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Burden of Proof

Missing White House E-Mail: President's Top Lawyers During Lewinsky Probe Testify Before House Government Reform Committee

Aired May 4, 2000 - 12:30 p.m. ET



REP. DAN BURTON (R), CHMN., GOVERNMENT REFORM COMMITTEE: Incoming e-mails from 2 1/2 years were kept under wraps. The White House knew about it for almost two years, but they didn't inform the Justice Department until we started looking into it. And the Justice Department didn't start an investigation until they realized that we were looking into it.

CHARLES RUFF, FORMER WHITE HOUSE COUNSEL: Any suggestion that somehow the White House counsel's office during my tenure and Ms. Mill's tenure was anything other than forthcoming to the full extent of our knowledge, Mr. Chairman, I submit, with all respect, is simply flat out wrong.

CHERYL MILLS, FORMER DEP. WHITE HOUSE COUNSEL: Won't you believe in the humanity of others with whom you disagree? Won't you believe that, as with your mistakes, they too can make mistakes that are not conspiratorial, that they too can make a bad judgment without that judgment being pernicious?


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The White House e-mail controversy, was it a deliberate cover-up to protect the president during the Lewinsky probe, or did Clinton's aides simply underestimate the extent of their computer problems?

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

Today in Washington, the president's top White House lawyers during the Lewinsky probe testified before the House Government Reform Committee. At issue: a computer glitch which allowed hundreds of thousands of e-mail notes to elude subpoenaed searches by Congress, Ken Starr's office and the Justice Department.

GRETA VAN SUSTEREN, CO-HOST: Testifying today on Capitol Hill, former White House counsel Charles Ruff, former deputy counsel Cheryl Mills, and White House aide Mark Lindsey.


RUFF: Never, not once, did anyone on my staff seek to conceal, delay production of, or otherwise cover up any document production, whether it be electronic or paper.

MILLS: If I had not had a chance to attend a dinner that night in honor of the Robert F. Kennedy Memorial Foundation, I probably would still be angry because I would not have had a chance to have my faith renewed by the example of what other men with your power have chosen to do throughout history to enhance the lives of others.


COSSACK: And joining us today from Capitol Hill is Republican Congressman Asa Hutchinson. Here in Washington, Gary Hunter (ph); chief minority counsel on the House Judiciary Committee, Julian Epstein; and Kimberly Gonsalves (ph).

VAN SUSTEREN: And in our back row, Nicholas Howenstein (ph) and Jennifer O'Brien (ph).

And joining us from Capitol Hill is CNN's Bob Franken.

Bob, what is -- what are the facts behind this congressional investigation?

BOB FRANKEN, CNN CONGRESSIONAL CORRESPONDENT: Well, this is the fourth hearing and, of course, the underlying charge, as you pointed out a moment ago, is the Republican charge that there might have been obstruction of justice, might have been an effort by the White House to conceal the fact, that relevant e-mail that had been under subpoena by a variety of entities was not turned over and was knowingly concealed.

Now, today, the specific discussion was about a meeting this morning -- a meeting in June of 1998 in which Ruff, who was the White House counsel, was informed about the problem. What he is saying is that he believed after that meeting that, in fact, the problem wasn't a problem, that material was being turned over, as you just played one of his comment from the hearing, there never was an effort to conceal any of this. And, of course, the committee is saying that there was an effort.

And, also, I think it's important to point out the atmospherics of this meeting. Cheryl Mills, who was the deputy White House counsel at the time who says she wasn't at that very important meeting, complained about what she called a culture of investigation and intimidation and idleness on the part of the congressional Republicans.

She got a response from Chris Shays, a Republican on the committee, who complained in response about the moral minimalism of this White House, and went on to say that the White House lawyers practiced ethical opportunism.

So what we are hearing here is a real battle, the kind of battle, in a polite way, that we've heard for many years now, and a very incremental moving on of the story about the White House e-mails.

VAN SUSTEREN: You talk, Bob, about the atmosphere this morning. I want to play for our viewers a sound from Cheryl Mills which was, I think, almost a punch right between the eyes to Chairman Burton. Let's listen:


MILLS: Nothing you discover here today will feed one person, give shelter to someone who is homeless, educate one child, provide health care for one family or justice to one African-American or Hispanic juvenile. You could do so much to transform our country, but you are instead choosing to use your great authority and resources only to address e-mails.


VAN SUSTEREN: Congressman Asa Hutchinson, let me ask you about what Cheryl Mills says. As I understand it, and as Congressman Barr told us on an earlier BURDEN OF PROOF, that the suggestion isn't that the e-mails contained any criminal conduct, it's simply that they weren't turned over. How do you answer Cheryl Mills' criticism that, in essence, you're wasting a lot of time when you could be doing a lot of good?

