TOUGHER SCRUTINY September 22, 1997 NewsHour Transcript

A RealAudio version of this segment is available. NEWSHOUR LINKS: September 22, 1997: A background report on Attorney Janet Reno's decision to see if an indenpendent council is needed to investigate the President's fundraising calls. September 19, 1997: Kwame Holman reports on shifting priorities in the Senate and the day's hearing. September 18, 1997: Controversial DNC donor Roger Tamraz testifies in the Senate. September 17, 1997: The Senate hears testimony on pressure to allow controversial DNC donor Roger Tamraz to meet with the President over the objections of members of the National Security Council. September 11, 1997: The highest ranking Clinton administration official, National Security Advisor Samuel Berger, testifies on White House screening procedures for donors and guests. September 4, 1997: The NewsHour explores the reshuffling at the Department of Justice's campaign task force. April 30, 1997: Janet Reno announces that she does not plan to appoint an independent counsel. October 18, 1996: Margaret Warner explores the growing call for an investigation into fund-raising by the Clinton White House. Browse the NewsHour's coverage of the campaign finance investigation.

Mr. Cutler, is what the President said correct? Do you agree with it, that what he did and the Vice President did was legal?

LLOYD CUTLER, Former Clinton White House Counsel: I believe that the statute they're looking for about solicitation of funds in the government building is so ambiguous and so difficult to interpret when you compare the words with the legislative history that no one really knows what it means. And when the Watergate special prosecutors--Archie Cox, Leon Jaworski, ending up with Charles Ruff, filed their final report, they said they had looked into several cases where the solicitation had been from a government building to a private person, rather than a governmental person, and that because of the ambiguities of the statute, they had decided not to bring cases against any solicitation involving a private person who is asked to make the contribution.

And the legislative history of that 100-year-old statute is very clear that it was meant to protect government employees, civil servants, from being solicited for contributions from their higher up employers. That was the intent of the statute. And it seems to me that that is the short answer to all of the questions. You never reach the questions. Normally, a statute's meaning, a criminal statute, is very clear. And the issue is do the facts show a violation of that statute? Here there is much less dispute about the facts. The question is: What does the statute mean and should you prosecute? And I would do what the Watergate special prosecutors did say, that I will not bring such a case. Nor, is there any point to appointing an independent counsel to revisit this legal issue, which the Watergate special prosecutors have looked into.

Are phone calls the real issue?

MARGARET WARNER: How do you see it?

JOSEPH DI GENOVA, Former Independent Counsel: Well, I very much agree with Lloyd about the statute, itself. I think the statute probably applies to the--

MARGARET WARNER: Now, remind us what the statute says.

JOSEPH DI GENOVA: It's part of the U.S. criminal code, and it says that you cannot solicit on federal property campaign contributions for a specific federal campaign. It was amended in 1980 to make it clear that it was only funds for a specific federal campaign. It doesn't say you can't solicit them from an employee.

But I agree with Lloyd that the statute is so ambiguous and has never been enforced by the Justice Department that it is a terrible reed upon which to base a criminal investigation; however, that's really not what this case is about. What matters in this case is what happened before those phone calls were made and what happened after those phone calls were made. This case ought to be about and really is about a conspiracy to violate the federal election laws by a number of people. Whether or not that included the President and the Vice President is a matter of fact yet to be determined; however, it is abundantly clear that the President and the Vice President were intimately involved in designing the strategy, implementing the strategy, targeting donors, targeting amounts of money to be raised from specific donors, proposing the use of the White House to solicit funds, et cetera, et cetera.

So while I agree with Lloyd that the thin reed the attorney general has now put out, which is did these telephone calls occurred, and were they illegal, was probably a terrible statute to enforce, it's really not the statute we should be concerned about. It's what happened before the calls were made and what happened after the calls were made.

MARGARET WARNER: But the attorney general is saying that this preliminary review--

JOSEPH DI GENOVA: Yes.

A call for a wider investigation.

MARGARET WARNER: --is focusing on that narrow--

JOSEPH DI GENOVA: Yes. And I think that what the New York Times said today--and if I may quote from it--they said "that to limit the investigation as to whether or not these calls violated the Pendleton Act against solicitation on federal property is an insult to any citizen who follows the news."

And the reason the New York Times said that today is that the litany of potential offenses in this series of campaign investigations goes far beyond whether or not these telephone calls were legal or illegal. That's why I've said it really doesn't matter whether or not these telephone calls were legal.

MARGARET WARNER: What do you say to that point?

LLOYD CUTLER: Well, my answer to that point would be that we're only at the preliminary stage of whether the attorney general should ask for the appointment of an independent counsel. In order to trigger this independent counsel law there has to be a so-called covered person involved against whom a charge has been made, and the covered persons of the President, the Vice President, and assorted others. There is no indication yet, no evidence that I'm aware of, and perhaps that will be found out in this preliminary inquiry; that anything illegal was done or if there was any intent to do anything illegal.

MARGARET WARNER: You mean, in the larger--

LLOYD CUTLER: In this larger sense. There's no indication even if the President made phone calls, and no one has come forward to say he called me and solicited a contribution, or even if the Vice President made phone calls, no indication that they were part of any larger conspiracy to circumvent the existing criminal laws, and certainly not part of any conspiracy or anything like it to make illegal calls from a government building.

An ambiguous law.

MARGARET WARNER: Let me stay with you for a minute on this question of the phone calls. The New York Times also reported today that Harold Ickes, the former White House Deputy Chief of Staff, said that before these phone calls were made ostensibly, you were asked about the legality, you essentially cleared the legality of these calls, is that true?

