interview: samuel dash

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WATERGATE V. CURRENT CRISIS

In the event, it did prove to be great television, and what's interesting to me is that all three networks carried it.... The live telecast of the Senate Watergate Committee hearings absolutely created a national sense of moment. It got the national attention. And in that context, when you suddenly have talk of executive privilege, most people didn't know what executive privilege was. They never heard of the concept, but suddenly because of something called executive privilege, the President of the United States was going to create essentially a Constitutional crisis. He was going to make his Attorney General fire the special prosecutor, over those tapes, and once that happened, everybody's national attention was focused - Saturday Night Massacre and, of course, the thing was over for Richard Nixon.

Cut to this moment... You have no networks carrying live the coverage of Fred Thompson's hearings, which were into the serious matter of whether or not a foreign government was involved in subverting our free elections. You have none of the sense of kind of national agreement that this is an important thing and the rule of law must prevail, "Let's hush up and just listen and see how it comes out." How important to you is the difference in the tenor that is surrounding today's independent counsel inquiries?

Let me respond first on your statement and question involving Thompson's committee... Why was that not covered as it should have been covered by television, and why wasn't there the kinds of aroused public interest, because I think they go together? If the networks are going to feel a very much aroused public interest so that there's going to be a large audience, as large as they're getting on the soaps, and their commercials will still be seen and acted on, then I think television finds it's good business to cover it.

Part of all this has nothing to do with the subject matter or the interest of the public for real. But it has to do with the art form for a committee and its staff on how to frame the issue. Now why do you think Watergate got this wonderful public attention and televised experience?

We could have been just as boring. We could have been just as non- focused, and if all we were talking about was a what third degree burglary...? But it occurred to me as chief counsel, and it was the first time I did work as a lawyer on the Hill, that "What's our purpose?" You have to ask the question "What are we supposed to be doing?" Well, the law says that the committee under the Constitution has to be a public-informing function. It must bring the public up to speed in terms of what you know happened. So that the public can respond to it through the political democracy....

So in order to do that, you had to define the subject matter. What would get the public more concerned? Would it be the burglary, or if you were able to show the American people a gigantic coverup, subornation of perjury, paying cash hush money to burglars, and build that from the police up in a story that reads like a detective story, as they're used to watching on TV, and bring them over here, and it's still the same detective story, just as thrilling. In other words, you don't change the facts. You tell it the truth, but you tell it in the way the public is used to watching good drama.

Fred Thompson began his hearings by saying, "We're going to show that the government of Communist China tried to influence our election.

He wasn't prepared to do that, number one. Number two, he didn't have sufficient control over his investigation that I had in the Senate Watergate Committee. Senator Ervin gave me complete control.

Which was important, wasn't it?

Absolutely. Or I wouldn't have stayed. I believe Senator Thompson wanted to have good old hearings, and had wanted to go back and become something like Senator Ervin was in the Watergate hearings. I really think he wanted to expose it all. But he didn't conceptualize it right. He didn't conceptualize it, and he could have... [by] telling the American people, "Your democracy is being stolen from you. Your leaders are supposed to be your representatives. You control it, because you're the ultimate sovereign. Your election doesn't mean anything, because people with money stepped inside and substituted for you." So it's the powers of money over the power of the voter, and that is a dramatic story to tell the American people that they have disenfranchised.

But he wouldn't do that. He didn't think of it that way. He didn't plan it, and he wanted to hit something sensational in the beginning about the Chinese. But then never followed up. And he didn't follow up, because he had a committee that controlled him. Really he had the leadership that controlled him. Because they didn't want the true drama of campaign financing to get out to the people, because then the outrage would pressure for campaign reform. And they didn't want campaign reform. So he was hobbled.

But what I'm saying is it's not the subject matter itself. If this is a true important investigation, if it involves matters that do have impact on the people, then if you're running that investigation, you've got to identify that and get it across. And there are ways to do it.


