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THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
GRETA VAN SUSTEREN, CO-HOST: A grand jury in New York is moving forward with an investigation of last minute pardons granted by former President Clinton. Will it lead to criminal charges?
Today on BURDEN OF PROOF, the brother of the former president may face the grand jury to discuss his role in the pardon controversy. And, will Denise Rich, ex-wife of pardoned fugitive Marc Rich, testify?
ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.
VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.
Three months after President Clinton left the White House, a grand jury in New York continues to probe the actions of his last days in the Oval Office. According to "TIME" magazine, Denise Rich, the ex-wife of pardon recipient Marc Rich, has cut a deal for immunity to testify before the grand jury.
ROGER COSSACK, CO-HOST: The immunity arrangement means that prosecutors can get information from Denise Rich about contributions to the Democratic Party and the Clinton Library Foundation without risk to her. The Rich case and other controversies under the pardon umbrella have been handed over to the U.S. attorney's office in southern New York, headed by Mary Jo White.
VAN SUSTEREN: Joining us today from our New York bureau is former assistant United States attorney Martin Auerbach. Here in Washington, Rebecca Peralt (ph), "TIME" magazine reporter Viveca Novak and Amy Sabrin, former attorney for Clinton Deputy White House Chief of Staff Harold Ickes.
COSSACK: In the back, Joseph Perry (ph), Victoria Real (ph) and Elise Bin Amino (ph).
I want to go right to you, Viveca. Tell me about what the, the immunity deal that is allegedly going to be struck between Denise Rich and the government. How did this happen and what is each side looking for?
VIVECA NOVAK, "TIME": Well, we know that they've been working on it for a few weeks and we know, we certainly know what the prosecutors are looking for, and Denise Rich obviously is looking for protection from prosecutors who may be combing through her financial records and everything else.
Prosecutors will want to talk to her about her contributions, as you mentioned, to the party, to the Clinton Library, to Hillary Clinton and to other Democratic candidates, perhaps. They want to talk to her about how she was approached to go to bat for her ex- husband, from whom she had a bitter divorce. And they want to talk to her about her conversations with President Clinton.
VAN SUSTEREN: Amy, when the viewers hear the term immunity, a lot of people hear immunity and think it's code for I did something wrong, I need protection. Defense lawyers, though, seek immunity in a whole host of instances. Why would a defense lawyer seek immunity for someone who didn't do something wrong?
AMY SABRIN, FORMER ATTORNEY FOR HAROLD ICKES: Well, the prosecutor may tell you that your client was, is within the ambit still of the investigation, calling them a subject, although not a target of the investigation. You just want to make sure that you're protected, that nothing bad can ultimately happen if something should go wrong. Some other witness may be lying and accuse your client falsely of something even though your client didn't do anything wrong. So the better part of discretion is to assert the Fifth if you think you have any exposure whatsoever.
COSSACK: Martin, the notion that someone gets subpoenaed before a grand jury, is there an implication in that and so that that person who gets subpoenaed would start thinking about I'd better get some protection for myself by using the Fifth Amendment or is this just something that the U.S. attorney does and gives out immunity?
MARTIN AUERBACH, FORMER FEDERAL PROSECUTOR: No. The government doesn't just give out immunity. But all sorts of people seek that kind of protection when they are called before the grand jury. Sometimes there are people who are called who are clearly in nothing more than a witness role and the government will tell you that your client is nothing more than a witness. If your client is a subject it is certainly sensible and effective to want to get that kind of protection.
In this investigation, I think they're interested in talking to not only people who they think may have done something wrong, but people who they think have done nothing wrong.
VAN SUSTEREN: Martin, OK, so we have, the potential categories are witness, subject and tonight.
VAN SUSTEREN: Does a prosecutor ever get immunity for a witness as opposed to a subject and target?
AUERBACH: Well, it's unusual, although a lawyer in self-defense may feel it's important to get his client that kind of protection and sometimes protection is given in which there is a specific acknowledgement that the client probably has not done anything wrong but that in an excess of caution is being given protection. VAN SUSTEREN: But, of course, then it weakness it, doesn't it, Martin, because I've got to tell you that if I have a code, if I have a trial and there is a witness with immunity, I'm going to say you have basically immunity to lie. It weakness your case tremendously.
