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Burden of Proof

Ethics Committee to Consider Clinton Sanctions Request

Aired May 10, 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, JANUARY 26, 1998)

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I want to say one thing to the American people. I want you to listen to me. I'm going to say this again. I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time, never. These allegations are false.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP, GRAND JURY TESTIMONY, AUGUST 17, 1998)

UNIDENTIFIED PROSECUTOR: There was no sex of any kind, any manner, shape or form with President Clinton. Was that an utterly false statement? Is that correct?

CLINTON: It depends upon what the meaning of the word "is," is.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP, AUGUST 17, 1998)

CLINTON: In a deposition in January, I was asked questions about my relationship with Monica Lewinsky. While my answers were legally accurate, I did not volunteer information.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: His testimony in a sexual harassment lawsuit led to historical legal aftershocks, and President Clinton's problems from the Paula Jones case aren't over. An Arkansas Supreme Court committee could consider disbarring the president.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

In September, 1998, just one month after President Clinton testified before a federal grand jury, the Atlanta-based Southeastern Legal Foundation filed a complaint in Arkansas. Essentially, they argued that the president's deposition testimony in the case of Jones versus Clinton warranted serious legal consequences in the state in which he is licensed to practice law.

GRETA VAN SUSTEREN, CO-HOST: Nearly two years later, that complaint is still before an Arkansas ethics committee. The president's reply documents are sealed. However, the Southeastern Legal Foundation released to the Internet their pleadings in which they claim the president's lawyers argued, quote, "Many categories of responses which are misleading, evasive, non-responsive or frustrating, are nevertheless not legally false."

COSSACK: In its response Monday, the Southeastern Legal Foundation argued, quote, "The president has, by his conduct, separated himself from the rules of law and the rules governing the profession of law. Only disbarment will adequately reflect the consequences which his behavior demands."

VAN SUSTEREN: Joining us today from Atlanta is the president of the Southeastern Legal Foundation, Matthew Glavin. And in Little Rock, Arkansas, we're joined by John DiPippa, who is a law professor at the University of Arkansas at Little Rock.

COSSACK: Joining us here in Washington is Sam Ayoub (ph), former independent counsel Michael Zeldin, and Ramy Ayoub (ph). And in the back, Peter Dimarco (ph), Tammy Stevens (ph) and Daniela Quast (ph).

I want to go right to you, Matthew, and ask you, why did you file this lawsuit? Why did you feel it was necessary for the Southeastern Legal Foundation to bring this request for a disciplinary hearing, which I suppose is a better way to describe it than a lawsuit?

MATTHEW J. GLAVIN, SOUTHEASTERN LEGAL FOUNDATION: Well, Roger, the American Bar Association states that lawyer discipline proceedings are designed to protect the public interests in the integrity of the judicial system. We are after all a public interest law firm, and we felt it was important that we have a judicial system that's free of lawyers who lie under oath and obstruct justice. That's why we filed the suit.

VAN SUSTEREN: Matthew, two things, one is the Southeastern Legal Foundation is a conservative organization, and a long history of a commitment to conservative causes, but, you know, to me, it is a little bit like Linda Tripp. I can't figure out why we are wasting money when she has been punished. You know, it really seems like an unnecessary vindictive action, even though you can do it, even though you have the lawful right to do it, what is your motive for doing it?

GLAVIN: The motive is to protect the public. Greta, this is not about...

VAN SUSTEREN: Do you think he is going to go out and start practicing in court, going to traffic court...

COSSACK: That's not the reason.

GLAVIN: The ABA look at four things, they look at the interest to the client, the interest that the public has in the judicial system, the legal system itself, and indeed the legal profession. And President Clinton violated at least three of those four principles. And we have to protect the legal profession, we have to protect the public's interest in the judicial system and the legal system itself.

VAN SUSTEREN: Michael, do you want to respond?

GLAVIN: The system collapse.

MICHAEL ZELDIN, FORMER INDEPENDENT COUNSEL: It is really, Greta, all about politics. The Southeastern Legal Foundation has been in existence, an Atlanta-based organization, since 1976, this is the first time they have ever intervened in this manner. They mostly spending their time suing to affirm -- against affirmative action policies, the Census, matters of that such.

