esposito, June 6 hearing at 80.
\28\ Testimony of Neil Gallagher, June 6 hearing at 129.
\29\ Testimony of Robert J. Conrad, July 20 hearing at 55.
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In total, the committee heard testimony from 12 senior
Justice Department lawyers and FBI officials who worked with
the Attorney General on the campaign finance investigation and
other matters.\30\ Although several of these witnesses
disagreed with the Attorney General's judgment, not one witness
questioned her motives or integrity.
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\30\ The witnesses were FBI Director Louis Freeh; Charles La Bella,
former head of the Justice Department's Campaign Finance Task Force;
James DeSarno, former lead FBI agent for the Campaign Finance Task
Force; Lee Radek, chief of the Justice Department's Public Integrity
Section; William Esposito, former FBI Deputy Director; Neil Gallagher,
Assistant Director for Terrorism, FBI; James K. Robinson, Assistant
Attorney General; Robert Raben, Assistant Attorney General; Robert
Conrad, head of the Justice Department's Campaign Finance Task Force;
Alan Gershel, Deputy Assistant Attorney General; John R. Schmidt,
former Associate Attorney General; and John Hogan, former chief of
staff to Attorney General Reno.
Allegation: The Attorney General misapplied the
independent counsel statute to protect the White House. ``Janet
Reno has defied the spirit and the letter of the independent
counsel statute . . . Her investigation has become a sham,''
\31\ and ``the Attorney General placed politics over impartial
enforcement of the laws.'' \32\ ``Reno engaged in a creative
analysis of the law in what appeared to be an effort to avoid
the implementation of the Independent Counsel Act.'' \33\ ``The
Attorney General was able to avoid the appointment of an
independent counsel through a disregard of the law and a narrow
view of the evidence.'' \34\
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\31\ Representative Dan Burton quoted in ``Reno Rejection of Ickes
Probe Dims GOP Support for Counsel Law,'' Associated Press (Jan. 30,
1999).
\32\ Majority report at 62.
\33\ Majority report at 1.
\34\ Id.
The Facts: Attorney General Reno has appointed more
independent counsels than any of her predecessors. Since
enactment of the independent counsel statute in 1978, 20
independent counsels have been appointed. Seven of those
appointments were made at the request of Attorney General
Reno.\35\
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\35\ Those seven independent counsels were: Kenneth Starr
(Whitewater, White House Travel Office, FBI files, and Monica
Lewinsky); Donald Smaltz (Agriculture Secretary Mike Espy); David
Barrett (Housing and Urban Development Secretary Henry Cisneros);
Daniel Pearson (Commerce Secretary Ron Brown); Curtis von Kann
(Americorps head Eli Segal); Carol Elder Bruce (Interior Secretary
Bruce Babbitt); and Ralph Lancaster, Jr. (Labor Secretary Alexis
Herman).
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Representative Burton relies on memos written by Mr. Freeh
and Mr. La Bella as evidence that the Attorney General
misapplied the Independent Counsel Act. These memos recommended
the appointment of an independent counsel. However, Mr. Burton
dismisses and overlooks other memos provided to the committee
which recommended against the appointment of an independent
counsel or which took issue with recommendations in the Freeh
and La Bella memos.\36\ The record shows that the Attorney
General solicited and received conflicting advice from a number
of advisors.
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\36\ See, e.g., memorandum from Public Integrity Section Chief Lee
Radek to Assistant Attorney General James K. Robinson (Aug. 5, 1998)
(DOJ-FLB-00130 to 00150) (attached as exhibit 4); memorandum from
Robert S. Litt to the Attorney General, the Deputy Attorney General,
and James K. Robinson, Assistant Attorney General (July 20, 1998) (DOJ-
3149 to 3153) (attached as exhibit 5).
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The record also shows that the conflicting advice was
rendered in good faith. Mr. Freeh and a number of senior
Justice Department officials testified that there was nothing
unusual in the Attorney General receiving conflicting advice in
the course of the campaign finance investigation. Mr. Freeh
testified, ``I would hope and expect that Attorney Generals,
past, present and future, always receive different, good
advice. And I think the more divergent it is at times, the
better it is for that Attorney General to make what he or she
thinks is the best decision.'' \37\ James Robinson, head of the
Justice Department's criminal division, stated that the
internal documents released to Congress demonstrated ``honest
good faith differences of opinion between prosecutors and
investigators who are not shy about expressing their views.''
\38\
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\37\ Testimony of Louis J. Freeh, August 4 hearing at 93.
\38\ Testimony of James Robinson, July 20 hearing at 65. See also
testimony of Deputy Assistant Attorney General Alan Gershel, July 20
hearing at 66-67 (noting that ``it's certainly very common for
prosecutors to engage in good faith discussions, disagreements, debates
on the application of the law, the application of the facts, the
appropriate way to charge or not charge a case. So it does not strike
me as unusual at all''); testimony of Lee Radek, Public Integrity
Section Chief of the Department of Justice, Senate Committee on the
Judiciary Subcommittee on Administrative Oversight and the Courts,
``Hearing on Attorney General's Decisions Regarding Campaign Finance
Investigations,'' 106th Cong. (May 24, 2000) (page numbers not
available) (hereinafter ``May 24 hearing'') (stating that ``[i]nternal
disagreements among Department of Justice officials about various
aspects of the Independent Counsel Act date back to its passage over 20
years ago. What is new is the determination of some to delve into those
confidential discussions and disagreements that were intended as an
honest and frank exchange of views between the attorney general and her
various advisors''); testimony of Lee Radek, June 6 hearing at 31-32
(noting that the style of the Attorney General ``has been to seek out
the views of a variety of advisors, listen carefully to each of us,
consider our arguments, ask her own questions, and then reach her own
decisions'' and that ``[a]ny group of lawyers grappling with complex
legal and factual issues are bound to have disagreements, and the
issues we faced were both complex and difficult'').
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In these circumstances, it was the Attorney General's
prerogative--and her responsibility--to choose which advice to
follow. Not a single witness before the committee suggested
that her decision was influenced by favoritism or politics.
Rather, as Mr. Robinson testified, the record indicates that
the Attorney General made a ``good faith effort to reach
absolutely the correct view from her vantage point as the
decision maker under the Independent Counsel Act.'' \39\
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\39\ Testimony of James Robinson, July 20 hearing at 65.
Allegation: Attorney General Janet Reno ``changed
her interpretation of the Independent Counsel Act'' to ``set
the bar for appointing an independent counsel even higher for
the campaign finance investigation than previous
investigations.'' \40\ The Attorney General has stated that the
discretionary clause of the independent counsel statute
requires that she must conclude there is potential for an
actual conflict of interest, rather than merely an appearance
of a conflict of interest, when she invokes this clause. Yet in
``at least four'' earlier investigations, she referred matters
to an independent counsel under the discretionary clause and
applied a standard of ``apparent conflict.'' \41\
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\40\ Majority report at 13-16.
\41\ Majority report at 14-16.
The Facts: The majority is engaging in pure speculation
regarding whether the Attorney General based earlier
independent counsel referrals on an ``apparent conflict''
standard in the discretionary clause of the Independent Counsel
Act. The referral documents in which the Attorney General
described her rationale for these earlier decisions do not
support the majority's interpretation.
For example, one of the four examples cited by the majority
as an earlier ``discretionary clause'' referral is the matter
involving former Assistant to the President for Management and
Administration David Watkins. According to the majority report,
this referral was made under the Act's ``discretionary
provision,'' as ``David Watkins did not satisfy any of the
requirements for the mandatory provision of the Act.'' \42\ In
fact, the specific reason the Attorney General cited for
recommending an independent counsel on this matter was that Mr.
Watkins did fall under the Act's mandatory provision.\43\ The
Act's discretionary clause was not invoked in the Watkins
referral.
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\42\ Majority report at 15-16.
\43\ Notification to the court pursuant to 28 U.S.C. Sec. 592(a)(1)
of the initiation of a preliminary investigation and application to the
court pursuant to 28 U.S.C. Sec. 593(c)(1) for expansion of the
jurisdiction of an independent counsel, in re William David Watkins
(D.C. Cir., Mar. 20, 1996). The Independent Counsel Act (which expired
in 1999) specified a list of ``covered persons'' who automatically fall
under the Act's mandatory provision. 28 U.S.C. Sec. 591 (a) & (b). In
her filing with the court regarding the Watkins investigation, the
Attorney General stated, ``I have concluded that Watkins is a covered
person under the Independent Counsel Act.'' in re William David
Watkins, at 2 (emphasis added). In the filing, the Attorney General
reasoned that the Act:
includes as a covered person, for the entire duration of
the incumbency of the President: ``the chairman and
treasurer of the principal national campaign committee
seeking the election or reelection of the President, and
any officer of that committee exercising authority at the
national level.'' Watkins was the vice president and
secretary of the Clinton/Gore 1992 Campaign Committee, and
functioned as the deputy campaign manager for operations.
On the basis of an investigation into Watkins' role on the
campaign, I am satisfied that Watkins meets the criteria
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set out by the statute.
Id.
Another of the four examples cited by the majority was a
referral involving former White House detailee Anthony
Marceca.\44\ Mr. Marceca's referral concerned allegations that
the White House had improperly obtained files from the FBI.
According to the majority, the ``conflict'' at issue in the
Marceca referral was based on Mr. Marceca's ``relationship with
President Clinton or the White House generally.'' \45\ This
characterization, however, is inconsistent with the rationale
set forth in the Marceca referral. The referral states that an
investigation by the Department of Justice would constitute a
political conflict of interest ``because it necessarily will
involve an inquiry into dealings between the White House and
the FBI.'' \46\
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\44\ Majority report at 16.
