Philip Heymann

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CLINTON'S RELATIONSHIP TO THE DOJ

Bill Clinton becomes President , and you find yourself returning to the Department of Justice. How did that happen? How did you get the call?

I had not met President Clinton or Mrs. Clinton. In a real sense I've never met them to this day.

You weren't an old [friend of Bill].

It's not only I wasn't that. I wasn't actually ever interviewed by them, nor did I see them afterwards except on public occasions. They early on picked Chuck Ruff as their preferred Deputy Attorney General. I think that that slot was intended to be someone who had a long experience in the criminal justice world... and somebody who had sort of a reputation, preferably going back to Watergate. I mean [it would be] nice if it went back to Watergate, but a reputation that would look like something other than the friend of the President.

Like Charles Ruff?

Like Charles Ruff. After a few weeks, it became clear that Ruff had a nanny problem of such insignificance - absolutely ridiculous, a person over 72 who he thought was drawing social security. But at any rate, this scared off the administration. At that point, I gather that Janet Reno asked Chuck Ruff who he would recommend as deputy. Ruff strongly recommended me. I knew Attorney General Reno a little from the time that she was Dade County State's Attorney. Chuck called me and asked me if I would be interested. I said sure. I came up and met with Bernie Nussbaum, Vince Foster, Webb Hubbell..., and Janet Reno, about a half an hour a piece. Seemed to be totally pro forma and shortly got a call saying "Would you like to be Deputy Attorney General?" Never interviewed with the President and never really met him....

Deputy Attorney General of the United States Department of Justice. The number two guy at Justice, and you still hadn't met the President ?

Only on formal occasions. I've never met him otherwise.

Did you ever have the urge to introduce yourself?

I did introduce myself to him on a couple of occasions, and he would say, "I know that." Since he is supposed to be very good with names, I assumed that maybe he did know that.... It's a bad mistake. It's an innocent mistake, but it's a bad mistake. The number two person in the department has to have met the President for an hour, or for a half an hour or long enough that there is some set of relationships. The President just has to spend that much time, otherwise it's a bad mistake.

But, [also]... it wasn't just you. It was an Attorney General whom he had never met until two days before she came became the Attorney General of the United States of America. [Is it true that Clinton was relatively indifferent about the staffing of the Justice Department?]

I don't know. There have been a number of missteps in the appointment of Attorney General. I am sure they were anxious to move ahead quickly. I doubt very much if a lawyer President and a lawyer First Lady thought that the Attorney General was the most difficult and important position for them to fill.

Plus they had Webb Hubbell over there.

They had the number three person, whom they knew very well, who was Webb.

What does that mean Professor, "knew very well?" In the day to day practical reality of it, having Webb Hubbell over there, the President 's golfing partner, one of [the First Lady's] best friends and law partner. What was the practical reality of that?

...I felt, and I think everybody else in the Justice Department felt, that whatever Webb's problems before or after, [that he] behaved in the Justice Department like people behave when they put on black robes and become a judge. Suddenly they are something different. I think Webb believed deeply in the Justice Department, was deeply committed to doing everything he could for the Justice Department.... And [he] was very well-regarded by me and by people in the institution, unanimously and without disagreement.

On the other hand, the Attorney General didn't know the President or the White House staff. I hadn't even met the President or many of the White House staff. I certainly met them over time. So Webb became the ambassador from the Justice Department to the White House. There is a lot of business that has to be done between any cabinet secretary and the White House, and that business was carried [out] always by Webb. That was a bad situation not because Webb was too partisan or too personal, but it was a bad situation because the White House has to be able to deal with the Attorney General, the Deputy Attorney General and the Associate Attorney General.

I wonder if you could describe to me please Webb Hubbell....

He reacts well to pressure. I mean, he eventually ended up under incredible pressure and got convicted, [but] if there was a pressure event in the Justice Department, he would react well to it. He wouldn't panic or go wild. He was very supportive of the Justice Department career people. Every new administration comes in suspecting that career people... really belong to the party of the last administration, when they've been there for 40 years, Webb was very supportive of them. He was good to talk to. If there was anything wrong, he may have been too reluctant to say no.