IS WHITEWATER OF REAL HISTORICAL IMPORTANCE?

But the issues at stake - and for example I want to ask you about Monica Lewinsky. But you know the defenders of the White House repeatedly find the narrowest, smallest, most prurient object of Ken Starr's and say, "Oh, look, this is all it is. It's just a land deal in far away Arkansas." Or, "It's just his personal life. Why drag in the mother of an intern? Have mothers testifying against daughters. How terrible it is." But are there in fact issues of historic importance at stake in even such an undertaking as the Whitewater?

Well, first it's difficult for me to respond to that question, because to respond to it fully, I would have to be talking on the merits of the investigation, and I can't now in the role I play as... counsel to Ken Starr. I suppose one has to look at what happened that put that investigation into place. Initially it was the Attorney General of the United States, President Clinton's Attorney General, who found there was specific and credible evidence in the Whitewater matter that caused her to refer the matter to a special division of the court, who appointed Ken Starr.

Now whether Ken Starr should have been the independent counsel or Fiske should is under the bridge already. And Ken Starr isn't to be faulted for the fact that he got appointed instead of Fiske. Nevertheless, there was a sufficient enough matter that the Attorney General thought had to be investigated by an independent counsel, that he was appointed. In the more recent investigation, which has to do with Monica Lewinsky, the independent counsel under the statute can't extend his investigation without approval of the Attorney General. And he brought the matter, as he had to..., to the Attorney General, and the Attorney General gave him that extension and referred it through the Special Division of the court to Ken Starr. Now none of what I'm saying now speaks to historical events, speaks to the kinds of things that are involved in Watergate.

But don't forget, the statute doesn't speak to those issues either. The standard is "Is there a specific and credible charge involving certain covered people?" And the President is one of them. And if there is, then immediately the conflict of interest provisions come in. The Attorney General can't be seen to do an honest job with it, even though she can. I think Attorney General Reno is a person of honor and integrity and ordinarily could, but the statute doesn't say that.

We are a government of law, not people. And it has to be written for all Attorneys General. And there will be some who you wouldn't be able to trust. What I'm saying is we don't look to the particular person at the time.

And therefore without answering the question as to whether this is a very grave thing in the history of America, it fits the standard of the independent counsel legislation. Requires an independent counsel, and requires an independent counsel to be thorough and get all the evidence he can....

But doesn't that make it therefore a matter of grave historical importance? I mean the very fact of an independent counsel, looking into possible crimes committed by the President of the United States...?

It should. I know that's what's happened. And I know part of it is how the appointment of an independent counsel is reported as though something very unique has happened, that some grave historical incident has happened.

And basically it's nothing more than the Attorney General saying, as a private lawyer, a private lawyer in a law firm, if a client came to that lawyer to be represented and the lawyer is somewhat on the other side and has conflicts, that lawyer would say, "I can't represent you, but I'll refer you to some lawyers who could."

Well, in a nutshell that's exactly what the independent counsel legislation is. It doesn't create historical crises.... The fact that Attorney General under the statute decides that there is specific and credible evidence, and that there is need for further investigation and therefore there must be appointed an independent counsel, doesn't say anything more than, "I can't do it. Somebody else ought to do it. But somebody else ought to do it with the same rationale, the same professionalism, the same discretion as I have.

And if there's nothing there, throw it out. If there is something there, investigate, indict and prosecute."

But it's merely a mechanism within the federal prosecution system to take away from the Justice Department those things they would have a conflict of interest in prosecuting.... It could be something that is of historical importance like Watergate. But it could be an ordinary federal crime that isn't that important, and that the federal prosecutors would handle almost everyday.

And suppose it is an ordinary federal crime that isn't that important that federal prosecutors would handle everyday, except for the fact that there is this special conflict of interest?