\45\ Id.
\46\ Notification to the court pursuant to 28 U.S.C. Sec. 592(a)(1)
of the initiation of a preliminary investigation and application to the
court pursuant to 28 U.S.C. Sec. 593(c)(1) for the expansion of the
jurisdiction of an independent counsel, in re Anthony Marceca, 3 (D.C.
Cir. June 21, 1996).
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Further, with respect to the three referrals cited by the
majority which did invoke the discretionary clause, there is
simply no discussion of an ``apparent conflict'' standard
anywhere in the referral documents. In these documents, the
Attorney General cites ``political conflict of interest'' as
the basis for the decision to refer, and does not discuss
whether she perceived an ``apparent'' as opposed to an
``actual'' conflict.\47\
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\47\ Notification to the court pursuant to 28 U.S.C. Sec. 592(a)(1)
of the initiation of a preliminary investigation and application to the
court pursuant to 28 U.S.C. Sec. 593(c)(1) for the expansion of the
jurisdiction of an independent counsel, in re Bernard Nussbaum, 3 (D.C.
Cir. Oct. 24, 1996); application to the court pursuant to 28 U.S.C.
Sec. 592(c)(1) for the appointment of an independent counsel in re
Madison Guaranty Savings & Loan Association, 3-4 (D.C. Cir. July 1,
1994); in re Anthony Marceca, supra note 46, at 3.
Allegation: In explaining her view that the
Independent Counsel Act's discretionary clause requires a
finding of potential for an actual conflict of interest instead
of merely an appearance of a conflict, the Attorney General
``neglected to mention the report language supporting the idea
of an apparent conflict of interest.'' \48\ ``[T]he Senate
Report accompanying the 1982 Amendments to the Act stated
`[t]he Committee recognizes that there may be instances when
investigations by the Attorney General of persons not covered
by the Act may create an actual or apparent conflict of
interest.' '' \49\ The Attorney General ``ha[s] a problem with
her interpretation of the Act's legislative history.'' \50\
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\48\ Majority report at 14-15.
\49\ Id. at 15.
\50\ Id.
The Facts: The majority's reference to the Senate report is
misleading. The report language cited by the majority concerned
the discretionary clause provision in the Senate-passed version
of the 1982 Amendments to the Independent Counsel Act. The
discretionary clause language in the Senate-passed bill
authorized appointment of an independent counsel based on an
``appearance'' of a conflict of interest. That language,
however, was deleted before Congress enacted the 1982
amendments into law. In fact, the floor manager of this bill,
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Representative Sam Hall, specifically noted:
The Senate-passed bill provides that the Attorney
General may apply for the appointment of a special
prosecutor to investigate persons other than the class
of individuals specifically covered whenever the
Attorney General determines a personal, financial, or
political conflict of interest or the appearance
thereof may result if an officer of the Department of
Justice conducts the investigation. The bill as amended
deletes the reference to appearances, and thereby
requires the Attorney General to determine that an
actual conflict may exist in order to utilize the
special prosecutor procedures.\51\
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\51\ Congressional Record, H9507 (Dec. 13, 1982) (emphasis added).
The majority also faults the Attorney General for citing ``negative
legislative history'' by drawing inferences regarding congressional
intent from the fact that Congress rejected language. The majority is
apparently concerned that in 1997 testimony, the Attorney General noted
that Congress in 1994 decided to reject a proposal for a more flexible
standard for invoking the discretionary clause. Majority report at 14-
15. This criticism ignores the fact that the Attorney General does not
rely purely on ``negative legislative history'' in discussing her
interpretation of the Act's discretionary clause. For example, as the
majority report acknowledges in a footnote, the Attorney General also
relies on the floor statement of Representative Hall that explicitly
described why Congress deleted the ``appearance'' language from the
discretionary clause. E.g., letter from Attorney General Janet Reno to
Senator Orrin G. Hatch, 3 (Apr. 14, 1997) (DOJ-02046 to 02055)
(attached as exhibit 6).
Allegation: The Attorney General intentionally
misled the committee about Waco by withholding evidence on the
use of ``military rounds'' of tear gas during the siege of the
Branch Davidian compound in Waco, TX. The basis of this
allegation was that the Justice Department purportedly didn't
produce the 49th page of a memo that was, according to Mr.
Burton, ``the very definitive piece of paper that could have
given us some information.'' \52\ Referring to allegations that
the Justice Department had withheld Waco-related information
from Congress, Representative Burton also stated that the
Attorney General ``should be summarily removed, either because
she's incompetent, number one, or, number two, she's blocking
for the President and covering things up, which is what I
believe.'' \53\
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\52\ Fox News, ``Fox News Sunday'' (Sept. 12, 1999).
\53\ National Public Radio, ``Morning Edition'' (Aug. 31, 1999).
The Facts: At the time Mr. Burton made these statements,
evidence produced by the Justice Department regarding the use
of ``military rounds'' of tear gas was in his own files--and
had been since 1995. The Office of Special Counsel John
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Danforth investigated this issue, and concluded:
[W]hile one copy of the report did not contain the 49th
page, the Committees [the House Government Reform and
Oversight Committee and the House Judiciary Committee]
were provided with at least two copies of the lab
report in 1995 which did contain the 49th page. The
Office of Special Counsel easily located these complete
copies of the lab report at the Committees' offices
when it reviewed the Committees' copy of the 1995
Department of Justice production. The Department of
Justice document production to the Committees also
included several other documents that referred to the
use of the military tear gas rounds, including the
criminal team's witness summary chart and interview
notes.\54\
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\54\ John C. Danforth, Special Counsel, ``Interim Report to the
Deputy Attorney General Concerning the 1993 Confrontation at the Mt.
Carmel Complex, Waco, Texas,'' 54 (July 21, 2000).
Allegation: The Attorney General has ``a double
standard for Republicans and Democrats,'' and ``Republicans who
break the law get the book thrown at them, Democrats who break
the law get off with a slap on the wrist.'' \55\ ``[A]s far as
the equal application of justice, it doesn't appear to me that
there has been an equal application of justice by this Justice
Department.'' \56\ ``When Democrats do get convicted, they get
very light sentences. When Republicans get convicted of the
same conduct, they're given massive fines.'' \57\ The Attorney
General's conduct reflects ``uneven enforcement of the law.''
\58\
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\55\ Press release, House Committee on Government Reform (Nov. 1,
1999).
\56\ Statement of Representative Dan Burton, House Committee on
Government Reform, hearing on ``The Role of John Huang and the Riady
Family in Political Fundraising,'' 106th Cong. (Dec. 15, 1999).
\57\ Statement of Representative Dan Burton, House Committee on
Government Reform, hearing on ``The Role Of Yah Lin `Charlie' Trie in
Illegal Political Fundraising,'' 106th Cong. (Mar. 1, 2000).
\58\ Majority report at 109.
The Facts: The majority's statements ignore the fact that
Democrats have received harsh fines for campaign finance
offenses. For example, in December 1998, Future Tech
International Inc. and its chief financial officer, Juan Ortiz,
were fined $1 million for reimbursing employees for their
campaign contributions to Democratic campaigns. The Federal
Election Commission also imposed a $209,000 civil penalty--the
fourth largest in FEC history--on Future Tech and several
company officials.
In addition to receiving fines, Democrats have also served
actual jail time for their offenses, unlike their Republican
counterparts:
In December 1999, Yogesh Gandhi was
sentenced to 1 year in prison and ordered to pay more
than $237,000 in back taxes to the IRS for tax evasion,
mail fraud, and helping to make an illegal $325,000
campaign contribution to the Democratic National
Committee.
In September 1997, Democratic party
fundraisers Gene and Nora Lum were sentenced to 10
months in custody, half in a community confinement
center, the other half in home detention. Each also
received $30,000 in fines and 2 years of probation for
arranging about $50,000 in illegal contributions in
1994 and 1995.
In 1996, Jack Webb and Jeffress Wells, two
former officials of the U.S. Department of Agriculture,
were sentenced to 30 days in jail, 2 years of
supervised probation, and 120 hours of community
service and given a $2,500 fine for conspiring to raise
contributions for a PAC from coworkers and
subordinates. Mr. Wells and Mr. Webb were both active
Democrats, the persons solicited were Democrats, and
the PAC supported the Clinton campaign.
Representative Burton's allegation of favoritism also
conveniently overlooks the fact that Attorney General Reno has
not initiated prosecutions against prominent Republicans
involved in alleged campaign finance violations. For example,
no action has been taken against former Republican National
Committee Chairman Haley Barbour, who formed the National
Policy Forum (NPF) and was alleged to have solicited and
secured a $2.1 million loan from a foreign national for the NPF
which he funneled into the RNC. According to Charles La Bella,
the former head of the Campaign Finance Task Force:
For its part the RNC, while apparently not on a par
with the DNC, had its fair share of abuses. The Barbour
matter is a good example of the type of disingenuous
fundraising and loan transactions that were the
hallmark of the 1996 election cycle. In fact, Barbour's
position as head of the RNC and NPF--and the liberties
he took in those positions--makes the one $2 million
transaction even more offensive than some concocted by
the DNC. Indeed, with one $2 million transaction, the
RNC accomplished what it took the DNC over 100 White
House coffees to accomplish.\59\
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\59\ Interim report from Charles La Bella and James DeSarno for
Attorney General Janet Reno and FBI Director Louis J. Freeh, 83 (July
16, 1998) (DOJ-FLB-00030 to 00127).