REP. ASA HUTCHINSON (R), ARKANSAS: Well, first of all, I think there's too much speechifying and we need to concentrate on some very simple questions as to why subpoenas were not complied with and what we need to do to get the information that has been requested. And it boils down to simply the attitude of the White House that the congressional questions that are asked of different probes are not important. They've made a judgment, and Cheryl Mills reflected that today, that what we are doing is not important and therefore you ought to be doing other things.

VAN SUSTEREN: Do you agree -- let me ask you this: Do you agree that the e-mails -- as far as you know, there's no suggestion that they contain any criminal conduct, it's simply the failure to disclose -- and I admit they were lawful -- subpoenas? Is that the issue?

HUTCHINSON: Well, there's a number of issues, but, I mean, that's a big part of it, that we're not saying -- we don't know what's in the information, the e-mails that would have been provided pursuant to the subpoenas. It may or may not be incriminating. We're certainly not saying it is incriminating, but we're saying it has not been reviewed even to this day to know whether there's relevant information that would be helpful to the investigative bodies.

Secondly, what has to be done to retrieve this information and provide it? Thirdly, what was the reason that we did not know of the problem? And secondly, there was a failure to cooperate in getting this information, and whether there was any intentional conduct. We have no evidence, that I'm aware of, of intentional conduct, but there's some very serious questions as to why this happened and why we have to go through this simply to get information. COSSACK: Congressman, the American public, I think, you know, has spoken on this issue, and we've seen a great deal of polls. Your committee voted for impeachment; it didn't work. I mean, there was an impeachment. Isn't this sort of time to let this go, Congressman? I mean, isn't it time -- I mean, isn't the reason that Cheryl Mills is somewhat effective in what she says -- and I will admit to you that I'm, perhaps, not as enamored with it as Greta is. But isn't she effective because what she's really saying is, you know, it's just kind of time to move on?

HUTCHINSON: Well, I think the American public believes that in the large scope of things. But I think if you started asking questions, that if Congress or the Department of Justice or the independent counsel issues a subpoena, should the recipient of that subpoena be cavalier in responding to it, in retrieving the information, should they be forthcoming about problems in complying with the subpoena, or there should be the determination that, well, this is not important so we're not going to put forth an effort on this.

COSSACK: But isn't there that sense...

VAN SUSTEREN: Well, let me go on the -- let me just say one thing on the record.

COSSACK: Let me just finish.

Isn't there that sense of looking like a dog with a bone and you just won't let it go and it just keeps going on and on and on, I mean, to the point of saying, OK, now we're down to arguing about things that lawyers understand are important but perhaps others don't?

HUTCHINSON: You're absolutely correct. I don't think the hearing today, the American public believe, amounted to a whole lot other than a lot of wrangling back in forth, when in fact there are some very important, substantive questions that get overlook. And I think we need to -- I wish we could minimize the speechifying, get into more serious questions because there's some very important questions that have to be asked and answered.

We want to move on, the American public wants us to move on, but these things are going to come up, the relationship between the Congress and the executive branch, time and time again, the issue of subpoenas in an electronic age where it's difficult to retrieve, what are the responsibilities, and when there's a glitch what should be done about it.

VAN SUSTEREN: All right, well, let me just go on the record, because you characterized what I said is that -- I think the subpoenas should be complied with. My question simply is how politically astute is it at this point in light of the fact that I think the American people may see this, Congressman, as a waste.

HUTCHINSON: Well, perhaps we are not the greatest politicians, but when we have a responsibility, I hope that we will do it. Today, Cheryl Mills acknowledged in her speech that errors of judgment were made. My question to her, which will be asked later on, what were those errors of judgment and how can we avoid those in the future?

FRANKEN: Actually, if I could, just to point out that, actually, precisely what she said was that over the course of time errors of judgment are made on both sides, and acknowledged that on her side, over the course of time, errors of judgment were made, as opposed to saying in this specific case errors of judgment were made.

VAN SUSTEREN: Well, we're going to take a break.

Up next, what does this congressional committee hope to uncover in the latest probe of the White House? Stay with us.


Boulder Police Chief Mark Beckner and District Attorney Alex Hunter have met twice this week to discuss evidence in the JonBenet Ramsey case. The discussions reportedly focused on hair and fiber analyses made by FBI experts.



VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to 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.

Today on Capitol Hill, President Clinton's former top White House lawyers are testifying about an e-mail problem during the investigation of the president. The hearings are being held by the House Government Reform Committee, chaired by Republican Congressman Dan Burton.

Julian, if I were the counsel to Dan Burton, I would tell him to drop this ball and just ignore it, that they have made their point, the White House failed to comply with subpoenas, which would have avoided what I think was the tough verbal, the verbal punch from Cheryl Mills. But having said that, why didn't they comply with the subpoena to begin with?

