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Burden of Proof

Will the Missing White House E-Mail Prompt a Special Counsel Investigation?

Aired March 30, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: We don't agree with the ruling. And I can say that when the decision was made to release those letters, I didn't even have any conversation with anybody about the privacy act. I never thought about it. I never thought about whether to apply it or not. And decided to do it reluctantly only because it was the only way I knew to refute allegations that were made against me that were untrue.

I don't handle the e-mail things. I can tell you this. My counsel, Beth Nolan, is going to the Hill, I think, tomorrow to talk about this.

I believe that it is accurate to say that we have turned over everything that had been found, and from what I understand, some things were not found because they were in a different system. And so now, we're working out how to cooperate with the Congress.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Hello, and welcome to BURDEN OF PROOF. I'm in Los Angeles today.

In his news conference yesterday, the president addressed the legal issues of the missing White House e-mail and a federal judge's rulings over privacy act violations.

But before we tackle those topics, the latest in the Elian Gonzalez case.

GETA VAN SUSTEREN, CO-HOST: Elian's Miami family is back in negotiations today trying to head off a threat by the Immigration service to begin a process to return the boy to Cuba.

At her briefing this morning, the attorney general said the federal government is ready to enforce the law and that Elian should be returned to his father.

(BEGIN VIDEO CLIP)

JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES: This case has been heartbreaking for everybody involved. But we believe that the law is clear. The father must speak for the little boy, because the sacred bond between parent and child must be recognized and honored. And Elian should be reunited with his father.

(END VIDEO CLIP)

COSSACK: Cuban president Fidel Castro is also speaking out. Yesterday, he called the plan to send Elian's father to the U.S. in order to pick up his son the perfect solution.

Joining us today in Miami, CNN's Susan Candiotti.

VAN SUSTEREN: And here in Washington, David Cutty (ph), former Republican National Committee counsel Mark Braden, an former federal prosecutor David Douglass. And in the back row, Keith Markel (ph), Brian O'Leary (ph), and Tac Richardson (ph).

Let's go first to Susan Candiotti.

Susan, what's the latest in the Elian Gonzalez case?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, it's pretty quiet at the house now after a night of huge demonstrations among many Cuban exiles in this community who are supportive of Elian Gonzalez remaining here.

We can tell you that a little while ago, Elian's great uncle, Lazaro Gonzalez, went to meet with his lawyers. The talks his lawyers have been having with the government attorneys have been going on for at least three hours now and were described as the U.S. government source at least last night as being very direct and frank, and that Lazaro Gonzalez became very emotional at times when talk turned to the possibility of surrendering the boy to his father.

VAN SUSTEREN: Let me interrupt, Susan...

CANDIOTTI: Now, of course, we have this...

VAN SUSTEREN: Susan, let me interrupt you one second. You say it's direct and frank. Direct and frank about what? What are they talking about?

CANDIOTTI: That the U.S. government was laying down the law, so to speak. That if the family does not agree to promise in writing, at least that was in the discussion last night -- There seems to some wiggle room available now we're hearing. But there has to be a firm agreement that if all appeals are lost, the government is sticking by that, that the family will have to make it very clear that they will surrender the child at the end of the day.

VAN SUSTEREN: And if they don't agree?

CANDIOTTI: What happens if they don't agree -- This is the very latest we're hearing from a U.S. Justice Department official. There is a two-prong process that is being set in place now. First, the family would receive a letter of official notification that the boy's parole would be revoked tomorrow morning. And that letter would also include, this official said, that there would be unspecified restrictions placed on the boy, restrictions that might include such things as travel restrictions.

Now, also, that the family would be informed that it would be, in some way, more closely monitored than it has in the past.

We are also told from this official that there is a second letter that would be involved that would detail specific instructions about how the boy would be turned over. When would that happen? We are only being -- We are only hearing soon. Days, weeks, we don't know how long that would be.