Similarly, no action has been taken against Republican
Majority Whip Tom DeLay, despite specific and credible evidence
that Mr. DeLay and a Republican congressional candidate, Brian
Babin, knowingly participated in a scheme to funnel illegal
contributions to Mr. Babin's campaign.\60\ The evidence
relating to Mr. DeLay includes a sworn affidavit from Texan
businessman and Republican donor Peter Cloeren stating that Mr.
DeLay instructed him to funnel money illegally to Mr. Babin's
campaign.\61\
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\60\ House Committee on Government Reform and Oversight,
``Investigation of Political Fundraising Improprieties and Possible
Violations of Law,'' 105th Cong., 2d sess., vol. 4, at 4020-24 (Nov. 5,
1998) (H. Rept. 105-829).
\61\ Affidavit of Peter F. Cloeren, House Committee on Government
Reform and Oversight (Aug. 6, 1998).
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The validity of Mr. Burton's allegation can be tested by
comparing the treatment received by two former Members of
Congress who committed campaign finance violations, former
Republican Representative Jay Kim and former Democratic
Representative Mary Rose Oakar. Representative Kim knowingly
accepted $230,000 in illegal contributions--over 14 times the
amount of money that Representative Oakar conspired to
contribute illegally ($16,000). But Representative Kim received
a comparable sentence to Representative Oakar.\62\
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\62\ In March 1998, Representative Kim was sentenced to 2 months
home confinement under electronic monitoring, 1 year of probation, and
200 hours of community service, and received a $5,000 fine. According
to prosecutors, his case represented ``the largest amount of criminal
campaign finance violations ever committed by a member of Congress.''
``Former Rep. Kim, Convicted in 1997, May Run Again,'' Los Angeles
Times (Dec. 4, 1999). Representative Oakar received a sentence of 2
years' probation and 200 hours of community service, and a $32,000
fine.
Allegation: The Attorney General delayed releasing
the Freeh and La Bella memos in order to protect herself from
public embarrassment. ``By withholding the memos from this
Committee, you tried to keep the Committee from learning how
you had mishandled the investigation.'' \63\ Furthermore,
``when the Justice Department finally turned the documents over
to the Committee, it was clear that the Justice Department's
objections had been utterly false and baseless.'' \64\
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\63\ Letter from Representative Dan Burton to Attorney General
Janet Reno (Mar. 10, 2000).
\64\ Majority report at 128.
The Facts: The Attorney General's reluctance to produce the
Freeh and La Bella memos was consistent with the longstanding
departmental policy against releasing internal memoranda
concerning ongoing investigations to Congress.\65\ Both Mr.
Freeh and Mr. La Bella stated on numerous occasions that public
release of their memoranda would jeopardize the Task Force's
investigations and have a ``chilling effect'' on pending
prosecutions.
---------------------------------------------------------------------------
\65\ E.g., Charles J. Cooper, ``Response to Congressional Requests
for Information Regarding Decisions Made Under the Independent Counsel
Act,'' 10 Op. O.L.C. (Apr. 28, 1986); see also House Committee on
Government Reform and Oversight, ``Contempt of Congress,'' 105th Cong.,
2d sess., minority views at 123-25 (Sept. 17, 1998) (H. Rept. 105-728).
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For example, Attorney General Reno and Director Freeh
warned in a December 8, 1997, letter to Representative Burton
that release of the Freeh memo would provide a ``road map'' of
their investigation.\66\ In his testimony before the committee
on August 4, 1998, Director Freeh was asked whether he thought
Congress should receive his memorandum. Director Freeh replied
that ``I certainly believe it not prudent to receive it at this
point.'' \67\ Mr. La Bella stated at the same hearing:
---------------------------------------------------------------------------
\66\ Letter from Attorney General Janet Reno and FBI Director Louis
J. Freeh to Representative Dan Burton (Dec. 8, 1997).
\67\ Testimony of Louis J. Freeh, August 4 hearing at 110.
The last thing in the world that I want to see as the
prosecutor heading this Task Force is that this memo
ever get disclosed. . . . I don't think it should ever
see the light of day, because this, in my judgment,
would be devastating to the investigations that the men
and women of the Task Force are working on right now
and that I have put my blood, sweat and tears into, and
I don't want to see that jeopardized.\68\
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\68\ Testimony of Charles La Bella, August 4 hearing at 110.
Despite these well-founded reservations, the Attorney
General made significant efforts to accommodate the committee.
In early 1998, the Justice Department provided a briefing to
the chairman, ranking member, and certain staff of the
committee on redacted portions of the Freeh memorandum.\69\ In
late 1998, the Justice Department provided a briefing to the
chairman, ranking member, and certain staff of the committee on
redacted versions of the Freeh and La Bella memoranda, and
permitted review of these documents. And in May 2000, after the
Department's successful prosecution of individuals mentioned in
the memoranda, the Justice Department provided the documents in
minimally redacted form to the committee.\70\
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\69\ See letter from Representative Henry Waxman to Attorney
General Janet Reno and FBI Director Louis J. Freeh (Dec. 19, 1997).
\70\ Mr. La Bella apparently concurred in the Attorney General's
decision in May 2000 to release the minimally redacted memoranda to
Congress. In December 1999, he stated, ``I would think now that the
investigations are all concluded, there's a lot--a good portion of the
memo that could be made public I think without risk to anybody or
anything.'' Fox, ``Hannity and Colmes'' (Dec. 29, 1999).
Allegation: ``[W]e have a piece of evidence from the
Director of the FBI that makes it abundantly clear that we have
been right all along. Janet Reno and Lee Radek have been
blatantly protecting the President, the Vice President and
their party from the outset of this scandal.'' \71\ ``Justice
Department officials believed that a key supervisor of the
campaign finance investigation thought that the Attorney
General's political future hinged on her decisions regarding
her political superiors.'' \72\
---------------------------------------------------------------------------
\71\ Press release, House Committee on Government Reform (May 19,
2000).
\72\ Majority report at v.
The Facts: The majority's evidence is a December 9, 1996,
memo from FBI Director Freeh to former Deputy FBI Director
---------------------------------------------------------------------------
Esposito, which stated:
I also advised the Attorney General of Lee Radek's
comment to you that there was a lot of ``pressure'' on
him and [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 that
those comments would be enough for me to take him and
the Criminal Division off the case completely.\73\
---------------------------------------------------------------------------
\73\ Memorandum from FBI Director Louis J. Freeh to Deputy FBI
Director William J. Esposito (Dec. 9, 1996).
The meaning of Mr. Radek's alleged comment is unclear. The
testimony before this committee and a Senate Judiciary
subcommittee suggests that the two people who heard Mr. Radek's
alleged comment interpreted the comment differently. Mr.
Esposito testified that he considered the remark to be
``totally inappropriate,'' \74\ and he evidently communicated
his belief to Mr. Freeh. But Neil Gallagher, Assistant FBI
Director for Terrorism, testified that he ``did not put any
great significance'' on the statement,\75\ and that ``the
implication that I took was that Lee Radek was making a
statement of how sensitive and tough this investigation was
going to be that we were about ready to enter.'' \76\
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\74\ Testimony of William J. Esposito, June 6 hearing at 119.
\75\ Testimony of Neil Gallagher, June 6 hearing at 126.
\76\ Testimony of Neil Gallagher, June 6 hearing at 125.
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Mr. Radek is a 29-year career prosecutor who began working
for the Justice Department in the Nixon administration and who
has never been involved in Democratic party politics.\77\ He
testified that while he has no recollection of the alleged
conversation with Mr. Esposito, he ``would undoubtedly, in
conversations with Mr. Esposito, talk about pressure on the
Public Integrity Section at frequent occasions, whenever he and
I would talk'' but that ``[i]t was pressure to do the job and
do it right.'' \78\ Asked what pressure he got from the
Attorney General, Mr. Radek responded that ``I got pressure to
do a good job and to do it well.'' \79\ As for the Attorney
General herself, Mr. Radek said that he was ``aware of no
pressure being put on her.'' \80\
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\77\ Testimony of Lee Radek, May 24 hearing.
\78\ Testimony of Lee Radek, May 24 hearing.
\79\ Testimony of Lee Radek, May 24 hearing.
\80\ Testimony of Lee Radek, May 24 hearing.
Allegation: The Vice President ``apparently
suggested that the DNC issue ads be shown to James Riady.''
\81\ The Justice Department failed to review an incriminating
tape of a December 1995 White House coffee which is ``evidence
that the Vice President knew that those [DNC issue] ads were
being paid for by foreign money. That is evidence that the
President knew that there was a connection between those ads
and Mr. Riady.'' \82\ ``I don't think the Justice Department
has even looked into this. In five interviews with the Vice
President, they didn't ask him a single question about it. I
don't think they have even asked to see the original tape.''
\83\
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\81\ Majority report at 65.
\82\ Statement of Representative Bob Barr, July 20 hearing at 100.
\83\ Statement of Representative Dan Burton, July 20 hearing at 10.
The Facts: The videotape in question is of a December 15,
1995, White House coffee attended by Arief Wiriadinata, the
son-in-law of Hashim Ning, a business associate of Lippo
founder Mochtar Riady. James Riady, Mochtar's son, is suspected
of making conduit campaign contributions in the 1992 and 1994
election cycles. According to Representative Burton's
---------------------------------------------------------------------------
description of the videotape:
Mr. Wiriadinata moves away from the camera and you hear
a voice in the background. It sounds very much like the
Vice President. It sounds like he is saying, ``We
oughta, we oughta, we oughta show Mr. Riady the tapes,
some of the ad tapes.'' \84\
---------------------------------------------------------------------------
\84\ Statement of Representative Dan Burton, July 20 hearing at 9.
