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Burden of Proof

Republican National Convention: Who Would Governor George W. Bush Nominate as Attorney General?

Aired August 1, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: If the Republican Party recaptures the White House, the U.S. Justice Department could see a right-leaning facelift. Who would Governor George W. Bush nominate as attorney general?

ANNOUNCER: This is BURDEN OF PROOF, live from the Republican national convention in Philadelphia, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello, and welcome to a special edition of BURDEN OF PROOF.

During the past few weeks, much of the attention surrounding Governor George W. Bush has centered on his choice of a running mate, but if Bush is elected president this fall, he'll have an entire cabinet to assemble before his inauguration next January.

GRETA VAN SUSTEREN, CO-HOST: One of the most prominent positions in that cabinet is United States attorney general, and the man or woman selected could represent significant change at the Justice Department.

COSSACK: Joining us today from Washington is Dick Thornburgh, who served in the Bush administration as attorney general. In Sacramento, we're joined by former California attorney general Dan Lungren.

VAN SUSTEREN: And joining is here in Philadelphia is law professor JoAnne Epps.

Dan, first to you. As a fundamental matter, is a Republican attorney general different from a Democratic attorney general? And if so, how?

DAN LUNGREN (R), FORMER CALIFORNIA ATTORNEY GENERAL: Well, whoever is appointed attorney general reflects the decisions, the political philosophy, the sense of the levels of government, the levers of government, the proper use of government. And so yes, obviously, I think a Republican attorney general would reflect overall the philosophy of a Republican president.

In one respect, I think this would probably be very focused, and that is I think there would be a better relationship between state law enforcement officials and federal law enforcement officials because of a better understanding and appreciation of the responsibilities that local and state law enforcement have.

COSSACK: Dick, you're a former attorney general. How do you become -- who's qualified? And how do you become an attorney general? And is there a little politicking that goes on to get that job?

RICHARD THORNBURGH (R), FORMER U.S. ATTORNEY GENERAL, BUSH ADMINISTRATION: Well, there's no cut-and-dried job description, when you review during the last century the persons who were appointed attorneys general. They vary from the president's campaign managers to top law enforcement officials to the president's personal lawyer, in some instances, judges, academics, persons in private practice.

The key thing is the relationship between the president and the attorney general. It's a very close one. The president has to have confidence in the legal ability and the judgment of the attorney general. So it's really kind of fruitless to look at the prospective appointees from the point of view of what positions they may hold now. It's going to depend on the very personal choice that a new president makes.

COSSACK: Dick, are there factions? Are there people who go to the president and say, "We think it should be this guy because we think he's tough in this particular area," or "You should trust him"? Is there that kind of politicking that goes on?

THORNBURGH: I'm sure there is, but I'm not sure how fruitful that is when it comes to the post of attorney general because a lot of people would wash out of that process simply because they don't have the sufficient depth and experience to take on the job. But it's going to be an interesting process to observe in this case.

VAN SUSTEREN: JoAnne, as a law professor and former federal prosecutor, what's, in your mind, sort of the ideal, in terms of attorney general? What would be the perfect attorney general?

JOANNE EPPS, LAW PROFESSOR: Well, it seems to me the first thing you have to think about is you want someone whose integrity is unquestioned because they are the chief law enforcement officer of the United States. They are the chief law enforcement officer for all of the federal laws in the country. So that's the first criteria that goes without saying.

But after that, I think you want someone who is courageous. There are the typical qualities that would go into a good lawyer -- someone who's smart and thoughtful. But in terms of the job of attorney general, you are going to be challenged from all sides. Many of the decisions that you make are going to be questioned by people, so you've got to have the courage to stand up and do what you believe is right in each instance.

COSSACK: Dan, you're a former California attorney general. Does it make any differences to, say, a state attorney general, who the federal attorney general is? Does it have anything to do with the state-federal relationship? VAN SUSTEREN: We've just lost Dan.

COSSACK: Apparently, we've lost Dan Lungren. Let me go ahead and ask Dick Thornburgh.

Dick, does it make -- the same question. Does it make any difference to you, as the attorney general, to work with certain state attorney generals, and is that relationship important?

THORNBURGH: Well, I think a wise attorney general regards the law enforcement process as kind of a seamless web and tries to cultivate good relationships not only with state attorneys general but local district attorneys, with sheriffs, police. I spent a lot of time on the road when I was attorney general, attending meetings and conventions and, in general, getting to know those persons upon whom we had to rely on a daily basis to form a cooperative law enforcement venture. So I think that's got to be a high priority for any attorney general, Democrat or Republican.

