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Burden of Proof

Ronald Reagan's Legal Legacy

Aired February 6, 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, SEPT. 25, 1986)

RONALD WILSON REAGAN, PRESIDENT OF THE UNITED STATES: I've had the honor of nominating Justice Rehnquist to be the next chief justice of the United States and Judge Scalia to be the associate justice of the United States Supreme Court

(END VIDEO CLIP)

(BEGIN VIDEO CLIP, NOV. 11, 1987)

REAGAN: It's not just in fulfillment of my constitutional duty, but with great pride and respect for his many years of public service that I am today announcing my intention to nominate United States Circuit Judge Anthony Kennedy to be an associate justice of the Supreme Court.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: On Ronald Reagan's 90th birthday, we examine the former president's legal legacy, his influence on the U.S. Supreme Court and the federal bench, and his impact on the criminal justice system.

Hello and welcome to BURDEN OF PROOF.

On Feb. 6, 1911 Ronald Wilson Reagan was born in an apartment above a local bank in Tampico, Illinois. He grew up to embrace a number of careers, including sports broadcasting and Hollywood acting. But the history books will recognize him most as the 40th president of the United States.

GRETA VAN SUSTEREN, CO-HOST: After his election in 1980, President Reagan wasted little time before having an impact on the U.S. judicial system. In his first year in office, he appointed the first woman to the U.S. Supreme Court, Justice Sandra Day O'Connor. Justice Antonin Scalia, one of the more conservative voices on the bench, was nominated by Reagan in 1986. And before leaving office, the former president nominated Justice Anthony Kennedy to the Supreme Court.

COSSACK: Joining us from Los Angeles is Douglas Kmiec, former head of the Office of Legal Counsel for the Justice Department. Here in Washington, Clifford Sloan, former associate counsel in the Office of the Independent Counsel; former Deputy Attorney General George Terwilliger; and Eric Sterling, former counsel to the House Judiciary Committee.

VAN SUSTEREN: And joining us in the back row, Josh Melgaard (ph) and Brent Kleinjan (ph).

Let's talk first about Justice Sandra Day O'Connor. And let me go to you, Eric. How significant was it that Justice Sandra Day O'Connor, a woman, was appointed by President Reagan?

ERIC STERLING, FMR. COUNSEL TO HOUSE JUDICIARY COMMITTEE: Well, it's critical in a number of respects. Of course, being the first justice was an important model and statement to women across the nation, to law students, to members of the legal profession, about inclusivity. But, of course, she has been a -- at the center of the court since she has served. And her swing vote has been instrumental in numerous cases.

VAN SUSTEREN: But when she was appointed, as I recall, because I remember those were sort of exciting days, is that she was in the center. So what happened is the court moved to the right, and suddenly she got pushed a little bit more to the center. Am I right or wrong?

STERLING: Certainly the court was a much more to the left court when she arrived, and its complexion has changed.

But, you know, everyone sort of recognizes the maturation of serving as one of the nine with a life appointment. And her role has been the very much the structure of the center of the court.

COSSACK: OK, Doug, we're talking about Sandra Day O'Connor, but let's see how did President Reagan hold up in his appointment of minorities, of women, Hispanics. If one had to go down and list the numbers that he appointed as opposed to, say, President Carter or other presidents, how would he rank?

DOUGLAS KMIEC, FORMER ASSISTANT ATTORNEY GENERAL: Well, one of the things we did, Roger, was not appoint on the basis of race or gender or ethnicity. We largely looked for men and women who were people of integrity, who were learned in the law. And you have to remember that Ronald Reagan brought a very positive focus to the law, that his focus was, was someone going to be faithful to the written text and history of the Constitution? Were they going to be faithful to the structure of the Constitution? You remember his emphasis was federalism, that the federal government didn't have to do it all. And those are the qualities we looked for and it didn't matter what color...

VAN SUSTEREN: Doug, Doug, let me just say one...

KMIEC: ... a person came in or what gender they did.