According to neutral observers, however, the tape is
virtually unintelligible. A Reuters reporter describing the
playing of the videotape at the committee's hearing wrote,
``Gore's muffled words were not clear.'' \85\ When the tape was
played on a Fox TV show, the person in charge of transcribing
the show was also unable to make it out. The transcript for the
show reads: ``We ought to, we ought to show that to
[unintelligible] here, let [unintelligible] tapes, some of the
ad tapes [unintelligible].'' \86\
---------------------------------------------------------------------------
\85\ ``Justice Department Won't Discuss Gore Video,'' Reuters (July
21, 2000).
\86\ Fox, ``Hannity and Colmes'' (July 19, 2000).
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Furthermore, as the majority is aware, the tape in question
was provided to the Justice Department in October 1997.\87\
Thus, it is entirely possible that the Department reviewed the
tape 3 years ago and came to the same conclusion as other
unbiased observers--namely, that the tape is
unintelligible.\88\
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\87\ Letter from Beth Nolan, counsel to the President, to James C.
Wilson, chief counsel (Sept. 23, 2000) (noting that ``in a recent
conversation with Lisa Klem of my office you indicated that you knew
the Department of Justice had the videotape in October 1997'').
\88\ The majority also asserts, ``The Vice President himself
admitted that it was his voice, but deflected questions by saying it
was a political attack using news that had been available for years.''
Majority report at 71 (citing ``Congressman Focuses on Gore Videotape
Comment,'' Associated Press (July 19, 2000)). However, the news article
the majority cites for this assertion says nothing about the Vice
President's reaction to, or comments about, the videotape--nor do any
of the other articles cited by the majority.
Allegation: The Justice Department is ``more
interested in defending the White House in the e-mail matter
than investigating it'' \89\ and ``it has become known that the
one part time lawyer handling the e-mail investigation for the
Department has recently left government employment.'' \90\ The
Department has given the White House ``preferential treatment''
by failing to investigate whether the e-mail matter involves
``obstruction of Congressional investigations of the campaign
finance scandal.'' \91\
---------------------------------------------------------------------------
\89\ Majority report at vii.
\90\ Majority report at vii.
\91\ Majority report at vii-viii.
The Facts: The Department's e-mail investigation is being
carried out in coordination with Independent Counsel Robert
Ray.\92\ There is no reason to believe that Mr. Ray and the
Justice Department are not pursuing an appropriate
investigation.
---------------------------------------------------------------------------
\92\ Testimony of Alan Gershel, House Committee on Government
Reform, hearing on ``Contacts Between Northrop Grumman Corporation and
the White House Regarding Missing White House E-Mails,'' 35 (Sept. 26,
2000) (stenographic record) (hereinafter ``September 26 hearing''). Mr.
Gershel assured the committee that the Department had not impeded or
limited the scope of Mr. Ray's investigation, and the committee has
received no information to question this assurance. September 26
hearing at 48.
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The report offers no evidence to support its allegation
that the Department has relied on one part-time lawyer to
handle the e-mail investigation.\93\ Asked about this
allegation, Attorney General Reno and Deputy Assistant Attorney
General Alan Gershel each made clear that they were unable to
respond, due to the Department's longstanding policy of not
disclosing staffing levels for ongoing investigations.\94\
However, the Attorney General assured the committee that
``there are sufficient resources committed to it based on the
recommendations of the prosecutors involved.'' \95\ Similarly,
Mr. Gershel observed:
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\93\ The majority has repeated this accusation with increasing
conviction, despite being unable to cite any evidence to support it.
Mr. Burton said in a hearing on September 26 that ``We have heard
from--heard the Task Force was using just one part-time lawyer.''
Statement of Representative Dan Burton, September 26 hearing at 41
(emphasis added). In its e-mail report, released shortly thereafter,
the majority asserted, ``It appears that for at least part of its e-
mail investigation, the Justice Department had only one part-time
lawyer assigned to its e-mail investigation.'' House Committee on
Government Reform, ``The Failure to Produce White House E-Mails:
Threats, Obstruction and Unanswered Questions,'' 106th Cong., 141
(2000) (stenographic record) (emphasis added). Now, the majority
asserts simply that ``it has become known that the one part time lawyer
handling the e-mail investigation for the Department has recently left
government employment.'' Majority report at vii (emphasis added).
\94\ Transcript of interview of Attorney General Janet Reno, House
Committee on Government Reform, 4 (Oct. 5, 2000) (hereinafter
``Attorney General Reno interview''); testimony of Alan Gershel,
September 26 hearing at 34-35.
\95\ Attorney General Reno interview at 9.
the Attorney General regularly consults with Robert
Conrad, the chief of the Campaign Financing Task Force,
and me to ensure that the Task Force has the resources
it needs. Bob and I both believe that the Task Force
currently has sufficient staff to handle the White
House e-mail matter as well as its other
responsibilities.\96\
---------------------------------------------------------------------------
\96\ Testimony of Alan Gershel, September 26 hearing at 35.
Mr. Gershel also pointed out that ``with respect to the White
House e-mail matter the [Department's] Task Force and the
office of the independent counsel are working together in a
coordinated investigation. So it is not just the Task Force's
resources that are involved.'' \97\
---------------------------------------------------------------------------
\97\ Testimony of Alan Gershel, September 26 hearing at 35. The
majority also asserts that the Department has given the White House
``preferential treatment'' by failing to investigate whether the e-mail
matter involves ``obstruction of Congressional investigations of the
campaign finance scandal.'' Majority report at vii. In support of this
assertion, the majority claims that ``[i]n an October 5, 2000,
interview with the Committee, Attorney General Reno made it clear that
she would not take proactive steps to determine whether the White House
had obstructed Congressional investigations by failing to take steps to
produce subpoenaed e-mail records.'' Majority report at viii.
---------------------------------------------------------------------------
This assertion is without merit. The interview with the Attorney
General included the following exchange:
Majority Counsel: . . . is the Department of Justice doing
an investigation of any sort of matters that go to
Congressional investigations?
Attorney General Reno: I will be happy to check and see
what I can provide you based on what might be known or any
complaint that you have made of obstruction. But I don't
know the full range of your investigations, so I can't tell
you.
Attorney General Reno interview at 25.
Moreover, in the course of the interview, majority counsel conceded
that the Department had asked the majority months ago which
congressional subpoenas may not have been complied with--and the
majority declined to cooperate with this request:
Majority Counsel: Mr. Gershel a number of months ago called
me directly and said he wanted to interview me specifically
to try and determine whether Congressional subpoenas had
not been complied with or whether there was obstruction of
a Congressional investigation. I said to him at the time I
would be happy to comply with his request for an interview
pending consultation with my superiors, but first we had
the outstanding question of whether there was a special
counsel to be appointed. And I indicated that it would
perhaps be counterproductive if I did an interview with him
when, as Mr. Raben had indicated--actually had not yet
indicated, but as indicated by you, there was an ongoing
determination as to whether a special counsel would be
appointed.
Attorney General Reno interview at 32.
Allegation: In July 1999 testimony before the House
Rules Committee, Representative Burton claimed that the
Government Reform Committee had received information indicating
that the Attorney General ``personally'' changed a policy
related to release of information by the Justice Department so
that an attorney she knew ``could help her client.'' \98\
---------------------------------------------------------------------------
\98\ Testimony of Chairman Dan Burton, House Rules Committee (July
15, 1999) (available at www.house.gov/reform/oversight/99--07--15db-
rules.htm).
The Facts: Mr. Burton's allegations concerned a decision by
the Justice Department to confirm the lack of existence of
records in response to a FOIA request by a Miami attorney,
Rebekah Poston. This decision to confirm the lack of records
was legal,\99\ and it was damaging to Ms. Poston's client.\100\
The records produced to the committee and testimony by the
relevant individuals showed that the Attorney General had
recused herself from the decision.\101\
---------------------------------------------------------------------------
\99\ Testimony of Richard Huff, House Government Reform Committee,
``Felonies and Favors: A Friend of the Attorney General Gathers
Information from the Justice Department,'' 150 (July 27, 2000)
(stenographic record) (hereinafter ``July 27 hearing'').
\100\ Ms. Poston was seeking information for a client, a member of
an international religious organization known as Soka Gakkai. Ms.
Poston's client had been sued in a Japanese court for libel by a
Japanese citizen named Nobuo Abe. The alleged statements at the heart
of this lawsuit related to whether Mr. Abe had been arrested or
detained in Seattle in 1963. Mr. Abe maintained that he had never been
detained and that statements to the contrary made by Ms. Poston's
client were defamatory. Ms. Poston's FOIA requests sought records that
would have established that her client's statements were true and that
Mr. Abe had, in fact, been arrested or detained. E.g., letter from
Russell J. Bruemmer and Patrick J. Carome of Wilmer, Cutler &
Pickering, to Richard L. Huff (Mar. 31, 1995) (DOJ-02812 to 02817). The
Justice Department's confirmation that no such records existed was
adverse to the interests of Ms. Poston's client.