He made it clear that I was number two, and that he was number three. I wanted it that way. I understood it that way, too. But we never had any problem about that, although the person who deals with the White House is automatically in a very special position. Anyway, I would have thought that I couldn't have had in many ways a smoother relationship. He stayed out of criminal business; he should have. We divided it up. I had the whole criminal world. He had the civil world. He stayed out of it. I remember when Vince Foster's suicide took place, we kept Webb away from him but [that] didn't take a lot of pushing and shoving. He knew how to do that.

VINCE FOSTER AND WHITEWATER

And it is that late July evening, a hot Washington summer night when you hear that Vince Foster has committed suicide. What are the Department of Justice's implications that first strike you...? What do you think is the appropriate course at that moment?

Without going back and looking at my testimony..., I just know that my reaction to anything that involves the White House, whether the travel office is behaving legally or illegally or whether Vince Foster has killed himself or has been a victim of a crime, is to try to keep it in regular channels. If we move it out of regular channels, there is immediately going to be immense suspicion that something is being covered up. Here, the regular channels I check, and the regular channels [we] have are park police because Vince Foster's body was found on park land.

The trouble with that is the park police have no familiarly at all with an investigation that is going to take them into the White House, and they need help. So right away I bring in the FBI to work with them.... I believe that I have to intervene, or the Justice Department has to play a role... [for] the people who are in charge of finding out, to make sure that they have the access that they need in the White House. The Justice Department's role is not to take over investigation - that should be carried out by investigators - but to be sure that they are met with the right investigators who are there. That means bringing the FBI too. Be sure that they get the cooperation they need from the White House.

Was there any sense early on when you were going through these steps making sure that it is in channels, going to the next level if that is what is required, which it was. Was there any sense that there would be any difficult in that regard?

I'm worried as to whether I am remembering right, Peter, but I think there is always difficulty in investigating anything in the White House. It's true, by the way, in the Senate and the House, too. If this had been a suicide in one of the leadership's offices, there would be a lot of problem investigating. They would say that they wanted their attorneys present when the FBI arrived and this and that. We are dealing with that type of figure. If you want to give independence to investigators, you have to give them some support.

Which is why presumably you and Bernie Nussbaum would have been having that meeting in the first place, discussing the ground rules. "This is how we'll do it. There will be cooperation." And you had no doubt then and have no doubt now that you had been assured that there would be...

This is an oft-told story, so I'm a little reluctant to tell it for the 51st time. I thought that two career prosecutors would be allowed to take part fully in a review of files... in order to see whether there was anything [that] bore on suicide as the most likely cause of death or anything else. The signals were changed. I didn't think I had been promised that, but I thought that we had agreed that that was the way it would be done. I thought that was necessary for the credibility of the investigation, that the files not be reviewed by White House counsel alone. The signals were changed. They were reviewed by White House counsel alone. That started a tiff between me and the Justice Department and the White House counsel's office - not terrible - but a tiff....

They found some evidence a few days later, a torn up note. That of course creates more suspicion.... If you're in the Justice Department and you're smart, you try to make sure that things don't happen that feed suspicions. Both because you want it to go straight, and you want it to be clear that they are going straight.

And in fact, you had that bit of seed of suspicion, other seeds of suspicion. Torn up notes found. When were they found? Found by whom? Were they really in the bottom of this briefcase? Where was the briefcase? Was that something that was not examined by the FBI? And so on... until within months after Vince Foster's death the press began to report stories about papers being shuffled in and out of his office, suspicious activities. That breathes fire; it breathes life into the smoldering embers of the by then forgotten Whitewater scandal... into calls for a special prosecutor.... Help me to understand where they were at that moment. There was still no independent counsel act renewal. Janet Reno had testified for renewal of the act but had said no to the appointment of the special prosecutor. Why?

I don't know the reason because she didn't tell me the reason.

Did you have a position on it?

I thought that Whitewater was a story with legs, and I thought it would never go away, and I thought that we would need a special counsel, and I thought that it would be wise to appoint a special prosecutor before the story ran away with us. I thought there were wonderfully honorable people out there like Bob Fiske who would be fair. Fair to the President and fair to the facts.


APPOINTMENT OF FISKE

As eventuated, the President himself came to realize that, politically at least, this story needed to be dealt with. Just out of curiosity, how did that process actually occur? Did you go in and finally win an argument with the Attorney General? Did the President pick up the phone and call you or call [Janet Reno]?

I don't know exactly what the phone call was, but the Attorney General was told that the President would prefer that there be a special prosecutor. At that point, she appointed a special prosecutor....