So now on the other hand, if there is an agreement, this official is telling us, there would be some sort of provision that if there were changing circumstances, that being referenced to the possibility that Elian's father and his family would come over here, that could effect the timing of a transfer of the boy to this father.

COSSACK: Susan, we've heard about the timing, we heard about the father coming over to perhaps take possession of the child. How is that viewed? I mean, is that something that the government believes would move this process forward in a peaceful manner? It would seem to me that's like adding fuel to the fire.

CANDIOTTI: Well, certainly, government sources say it is giving a little more bargaining power to the discussions that are going on. It did not come up last night. We are hearing that the parties, neither one, knew about this ahead of time. At least that's what they're claiming.

And the -- both community leaders here from the Cuban exile community, as well as a spokesman for the family say they view this as a positive sign.

Sources familiar with the case that remember, the family has said all along that the father's possible appearance here, that his appearance here is long overdue. The question is whether the family will remember what it said when this all began, and that is that the only way they would turn over the boy is if the family came to the United States, everybody came to the United States.

But now we are hearing that there would have to be the right circumstances, the right setting for a meeting, and that the family here would have to be assured that the father was, indeed, speaking freely.

VAN SUSTEREN: CNN will continue to follow this story, bring you the developments. But Susan Candiotti, thank you for joining us.

We're going to change gears. And up next, the case of the missing White House e-mails. Is there another special counsel investigation ahead?

(BEGIN LEGAL BRIEF)

A 12-year-old Mississippi girl who was raped by a 24-year-old man in December 1999 and got pregnant as a result is suing the state for refusing to pay for the abortion.

The girl and her mother claim the state is violating a federal law which requires Medicaid coverage for indigent women who were raped or incest victims or whose lives are in danger.

Mississippi's policy is to pay for the procedure only when the life of the mother is in danger.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to cnn.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

VAN SUSTEREN: The White House has acknowledged in recent weeks that e-mails originally subpoenaed during the Ken Starr investigation were not turned over because of a glitch in their computer system.

Congressman Dan Burton, who's the chairman of the Government Reform Committee, wants a special counsel to look into the matter and has said he will send a criminal referral charging a White House aide with perjury.

Joining us now from Capitol Hill, CNN's Bob Franken and Congressman Asa Hutchinson.

First to you, Bob. Bob, what is the status of this ongoing dispute?

BOB FRANKEN, CNN CONGRESSIONAL CORRESPONDENT: Well, there's a hearing being held this morning by Dan Burton. By the way, the charge is that subpoenaed material in a variety of investigations, congressional and criminal investigations, in fact was withheld. That charge is still being explored, particularly by the House Government Reform Committee under Dan Burton.

The news from today is Beth Nolan, the White House counsel, has appeared and has reduced her estimate of how long it will take to recover the back-up material. She had originally said two to three years. Now she's talking about 170 days, which is to say about six months, which would mean that the material could be turned over to the investigators before the election, important political point, since some of this involves material from the vice president's office. And, of course, there is a campaign finance investigation underway.

VAN SUSTEREN: Congressman Hutchinson, I always do this to you. You are a congressman, but before that, you were a United States attorney. How serious if Dan Burton said he's going to send a criminal referral? Is that a serious charge or a political statement?

REP. ASA HUTCHINSON (R), ARKANSAS: Well, I think it's very serious in terms of the affidavit that was filed in the civil lawsuit indicating that the arm system was collecting all of the e-mails and that that was being reviewed for compliance to subpoenas. I don't believe that was the case, and I think there's a legitimate question as to whether this affidavit was false. So I think it's a very serious criminal referral.

I think the larger issue is whether the White House knew about the glitch, which they clearly did, and why did they not advise the independent counsel and the Congress about this problem? This is the most critical time of the investigations in early 1998. And I think that's the question we need an answer for.

FRANKEN: And Greta, there are two explanations they give, very quickly. One, that they didn't understand the technical ramifications of this, and two, that they believed and do believe that much of this was duplicated that had already been sent and that they didn't really have any necessity to let people know.

