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Burden of Proof

President Clinton Faces Another Grand Jury Probe

Aired August 18, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, two years after President Clinton testified before a federal grand jury, news breaks of another grand jury probe. Is the president the likely target or is someone else?


WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES: I want you to listen to me. I'm going to say this again. I did not have sexual relations with that woman, Ms. Lewinsky. I never told anybody to lie, not a single time, never. These allegations are false.

While my answers were legally accurate, I did not volunteer information. Indeed, I did have a relationship with Ms. Lewinsky that was not appropriate. In fact, it was wrong.

I will instruct my lawyers to mount a vigorous defense using all available, appropriate arguments, but legal language must not obscure the fact that I have done wrong.


VAN SUSTEREN: Hello, welcome to BURDEN OF PROOF. In August 1974 when Gerald Ford took over the White House after the resignation of President Richard Nixon, he told the American public, "Our long national nightmare is over." But the man who succeeds President Clinton may not have the same opportunity.

ROGER COSSACK, CO-HOST: Last month, independent counsel Robert Ray impaneled a new federal grand jury to investigate charges of perjury and obstruction of justice in the case involving Monica Lewinsky and the president. Legal sources tell CNN the new probe could signal legal hot water for the president once he relinquishes the Oval Office.

Joining us today from New York is former federal prosecutor Steve Cohen.

VAN SUSTEREN: Joining us today here in Washington, Sol Wisenberg, a former deputy to independent counsel Ken Starr, "Washington Post" reporter Susan Schmidt, co-author of "Truth at Any Cost," and former White House special counsel Lanny Davis. In our back row, Sarah Foley (ph), Sarah Fuford (ph) and Jennifer Bouschard (ph).

Susan, let me go to first to you to your book to the end of your book, the epilogue -- not that I want to read your own book, I'm going to do it for the viewers. It says, "New activity at the federal grand jury would be one sign of an indictment in the works. The OIC also would have to bring in new agents and lawyers to prepare their case and to get witnesses ready to testify."

The action that we heard about first yesterday, does that suggest something ominous for the president or are we just jumping to wild conclusions?

SUSAN SCHMIDT, "THE WASHINGTON POST": No, I think it does. That was the tip off that Robert Ray is doing something and he doesn't not need to bring in a new grand jury to simply conclude his case. If he's going to refashion the evidence for trial purposes, he needs a grand jury.

VAN SUSTEREN: But isn't the president -- I mean, let me give you some facts and maybe you might think otherwise, is that a year ago when the question whether to extend Robert Ray's investigation for one year came up, one judge, Judge Cudahy (ph), dissented saying that he didn't think there was anything new or necessary. Then yesterday, when he voted, he apparently thought that the investigation should be extended for another year, suggesting something new was up. Could it be that if someone, other than the president because he's been so investigated?

SCHMIDT: Well, that's possible, I suppose, but I think Judge Cudahy last year complained that he wasn't being given any information to show what the office was doing. He complained that the judge that heads the panel, Judge Sentelle, was getting an earful about what was happening but he was being left out.

This time, it looks like Bob Ray has filled him in on what he's doing and, in fact, wrote a letter to the judges saying he impaneled a grand jury.

COSSACK: Sol, you were very well connected in this, obviously, working for Ken Starr. What do you think is going on with this grand jury? And, you know, let's get right to it. Does this signal perhaps the indictment of the president when he leaves office?

SOLOMON WISENBERG, FORMER KEN STARR DEPUTY: I don't necessarily think that it does, Roger. I think that Bob Ray, if he's going to do a number of things, has to have a grand jury. You've got to have a grand jury to subpoena people, to gather evidence and to do a number of things like that. And sure, you can use an existing grand jury but it's a lot harder to go begging to the U.S. attorney's office in the District of Columbia for grand jury time. If you have your own grand jury, you don't have to do that. Now...

VAN SUSTEREN: Sol, what ever -- I mean, I want to talk about prosecutorial discretion. I mean, the idea at this late date in the investigation to spend this kind of money on this type of issue when you have concerns about an election coming up, what about prosecutorial discretion and just forgetting the whole thing? It seems vindictive to me at this point.