So it seems to me, when they choose this one event, you have to look at their motivation.

VAN SUSTEREN: Well, they certainly have a right to do it. They have a right to do it.

COSSACK: Wait a minute, you guys. Let me just jump in here a second. I think, first of all, they obviously have a right to do it. And second of all, we can say, perhaps we can perhaps claim this is a conservative organization and they are out to get Clinton. But the facts are the facts.

VAN SUSTEREN: But Roger, wait a second. Hold it my turn.

COSSACK: You have a contempt citation from a federal judge who said that he is misleading, evasive, and filed their own request for disciplinary hearings with the Bar.

VAN SUSTEREN: That's not the point that I'm making. The point I'm making is that what is so central to the system of justice, or practicing law, is the fundamental question that the punishment should fit the crime.

COSSACK: That I agree with you.

VAN SUSTEREN: And I will tell you that the punishment that the president has incurred, as a result of his conduct, is such that I think that this is simply vindictive, and it is the same feeling I have about Linda Tripp. She got her punishment. You have limited resource. There are lawyers out there stealing from clients, Arkansas ethics...

COSSACK: Wait a minute, Linda Tripp -- first of all, the president is a member of the Arkansas State Bar.

VAN SUSTEREN: I don't dispute that.

COSSACK: And the Arkansas State Bar does have an interest in making sure that Arkansas lawyers don't lie.

VAN SUSTEREN: I have not denied that.

COSSACK: And once you open yourself up, you open yourself up -- Let's go over to John DiPippa.

John, you are a professor of law, and you have written extensively on this. Should this complaint be filed? And should there be action taken without asking you at this time what the remedy should be?

JOHN DIPIPPA, LAW PROFESSOR: Well, in my opinion, I think that the, sure, the complaint could be filed. It seems to me a case where discipline is appropriate, and the question ultimately is: What level of discipline? I think reasonable people can differ as to the level of discipline, but I think it is pretty hard to argue that no complaint is valid in this case.

VAN SUSTEREN: Do you think, John, is disciplinary -- do you, in your mind, think that the public needs to be protected from the president? Is the president likely, for instance, even to go out and represent someone in traffic court that we need to make sure that we take his license away so he doesn't do that?

DIPIPPA: No, and I think that really is the crux of the matter. The president is not a harm or a potential harm to future clients. The only question in discipline, it seems to me, is whether or not disciplining the president serves to deter other people, like the president or otherwise, who may be incline to shade the truth in depositions.

VAN SUSTEREN: Do we need that beyond the punishment the president has incurred, which he brought on himself, I concede, but that he has incurred over the past two years, including an impeachment, a Senate trial, and countless even in the opening of the show replayed those...

COSSACK: Aren't you talking about remedy, Greta, what should happen to him, rather whether or not there should be this hearing?

DIPIPPA: Excuse me.

VAN SUSTEREN: Go ahead, John.

DIPIPPA: It seems to me, however, that whether or not the president has been published politically, there's an independent interest that the legal system has to say something, even if it is largely symbolic here. So I think there is a legitimate question about sanctions.

VAN SUSTEREN: Didn't Judge Susan Webber Wright do that enough for you when she made her statement about the president's conduct? Wasn't that enough of a statement, a federal judge?

DIPIPPA: Well, but she also referred it. And I think there are independent interests for the federal judge to protect her own courtroom and the legal profession also to say something about the president's conduct.

VAN SUSTEREN: We are going to take a break. I will get back to everybody. I know I have hogged this, so I will get back. When we come back, if Arkansas' legal ethics committee embarks on sanction proceedings, how could that effect the ongoing independent counsel investigation? Stay with us.

(BEGIN LEGAL BRIEF)

The final police report on the Columbine High School shootings is expected to be released next week on CD-ROM.

"The Rocky Mountain News" says the report reveals at least six students were shot before the 911 call reached police.

