APRIL 23, 1996
REP. MARTIN T. MEEHAN, (D) Massachusetts: (Washington) Well, I think first of all, he ought to at least determine whether he wants to represent big tobacco or whether he wants to continue as the special counsel. So I haven't asked him to quit at this point. I do feel that he's in--at least in the appearance of a conflict with the clients that he represents, and maintaining his position as an independent counsel. So if he were to decide not to represent big tobacco and decide not to take income from these major clients that have an interested in the Clinton administration one way or the other, then perhaps he could continue, but he seems unwilling to do that.
JIM LEHRER: So what's the problem with his continuing to represent these clients as a private lawyer?
REP. MEEHAN: The problem is that a major class action lawsuit, the Castano suit, he is the tobacco company's, Brown & Williamson's counsel of record, and in those internal documents, he makes statements on behalf of his client about the, questioning the addictive nature of properties of nicotine. At the same time, the Justice Department has expanded the major investigation, criminal and civil investigation of the tobacco companies. It was reported in the New York Times, five grand juries in five different locations.
At the same time, the President clearly has been a leader in terms of proposing historic regulations of the tobacco industries through the FDA, all of this going on at the same time. The question here is whether or not Mr. Starr has notified both clients, i.e., notified at least the Justice Department and the tobacco companies of a potential conflict of interest. The tobacco investigation is the major prosecutorial effort of the Clinton administration against the maker of any single product in this country.
JIM LEHRER: Mr. Tuohey, do you see that as a conflict of interest?
MARK H. TUOHEY, III, Former Starr Aide: I don't see it as a conflict of interest, Jim. First of all, the question, the real question is: Has Starr conducted himself in the investigation in a way that the public has a right to expect, in fact, demand? And that is that he focus his full attention on these sensitive matters with objectivity and non-partisanship, and I can say from day one he has done that. With regard to his involvement in any piece of civil litigation, first of all, the Congress thought this through and agreed that an independent counsel doesn't have to give up his private practice.
On the other hand, nobody's going to suggest that there aren't the potential of appearance problems. What Starr did, as I understand it, Starr did in the tobacco case, was to argue a procedural motion, a class certification appeal. He is not the lead counsel in the litigation. He is not involved in the underlying investigation. He has nothing to do whatsoever with the Department of Justice or the FTC's investigation. He is simply--he is simply there to argue a class certification motion. But that really begs the question.
The question I want to address is whether Starr has conducted himself consistent with the highest policies of the Department of Justice as they're set forth in the Independent Counsel Statute, and I can say that not one iota of Ken Starr's involvement with any other client has anything to do or has had any influence or delay in the investigation.
JIM LEHRER: Congressman.
REP. MEEHAN: First of all, Mark's assessment that the Congress thought this out, I'm not so sure I agree the Congress thought this out with regard to the Independent Counsel Law; however, the question here is whether or not this Independent Counsel is truly independent or whether, in truth, he may have either a political or he may have a financial or a personal stake in the outcome of his investigation. The whole purpose of the Independent Counsel Law was to get above the appearance of a conflict. The question here isn't whether technically Mr. Starr complies with what the Independent Counsel statute, a vague statute, to say the least, set out. The question is whether the American people can have confidence in this investigation because Mr. Starr has removed himself from the appearance of a conflict.
Now, Mr. Starr in January 1995 actually contributed $1,750 to a Political Action Committee within his office that he knew or should have known that money would end up going to the opponents of President Clinton in the presidential election. Bob Dole got some money. Phil Gramm got some money. Lamar Alexander got some money. That's the--that isn't the type of judgment, independent judgment, that the American people look for when someone's overseeing an investigation of this nature. Let me take it a step further. You know, the RTC, which is a major player in this investigation--
JIM LEHRER: That's the Resolution Trust Corporation.
REP. MEEHAN: The Resolution Trust Corporation, they sued Mr. Starr's firm for a million dollars for professional misconduct, and they ended up settling the suit for $325,000. At the same time, the individuals at RTC that have a--that made the decision to sue Mr. Starr's firm--where by the way he's a senior partner and a member of the management team there--he's making--Mr. Starr's making decisions about who to talk to, who were subjects of investigations on the same individuals that decide to sue his firm. That is clearly not the appearance--not without the appearance of a conflict.
JIM LEHRER: Yeah, talk--the appearance question, Mr. Tuohey, let's assume that he hasn't done anything wrong. Is there an appearance in all the things the Congressman just outlined that maybe there could be?
MR. TUOHEY: Well, as I said before, Jim, I wasn't resting on a legal definition. I think the appearance issue has to be addressed. Now the appearance issue may be a fair question to raise, but the fact that there's an appearance question does not mean that there are any merits to the underlying allegation. And with regard to the two matters Marty Meehan just raised, I know a good deal about both. No. 1, Ken Starr is a member of a large firm. I am as well. Contributions by each of the partners in these big firms go into PACs. I happen to know that there were--
JIM LEHRER: Political Action Committees.
