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CNN Talkback Live

Condit in Legal Trouble?

Aired August 27, 2001 - 15:00   ET

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

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

JIM ROBINSON, ANNE MARIE SMITH'S ATTORNEY: The jury can issue subpoenas. They can issue a subpoena to command Congressman Condit to appear before the grand jury. If that happens, he's not going to be able to do what he did last Thursday.

(BEGIN VIDEO CLIP)

CONNIE CHUNG, ABC NEWS REPORTER: Why would you want her to say that she didn't have a relationship with you?

REP. GARY CONDIT (D), CALIFORNIA: Because she didn't.

(END VIDEO CLIP)

ABBE LOWELL, GARY CONDIT'S ATTORNEY: Whatever their dealings were, whatever they shared, whatever they were to each other, it wasn't a relationship.

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BILL CLINTON, FORMER PRESIDENT OF THE UNITED STATES: It depends on what the meaning of the word "is" is.

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UNIDENTIFIED MALE: For the man that was first condemned Bill Clinton to act like him, was embarrassing for me watch him. Then he really never answered any question.

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CHIEF CHARLES RAMSEY, D.C. METROPOLITAN POLICE: One can say that he answered every question that Connie Chung asked him.

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UNIDENTIFIED MALE: Personally, I think that he ought to resign.

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UNIDENTIFIED MALE: I think that Gary Condit should resign.

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REP. RICHARD GEPHARDT (D-MO), MINORITY LEADER: I was disappointed by his statement.

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TERRY MCAULIFFE, CHAIRMAN, DEMOCRATIC NATIONAL COMMITTEE: I wished that he had been more forthcoming.

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UNIDENTIFIED MALE: Clearly, he realizes the political danger he's in.

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BOBBIE BATTISTA, HOST: Legally and politically, how much trouble is Condit in, and what can he do to get out of it?

Good afternoon, everyone, and welcome to TALKBACK LIVE. Congressman Gary Condit faces a new problem today. An attorney for flight attendant Anne Marie Smith is seeking criminal charges against Condit and two members of his staff.

(BEGIN VIDEO CLIP)

ROBINSON: We're stating that Mike Lynch, Dawn Thornton and Congressman Condit, all three have conspired to suborn perjury and obstruct justice, which are both felonies in the state of California.

(END VIDEO CLIP)

BATTISTA: The suit stems from last week's ABC interview in which Condit denied he had a "relationship," in quotes, with Smith, and said he never asked her to deny any such relationship in writing. Here to talk about it today are Judge Lynn Toler the municipal court judge in Cleveland Heights, Ohio. She also presides over the "Power of Attorney" courtroom. Robert Weiss is with us, an attorney specializing in plaintiffs' rights, representing people against major corporations. And Raoul Felder, a divorce attorney and former federal prosecutor. He is coauthor of "Getting Away With Murder: Weapons for the War Against Domestic Violence."

Welcome to all of you.

OK, Raoul, help me out here a little bit. How do you make a case here for criminal perjury charges? Can do you that?

RAOUL FELDER, DIVORCE ATTORNEY: Well, it's obstruction of justice. They -- these -- she was going to be interviewed by the FBI, he's going to -- his lawyers are telling her to deny it. They even gave her an affidavit to sign, so it's an obstruction of justice if the prosecutor wants to prosecute, usually. But California has this odd statute that's equivalent to like a judicial citizen's arrest, where anybody can go to the grand jury or to the foreman and request it. I don't think that it's a very smart move for this lady, but she's doing it, apparently.

BATTISTA: Rob, what do you think?

ROBERT WEISS, PLAINTIFFS RIGHTS ATTORNEY: I think that it's just a publicity grab. I don't think there's any real obstruction of justice case. For obstruction of justice, generally, you have to show materiality. You have to prove that that impeded the investigation and nobody said that. As Mr. Felder said, nobody has really pushed this except for the people seeking publicity. The D.C. police are not pushing it. The prosecutors are not pushing in California, and I don't think it's going to go anywhere. I also don't think her civil suit is going anywhere.