Source: "Denver Rocky Mountain News"

(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 onto 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: Next week, an ethics committee in Arkansas could begin considering sanctions against the president of the United States. In a document released by the Southeastern Legal Foundation, they claim Clinton's lawyers state, quote: "What the president did was wrong, the simple moral truth is that his behavior in this matter was wrong. He misled his wife, his friends and our nation about the nature of his relationship with Ms. Lewinsky."

COSSACK: Now the Southeastern Legal Foundation, which filed the complaint, responded this week, quote: "When President Clinton asserts that applicable rules and precedent call for a mere reprimand in his case, he ignores the plain language of the rule in the most obvious, analogous case of presidential misconduct, that of Richard Nixon."

Well, Matthew, is this the most analogous case, the notice, or the -- to compare this to Richard Nixon?

GLAVIN: Well, it certainly is probably -- it probably is the best analogous case because you have a sitting president or a former president that is being disbarred. There's one substantive difference between the Nixon case and the Clinton case, that is that President Nixon was never, ever found guilty of anything by a court, he also -- wait a minute...

VAN SUSTEREN: Wait a second Matthew, it doesn't matter, wait a second...

GLAVIN: He also was never impeached. President Clinton indeed was found guilty of lying under oath and obstruction of justice.

VAN SUSTEREN: Matthew, Matthew, I've got to tell you there's a huge difference, President Nixon was accused of using the Internal Revenue Service against citizens, he was accused of a lot of things, what the president did...

GLAVIN: He was accused, but never found guilty...

VAN SUSTEREN: Very well.

GLAVIN: ... of anything by a sitting court.

VAN SUSTEREN: But at the -- but...

GLAVIN: Here we have a sitting court, with a federal judge

VAN SUSTEREN: But wait a second, neither was the -- Matthew, Matthew...

COSSACK: Neither was the president was ever found guilty of anything.

VAN SUSTEREN: Neither was President Clinton found guilty of anything and you've got the other added aspect that this was lying about an extramarital affair, which is a vastly different than using the powers of the American government against American citizens.

COSSACK: Well, besides that Matthew, the most that has ever been held against him was what Judge Wright was find him guilty, find him liable for civil contempt. He has never been held guilty of any crime.

GLAVIN: No, he was found guilty of lying under oath and obstructing justice.

COSSACK: No, that's simply not true, that's simply not correct. He was cited for civil contempt.

GLAVIN: For lying under oath and obstructing justice.

COSSACK: No, I don't think...

GLAVIN: And truthfulness is not aspirational goal for lawyers.

ZELDIN: The big difference between the Nixon case and this case, of course, is the underlying conduct, as Greta says. Criminal conduct underlying President Nixon, abuse of office. President Clinton, civil deposition, contempt citation. And it just speaks to the Southeastern Legal Foundation's political interests in this matter, not judicial administration, not fairness, integrity of the judicial system. That's what is most problematic about this whole procedure.

VAN SUSTEREN: John, you want to get into it, John?

DIPIPPA: Let me add something else with the Nixon case. The other difference is that President Nixon did not defend that case. He simply defaulted. So there were findings of fact by the disciplinary committee as to all the matters which led to his disbarment, apart from the fact that the substance of the two cases are radically different. The only thing they have in common is that they were both involving presidents.

VAN SUSTEREN: John, when you look at any disciplinary proceeding, you have to look at what has happened to other lawyers similarly situated. You are in Arkansas, you are a law professor, when you look at what the president is accused of doing, how does that compare with discipline other lawyers in Arkansas have gotten?

DIPIPPA: As far as I can tell, Arkansas has never disbarred a lawyer for conduct similar to this, and that's in pattern with most other states. Most states, including Arkansas, disbar lawyers, which is the equivalent of the death penalty. For lawyers who steal from their clients, who are convicted of serious crimes and otherwise. For example, one of the examples in the ABA standards is disbarment is appropriate in cases of murder. There's simply no comparison between those kind of offenses, and what the president is claimed to have done here.

VAN SUSTEREN: Was Mr. Hubbell disbarred because he stole from the Rose Law Firm?

DIPIPPA: Mr. Hubbell was, that's right.