We know what to do when the statute is alive with an independent counsel. There is a certain procedure that is followed. What do you do in this case? Does she have a ready existing pool of [candidates]?

She turned to me and the head of the Criminal Division working with me, Jo Ann Harris, and a couple of other people, and we started producing names....

A list of what sort of people?

The first thing, I guess, was a set of criteria. My criticism is that the court doesn't seem to do this very well - the court that does it under the independent counsel statute.... The selection of person has to satisfy skeptics that there will be a serious investigation. After all, the reason we are doing it is to satisfy skeptics who are otherwise concerned about the Attorney General who works for the President being in charge of the investigation. So the person has to in some way, either by reputation for independence or by being of the opposite party, satisfy that problem. Number two, you don't want anybody who is partisan. You want somebody who is going to be fair....

There is something about the job itself that makes it hard to be fair. We want to try to get someone who will be very fair.... You try to get somebody who will handle it like a prosecutor and do whatever investigations necessary and make a call. You worry a lot that they won't be willing to make a call and say "prosecute" or "don't prosecute."

And among the people you all considered... potential nominees was Warren Rudman?

Yes.

Robert Fiske?

Yes, Robert Fiske, who had been a U.S. Attorney, a highly respected U.S. Attorney, Republican in the 7th district of New York in Manhattan.

And Ken Starr?

Ken Starr, William Webster.

Should the Ken Starr piece of it surprise me?

Well, it surprised me a little.

Have you known him at all?

I have not known him at all. I don't think I've ever met him to this day. Maybe I have, but it would only be once....

Is it possible for you to retrospectively recollect his reputation [at the time]?

Yes. I talked primarily with the people who knew him in the Justice Department at that time. They said he was a perfectly straight and very honorable person. They said "He isn't the prosecutor." This worried me.... I'm not worried that he's not a prosecutor, but they said that the people he will hire to compensate for that are likely to be highly partisan. Now I don't know the people who he has hired, so I don't know if that's true or not, but that is what worried me.

But someone who is not a prosecutor who is charged with the prosecution would in fact hire the aggressive prosecutorial types that we talked about earlier.

Well, it was more than that. I was worried by people I talked to that the people he hired... would turn out to be politically partisan, not just aggressive. I'm not at all sure that he hired those people, whether that's happened.

In the event, you all chose Robert Fiske.... He is named. His jurisdiction is decided how? There is no law deciding it. There is no charter deciding it.

The Attorney General said to me, "You sit down with Bob Fiske and write his jurisdiction and make sure that he has everything that he could possibly want."

And what did he want?

Nothing unusual. I think he always wanted to be able to bring cases that are related to the major case. He's a wonderful and reasonable person. But I remember sitting down with him and saying to him, "Bob, the Attorney General wants you to have everything you could possibly want. So let's talk about what you would want."


IMPLICATION OF WEBB HUBBELL

And together you two drew up what basically became his charter and what served as a charter for Ken Starr subsequently, and I guess to some degree [for] Don Smaltz. You find him a building; you find him the staff; you find telephones. Eventually it gets up and going, and one of the places his investigation leads him is straight to the number three man at the Justice Department, Webb Hubbell.... Here, we had an independent counsel, Robert Fiske, an honorable man, certainly within his charter, investigating the President 's - then Governor Clinton's - long ago Whitewater land deal. What in the world does Webb Hubbell's billing of clients have to do with that?

That's part of what it is to be an independent counsel and the special prosecutor. It's part of the problem. It's not a big part, but it's part of the problem.... The independent counsel wants to be able to prosecute people who may be witnesses against the subject of independent counsel's investigation.... I can't remember what was Ken Starr and what was Robert Fiske, but they believed that Webb Hubbell has crucial information about whatever they are investigating at Whitewater so they want to prosecute him if he has committed a crime in order to get the leverage that will give them on the information that they really want about Whitewater.

To put it more crassly, put the squeeze on.

Absolutely....We want to put the squeeze on them.


DIFFERENCE BETWEEN IC AND FEDERAL PROSECUTOR

It was in fact Fiske who built the case essentially against Webb Hubbell, and then he was removed by the court. Ken Starr came in, and they basically prosecuted it. So Starr essentially gets credit for the convictions..., but it was Fiske who did it. But in your mind was [that] an inevitable or even appropriate course to follow... by Fiske and subsequently by Starr?