COSSACK: Representative Hutchinson, what evidence is there, if any, that connects this to the president as opposed to people who were just involved on his staff and may have overlooked some things that they shouldn't have?

HUTCHINSON: Well, the evidence thusfar is that you've got independent contractors, nongovernment employees who were threatened by White House employees not to talk about this; secondly, that Charles Ruff was advised of this computer glitch. And that's really all we know at this point. We don't know what the discussions were between Charles Ruff and the president.

He indicated the other day that he knew about this problem but...

VAN SUSTEREN: Who's he? Charles Ruff or the president?

HUTCHINSON: It's my understanding the president indicated that he knew about the computer glitch. Now that doesn't mean he was aware that this was not being disclosed to the congressional investigators. But clearly, the problem was known. And there's over 100,000 e-mails that are not explored to determine whether the subpoenas are being complied with. That's the problem.

COSSACK: Congressman...

VAN SUSTEREN: Mark, Mark...

COSSACK: Congressman Hutchinson, let me just follow up with this question. You know, as a former U.S. attorney, we talk about investigations, we talk about the focus of the investigation. Where are you focusing your investigation then?

HUTCHINSON: Well, the focus of the investigation has to be whether the White House intentionally failed to disclose information to the independent counsel and to the Congress that they could not fully comply with subpoenas. They had this information.

COSSACK: You mean the White House, do you mean the president? You mean the president or do you mean staff members in the White House?

HUTCHINSON: Well, obviously, the subpoena is to the president. It is staff that prepares the response to the subpoenas. Who is responsible for that?

VAN SUSTEREN: All right, let me ask Mark Braden.

Mark, that's an important question, I mean, you know, who did what, who knew what, but when a subpoena goes out, I mean, does it go to the president personally or does it go to the executive office of the president? And are we talking really about the president or is it just sort of -- are we making a broad stroke?

MARK BRADEN, FORMER RNC GENERAL COUNSEL: Well, I think we're talking about subpoenas in both cases. We're talking about a variety of subpoenas from a variety of different investigations, some of which went to him personally, some of which went to the executive office.

This might be simply a mistake, but it's, you know, very frightening when you hear people who wanted to bring this to the public and they said they were threatened with jail. Three different individuals...

VAN SUSTEREN: But you know, Mark -- Threatened with jail is a very serious charge, but I think what oftentimes happens in the media is they were threatened with jail, but the question is: Who made the threat? I mean, and that's the...

BRADEN: Exactly right. We need that answer.

VAN SUSTEREN: David, do you want to weigh in?

DAVID DOUGLASS, FORMER FEDERAL PROSECUTOR: Yeah, exactly. I mean, the allegation is serious but there's not -- The question is: What is the substance to the allegation? And allegation is just a charge, and it's a charge that's easily made.

VAN SUSTEREN: But it's even more than that. Who is -- I mean, who is the allegation...

DOUGLASS: Exactly. Who's charged, what was said? The two key questions are always knowledge and intent. The fact that someone says, "We have a glitch in our e-mail system," someone says, "Well, all right, let's see what's going on and just keep it quiet till we figure it out." That's just not problematic. And there's a real...

VAN SUSTEREN: Oh, yes it is. Let's just keep it quiet when there's a subpoena? Oh, I don't agree with you on that.

DOUGLASS: Oh, no, absolutely not. When you're a lawyer gathering facts and someone says, "We have a problem, the right thing to do is to understand the problem, not run around like a bunch of chickens with your head cut off.

(CROSSTALK)

COSSACK: You know, I think in some ways...

BRADEN: Different individuals raised their right hand and said they were threatened with jail, with jail if they spoke about this.

VAN SUSTEREN: That's serious.

COSSACK: I think we can't commit -- I think we can't, like, overlook that no matter who it was that threatened someone with jail. Someone has sworn under oath that apparently, someone from the White House -- whether or not they had authority or not -- said, "If you tell about this, you're going to jail." Now it doesn't really matter whether or not...