WISENBERG: Oh, I don't think it's at all vindictive. As the president's supporters, many of his supporters pointed out during the impeachment proceedings, they pointed out that this is a question for the criminal justice system. And Bob Ray is seeing that through. But I really think it's very important that we don't jump to conclusions. I mean, Bob Ray has already publicly said that he's going to consider whether or not to bring an indictment against the president. If he waits until January, till the president has left office to even impanel the grand jury, you're talking about at least November or December. This gives him insurance. He's got a new grand jury. Anything he needs to bring to them in terms of old evidence, which they would have to see -- you know, it's not enough to go to a grand jury and say, "You all have read about it in the papers. You know all about it."

VAN SUSTEREN: Lanny, you want to respond and get into this?

LANNY DAVIS, FORMER WHITE HOUSE SPECIAL COUNSEL: My first response is: Give me a break. If he waits till November to impanel the grand jury rather like the day after the election rather than do it in July, it wouldn't be the end of the world.

VAN SUSTEREN: Except you might have people sitting around theoretically spending more money on an investigation that maybe shouldn't go anyplace anyway.

DAVIS: Excuse me. Given the importance that Mr. Ray avoid the appearance of trying to impact the election, it would have been worth him at least thinking about waiting until after the election to do this. More importantly, I haven't heard Mr. Ray send his public spokesman out, and I hope Sol will join me today in expressing the outrage that whoever leaked this -- and I don't know who leaked it -- had to be politically motivated to do it on the Thursday of Al Gore's vice presidential nomination.

Mr. Ray should have been denouncing that leak, calling in FBI agents, and launching an investigation as to how this leaked. He has been silent and it makes me wonder as it makes me wonder about a lot of leaks that one can imagine coming as a hand off. They say it didn't come out of the independent counsel's office. Well, we know from reading Sue's book and other reporters that sometimes leaks occur because members of the independent counsel's office inform other people outside of the office who then leak to reporters and they can deny that...

VAN SUSTEREN: Or it could be a grand juror. Or it could be a grand juror.

DAVIS: Or it could be a clerk in the courthouse.

VAN SUSTEREN: A clerk in the courthouse.

WISENBERG: That's outrageous.

VAN SUSTEREN: We don't know who it could be. DAVIS: Or it could be a clerk...


COSSACK: Let me jump in here.

DAVIS: I haven't heard anybody from Ray's office yet denounce this leak. I'd like to ask Sol why not.

COSSACK: You know, wait, wait a minute.

WISENBERG: They issued a -- I'll be happy to answer that. I'm sorry to cut you off, Roger. I'll be happy to answer that. Look, it's clear the reporter who broke the story said, "My sources are outside the independent counsel's office."

VAN SUSTEREN: Well, wait a second. The "New York Times" tried that one with (UNINTELLIGIBLE).


WISENBERG: Wait a second. Wait a second.

VAN SUSTEREN: Wait a second. That's not too convincing.

WISENBERG: No, they didn't. No, they didn't do that. They -- this reporter explicitly said that the sources were outside of the independent counsel's office and the independent counsel's office immediately issued a press release saying that they were not the source and they weren't going to comment on it...

VAN SUSTEREN: Let me quickly respond to that.

WISENBERG: And more importantly, Greta.

VAN SUSTEREN: Wait a second.

WISENBERG: Well, this is important. Everybody in this town knows this came from the courthouse.

VAN SUSTEREN: Well, first of all, we don't know. I don't know if it came from Robert Ray's office. I don't know that.

DAVIS: Why isn't he investigating this?

WISENBERG: He doesn't have jurisdiction to investigate that. You know that.


DAVIS: He has jurisdiction to investigate a leak of (UNINTELLIGIBLE)...


COSSACK: Just a second out there. VAN SUSTEREN: We have no idea where it's coming from at this point.

COSSACK: Steve Cohen, I want to ask you a question.


COSSACK: Greta? Greta, let me ask Steve Cohen a question.

VAN SUSTEREN: Hold on one second. Roger, hold on. Susan Schmidt will tell us what the source is. Then you can...

COSSACK: All right.