JULIAN EPSTEIN, CHIEF MINORITY COUNSEL, HOUSE JUDICIARY COMMITTEE: Well, I think I would have pulled the plug a long time ago. Remember, editorials all over the country, Greta, have said that the Government Reform Committee has engaged in a seven-year history of irresponsible attacks, and they are never able to -- I will come to the point, but never able to produce the evidence. I think this is another example of that.

Asa Hutchinson... (CROSSTALK)

EPSTEIN: Asa Hutschinson, to his credit, said there is no intentional wrongdoing by the White House, and that is the key.

VAN SUSTEREN: But that's not defense there, failure to comply with the subpoena. The White House got a subpoena.

EPSTEIN: The White House got a subpoena for these e-mails. The problem that was created was not a problem of the White House's creation, it was created, it was a technical computer problem that they were not even in charge of administering. This was being administered by the contractors.

When the White House found out that there was a problem, the White House conducted a check, a comparison against the e-mails that were sent to the Capitol Hill, the e-mails that were sent to the independent counsel. They believed, after that check was done, that all of the e-mails had been sent up, and that nothing had slipped through the cracks as a result of this computer problem.

But look, the key thing about compliance is this: Nobody says that this problem was created by the White House; nobody maintains that the White House had any role in creating the computer problem. The evidence that the White House tried to conceal this is really highly questionable, given a couple of facts. One is, each many of the contractors in question have said that they didn't feel threaten, they didn't feel any need to conceal the problem, the allegations about threats and jail sentences were unfounded. Secondly, the problem was reported in published reports in 1998. If there was a cover-up, if there was some intent to keep this problem from being made known, how could that happen if given that we actually knew that there were published reports about this.

COSSACK: Julian, isn't the problem here that the perception of the White House legal tactic, and I agree that it is legal tactic, is that they stall and they delay, and they wait until the very last minute, and then are pushed then to have to comply with legal subpoenas and legal processes. And so when something like this comes up, it just looks bad, perception.

EPSTEIN: I disagree with that. I think that this White House, and I was here during the Bush White House, I think this White House has provided more information or responded to more subpoenas than any White House in the history of this country. They have provided literally millions and millions of pages to the independent counsel, to the Burton committee that has been investigating the White House for seven years. They have, I think, in many cases gone too far in not observing well-founded legally-based privileges. They didn't fight that and they actually provided the information to the two committees.

I think when something like this happens, again, this is not anything the White House had any control over. When the White House found out about this, I think the evidence will show that they took the responsible steps to make sure that the subpoenas were complied with. So I don't think, Greta, to answer your question, they were in violation of any subpoena.

And again, this is not...

VAN SUSTEREN: Well, I mean, we can sit and debate this, I mean, it is whether it is willful is whether there is a violation of the law, but...

EPSTEIN: But that's the point. But even Asa, on this program, is saying that he thinks -- and he is one of the few responsible Republicans that say it that there was no intentional conduct by the White House.

VAN SUSTEREN: Do you have any evidence or information that would make you want to go forward on the issue of whether this was willful or intentional obstruction of justice?

HUTCHINSON: First of all, my statement was, I'm not aware of any evidence of intentional wrongdoing or conduct on the failure to disclose the e-mails, or retrieve that. Now, as to whether that -- is there any indication of that or could lead to it, i think one thing that is a concern today, Chuck Ruff, the White House counsel, indicated that he assigned someone to work on this problem, he does not remember who that person is.

VAN SUSTEREN: So is it more a question of negligence versus intentional?

COSSACK: How do you know? We don't know.

EPSTEIN: That's not what Chuck Ruff said. Chuck Ruff said that when the problem was brought to his attention, he was told by the people that are involved in, again, what is a very technical part of the White House, handle by people that handle paper clips and pencils, the administrative office, he was told that the technical people were conducting a review to make sure the subpoena was complied with. He was satisfied that when the technical people made that a comparison that the subpoenas were, in fact, complied with.

He's unable to identify the particular technical person who was actually conducting the review.

HUTCHINSON: Was there a good basis to believe that review was being conducted properly? I think the overriding question is, did they really care? This is in June of '98, was there a diligent effort to comply with subpoena? Were they happy not to have it complied with, not to have the server...

VAN SUSTEREN: That's not the issue, whether they are happy, I mean the question is willfulness or intent, I mean, not whether they are happy to comply.

HUTCHINSON: Well, maybe I should rephrase that and say: Were they going to put forth a good faith effort to comply with the subpoena? Now I'm not saying that they intentionally engaged in any wrongdoing here but there is a pattern of delay, and that has been tactic of the White House. Now, I think... EPSTEIN: Mr. Hutchinson, and you are I think one of the more responsible Republicans, because you point out that there was no intent by the White House not to comply with subpoenas, but many of your colleagues on the committee...

COSSACK: The congressman doesn't know what the intent of the White House is...

