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Burden of Proof

Gore Fund-Raising Investigation: Reno Will Not Appoint Special Counsel

Aired August 23, 2000 - 12:30 p.m. ET

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

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, Janet Reno lays down the law. The attorney general will not appoint a special counsel to investigate the vice president. Are Al Gore's campaign fund raising woes behind him?

(BEGIN VIDEO CLIP)

JANET RENO, ATTORNEY GENERAL: Because further investigation is not likely to result in a prosecutable case under applicable criminal law and principles of federal prosecution, I have concluded that a special counsel is not warranted.

The transcript reflects neither false statements nor perjury, each of which requires proof of a willfully false statement about a material matter.

(END VIDEO CLIP)

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

COSSACK: Hello, and welcome to BURDEN OF PROOF.

For the third time, Attorney General Janet Reno has deflected calls for an independent probe of Vice President Al Gore. Reno announced this morning she will not appoint a special counsel.

GRETA VAN SUSTEREN, CO-HOST: This time, the request came from the current head of the Justice Department's campaign finance task force. Robert Conrad interviewed the vice president last April, an interview which included questions about Gore's visit to a Buddhist temple.

(BEGIN VIDEO CLIP)

RENO: I've concluded that there is no reasonable possibility that further investigation could develop evidence that would support the filing of charges for making a willful false statement. The task force will of course continue its ongoing investigation into illegal fund-raising activity and will be free to pursue all avenues of investigation wherever they may lead.

(END VIDEO CLIP) COSSACK: Joining us today are Keith Levcenko (ph), former House general counsel Stan Brand, and law professor Ron Rotunda. And in the back, Geronda Perry (ph), Dwayne Rouch (ph), and Alex Amadi (ph).

VAN SUSTEREN: And joining us here also in Washington is CNN justice correspondent Pierre Thomas.

Pierre, first to you, so that it is abundantly clear what investigation is ongoing and which one, at least, is completed. Am I correct that the attorney general, when she spoke this morning, was only talking about the investigation of Vice President Al Gore as it relates to his statements under oath on April 18 to Robert Conrad? Is that all she was putting the end to?

PIERRE THOMAS, CNN CORRESPONDENT: Absolutely, Greta. The Reno statement today was specific to that particular interview with Robert Conrad, the head of the campaign task force. The investigation of general campaign finance abuses continues. So it's conceivable if other allegations are found, that they would pursue them.

VAN SUSTEREN: When you say that the other ones are ongoing, am I correct, and if you could just tell me where we stand on them, am I correct that the task force is still examining whether the trip to the Buddhist temple was in any way improper or illegal as well as the coffee events at the White House? Is that what the investigation is, and where does it stand?

THOMAS: Well, I'm told that the investigation focuses on the illegal donations that were given at the Buddhist fund raising event. Sources are telling CNN that the event itself, in terms of even if the event was a fund raiser at the Buddhist temple, that in and of itself was not a violation of the law. The question was about the donations.

And is there any information that Gore knew that those donations were in fact illegal?

COSSACK: Stan, let's make it even clearer, let's hopefully see if we -- if I can make it clearer.

What the investigation -- what has ceased today is that Janet Reno said she will not appoint someone to look into the issue of whether or not Vice President Gore made false or misleading statements when he was interviewed by Mr. Conrad and asked certain questions about whether he knew they were fund raisers, whether he knew the coffees were fund raisers, whether he knew his -- the activities at the Buddhist temple were a fund raiser, all of which he said, you know, that he didn't know.

And the question, Conrad recommended that that information should be investigated because it's a violation of the law to say a false or misleading statement to an investigator. Correct?

STANLEY BRAND, FORMER HOUSE GENERAL COUNSEL: That's the limit of what occurred today.

COSSACK: And so what's -- but the -- but to go on from that, no one has yet said whether or not the activities at the temple are -- have been OKed or cleared, is that right?

BRAND: That's my understanding.

VAN SUSTEREN: Ron, what do you make of the fact that this announcement was made today by the attorney general? Why not wait and wrap it all up when the whole investigation is all -- is completed, or why not wrap up the other investigation and make your announcement today?