VAN SUSTEREN: Let me say something to you. I mean, you said that Ronald Reagan, for whom I have an enormous amount of respect -- and I don't want to go after someone on his birthday, of course, but to say that you looked for people not based on race or gender but on integrity and learned in the law, I must tell you there are lots of minorities who met that bill back then just as they meet that bill today. And I think the big question is, how much of a commitment did President Reagan actually have to make the bench diverse to represent everybody?

KMIEC: Well, I think he had the commitment of finding people who would represent the community, Greta. I think Justice O'Connor's appointment is an example of that. Amelia Garza (ph), who was a Bush appointee, I believe, was obviously someone who was also on our target list but just happened to be appointed later in the process. You know, the fact of the matter is is that we didn't hire by quotas, we hired by talent and...

VAN SUSTEREN: And that's where I'll fight with you again a little bit because I think there are talent in the minorities. But anyway...

COSSACK: Let me get in here a second, Greta.

Doug, let me just make it, perhaps, a little more -- contrast you, if you will, or contrast things. If we had to put down in sheer numbers the numbers of minorities that President Reagan appointed to the bench both in the federal and the circuit and the United States Supreme Court, would you agree with me that that number would be rather low?

KMIEC: Well, I would agree with you that the number was probably comparable to prior administrations and was less dramatic than the numbers that we saw in the Clinton administration. Mr. Clinton decided that his basis of appointment was going to be on the basis of race and gender and ethnicity as opposed to other criteria. And so if you emphasize one or the other, you get the mix that you produce. So inherent in your question, Roger, is the answer. But the question I think men and women want answered out in the general public is, are these people capable of applying the law fairly and even-handedly and dispassionately and objectively?

COSSACK: And implicit in your statement, Doug, is that they're not.

KMIEC: And my answer is that people of all color are capable of doing that, and that one of the things that law schools are doing a better job today of doing is recruiting women and minorities and broadening the focus of the profession and nurturing these people through the ranks of the profession so that they're now...

VAN SUSTEREN: And let me...

COSSACK: Let's listen a little bit.

KMIEC: ... so that they're now in more -- they're now greater available than they were in 1990.

VAN SUSTEREN: And, Doug -- and before I beat this dead horse, I think that former Supreme Court Justice Thurgood Marshall, if he were alive today, might really take you to task. And I would join him on that.

But let me go to Cliff.

Cliff, you clerked on the United States Supreme Court for -- not for Justice Sandra Day O'Connor but Justice Stevens. Tell me, what do you think is the impact on the court by President Reagan?

CLIFFORD SLOAN, FMR. ASSOC. COUNSEL, OFFICE OF IND. COUNSEL: Well, ironically, I think it's a very activist court. It's the Rehnquist court. He appointed Rehnquist chief justice. You've got Justice Scalia in there. Now there's a five justice majority for striking down legislation more than has ever been the case in the Supreme Court's history. And it's ironic because it supposedly is in the name of conservative principles and judicial restraint. But this court has struck down far more pieces of legislation -- and very important pieces of legislation, whether it concerns religious freedom, whether it concerns guns near a school -- than any previous court. And it has dusted off doctrines to invalidate legislation passed by the elected representatives that haven't been used in five or six decades.

VAN SUSTEREN: Let me give George a chance before -- George, we're going to get to you next block on your former job.

COSSACK: Yes, don't think that we've forgotten you, George.

VAN SUSTEREN: But don't think we've forgotten George. What do you think about the impact on the court?

GEORGE TERWILLIGER, FMR. DEPUTY ATTORNEY GENERAL: I think the biggest impact on the court has been that President Reagan, and President Bush as well, appointed justices who returned the court to its moorings. The court was starting to venture very far afield, and the court is now back to some of its more traditional function, in fact looking at less cases than they used to. And I think there's some comfort in the consistency of the law that the court has produced.

COSSACK: This is from a man who argued on the side of George Bush in the famous Bush vs. Gore contest and talking about looking at less cases.