BATTISTA: On defamation, you mean?

WEISS: Yes.

BATTISTA: I'm not sure they filed that yet. I think they've talked about it, but I don't think they've done anything about that yet.

WEISS: She's trying to extend her 15 minutes. That's all this is about, in my opinion, and piling on Congressman Condit, who has got enough problems as it is.

BATTISTA: Let me, you know, Raoul, why didn't they just go for a straight defamation lawsuit?

FELDER: Well, that would have been the cautious cause. There is a problem with the defamation. She has a defamation case. The problem is, she's an adulteress. So you've got to say what's worse, being an adulterous or being a subject of defamation? But my guess is adultery plays pretty well in the public's eye today, witness Bill Clinton, so that she probably would have had a pretty viable defamation case. Once it gets to the jury, you know, they go wild with these cases. Probably could get to a jury. He called her a liar. WEISS: I don't it's going to get to a jury because she is a limited purpose public figure. She made herself a public figure. She sought out the media attention. She's hired publicity people and attorneys who use the media. So for the defamation law, if you're a public figure for the purposes of a particular thing, as she is, it's a much higher standard and I don't think she's going to get to a jury. I think most judges would throw it out.

(CROSSTALK)

BATTISTA: Let's ask a judge.

JUDGE LYNN TOLER, "POWER OF ATTORNEY": I do agree that there's going to be a great stretch to make a defamation case, and I also agree that she wants Condit to say, yes, she was an adulterer. And I think it's going to be difficult for her to posit the position that her characterization of the relationship versus his characterization of the relationship defamed her, especially when she's doing so much to remain, stay and continue in the public eye.

WEISS: I agree with the judge on that. You always try to agree with the judges, but I agree with the judge on that 100 percent. She sought all this attention. This is her 15 minutes, she's trying to extend it. That's all this really is. The Congressman Condit has a whole host of problems, and I think it's a little bit unfair for people to continue piling on him. If you don't like him, don't vote for him.

FELDER: You know, detest of your public figure is malice, and an argument can be made up, because don't forget, he had a choice. The choice was to say nothing, I refuse to answer. Instead, he called her a liar before 40, 80 million people, whatever it is. So...

TOLER: Yes, but I don't see any malice in that context. There's certainly self-serving interest.

FELDER: But, Judge, that's a finding for the jury. With all due respect, you're a judge. If a jury can't find that there was malice when you get a woman and you call her a liar before 3/4 of America, when you had a choice to say nothing. He didn't even have to answer that.

TOLER: No, I understand what you're saying. But I'm saying that -- I'm not saying that a judge would kick it out -- that it's not an issue for the jury. But I am saying the facts to me do not pull together something where you could easily extract malice from the conduct that he shows.

(CROSSTALK)

BATTISTA: I have to interrupt you all, I am sorry, forgive me. There is some breaking news going on in the newsroom, and we go to Lou Waters.

(INTERRUPTED BY BREAKING NEWS)

(COMMERCIAL BREAK)

BATTISTA: Welcome back. I'd say the congressman could use some of the luck coming out of Ashland, Kentucky. But nonetheless, we're back here on TALKBACK and we are talking about the legal action that was filed against -- or announced that it was action taken against him today by the attorneys for Anne Marie Smith, the flight attendant who claims she had an affair with the congressman. And we are talking with Judge Lynn Toler and Robert Weiss and Raoul Felder.

And one of the things, you guys -- I want to move this ahead just a little bit here -- is that during the interview Congressman Condit implied that he did not know his attorney had asked Anne Marie to sign this affidavit saying that she'd never had an affair with him. How likely is that?

WEISS: Well, from a criminal perspective, it's very likely, because there's no way for them to prove that he did have a culpable criminal state of mind. The attorney obviously won't be able to testify against his client, because the communications are privileged. So from a criminal perspective, I don't think the congressman is really in any tremendous trouble. Realistically, though, I think he had some knowledge, but there's no way to tell what type of knowledge, whether he actually saw the document before the document went out, whether he participated in drafting the document. There's just no way to know.