\101\ Memorandum from Attorney General Janet Reno to staff of the
Attorney General (Apr. 28, 1995) (attached as exhibit 7); House
Committee on Government Reform, ``Felonies and Favors: A Friend of the
Attorney General Gathers Information from the Justice Department,''
July 27 hearing at 154. The majority also alleges that Ms. Poston took
``illegal actions'' and that she ``Request[ed] Her Private
Investigators to Break the Law.'' Majority report at 163, 168. The
majority's allegation appears to be based on the premise that Ms.
Poston inappropriately directed her private investigators to access a
restricted FBI database. In testimony under oath before this committee,
however, Ms. Poston denied asking private investigators to break the
law. House Committee on Government Reform, ``Felonies and Favors: A
Friend of the Attorney General Gathers Information from the Justice
Department,'' July 27 hearing at 63. Richard Lucas, the investigator
who received instructions from Ms. Poston on what she wanted
investigated, also testified that she did not ask him to access
restricted information. Id. at 50, 55-56, 66-67. In fact, contrary to
the majority's allegation, no evidence received by the committee
demonstrates that Ms. Poston instructed private investigators to break
the law.
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In its discussion of the Poston matter, the majority report also
states that according to Mr. Lucas, Barry Langberg, an attorney for
Soka Gakkai, hired Jack Palladino, a private investigator, to look into
the issue of whether Mr. Abe was arrested in 1963. The majority report
alleges that it is possible that through their actions on this matter,
Mr. Palladino and Mr. Langberg ``broke the law.'' Majority report at
162. The committee, however, never interviewed Mr. Palladino or Mr.
Langberg. On Oct. 31, 2000, Mr. Langberg wrote the committee to address
allegations in the majority report that relate to him. According to Mr.
Langberg, the majority's account ``contains numerous demonstrable
factual errors, and recklessly accuses private individuals of criminal
wrongdoing without any pretense of due process or any substantive
evidence.'' He also stated that he has ``no personal involvement with
the activity criticized in the report.'' Letter from Barry B. Langberg
to Representative Dan Burton and Representative Henry Waxman (Oct. 31,
2000) (attached as exhibit 8).
Allegation: There was an ``apparently illegal
conduit contribution scheme by the Democratic National
Committee to funnel more than a third of a million dollars to
the Kansas Democratic party.'' \102\ ``The Justice Department
failed to pursue the Kansas conduit contribution scheme.''
\103\
---------------------------------------------------------------------------
\102\ Majority report at 108.
\103\ Id.
The Facts: In 1996, Democratic party national committees
contributed to Kansas State candidates and county committees,
and to Democratic party committees in other States. Some of
these candidates, county committees, and State party committees
subsequently contributed to the Kansas Democratic party.\104\
Media accounts reported concerns that these actions may have
constituted illegal circumvention of a Kansas law that caps
contributions by national party committees to State party
committees and prohibits making contributions in the name of
another.\105\
---------------------------------------------------------------------------
\104\ E.g., deposition of Jim Lawing, House Committee on Government
Reform and Oversight, 22-29 (Feb. 18, 1998).
\105\ E.g. ``Local Demos Say They Felt Need to Repay State Party:
Legality of Transfers Questioned,'' Winfield Daily Courier (Oct. 9,
1997). The State law provisions at issue are Kan. Stat. Ann. Sec. 25-
4153 (1996) and Kan. Stat. Ann. Sec. 25-4154 (1996).
---------------------------------------------------------------------------
In 1997, State representative Henry Helgerson wrote the
bipartisan Kansas Commission on Governmental Standards and
Conduct asking for clarification of the Kansas law.\106\ The
Commission issued an opinion on this matter on September 11,
1997.\107\ Under the Commission's opinion, national party
committees could contribute to a Kansas State candidate, Kansas
county committee, or other State party, and that candidate,
county committee, or State party could subsequently contribute
to a Kansas State party committee without violating the Kansas
statute. A violation would occur only if the national party
committees had an understanding with the entity to which they
made the contribution that the money was to be contributed to
the State party committee.\108\
---------------------------------------------------------------------------
\106\ Letter from Henry Helgerson to Carol Williams (Sept. 3, 1997)
(attached as exhibit 9). The Commission is charged with administering,
interpreting and enforcing the Kansas Campaign Finance Act and laws
relating to conflict of interests, financial disclosure and the
regulation of lobbying. See the home page of the Commission at
www.state.ks.us/public/gsc/.
\107\ Kansas Commission on Governmental Standards and Conduct,
Opinion No. 1997-45 (Sept. 11, 1997) (attached as exhibit 10).
\108\ See id. (stating that there is no violation of the Kansas
statute if ``A'' gives money to ``B'' and ``B'' then contributes the
money to ``C,'' ``so long as there was not an understanding between `A'
and `B' that the money was to be contributed to `C' '').
---------------------------------------------------------------------------
In February 1998, the committee deposed a total of five
individuals on this matter, four of whom were Kansas Democratic
State legislative candidates in 1996 and one of whom was a
Kansas Democratic party official in 1996. All of these
individuals received contributions from national Democratic
party committees in 1996.\109\ All of these individuals also
testified that they did not have any understanding with the
national committees from which they received contributions that
they would contribute that money to the State party.\110\
---------------------------------------------------------------------------
\109\ Deposition of Henry Helgerson, House Committee on Government
Reform and Oversight, 16 (Feb. 19, 1998); deposition of Jim Lawing,
House Committee on Government Reform and Oversight, 12-13, 22-23 (Feb.
18, 1998) (testifying that he received a contribution is from the
Democratic Congressional Campaign Committee in his capacity as chairman
of the Sedgwick County Democratic Central Committee); deposition of
Marge Petty, House Committee on Government Reform and Oversight, 14-18
(Feb. 24, 1998); deposition of Jerald Karr, House Committee on
Government Reform and Oversight, 16-17 (Feb. 23, 1998); deposition of
Douglas Walker, House Committee on Government Reform and Oversight, 26-
29 (Feb. 23, 1998).
\110\ Deposition of Henry Helgerson at 57-58; deposition of Jim
Lawing at 41-42; deposition of Marge Petty at 14-15, 34-35; deposition
of Jerald Karr at 30, 46; deposition of Douglas Walker at 26-27, 40.
The majority report emphasizes a Sept. 3, 1996, memo from Tressie
Hurley to Kansas State Senate candidate Donald Biggs which notes that
the Democratic Senatorial Campaign Committee will contribute $1,000 to
Senate campaigns and states, ``You may keep $200 but then must turn
around and contribute $800 to the Senate Victory Fund.'' Majority
report at 110. According to deposition testimony, however, at the time
of this memo, Ms. Hurley was a junior staffer in the office of State
Senate Minority Leader Jerald Karr. She was not an employee of any
national Democratic party organization or otherwise in a position to
act as an agent of such an organization. Deposition of Jerald Karr at
36, 47. The Hurley memo does not therefore demonstrate an agreement
between the national Democratic party and Mr. Biggs regarding the
national party's contribution to him. Further, the committee never
deposed either Ms. Hurley or Mr. Biggs to explore the significance of
the memo.
---------------------------------------------------------------------------
According to testimony of individuals in committee
depositions, the Kansas Commission on Governmental Standards
and Conduct also investigated the contributions at issue.\111\
While the Commission is prohibited by law from commenting on
whether an investigation has been instigated or is
ongoing,\112\ evidence indicates that the Commission has found
no wrongdoing regarding this matter. Under Kansas law, the
Commission must hold a hearing if, after investigating, the
Commission finds that ``probable cause exists for believing the
allegations of the complaint,'' and this hearing must be held
no more than 30 days after the finding is made.\113\ No such
hearing has ever been held on the allegations,\114\ which date
back to close to 4 years ago. According to the Commission's
executive director, the Commission deals with allegations in as
timely a manner as possible, and 4 years from the time
allegations were first made is outside of the realm of
timeliness.\115\
---------------------------------------------------------------------------
\111\ See, e.g., deposition of Jim Lawing at 47-48 (stating that he
had given a statement and had provided documents to the Commission on
the subject of the funds received from the national Democratic Party);
deposition of Douglas Walker at 46 (stating that the Kansas Commission
had spoken with him about a lot of the same subjects covered in the
Committee's deposition of him).
\112\ Kan. Stat. Ann. Sec. 25-4161 (1999).
\113\ Id.
\114\ Telephone conversation between minority staff and Carol
Williams, executive director of the Kansas Commission on Governmental
Standards and Conduct (Oct. 30, 2000).
\115\ Id.
---------------------------------------------------------------------------
II. The Majority Has Improperly Sought To Inject Politics into
Prosecutorial Decisions
Beyond making unsubstantiated allegations, Mr. Burton has
repeatedly sought to interject the committee into prosecutorial
decisions by the Justice Department. These efforts have
conflicted with historical practices grounded in the principle
of separation of powers. As former Attorney General Ramsey
Clark stated:
If Constitutional separation of powers, integrity and
effectiveness in the execution of the laws and the
individual rights of witnesses . . . are to be
protected, Congress must let the Attorney General
perform the duties of that office without demanding
investigative materials, or staff recommendations in an
ongoing investigation.\116\
---------------------------------------------------------------------------
\116\ Letter from Ramsey Clark to Representative Henry Waxman (Aug.
5, 1998) (attached as exhibit 11).
