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Burden of Proof

Clinton Strikes a Deal with Independent Counsel; Protesters Sue for Greater Access to Inaugural Parade

Aired January 19, 2001 - 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)

GEORGE W. BUSH, PRESIDENT-ELECT OF THE UNITED STATES: Every inaugural continues the oldest commitments of our country -- to the rule of law and the enduring power of our Constitution.

DICK CHENEY, VICE-PRESIDENT ELECT OF THE UNITED STATES: The country has changed so much since Washington's time. But in the end, everything still comes down to that oath of office and the Constitution where it is written. Everything still comes down to the pledges we make and keep.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: amid parties, parades and pomp, the transfer of power takes place in Washington in less than 24 hours; George W. Bush will be inaugurated as the 43rd president of the United States.

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

We'll focus much of today's program on the inauguration of George W. Bush; but first we turn to breaking news in Washington: On his last full day in office, President Clinton has cut a deal with the office of independent counsel. An agreement will allow Clinton to avoid being indicted by prosecutor Robert Ray.

Now joining us from Capitol Hill is CNN correspondent Bob Franken.

Bob, report and tell us exactly what this deal includes.

BOB FRANKEN, CNN CORRESPONDENT: Well the deal, of course, has to do with an effort by President Clinton to avoid being indicted after he left office. The independent counsel, Bob Ray who succeeded Ken Starr had made it clear he was going to investigate to see that, after Bill Clinton was no longer a sitting president, he deserved to be indicted for offenses that were in connection with the Monica Lewinsky matter and the Paula Jones case. Matters that, of course, so dominated the presidency. The deal, according to a variety of sources close to the investigation is this: President Clinton will admit that he knowingly misled investigators and did so -- and blocked the administration of justice as a result. And the word "knowingly," as we're told, is very important, because that speaks to the standards for perjury and obstruction of justice for which he will not be prosecuted, as we now are told.

But he will make that admission. He will also accept from the Arkansas Bar Association a suspension of five years from practicing law. You will recall that he was under investigation and was facing disbarment proceedings as a result of his testimony in the Paula Jones case. This will be, in effect, compromised -- a five-year suspension from the practice of law in Arkansas. We're also told that there are financial considerations that will affect the president, perhaps coming from the Arkansas Bar Association.

In return, the independent counsel has agreed that he will end his investigation, there will be no indictments; this will not be something that any longer has to be a problem for Bill Clinton. So it will be the admissions by President Clinton and the return of some minor punishments -- minor compared to the possibility that he would have been indicted.

GRETA VAN SUSTEREN, CO-HOST: Bob, you say "knowingly." Now, in order to have perjury, it's got to be material. Did you hear the word "material" in any sort of acknowledgement by the president? -- that's my first question. And second: In what form does the president make this admission? Will it be a written statement? Is he going to say it verbally, is he going to go to court? How is he going to do this?

FRANKEN: First of all, no, the word material did not come up. My assumption is is that they would leave that to somebody who would have to decide whether it was material; but he would acknowledge that he had knowingly done so as opposed to unintentionally doing so.

Secondly, as I understand it, the White House is going to put out a paper statement. The president will not, himself, come out. That will be followed, perhaps, by a spokesman for the White House -- not the president. Then the independent counsel, Bob Ray will come out and make his statement on the same matter which, in effect, will be that the deal is sealed.

COSSACK: All right.

Joining us now by telephone is former Ken Starr colleague; an investigator and lawyer, Sol Wisenberg.

Sol, in terms of what this agreement is, Sol, are you satisfied with it?

SOL WISENBERG, FMR. DEPUTY TO KEN STARR: Well, I'm not sure what it is yet. What Bob just reported is the fullest that I have heard so far.

I think what you have to do is focus on the exact language. If this report is true, it's to focus on the exact language that President Clinton uses in his various statements and admissions to the Arkansas Bar.

And if they track a federal criminal statute -- it doesn't have to be perjury. Greta is obsessed with materiality and perjury. It can be obstruction...

COSSACK: Well, because that's part of the -- that's part of the statute. That's why, you know...

VAN SUSTEREN: You can't...

WISENBERG: Yes, it's not -- it's not part of the obstruction of justice statute.

COSSACK: But it's not obstruction of justice.

WISENBERG: It's not part of obstruction of justice.