VAN SUSTEREN: JoAnne, the attorney general, the current one, Janet Reno, has served longer in history than any other attorney general. How do you think history is going to look at Janet Reno?

EPPS: I think history will look at her as someone who really represented, as Attorney General Thornburgh did, many of the qualities that we like in an attorney general. She took controversial stands, but ones that I think she believed in. Clearly, there are famous incidents that have occurred during her tenure, some of which history may or may not be so kind with, when they are writing her history. But in the grand scheme of the years that she has served as attorney general, I think when we look back on it, we will think about many of the decisions that she made that advanced the cause of an independent attorney general, which I think is a valuable criterion.

VAN SUSTEREN: Dick, looking at the attorney general through Republican prism -- through a Republican prism, how has Attorney General Janet Reno done?

THORNBURGH: Well, I happen to think very highly of Ms. Reno personally. I think she's a person of intelligence and integrity. I think she made a couple of bad calls in office, but I'm sure we all do in our time. I think her longevity in office is noteworthy. There aren't that many attorneys general who have served as long as she has. She's served the longest of any attorney general in this century.

And I think she has worn her badge of independence comfortably. I'm not so sure that her management skills have been utilized to the maximum in tightening down on the Department of Justice, and I think that'll be a task for the next attorney general to tend to right away.

It's a huge operation. It's the -- as you've pointed out, not only the chief law enforcement officer but counsel to the president and senior partner in the world's biggest lawfirm, if you want to put it that way, because the Department of Justice does a lot more than simply enforce the laws.

COSSACK: Dick -- let me actually go to Dan Lungren, who's back with us now.

Dan, we hear about judges. They're judicial activists. And then we hear that there's ones who strictly interpret the law. Are there -- are there activist attorney generals, and should there be?

LUNGREN: Oh, I'm sure there are, from your definition of activist attorney generals. There are those who are looking to see how far they can take the law. There are those who are satisfied with the status quo. In many cases, it really goes to the question of what the president of the United States really envisions the position of attorney general to be and the Justice Department to be.

If I could go back just for a second, though, to the relationship between the feds and local and state government? There is a misunderstanding in some circles that somehow if it is federal, it is important, if it is local or state, it is unimportant. I think it's extremely significant for an attorney general to understand the difference between federal, state and local and not, in a way, to act as if the feds have to come in every time something is important, or it's defined as being important by the feds.

In many ways, you have to understand there are far more law enforcement officials at the local and state level, and that just being the case, if you have this misunderstanding, you can really upset law enforcement, true, effective law enforcement. So rather than saying it's an activist or status quo, it seems to me that sensibility's extremely important. And there are some attorney generals who understand it, and there are some who do not.

VAN SUSTEREN: All right, we're going to take a break. Up next: how GOP influence would affect the inner workings of the Justice Department and the cases is prosecutes.

Stay with us.


President Clinton told a group of trial lawyers Sunday that minority nominees for the federal bench "are being held in political jail" by the Republican-controlled Senate. Clinton has nominated three African-Americans to the 4th circuit, which has never had a black judge. Two of those nominations are pending, but no confirmation hearings are scheduled.



COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And 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.

VAN SUSTEREN: Governor George W. Bush is slated to arrive in Philadelphia tomorrow. And if Bush, the presumptive nominee, is elected this November, the Justice Department could be in store for a Republican facelift.

Dick, let's talk about that facelift. A big case in the news the past year or two has been Microsoft antitrust. Typically, the Democrats are more aggressive in antitrust. If the -- if Governor Bush is elected president, if there's a nominee that he puts in the attorney general's seat, do you think it's going to affect the Microsoft case?

THORNBURGH: Oh, I don't think it'll affect the Microsoft case, which is on appeal now. But I do think there'll be a tad less enthusiasm about attacks on business on the ground of bigness. I think that Governor Bush and the Republicans traditionally have regarded the antitrust laws to be used to preserve competition and not necessarily to punish bigness. And there are overtones of that in the Microsoft case that I don't think are going to recur if there's a Republican attorney general and president in office come January.

VAN SUSTEREN: JoAnne, do you agree? I mean, this whole issue of antitrust has become so important. I mean, we even have the merger of AOL and Time Warner, CNN's parent company. Everything seems to be getting big. Antitrust is a big issue. Does it make a difference if it's a Republican administration or Democrat, do you think?