LLOYD CUTLER: It's not true. I'm a great fan of Harold, but I think he, himself, would recognize, as he did in the transcript of the deposition that is the basis for those stories, that he didn't make inquiries until December of 1994, after the congressional election. I had taken on this job after Bernie Nussbaum resigned in March and had committed to stay no more than six months. In fact, I left at the end of September. And I believe everybody now recognizes, even though the newspaper stories say it as my advice--it was not my advice.

MARGARET WARNER: So, you were never asked for your advice?

LLOYD CUTLER: I was not asked for my advice on that issue.

MARGARET WARNER: What would you have said had you been asked? I mean, if a President were to ask you--and I'm going to ask you the same question--or the President wouldn't ask but an aide--is this okay--what would you say?

LLOYD CUTLER: Well, there are--there must be half a dozen opinions of the office of legal counsel of the Justice Department on this issue. If a solicitation is made from the President's quarters, his residence, the second floor of the White House, itself, or from the rooms that were used in association with the residence, like the map room and a few of the other rooms where these coffees were held--

MARGARET WARNER: Which is where all the coffees were held, yes.

LLOYD CUTLER: That, according to the Department of Justice, does not bring the statute into play. If it's the Oval Office, it may be different. There are questions as to whether the President is covered by this particular statute at all, whether a President can be indicted, as you know, and also there are questions as to whether a solicitation made from even the Oval Office to a private--to any person outside the building are covered. It says that--speaks of a solution. I sound like a petty lawyer now, but this is a criminal statute. You have to read it carefully in order to say people deliberately violated it. It says if a solicitation is made in a federal building--if--we don't have a face-to-face solicitation--if someone in a federal building writes a letter to someone outside a federal building, is that a violation? There's never been a prosecution; there's never been an interpretation. Nobody knows the answers to those questions.

MARGARET WARNER: What advice would you give?

JOSEPH DI GENOVA: I would give the same advice that Abner Mikva, who was then White House counsel, gave to everybody on the White House staff after Lloyd left, and in the memo he said, it is illegal to make solicitation telephone calls from the White House, to receive money on these premises, to solicit money on these premises, or from these premises. That was Abner Mikva's position who was counsel to President Clinton.

But again I want to underscore the importance of not focusing on these telephone calls. I know that that's what the attorney general is doing, but I believe she is going to be very regretful of limiting her inquiry to that, because that is not what this is about. It is about why those telephone calls were made and what happened after those telephone calls were made.

Attorney General Reno's position.

MARGARET WARNER: All right. So do you think that this larger issue, that there's enough on the table now or out there now that the attorney general, as Republicans on the Hill keep saying, she can bypass all this review and 90 days and 30 days and just say on my own recommendation I--on my own discretion I'm recommending it. Do you think it's at that point?

JOSEPH DI GENOVA: Well, I do, and I've thought that for some time, and I'll tell you why. Now, Lloyd is one of the best lawyers in the United States, and he did something a little while ago that only a great lawyer can do. He purposely forgot the part of the statute that exists. It's true that one of the bases for using this statute is specific, credible evidence against a covered person. But there's another section to this statute, and it's called the discretionary section, when there's a conflict of interest or the appearance of a conflict of interest. And that simply means that the attorney general can without all of this stuff we've been talking about say, look, this investigation is too serious, too hot, too political for me. It involves the President of the United States, the Vice President. I have a conflict; I had the appearance of a conflict; the Justice Department cannot be apparently trusted to conduct this investigation; we should get out.

She should have done that a long time ago. She can do it tomorrow. It doesn't require this tortuous analysis of whether or not these telephone calls are legal or illegal, and it does something much more important. It gets the Justice Department out of the way of a political juggernaut, which they should not be in right now. It is harming the career people right now. The attorney general has thrown these career people out there as her bodyguards to say they're doing this, they're doing that; you should trust me.

First of all, the attorney general is a perfectly honest person. I have no doubt about her honesty and integrity. But her judgment on this is wanting. These career people should not be used as flacks to resist a legitimate investigation. All she has to do tomorrow morning, irrelevant of all this stuff about the phone calls, is say, I have a conflict, it is now time for me to get out of the way, and ask the court to appoint an independent counsel. That's precisely what she should do.

LLOYD CUTLER: I went back and read the statute this morning and while it is true that the attorney general can go after other people, other than covered persons, if she thinks there's a personal or political conflict of interest, all she can do then--in the first place the President and the Vice President are covered, so it doesn't apply to them--all she can do then is start one of these 90 day preliminary inquiries. She cannot shortcut that.

MARGARET WARNER: So you're saying she cannot do what--

LLOYD CUTLER: She could not--you heard those congressmen say she should have appoint an independent counsel. She doesn't--

MARGARET WARNER: She doesn't appoint an independent counsel.

LLOYD CUTLER: She cannot appoint an independent counsel.

JOSEPH DI GENOVA: She doesn't do that, of course.

LLOYD CUTLER: She cannot even request the appointment of an independent counsel until she's gone through this 30-day process, and then this 90-day process. Now, she could reach her conclusion that there's ground for further investigation at some earlier stage, but not on a conflict of interest basis. She has to go through it on an evidentiary basis. Let me say that Joe--as independent counsel--is one of the relatively few who decided not to indict anybody. This was in the Clinton passport case. But even that took him two years. And you would tilt the entire electoral process for the year 2000 if you appointed an independent counsel, especially without any preliminary investigation of any kind. We used to think that even an indicted person was entitled to a presumption of innocence. Now, we think that even if an independent counsel is requested, there must be something criminal involved.

MARGARET WARNER: All right, gentleman. We have--

LLOYD CUTLER: That's what's happened.

MARGARET WARNER: We have to leave it there. Thank you both very much.

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