---------------------------------------------------------------------------
A. The Majority's Subpoena of the Freeh and La Bella Memoranda
One example of inappropriate overreaching into
prosecutorial decisions was the majority's July 24, 1998,
subpoena to the Attorney General for documents authored by FBI
Director Louis J. Freeh and former Justice Department Campaign
Finance Task Force head Charles G. La Bella. These documents
contained prosecution recommendations and other sensitive and
detailed information regarding the Justice Department's ongoing
campaign finance investigation. Both Mr. Freeh and Mr. La Bella
opposed release of the documents.\117\ As former Attorney
General Nicholas deB. Katzenbach stated, ``it is hard to
imagine a less appropriate subject for a subpoena or one more
calculated to politicize the Department.'' \118\
---------------------------------------------------------------------------
\117\ At the time of the dispute over the documents, Mr. La Bella
testified that release of his memo would be ``devastating to the
investigations that the men and women of the Task Force are working on
right now,'' and Mr. Freeh testified that release of his memo would not
be ``prudent.'' Testimony of Charles G. La Bella, August 4 hearing at
110; testimony of Louis J. Freeh, August 4 hearing at 110.
\118\ Letter from Nicholas deB. Katzenbach to Representative Henry
Waxman (Aug. 5, 1998) (attached as exhibit 12).
---------------------------------------------------------------------------
The majority's demands ignored a long history of Justice
Department precedents.\119\ As the following examples
demonstrate, Justice Departments under both Republican and
Democratic administrations have recognized an important public
policy interest in preserving the confidentiality of internal
documents relating to open criminal investigations:
---------------------------------------------------------------------------
\119\ The majority report cites a number of precedents in an
attempt to support the proposition that subpoenaing the Freeh and La
Bella memoranda was appropriate. Majority report at 139-43. The
precedents cited by the majority, however, do not resemble the
circumstances relating to the Freeh and La Bella memoranda. In
particular, none of the precedents involves a congressional attempt to
obtain a prosecution memorandum during an open criminal investigation.
For example, in the Palmer Raids investigation, the document produced
was not a prosecution memorandum but a legal analysis of a trial court
opinion, and the trial had ended. With respect to the Teapot Dome
scandal, at the time the Justice Department produced documents to
Congress, it had finished investigating the matter and had finished
considering legal action, and the primary document produced was a
report from an accountant, not a prosecution memorandum. For additional
discussion of these and the other examples cited in the majority
report, see House Committee on Government Reform and Oversight,
``Contempt of Congress,'' 105th Cong., 2d sess., minority views at 136-
38 (Sept. 17, 1998).
Franklin Roosevelt administration: In 1941, a House
committee requested all Justice Department investigative
materials relating to labor strikes involving naval
contractors. Attorney General Robert H. Jackson refused to
provide the information, stating: ``all investigative reports
are confidential documents of the executive department of the
Government [and] congressional or public access to them would
not be in the public interest.'' \120\
---------------------------------------------------------------------------
\120\ Opinion of Attorney General Robert H. Jackson (1941).
Nixon administration: In 1969, during a House
committee investigation into the My Lai massacre, the Army was
asked to provide all materials from its ongoing investigation
into the incident. Thomas Kauper, Deputy Assistant Attorney
General, rejected the request, stating: ``If a congressional
committee is fully apprised of all details of an investigation
as the investigation proceeds, there is a substantial danger
that congressional pressures will influence the course of the
investigation.'' \121\
---------------------------------------------------------------------------
\121\ Thomas E. Kauper, ``Submission of Open CID Investigation
Files'' (Dec. 19, 1969).
Ford administration: In 1976, Representative Bella
Abzug, who chaired a subcommittee of the Government Operations
Committee, requested FBI investigative files concerning
domestic intelligence matters. Deputy Attorney General Harold
R. Tyler, Jr., refused to provide the information, stating:
``if the Department changes its policy and discloses
investigative information, we could do serious damage to the
Department's ability to prosecute prospective defendants and to
the FBI's ability to detect and investigate violations of
criminal law.'' \122\
---------------------------------------------------------------------------
\122\ Letter from Harold R. Tyler, Jr., to Representative Bella
Abzug (Feb. 26, 1976).
Reagan administration: In 1986, the Justice
Department's Office of Legal Counsel concluded that the
Attorney General should not disclose to Congress the contents
of a report filed with a court pursuant to the Independent
Counsel Act. Assistant Attorney General Charles J. Cooper wrote
that ``the executive . . . has the exclusive authority to
enforce the laws adopted by Congress, and neither the judicial
nor legislative branches may directly interfere with the
prosecutorial discretion of the Executive Branch by directing
the executive to prosecute particular individuals.'' \123\
---------------------------------------------------------------------------
\123\ Charles J. Cooper, ``Response to Congressional Requests for
Information Regarding Decisions Made Under the Independent Counsel
Act,'' 10 Op. O.L.C. 68 (Apr. 28, 1996).
Bush administration: In 1989, the Justice
Department's Office of Legal Counsel concluded that agency
inspectors general were not required to provide information to
Congress about open criminal investigations. Assistant Attorney
General Douglas W. Kmiec concluded that there was no obligation
to provide such information, stating: ``the executive branch
has generally declined to make any accommodation for
congressional committees with respect to open cases: that is,
it has consistently refused to provide confidential
information.'' \124\
---------------------------------------------------------------------------
\124\ Douglas W. Kmiec, ``Congressional Requests for Information
from Inspectors General Concerning Open Criminal Investigations,'' 13
Op. O.L.C. 93 (Mar. 24, 1989).
As summarized by Charles J. Cooper, Assistant Attorney
General during the Reagan Administration in a 1986 legal
opinion, the policy of not turning over investigative
---------------------------------------------------------------------------
documents:
was first expressed by President Washington and has
been reaffirmed by or on by Presidents Jefferson,
Jackson, Lincoln, Theodore Roosevelt, Franklin
Roosevelt, and Eisenhower. No President, to our
knowledge, has departed from this position affirming
the confidentiality and privileged nature of open law
enforcement files.\125\
---------------------------------------------------------------------------
\125\ Charles J. Cooper, ``Response to Congressional Requests for
Information Regarding Decisions Made Under the Independent Counsel
Act,'' 10 Op. O.L.C. (Apr. 28, 1986). For additional discussion of
precedent on this matter, see House Committee on Government Reform and
Oversight, ``Contempt of Congress,'' 105th Cong., 2d sess., minority
views at 123-25 (Sept. 17, 1998) (H. Rept. 105-728).
Nevertheless, the majority persisted in its demands for the
Freeh and La Bella memoranda. In fact, as discussed below, the
majority even voted to hold the Attorney General in contempt of
Congress in August 1998 after she refrained from appointing an
independent counsel and refused to provide the Freeh and La
Bella memoranda.\126\
---------------------------------------------------------------------------
\126\ See House Committee on Government Reform and Oversight,
``Contempt of Congress,'' 105th Cong., 2d sess. (Sept. 17, 1998) (H.
Rept. 105-728).
---------------------------------------------------------------------------
B. The Majority's Use of the Contempt Power
Article II of the Constitution vests the power to execute
and enforce the laws of the United States in the executive
branch. In particular, the courts have long recognized that
criminal prosecution is exclusively the province of the
executive branch.\127\ Nevertheless, Mr. Burton improperly used
the Congress' contempt power to coerce the Attorney General to
appoint an independent counsel to investigate the President.
---------------------------------------------------------------------------
\127\ E.g., Heckler v. Chaney, 470 U.S. 821, 832 (1985).
---------------------------------------------------------------------------
In late July 1998, the conflict between Mr. Burton and the
Attorney General over the production of the Freeh and La Bella
memoranda was reaching its climax. Mr. Burton told the media
that he would hold the Attorney General in contempt of Congress
if she did not comply with his subpoena to turn over the
documents.\128\
---------------------------------------------------------------------------
\128\ E.g., ``Justice Holds Subpoenaed Memos,'' Associated Press
(July 27, 1998).
---------------------------------------------------------------------------
In an effort to reach an accommodation with Mr. Burton, the
Attorney General and FBI Director Freeh requested a private
meeting with Mr. Burton and Ranking Member Waxman.\129\ During
this meeting on July 31, 1998, Mr. Burton told the Attorney
General that he would drop his efforts to seek contempt if she
would seek the appointment of an independent counsel. As Mr.
Waxman wrote to the Attorney General after the meeting:
---------------------------------------------------------------------------
\129\ This request for a meeting was one of several efforts by the
Attorney General to reach an accommodation with the committee. For
example, on July 28, 1998, she and FBI Director Freeh wrote
Representative Burton offering to provide a confidential briefing on
appropriate portions of the La Bella memorandum after the Attorney
General had completed her evaluation of Mr. La Bella's recommendation.
Letter from Attorney General Janet Reno and FBI Director Louis Freeh to
Representative Dan Burton (July 28, 1998) (attached as exhibit 13). On
Aug. 4, 1998, the Attorney General reiterated her offer to provide a
confidential briefing on appropriate portions of the La Bella
memorandum after she had an opportunity to fully review the memorandum,
noting that such review should take approximately 3 weeks. Letter from
Attorney General Janet Reno to Representative Dan Burton (Aug. 4, 1998)
(attached as exhibit 14). Further, on Aug. 6, 1998, the Attorney
General contacted Mr. Burton by telephone and said that after she had
reviewed the La Bella memorandum, she would be willing to appear before
the full committee and, to the extent that it would not prejudice the
ongoing criminal investigation, explain Mr. La Bella's legal rationale.
The chairman's remarks were a blatant attempt to
influence your decision. You were told that you could
avoid being held in contempt of Congress if you acceded
to Mr. Burton's demands that you seek appointment of an
Independent Counsel. Conditioning a contempt citation
on your willingness to appoint an Independent Counsel
is clearly coercive.