EPPS: I think it makes a big difference, and I disagree on the prediction about Microsoft. I think it could change the outcome in Microsoft in this way...


EPPS: Even though the case is on appeal, one of the things that's very probable is that the Microsoft case is ultimately going to be the result of a settlement. There's going to be an agreement about the terms of its future existence. It seems to me that if you have a new facelift at the Justice Department that you could well have a different attitude about what Microsoft might propose that the Department of Justice would be willing to accept.

VAN SUSTEREN: Do you think Microsoft is at all banking on the fact -- I mean, is there -- is it -- are they hoping for a Republican president, do you think, or is that just unrealistic to predict those things?

EPPS: Well, obviously, I can't know, but if I had to guess, I would think yes, they're hoping for a Republican president because I think it's going to -- it could well change the feeling of the Justice Department about them, and it could well change the feeling of the Justice Department about the industry in general. And I don't just mean the technology industry, but as former Attorney General Thornburgh said, there is a sense from the Democrats' perspective that if things get to big, it must be stifling competition. And I think that's not the view of the Republicans, and there's lots of people hoping for a change.

COSSACK: Dan, I want to go back to... THORNBURGH: Keep in mind that any settlement of the case will have to be approved by the court, so that regardless of what the negotiations between the parties are, if the court doesn't accept the settlement, it won't go down. But that is a real possibility. Settlement has been tried first by Judge Thomas Penfield Jackson, who called in Judge Posner to try to effect a settlement. I'm sure there are settlement discussions going on even as we speak, and I don't think that's necessarily a bad outcome. But it will have to be approved by the court. It can't be undertaken unilaterally by a new attorney general or administration.

COSSACK: Dan, I want to go to you and change the topic a little bit and talk about the enforcement of the criminal justice system. Recently we've seen that there's now two million people incarcerated in the United States, I think, which puts us in number-one position of having people incarcerated. A great majority of them are minorities, certainly more than their percentage of the population. As an attorney general and active attorney general, do you think that we should review perhaps the drug laws which most people are incarcerated for and apparently has a high incidence of minorities incarcerated?

LUNGREN: If I could just mention the antitrust thing first, then I'll go to that question.

As about as conservative and law enforcement-oriented attorney general as you could find and one who does not believe that bigness is necessarily badness, I joined in the Microsoft case for the state of California. I also joined in the case, in one of the chief negotiators in the tobacco case. I think perhaps the terms of a settlement might be different if someone with my viewpoint were there, as opposed to someone with an expansive viewpoint that believes that business is necessarily defined by how big it is. But I think you have to understand that those of us who've been involved in this and are lawyers and do have an understanding of the law, when we see something that's wrong on the antitrust side, we will act, as well.

Now, going to your question with respect to the criminal justice system. I was in the Congress and carried Ronald Reagan's '84 Comprehensive Crime Control Act, and then was one of the chief authors of the '86 and '88 anti-drug laws. I would be willing, as I think anybody who was in my shoes or anybody who would be attorney general, to take a look at the laws to see if they can be tweaked here and there. But if you're looking for a major overhaul in approach, saying that somehow we have to get rid of the war on drugs, that somehow going after dealers is wrong, that somehow that we should not attack both the supply side and the demand side, I don't think you're going to find that.


VAN SUSTEREN: Let me ask Dick a question...

COSSACK: Let me just finish that. Let me follow up on this.

But Dan, in terms of the sentencing guidelines, you know, there's been major criticism of the federal sentencing guidelines, with mandatory minimums and first-timers ending up with 10-year sentences. Don't you think there should be some review of that?

VAN SUSTEREN: And let me -- let me add one aspect to it. Dan, you know, you can commit second-degree murder and you can commit a couple of drug offenses, and you can get possibly more time for drug offenses than second-degree murder.

LUNGREN: Well, let's understand what we're talking about. I see these figures saying that X percentage of people are in the -- in the federal system or in the state systems because of drug offenses. That's a bit of a misinterpretation. What is fact is this, that about 75 percent of those people who are in the criminal justice system, incarcerated, have a drug relationship, which means while they may be in for a particular crime, they were found to be under the influence or in possession of drugs at that time.

Secondly, many of them have violated parole or violated probation conditions thereof as a result of being found dirty on a drug test. They then go back in, but they go back in to serve the balance of the time that they received for the other offenses.