So, the thing to look at is whether or not it tracks a federal criminal statute. And if it does, and he's admitting to that, then I certainly would call -- would not call the result unjust.

COSSACK: Well, what if it doesn't track a federal criminal statute, and he just says what Bob Franken has suggested, that is that he --that he knowingly midled (ph) -- mislead investigators and blocked the investigation -- the investigation of justice? I mean, isn't that enough?

WISENBERG: Well, if it -- what Bob described sounds to me like the elements of both criminal contempt and federal obstruction of justice. That actually sounds like it does track two federal criminal statutes.

So that would be -- again, that would be something that would be a reasonable way to end this, something that you could say is not unreasonable or unjust.

VAN SUSTEREN: All right, let's go to Michael Zeldin, who also joins us by -- rather to Lanny Davis, who also joins by telephone. And Lanny Davis, of course, has worked in the White House for President Clinton.

Lanny, what is your reaction to the announcement of this deal between president Clinton and the independent counsel, Robert Ray?

LANNY DAVIS, FMR. WHITE HOUSE SPEC. COUNSEL: Well, first of all, Greta, I don't think you are obsessed with the word "materiality." You happen to be a good lawyer that's trying to look at whether or not a crime's been committed.

And our argument has always been that the testimony in the Paula Jones deposition, even if it was knowingly false, is not material. And how you can have an obstruction for a nonmaterial, false statement in a deposition that subsequently dismissed -- in a case that was subsequently dismissed on summary judgment, only Sol Wisenberg can explain that one.

But the fact...

WISENBERG: I will be happy to explain it to you.

DAVIS: Well, I know -- I know you are disappointed because the last time we were on, Sol, you wanted the guy indicted. And you are trying to mask your disappointment.

But as you can hear, Greta, I am both happy, and also feel justified that there never was a case that could have been brought, that anyone could be convicted on. I think Mr. Ray recognized the reality of that.

And rather than indict a -- an ex-president and then have him be acquitted and put the country through all that, I think Mr. Ray made the right decision.

COSSACK: All right, joining us now is John King from the White House.

John, what is reaction from the white House?

JOHN KING, CNN CORRESPONDENT: Roger, I'm actually here in our studios.

But the reaction from the White House, we have one brief, on-the- record statement from the White House press secretary, Jake Siewert. He says, quote, "the president has long said he wants to put this behind him,"

So that, an on-the-record indication that what we've been told by sources, indeed, will play out in the next hour or so. We are told by those sources the White House will have a statement, in which the president acknowledges that he misled people in his testimony in the Paula Jones deposition, the Paula Jones sexual harassment case.

But the White House wanting to make that distinction clear. Our sources are telling us the president in no way admits any wrongdoing, and believes he did tell the truth in his testimony before the criminal grand jury, when Ken Starr and his deputies questioned the president.

But the president will concede, is that he gave misleading and false testimony in the Paula Jones deposition. That was, of course, the sexual harassment case brought by Ms. Jones, a former state employee in Arkansas, against the president.

And we are told now that the president has agreed the make that statement. Of course, Mr. Ray will announce later today that he is closing his investigation, and that there will be no criminal charges against soon-to-be former president.

VAN SUSTEREN: All right, we're going to take a break. And we will be right back with more of BURDEN OF PROOF. Stay with us.

(COMMERCIAL BREAK)

COSSACK: Welcome back. As you can see, we are not in our usual studio because we're coming to you live from atop the Labor Department building, overlooking the site of tomorrow's historic event. At noon Eastern time, at the Capitol, George W. Bush will raise his right hand and swear to uphold the laws of the United States.

VAN SUSTEREN: The inauguration is more than a symbolic celebration coinciding with a move to the White House. It's an essential measure for a peaceful transition of power, governed by the Constitution, and entrenched in tradition.

Joining us on this eve of history is history professor Allan Lichtman.

COSSACK; Also joining us here is Liz Butler, a protester with Justice Action Movement. And from our Washington Bureau is First Amendment attorney Lucy Dalglish.

Listen, I want to go right to you, Allan. We are going to inaugurate the president on January 20th. But it wasn't always January 20th, was it?

