DECEMBER 20, 1995
JIM LEHRER: Mr. Chertoff, if this does go to court, who's going to win?
MICHAEL CHERTOFF: (New York) Well, I think the position that we believe is going to win is that which we're espousing here. we believe that this meeting is not a privileged meeting as against Congress because you have government officials, White House officials, who are present at a meeting discussing what is the President's private legal business, referring to events that occurred before the President took office. That takes away the privilege. And one of the things which has consistently been the case in Congress's view of its oversight authority is that Congress has not accepted an attorney-client privilege as a shield against Congress's ability to determine whether public servants are properly doing the public's business.
JIM LEHRER: So you say those folks were in that meeting in their capacity as public servants, rather than as lawyers for the President in any capacity, is that correct?
MR. CHERTOFF: That's right. And, Jim, it's an important point, because if we accept the position the President has now taken, he has dramatically expanded the protection of his attorney-client privilege when it comes to shielding the doings of the Executive Branch from Congress. In fact, if you go back and you look at opinions of the Department of Justice in the past, they have seriously questioned whether there can ever be an attorney-client privilege involving government attorneys against Congress. In this situation, where you're not talking about official government policy-making or matters that affect the presidency institutionally, you're talking about the President's private business, those government attorneys had no business being in that meeting, advising the President about his legal rights and his legal responsibilities. And as a consequence, our position, and it's been echoed by people as distinguished as former Attorney General Barr, is that there's simply not an attorney-client privilege that applies to this meeting.
JIM LEHRER: Mr. Benveniste, you disagree? Was--does the attorney-client privilege work in this particular case?
RICHARD BENVENISTE: Yes, it does. This is called the common interest privilege, which is part of the attorney-client privilege. And we've had the opinions now from Prof. Hazard, Prof. Gillers, Professors Wright and Rothstein, and a number of other distinguished experts in this field who have concluded that on these facts the President has the better argument. But quite frankly, we're beyond that. What's on the table now and what's been on the table is a proposal from the White House that they will make the notes available. All they ask in return is that they be shielded from the argument later advanced by any of the other investigators that by providing these notes they're not giving up the attorney-client privilege in general. They are not providing a waiver, a very reasonable position, we suggest, because we, the Senate, have agreed to do just that. Now, we find that the independent counsel has reached a similar accommodation with the White House, so the only thing that has prevented us from getting these notes now is the present intransigence by the House leadership to make the same agreement. By doing so, they would get the notes and would give up virtually nothing. So having a slight sense of deja vu, listening to the dialogue from today, I've just come from seven hours of debate on this issue, one which it would seem could be easily resolved with the accession of the House. The only remaining part who has not agreed to this proposal.
JIM LEHRER: Well, then what's going on here?
MR. CHERTOFF: Well, Jim--
MR. BENVENISTE: Well, as Sen. Sarbanes said earlier today, it appears to be an issue of politics, rather than substance now. And quite clearly, it would be quite unfortunate for us to be going into court and protracting this issue when we could easily get a resolution that is a common sense one, where the White House has offered to make these notes available immediately.
JIM LEHRER: Mr. Chertoff.
MR. CHERTOFF: Jim, I'd like to get back to basics. And the basic proposition we're concerned with here and the proposition we've been interested in pursuing all along is to get the truth, to get at the facts. And the President, himself, said back in March, 1994, a scant four months after the meeting we're talking about when he was certainly well aware of this meeting, that he could not envision a circumstance under which he would raise a claim of privilege to prevent the Senate and an independent counsel from getting at the facts. Now, what we seem to have here is a White House that for reasons known only to itself doesn't really want to confront this issue directly. Weeks ago, we raised with them the notion that we would not regard their turnover of these notes as a general waiver of any arguments they want to raise in the future. Rather than pursuing that at the time we suggested it--and by the way, we have on numerous occasions entered into similar agreements with the White House when they furnished other materials, the White House instead started to drag its feet, started to delay, raised all kinds of alternative proposals, and even now, as we sit here, hearing about supposed agreements with the independent counsel, supposed negotiations with the House, I have to say that the White House doesn't communicate with us in an official manner. In fact, the latest letter I saw purporting to represent the White House's position, I still sought to require the Senate to get engaged in the process of negotiating on behalf of the White House.
MR. BENVENISTE: Well, you know, if there was a real desire to get this resolved, it could be resolved in a New York minute if all the parties got into the room, and I think it will be resolved, because common sense will prevail. But what we have here now is a shift from substance to process. After weeks and weeks and weeks of hearings this year, there has been no demonstration of any impropriety, much less illegality, by the Clinton administration. So now the focus has shifted to why the President should not be the first President in history to be obliged to give up his attorney-client privilege. Even in Watergate, there was no effort to pierce the privilege of attorney-client.
JIM LEHRER: Is that what this is all about now, process, rather than substance?
MR. CHERTOFF: I'd say quite the contrary. I think what's happening is we are beginning to close in on what are very troubling, underlying issues. I mean, I want to go back and suggest that the viewers remind themselves that a year ago, the deputy Treasury Secretary had to resign over this affair, because there was a general consensus he had lied to Congress about the number of meetings and the improper contacts he had with White House officials. Over the summer, we heard the deputy, former Deputy Attorney General of the United States, harshly criticizing the White House for its handling of the Foster documents. We've heard an epidemic of forgetfulness about the way in which the documents were handled. And what we're focusing in on now are issues involving whether this confidential information which was passed on from Treasury to the White House improperly was used for improper purposes.