MR. TUOHEY: Political Action Committees.
JIM LEHRER: Right.
MR. TUOHEY: I happen to know that the Kirkland and Ellis Political Action Committee, like many large firms--
JIM LEHRER: Ken Starr's firm.
MR. TUOHEY: Contributed to Democrat candidates, including President Clinton as well. Ken Starr, like any partner in a large firm, has nothing to say or no choice or no decision making into the distribution of those contributions. Do I think that is a conflict? I do not think it's a conflict.
JIM LEHRER: And not an appearance of conflict?
MR. TUOHEY: I don't think it's an appearance issue, Jim, because it's no different than any large corporation where Political Action Committees are formed and people contribute for a distribution to a wide range of candidates from both parties. It's balanced.
JIM LEHRER: All right.
MR. TUOHEY: RTC. The RTC, do I think that at the end of the day it's an appearance issue, I do not for this reason. First of all, Ken Starr as independent counsel was not involved on a day-to-day decision-making basis at all in the RTC, I was. I was the deputy. At the time that the RTC informed me in the spring of 1994--'95, excuse me--that it had sued, previously sued, Ken Starr's law firm, I was running the investigation, I was supervising the investigation that two experienced prosecutors were conducting. Starr was not involved in the decision making. Just by coincidence, he was not involved at all in the decision making. But I looked into the matter. I talked to the lawyers at Kirkland and Ellis. I determined that Starr knew nothing about the lawsuit, was not involved in any aspect of it, which, of course, begs the question since he didn't even know about it, and I then went to Professor Sam Dash, who was our outside ethics counsel.
JIM LEHRER: Who had been in the Watergate--Senate investigation--had been general counsel to Sam Irvin, right?
MR. TUOHEY: That's right. Professor Dash looked at it from a legal standpoint and gave an opinion based on that to me and to Ken Starr. We then went one step further for the very issue you raised, Jim, and that's the appearance issue. At the time that the RTC called me the investigation was not only well underway, it was almost completed. And based on the facts that we had found, it was one discreet investigation. The RTC, I beg to differ with Marty Meehan, was not a major player. The investigation was into whether or not certainly officials in the RTC had in any way interfered with the investigation of the staff in Kansas City by suspending them for two weeks in the summer of '94. We concluded at that time there was no reason for Ken to get involved and, in fact, he was not involved. We found there was no appearance problem, and we went on to conclude the investigation.
JIM LEHRER: Let's get to the bottom--back to the bottom line here, Congressman. Is it your position that if Ken Starr does not do something one way or another--I mean, if he--let's say he does not remove himself from these other cases, continues to practice private law in these matters, that when he does come up with his final conclusions as an independent prosecutor, independent counsel, in the Whitewater matter, that his--he will have a tainted result, in other words, he will not be believed because of this?
REP. MEEHAN: Absolutely. We just heard Mark, who worked for the Independent Counsel, say that there isn't a conflict because the people who are working for Mr. Starr didn't involve him in the final decision with regard to RTC. That would be one thing if the public knew that, but, but herein lies the conflict. They--it sounds like they kept him away from the decisions on RTC.
He's in charge of the investigation, not the people underneath him. If some of the people who are full-time professional prosecutors, who are underneath Mr. Starr, were in charge of the investigation, there wouldn't be an issue of conflict. Secondly, with regard to the special counsel here, Mr. Dash, Mr. Dash has publicly said he would rather that Mr. Starr be a full-time prosecutor in this matter. He has said that he would--that a reasonable person could find an odor, an odor from what's going on here, so I think rather than giving technical legal definitions of why he's not in violation of the special counsel law, the American public demands an independent counsel that's truly independent. If not, yes, the--absolutely, this will be a tainted investigation because of the political agenda of Mr. Starr.
JIM LEHRER: Headed toward--
REP. MEEHAN: We can do better than that.
JIM LEHRER: Headed toward a tainted conclusion, Mr. Tuohey?
MR. TUOHEY: Not in the least, Jim. First of all, I didn't say that Ken was kept away. What I said was, and I'll say it again for Marty's benefit, what I said was that there was no need for Starr to even be involved in that aspect of the investigation because it was being run at our level, but secondly--
JIM LEHRER: Okay.
MR. TUOHEY: Your question about--no, not at all. This investigation, the public has a right to demand that the investigation be conducted thoroughly and fairly in a non-partisan way by lawyers and investigators who know what they're doing and examine the facts in the law. That's being done without any taint, without any reference--
JIM LEHRER: All right.
MR. TUOHEY: --to friend or foe, and the investigation, when it's presented to the court and released to the country, will demonstrate that it's been objective and thorough and non-partisan in every respect.
JIM LEHRER: Gentlemen, thank you both very much.
REP. MEEHAN: Thank you.