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Burden of Proof

Investigating the President: The Independent Counsel's Unfinished Business

Aired March 14, 2000 - 12:30 p.m. ET



BOB BITTMAN, FMR. DEP. INDEPENDENT COUNSEL: I think they have serious things to look at, especially when you consider that the federal judge who was overseeing the Paula Jones case found that the president misled her and basically lied in his deposition while he was under oath right in front of her, and I think that is very serious.

STEVEN BERK, FORMER FEDERAL PROSECUTOR: I think that is sort of where the prosecutor wants to come down, is to say: Look, just because it is the president, just because, you know, we have sort of aired this national nightmare for months and for years, I still have my job, no man is above the law.


GRETA VAN SUSTEREN, CO-HOST: He was acquitted by the U.S. Senate, but the investigation of President Clinton isn't over. Today on BURDEN OF PROOF: the unfinished business of the independent counsel.

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Ken Starr has left the office, but the work of the independent counsel is not yet complete. Yesterday, successor Robert Ray announced plans to submit three reports to a federal three-judge panel in the coming months.

ROGER COSSACK, CO-HOST: This week's report will focus on the gathering of confidential FBI background files at the White House. Another report this spring will focus on firings of the White House Travel Office in the initial days of the Clinton presidency. And a third, expected this summer, will focus on the original premise of the independent counsel probe: the Whitewater land deals.

VAN SUSTEREN: Joining us today here in Washington are Calvin Brooks (ph), former deputy to Ken Starr Solomon Wisenberg, and former Watergate prosecutor Richard Ben-Veniste. And in our back row, Susan Philian (ph) and Antoinette Thomas (ph).

And also joining us today from Capitol Hill is CNN correspondent Bob Franken.

Bob, what is the latest on these reports?

BOB FRANKEN, CNN CONGRESSIONAL CORRESPONDENT: Well, there is one that is due out probably tomorrow, and it will be delivered under seal to the three-judge panel, so we are really not supposed to know that. Three-judge panel, of course, responsible for the independent counsels. It can be under seal as long as 90 days, which gives the parties who are named in it a chance to respond. They are allowed to make it public. We can certainly expect that there will be leaks. Already we know, as a matter of fact, the conclusions in the report which are, A, it looks like no laws were broken, there really was inept policy on the part of the FBI files matter; and, B, as for speculation that Mrs. Clinton was involved in the FBI files matter, the report is going to conclude that she really had no fundamental involvement.

VAN SUSTEREN: So why is the report -- and I guess I am going to push you into the position of trying to defend the release -- or not the release, but the filing of the report with the three-judge panel. On November 19, 1998, Ken Starr testified before the House Judiciary Committee, a year and a half later, a successor prosecutor is finally filing this report. Why does it take so long?

SOLOMON WISENBERG, FORMER KEN STARR DEPUTY: Well, yes, you are damned if you do, and you are damned if you don't. He was criticized at the time that he went up in front of the Congress for having waited so long even then and, as we pointed out...

VAN SUSTEREN: So, in essence, nothing better has been done, if that's the criticism, it is just reinforced, it has now been a year and a half later.

WISENBERG: Well, you know, if you do a report somebody is always unhappy, and somebody -- You know, the Foster report, when we submitted the Foster report, one side said you took too long, it is outrageous that you took so long; the other side said, you didn't take long enough, there were too many omissions. So it is always going to be...

VAN SUSTEREN: There is actually a third...

WISENBERG: There is always going to be somebody unhappy in Washington, Greta.

VAN SUSTEREN: And let me give you a third is that there are some people that were displeased because I think that Ken Starr's proclamation that Vince Foster committed suicide is probably the fourth or fifth conclusion, which was another criticism, is why do we need so many investigations of one single suicide?

WISENBERG: Well, it was within his jurisdiction, and he was the person who was appointed as independent counsel. I didn't know that anybody said he shouldn't even be looking at that at all.