* * * * *
Mr. Burton's tactics are not subtle. He knows that you
cannot turn over the La Bella memorandum. . . . Thus,
Mr. Burton is seeking to place you in an untenable
position. In effect, he has given you only two choices:
(1) become the first Attorney General in history to be
held in contempt of Congress because you cannot turn
over the La Bella memorandum or (2) appoint the
Independent Counsel that he demands.\130\
---------------------------------------------------------------------------
\130\ Letter from Representative Henry Waxman to Attorney General
Janet Reno (July 31, 1998) (attached as exhibit 15).
The chairman's spokesman, Will Dwyer, confirmed Mr.
Burton's intent. As reported in the Washington Post on the
following day, Mr. Dwyer conceded that ``[t]he only one real
objective here is getting an independent counsel, as these
documents advise her to do. . . . If she follows that advice,
there will be no need for the documents.'' \131\
---------------------------------------------------------------------------
\131\ ``Democrats Say Burton Made Threat Against Reno,'' Washington
Post (Aug. 1, 1998).
---------------------------------------------------------------------------
Attorney General Reno properly resisted these efforts at
intimidation. As she explained on August 4: ``Chairman Burton
told me Friday that if I triggered the appointment of an
independent counsel, I would not have to produce the memos. If
I give in to that suggestion, then I risk Congress turning all
decisions to prosecute into a political football.'' \132\
---------------------------------------------------------------------------
\132\ Press conference of Attorney General Reno, unofficial
transcript (LEXIS, ``Scripts'') (Aug. 4, 1998).
---------------------------------------------------------------------------
By a party-line vote (24 to 19), the committee voted on
August 6, 1998, to recommend to the House of Representatives
that the Attorney General be cited for contempt of Congress.
The majority's actions on this matter were the subject of
widespread criticism.\133\
---------------------------------------------------------------------------
\133\ See ``Tell Him No, Ms. Reno,'' Miami Herald (Aug. 6, 1998)
(``Mr. Burton's request is dangerous. It's more than laced with his
palpable political motives. Worse, it's also bereft of any sign that he
has weighed what these memos, if leaked, could do to the Justice
Department's own investigation''); ``Give Reno Some Room,'' St.
Petersburg Times (Aug. 6, 1998) (``What is clear is that Burton should
wipe away the froth around his mouth and stop demanding information
that he has no right to''); ``Buck Stops with Reno,'' Los Angeles Times
(Aug. 6, 1998) (``This is a fishing expedition by Chairman Dan Burton .
. . The precedent Rep. Burton seeks could make the executive branch a
ground for all sorts of witch hunts by those who second-guess motives
and judgments of decision-makers''); ``Mr. Burton and Ms. Reno,''
Washington Post (Aug. 7, 1998) (``The House Government Reform and
Oversight Committee's vote yesterday to cite the attorney general in
contempt of Congress is a dangerous political interference in a law
enforcement decision that threatens to undermine the Justice
Department's campaign finance investigation . . . Mr. Burton's approach
to the matter has been nothing less than thuggish'').
---------------------------------------------------------------------------
C. Subpoenas for Grand Jury Materials
Another example of Mr. Burton's inappropriate intrusion
into prosecutorial matters is the majority's efforts to obtain
grand jury subpoenas issued by the Justice Department during
its campaign finance investigation. To obtain these grand jury
materials, the majority issued a subpoena on March 22, 2000, to
the Justice Department seeking the grand jury subpoenas issued
by the Campaign Finance Task Force to the Executive Office of
the President (EOP), the White House, the DNC, and the RNC. The
majority also issued a subpoena on March 16, 2000, to the EOP
asking for grand jury subpoenas provided or served by the
Campaign Finance Task Force from September 1, 1996, to the
present.
The Justice Department responded to the majority's subpoena
on April 24, stating that it was unable to provide copies of
grand jury subpoenas because ``[d]isclosure of information as
to any subpoena is prohibited by Rule 6(e) of the Federal Rules
of Criminal Procedure,'' which protects the secrecy of grand
jury proceedings.\134\ Despite the Department's concerns, on
August 3, 2000, the majority proceeded to issue subpoenas to
the State Department, the Commerce Department, and the DNC
asking for grand jury subpoenas issued by the Justice
Department's Campaign Finance Task Force. The majority also did
not withdraw the subpoena it had issued in March to the EOP.
---------------------------------------------------------------------------
\134\ Letter from Assistant Attorney General Robert Raben to
Representative Dan Burton (Apr. 24, 2000).
---------------------------------------------------------------------------
These attempts to subpoena grand jury subpoenas were
improper. They did not recognize longstanding rules that
protect the secrecy of grand jury proceedings. According to the
U.S. Supreme Court:
We consistently have recognized that the proper
functioning of our grand jury system depends upon the
secrecy of grand jury proceedings. In particular, we
have noted several distinct interests served by
safeguarding the confidentiality of grand jury
proceedings. First, if preindictment proceedings were
made public, many prospective witnesses would be
hesitant to come forward voluntarily, knowing that
those against whom they testify would be aware of that
testimony. Moreover, witnesses who appeared before the
grand jury would be less likely to testify fully and
frankly, as they would be open to retribution as well
as to inducements. There also would be the risk that
those about to be indicted would flee, or would try to
influence individual grand jurors to vote against
indictment. Finally, by preserving the secrecy of the
proceedings, we assure that persons who are accused but
exonerated by the grand jury will not be held up to
public ridicule.\135\
---------------------------------------------------------------------------
\135\ Douglas Oil Company of California v. Petrol Stops Northwest,
441 U.S. 211, 218-19 (1979) (citations omitted) (emphasis added). The
court further noted that ``[o]ne of the several interests promoted by
grand jury secrecy is the protection of the innocent accused from
disclosure of the accusations made against him before the grand jury.''
441 U.S. at 218 (citation omitted).
The Justice Department appropriately responded to these
subpoenas by expressing its ``serious concern about the
Committee's recent practice of subpoenaing public and private
sector entities to produce copies of grand jury subpoenas.''
---------------------------------------------------------------------------
According to the Department:
the practice of ``subpoenaing subpoenas'' or otherwise
using the congressional subpoena power to shadow the
Department's ongoing investigations could undermine
effective law enforcement by creating a substantial
risk that sensitive and confidential investigative
information will be disclosed to targets of
investigations and to other persons who might use the
information to thwart our law enforcement efforts.\136\
---------------------------------------------------------------------------
\136\ Letter from Assistant Attorney General Robert Raben to
Representative Dan Burton (Sept. 25, 2000) (attached as exhibit 16).
Unfortunately, the majority has failed to withdraw its
subpoenas or otherwise respond to the Department's
concerns.\137\
---------------------------------------------------------------------------
\137\ The majority report also states, ``As of October 10, 2000,
the DNC continues to refuse to comply'' with the committee's subpoena
for grand jury subpoenas. Majority report at v. The majority report
fails to recognize, however, the DNC's substantial efforts to
accommodate the committee. On Oct. 10, 2000, attorneys for the DNC met
with committee staff in an attempt to reach an agreement that balanced
the committee's oversight interests and the DNC's interest in
protecting the privacy of individuals who had either appeared before or
had been investigated by the grand jury. The DNC first offered to make
all grand jury subpoenas immediately available to committee staff for
inspection, provided that the DNC could redact the names of those who
had not been publicly identified with the Campaign Financing Task
Force's criminal investigation. In a further attempt to satisfy the
majority's concerns, the DNC's attorneys also made another preliminary
offer, subject to approval by the DNC. The DNC's attorneys proposed
that the majority prepare a list of individuals relevant to the
committee's investigation. The DNC attorneys would then compare that
list to the grand jury subpoenas and not redact any name that matched,
regardless of whether that individual had been publicly identified with
the Justice Department's criminal investigation. The majority rejected
both offers of accommodation.
---------------------------------------------------------------------------
III. The Majority's Investigation Has Been Partisan
During the course of the investigation, Mr. Burton has
repeatedly alleged that Attorney General Reno's actions are
marked by ``partisan zeal.'' The report makes the same
findings, stating that ``it is hard to escape the conclusion
that the Attorney General has acted politically to benefit the
President, the Vice President, and her own political party.''
\138\
---------------------------------------------------------------------------
\138\ Majority report at i.
---------------------------------------------------------------------------
As described above, these allegations are unfounded. They
are also ironic. The partisanship in this investigation belongs
to the committee not the Justice Department. For 4 years, Mr.
Burton has conducted a blatantly partisan investigation. In his
campaign finance investigation, Mr. Burton has issued over 900
subpoenas, 99 percent of which involved allegations of
Democratic abuses. He has also issued over 500 formal requests
for documents or information relating to the investigation,
over 98 percent of which also involved allegations of
Democratic abuses. The committee has deposed or called to
testify at hearings over 200 witnesses in connection with
campaign fundraising allegations, 99 percent of whom were
called to discuss alleged Democratic abuses.
Editorial boards, columnists, and commentators across the
country have recognized the partisan nature of the committee's
investigation. They have called the investigation a ``soap
opera,'' \139\ a ``House investigation travesty,'' \140\ a
``sorry partisan spectacle,'' \141\ and a ``witch hunt in the
House.'' \142\ In a May 1998 editorial entitled, ``The Dan
Burton Problem,'' the New York Times stated: ``By now even
Representative Dan Burton ought to recognize that he has become
an impediment to a serious investigation of the 1996 campaign
finance scandals. . . . If the House inquiry is to be
responsible, someone else on Mr. Burton's committee should run
it.'' \143\ Norman Ornstein, a congressional expert with the
American Enterprise Institute, stated, ``[F]rom day one, Dan
Burton did almost everything he could to destroy any chance
that this would be seen as a bipartisan effort or an attempt to
build a factual basis.'' \144\
---------------------------------------------------------------------------
\139\ ``Soap Opera,'' Roll Call (Apr. 27, 1998).
