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Burden of Proof

Transition of Power: What Kind of Justice Department Will There be in a New Administration?

Aired December 19, 2000 - 12:30 p.m. ET



JOANNE EPPS, LAW PROFESSOR: 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.

SEN. TRENT LOTT (R-MS), MAJORITY LEADER: This is a time for a new beginning, a new atmosphere, a new tone. I believe we have a leader in George W. Bush that will provide direction toward a more cooperative atmosphere.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: the transition of power. As President-elect George W. Bush prepares to assume the nation's highest office, what kind of Justice Department can we expect in a new administration?

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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

President-elect George W. Bush is meeting in Washington today with President Clinton and Vice President Al Gore. Meanwhile, the president-elect and his transition team are moving forward with the process of putting together a Cabinet.

ROGER COSSACK, CO-HOST: One of several Cabinet positions still to be filled is that of attorney general. What type of appointee will be chosen for the key post, and what changes can we expect in the Justice Department?

Joining us to help us, from Sacramento, California, is former California Attorney General Dan Lungren. In Hartford, Connecticut is Connecticut Attorney General Richard Blumenthal.

VAN SUSTEREN: And here in Washington, Louise Driscoll (ph), Steven Sunshine, a former Justice Department antitrust lawyer. And in our back row, Crystal Galny (ph) and Jennifer Maser (ph). Let me go first to you, Dick. The attorney general of the United States, what kind of person can we expect, and does it make a difference in your mind that we have a 50/50 split in the U.S. Senate?

RICHARD BLUMENTHAL, CONNECTICUT ATTORNEY GENERAL: An enormous difference, because I think that the next attorney general will be very much in the spotlight, very much the center of attention as the chief law enforcement officer in a lot of highly sensitive cases like Microsoft, environmental enforcement, even in the criminal area, where increasingly the responsibilities of the attorney general go beyond our borders to terrorist acts abroad, and where the requirement is not just diplomacy intact with the United States Congress, but our international responsibilities obviously very much on the minds of the United States senators who will be coming.

VAN SUSTEREN: Does it make a difference, do you think, in terms of who President-elect Bush will select, that he has to contend with the fact that the Senate is split right down the middle? Is that going to make -- is that going to have an impact on his selection, do you think?

BLUMENTHAL: It will impact on his selection because he will want someone of unquestioned integrity, someone who will act in a way that is nonpartisan, who will make judgments on the merits of each decision, and who doesn't have baggage, of an ideological kind, either on the left or the right. And so I think he will want someone with a strong background in law enforcement, not someone who is just a friend of the president, but someone who knows about enforcement, knows the law, who has a reputation for integrity and making judgments on the merits.

COSSACK: Dan Lungren, attorney general recently has been a position that was supposed to be nonpartisan, or at least it was thought of as nonpartisan. In some ways it's become politicized just by the very nature of what the job is and some of the requirements that Janet Reno had to do. With that in mind, what kind of person should President-elect Bush be looking for to be the attorney general?

DAN LUNGREN, FORMER CALIFORNIA ATTORNEY GENERAL: Oh, I don't think you are going to be looking for a neutered person, that is someone who doesn't have some philosophy. But I think you need someone who has proven himself or herself in the past to be objective, in terms of his or her approach to criminal justice issue, if they've been in a position of a prosecutorial nature.

That's one of the unique points of being an attorney general, either on the federal level or the state level, you have to assume a posture which allows you to not only retain the confidence of the individuals who may oppose you politically, but to retain the confidence of the people that you are to serve.

I would suspect that President-elect Bush will choose somebody who has that experience, and I would suspect he will try and have someone who can work well with state and local officials.

And Dick was right about the international aspect of the job, but most importantly, it seems to me, is the job of establishing a good relationship with, not only the federal branch, but also with those law enforcement officials on the state and local level because there are far more of them than there are on the federal level. If you are going to have a truly functioning criminal justice system, one that it merits the confidence of the people, it has to be one that fully integrates local, state and federal.

I think, in this administration, not only because he's governor of a large state, but because of his experience, I think you might look for someone who will be able to interface well with state and local officials.

VAN SUSTEREN: Steve, you worked at the Justice Department. In terms of the attorney general, there are an awful lot of prosecutors and lawyers at the Justice Department that are not affiliated with either party, that are lifers. Does an attorney general really sort of chart the direction of the Justice Department, or is there such a strong institution that it sort of operates on its own?

STEVEN SUNSHINE, FORMER ANTITRUST LAWYER, JUSTICE DEPARTMENT: The attorney general is the top slot in the Justice Department. And the attorney general, and the staff he or she brings, sets the policy. And that really does influence the course of the election. They make the key decisions. There are literally thousands of jobs that the Department of Justice does day in and day out, that's done by the institutionalized staff, that is not going to change much.

