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“SEPARATING FACTS, FROM PARTISAN SMOKE” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S6004-S6006 on June 28, 2000.
The publication is reproduced in full below:
SEPARATING FACTS, FROM PARTISAN SMOKE
Mr. LEAHY. Mr. President, the Attorney General of the United States testified yesterday for almost 4 hours before the Senate Judiciary Committee to answer yet more questions about campaign finance investigations and independent counsel decisions. She did so with her typical candor and integrity.
Not willing to settle for the fact that this hearing revealed nothing new, certain Republican Members have today sought to muddy the waters and twist the facts. I would like to cut through this political haze and set the record straight.
These are rumored recommendation to appoint a special counsel.
It is not the ``established custom'' and ``practice'' of the Judiciary Committee or its subcommittees to announce publicly confidential Justice Department information relating to pending matters. Although Senator Specter did so this past week when he held a press conference and spoke on national television about a reported recommendation of the Justice Department's Campaign Finance Task Force Chief Robert Conrad, that disclosure was highly unusual. Although the Senator has characterized this information as obtained by way of
``official investigation,'' such information nor its source has been shared with me or, to my knowledge, with any Democratic Member of the Committee or the Senate.
The only public statements of Mr. Conrad were made at a Judiciary Subcommittee hearing on June 21, 2000. In response to questions from Senator Specter regarding recommendations to the Attorney General with respect to a special prosecutor, Mr. Conrad stated, ``That, I don't feel comfortable discussing in public. I would perceive whether I have done that or not as something that pertains to an ongoing investigation.'' (Subcommittee on Administrative Oversight and the Courts, ``Oversight Hearing on 1996 Campaign Finance Investigations''). Senator Specter pressed him to discuss the matter in private, to which Mr. Conrad responded a firm, ``no, I am not suggesting that. I am suggesting that my obligations as a prosecutor would prevent me from discussing that.''
At the Judiciary Committee hearing yesterday, the Attorney General also declined to respond to any questions on recommendations that may or may not have been made regarding appointment of a special counsel. She said, ``With respect to the present matter, as I said at the outset, I am not going to comment on pending investigations . . . I think it imperative for justice to be done that an investigation be conducted without public discussion so that it can be done the right way.''
Other than the Attorney General and Mr. Conrad's public refusals to confirm or deny the existence of any recommendation, or to reveal the subject matter of any such recommendation, we have only Senator Specter's representation of information purportedly obtained from unknown sources and press accounts from unidentified ``government officials'' that Mr. Conrad has made any recommendation to the Attorney General about appointment of a special counsel. We have no confirmation from the principals involved that such a recommendation has actually been made nor of the subject matter of any such recommendation. Before Members of Congress invite the American public to think the worst about the Vice President and put him in the position of trying to prove his innocence of allegations, which even the anonymous sources have not detailed, we should heed the advise of the Attorney General to ``be careful as you comment that you have the facts.''
Despite the fact that the Attorney General has appointed seven independent counsels to investigate matters involving the President and various Cabinet Officers, and appointed a special counsel to investigate the tragic events at the Branch Davidian compound in Waco, Texas, Republican Members continue to press the charge that Attorney General Reno refused to appoint an independent counsel for campaign finance matters for some illegitimate reason. This charge is unfounded and refuted even by those people who disagreed with the Attorney General's decisions not to seek appointment of independent counsels for campaign finance matters, including the following.
I do not believe for one moment that any of her decisions, but particularly her decisions in this matter, have been motivated by anything other than the facts and the law which she is obligated to follow.
Quoting FBI Director Louis Freeh, August 4, 1998.
At the end of the process, I was completely comfortable with [the Attorney General's] decision not to seek an independent counsel and with the process by which she reached that decision.
Quoting Charles La Bella, Former Campaign Finance Task Force Supervisory Attorney, May 3, 1998.
The integrity and the independence of the Attorney General are
``beyond reproach,'' quoting Charles La Bella, Former Campaign Finance Task Force Supervisory Attorney, August 4, 2000.