Now, one of the recommendations that a national commission on model state drug laws, which was established by President Bush and then we continued our work under President Clinton, was to recommend that there be drug assessments of people when they come into the system and, if necessary, for evaluation and treatment, that would be mandated, along with other aspects of the criminal justice system, not in lieu of punishment, if that's appropriate for other crimes, but an additional condition so that we can improve their chances of rehabilitation if, in fact, those chances exist.

COSSACK: All right, Dan, let me stop right here. We got to take a break.

When we come back: The next attorney general of the United States could set the tone for federal law enforcement in the next four years.

Stay with us.


Q: The Liberty Bell's signature crack is believed to have occurred while marking the death of which Supreme Court Justice?

A: Chief Justice John Marshall in 1835.



COSSACK: If a Republican occupies the Oval Office next January, a new cabinet will reflect the ideologies of the new administration. Included in those cabinet posts will be the chief law enforcement of the country, the U.S. attorney general.

Dick, let's talk about Civil Rights. The attorney general has to enforce the Civil Rights laws. Recently we've seen a great debate on hate crimes. Does -- who is the attorney general and the -- and the -- who is the president, does that make a difference on the enforcement of these kinds of Civil Rights laws?

THORNBURGH: Oh, I think it does. Certainly, under President Bush, the Americans With Disabilities Act, the most important Civil Rights law of the last decade or two, was passed.

But let me mention one area where there's sure to be action, and that's in the area of civil justice reform. President Bush made tort reform a big priority when he was governor of Texas, and I think that the next attorney general will do that, as well. President Clinton vetoed a bipartisan products liability bill, a veto that was conceded to have been bought and paid for by the plaintiffs' trial lawyers. And I think there's going to be a major push to try to deal with the problem of runaway verdicts and...

VAN SUSTEREN: Dick, let me ask you...

THORNBURGH: ... excessive legal fees.

VAN SUSTEREN: How does -- how does the attorney general do that, in light of the fact that the governor has been so adamant that we should have states' rights, and tort reform, which I did -- I did tort work for a long time -- is a state -- states have been doing it all the time. Suddenly, the governor's going to become president, and somebody's going to say, "Forget states' rights. Now we're going to do national"...

COSSACK: Wait a minute.

VAN SUSTEREN: And let me add one other thing...

COSSACK: More than that now...

VAN SUSTEREN: No, let me add one thing. When he talks about the death penalty, he talks about "I must defer to the juries. The jury knows." When he talks about tort reforms, he says, in essence, that "Juries are too stupid. They don't know how to award damages, so I need to put a cap on so corporations don't have to pay money." How do you settle that inconsistency?


THORNBURGH: I appreciate your editorial comment...

COSSACK: What does this have to do with the attorney general, Dick? Isn't this what Congress should decide?

THORNBURGH: Oh, but the attorney general is the spokesman for the administration on matters relating to law. And I think that this is clearly an area where President Bush, but dint of his record in Texas, is going to take a lead role in trying to resurrect the effort that almost succeeded in the last Congress to bring some common-sense reforms to the tort system.

VAN SUSTEREN: All right, let me go to JoAnne, now that I've taken on poor Dick on the issue of tort reform.

COSSACK: (INAUDIBLE) whole thing without a rant from you.

VAN SUSTEREN: No, no! Dick and I have gone through this before. Let me join -- let me switch gears.

Independent counsel statute died a year and a month ago, and I assume, no matter who -- which administration comes up next, there's going to be an issue about some investigation. How does the Justice Department investigate the Justice Department? Or can they?

EPPS: Yes, in theory, they can. I mean, the independent counsel statute, in theory, is a good statute. But if we look back over the seven times that Attorney General Reno named a special counsel, the many times that she didn't and was criticized about it, it's clear that the former statute needed work and needed change. I mean, it seems odd that the Justice Department can investigate the Justice Department, but that's no different than a local police department setting up an internal affairs division to investigate...

COSSACK: Which also...

EPPS: ... misconduct...

COSSACK: Which also there's problems with.

EPPS: Well...

VAN SUSTEREN: I got to stop both of you because that's all the time we have for today. Thanks to our guests, and thank you for watching.

Tomorrow on our program: How this year's election could impact the United States Supreme Court. Our guests, former federal judge and independent counsel Ken Starr and former federal judge and Supreme Court nominee Robert Bork.

COSSACK: On Thursday, join us as we break down the legal issues within the Republican Party's 2000 platform. Our guests will include Wisconsin Governor Tommy Thompson.

Stay tuned to CNN for complete coverage from the Republican national convention, and join us tomorrow for another edition of BURDEN OF PROOF. We'll see you then.



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