And there usually are high powerful people on the other side. The only difference between the ordinary federal crime - for instance, failing savings and loan institutions were going on all over the country, around this time. There were prosecutions by U.S. attorneys, the Keating prosecution and others. They got attention, but they weren't focused as this.

But once you connect the President in an allegation to the owners of the failed savings and loan, then you at least create a much more bigger dynamic in terms of attention and interest and scandal.... But it's still an ordinary federal crime....


JANET RENO AND THE IC LAW

You mentioned the fact that Janet Reno made the unprecedented step of going before Congress and testifying... for the reupping of that statute which had been allowed to expire. To the degree that she embodied the Justice Department, that enthusiasm for the independent counsel institutionally, in the last year since she made that appearance, seems to have been mitigated by experience, does it not?

No. I don't think so. I've talked to her recently. She has been accused actually of appointing too many independent counsel.... The Attorney General, as the Supreme Court said in the Morrison case, does have the final decision. It's unreviewable. Even though the statute says that "she shall," there's no one who can review her, and if she decides not to appoint an independent counsel, as she did in the campaign financing..., it's unreviewable....

But I think, except for the campaign financing, and there's a good reason for that, Janet Reno has followed the statute religiously. And where her staff have given her sufficient information that there's specific and credible information... she has come through and lived up to the statute. I think that she was justified in not appointing an independent counsel in the campaign financing, because it had become so political before it had even got to her.

And the whole purpose of the statute is to take it out of politics, that the very appointment would be a response to a political pressure. And I think she saw it that way...

But isn't that part of the trick? Isn't that how you beat an independent counsel? You make it so intensely political that it would be impossible to do? ... She began considering it... at a moment when her boss, the President of the United States somehow forgot to mention whether or not he planned to include her in his next cabinet. And hung her out to dry, as she was making the decision, for weeks.

I think this was a personal decision on herself. She has real guts, Janet Reno, and I think she made a decision that she was being overly pressured by the Republican Congress.

Not pressured by the White House?

Oh, who knows? But I don't believe that would have affected her. I know her too long. I was Chairman of the American Bar Committee review of our Bill of Rights protections. And I asked Janet to serve on that committee, because she was then State District Attorney of Miami. And this is an iron woman, a woman with compassion, a woman who believes in our justice system, but a woman of great integrity. And I don't believe that she would take orders from the White House....


DO THE ICS NEED TO BE REINED IN?

[Independent counsel] start out with just a narrow mandate, and they broaden it. Well, that may be a criticism of federal prosecution, but any good federal prosecutor..., when they go into an investigation, they suddenly see other parts to it and other parts to it. And their duty is to follow the evidence where they find it. And so it's not unique to the independent counsel. It's part of good investigation and prosecution. Now some things may be so unrelated that if an Assistant U.S. Attorney comes across it, he refers it back to the U.S. Attorney's office to be assigned to another Assistant U.S. Attorney.

And the independent counsel can refer back to Justice matters that don't involve covered people, but a crime he has now come across that would not create a conflict, and then Justice picks it up.

But do you think that there has been a sense of independent counsel's going so far afield that the Justice Department has felt obliged to sort of rein them in from the start by giving them a narrower jurisdictional charter?

No. I don't think it works that way, because I think every time an independent counsel has gone beyond the official original mandate, he could only do that with the approval of the Attorney General and the Special Division of the court. So it isn't as though he's free to do these things, which makes him unaccountable. No. He can't do it without permission. So he has to come back for permission. And the Attorney General can say "No, this is something we can handle." Or "It's not worth doing."

As, in fact, the Attorney General did in the case of Donald Smaltz and Mr. Ronnie Blackley.... In that particular case the Department of Justice fought his wanting to expand the prosecution to include Mike Espy's chief of staff. Now, his charter was to investigate Espy. He gets out there and finds a couple of things. He finds Espy was taking gratuities from this guy Tyson. "Let's go look into Tyson Foods." Justice says no... We know, in fact, a little bit about that, and Donald Smaltz did as you suggest a prosecutor would do. He has the commission. He's supposed to look into Espy taking gratuities, literally does that. He's taking them from Don Tyson. He moves down to Arkansas, begins investigating and believes he has a really important, really interesting line of evidence, comes back, as you say he must to the Department of Justice, and says, "Look. I want to look into Tyson Foods, and this guy, Don Tyson."

