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Burden of Proof

Election 2000: Money, Trial Lawyers and Campaign Finance Law

Aired September 15, 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)

REP. JOHN BOEHNER (R), OHIO: What we have here is another example of Al Gore believing that he's above the law. And the bigger problem here is that there's a continuing pattern of improper, unethical and possibly illegal activities by Vice President Gore.

JULIAN EPSTEIN, CHIEF MINORITY COUNSEL, HOUSE JUDICIARY CMTE.: When, if you look at the evidence here, it's clear that the vice president wasn't anyway involved in this.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Just weeks before the presidential election, new fund-raising accusations are leveled against Vice President Gore. Today on BURDEN OF PROOF: money, trial lawyers and campaign finance law.

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

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

The Justice Department is reviewing more claims of campaign fund- raising violations committed by Vice President Al Gore. A task force is now looking into phone calls to trial lawyers soliciting money prior to a presidential veto of tort reform.

Now, in 1995, Gore was reportedly asked to call trial lawyers seeking their financial support for the DNC. Aides to the vice president dismissed the claim, saying Gore never made the calls. But Republican presidential candidate George W. Bush is on the attack.

(BEGIN VIDEO CLIP)

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: There are new revelations about the potential misuse of the White House for fund-raising purposes, new evidence that my opponent may have crossed a serious line: solicitation of campaign contributions linked to a presidential veto. The appearance is really disturbing. Americans are tired of investigations and scandal. and the best way to get rid of them is to elect a new president who will bring a new administration, who will restore honor and dignity to the White House. (END VIDEO CLIP)

COSSACK: Joining us today from Washington is criminal defense attorney Michael Tigar, who's representing five lawyers involved in this matter. Also in Washington, former RNC general counsel Mark Braden; and the chief minority counsel for the House Judiciary Committee, Julian Epstein. And with us from Little Rock, Arkansas, Republican Congressman Asa Hutchinson.

Congressman Hutchinson, we heard George Bush say that perhaps his opponent has crossed the line. What is that line and what are the allegations that the Republicans would make in this -- for these activities?

REP. ASA HUTCHINSON (R), ARKANSAS: Well, I think there's three lines at issue. One is legality, and that's something the Department of Justice will review as to whether there was a quid pro quo, whether there was any illegal conduct. The second one is an ethical line that's issue, as to whether this is, you know, proper conduct, if there was any relationship between the veto that was being requested and the contributions.

The third line is a policy line. Are we electing a commander-in- chief or a fund-raiser-in-chief, and that's definitely an issue in this campaign, as to whether the vice president engaged too far soliciting money from the trial lawyers which led to certain action by the executive branch.

COSSACK: Asa, campaign finances are a very difficult subject for both parties. In fact, one, perhaps people would criticize the Republicans and say, look, they go to tobacco or corporations to get their money. Is this really any different?

HUTCHINSON: Well, I think, first of all, I will agree that there's soft money flowing in politics that raises a number of troubling issues for both parties. What's problematic here is the memo that raises the serious question that there was a direct relationship between the veto of the product liability reform legislation and the $100,000 in contribution that was being solicited. That link is what puts this at a different level.

We don't know whether this is simply a staff aide recommending this, but it was a memo to Don Fowler, a high Democrat official. It was after a solicitation by Al Gore or a meeting of Al Gore with the trial lawyers.

And so this puts it at a different level, and obviously that's why the Department of Justice, at this particular moment, indicates there's going to be preliminary inquiry on it.

COSSACK: Julian Epstein, let's talk about the facts that are at least alleged in this case. The allegations are that, in fact, there was a call made to a Texas lawyer who -- and the call said something like this. And these are -- I'm paraphrasing and these are only allegations: Look, we know you're going to make a donation, we know you're probably going to make a donation after the president vetoes this particular legislation, but we need the money now. It was prior to the 1996 election.

Now, horrible as that sounds, is there really anything wrong with that?