RON ROTUNDA, CATO INSTITUTE: It's very peculiar. Another thing that was particularly interesting is that the news reporter, that unnamed sources at the Justice Department said that Mr. Conrad was alone in requesting an independent counsel, and Janet Reno comes back and says, No, he wasn't alone. So somebody at the Justice Department is, well, lying, not under oath to the press, but there's somebody's telling tales out of school that seem to be false.

It's very confusing what's going on in there.

VAN SUSTEREN: Do you have the sense that this investigation is really aggressively going forward? I mean, my God, this has been dragging on so long. What more do you think still could be done on the investigation, I mean, the underlying issues about whether or not it's illegal in connection with the coffee and the Buddhist temple?

BRAND: Yes, I think this is not just a beaten horse, this is a buried horse. But in Washington, in the era we're in, it goes on.

I'd like to point out one interesting, I think, precedent for what Janet Reno has done in connection with some of the critics who say this was an appropriate matter to be referred for further review. Attorney General Thornburg did the very same thing with Sam Pearce (ph) back in 1989 when he declined to refer the secretary for certain alleged perjurious statements that he made.

He made virtually the same analysis of those statements that Mr. Pearce had made under oath before the Congress, and that is, after all, a legitimate function of the attorney general in deciding whether or not to proceed with this. She made a decision based on the standards that prosecutors use for whether a case should go forward.

COSSACK: Stan, do vice presidents get a break? You know, Greta and I both practiced criminal law, both as -- I was a prosecutor and a defense lawyer and Greta was a defense lawyer.

I must tell you, the notion that what Vice President Gore said in regards to what he believed was going on and what the evidence indicates certainly is such that I would think, short of him being the vice president, that other prosecutors may have said, Well, look, at least an investigation as to whether or not there was as violation may be necessary.

VAN SUSTEREN: Let me (inaudible) for that. I mean, I mean, yet, I mean, they talk about getting the break. In some ways, though, when you are the vice president, you get put under a microscope that's far different than if you're not the vice president, or if you're a candidate.

BRAND: My experience in representing all kinds of people, you know, from Dan Rostenkowski to George Stephanopoulos, is they get -- they have it worse than the rest of my clients do in this sense. The bar and the threshold for getting under investigation is so low. Granted, in this setting, a determination has been made not to go on to the next stage.

But in terms of the threshold for probable cause to commence an investigation, I think, is much lower for any public official today than it is for any other citizen.

COSSACK: And conversely, is it higher, therefore, to go ahead and go further with the investigation, as we've seen them back away today?

BRAND: It depends. I think in some cases it is, in some it isn't. I've been in cases with people who, were they judged by the Al Gore standard, would not be proceeding to trial.

VAN SUSTEREN: Well, you know, this is -- but Stan, there are Justice Department guidelines in terms of any prosecution. You don't bring a case unless you are convinced that you can win it. And when you look at a transcript and you determine that it's not likely you're going to win it, then you are obliged not to go forward. But...

BRAND: But in political cases, the fear is, you'll be second- guessed, and the -- I'm afraid the trend with the Justice Department even is, Let's go to the jury, because we don't want to take the heat...

COSSACK: But we're not talking about an indictment...

BRAND: ... we'll let the jury decide.

COSSACK: ... here. We're just talking about whether or not there's going to be some kind of a counsel that does -- that a counsel that does a further investigation.

VAN SUSTEREN: Well, let me stop both of you, because we got to go to break. We'll be right back, we'll talk more about this. Stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RENO: I don't do things based on politics. I realize that politics will be hurled around my head. I just sit there and duck as it comes and continue to look at the evidence and the law and make the best judgment I can after consultation with as many people as possible who have relevant information.

(END VIDEO CLIP)

VAN SUSTEREN: Welcome back. Pierre, we just heard the attorney general say -- it was actually a tape from earlier today -- that she doesn't make decisions based on politics. How much politicking was done behind the scenes of the Justice Department to try to persuade the attorney general to go one way or the other on this?