AUERBACH: You don't want to give out immunity if you don't have to and you rarely give out immunity to people who are simply witnesses. One of the things you have to remember is that in an investigation like this, there is a wide range of possible conduct that people may have engaged in that violate various laws, and I'm not saying that anybody has violated any law, but that may not rise to the level that we would all think of as the principal focus of this investigation. But all sorts of things happen and you want to be sure if you're representing a client in a high profile situation like this that they're not exposed before they start talking.
COSSACK: So these, Amy, if Denise Rich's lawyer came to the United States attorney and said, you know, I understand that you have a right to subpoena my client but my client has a right to say that she's not going to testify, I suppose that if the United States attorney could, one of the things she could say is, you know, you don't have anything to worry about because we're not going to indict your client. I take it that that would be the other side of asking for immunity.
SABRIN: That's true, but you don't have to take the prosecutor at his or her word if you feel that your client still may have some exposure. Now, you can still refuse to testify and you can litigate about it in court, about whether there's a genuine fear of prosecution that warrants the assertion of the right not to testify.
COSSACK: I guess what I'm suggesting is is that probably from what we can glean from the facts didn't happen here, that the U.S. attorney didn't say to Denise Rich's -- we don't know, but didn't say to Denise Rich's attorney don't worry, we're not going to prosecute you, because if so...
VAN SUSTEREN: Well, who would take that word anyway?
COSSACK: Well, suppose...
VAN SUSTEREN: I wouldn't take that word from a prosecutor, don't worry.
COSSACK: Well, suppose they wrote a letter and they said Dear Ms. Van Susteren, just to let you know that on behalf of the United States attorney's office, we're not going to prosecute your attorney, signing it U.S. attorney Joe Blow?
VAN SUSTEREN: And I have to tell you, I think it would be almost laughable. I mean I wouldn't take that -- Amy, would you ever take a letter like that?
SABRIN: Not in a case like this, no.
VAN SUSTEREN: Viveca, what do you think they're looking for from Denise? What do you think the list of questions are?
NOVAK: I think the list of questions are who approached you to go to bat for Marc Rich, for your ex-husband, why did you do it, who did you talk to about it, why did you make these contributions to the Clinton Library, was it really your own money?
VAN SUSTEREN: And if she says basically look, my husband and I had a horrible divorce, very unpleasant, but he is the mother to my children. I gave the money because I happen to be a very rich woman and that's why I did it, they're not going to get very much?
VAN SUSTEREN: If that's what it is. I don't know that it is.
NOVAK: That may be and it may be that this case goes nowhere. But what they hope to get, at least, is to fill in the blanks. They hope to be able to get the story, whatever the story is, whether it's completely innocent or not.
COSSACK: Martin, the fact that there's a grand jury and witnesses are getting subpoenaed and immunity is being given, is that reason to believe that the United States attorney believes that there has been a crime and that they are seeking to find that crime? I mean is this sort of, does this become a self-fulfilling prophecy?
AUERBACH: I don't think so. Remember, this is the way the United States attorney's office does business. The way it conducts investigations is by turning to a grand jury, using the grand jury's subpoena power to bring people and documents before it so that it can assess the evidence with the grand jury. I don't think you can conclude that they assume that they will find a crime at the end of the day. This is how they go about trying to find out if there is one.
VAN SUSTEREN: And I think, Roger, also, this is such a high profile case, this is so important that if I were the U.S. attorney assigned to it, I'd look under every single rock so that when the, you know, at the end of the day I could say when I didn't indict or did indict, this is why, because this, remember, this is a Clinton appointee who is doing it.
COSSACK: The only reason I'm smiling is because I want to ask you a question. In your history of being a defense lawyer and what I know, how many grand juries do you know that ended up didn't indicting for something -- not indicting for something?
VAN SUSTEREN: Well, I'm not going to, I'll take the Fifth on that one.
COSSACK: All right, let's take a break.
Up next, was the former president's brother involved in attempts to garner pardons? Roger Clinton has been subpoenaed to testify this Friday. Don't go away.
(BEGIN LEGAL BRIEF)
A Michigan State commission filed new charges Monday against lawyer Geoffrey Fieger for a rant against three state appeals court judges on his radio program in 1999. Fieger allegedly violated Michigan's code of professional conduct for lawyers. His law license could be suspended or revoked.