ALLAN J. LICHTMAN, HISTORY PROFESSOR: No, it used to be March 4th, and it was changed in the early 1930s, so Franklin Roosevelt, in 1936, was the first president to be inaugurated January 20th, that was after the so-called interregnums of despair in 1933 where things dragged on for months and months in the midst of the Great Depression. And here is Herbert Hoover, the repudiated president, trying to push Franklin Roosevelt into adopting his policies, and FDR absolutely refusing, and the country just waiting for this new administration to take over.

COSSACK: So they moved it up.

LICHTMAN: They moved it up.

VAN SUSTEREN: This is embodied, in I think the 20th Amendment, if my study is good.

LICHTMAN: Right, the Lame Duck Amendment.

VAN SUSTEREN: Right. Why the 20th? I mean, why not, you know, the 8th? Why not pick sometime mid-December after we've done all our counting and recounts and everything else? Why not move it to a different date, where we might have a little better weather?

LICHTMAN: Well, we would like better weather, but, as you can see from this transition, it takes time to get a new government in place. You've got literally the whole Cabinet to appoint, you have got to get ready to appoint hundreds of other officials, you've got to get your policies set, the country really needs a little bit of time. That's why they moved it up a little bit, but not too far.

In the old days, by the way, you know, Congress didn't even come into session for about a year. VAN SUSTEREN: Did they just pick the 20th? Was there a discussion about the 20th? I mean, why the 20th of January?

LICHTMAN: I'm not sure why...

COSSACK: A couple of guys sitting around.

VAN SUSTEREN: Why not the 20th?

LICHTMAN: Reaching in to a hat and pulling out a date. But, you know, the compromise was, move it up, but still give time for transition.

COSSACK: All right, let's talk about protesters, supposed to be quite a bit of protests at George W. Bush's inauguration, talk to us. Is this place, has inaugurations always been an attraction for protesters?

LICHTMAN: Absolutely not. Remarkably so, you would think it would be our great national ritual. We really haven't had significant protests at any inaugural ceremony since Richard Nixon in 1973, when you had some 25,000 demonstrators fired up over the war. Before that, to get significant demonstrations, you've got to go all the way back to Woodrow Wilson, where you had an incredible demonstration by the suffragists, protesting the fact that women in most states in this country didn't have the right to vote. That was an extraordinary thing for thousands of women to be in Washington vigorously protesting at an inaugural ceremony.

COSSACK: Greta, you were borne at the time, you would have been...

VAN SUSTEREN: Yes. I would have been -- Let's go to one of the protesters. Liz Butler, you are intending to protest, in fact, you went to court to try to battle it out, to get a little more authority from the United States district court judge. First of all, what is it specifically that you are protesting, and what did you fight in court today?

LIZ BUTLER, JUSTICE ACTION MOVEMENT: Well, I'm with one of the multiple protest groups who are going to be in town this weekend called the Justice Action Movement. And we are a combination of folks who are concerned about the president-elect's policies on women's issues, environmental issues, minority rights issues, but then also larger issues such as how much control corporations have on our government currently. So folks are intending to be here, and really show that Bush has been a uniter, but not for the reasons he wants to be, but has been a uniter on how many people actually oppose some of his upcoming policies and his stands on issues that affect people across the country.

COSSACK: All right, now, let's talk about your ability to protest, that's what you are here for. You to get a permit, and then you went to court today, and you made some claims that said, you know, I got my permit but I'm really not getting my chance to get my piece out. What happened in court, and what you were trying to, and what can you do?

BUTLER: Well, there's a couple of things, one is there is a few permits for larger demonstrations, but there are some laws in D.C. that guarantee that if you are not a large crowd that you have a right to express your opinions. But we felt, given the information that we were given from the authorities, that they intended to use broad discretion on trying to exclude protesters from get both to the parade route and being able to express their opinion, and free moment around the city.

That they weren't giving us any information as to what they were really going to stop at the checkpoints, which is historically significant, because we've never had checkpoints at an inauguration before. Everyone has to go through a check point to get to the parade route this time.

COSSACK: What exactly is it that you want to do, how do you want to protest?

BUTLER: Well, folks are going to be protesting a number of ways, some of it includes a lot of visual expression, puppets, signs, really being able to talk about issues and get it out, but get it out, not behind bleachers, as far away as possible, but in the same space that the president-elect and all the policymakers in Washington, D.C. are going to be paying attention to.