SCHMIDT: I mean, it was in the AP story they had originally ran and it was in "The Washington Post" story. This came from the courthouse. The story originated in the courthouse. Lots of people down there.

VAN SUSTEREN: Well, that could be anybody, Susan. I mean, you could have a prosecutor sitting in the courts, you're right. I'm not saying Robert Ray's office did it but that's unconvincing to me as well. I don't think we know.

DAVIS: And again, I don't see why this isn't being investigated by Mr. Ray. It's a serious breach of grand jury secrecy and confidentiality. Why is he not investigating?

SCHMIDT: How can they investigate the courthouse?

DAVIS: He could certainly launch an investigation of leaks of information that was supposed to be protected, and he certainly has verified in your story today that he wrote a letter -- that he wrote a letter to the three-judge panel.

COSSACK: Lanny, Lanny, I have to take a break here so I'm going to do that. I think we should have another grand jury to investigate the leaks, too.

Up next, what is the role of this new federal grand jury in Washington? More grand juries. And will witnesses be called to testify? Stay with us.


A Connecticut judge found reasonable cause yesterday to try Kennedy relative Michael Skakel on a murder charge for the 1975 death of 15-year-old Martha Moxley. The judge has ordered an investigation into whether Skakel should be tried as an adult.



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.


ROBERT RAY, INDEPENDENT COUNSEL: Then what remains within the jurisdiction of this office, my office in matter involving the Lewinsky investigation and the president's prior testimony. And I have commented about that previously, that that is an open investigation that will continue until such time as the president leaves office.


COSSACK: Yesterday, it was leaked that independent counsel Robert Ray has launched a new grand jury probe of President Clinton. This is the second grand jury probe to investigate the case involving Monica Lewinsky. The question is: How different is this probe and what is it seeking to determine?

Steve, you know Rob Ray, Robert Ray. And you know, from my viewpoint, when I practice law, grand juries didn't hear evidence unless they were going to return an indictment. In fact, none of us can even remember the last time a grand jury didn't return an indictment. So, you know, I think this is pretty ominous.

COHEN: I think you're right that in the ordinary course, you would think that this is a bad sign for the president. And the reality here is Bob Ray is in a tough spot no matter what he does. I mean, first of all, this is his moment in the sun and he understands that. He will be defined the rest of his career by what he does here. You've got pressures on both sides. And Bob, if he is one thing, he is a guy who takes his responsibilities very, very seriously. And I think the fact that he has impaneled a grand jury doesn't necessarily mean that he's going to do anything. It means that he's going to look at this stuff.

Now somebody might question the judgment of doing this at a time when you knew it would come out somehow and it would obviously have a potential political impact.

VAN SUSTEREN: But Steve, when you say looking at this, my god, has anything been looked at more? When you're thinking about sort of allegations...

COSSACK: Yeah, it's not like you don't know how this ends.

VAN SUSTEREN: We've had a lengthy investigation by Ken Starr. We had the hearings before the House Judiciary Committee. We had a trial in the United States Senate. This isn't ax murder. I mean, nobody's going to die from it. It's a tremendous expense. I mean, you know, at some point, prosecutorial discretion does enter into the picture.

COHEN: I agree with all of that. COSSACK: Unless you want to indict, Greta. Unless you want to indict.

COHEN: Well, but, Roger, I don't think that's necessarily so. I mean, you've got to look at the guy you're dealing with who's investigating this case. And the reality is Bob Ray, of all the people I know who served as prosecutors, the guy took every oath that he had ever taken seriously. He meant it. Now I would argue that the guy who deserves to be in "Profiles and Courage" is the guy who shuts this thing down and weathers whatever complaints come from it. But Bob is the type of guy who is going to look at this thing. And I suspect that...

VAN SUSTEREN: Let me ask you, if he's the kind of guy to look at this, Steve, I mean, are you saying then that Ken Starr didn't? I mean, Ken Starr had an opportunity to pursue it a little bit further, I suppose. I mean, doesn't that sort of reflect a little bit on Ken Starr?