EPSTEIN: Well, if I could -- I just have to correct both you, Roger, and my friend Asa. First of all, no one is suggesting this time that anyone placed the call using those words. This whole matter is about a low-level campaign ad handwriting those -- that type of script for the chairman of the party to use, and the chairman of the party, by all indications, didn't use that.

Secondly, Asa, you indicated that the Justice Department was taking a look at this. Well, the head of the campaign finance task force, which you like to cite, is quoted in today's "Washington Post" as saying that he thinks this is essentially a silly matter.

Roger, this is rally, I think, desperation time for the Republicans. They see that they're losing...

COSSACK: Julian, let me just interrupt you for a -- let me just -- Julian, this is what the allegations are that the phone call was going to say...

EPSTEIN: The allegations...

COSSACK: And I say allegations and no says...

EPSTEIN: The allegations...

COSSACK: ... but I think for the purposes of our audience I should read this. It says -- and this is only an allegation -- "sorry you missed the vice president," states the call sheet. "I know you will give $100,000 when the president vetoes tort reform, but we really need it now. Please send ASAP if possible."

EPSTEIN: Roger, your viewers are not getting an accurate picture from that reading.

COSSACK: OK, tell us why.

EPSTEIN: What it is is this was a low-level campaign ad who wrote a suggested script to the chairman of the Democratic Party, and the chairman of the Democratic Party indicates that he wouldn't use that, he would have been stupid to use that. And this low-level campaign ad was ill-advised to make that suggested script, but it wasn't used, there's no evidence that it was used.

So that's why I say I think this is desperation time for the Republicans who see they're losing the congressional races, they're behind in the presidential race, so they're going to these phony scandals.

There's a front-page article in yesterday's "Roll Call," Roger, which suggests that congressional Republicans are going to be using -- if you can bring your camera in on that,"House GOP Targets Gore," -- congressional Republicans are now using the official processes of the government, the congressional committees, to try to influence the congressional election because they know that they cannot win on the debates about issues on prescription drugs, on HMO reform, on education reform, so they have to try to go back to scandal and...

COSSACK: All right, Julian, let me interrupt you a second because I want to give somebody else a chance to talk.

Mark Braden, he says it's a smoke screen, but at least there are some allegations that perhaps should be investigated. Yes?

MARK BRADEN, FMR. GENERAL COUNSEL, RNC: Well, you just got to love Julian because he loves -- you know, when he can't make an argument on the issue before you, talk about something else, try, you know, divert it on the campaign.

The answer here is, you know, if this was the only wisp of smoke, then we wouldn't believe there's a fire. But this is the chief fund- raiser for the most corrupt presidential fund-raising campaign in history, the 1996 Clinton-Gore campaign. Three times the Department of Justice, the career officials, have recommended to the attorney general that he be investigated for violations of the campaign financing law.

And now we have an internal memo that appears to be talking about an illegal gratuity or bribe and we're supposed to pretend that talking about that there's something inappropriate, suggesting that there might be a crime here? I mean, we have a document, an internal document indicating a potential bribe or illegal gratuity. That's a serious offense: selling vetoes. You know, this vetoed a bill that had wide, bipartisan support. In fact, Lieberman supported this bill.

So the -- you know, it smacks, even if it is, in fact, not a crime -- and I do not know the answer to that -- the whole notion that we would be negotiating a veto of a bill for campaign contributions is repugnant.

COSSACK: Mark...

EPSTEIN: Well, you know, if I could just say, Roger, the president had made it very clear that he was going to veto this bill long before this matter came in question, in large part because this would have shielded defendants like Firestone. Now, Mark may think he wants to shield Firestone from liability, but I think the president and Democrats...

BRADEN: I suggest you talk to Joe Lieberman because that is not...

(CROSSTALK)

COSSACK: Let me interrupt both of you for a second because I think you're both making a fundamental error. Hold on, Julian. I want to -- I think you're both making a fundamental error.