THOMAS: Well, Greta, as usual, there was debate within the Justice Department. You had a number of senior attorneys who almost immediately disagreed with Robert Conrad's recommendation. They said that the interview had yielded, quote, "nothing new."

Also, the FBI, of course, weighed in, and they were in support of Mr. Conrad's position. Their basic position all along has been that there is a potential conflict of interest for Reno to resolve these kind of matters. Freeh has maintained that, and I'm told his position did not change.

VAN SUSTEREN: Pierre, when you say that it -- when Robert Conrad wanted the attorney general to appoint a special prosecutor, was he saying that he thought the vice president had -- did -- done something wrong, in violation, either perjury or false statements, or was he simply saying, Attorney General Janet Reno, you can't make this decision because you have an inherent conflict of interest, we should assign this out to a special prosecutor?

THOMAS: Well, sources are telling me it was a bit of both, that he felt that there was some possibility that Gore obviously was making false statements, but also that the issue of conflict of interest was there for the department to resolve these kinds of issues, because again Reno was appointed by the Clinton administration.

COSSACK: Ron, one of the things we talk about on this show is the tension between the political nature of the attorney general, because she is appointed by the president, and the independence of the attorney general, because (inaudible) the chief law enforcement officer should be independent.

Is this one of those perfect examples of the tension between those two and how they don't get resolved?

ROTUNDA: Oh, I think that's right. She serves at the pleasure of the president. We've had -- you know, I...

VAN SUSTEREN: (inaudible), but Ron, that's just it. The president, she does not serve as the pleasure of the vice president. And I got to tell you, it is very doubtful that she would return to become attorney general in a Gore administration, if elected. She's a woman who has Parkinson's, and it's...

(CROSSTALK)

COSSACK: ... the point we're trying to talk about is that the notion of that office and the problems, the inherent problems.

ROTUNDA: Yes, I mean, President Clinton is, I guess, is, what, fair to say, is a Gore supporter and vice versa. The problem is -- see, I don't know what all the evidence that Mr. Conrad saw or Mr. LaBella before him or Louis Freeh, the Clinton appointee who heads the FBI.

It is interesting that the two career people, plus the FBI director appointed by the president, want to go forward with further investigation. And...

(CROSSTALK)

VAN SUSTEREN: ... but that -- wait a second. You can't even say that, Ron, because we don't know. It may appear contest (ph). Pierre, we've got the two career people and the FBI that say the investigation should be assigned out. We don't even know for sure if it means it should go forward, but whether it should be assigned out for someone else to investigate because of suggestions of conflicts.

What about on the other side? How many people are lined up on the other side?

THOMAS: Well, one good thing to point out is that there are a mixture of officials who get involved in this particular decision. You would have the career Justice Department attorneys who are part of public integrity in the criminal division who would get a say-so in this. But there are also...

VAN SUSTEREN: But are they on both sides? I mean, that's what I'm trying to get, the split on this.

THOMAS: Right, but you would also have officials who are appointed. Now, what I'm told in -- they try to limit the kind of information you get about this, but that the -- you get very (inaudible) view from each camp, each one of those camps, on what Reno should do.

COSSACK: All right, now...

(CROSSTALK)

COSSACK: ... (inaudible) -- but I want to go back and let Ron finish this answer, because the issue here -- I'm trying to get to is the tension between the appointed and the independent. I mean, the independents versus the political.

BRAND: There isn't any. The court of appeals threw out Fiske (ph) because they said the attorney general couldn't appoint an independent counsel that was truly independent and put Ken Starr in as a judicially appointed one.

(CROSSTALK)

VAN SUSTEREN: And the (inaudible)...

ROTUNDA: Fact is, she's ultimately a political officer, and the buck stops with her. She has to make these decisions.

VAN SUSTEREN: So she appoints somebody else, though she -- now we've got an employee for her, who would be -- if she appoints somebody else, so Ron, that doesn't defeat any sort of suggestion of conflict. I mean, it -- whether she makes a decision or whether she goes out and hires someone else to make it...