(END LEGAL BRIEF)
COSSACK: According to "TIME" magazine, a federal grand jury in New York has subpoenaed Roger Clinton, the former president's brother. Now, prosecutors would like to question the younger Clinton about his role in an alleged swindle involving an attempt to secure a pardon from his brother. "TIME" reports that Roger Clinton's attorney is asking for more time to decide whether he should testify or plead the Fifth. But the grand jury is reportedly moving at a breakneck speed.
Viveca, Roger Clinton, what do they want to talk to him about?
NOVAK: Well, he, as we know, he tried to get pardons for some friends in Arkansas mostly, and he was unsuccessful doing that and he claims he took no money for them. But there's a couple of people in Texas who say that they were swindled, that they gave more than $200,000 to a group of guys including Roger Clinton, although they never personally had a meeting with Roger Clinton, and Roger Clinton was supposed to try to get a pardon for one of their family members and they say that he did no work for the money.
Roger Clinton denies this and -- but they have called several people involved with this allegation before the grand jury already and now they want to talk to him.
COSSACK: But that seems like it's an investigation not into something that's about illegal pardons. That seems like it's an investigation into Roger Clinton just doing a swindle. I mean doesn't that seem like a little outside what the grand jury should be looking at?
NOVAK: It's more of a fraud thing but, you know, I think this is sort of like one of those independent counsel investigations, the ambit is a little bit broader than it might be otherwise.
COSSACK: Oh, the old independent counsel investigations.
VAN SUSTEREN: Amy, taking the Fifth Amendment for a grand jury is, let's play this out. If he takes the Fifth Amendment, what are the options for the prosecution at that point and the defense?
SABRIN: Well, you, if it's use immunity, as we think Denise Rich got, you can't use...
VAN SUSTEREN: That's assuming he takes the Fifth and they give him immunity?
SABRIN: They give him, he takes the Fifth, you have to go get a court order to give him immunity. Then the witness is compelled to testify, usually in the grand jury. It could be an interview process. Use immunity means that the statement given and any information, evidence derived directly or indirectly from the statement couldn't be used in any subsequent prosecution. Theoretically the government could still prosecute the individual if they can prove their case by wholly independent evidence, which is a very high burden to make, and the government failed to make it in the Oliver North case, in the Webb Hubbell case. So it's pretty, it's a pretty good piece of protection.
VAN SUSTEREN: Even though it's a good piece of protection, you talked about use immunity. There's something called transactional immunity...
VAN SUSTEREN: ... which is far better to get than use immunity. Explain transactional immunity.
SABRIN: Transactional immunity is a free pass for the underlying conduct. It's very rare to get in most jurisdictions, although I understand in New York it might be easier than other places.
VAN SUSTEREN: So you go and you spill your guts on everything. If they ask you about any sort of pardons, if you say oh, and I robbed a bank last week, I forgot to tell you about that, is that included if you have transactional immunity?
SABRIN: I think it would be, yes.
COSSACK: This is sort of the confessional immunity.
COSSACK: Whatever you've done or might have even thought of you talk about if you get transactional immunity.
SABRIN: Right. Except, of course, in both cases, perjury in the course of giving your statement.
COSSACK: OK. Martin, the notion, Roger Clinton would be in a little different position now than Denise Rich would, because Denise Rich clearly is someone they're looking at as a witness. Roger Clinton could conceivably be viewed as a suspect in this case, at least allegedly be viewed as a suspect. So the notion of getting immunity or even getting called before a grand jury seems a little questionable.
AUERBACH: Well, I think there are two dimensions with respect to Roger. Certainly there have been these allegations that he defrauded people and I don't know anything about that other than what I've read in the papers. But there's another dimension to this investigation which I think is important. You know, a lot of people were very surprised at some of the people who didn't get pardons from the president in the last days. Remember that somebody like Michael Milken had the support of Rudy Giuliani, the man who had prosecuted him, and he did not get a pardon.
One of the questions you ask when you look at a very surprising pardon like Marc Rich's is why other people didn't get pardons. Why didn't the people that Roger Clinton was lobbying for get their pardons? Because if you want to understand why someone did, it sometimes helps to understand why some people did not.