VAN SUSTEREN: This is a man who's been winning. I don't quibble with a winner.

(LAUGHTER)

VAN SUSTEREN: But we're going to take a break. When we come back, the Iran-Contra affair and an independent counsel investigation of the Reagan administration. Don't go away.

(BEGIN Q&A)

Q: Why have CBS and the executive producer of the reality series "Survivor" bee sued? A: Former contestant Stacey Stillman claims the show's producer orchestrated her early departure to keep a 72-year-old contestant on the island and appeal to an older audience.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Perhaps one of the most enduring legacies of the Reagan presidency is the Iran-convention affair. The operation involved secret administration policies operated by the national security council staff and investigated by independent counsel Lawrence Walsh.

The Iran operation involved efforts to obtain the release of American hostages through the sale of U.S. weapons to Iran even though such sales were embargoed. The Contra operation involved federal support of paramilitary activities in Nicaragua despite a Congressional prohibition.

George, looking back at Iran-Contra, now that we've had the benefit of a little history, did this -- did this mar the Reagan administration, or was this much ado about nothing?

TERWILLIGER: Well, at the time, I think, it was extremely problematical, both from a political and a substantive point of view. I mean, there were was a lot of lawyers around, a lot of hubbub around it, and a lot of reputations got damaged, but when you look back on it and put it in perspective, I think there's three things that become clear: In general, the purpose was well founded for both things.

VAN SUSTEREN: You mean the motive was...

TERWILLIGER: The motive, yes, the reason these things were being undertaken.

Second, it showed the entire country what the dangers were of the excesses of the independent counsel statute, which I guess Democrats have now been converted to the cause.

And third, the fact of the matter is that at the end of the day, this was much more a policy dispute than a legal dispute, and we criminalized the policy dispute.

VAN SUSTEREN: Except that -- looking back at history, the way -- I mean, now that I've gotten a little bit older and can look back a little bit, is what I thought was interesting about it is that you had the underlying policy dispute, but what really got everyone -- is what oftentimes catches everybody -- and that's after it is exposed, revealed, whatever term you want to use, that suddenly people are madly trying to scramble and cover up -- and then you start testifying...

COSSACK: And lying to Congress.

VAN SUSTEREN: And lying to Congress... COSSACK: That's what they all got convicted for.

VAN SUSTEREN: And therein lies...

TERWILLIGER: Well, not quite, Roger. I mean, if -- one of the things that I found very bothersome about Iran-Contra was that some of the prosecutions for false statements involved false statements that were made in unrecorded interviews with investigators, not in sworn testimony under oath.

COSSACK: Well, look, George, I mean, you and I both know about the criminal lawful. I mean, a lot of things happen that you don't necessarily agree on.

VAN SUSTEREN: I'm with George on that, though. I've got to tell you, when they're not...

COSSACK: I mean you just -- you just -- you just made a statement earlier: You said, you know, they were done with good intentions. When I was a kid, my father used to say that, you know, the road to hell is paved with good intentions. You know, they all meant well, but meanwhile there was there was the Boland Amendment, and they violated the law.

(CROSSTALK)

VAN SUSTEREN: I think he's talking about the quality of the evidence.

Actually, maybe George, you should speak: I let you speak your own mind.

TERWILLIGER: Greta, to have you speaking for me is a great pleasure. but -- no, I think the point is well taken, Roger. I think that you're right, the best intentions in the world don't excuse a violation of law. But whether or not there was substantive violation of law in Iran-Contra surrounding this policy dispute was never really adjudicated: Nobody was ever charged with that crime -- well, actually, Ollie North was charged, and he was acquitted.

COSSACK: His conviction was reversed.

TERWILLIGER: The false statement part, well, that sounds like an acquittal to me, when your conviction gets reversed. But the false statement part of that.

VAN SUSTEREN: But wait a second, George, just because Congress -- I mean, because of the issues of being compelled to testify.