BATTISTA: Well, do lawyers just operate on their own like that, Raoul?

FELDER: No, I don't think it's likely, and I don't think that you can claim a privilege. If the defense is you had somebody else do a criminal act for you, it doesn't matter if it's a doctor, lawyer, priest, there's no privileges to that. And it's -- and so I really don't think that's -- that's going to fly.

WEISS: My point was not that -- no. In terms of determining what his mental state was, whatever culpable mental state there is for obstruction of justice or subornation of perjury, the lawyer would not be able to testify as to Mr. Condit's mental state, what he know. So I don't think that -- I just don't think you're going be able to get that in to evidence, you know, any -- with respect to what the lawyer...

FELDER: Well, listen, once Condit knows he had an affair and then he has the lawyer send out a letter that says, I didn't have an affair, that's enough of animus, that's enough of a guilty knowledge there.

BATTISTA: Well, judge, if there was no relationship between these two, as the congressman maintains, then why would the lawyer send out an affidavit to a woman asking her to deny a relationship that he says never existed?

TOLER: Well, I have a question as to why a lot of what Condit -- Congressman Condit is doing and their lawyers are doing to begin with. I don't know exactly what they were trying to achieve. I don't know how they felt this investigation was going to go. So I really can't speak to that.

It doesn't seem like he's made a very well-reasoned either PR or legal response to the issues so far.

BATTISTA: I'm still confused by that just from a common-sense point of view. It's like -- it's almost like the lawyer was standing on a street corner handing out affidavits to any woman that came along. You know, but why -- why Anne Marie Smith if there was no relationship between the two?

WEISS: My point is (UNINTELLIGIBLE) hold him libel criminally. These cases are very difficult to make out, Bobbie. It's very, very rare that people are prosecuted for obstruction of justice or subornation of perjury, because they're very, very difficult cases to make out. And what I'm saying is it's going to be very difficult to prosecute Condit criminally for something that his lawyer did for a variety of reasons, including...

TOLER: Absolutely, especially when you don't have the nexus between what he told the lawyer and what the lawyer did. It's almost going to be impossible to establish given the privilege between the two.

WEISS: I agree.

FELDER: Well, there's no privilege there if it's a criminal act. The problem here is that it has nothing principally to do with the inherent crime involved here that they told some stewardess they wanted her to lie.

You know, the theory seems to be, Condit, is that he -- the commandment is not "Thou shalt not commit adultery"; it's "Thou shalt not admit adultery," and everything seems to be driving that.

WEISS: Let me just address that point, because that...

BATTISTA: I -- I have to interrupt again. I'm sorry. Back to the news desk now and Natalie.

(INTERRUPTED FOR LIVE EVENT)

(COMMERCIAL BREAK)

BATTISTA: We had to say goodbye to our earlier guests. We certainly appreciate the brief time that we had with them.

Joining us now is Sherry Bebitch Jeffe, a political scientist and senior scholar at the School of Policy Planning and Development at the University of Southern California.

SHERRY BEBITCH JEFFE, POLITICAL SCIENTIST: Hi, Bobbie.

BATTISTA: Good to see you. Before we get into the congressman's political future out there, first let me ask you what your impressions were of the television interview the other night? JEFFE: I was astonished. I shouldn't have been, because I knew that this was a backwater congressman who didn't even give interviews to his own district media, and his lack of experience with the media certainly showed. But he really hurt himself more than he can could ever help himself by those interviews.

BATTISTA: The latest polls to come out after that interview certainly support that.

JEFFE: Oh, yes.

BATTISTA: Particularly in own district, even where I think about a third of the voters there say that they would vote for him again.

JEFFE: More like a quarter.

BATTISTA: Yes. What is he going to do in the next 14 months to change those numbers? Can he do it?