EPSTEIN: Roger, he is saying there's no evidence.

COSSACK: Are you saying that you are sure there's no intent?

EPSTEIN: No, no, no, Roger, he's saying that there's no evidence of that. But the point is this, many of the Republicans in Congress...

COSSACK: Julian, let me ask you to hold just a second.

EPSTEIN: ... rhetoric and saying there was, without having any evidence of that, that's what American people are tired of.

COSSACK: We need a break. Up next, could the White House have saved some legal headaches by exposing its e-mail problems earlier? Stay with us.


Q: On this day in 1989 Marine Lt. Oliver North was convicted in connection with the Iran-Contra Affair.

On what charges did the federal jury convict the former National Security Council official?

A: Obstruction of justice and destruction of evidence. All the convictions against North were eventually overturned by a federal judge.



COSSACK: Fixing the White House computer problem will be costly, financially and otherwise.

Bob Franken, how much longer do we expect this to go on, and before there's a resolution?

FRANKEN: Well, as a matter of fact, the Republicans say that their suspicions are fueled by the kind of disclosure that came almost in off-handed way yesterday. In March, we had testimony from the White House counsel, Beth Nolan, who by the appears later today, that all of this would be wrapped up, all the information would be made available to everybody by the end of September, translate before election day.

Now they are telling us that technicians tell them it cannot possibly be completed before Thanksgiving. And many Republicans are saying: Oh, sure, this is just another way of sneaking this past the election day when it matters.

VAN SUSTEREN: Congressman Hutchinson, here is what upsets me, both -- I blame the White House and I blame the committee. There have been two estimates, one yesterday by the director of White House Office of Administration that the cost of this is anywhere from $8 million to $10 million to resolve this. And the White House had previously estimated $3 million; $8 million to $10 million could do an awful lot for let's say public education in this country. Do you and your colleagues down the street at the White House have any sort of concern about the cost to the American people?

HUTCHINSON: Well, certainly, but I'm not sure those costs estimates are accurate. The system is fixed so that we can retrieve the records. We have to review these. I think those cost estimates need to be reviewed by the Appropriation Committee, and I don't think it is going to take that to do it. I think we have to look at that very carefully.

The question is -- and I'm not saying that there's going to be incriminating evidence that is discovered from a review of those e- mails, but we will never know until we receive those. And I think that there's ongoing investigations by the Justice Department, by the independent counsel, and forget what Congress is looking at, there's other bodies that need to review these for legitimate law enforcement purposes.

VAN SUSTEREN: And I don't disagree with you that the subpoena should be complied with.

COSSACK: Let me respond to that, there are ongoing investigations.

EPSTEIN: Remember what we are talking about, we are talking about, again, a problem that the White House didn't create. Two, e- mails...

VAN SUSTEREN: What do you mean that didn't created?

EPSTEIN: All the testimony indicates, Greta and Roger, that this was created as a computer problem, a technological hiccup by the people that were administering the contract. Secondly...

VAN SUSTEREN: Wait a second, the responsibility, you have got to admit, the way...

EPSTEIN: I don't think there's anything that shows the White House didn't handle it responsibly. Secondly, the e-mails relate to investigations that are largely closed at this point. Most of which, third of all, all of the e-mails...

COSSACK: But there are open and ongoing investigations.

EPSTEIN: The White House is willing to produce those e-mails for those investigations. Thirdly, remember contextually what we are talking about is the vast majority of all of these e-mails are, guess what, they are incoming e-mails, not e-mails that were generated by the White House, e-mails that were sent by other parties to the White House.

COSSACK: Does that mean they shouldn't be turned over?

EPSTEIN: I'm not saying that, they may have some probative value, but it is not the kind of thing that you would expect are going to be enormously probative to many of these investigations which are already closed. But again...

VAN SUSTEREN: Julian, I will go back and I side with Congressman Hutchinson from the beginning, you get a subpoena, it is lawful. If you want to fight it in court, fight it in court, but otherwise comply with it. However, I think the committee is spending an awful lot of money and time on much ado about nothing.

But let me ask Congressman Hutchinson, before we go. Congressman, where are you going with this? What is next?

HUTCHINSON: I think that a lot of this will be done at staff level at this point. We've made this aware to the public. The main thing I want to see accomplished is that the subpoenas are complied with, the information is provided. We need to work together with the White House to accomplish that. Let's look at it, let's don't overstate the case, let's don't imply conduct that is not there. At the same time, let's don't make excuses and delay this further.

EPSTEIN: What you hear the congressman saying, in a polite way, is the committee is already retreating from these excessive allegations that don't have any basis, and that there's no evidence that the White House did not try to comply with...

VAN SUSTEREN: Let me stop. The viewers heard what you both said. But that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE": back to the '70s and a campus tragedy at Kent State University. That's at 3:00 p.m. Eastern time, noon Pacific.

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



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