COSSACK: It was one of those -- it was one of those -- it was one of those horrible technicalities of the...

TERWILLIGER: Florida Supreme Court of the Oliver North.

VAN SUSTEREN: Conservatives usually hate those technicalities. TERWILLIGER: But the bottom line is that whether or not there was a violation of law, substantively it was problematic. And the fact that people were hounded, pursued, over alleged false statements, I mean, do we hear an echo here to the complaints from the left and from Democrats about an independent counsel hounding somebody for...

VAN SUSTEREN: Eric, what about the independent counsel statute -- what about the investigation?

STERLING: I think many fair observers recognize that to take the wisdom of prosecutorial balancing out of justice and giving it to independent counsels has been problematic. We haven't had a good experience. I think, however, that the -- that the fear that this statute was created for was justified in the Iran-Contra case.

You can quibble with how the investigation took place, but you had complete rejection of congressional limitations by the executive, which was the basis for this. And to simply say that this is the criminalization of a policy disagreement I think trivializes what was going on there. There was a complete disagreement.

COSSACK: Cliff, what's the legacy here? Is the legacy that we should have learned about the independent counsel statute from this, and that was what we should are taken away are the Reagan investigation, or is the legacy that, in fact, we need an independent counsel, and this was the first time it was shown, because of the excesses of the administration, whatever their intentions were?

SLOAN: Well, I think the most important part of the legacy has to do with the fact that the Reagan administration engaged in a fundamental lack of candor and indeed an outright deception with Congress and with the American public.

VAN SUSTEREN: Some members of -- we can't say the whole administration -- some members of.

SLOAN: No, but I think you have to hold the administration accountable for its members' actions. And I think on three very important public policy issues -- the sale of arms to Iran and the trading of arms for hostages, the provision of aid to Contras at a time when Congress had banned it, and use of proceeds from the Iran arms sales to fund the Contras -- the administration, members of the administration -- different members on different questions -- did not level with the Congress and did not level with the American public.

They paid a price for it -- appropriately -- and the lesson that we should take away from it is that if you have policy disagreements, you level with Congress and the American people -- you don't lie about it, you don't try to hide it.

VAN SUSTEREN: But let me -- here's the thing that...

I don't think anybody can argue with that. That's absolutely true, but you know, the other part of this is that the policy dispute, legal implications, dichotomies, is not so clear, because the last time I checked the Constitution, the president had a lot of authority when it came to executing the foreign policy of the United States. Was there a technical violation because of the Boland Amendment? I mean, people have argued about that forever.

TERWILLIGER: But, you know, this trivializes the real - -the real legacy of Ronald Reagan, particularly in the legal arena: This was a problem, it was exposed, there was an investigation, it was dealt with.

VAN SUSTEREN: And you know what, George, I agree with you, because the one thing is that no matter how much we sort of focus on these little, tiny legal issues, the fact is he won the Cold War, which is a giant thing, of course, but I mean...

COSSACK: Well, OK.

VAN SUSTEREN: But I really can't trivialize his administration.

COSSACK: Before we go any further, before my partner goes from what we're talking about to the Cold War, I'm taking a break.

VAN SUSTEREN: No, I'm just saying that we don't want to overemphasize, you know, some aspects.

COSSACK: All right, let me take a break. Up next -- and then you can yell at me during the break -- up next: tough sentences and other legal legacies of the Reagan administration. Stay with us.

(COMMERCIAL BREAK)

(BEGIN LEGAL BRIEF)

An inmate in a New York maximum-security prison claims to have traded upwards of $8 million in securities since 1998. The inmate, serving a prison sentence for manslaughter, makes the trades by calling his father collect from a pay phone and having him make the trades on the Internet.

(END LEGAL BRIEF)

COSSACK: During the latter part of Ronald Reagan's first term, Congress passed the Sentencing Reform Act, which helped develop uniform prison sentencing guidelines for federal crimes. Now, the guidelines were earmarked for all federal cases. But mostly they zero-in on drug offenders.