Mike Tigar, you represent the lawyers involved in this. You know, there's an assumption in this... MICHAEL TIGAR, ATTY. FOR TEXAS TRIAL LAWYERS: Well, I do represent -- go ahead.

COSSACK: I was just going to say there seems to be an assumption in this conversation that we've heard that if in fact these events happened, there would be a crime. I'm not so sure that there would be a crime even if, in fact, this phone call was made. What's the law on the subject?

TIGAR: Well, the law is that it is protected by the First Amendment to make campaign contributions to candidates and in connection with issues in which you believe.

But, Roger, I have to take issue with the introduction. I'm a schoolteacher. I teach at a law school. I am not the criminal defense lawyer for trial lawyers. They don't need a criminal defense lawyer because, as today's "Washington Post" illustrates, there's no hint of any crime.

Walter Umphrey, who's the trial lawyer -- let's get his name out here -- Walter Umphrey has supported candidates and causes in which he believes all of his professional life. To suggest that he would ever be involved in any impropriety is a disgrace and there is simply is no evidence for it.

I've represented both Democrats and Republicans. The Supreme Court of the United States has held that, unfortunate though it may be, our political system is driven by money. And these campaign contributions that have been made by these trial lawyers -- and they're supporting Al Gore right now -- are entirely legal, entirely reported, nothing wrong with them. This issue is diversion.

And I will say that the combined wealth of the five trial lawyers who represented Texas is a drop in the ocean compared to Philip Morris's wealth. I don't see Mark Braden getting on here and telling us about Republican Attorney General John Cornyn of Texas soliciting $1,000 donations in a letter that says, please give me this money because I've been bashing trial lawyers.

COSSACK: Mike, we are going to have to take a break. Up next, if political interest groups give money to campaigns every election cycle, what makes these contributions any different? Stay with us.

(BEGIN LEGAL BRIEF)

Boulder, Colorado police have ruled out a connection between the death of JonBenet Ramsey and a 1997 sexual assault of a 14-year-old girl in her own home.

Police began investigating a potential link last May. The teenage victim took classes at the same dance school as JonBenet, and lived just two miles from the Ramsey home.

(END LEGAL BRIEF)

(COMMERCIAL BREAK) (BEGIN VIDEO CLIP)

QUESTION: Are you suggesting that, what you said, as we get closer to the election, more of these things are going to come out? Are you suggesting that this is politics, I mean, that these things are being tossed out there?

JANET RENO, ATTORNEY GENERAL: I just think we should be very careful, and make sure that we react; and I'm going to try to do that based on the evidence and the law.

(END VIDEO CLIP)

COSSACK: New accusations are being made about Vice President Gore's alleged involvement in DNC fund-raising.

These claims focus on the solicitation of trial attorneys as President Clinton pondered vetoing a Republican bill which would have put limits on lawsuits.

Asa, I want to read to you a passage from the Supreme Court in a case called McCormick versus United States; and I think what -- at least what I'm trying to do is highlight the problems here in these kinds of allegations.

What the Supreme Court said was, "To hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents shortly before or after campaign contributions are solicited and received from those benefits, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another without --with his consent.

And what they're saying, here, is, look, there is nothing wrong with taking money from your constituents as long as you don't take it for the -- take that money with the specific intent of doing something that you wouldn't have done but for that money.

How do you ever prove that, Asa?

HUTCHINSON: Well, it's very difficult to prove; and that's what is so unusual.

I mean, you have to be careful whenever you're in office. Whenever I get a contribution, and in the letter it mentions, I hope you'll help on this particular legislation, I send the contribution back, because that's too close of a nexus between the contribution and the desired action.