The Attorney General ``made no decisions to protect anyone,'' quoting Charles La Bella, Former Campaign Finance Task Force Supervisory Attorney, May 2, 2000.
[A]ll of the Attorney General's decisions were made solely on the merits, after full--indeed exhaustive--consideration of the factual and legal issues involved and without any political influence at all.
Quoting Robert Litt, Former Principal Associate Deputy Attorney General, June 21, 2000.
In response to whether he had any doubt about Attorney General Reno's integrity: ``No, I do not,'' said Larry Parkinson, FBI General Counsel, May 24, 2000.
The only political pressure on the Attorney General has come from the Republican majority. I believe that it was on March 4, 1997 that Senator Lott first introduced a Senate resolution proposing a sense of the Congress that the Attorney General should apply for the appointment of another independent counsel to investigate illegal fund-raising in the 1996 presidential election campaign.
Within 48 hours, on March 6, 1997, Senator Hatch had his own resolution to this effect added to the Judiciary Committee agenda. Ironically, Chairman Hatch made clear that we would not ask for an independent counsel to investigate the Vice President and telephone calls made from his White House office. He characterized the criticism of the Vice President as ``scurrilous criticism.'' He said that he did
``not think that the speculation surrounding the Vice President is as serious as some would make it'' and indicated that he would not participate in making a big deal out of it. Even assuming that he had been engaged in a technical violation, the Chairman said that he would not call in an independent counsel to investigate those matters.
Rather than act in a fair, balanced and bipartisan way, on March 13, 1997, the ten Republican Senators on the Judiciary Committee served a letter on the Attorney General requesting the appointment of an independent counsel to investigate possible fund-raising violations.
The very next day, March 14, 1997, we were called upon to debate on the Senate floor the Republican Senate resolution that the Attorney General should call for the appointment of an independent counsel. During the five days of Senate debate, Senator Bennett observed that he viewed the coffees at the White House as inappropriate but not illegal:
[C]learly, it does not call for the appointment of an independent counsel. It is something we can talk about in the political arena. It is on the legal side of the line.
Nonetheless, when the time came to vote on the resolution the Republicans adopted it on a straight party-line vote. They then proceeded to table an alternative resolution, S.J. Res. 23, that would have called upon the Attorney General to exercise her best professional judgment, without regard to political pressures and in accordance with the standards of the law and the established policies of the Department of Justice to determine whether the independent counsel process should be invoked. That more even-handed language that did not prejudge the outcome or tell the Attorney General what to do was, likewise, opposed by every Republican Senator.
Thus, by their votes on March 14, 1997, every Republican Senator had evidenced that his or her mind was made up on these issues and as a party they marched lockstep to the conclusion that an independent counsel should be appointed. The House Republicans then refused to consider the resolution and it died without final action. Even after the multimillion dollar investigation by the Governmental Affairs Committee chaired by Senator Thompson into allegations of campaign finance, and the investigations by the Burton committee and in spite of the 20 convictions achieved by the Campaign Finance Task Force within the Department of Justice, the Specter investigation is now revisiting certain events from 1996.
The American people know a partisan endeavor when they see one. The American people know that the upcoming nomination and election of the next President of the United States are no justification for dragging these matters back into the Senate for more politics of personal destruction and innuendo and leaks and partisan investigating for short-term political gain. I had hoped that we had our fill of these efforts when the Senate rejected the efforts by Kenneth Starr and the House Republicans to force President Clinton out of the office to which he was twice elected by the American people. Regrettably, I was wrong and, apparently, some on this Committee are still engaged in destructive partisanship.