...The symptoms that we've got that something is going wrong with the independent counsel statute is that we have very long investigations. Whitewater has been going on since early 1994, and it's now spring of 1998. The Iran-Contra investigation cost 40 million dollars. This one has cost 25 or 30 million dollars already. Independent counsel seem to be [bringing] in charges that other people might not bring in....

Closely related is that the independent counsel seem to go after other people, trying to make a case against the main target. Cisneros' girlfriend and her friends...it looks like a very rough business.... They look to many people like "We've got somebody out there with a hunting license who is going to shoot at other people along the way to get at the target, who is one of the 75 high level officials."

What's the problem? The individual, the independent counsel, has only one case - Starr has three cases but only one defendant - [he] has none of the time pressures or the money pressures or the traditions that keep an ordinary prosecutor, as aggressive as they are, somewhat in line because there are other cases out there. There are more serious matters out there. There are other defendants out there.

But another way of putting it is we've come to expect the independent counsel to get to the bottom of the facts. That's just a mistake. What the independent counsel is supposed to be doing is supposed to be making the prosecutorial judgment that will be made if it was anybody else, if it wasn't the President, wasn't the First Lady, wasn't the secretary of HUD. The independent counsel is supposed to be deciding, "Is this a case that an ordinary prosecutor would prosecute?" An ordinary federal prosecutor.

No tougher, no easier, no favors, no penalties. You can't penalize high level officials by treating them more severely than anyone else, especially with matters that have nothing to do with office. But what we are getting is a sense that scandal, if it has any criminal angle to it - Monica Lewinsky, inducing perjury - scandal has to be gotten to the bottom of.... Here's what we haven't gotten. We haven't gotten any independent counsel who has received one of these grants of power from the court who will look at what he got, say, within a week [and say], "Even if this is true, it's not a federal case. Closed."

Which might well happen to an ordinary prosecutor?

Exactly....

Now if you are going to get officials treated no better and no worse than anyone else, particularly with regard to crimes that don't involve office in any way, somebody has got to exercise the same discretions, the same judgment, the same decision. "Is this worth a federal prosecution? Is it worth the disruption of lives and the cost? Is it worth fighting this investigation?" Somebody has got to exercise the discretion that a prosecutor normally exercises. In reality, the Attorney General doesn't do it, and the independent counsel doesn't do....

The guy who is going to have the next crucial moment like Archie Cox's moment when Archie Cox said, "I am just doing my duty" is the person who is appointed independent counsel and within a week says "I'm closing this case without resolving the scandal because it doesn't deserve an expensive federal prosecution, and it wouldn't be fair because we wouldn't do it to anyone else." That person will be the next hero of the independent counsel.


IS THE DOJ TRYING TO REIN IN THE IC?

About Fiske/Starr going to Webb Hubbell. It seemed that after that, some of these dangerous risks of a wide ranging, never ending [investigation by a] special prosecutor became apparent with the Justice Department. Subsequent charters were written much more narrowly, and as we've seen, the process that the Attorney General herself went through in deciding whether or not there should even be independent counsel became much more tortured, [with] the result, at least in the case of campaign finance scandals, that... one wasn't appointed. Do you have a sense that that is going on? That Justice in fact on its own, procedurally [in the] appointment of independent counsels, is trying to kind of rein in the institution?

Justice Departments have never liked independent counsels. It's a little bit of an offense to the department, and to the career service [people], particularly when you are dealing with people less than the President , less high status, and when you are dealing with events that are not the biggest crimes in the world.... Sure, I think they will try to pull him a little. But the Attorney General gave the Monica Lewinsky thing with a fairly broad charter to Ken Starr. I think we would all be better off if it had been given to someone else....

Is there any chance at all, just a guess of course, Professor, but any chance at all that the independent counsel statute as stands will be renewed next year in this political climate?

The question is how devious the political figures want to be. If it looks like it would still be useful to go after democratic administrations, the republicans would be in favor of it. If it was a republican administration, the democrats would be in favor of it....

But I actually think [what's] likely to happen [is] a narrower statute that applies only to President and the vice President and applies only to crimes in office. That would pick up Watergate, which is the most serious by far, and that would get rid of Whitewater as a crime not in office, as an old crime....

 


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