VAN SUSTEREN: Amy, how, in light of what Martin just said, I mean how do you balance that against the fact that no matter whether you like the president or you don't like the president, under the constitution he has the right to do, to pardon whoever he wants? I mean what, what's the potential crime?
SABRIN: Well, the potential crime is bribery. I think even if it's an official act, if there were some quid pro quo, some money changing hands specifically tied to the granting of a pardon even though...
VAN SUSTEREN: But that would have to be to President Clinton.
SABRIN: Or, no, to a third party beneficiary that he designates under the bribery statute.
VAN SUSTEREN: So, but he'd have to actually get something out of it or he'd have to be involved in the process somehow? I mean if he's basically taken by, you know, by strangers, relatives, friends or whatever, but he has no knowledge, then he's not involved in bribery?
SABRIN: That would be correct, yes.
COSSACK: Martin, I want to go back to this, to Roger Clinton again, because the notion of him even getting subpoenaed if he's a suspect, it would be highly unusual because, you know, what would the government expect to get from that?
AUERBACH: Well, you know, if somebody is a target, the Justice Department manual has very specific guidelines as to whether those people should be subpoenaed to the grand jury or not, and it disfavors subpoenaing them to the grand jury. If you're simply a subject, which means you're somewhere between a witnesses and a target, it's not unusual to be subpoenaed to the grand jury and obviously the dance that begins is to clarify which end of that spectrum, closer to witness or closer to target, your client is standing at.
VAN SUSTEREN: Viveca, do we know who's been subpoenaed in the last weeks? Do we have any clue? I mean this is supposed to be secret, but is it being reported besides Roger Clinton, who's supposed to be due up Friday, and Denise Rich getting immunity? Who else has been in the lineup?
NOVAK: Beth Dozoretz has been subpoenaed and testified before the grand jury.
VAN SUSTEREN: And she is? Refresh... NOVAK: Right. Beth Dozoretz is a large Democratic donor and fund-raiser, a friend of President Clinton, also a close friend of Denise Rich. And she played at least a peripheral role in this when she talked to President Clinton at one point when he was in, she was in Aspen with Denise Rich and something was mentioned on the phone between them about the pardon of Marc Rich.
VAN SUSTEREN: Did she testify, as far as we know, free and clear, no immunity, no Fifth Amendment, no nothing? She just...
NOVAK: That's not clear.
VAN SUSTEREN: Not clear?
NOVAK: That's not clear.
VAN SUSTEREN: All right, who else besides Beth? Anybody else that we know?
NOVAK: Jack Quinn, who represented Marc Rich and took the plea to the president, the former White House counsel. Beth Nolan has talked to prosecutors. She is the former White House counsel who actually was against granting the pardon to Marc Rich. But she did not go before the grand jury. They've talked to a whole bunch of people, I believe, in the investigation of the four Hasidic Jews in New Square, New York who got a pardon after a White House meeting in December.
VAN SUSTEREN: And you raise an interesting...
NOVAK: I'm sorry, a commutation.
VAN SUSTEREN: And you raise an interesting topic, because we're going to talk about that case when we come back. Don't go away.
Q: Why was Aaron Sorkin, the creator of "The West Wing" arrested at an airport in California?
A: For possession of "illegal mushrooms," allegedly found in his carry-on bag. Sorkin was taken to jail, booked and then released on $10,000 bail.
VAN SUSTEREN: The investigation into eleventh hour pardons granted by former President Clinton is being solely handled by the U.S. attorney, Mary Jo White, in New York.
Let me go to you, Viveca, about the clemency, not pardons, but clemency to four Hasidic Jews from New Square, New York. Now, what is the argument? The four were convicted of essentially swindling the government out of $30 million and they did about two years out of a six year sentence. What was the sort of the sympathetic or the spin put on it as to why these four would, should get clemency? Do you recall?
NOVAK: I think that, you know, they're religious figures and their community really wanted them back and it wasn't fair that they got sentenced to this long and they really shouldn't have been convicted to begin with. I mean I think the whole gambit of possible reasons that you would list.
VAN SUSTEREN: Amy, this one's hard. I mean for $30 million, I think they did about two years. That's $15 million a year. You know, this one is hard to understand. Can you explain the clemency for this one?