GLAVIN: Wait a minute. What the professor has said is simply not true. Let me read you from a case just a year and a half ago, the Shoshe (ph) case, where the Supreme Court has said that there simply is no place in the law for a man or a woman who cannot or will not tell the truth even when his or her own interests are involved. And the court concluded by saying that the attributes of honesty and candor are absolute prerequisites...

DIPIPPA: No one is doubting...

GLAVIN: This attorney does not meet that standard.

COSSACK: John, go ahead and respond.

DIPIPPA: No one is doubting that honestly is an important trait, but when you...

GLAVIN: No, it is an absolute prerequisite.

DIPIPPA: ... quote things out of context it really is disingenuous. The case that Mr. Glavin refers to involves someone who lost his dental license, practiced dentistry without a license, lied to the dental examiners and the Bar examiners, and was convicted of crimes in the process. Now, there's simply no comparison between that kind of pattern of documented conduct, and the overheated allegations against the president.

GLAVIN: Wait a minute. We have documented conduct, we have findings of fact by a federal judge.

COSSACK: Mike, go ahead.

ZELDIN: I was going to say, David Kendall's brief on behalf of the president, which is sealed, and these proceedings are typically sealed, and again Southeastern has chosen to publish it on the Web site, which speaks to motive. But from what we can gather, the president's conduct per David Kendall fits into a continuum of conduct, which as the professor said, does not rise to the level of disbarment, it is sanctionable conduct, and it may well be appropriate to sanction it, notwithstanding Greta's view that enough is enough, which is an appropriate view, but it does not rise to the level of disbarment.

And just as with the sentencing guidelines, you look for continuity, you look for consistency. so that people fall within mainstream of the process.

COSSACK: We are going to take a break. But I think that is the ultimate question in this, I mean, what kind of remedy would we apply? There is no question in my mind that something should happen, at least in my mind, the question is how much?

Let's take a break. Up next, what is a likely outcome in this case? We'll ask all of our guests when we come back. Stay with us.

(BEGIN Q&A)

Q: Does President Clinton foresee a future a future in Law after he leaves the White House?

A: The president says he doesn't plan to practice law, but values his law license.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: An Arkansas ethics committee is considering a sanctions request against President Clinton. The Southeastern Legal Foundation says the president should be disbarred because of his testimony in the Paula Jones case.

All right, let's see what our guests think is the proper solution here, the proper remedy that should be put against the president, if any.

John, should he be disbarred?

DIPIPPA: No, he shouldn't. That would be wholly punitive and terribly inappropriate to the case. Seems to me that when you cut through everything, the bottom line is in Judge Wright's referral, and that is the president may have made a misrepresentation in his answers to questions about sexual relations and whether he was alone with Monica Lewinsky. Given that those rest on a fairly solid factual footing, I would favor some level of discipline from a reprimand to no more than a short suspension not exceeding 30 days.

COSSACK: All right, should we go over, then, to Matthew?

Matthew, what do you say? GLAVIN: Well, I think the president himself acknowledged that he made misrepresentations to the court. He acknowledged that he did it with the intent to deceive the court. And if the committee looks at previous precedents in the state of Arkansas, and when they look at the ABA guidelines, there is only one solution, and that is disbarment.

VAN SUSTEREN: And I think you stretch it when you say the president made those acknowledgements. I disagree with you. And, frankly, I think that you have a right to file it, I think that the Arkansas ethics committee has a right to pursue it, but I think, in any legal action, you use wisdom and judgment, and I think that the president has been punished sufficiently for his bad conduct, and I think every lawyer in this country has gotten the message: enough is enough, it's bad for our country -- Michael.

COSSACK: What would you do? Would you have any sanction at all?

VAN SUSTEREN: At this point?

COSSACK: Yes.

VAN SUSTEREN: I never would have filed the action.

COSSACK: Well, besides that. It's now filed, and now, Judge Van Susteren, you've got to decide whether or not this man walks away or gets a weak suspension, a reprimand. What happens?

VAN SUSTEREN: I wouldn't have filed it.

COSSACK: So then you mean -- so if you wouldn't filed it, I guess we conclude that there would be no remedy.

VAN SUSTEREN: No, I actually -- in my mind, this is vindictive and I think this is a misuse of the law. And a misuse of the law is, in some ways, more dangerous.