COSSACK: Richard, what is the harm in the fact that this gets released or gets sent over to the three-judge panel now, a year and a half later? Who gets harmed by that? or does anybody get harmed by that?

RICHARD BEN-VENISTE, FORMER WATERGATE PROSECUTOR: Well, I suppose, if the criticism is well taken that this has dragged on way too long...

COSSACK: Stop right there, but that criticism, I don't want to take that as an accepting, I mean, that OK, let's assume that. If it has dragged on long, who does it hurt?

BEN-VENISTE: Well, I think the timing now into the election season hurts those who will be criticized in this report to hear this stuff dragged out one more time, with nothing new, I suspect, except to...

COSSACK: But we have just been told by Bob Franken that Mrs. Clinton is not going to be criticized and that that is not going to point toward her. So where is the harm?

BEN-VENISTE: The harm is in dragging it out, and in hyping it up, and in not concluding. This -- the Travel Office investigation has been going on for seven years. This FBI investigation, with respect to the files, has gone on for four years.

But the underlying inquiry is not rocket science. There isn't anything all that complicated about it. For purposes of comparison, just remember that the Watergate investigation from the inception of the Watergate office, and the appointment of Archie Cox, to the trial of the Watergate defendants took 22 months, 22 months. And we had to go to the Supreme Court to get the tapes, and Archie Cox got fired in the middle of that, and had to start all over with a new special prosecutor.

So the idea of this dragging out for another, what, 14 months since Ken Starr testified that they had already reached their conclusions, to me, is mind blowing.

VAN SUSTEREN: And you know, Roger, you asked Richard, you know, what is the harm, and you say that it could hurt people in this political season. That is not my main objection, my objection is the cost. I mean, once the conclusion was reached, and I've got notes from what Ken Starr said back on November 19. he has no substantial, credible evidence of misconduct. Imagine what the cost is to the American taxpayers. I could have coy written a 15- or 30-page summary, summarizing that, I assume, and it would have been done with. I mean, people write term papers overnight. I mean, it is the cost that is so extraordinary to me.

WISENBERG: You know, Greta, it costs about as much as one day of one of the president's foreign trips.

VAN SUSTEREN: And I'm not defending any wasteful money, assuming that you think that's a waste of money, I don't know. I mean, I don't know which foreign trip you are talking about. I'm just saying that, you know, in terms of saving taxpayer money, let's save it where it makes sense. And my guess is, this could have been written within a week of Ken Starr's testimony in '98.

WISENBERG: You know, there are already so many misstatements I've heard in five minutes, I have to comment on some of them. The Travel Office investigation hasn't been going on for seven years, in terms of the Office of Independent Counsel...

VAN SUSTEREN: So you are correcting Richard, and not me...

WISENBERG: That is right.

BEN-VENISTE: What was it six? How many years has it been going on?

WISENBERG: In fact, it is about three years. Ken Starr didn't even get jurisdiction of it until 1996, and, as we all know, about a year ago, there were significant, according to what is reported in the press, there was significant new information that came out about the Travel Office.

In terms of Watergate, of course, you had tapes that nobody knew about that absolutely showed a crime being committed in the Oval Office. The difference here is, whether or not a crime was committed, is that we don't have tapes. And if we did have tapes, the Clinton administration would say: It is old news.

VAN SUSTEREN: So Richard, do you want to respond because, thankfully, I wasn't getting corrected, I escaped that one.

COSSACK: Well, you escaped because you went on a good subject, the notion of spending money rather than having anybody hurt. And I agree with you, if you are spending money unnecessarily, I hate to do this, you are right.

BEN-VENISTE: The point of the matter is, the events occurred seven years ago. The issue is whether somebody was fired who had been named in a big-six accounting report of having commingled funds. So what? I mean, this is seven years ago. They've had three years to investigate it. Fourteen months ago, the special...