COHEN: No. Look, I don't think that this is the way I would go about doing this. But the reality that Bob Ray sort of gets plucked from among many and he is given this responsibility to finish the investigation. Now he does not believe that means just shut it down. He's going to look at things. And the problem is -- I mean, if you want to be concerned, there are always issues that you can look at. You know, the point in prosecutor discretion is at some point you say, it just ain't worth it anymore. And my concern would be that Bob has a very, very high threshold of saying, "Hey, it's not worth it anymore." And I suspect that what may be going on here is Bob feels an obligation to kind of follow up every possible lead. Doesn't mean he's going to indict at the end of the day, but it does mean that this thing is going to remain kicking around for a lot longer than it should or that anybody or most people -- I think most right-thinking people -- think it should be.

DAVIS: Greta, may I just make...

COSSACK: Sol, Sol, does that mean we're going to be seeing witnesses before the grand jury? I mean, I don't know what more there is to look at but I suppose that witnesses show up.

WISENBERG: Well, listen, unless there's something really new -- and what we pointed out off camera is there might be something really new connected to the White House e-mails that we don't even know about. But barring something like that, I think that at a minimum, what you've got to do with a new grand jury like I said is present the significant evidence that other grand jury looked at. You can't just go in and say, everybody knows what happened. And it might very well be that duty that we talked about with Bob Ray, that he believes his duty is ultimately not to shut this down on his own say so but to present the evidence to a new

VAN SUSTEREN: You know what? Sol...

WISENBERG: ... to present the evidence -- wait, let me -- can I finish my thought? To present the evidence to a new grand jury and say, "You guys decide."

VAN SUSTEREN: Let's talking about duty. If we're talking about duty, it's a duty of a prosecutor exercise good judgment. It's not the duty of a prosecutor to put this country through this one more time. It's not the duty of a prosecutor to allow this information to...

WISENBERG: What do you mean, put this country through this? What are you talking about?

VAN SUSTEREN: We went through -- it's not the duty of a prosecutor to let information about a grand jury be leaked out. Now it may have come from the court.

WISENBERG: He didn't do that and you know he didn't do it.



WISENBERG: We know it came from the court.

COSSACK: Greta, you even said we don't know where that came from.

DAVIS: Can I talk a bit about judgment here.

VAN SUSTEREN: Can I hold -- I'll let you talk, Lanny, right when we come back from break. We're going to take a break. When we come back, Lanny's going to be the first to talk, I promise. Stay with us.


Q: Which Amendment to the Constitution was ratified on this day in 1920?

A: The 19th Amendment. Tennessee became the 36th state to ratify the amendment, allowing women the right to vote.



VAN SUSTEREN: Welcome back. Lanny, I promised you when we came back you'd be the first to talk. I interrupted you.

DAVIS: I respect Mr. Ray. I think he's a person of high capability and integrity so I'm not questioning his motives here. I am questioning his judgment. It seems to me that he should be walking the extra mile to avoid the perception of political instruments being used in the middle of a presidential campaign. And when Mr. Starr, for example, chose to issue the report in September eight weeks before the congressional election rather than waiting eight weeks, that raises questions of at least appearances of having that report timing have some impact on a congressional election. Now surely, Mr. Ray must have realized when he decided to do something in July rather than November that there was a possibility that there would be courthouse leaks. And I question the judgment that now that this has happened, that he isn't out there expressing the outrage over the leak and especially over the...

VAN SUSTEREN: Well, I think he did make a statement about it. I mean, it's sort of like -- I'll tell you, Lanny, you know, people criticize Ray and his denial was not vigorous enough just like people criticize the president -- his apology wasn't vigorous enough.

DAVIS: I'm sorry he did not, he did not. He has not said anything publicly. It was not in "The Washington Post" story. I looked for it. He could have...

VAN SUSTEREN: I won't hang him for that. I'll tell you that. I will not hang him for that.

DAVIS: And the other thing I would mention is your point. Let's remember that although Mr. Wisenberg off camera says even though there's no new evidence, he's still glad that this is happening, and he calls somebody...

VAN SUSTEREN: Are you, Sol, are you glad this is happening? Let me ask you -- let's ask Sol.

WISENBERG: I'm very sad that President Clinton is a criminal and violated the criminal law. But if he did so, he has to be tried like anybody else. No man is above the law. Watergate taught us that.