ZELDIN: Therefore, if she was the judge, her answer is she would dismiss it.

VAN SUSTEREN: And Judge Susan Webber Wright issued that order. That was sufficient punishment, that was a sufficient message. I don't know why we have to -- for the same reason, I don't know why Linda Tripp is being prosecuted in Maryland. I think she has been punished sufficiently.

COSSACK: All right.

ZELDIN: And therefore, the logical extension of that is, if you're not going to dismiss it as vindictive, then the only thing that you should do...

COSSACK: OK, it's clearly not vindictive. I mean, it's clearly not -- we may not like the motives here, but it's clearly a proper filing. VAN SUSTEREN: I think -- no, no, vindictive and proper are two different issues, Roger. It's clearly proper in that it's within the rules. The question is, what's the motive behind Southeastern Legal Foundation for filing it?

COSSACK: It almost doesn't matter. They're within the rules.

Go ahead, Michael.

ZELDIN: The answer is that if, as the bar committee ruling on this, you're not going to dismiss it because there's no purpose to be served in discipline, then it would seem to me a letter of reprimand would be the appropriate sanction in this case.

COSSACK: John, does the president of United States have a higher duty than -- who happens to be a lawyer, have a higher duty under the law or under the rules of the bar than, perhaps, another lawyer would?

DIPIPPA: Well, for me, that's the single fact that leads me to go beyond reprimand. It seems to me the president should be an example, and he is in a unique position and therefore he ought to have a higher standard. But going for disbarment, I think, is inappropriate and punitive and amounts to vindictiveness.

VAN SUSTEREN: You know, John, I agree with you that he has a higher duty. I don't dispute that. I mean, the president is the chief of this country. I don't dispute that. My only issue is the issue of punishment. That's the issue. Of course the president should tell the truth. I mean, I don't think anyone denies that.

ZELDIN: The model rules provide that a public official is held to a more strict standard. No one denies that.

VAN SUSTEREN: He -- and I don't dispute that.

ZELDIN: The question is, as you said, is how do you sanction it under the facts of this case, and when is enough enough? And I think you have to come, as a lawyer, to any process and say, enough is enough. The system has been vindicated. And when it has been vindicated, you move on so you don't act punitively, because when you do, you bring further and more serious disrespect to the process.

COSSACK: Matthew, is that a legitimate argument, in your viewpoint, as a defense to the president, to say the president made mistakes but no man has been punished more than he has, enough is enough?

GLAVIN: No, not at all, particularly if the committee is going to follow the ABA guidelines which state quite clearly that contempt is a separate process. A disciplinary process, the rules say, is separate and serves a completely different purpose than contempt.

And I also want to say one final thing about, you know, these comments regarding a vindictive motive. The rules, the law of the state of Arkansas, state that any lawyer who is aware of misconduct by another lawyer, he must, under the law, make that known to the committee.

VAN SUSTEREN: And based on that, there ought to be 300,000 complaints filed...

GLAVIN: And that's the question.

VAN SUSTEREN: ... because I don't think there's anyone in this country that doesn't know that the president got that order from Judge Susan Webber Wright. I think you're hiding behind that, Matthew.

ZELDIN: And since 1976, how many other complaints of this sort has Southeastern filed?

VAN SUSTEREN: And we'll have to get Matthew back to answer that another time.

GLAVIN: Why didn't all the other lawyers in Arkansas also file a complaint?

ZELDIN: No, the question is why...

VAN SUSTEREN: And you get the last question. Hold it Michael, because...

ZELDIN: ... did you as an Atlanta company do that?

VAN SUSTEREN: I'm going to get into a bunch of trouble if we don't leave because that's all the time we have for today.

Thanks to our guests and thank you for watching.

Continue the legal dialogue of this case and log onto CNN.com's chat room. Our guest: law professor John DiPippa will take your questions.

COSSACK: And I will defend you if you get in a pack trouble.

Because tomorrow on BURDEN OF PROOF, an appeals court weighs an important factor in the Elian Gonzalez case. Who speaks for Elian? And can his Miami relatives seek asylum for the child? Join us then for another edition of BURDEN OF PROOF.

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