VAN SUSTEREN: All right, let's go to our First Amendment attorney, Lucy, who is standing by in our D.C. Bureau.

Lucy, why in the world do you even need a permit to exercise your First Amendment. What is particular about this?

LUCY DALGLISH, FIRST AMENDMENT ATTORNEY: Well, when are you talking about free speech rights and the right to assembly, the government cannot distinguish or discriminate against different groups because of the viewpoint that they express. However, they can come up with reasonable time, place and manner restrictions that are designed to preserve health, safety, welfare, things like that.

So they can say no sirens after 11:00 p.m. They can say, you are not allowed to block a street from a certain period of time. They can say, no big signs with sticks on them that could be used as a weapon.

VAN SUSTEREN: And when you look at these reasonable restrictions; is it appropriate for the court to take into account the fact this is, one, the president of the United States? and, two, that there has been some history in this country of violence directed towards the president and threats for every president? Does that make -- make it appropriate for the court to tighten this, the restrictions?

DALGLISH: I think that any judge is going give great leeway to the D.C. Police and to the Secret Service, when they are trying to protect the president of the United States. In fact, there are some regulations involving the president and some security directives and anti-terrorism laws that apply to guarding the president that don't apply to anyone else. So I think it is going to be very difficult to find a judge that's going to say: We are not going -- he can't protect the president strictly as possible.

COSSACK: I have to find out some information on sort of a personal level here. Liz, does your group intend to use bullhorns?

BUTLER: Yes.

COSSACK: Lucy, what can we do about bullhorns? You know, I'm all in favor of this, and -- protesting is as old as America...

VAN SUSTEREN: Have you protested?

COSSACK: It is the bullhorn, it is the bullhorn, when we are trying to do a show and there is a guy behind us with a bullhorn. Lucy, what can we do, if anything, about the bullhorn?

DALGLISH: Well, I think it is pretty clear the law says that you can't interfere with somebody else's speech. And certainly they can keep the volume down of the bullhorns. Most places would allow you to use a bullhorn under a certain decibel level. And that, in most places, would probably be viewed as a reasonable, time, place or manner restriction.

BUTLER: And the thing to remember about bullhorns this time is we are talking about a parade, we are talking about bands, marching bands. There is going to be a lot of noise coming from the president's inaugural committee.

VAN SUSTEREN: But are you going to seek to disrupt -- and sort of disrupt his exercise and his supporters?

BUTLER: No, that's not at all what the protesters are coming down for.

VAN SUSTEREN: At what point do you want to use this bullhorn?

BUTLER: Bullhorns, I mean, remember, we are talking about a very loud, large parade route that they have sound systems set up for, huge sound systems, and the protesters are out there trying to get their message across, while all this noise is going on.

VAN SUSTEREN: So you are not going to do it while he takes the oath, you were not intending to disrupt that?

BUTLER: No, we...

VAN SUSTEREN: So it is just along the parade route itself?

BUTLER: Yes, and the folks who are coming down are not intending to disrupt the parade. They want to have and exercise their free speech rights to get their messages across. And up until yesterday, the authorities were giving us no information as to whether or not we were going to see a repeat of what we've seen over the last year, where people have been arrested for carrying their cell phones, normal objects that were not illegal were suddenly deemed illegal. VAN SUSTEREN: Let me ask you this, do you have legal teams set up in advance in the event of arrest? I mean, is there the level -- there has been in some demonstrations over the years, the demonstrators have prepared, they have gotten legal advisers...

COSSACK: Are you suggesting that -- perhaps you should be involved.

VAN SUSTEREN: You still haven't answered whether or not you demonstrated, I notice that you ducked that question. So don't be asking me questions. Do you have that set up, are there...

BUTLER: There is no intention of anyone who is coming here to try and engage in civil disobedience on any mass level. However, because we've seen over the last year that the authorities have done everything from arrest 600 people, including journalists, on a permitted march, no it was a legal action, it was April 15th, an industrial complex rally that was here in Washington, D.C. The police were marching with the protesters, blocked them off on a street and arrested 600 people. So, given the actions of the police over the last year, we do have some precautions set up in case they overstep their bounds.

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

COSSACK: Joins again Monday for another edition of BURDEN OF PROOF. We will see you then.

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