VAN SUSTEREN: That's not my objection, Roger. Roger, that's not my objection. My objection is how quick everyone was to say the president. If there were threats indeed or even allegations of threats, that should be investigated. But I think we have to be extraordinarily cautious as a lawyer not to say, "the president," because he happens to be the head guy over there.

FRANKEN: And Greta and Roger, let me just interject right here that there are others who deny that that threat was made, including those who were alleged to have made the threat.

VAN SUSTEREN: Congressman...

COSSACK: Well, I...

VAN SUSTEREN: Go ahead, Roger.

COSSACK: I was just going to say, it's clear that obviously these are facts that have to be flushed out, but nevertheless, we have a record right now where somebody's raised their hand and said, "I was threatened with jail." If that's not true, then there's someone -- then that person has committed perjury.

BRADEN: Three someones. This is not a single disgruntled employee making up a story. We have three different individuals, according to the press accounts, who have said this. It raises a very, very serious question. And given the track record of this administration, in some broad sense...

VAN SUSTEREN: Wait a second now. That's where I object, Mark, because when you talk about this administration, I don't mind it if you say that, you know, given the track record of, you know, Joe Smith or Bob Jones or whatever...

BRADEN: Well, let's use an example. We have the president on record now -- federal judges made the determination that the White House and the president violated the privacy act.

VAN SUSTEREN: Well, wait. Actually, we're going to discuss that very issue, because -- Don't worry, we'll get to that particular issue. But when you talk about criminal allegations, you've got to be specific as to whom. BRADEN: And when the president of the United States is on record having lied under oath, it is difficult initially not to be suspicious of his denials. That's human nature.

COSSACK: See, Greta, he just couldn't leave you alone. He had to throw that lying under oath in there just to antagonize you.

DOUGLASS: And I think that's what we see going on because there's been a problem over there, there must be a problem with this issue. Clearly, these are serious allegations that need to be looked at. But what we're seeing is people taking hearsay, wrapping layer on layer on hearsay to make charges saying, well, they lied here, they lied there.

VAN SUSTEREN: David, I don't even mind that. What I'm saying is that everyone's just like throwing around who's responsible.

DOUGLASS: Well, it's clearly serious whoever is responsible, if it's the White House counsel, if it's the president. Clearly, if the charges are true, it's serious at a very high level.

BRADEN: It wasn't us vast right-wing conspiracy folks. We weren't in the White House.

COSSACK: All right, speaking of that, we're going to stop right now, take a break. And because a federal judge said yesterday that President Clinton and top White House officials committed a criminal violation of the privacy act in conjunction with Kathleen Willey's complaints of sexual harassment. Will the president face any charges or penalties when we come back.

(BEGIN Q&A)

Q: On this day in 1870, the 15th Amendment to the U.S. Constitution was ratified. What right did it grant?

A: The 15th Amendment gave black men the right to vote.

(END Q&A)

COSSACK: When Kathleen Willey came forward with the accusation that the president had fondled and groped her, the White House reacted by releasing letters Willey had written to the president after the alleged encounter.

Yesterday, a federal judge called that release a criminal act. The White House says it is not subject to the federal privacy act.

Well, David Douglass, why wouldn't the White House be subject to the federal privacy act?

DOUGLASS: Well, there's been a history of court rulings on this case, and the issue is whether the president's office itself is within that scope. There's a lot of different components of what we generally call the White House, and the issue is where are the records, under which component is part of the executive and which is really part of the office of the president. And that's the issue. And Judge Lambruth's opinion goes a little bit further or quite a bit further than the prior rulings on this issue.

VAN SUSTEREN: Mark, here's the problem I have with the judge's decision. The judge goes through and tracks the history of the -- whether or not the letter should have been turned over or not turned over. I think everyone agrees that perhaps they shouldn't have been turned over. At least that's what the judge says.