ROTUNDA: Oh, I think the point of appointing the -- this is a sta -- this is a regulatory independent counsel, it's not a statutory one, it's not setting up a new process. Its attorneys working within the DOJ. That's all Mr. Conrad wanted. The point of doing that is to -- to start up a grand jury to do a thorough investigation.

It -- it doesn't eliminate the claim of those who say there should be an outside statutory independent counsel. We don't have a statutory independent counsel. She won't even appoint a regulatory one.

And I'd say -- I don't know all the evidence, I'm just impressed that the people she keeps appointing to heavy investigations, keeps coming up -- keep coming up with the same alternative, and I think it's easier to find moon rock in Washington, D.C., than it is to find enough evidence that would convince her to appoint a regulatory...

(CROSSTALK)

VAN SUSTEREN: ... she's appointed more -- yes, she's...

(CROSSTALK)

VAN SUSTEREN: ... gone to the...

ROTUNDA: Under the first term of Clinton, not the second.

VAN SUSTEREN: Are you suggesting, then, that this is a political decision by Attorney General Janet Reno, or this an independent one based on the facts as the law as she understands it?

ROTUNDA: I -- see, I don't know the evidence, because we're not privy to it.

BRAND: You do, you do, because you have the interview. Gore released an unexpurgated copy of his interview.

COSSACK: ... that interview is not great, I mean...

(CROSSTALK)

VAN SUSTEREN: No, no, but that's about...

(CROSSTALK)

VAN SUSTEREN: ... what she bases her opinion...

ROTUNDA: ... I don't have the evidence...

VAN SUSTEREN: ... that's the point.

ROTUNDA: ... that says it's false, the evidence that Mr. Conrad has that makes him believe these statements are false. There are certainly inconsistencies in his interview, and there's one point where he refers to it as a fund raiser...

(CROSSTALK)

VAN SUSTEREN: ... well, wait a second, look, it's not just...

ROTUNDA: ... and Gore says, No, no, you don't use that term...

VAN SUSTEREN: ... inconsistencies, though, Ron. The statute says material, and that's specifically...

COSSACK: No, but these are material. I mean, this is material stuff, that's what they're investigating.

VAN SUSTEREN: That's not true, Roger. And in fact, if you listen to what the attorney general said, that she actually examined it for materiality. That's what she said today.

COSSACK: Well, I'm telling you...

VAN SUSTEREN: And she determined there was not (inaudible)...

COSSACK: ... that it can't get any more material. They're investigating fund raising...

VAN SUSTEREN: Like what?

COSSACK: ... they're asking him about fund raising, and they're asking him whether or not he knew these were fund raisers, and he said, No, I don't. The question is, did he? How much more material can he get than that?

VAN SUSTEREN: Because according to what the attorney general said this morning...

COSSACK: Well, but that's what we're talking about...

VAN SUSTEREN: ... (inaudible)...

COSSACK: ... whether or not the attorney general is -- it's a political or legal.

VAN SUSTEREN: What she said this morning is that the difference in opinion was simply on a question of labels, how you label these things, not whether there was any attempt to be deceitful on a material issue in the underlying investigation. And that's what the law requires her to do.

COSSACK: I'm taking a break. Up next, the Justice Department task force is free to continue its probe. Will the November election have any impact on this case? Stay with us.

(COMMERCIAL BREAK)

COSSACK: This morning, U.S. Attorney General Janet Reno said Robert Conrad's work on the campaign finance task force will continue despite her refusal to appoint a special counsel at this time.

But Reno's tenure at the Justice Department could soon end, as the Clinton administration prepares to pack its bags.

Stan Brand, I think what we've talked about and what we've probably beaten to death here is this problem of what do you do -- who investigates the investigator? What do you do? I mean, Janet Reno being a person of good will and I give you that, and yet there are criticisms, and yet we seen -- we saw that the independent counsel law didn't seem to work.

How do we find someone to do these investigations who's neutral?