The Pendleton Act, 18 U.S.C. Sec. 607, prohibits the solicitation of campaign contributions, as defined by the Federal Election Campaign Act, on federal property. The Department of Justice has exercised a policy--through both Democratic and Republican Administrations--of declining to prosecute violations of section 607 that do not have some sort of aggravating factors like coercion of involuntary political donations. Indeed, the uncontroverted record of enforcement of the Pendleton Act demonstrates that both Republican and Democratic Justice Departments have applied this policy and declined to take action repeatedly over the past decades. By way of example, in 1976, the Justice Department declined to prosecute officials responsible for sending letters signed by President Ford to federal employees at their workplaces soliciting contributions on behalf of Republican congressional candidates. In 1988, prosecution was declined when two Republican Senators sent solicitation letters as part of a computerized direct-mailing to employees of the Criminal Division of the Justice Department. In response to my question at the hearing yesterday, the Attorney General confirmed that this remained the Justice Department's policy.
There is no evidence that fund-raising telephone calls, which the Vice President has acknowledged making from the White House, implicated any ``aggravating factors'' warranting prosecutorial attention. Nevertheless, and in the absence of such evidence, some have claimed that because a hard money component of the DNC media fund used to pay for television advertising in 1995 and 1996 may have been discussed at a meeting attended by the Vice President and fourteen others on November 21, 1995, the Vice President's statements two years later that he believed the media fund to be entirely of soft money were false. Yet, as the Attorney General testified yesterday, only two participants--not four as Senator Specter stated this morning--even recalled that the hard money component of the media fund had been mentioned at the 1995 meeting.
The Attorney General testified that thirteen participants did not recall any such discussion and:
[w]hile the Vice President was present at the meeting, there is no evidence that he heard the statements or understood their implications so as to suggest the falsity of his statements 2 years later that he believed the media fund was entirely soft money, nor does anyone recall the Vice President asking any questions or making any comments at the meeting about the media fund, much less questions or comments indicating an understanding of the issues of the blend of hard and soft money needed for DNC media expenditures.
The Attorney General explained that the Justice Department lawyers had:
concluded in this instance--that the range of impressions and vague misunderstandings among all the meeting attendees is striking and undercuts any reasonable inference that a mere attendance at the meeting should have served to communicate to the Vice President an accurate understanding of the facts.
The Attorney General did not ``discount'' the information provided by David Strauss, who was present at the time of the November 21, 1995 meeting in considering whether to appoint an independent counsel to investigate the Vice President and his knowledge of the hard money component of the media fund. Rather, as the Attorney General patiently explained yesterday, she fully considered the notes and the fact that Strauss himself believed the media campaign had been financed entirely with soft money. Indeed, this issue is discussed in full in the
``Notification to the Court Pursuant to 28 U.S.C. 592(b) of Results of Preliminary Investigation'' publicly filed on November 24, 1998.
As the Attorney General explained, the fact that Strauss's contemporaneous notes reflect discussion of the hard/soft money split, does not bear on the Vice President's recollection of the matter. Any discussion about ``recorded recollection'' misses the boat. Federal Rule of Evidence 803(5) states that a:
memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by this witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly
Will not be considered hearsay. However, regardless of whether Strauss's notes could be admissible at a hypothetical trial, the fact remains that they are irrelevant on the question of what the Vice President, not Strauss, knew or heard.
Although it was insinuated that thirteen memoranda from Harold Ickes are evidence as to the Vice President's knowledge of the hard money component of the media fund, as the Attorney General testified yesterday, only six or seven of those memoranda predated the telephone calls. In addition, as set forth in publicly filed court documents, there was no evidence that the Vice President had read them and the Attorney General testified that the Vice President's staff
``corroborated his statement that he did not, as a matter of practice, read Ickes' memos.''
As to the Standard of Proof to Move from a Preliminary Investigation to Independent Counsel, Republicans have repeatedly suggested that an independent counsel should have been appointed for the Vice President and have focused on whether there was ``specific and credible information'' regarding wrongdoing. This is a mischaracterization of the applicable standard under the now-lapsed Independent Counsel law. As the Attorney General clarified yesterday, that standard is only relevant to whether a preliminary investigation within the Justice Department should be commenced. Indeed, such an inquiry was conducted, and concluded, with regard to the Vice President on two occasions. The Attorney General also testified accurately that in order to seek an independent counsel following the conclusion of a preliminary investigation, she needed ``reasonable grounds to believe that further investigation is warranted'' of the matters that had been under investigation. This standard was also accurately reflected in the Attorney General's notifications to the court on this issue, in which she found no such ``reasonable grounds'' as to the Vice President.