COSSACK: It's the best paid prison time I've ever heard of.
SABRIN: Yeah, I can't. I don't really know the facts of the case. What I can't also explain is what they're investigating exactly, the idea that they cast votes? You know, I'm not sure what the crime would be. Somebody is allowed to speak to the president about giving a pardon, which is the allegation that they met and had a conversation and the only alleged quid pro quo would be that the community voted overwhelmingly for Mrs. Clinton, I guess, in the election or a Democrat, you know?
So I don't know where the crime is here from what I've read in the papers.
VAN SUSTEREN: Martin, can you explain this one?
AUERBACH: I think the notion presented to the president was that these men had not done it for their own person benefit but had set up this swindle to get money for the community. That, at least, was the argument as I understand it. I think it's true that it's hard to find the crime if there was nothing more than votes being cast in exchange for this, because as we know, politicians are always making promises in exchange for votes. But I think the theory was that that $15 million for two years wasn't going to their pockets, but was going in some way to the community.
VAN SUSTEREN: So politically incorrect but maybe not legally incorrect, is that...
COSSACK: Well, let me ask, I mean what if the -- and I'm, this is a pure hypothetical -- what if the allegations were you vote for me overwhelmingly, you get your community to vote for me overwhelmingly and I'll get you a pardon?
AUERBACH: Well, what if it's you vote for me and I'll get funding for your community? It's very hard to see the thing of benefit here being the votes as one of the things that it is illegal to give a politician, because that's what politicians are always getting, votes.
COSSACK: So you don't think there would be any problem with someone like the president, who has, a president who has this unfettered ability to get people released from prison and to commute sentences and to pardon them to say I will do this in return for votes?
AUERBACH: Do I think it's appalling or do I think it's a crime? It's appalling.
COSSACK: But you don't think it's a crime?
AUERBACH: But I'm not sure it's a crime.
AUERBACH: I'm not sure it's a crime.
VAN SUSTEREN: Viveca, are there any investigations besides this clemency? Is there anything else with Denise Rich, Roger Clinton and Hasidic Jews? Is Mary Jo White looking into anything else that we know of?
NOVAK: Well, we don't know. She might be looking at Hugh Rodham and his involvement with, you know, the first lady's, former first lady's brother, who represented a couple of people who did get pardons.
VAN SUSTEREN: And who I know very well, as a source of disclosure.
NOVAK: Right. But we don't know. If she is investigating that, there hasn't been too much action there. But she has moved pretty quickly on these other fronts.
COSSACK: This, I wanted to ask you about this grand jury. It seems to be speeding along, unlike other grand juries that I've seen. Is that your impression, too, that this grand jury is working very, very quickly?
NOVAK: I think Mary Jo White, consciously or not, is not going to be like some of the independent counsels we've had in the last few years or even like the campaign finance task force where there's been so much criticism for these high profile investigations that have dragged out for so long. And I don't know if she's doing that consciously again, but she is working very diligently, I think.
VAN SUSTEREN: How can she really win? I mean when you think about it, I mean if she indicts, people are going to say it's because she wanted to keep her job because she was appointed by Clinton and she wants to stay under Bush. If she doesn't indict, they'll say aha, see, she's just a Clinton appointee and she planned to do this all along? I mean think about it...
COSSACK: I think if she indicts, she'd better have a pretty strong case.
VAN SUSTEREN: No, no, but I'm just saying that, you know, it's really, she's really in a lousy position.
COSSACK: Yeah. But I'm just saying, I think if she does indict, this had better be an airtight case. But, welcome back.
VAN SUSTEREN: Thank you.
COSSACK: I get the last word today.
That's all the time we have for today. Thanks to our guests and thank you for watching. Today on TALK BACK LIVE, the southern flag flap moves to Mississippi. Weigh in on southern heritage and the movement for change today at 3:00 P.M. Eastern Time.
VAN SUSTEREN: And tonight on "THE POINT," I'll talk with Attorney Mark Geragos who is representing Roger Clinton, the brother of the former president who has been subpoenaed to testify before the grand jury probe in this pardon controversy. That's at 8:30 P.M. Eastern Time.
And, of course, we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.
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