Before I talk about the drug offenders and the federal sentencing guidelines, I want to go to Doug Kmiec just for one second to follow up on the Iran-Contra discussion that we just had. Doug, what's the legacy from that? Is it the independent counsel or is it the fact that the Reagan administration will be remembered for the activities of the Iran-Contra?

KMIEC: I don't think the Reagan administration is remembered for Iran-Contra. I think it is the legacy of independent counsel -- that the Independent Counsel Statute was a political weapon. Attorneys general of all parties said that very early on. Ronald Reagan warned us about that.

And the fact of the matter is, is that the Constitution of the United States divides power over foreign affairs between the Congress and the president. And there are going to be inevitable disagreements over what is and is not appropriate policy. The last thing you should do in the world is to criminalize that process. George Terwilliger said that very well.

But, Roger, before you go onto sentencing guidelines, since this is a legacy show, I think that your viewers should know that the thing about Ronald Reagan, in any aspect -- including the legal aspect -- was his optimism, his positive focus and his down-to-earth sensibilities. And when he talked about family, work, federalism or neighborhood, and peace and freedom, he brought that to bear on every aspect of his administration.

So legal policy, with regarding supporting life, legal policy bringing things close to home, in terms of federalism and having control over your government, legal policy that makes work and property ownership an admirable quality: All of those things are the legacy of Ronald Reagan.

(CROSSTALK) KMIEC: Much broader than Iran-Contra, which is a footnote in anybody's book.

VAN SUSTEREN: And you know, Doug, with that I agree with you, because I think that he always made the job seem fun. I think he seemed to enjoy the job, which made it fun to watch for that.

But let me switch to that topic, Eric, of sentencing guidelines, which actually, as much as I admire Ronald Reagan, I thought that was a disaster. Your view on the sentencing guidelines?

COSSACK: And the mandatory minimums that go along, in a sense, with them.

STERLING: The sentencing guidelines, of course, were really very much a product of Teddy Kennedy's efforts over a decade to change how federal sentencing -- from an unstructured to a somewhat structured process. And the...

VAN SUSTEREN: So this isn't a Ronald Reagan creation?

STERLING: No, it took place on his watch. And perhaps you could say that about Iran-Contra. But it was not something that he envisioned and pushed through. The guidelines have distorted the way in which criminal law gets practiced. And it has transformed it. Many attorneys left criminal law as a consequence or -- at that time.

But the mandatory minimums that were enacted in the period the guidelines were being shaped then were like a hand grenade into a process, where, instead of allowing judicial discretion for tiny quantities, relatively speaking -- 100 kilos of marijuana, five grams of crack cocaine, a gram of LSD -- five years up to 40 years could be imposed. These structured then the guidelines that were built above.

COSSACK: And what happened with those guidelines -- just so we can educate our viewers a little bit -- as I understand it, was it almost became a grid. If your -- if a client was convicted or a defendant was convicted of something, you went down a line and you went over across, and the judge said: OK, I have no discretion.

VAN SUSTEREN: That was the problem, Roger. There was absolutely no discretion. No longer could -- I mean, two people appearing before the court who might have very different backgrounds...

COSSACK: Right. Well, you don't have to argue with me on this one. I'm in the same seat with you on this one.

(CROSSTALK)

VAN SUSTEREN: You have 20 seconds before we end.

TERWILLIGER: OK. Before you get too far with this, remember that one of the things that that grid represented was what the Parole Commission used to do. So that function was taken from behind the closed doors of the Parole Commission and put into open court. Judges still have some discretion. The sentencing guidelines reflect a congressional judgment that that discretion ought to be limited and it ought to have a floor.

VAN SUSTEREN: All right.

COSSACK: You admit that they have not been a success.

TERWILLIGER: I think they could use some adjustment. But I don't think the concept is altogether bad.

VAN SUSTEREN: All right, George, you get the last word because that's all the time we have for today. Thanks to our guests. And thank you for watching.

COSSACK: Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.

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