But he talks about the EOP in his order, meaning the executive office of the president did this, the executive office of the president did that. But when he gets to this sort of the slap, the allegation of a crime, he suddenly turns the corner and says the president acted willfully or intentionally. He never has the president doing anything before then. That's a departure -- I mean, that's unusual. Judges don't usually make those sort of grandiose leaps of faith.

BRADEN: Yeah, but I think there have been some substantial evidenciary presentations in earlier matters presented to him, and I think he believes this was a -- I believe he believes this was a conspiracy to commit this misdemeanor, that the individuals got together and discussed it.

This letter did not get released without the president's direct expression to release it.

VAN SUSTEREN: You know what? I don't know if -- If I ever graded this, and I've talked for years, I'd give this order maybe a C- minus, because I'll tell you, he has an opportunity to lay out the facts that would state just what you're saying. He doesn't do that. And I think reviewing it in an appellate court would say that you don't establish the facts. You can't sit and say the EOP did this, the EOP did that, the EOP did this, but the president's a criminal.

BRADEN: Well, I think he believes the president wouldn't do this.

COSSACK: Mark, there's another problem. Mark, there's another problem here with this, too, and the problem, I suppose is that when you start charging...

VAN SUSTEREN: Maybe a D.

COSSACK: ... someone with a criminal act, I think you have to act and lay out specifically what that evidence is. Now I understand your argument that, look, you know, there's a long history, as you interpret it, of perhaps bad conspiracies. But I think, you know, when you start saying, "You've committed a criminal act, it requires more than this."

BRADEN: Well, I think it defies logic to believe this letter was not released at the express direction of the president. No one could possibly believe that isn't the case. Of course, it was the case. The president directed -- discussed this in the public record with James Carville. DOUGLASS: It's a political decision that he made to release this letter...

VAN SUSTEREN: But Mark, the problem is you can't guess that. I mean, that's what you assume. The fact is is that when you talk about...

BRADEN: Well, we lawyers call it a speculation.

VAN SUSTEREN: ... the courtroom, it's proof. You can't speculate. It's proof. And the judge, I gave him a C-minus but I'm going down as I look at it a little bit more. I think he's down to a D-minus now, because that's such a huge leap of faith and such an error at least in my view.

COSSACK: Well, now wait a minute, Greta. You know, it's not that huge a leap of faith. I want to stand by your side, but quit dropping the grades. I mean, it isn't such a huge leap of faith to think that the president might have known that those letters were going to be released.

VAN SUSTEREN: Yeah, but you know what? Then you put that in the order, Roger. You say, the president knew or should have known, and that may not necessarily rise to the level of making a criminal accusation. That's the problem. He's had plenty of time, the judge had plenty of time to think about this case and to write a decision and to leave what I think is a gaping hole, and to give that leap so everybody in the media picks up the headlines, the president's accused of a crime, I think, is not a, you know...

BRADEN: Oh, I think the judge said he committed a crime. He wasn't accused.

DOUGLASS: The problem here, Greta, is you're suggesting...

VAN SUSTEREN: Worse.

DOUGLASS: The judge stated a conclusion, and I'm not commenting on the opinion, but the judge stated a conclusion, but that's all anyone knows. And the evidenciary basis for that wasn't laid out. So we don't have the facts. And, of course, it wasn't a criminal proceeding. So the key determination, whether a crime was committed was not critical to the civil determination. It's just...

VAN SUSTEREN: And I think it's probably a lucky thing I don't have to appear before this judge anymore, but that's all the time we have.

COSSACK: Come on, Greta. Give it an F. Go all the way.

VAN SUSTEREN: No, I may go back to practice sometime. We got to go. Thanks to our guests and thank you for joining us. Be sure to tune in next Tuesday and Wednesday for a special two-part interview with Susan Smith's mother. Linda Russell has rarely discussed her daughter or the night Susan drowned young Michael and Alex in John D. Long Lake. COSSACK: Tonight on "LARRY KING LIVE," Boulder County D.A. Alex Hunter will be Larry's guest. And tomorrow on BURDEN OF PROOF, we will have reaction to that interview. We'll see you then.

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