VAN SUSTEREN: How can you call him a criminal before -- I mean, the guy hasn't been charged.

WISENBERG: Well, OK, that's the point then. Let's let the criminal justice process work.

DAVIS: Can I finish? This is exactly what I'm referring to. Ten Republican senators looked at the evidence and said, "I'm going to vote to convict if I think that there was obstruction of justice." One of whom was Fred Thompson. One of whom was Slade Gordon. One of whom was Arlen Specter, a former prosecutor. They didn't call Bill Clinton a criminal. They voted to acquit. Five Republican senators didn't (UNINTELLIGIBLE) perjury.

VAN SUSTEREN: Steve, you want to get in quickly before we run...

DAVIS: This is a vindictive prosecution and we see evidence of it on the air on the record today for the first time.

WISENBERG: That was just one count, Lanny.

DAVIS: I just said two counts, obstruction and perjury.

COHEN: Yeah, Greta, I mean, my only point would be the notion that...

VAN SUSTEREN: Go ahead, Steve.

COHEN: ... because somebody did something wrong and violated the criminal law, they must be held accountable is a really lovely, idealistic notion. The practical reality is you can't have a prosecutor and you can't have a world in which every crime is investigated to the fullest extent of the law. The reality is at some point, you say enough is enough, you move on. Life is short.

VAN SUSTEREN: And you know what? I'm not convinced. I got to tell you, I will take even a harder -- I'll take a harder position than all the rest of you. I am convinced that the president lied at the January 17th Paula Jones deposition. I am not convinced it is perjury. Perjury has a specific definition that each one of you lawyers know.

COSSACK: That's why a jury should -- perhaps that's an argument for having a trial and letting a jury decide that.

VAN SUSTEREN: Because -- Roger, wait a second. We are so far beyond that. Are we really going to spend this money and time on this and the American people really want to go through this again?

COSSACK: Well, let me just argue this.

VAN SUSTEREN: Then we go back to prosecutorial discretion.

COSSACK: You know, I heard what Steve said. Steve said but perhaps, you know, if you're talking -- not everybody should be investigated but perhaps you make an argument -- and I'm not saying you do -- that if it's the president of the United States of America, that perhaps that person should be fully investigated.

COHEN: Oh, Roger, I think...

VAN SUSTEREN: Do you really think that we have -- I mean, that the president has not suffered, has not been punished for the conduct, Roger? Do you really believe it would be necessary to go through this whether or not...

COSSACK: I absolutely think he's been punished and I think the president suffered. And you know something? I only wish that was a defense for all of the clients that I represented that I could have said, "You know, judge, I can't tell you how much trouble this has caused them." And nobody would have said goodbye to my clients.

COHEN: My concern here is at the end of the day, what Bob Ray is going to do is use the grand jury for the very process that Greta has raised, the very notion that, well, is it enough or isn't enough. Well, let's let the grand jury decide. And I think that's just inappropriate at this point. This thing should be over.

VAN SUSTEREN: Susan, you wanted...

COSSACK: Well, that's my point. I think once you start having a grand jury, I think that they're bringing them there to indict him. I've never seen anybody -- any prosecutor go before a grand jury and didn't end up with an indictment.

COHEN: No, that happens -- Roger, that happens in New York all the time.

VAN SUSTEREN: All right, let me just stop both of you, and I'll give the last few seconds we have to Susan. You wanted to get in.

SCHMIDT: I don't think this is any surprise that this is happening. We reporters who cover this have been looking to see whether a grand jury would be impaneled. We've known to be looking for this since the impeachment. I mean, this is what Starr was doing. This is what Ray has said he was doing. So this is not a big surprise that this is happening.

VAN SUSTEREN: Well, certainly, another chapter in this investigation. We have lots to talk about for a long time to come but that's all the time we have today. Thanks to our very lively guests and thank you for watching.

Today on "TALKBACK LIVE," as political foes argue about the timing of yesterday's leaks, is Vice President Al Gore on his own in his quest for the White House? Tune in, log on and weigh in at 3:00 p.m. Eastern time, noon Pacific.

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



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