JIM LEHRER: Is it your belief, Mr. Chertoff, that the President is trying to hide something?
MR. CHERTOFF: I think what's happening now is we're getting what you might call a defense in- depth. I don't know whether this particular meeting has anything of dramatic significance. I'm confident that it's going to lead us into other areas of investigation. What we've seen is an attempt to delay answering questions, a reluctance to furnish telephone records, for example which we had to literally extract with a tremendous amount of effort, an attempt to delay giving us electronic mail, which we still haven't received, all of which is designed to try to keep this investigation from getting to the bottom of what we're looking at within the allotted timeframe.
JIM LEHRER: Mr. Benveniste, that is the charge that's been made not only by Mr. Chertoff but many other people, including some editorial pages of leading newspapers.
MR. BENVENISTE: We've seen that, but what we're looking at is the actual evidence, rather than the spin control. And what we've seen in terms of the evidence is the Department of Justice career officials who have reviewed this matter contemporaneously and have come back and testified before us. And they've looked specifically at this issue of obtaining official material and passing it along to White House counsel. They have concluded that no investigation was impeded in the slightest by this activity. And, indeed, before the meeting in question--after all, we're talking about a meeting that occurred on November 5, 1993--before that meeting, there had been an avalanche of leaks in the press from the RTC, the Treasury Department, and from other quarters, including Mr. Hale, who spent days with reporters for the New York Times and others, spinning out their allegations. Now, all of this material was in the public record by the time they had this meeting among a variety of counsel, some who had represented the President in his private capacity going back years and some newly hired. So that all this material, it had been in the public record. So if we're talking about something, we have to get pretty specific about it, and we've had the testimony so far of impartial Justice Department career officials who've served through Democratic and Republican administrations for decades who've looked at this and who have concluded that in their view there was nothing improper even motivating the obtaining of this information, or the passing it along. The information had already been pre- screened by the Small Business Administration for just that purpose.
JIM LEHRER: Mr. Chertoff.
MR. CHERTOFF: Jim, actually, I mean, the issue of the handling of the confidential information was really never fully addressed by the Department of Justice. It was turned over to the special prosecutor, the independent counsel, and is still under investigation. So that is clearly a matter that's open. What I will say--
MR. BENVENISTE: Everything is open in that investigation.
MR. CHERTOFF: What I will say is that during the course of the hearings we participated in last year, it was very clear, and we got this from the regulators and the investigators at the RTC, that there was confidential information about criminal referrals that was transmitted to the White House. There was an effort by the White House at one point to keep Roger Altman, who was a friend of the President--
JIM LEHRER: Improperly done, improperly, is that right?
MR. CHERTOFF: Yes.
JIM LEHRER: Illegally? Illegally? Would that have been a crime, if that had happened?
MR. CHERTOFF: Jim, the defense that was offered at the time was that whatever was done, was done in order to respond to press inquiries, rather than to use the information for private purposes, which might well be a violation of the law of regulations. Now, we come to learn that there was a meeting with private attorneys whose agenda was the President's private concerns and his private need to defend against investigations. They had a two-hour meeting in which the very same individuals who had gone out and obtained this official information sat down to be de- briefed. The natural question, Jim, is: Did they pass the information on?
JIM LEHRER: Let me ask Mr. Benveniste, if that, in fact, happened just the way Mr. Chertoff laid it out, was that a proper and legal thing to do?
MR. BENVENISTE: Well, there's an intervening circumstance, and that intervening circumstance is a variety of articles in the press, starting on October 30th and concluding on November 3rd, that laid all this out in the public record. And so at the other end of the sausage factory that Mr. Chertoff is, is constructing here, is something that comes out that's already been chewed on by the press and the public. And now the question--
JIM LEHRER: In other words, there is no secret?
MR. BENVENISTE: Now the question is: What bad thing happened? What did the President do that--to use that information to thwart any investigation? And that has been answered. There has been no improper purpose or effort made according to what we know up to this point.
JIM LEHRER: Gentlemen, would it be correct to assume that if this matter does go to court, if the Senate goes ahead and votes for this to go to court tonight, that the two of you will face each other on this issue in the courtroom?
MR. BENVENISTE: No, not at all.
JIM LEHRER: Who's going to do it?
MR. BENVENISTE: Actually, Senate legal counsel will be appointed to represent the Senate. We have the Office of Legal Counsel, and they will have the responsibility of going before a court and explaining why we couldn't resolve this between the two Houses of Congress, why the Senate could accept the proposal as reasonable, where we would get the documents, but the House won't.
JIM LEHRER: But you think you'll win, right, your side will win? But Mr. Chertoff thinks--Mr. Chertoff, you think your side will win.
MR. BENVENISTE: I think the court would be very displeased with the posture in which this would be presented, and I doubt very much it would get that far.
JIM LEHRER: Mr. Chertoff.
MR. CHERTOFF: Jim, I think the President's taken--staked out a position here that is dramatically more aggressive than any President has previously. I think that when we get to the merits, we will prevail. But I also think it's important, and the chairman has made this point, at any stage of this proceeding, we can be at the courthouse door. If the President finally decides to do what he's indicated he would do, to turn the records over, there's not going to be a case.
JIM LEHRER: Okay. We have to leave it there. Thank you both very much.
MR. CHERTOFF: Thank you.