And, I think, in this case, what is extraordinary is this memo. In which, and yes, I agree with Julian, that this is a -- a -- staff aide, so we don't know how far up the chain it got. Don Fowler indicates he wouldn't use that kind of language, but for someone of the DNC to even suggest that you make a quid pro quo in this, linking the contribution and the action raises serious questions. But it goes beyond that, and in any race in the country, it would be right to make this an issue, not of legality, but who is in control of Al Gore. When you talk about a meeting that generates $4 million in contributions since 1996, you have to wonder who is going to be directing policy for Al Gore and how much of a role does contributions play in the policy that he will carry out. So --

COSSACK: Let me -- let me jump off a second to Mike Tigar. Mike, what I'm suggesting here is, assuming that that memo was correct, and word for word it was even utilized, it is not clear whether or not that would be a crime under present law, is it?

TIGAR: Well, it is clear that it would not be a crime under present law. Not only the McCormick case, that you cite, Roger, which is in 500 U.S. 257 and you quote the language of 272, but the Supreme Court's earlier decision in the Brewster case makes clear that that would not be a crime because it lacks that specificity.

And I'll tell you something, I've represented Senator Kay Bailey Hutchison who is a Republican. I've represented Democrats. I've got a certain amount of experience with this and I'm telling you that this isn't criminal.

The real question, if you want to ask it is, who finances whom in this race? And I'm -- I think that the Democrats are quite willing to have us all look at the bevy of corporate supporters that George Bush wooed in his successful bid to topple John McCain.

COSSACK: Let me ask Mark Braden to respond to that.

BRADEN: I would suggest we look at the prosecutor's manual put out by the Department of Justice, the House Ethics Manual and the Senate Ethics Manuals, which all have examples of what they describe as violations of 18-USC-201, B and C, bribes and illegal gratuities. This particular language could well be proof -- part of a proof of an illegal gratuity or an illegal bribe.

In and of itself it doesn't make a complete case. You are right. But, the question is: What happened in the telephone conversations? We don't know those details. But, most certainly, you could look at this. This is exactly what is talked about in all of those publications when they describe an illegal gratuity.

Geez, give me a contribution as a thank you for an act, an express linkage of the two, and that appears to be what -- it appears to me and I think most reasonable minds to this particular statement.

If this was a Republican fund-raiser at the low level this person would have been fired at the RNC. That's the problem here. It is a culture of abuse that we are concerned about.

COSSACK: Julian, Julian, what -- what -- let me just be more pointed with you. In fact, one could argue, I suppose, that whoever wrote that memo, whether it was used or not, should have been fired, do you agree? EPSTEIN: I think it was very ill-advised. I probably would have fired the person if I were the person making the decision. I think it was very ill-advised, but I think we are missing an important point. Mark, first of all. did not respond to the fact that the chief Justice Department person in charge of looking at this, Robert Conrad, has already said there is essentially -- this is a meaningless accusation.

BRADEN: The only thing I saw in the post was anonymous law source.

EPSTEIN: If I could say -- if I could just say Mark, there is a very long paper trail. If you want to talk about influence, how money buys influence in elections. There is a very long paper trail where Republicans have taken enormous amounts of money from the pharmaceutical industry, then turned around and done their bidding on the prescription drug plan, preventing seniors from getting one.

Secondly, there's a long list of contributions from the insurance industry, and the Republicans in Congress have turned around...

COSSACK: Julian, I want to interrupt you a second...

EPSTEIN: Excuse me, let me finish.

COSSACK: I think pointing the fingers at each side doesn't really help in what I'm trying to talk about here, which is, whether or not, you know, there has been -- there's been allegations made, and whether or not even those allegations are true.

EPSTEIN: You will not hear Mark and you will not hear Asa say that we should have these matters investigated or when tobacco industry gave...

BRADEN: Julian, if you have a memo leaking those, please bring it forward.

EPSTEIN: Because these things are political, you all think that...

COSSACK: Guys, I've got to -- I've got to interrupt to take a break and sell some things. You all understand that, I know.

Up next, more developments in the allegations made against Vice President Gore, and we revisit the laws which govern raising money for political campaigns. Should we change them?