JEFFE: I don't know. Look, I have learned never to say "never" in politics. But I will tell you, if he had gone to his constituency, if he had spoken early on, we wouldn't even be sitting here discussing this. I'm not sure what there is to do. It may be totally out of his hands at this point in time.

And let's not -- you know, we've got another variable here that we need to talk about, and that's the whole issue of reapportionment. Right now, California legislatures are recrafting the lines of the Congressional districts and he honestly doesn't even know yet what his district will look like. Even that poll that was taken may not have polled his future possible constituents.

BATTISTA: What do you make of the fact that there seems to be a not very strong, or even lack of support coming from the Democratic Party for the congressman?

JEFFE: Well, I think there's a very strong signal there for the congressman, which is "get out." Don't get out now, because the Democrats out here are very frightened about the possibility of a special election, so they don't want him to resign. But what they want him to do is leave gracefully at end of his term.

Can you imagine that the Democrats in this state, in California, or nationally want to have the specter of the Condit-Levy scandal hanging over them during the election campaign? I don't think so.

BATTISTA: Let me get a little taste from the audience here. Anne Marie, whose maiden name was Smith, but we won't go there.

JEFFE: Oh, dear.

BATTISTA: What are your thoughts?

ANNE MARIE: We have a congressman in Louisiana, Bob Livingston, who is very well respected. And last year, unprovoked, he admitted to having an extramarital affair. I have more respect for the fact that he was human, did the decent thing. I think the Levy family has expected some sort of decency to admit what other relationships he may have had. They just are concerned about their daughter.

But this Anne Marie Smith person, I'm not speaking on her behalf, but I think she's taking any means necessary to at least get this guy to admit something. Just to give the family peace of mind, or America a little bit of hope that we're electing these people and we expect them to be human.

JEFFE: I think we do expect them to be human. I mean, we gave Former President Clinton the benefit of the that doubt. But the problem with Gary Condit, I think, has been -- well, it's a multifaceted problem, I believe. First of all, Congressman Condit was one of the first Democrats to speak out and say to President Clinton, tell it all, get it out there. He did vote for the inquiry into the impeachment, although, as the congressman said in his interviews, he voted against impeachment. But nonetheless, that comes off as somewhat hypocritical.

Also, again, I mean, Lanny Davis got it right. In his book he said, tell it all, tell it early, tell it yourself. That's the best possible political strategy. Unfortunately, there is this natural tension between politics and the law. And the best legal strategy is don't tell it unless you have to. Tell as little as you need to, and let your attorney do the talking for you. And so Condit really was caught up in that vice. Plus the fact he came off as a little bit hypocritical, And then the interviews did nothing to dispel the suspicion and cynicism out there regarding the ray he handled the issue from the beginning.

BATTISTA: Let me take a quick break here and we'll continue in a moment.

(COMMERCIAL BREAK)

BATTISTA: A couple of e-mails here. Don in California says: "Gary Condit has been a great representative for our area for many years, regardless of his level of involvement in the Chandra Levy case. His speech on Thursday night now has many us in Modesto wondering what he has to hide."

Doreen in Illinois says: "Bottom line, the voters will decide. I don't know how much more discussion really needs to take place about his political future."

Very quickly, Sherry, I only have about 30 seconds here. But a House Ethics Committee investigation, there's more talk of that again. How likely is that?

JEFFE: I haven't the slightest idea, Bobbie. I think it will all depend on how things begin to play out. I heard Bill Schneider this morning say that the critical dynamic will be whether or not Chandra Levy is found, and if and when she is found, whether or not the -- it is clear that the congressman had nothing to do with her disappearance. I just think there are just too many imponderables out there to determine what is going to happen fourteen months down the line with regard to the Congress.

BATTISTA: All right, Sherry Bebitch Jeffe, thanks very much for joining us today. I appreciate your patience.

We will see you tomorrow for more TALKBACK LIVE. Gary Condit's son, by the way, Chad Condit, will be Larry's guest tonight on "LARRY KING LIVE," at 9:00 Eastern. We'll see you tomorrow.

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