VAN SUSTEREN: But that just goes back to my complaint, that goes back to my complaint, whether you are right on the number years or Sol is right on the number of years is irrelevant to me. What is important to me is that on November 19 that Ken Starr also said Travelgate is over.

COSSACK: Wait a minute...

WISENBERG: But he didn't say the report was over...


VAN SUSTEREN: he said there's no substantial credible evidence of misconduct. So now it has taken a year and half...

WISENBERG: By who, though? By who?

VAN SUSTEREN: By the president.

WISENBERG: OK, but that's not the end of it. When you launch an investigation, you don't look necessarily just at one individual, you've got an entire investigation, and you have an obligation to write a record to the judicial panel, and that report has to be complete.

VAN SUSTEREN: And I will tell you what, Sol, I will stand corrected if someone is -- if it turns out that someone is found of substantial misconduct.

COSSACK: That shouldn't be the standard, the standard should be that you find somebody guilty, the standard should be you have a report.

VAN SUSTEREN: I think a year and a half was wasted.

WISENBERG: The standard should be do a thorough report.

COSSACK: Bob Franken, let me get you in here for a second. Bob, go ahead.

FRANKEN: Enjoying the shouting. I just want to make sure we don't co-mingle reports here. The only report that is coming out this week is the FBI files matter. The one on the Travel Office firing that you are discussing, A, is not expect until about June, and, B, apparently has not been concluded. Apparently, there is contradictory evidence about the involvement that Mrs. Clinton might have had in this, and what she said under oath about that. And that is still being developed. So there -- It is a different matter entirely between Travel Office firings and the FBI files.

WISENBERG: And by the way, just as in Watergate, the issue with the Travel Office was never the original firing, there was nobody who ever thought that violated anything but potentially a minor criminal conflict of interest statute. The issue is, was there a cover-up and was there any kind of obstruction of justice.

FRANKEN: And perjury because statements were taken under oath.

COSSACK: All right, I'm going to hold you all off for a second. Let's take a break.

Up next, a status report on the office of the independent counsel: With new prosecutors on staff, what tasks still lie ahead, if any? Stay with us.


Tomorrow marks two years since Kathleen Willey's "60 Minutes" interview in which she said President Clinton groped her and lied about it in a deposition.


(COMMERCIAL BREAK) VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.


BITTMAN: Well, I think any responsible prosecutor has to look at it. And I think that's all that I heard that Bob Ray is doing right now. And I think that is the responsible thing, and I think, quite frankly, that's what he took the oath to do, is that he has to look at this stuff and he has to make his own judgment about whether or not it's proper to proceed against the president.


COSSACK: What began as the Whitewater investigation has probed activities surrounding the White House throughout most of the Clinton administration. The investigation, clearly one of this president's legacies, will likely outlive his presidency.

Richard, what should Bob Ray be doing now? I mean, he took over for Starr. Should he be continuing to investigate? Should he be just writing a report, or should he be the last guy out and hitting the light switch?

VAN SUSTEREN: I think you're giving the easiest question to Richard. I can just imagine what he's going to say.

Go ahead, Richard.

BEN-VENISTE: Wrap it up.

VAN SUSTEREN: There, I knew it.

BEN-VENISTE: Wrap it up. I mean, I can't imagine that -- I heard a report that they're hiring new people to come in. I can't imagine what they're saying to them. What are you going to be doing? Are these -- you know, how long did it take to write the Constitution of the United States? What are these reports? These are not gems of legal scholarship, these are facts and that people who have had their names dragged through the mud for years ought to be entitled to have closure. These things should have been concluded way long ago.

COSSACK: Do you think that's what his mission was when he was asked to take over this place, was merely to wrap it up?

BEN-VENISTE: I presume so. Why did Ken Starr leave? If there were viable cases to prosecute, why did he leave?

WISENBERG: Well, he's never allowed to leave, the poor guy?


WISENBERG: He just has to stay there forever.