Stay with us.

(BEGIN Q&A)

Q: On Wednesday, motel handyman Cary Stayner pleaded guilty to kidnapping, attempted sexual assault and the murder of a Yosemite Park naturalist.

In exchange for a life sentence, to what did Stayner agree? A: That he would take his story to the grave, sparing the victim's family additional pain. Stayner still faces trial and a possible death penalty in three other murder cases.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Fewer than two months before election day, the Gore campaign is fending off new claims of fund-raising improprieties, as a Justice Department task force probes further. Is it time to look at campaign finance laws.

Asa, let me give you my two cents. My two cents is, is that under the law, even if it turned out that this phone call was made, I do not think, just based on these facts alone, that a conviction could ever be had. Is it time to change the campaign finance laws? and really, as a politician, do you really want to change them?

HUTCHINSON: Well, no question about it. I've been a strong advocate of campaign finance reform. We need to slow down or stop the flow of soft money from both sides of it.

But what we have to watch for, from a criminal and an ethical side, is when there is a linkage between the giving of the contribution and this action will take place in Congress or the executive branch because of it. This is an issue that is not going to go away. I hope that we can change policy. But we also need to look at whether we are going to continue the investigations, we are going to continue the fund-raising abuses, and I think that's why it is a legitimate issue.

COSSACK: Michael Tigar, is this one of those things that lawyers talk about, in terms of tensions, tension between the First Amendment, the ability to give to whom you want, as opposed to the notion of getting too much influence for that money?

TIGAR: So long as money is defined by the Supreme Court as the equivalent of speech, there will be limits on the amount of regulation that can take place.

Personally, I regret that trend in American politics. But, as I said, the combined wealth of trial lawyers and labor unions and others who give to progressive causes is a drop in the ocean compared to the wealth and might of corporate America.

So these folks are just struggling to stay in the game.

COSSACK: Mark Braden, Michael Tigar points out, he says: Look, it is unequal at the best. No matter what, money is free speech. Should we change the laws?

BRADEN: It is not unequal. But leaving aside the factual error in his last remark, the answer is: You cannot speak in America now practically without spending money. The only people that can hear your unamplified voice, is the only people you could speak to if we don't link money and speech. We do need some regulation of it. We have got to be very careful. We don't want to make political prisoners out of politicians.

COSSACK: Julian Epstein, should we change the campaign laws, and if we don't, aren't we always going to be talking about issues like this?

EPSTEIN: Yes, every single Democrat in the Congress, the House and the Senate and the president supports John McCain's campaign finance reform bill. The Republicans want to block it because they like the special interest money they get from the pharmaceutical industry, from the insurance industry, from the polluters, from the gun industry, from the tobacco industry. And if you look very closely, you see large sums of contributions going to these...

COSSACK: But wouldn't that -- isn't that what the Republicans were saying about the Democrats from the trial lawyers?

EPSTEIN: Look, we are happy to have that debate. We are happy to have the debate about it. The amount of money that's gone from the insurance industry, and from the pharmaceutical industry to the Republican congressional candidates and to the Republican congressional committees, and to look at whether or not there's any influence involved in the decisions that they are making on those special interests legislation.

And the fact that neither Mark nor Asa will call for investigations into those type of things shows how...

BRADEN: Julian, come forth with a single document...

HUTCHINSON: Whenever there is some evidence of a linkage, we will call for an investigation.

COSSACK: And guys, I am afraid that's all the time we have for today. Thanks to all of our guests. Thank you for watching.

The trial lawyers are not the only people giving to the Democrats, the entertainment is a big contributor. But as the Gore- Lieberman ticket slams Tinseltown, are the politicos talking from both sides of their mouth? Join me to discuss this on "TALKBACK LIVE" at 3:00 p.m. Eastern time.

And we will be back Monday with another edition of BURDEN OF PROOF. We will see you then.

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