BRAND: Well, I think we're going back to where we were before the Watergate scandal upset the applecart, and that is, some degree of deference and reliance on the attorney general, at least until there's an indication that she's made a decision either corruptly or completely out of sorts with this -- with her responsibility.

And until that happens, I think it is where it's supposed to be, that's the U.S. Department of Justice, with career people who bring these cases on a day in and day out basis, and understand what are good cases and what are not good cases...

COSSACK: And recognize the fact that there will always be people who will say, This is awful, and the other people will say, What a great independent career....

BRAND: Absolutely. And the notion to me, as a defense lawyer, that the people in the Justice Department are afraid to indict public officials is ludicrous. If you look at the history of the post- Watergate era, prosecutions, they're up remarkably. The people in the Justice Department weren't afraid to indict Dan Rostenkowski, they weren't afraid to indict five sitting cabinet -- investigate and indict two sitting cabinet members.

These are cases that routinely prosecutors are willing to make if they think they're good cases.

VAN SUSTEREN: And I think the point was well taken this morning, the attorney general, when she was making her statement, pointed out that oftentimes lawyers disagree. Even the Supreme Court has five- four decisions repeatedly to show that people will examine it in different ways. But it's her job to ultimately, you know, say yea or nay.

But Stan, let me ask you a question about (inaudible). Ron and I were sort of debating about whether or not there is this conflict of interest issue as it runs from the attorney general to the vice president. I can see that there's the potential to the president, since she works for the president.

Who's right, who's wrong on this conflict issue? Does she work for the vice president? Is there a conflict there?

BRAND: Well, I think, you know, to the extent that the vice president is in the chain of command, there is a possibility of conflict of interest.

VAN SUSTEREN: How about White House counsel, then? How far down the chain do we go?

BRAND: Well, that's a good question. Again, my own view is, we're back to where we need to be and where the Supreme Court has said we have to be, which is, it is the attorney general's responsibility to make these judgments. If she makes them corruptly, there's remedies for that. If she makes them wrongly, there's political remedies for that.

But we're not going to trip ourselves into an independent counsel every time someone screams, Crime!

VAN SUSTEREN: Ron, how far down the chain of command should it go? You think the conflict of interest (inaudible) if the attorney general has an issue as it relates to the vice president, you think that that's an automatic conflict (inaudible)?

ROTUNDA: I think the problem isn't conflict. If you remember, Archibald Cox was a regulatory independent counsel, Leon Jaworksi's successor. They were done without benefit of statute. I think the Department of Justice -- if she gave the go-ahead to the investigators, I'm confident they would investigate, and I would trust their...

VAN SUSTEREN: But is -- but...

ROTUNDA: ... trust their decision. So it's...

VAN SUSTEREN: Strictly on...

ROTUNDA: ... not a conflict, just a question of, Are you going to investigate further and do the evidence? Our...

VAN SUSTEREN: But can, but can she make that decision, or does she send that out for somebody else? Because therein lies the issue of conflict, is who makes that decision, the attorney general or somebody else?

ROTUNDA: I think under the regulation, under the statute, she makes the decision whether it should go out. And I think if she does it, she ought to do it because it demands further investigation.

You know, the -- Spiro Agnew was investigated, indicted, and ultimately plead nolo contendere to a regulatory, actually just to the U.S. attorney in Maryland. There wasn't a special statutory counsel. So I don't -- I think conflict of interest is off the point. I think it's the question of whether Mr. Conrad, Mr. LaBella, Louis -- particularly those two think there's enough there to investigate. That's the real thing we should try to find out.

VAN SUSTEREN: And that's unfortunately all the time we have today. Thanks to our guests, and thank you for watching.

Tonight on CNN's "NEWSSTAND," minors on death row. Call in and e-mail criminal defense attorney Roy Black and a prosecutor in a capital case against a minor in South Carolina. That's at 10:00 p.m. Eastern time.

COSSACK: And today on "TALKBACK LIVE," who will be the sole "Survivor"? A summer TV hit has Americans going "Survivor"-crazy. But why do we care? I care. That's at 3:00 p.m. Eastern time, noon Pacific.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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