BEN-VENISTE: What he ought to do is finish. And that was one of the major knocks on Ken Starr is that the thing dragged out too long and up to -- over $60 million spent. And, you know, these conclusions have been made: There was no criminal involvement in connection with the Filegate. If that had been wrongful, if somebody had misused FBI personal files, that would be a serious violation. But 14 months ago, Ken Starr said, no, there was no evidence of criminal violation.


BEN-VENISTE: It doesn't -- it just doesn't compute as to why this takes so long.

VAN SUSTEREN: Sol, Ken Starr didn't have to stick it out until the very end, as you say. He can he quit when he wants to. But why do you think that he didn't wait until the end? I mean, what made him leave when he did? Why didn't he stay and finish it?

WISENBERG: I think he had done his duty. He had taken a lot of abuse. I think he thought it was fair for him to leave, and I think he was right. Speaking of people who have their name dragged through the mud, the only people I know of in this investigation to have their names dragged through the mud deserved it: Webb Hubbell, indicted, convicted felon; Susan McDougal, convicted felon; William Jefferson Clinton, we all know what the evidence showed on him.

VAN SUSTEREN: Weren't there some acquittals down in...

WISENBERG: Jim Guy Tucker, sitting governor of Arkansas, convicted. So I don't believe anybody has had their named falsely dragged through the mud.

And let me point out that when Ken Starr...

BEN-VENISTE: Well, there are about 50 or 60 other people you could name.

WISENBERG: When Ken -- wait a second -- When Ken Starr went in front of the House, he went out of his way to say, with respect to Filegate -- to clear the president and the first lady with respect to Filegate. He didn't have to do that. He went out of his way to do it. And to say somehow it's wrong to have a written report done a year later...

VAN SUSTEREN: Year and a half.

WISENBERG: ... or 14 months later when we don't even know how much work was done on it, we don't know who else, if anybody, was investigated, strikes me as just an example of the...


COSSACK: Richard, I see you...

WISENBERG: ... irrational hatred of Ken Starr in this town. Very sad.

COSSACK: I see you shaking your head. Is it because of irrational hatred?

VAN SUSTEREN: Except he's not writing that report, Ray is.

COSSACK: Is it irrational hatred or is it some other reason that makes you shake your head?

BEN-VENISTE: No, I think that once you have things that drag on so long -- and, you know, Ken Starr's appearance before the Judiciary Committee in an accusatory manner was unprecedented. He was criticized, justifiably, for that. It isn't a question of hatred. I was on a panel with Ken Starr in San Francisco only a few weeks ago and we were cordial, but I disagree very substantially with the way the investigation was run, the methods that were used and the large litany of problems with the length of time it took and the leaks that were associated with it.

There were dozens and dozens of people from the White House and outside the White House who were dragged before grand juries repeatedly. Webb Hubbell had agreed to plead guilty back when Bob Fiske had the investigation. So the idea of securing these handful of convictions, not to mention the acquittals, only suggests that this thing should have been wrapped up years and years ago.

VAN SUSTEREN: And I need to wrap this up.

WISENBERG: It was three handfuls, not one handful.

VAN SUSTEREN: Look, I need to wrap this up and take a break.

Up next: Contractors dubbed the problem "Project X." Did an e- mail computer flaw obstruct the gathering of evidence in the White House? Stay with us.


Q: What crime-fighting tool celebrates its 50th anniversary today?

A: The FBI's "Ten Most Wanted" List.

Four hundred fifty-eight fugitives have appeared on the list and 429 of them have been apprehended. One hundred thirty-seven of them have been located as a direct result of tips from the public.



VAN SUSTEREN: In a lawsuit filed by a conservative legal group, a former White House contractor declared that subpoenaed e-mail messages were never turned over to the congressional investigators and Justice Department lawyers because of a problem with the White House e-mail system. The contractor claimed she was threatened with the loss of her job and jail time if she alerted anyone to the problem, including her boss.