Regarding the Hsi Lai Temple Matter, Republican Members questioned the Attorney General about the Vice President's visit on April 29, 1996 to the Hsi Lai Temple in Los Angeles and speculated that he was not fully forthcoming about his understanding of the nature of the event. The Vice President has consistently insisted that he was not aware this event was a fundraiser. Senator Smith observed yesterday:
I don't understand for the life of me why any individual would deny that he or she attended a fundraiser. Attending a fundraiser is not a bad thing.
Perhaps, the answer is as simple as this: that the Vice President did not know the temple event was a fund-raiser, just as he says.
The record is clear that the Vice President was initially scheduled to attend a fund-raising luncheon at a restaurant in Los Angeles on April 29, 1996, and that after the lunch, he was supposed to go to the temple, about 20 minutes away, for a community outreach event. No tickets were to be sold and no fund-raising was to take place at the temple. A few weeks before the events, the Vice President's schedulers determined there was not enough time for two events. The guests previously invited to the restaurant luncheon were told they could attend a luncheon at the temple dining hall after the formal ceremonies.
Although the luncheon at the temple was a DNC-sponsored event, no tickets were sold, no campaign materials were displayed, no table was set up to solicit or accept contributions, and the Vice President spoke about brotherhood and religious tolerance, not fund-raising. Attendees included a Republican member of the Los Angeles County Commission.
Notwithstanding these facts, Republican Senators have insisted that an email from an aide to the Vice President on March 15, 1996, suggests that the Vice President knew the Hsi Lai Temple event was a fund-
raiser. This conclusion is wrong and ignores relevant facts. First, the original plan had been for the Vice President to participate both in a fund-raiser at a restaurant and a visit to the temple on April 29, 1996. Later that day he was to attend another fund-raiser at a private home in San Jose. The email to which the Republicans referred at the hearing, dated March 15, 1996, is from an aide and states in relevant part: ``we've confirmed the fundraisers for Monday, April 29th. The question is whether you wish to seriously consider [another invitation in New York.].'' The Vice President replied by email that ``if we have already booked the fundraisers then we have to decline.'' Obviously, the fund-raisers to which these emails refer are the one fundraiser originally scheduled at a restaurant in Los Angeles, later cancelled, and the fundraiser in San Jose. They do not refer to the Hsi Lai temple visit.
Regarding oversight of the Peter Lee case, Senator Specter has claimed that the Peter Lee case is a closed matter and that it was somehow appropriate to interview the district court judge in that case. The record should be clear that the Lee case is in fact pending in at least two respects. First, Lee filed a motion to terminate his probation on September 28, 1999. Opposition to the motion was filed by the government on October 6, 1999. A decision on that motion had not yet been rendered at the time of the Senator's interview of the judge in February 1999 and may remain pending today. In addition, until either this motion is granted or Lee's term of probation expires, Lee will remain under the supervision of the court and the Probation Department. Should he commit any violations, his probation could be revoked by the judge and he could be sentenced to a term of imprisonment.
Concerning the idea that Judiciary Committee Senators should have standing in independent counsel matters, I have heard the suggestion that the Judiciary Committee should have standing to seek judicial review of the Attorney General's decisions on special counsel matters. This proposal seeks yet again to politicize the integrity of the process. It also ignores the fact that the independent counsel law is no longer in effect. The special counsel process is simply governed by Attorney General regulations. Surely this Committee should not have standing to intervene in the application of internal Justice Department regulations.
I have expressed concern about the damage that can be done to the integrity of the criminal justice system if the majority in Congress politicizes prosecutorial decision-making, including by interfering in ongoing criminal matters and pending investigations. Authorizing the majority of a standing Congressional Committee to initiate a criminal investigation is a bad idea.
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