\140\ ``A House Investigation Travesty,'' New York Times (Apr. 12,
1997).
\141\ ``Reno Roast Embarrasses Nobody but Congress,'' Los Angeles
Times (Dec. 10, 1997).
\142\ ``The Witch Hunt in the House,'' Albert R. Hunt, Wall Street
Journal (Apr. 10, 1997).
\143\ ``The Dan Burton Problem,'' New York Times (May 8, 1998).
Other editorials include: ``Mr. Burton Should Step Aside,'' Washington
Post (Mar. 20, 1997); ``Dan Burton Is a Loose Cannon,'' Hartford
Courant (May 5, 1998); ``Burton Bumbles in Bad Faith,'' San Antonio
Express-News (May 6, 1998); and ``Mistakes Were Made: Burton Inquiry
Can't Reach a Credible Conclusion,'' Sacramento Bee (May 11, 1998).
\144\ ``Another Bump In Burton Panel's Road,'' Washington Post (May
13, 1998).
---------------------------------------------------------------------------
In particular, the majority's oversight of the Justice
Department's campaign finance investigation has been marked by
partisanship. While the Justice Department's investigation is
examining allegations relating to both Republicans and
Democrats, the majority has focused on obtaining information
relating only to the Justice Department's investigation of
Democratic abuses.
On April 11, 2000, the majority wrote the Justice
Department requesting dozens of interview summaries (known as
FBI ``302s'') relating to Democratic allegations. At a public
committee meeting on May 3, 2000, Mr. Waxman requested that Mr.
Burton also ask the Justice Department to produce to the
committee interview summaries relating to two of the most
serious allegations of Republican fundraising improprieties:
(1) potential violations involving former Republican National
Committee chair Haley Barbour; and (2) potential violations
involving Majority Whip Tom DeLay. The request reflected an
attempt by Mr. Waxman to bring some balance to the committee's
investigation.
At the May 3 hearing, with the vast majority of committee
members present, Mr. Burton agreed to subpoena the Justice
Department for these materials.\145\ Mr. Burton stated, ``The
subpoena in detail will be issued.'' \146\ Specifically, he
said that the subpoena would be for the interview summaries
that the minority requested as well as the documents and
interview requests of the majority, noting, ``That way,
everything will be in one subpoena.'' \147\ He further said
that the subpoena would specify that ``all the documents be
given jointly to both the majority and minority staff
simultaneously.'' \148\ In response to a question as to whether
all the materials subpoenaed had to be produced at once, he
said: ``It was my understanding that there might be a rolling
production of these things,'' but that the materials would be
``given in a timely fashion and in a fair and equitable way.''
\149\
---------------------------------------------------------------------------
\145\ See House Committee on Government Reform, hearing on ``White
House E-mails: Mismanagement of Subpoenaed Record,'' 221-28 (May 3,
2000) (stenographic record).
\146\ Id. at 228.
\147\ Id. at 225.
\148\ Id. at 226.
\149\ Id. at 230.
---------------------------------------------------------------------------
However, one week later, Representative Burton wrote
Representative Waxman and reneged on this commitment.\150\ He
said that he would not issue a subpoena for interview summaries
involving Mr. DeLay. He further stated that, with respect to
interview summaries concerning Mr. Barbour, he would not issue
a subpoena until ``the Attorney General has complied with all
currently outstanding subpoenas from the Committee.'' \151\ Mr.
Burton never issued the subpoena he promised on May 3, 2000.
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\150\ Letter from Representative Dan Burton to Representative Henry
Waxman (May 11, 2000) (attached as exhibit 17).
\151\ Id. Mr. Burton stated several reasons for changing his
commitment, none of which withstands scrutiny. For example, Mr. Burton
claimed that Mr. Waxman's request for interview summaries relating to
Mr. DeLay was not proper because at the time of the request Mr. Waxman
``failed to disclose'' that the Democratic Congressional Campaign
Committee (DCCC) was filing a lawsuit against Mr. DeLay. Mr. Burton
suggested that Mr. Waxman's request had been ``part of a larger,
coordinated effort driven by the DCCC to pursue politically motivated
attacks against the Majority Whip.'' This charge was categorically
untrue. Neither Mr. Waxman nor anyone on his staff involved with the
subpoena request had knowledge of the DCCC lawsuit until after the May
3 hearing in which Mr. Waxman made the request. Mr. Burton made this
charge without asking either Mr. Waxman or his staff about the matter.
See letter from Representative Henry Waxman to Representative Dan
Burton (May 12, 2000) (attached as exhibit 18).
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Mr. Burton's May 11 letter also stated that with respect to the
interview summaries concerning Mr. Barbour, ``I agreed to issue a
subpoena for the documents you requested, as long as other Justice
Department materials already under subpoena are first provided.'' This
statement mischaracterized Mr. Burton's May 3 commitment, in which he
agreed to pursue both the majority and minority requests
``simultaneously.''
In his May 12 letter responding to Mr. Burton, Mr. Waxman noted that
Mr. Burton had several options regarding how to proceed with his May 3
commitment:
First, you could--and should--have honored your commitment
and issued the appropriate subpoena.
Second, if you were suspicious of whether there was a
connection between the DCCC lawsuit and my request for
302s, you could have asked me personally whether I had been
aware of the lawsuit when I made the request or was
coordinating with the DCCC on this matter . . . .
Another alternative would have been for you to ask your
staff to contact my staff to investigate and discuss your
concerns relating to issuing the subpoena. . . .
Alternatively, if you were intent on breaking your
commitment regardless of the facts, you could have at least
done so in a forthright manner, acknowledging that you had
made an agreement you would no longer honor.
Instead, you chose the worst option possible. Without
bothering to consult with me, your May 11 letter reneges on
your commitment on the basis of untrue allegations that you
did not investigate.
Letter from Representative Henry Waxman to Representative Dan Burton
(May 12, 2000).
Unfortunately, this partisan conduct has continued. For
example, the majority recently subpoenaed the DNC for document
requests, subpoenas, and interview requests the DNC received
from the Justice Department,\152\ but has failed to subpoena
the RNC for similar Justice Department requests to the RNC.
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\152\ Subpoena duces tecum from Committee on Government Reform to
Democratic National Committee (Aug. 3, 2000).
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IV. Accomplishments of the Campaign Finance Task Force
The Campaign Finance Task Force of the Department of
Justice was launched in December 1996. Contrary to the
majority's assertions, the Task Force has been effective.
At its height, the Task Force was staffed by 126 people,
including 24 attorneys, 67 agents, and 35 support staff.\153\
The Justice Department and the FBI estimated that they spent
over $31 million on the Task Force through fiscal year 1999
alone.\154\ Mr. Freeh testified that he believed that he had
all of the necessary resources to conduct the
investigation.\155\ Mr. Freeh also testified that ``the FBI is
not being impeded in any way in conducting our investigation''
and that the Task Force's ``marching orders are to go wherever
the evidence leads them.'' \156\ Further, Mr. La Bella said
that the Attorney General and the Deputy Attorney General
``have told me to pursue the evidence wherever it leads. That
is what I have done and what I expect the Task Force to
continue to do.'' \157\
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\153\ U.S. General Accounting Office, ``Campaign Finance Task
Force: Problems and Disagreements Initially Hampered Justice's
Investigation'' (May 2000) (GAO/GGD-00-101BR).
\154\ See id.
\155\ Testimony of FBI Director Louis Freeh, House Committee on
Government Reform, hearings on ``The Current Implementation of the
Independent Counsel Act,'' 105th Cong., 1st sess., 1152 (Dec. 9-10,
1997) (H. Rept. 105-89).
\156\ Testimony of FBI Director Louis Freeh, House Committee on
Government Reform, hearings on ``The Current Implementation of the
Independent Counsel Act,'' 105th Cong., 1st sess., 1129 (Dec. 9-10,
1997) (H. Rept. 105-89).
\157\ Statement of Charles La Bella (May 3, 1998) (attached as
exhibit 19).
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The Task Force has achieved important successes. It has
prosecuted 25 people.\158\ So far 19 individuals and 1
corporation have been convicted.\159\
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\158\ ``Thai Businesswomen Agree to Plead Guilty to Campaign
Financing Charges,'' U.S. Department of Justice (June 21, 2000)
(attached as exhibit 20).
\159\ See id.
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At bottom, the majority's complaints about Attorney General
Janet Reno are based on her failure to initiate legal actions
against the President and the Vice President. But her role is
not to ``get'' the President or the Vice President. The
Attorney General's responsibility is to follow the evidence
where it leads and to apply the law evenhandedly. The record
before the Committee indicates that she has fulfilled her
responsibility creditably.
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Paul E. Kanjorski.
Hon. Carolyn B. Maloney.
Hon. Eleanor Holmes Norton.
Hon. Chaka Fattah.
Hon. Elijah E. Cummings.
Hon. Dennis J. Kucinich.
Hon. Rod R. Blagojevich.
Hon. Danny K. Davis.
Hon. John F. Tierney.
Hon. Jim Turner.
Hon. Harold E. Ford, Jr.
Hon. Janice D. Schakowsky.
[The exhibits referred to follow:]