Bob, who is this conservative group? And what is this dispute over e-mail? And is there -- is it a bigger problem than we may imagine?

FRANKEN: Well, as far as the last part of that is concerned, they normally end up being bigger problems than we imagine. The conservative group is Judicial Watch, which, of course, has sort of been the legal gadfly for the entire Clinton administration, constantly filing lawsuits.

This one has to do, as you pointed out, with the e-mail that was not turned over to the various bodies that were subpoenaing it, involved in the various investigations. It's e-mail that, apparently, got lost, apparently, in a honorable way; somebody pressed the wrong button, something we can always relate to.

But, subsequent to that, when contractors were brought in from the Rockwell Company to try and solve the problem, they were really dissuaded, according to the lawsuit, to do that. They were threatened; they were, in many ways, made to be afraid -- if you are to believe their depositions -- that, in fact, if they were aggressive about telling people about this, they might be in trouble. And there are reports that the e-mail also involves matters like Monica Lewinsky, the FBI files matter, et cetera.

A little sidelight: The House Government Reform Committee here, headed by Dan Burton, which has been another thorn in the administration's side, is now saying that this e-mail could cover some of the matters that are about to be reported by the independent counsel. They've suggested to the independent counsel he might want to delay matters. But the independent counsel is going ahead with his first report, as we know, on FBI files.

COSSACK: Bob, who -- do we know who it was that allegedly dissuaded these people from finding the lost e-mail?

FRANKEN: Well, there are various officials in the White House who, apparently, according to the depositions, according to the claims, went to the private contractors and said they must keep this information secret, that they were, in fact, possibly going to face jail if they went public about it, claiming that they were classified.

And now, an investigation is under way to see if that was inappropriate or not.

VAN SUSTEREN: Bob, let me straighten something out, at least in my mind. Has the e-mail now been recovered? or is it lost forever?

FRANKEN: Well, it's not lost forever. It is in the process of being recovered and cataloged, says the White House, to see which of it is responsive to the various subpoenas.

VAN SUSTEREN: And Richard, this doesn't -- this is not a particularly helpful thing for the White House at this point, even if it is completely innocuous. BEN-VENISTE: Well, this is the first that I hear of it. I must say I don't have my ear to the e-mail controversy. But, anything that comes out of Larry Clayman and Judicial Watch should be taken with a grain of salt. And my experience in looking at these allegations and seeing whether any of them, any of them, over the course of time had any substance to them, leads me to that conclusion.

VAN SUSTEREN: But you know what always gets someone in trouble, it is maybe not so much the underlying matter, but even if these e- mails are completely innocent, don't advance any investigation one- half inch, the problem is is that when you have them sort of disappearing for a glitch, you are going to have conspiracy theorists out there.

BEN-VENISTE: Well, I don't know if there was any inappropriate thing that happened in that connection, but all I would suggest is that no matter how thin you make a pancake, it has two sides. So I would wait to hear what the other side of it...

COSSACK: Have you been waiting all afternoon to say that.


VAN SUSTEREN: But the problem...


COSSACK: Sol, is this something we are going to see another independent counsel?

WISENBERG: I don't know. Listen, there is not just a deposition about this. My understanding is there is an unsealed sworn affidavit. Here is the deal, if you've got documents, including e-mails, that are under subpoena, whether it is by a congressional committee or by the Department of Justice or by the independent counsel, and they are found, and somebody wants to turn them over, and they are told: If you do this, you are going to lose your job. I've got news for you, that's obstruction of justice.

VAN SUSTEREN: And you know what, Sol, I agree 100 percent with you, if someone deliberately withheld those when they are under subpoena, you and I agree,.

COSSACK: The only reason you are saying that is because you know it could be you that accidentally hit the delete button.

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

Today on "TALKBACK LIVE": The Human Genome Project, who owns your DNA code and can it be shared? That is at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.


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