As it happens, Tyson is not a man without influence and friends. He mounts a lobbying effort on Capitol Hill, literally gets legislation introduced to amend your independent counsel statute. He literally sends representatives over to the Justice Department to lobby there inside the Justice Department - who knows whether or not he had contact with the White House, but in fact we know he was a friend of Bill. And in fact Smaltz arrives at Justice, opens the door, and is told by a meeting that included the Attorney General, the Deputy Attorney General, the head of the criminal division, the head of public integrity and others, "No Tyson." Is that not to be taken as an effort to rein in an independent counsel and narrow his scope?

No. I think however the merits go on that, and whether Smaltz was right and the Justice Department was wrong, that kind of interaction, and that kind of decision making is what keeps this statute constitutional. Because if the Attorney General didn't have that ultimate decision, rightly or wrongly, the Supreme Court would have held that this was a violation of separation of powers. You were giving too much power to the Congress and to courts. And they were taking over the executive function.


EXPANDING AN IC'S JURISDICTION

So Justice fought Smaltz, and decisively so, on the expansion to Tyson, which raised this whole question of the language being the term "expansion" on the one hand versus "referral" on the other. The interpretation being that if you seek an "expansion," you need the Attorney General's endorsement, unreviewable if she says no. But if it's a "related matter," then you can just on your own go get it with the endorsement of the Special Division.

You can, but... I think that most, if not all, independent counsel bend over backwards on those issues and go back to the Attorney General and get a confirmation that it is related....

Two exceptions that strike me as being important that I can think of. One was when the regulatory independent counsel, Fiske, snatched the Webb Hubble piece of the Whitewater case, completely unrelated to the land deal or Jim McDougal and Madison Guarantee, as a related matter. And the other was Smaltz going straight to the Special Division and getting the Blackley piece without asking Justice's permission, and Justice as you know, not only didn't give it, but fought it.

Those are problems. In Fiske's case, it's difficult to compare what Fiske does with an independent counsel, because he wasn't under a statute, he was the regulatory special prosecutor for the Attorney General. So, assumingly... they are closer together than the independent counsel, who is supposed to be separate and apart from the Attorney General.

I honestly think [expanding an investigation without going through the Department of Justice is] a mistake. It's not a question of criticizing any particular independent counsel, but I believe even though one could read the statute as permitting the doing of that investigation under the "related" reference so that it's still part of the same mandate, that an independent counsel ought to have sufficient accountability to be able to communicate that to the Attorney General. It will have to be a strange case in which the Attorney General will say, "No. That's not related." I think there is a way, that even if the Attorney General says no, you can go to the Special Division of the court, [and] the court could approve it.

Which is why presumably Ken Starr came to the Attorney General on the related matter of Monica Lewinsky. As it happened the Department of Justice said, "No. That's not a related matter. But we will see it as an expansion." And do you think that that approach by this independent counsel was at all informed by earlier experience, namely Donald Smaltz saying, essentially, to the Department of Justice, "We don't need you. We can go straight to the Special Division?"

Again, without getting into the specifics of independent counsel Starr, he has from the very beginning followed that procedure. He comes from the Justice Department. He was Solicitor General of the United States. He has great respect for the Justice Department, and he believes that even though he's an independent counsel that on questionable matters of that kind, he ought to always consult with the Attorney General. And so I don't believe it was impacted all by what happened with Smaltz or anything else like that. I think that that's his view of his responsibility. And I think it would be a view of most experienced lawyers, who were put in that position. I would do that....


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