VAN SUSTEREN: Gives me an example where it makes a difference who the attorney general is.

SUNSHINE: Where it makes a difference, well, easy example, if we look in the present administration, and we look at some of the highly political and politicized investigations that were called upon to appoint special prosecutors, for instance, and obviously those are key political decisions, and...

VAN SUSTEREN: Let me ask, Dan. Dan, are those political decisions, I mean, it always seems like when someone doesn't like a decision when it is made by an administration that you often hear it is political decision. Dan, do you think that decisions, like the example given by Steve, the special prosecutor, independent counsel, are those political decisions or are those judgments?

LUNGREN: They shouldn't be political decisions, they are judgments, but if you are the attorney general of the United States, you obviously have to bear in mind the way it is going to be looked at politically, not that that makes your judgment, not that you would then say, well, because I have to take the heat, I have to decide this way, but rather you should be willing and able to defend your decision in the political context, because you are going to be criticized in the political arena. You have to be strong enough to make that decision on an objective basis, but at the same time, you have to be cognizance of the fact that, as you gain the confidence of the American people, part of that is being able to explain what you've done in that political environment. COSSACK: Dick, in a conflict between the president and the attorney general over policies that the attorney general believes is most important, whose word should carry the day?

BLUMENTHAL: Ultimately, the president, although, as Janet Reno pointed out quite well, the attorney general is the chief law enforcement officer. He is not, or she is not, the president's lawyer, the president obviously has counsel in the White House. But the attorney general can set priorities simply by shifting resources. We know -- I know from my days as United States attorney in Connecticut, as well as now as attorney general -- that where you put people and money makes an enormous difference.

So being proactive, for example, as this administration has been in antitrust, where it's been much more aggressive than past administrations, or in environmental enforcement, can make an enormous difference.

Or past administrations, give you another specific example, civil rights, where the Kennedy and Johnson administrations really established an initiative there that made a historic difference.

Or in combating organized crime, as administrations have done more recently with great success, Republican and Democratic.

These decisions are not necessarily partisan or party-oriented decisions, although sometimes they are.

COSSACK: Dick, I want to cut you off just for a second because we are going to have to take a break. But when we come back, how will a Bush Justice Department approach the Microsoft case, speaking of Microsoft. Stay with us.


Terry Nichols, convicted Oklahoma City bombing conspirator, was denied a new trial by a federal appeals court that ruled the FBI did not withhold crucial evidence.

Nichols was convicted of involuntary manslaughter and conspiracy charges and is serving a life sentence in federal prison.



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.

COSSACK: The post of attorney general is one of several key Cabinet positions still to be filled by President-elect George W. Bush. The unresolved Microsoft antitrust lawsuit is one of the cases of the new administration will have to deal with.

Steven, antitrust is your specialty. Now, can we expect, in a Republican administration, that there may be a different approach from the Justice Department on this Microsoft case?

SUNSHINE: I think you can expect that. The Microsoft case represented a very aggressive step on the part of the Justice Department. And the remedy, particularly the remedy that Joel Klein chose to go after, breaking up the company, was a pretty drastic remedy. I would think that whoever Mr. Bush ends up appointing to the post of assistant attorney general is going to come to the conclusion that that remedy is too drastic.


SUNSHINE: Because it is applying the heavy hand of government into a situation where perhaps it is not all that clear that it is the appropriate remedy. The violations found in the case occurred in the '93, '94, '95 time slot. We are now in the year 2000, 2001, '02 before the remedy actually gets put into place. And an assistant attorney general could well come to the conclusion: I think Microsoft broke the law five, six, seven years ago, but the world has moved on, and breaking it up is likely to do more harm than good.

VAN SUSTEREN: Dick, when you hear that, do think the big so what, let the federal government, if they want, say we are out of here, but you are still here, because you are a party, does it really make a difference, because the states are also parties to this action?

BLUMENTHAL: I don't mean to be cavalier about it, or appear to be arrogant, but the states, 19 of us, are in this battle for the long haul, and we will stay the course. And by the way, those 19 states are Republican and Democrat across the country, big and small states. So I don't think there will be change of approach on our part.

VAN SUSTEREN: Dick, if the federal government, and we don't know this, but just hypothetically, let's say the new administration came in, and we say we think it is a dumb idea to break up Microsoft, we have changed our mind, we are out of here. That still leaves the 19 states and District of Columbia, does it not? Can the federal government really change the course?

BLUMENTHAL: The federal government, being realistic, certainly can change the tenor and tone of the litigation. But remember that the point about remedy is only one of the legal points before the appellate court at this point. The federal government has taken a position on, not only the remedy, but also on whether there has been a violation of law.

And on that point, I don't think the federal government will change course, certainly the states will not. And on the remedy issue, the states are committed. We are going to continue to maintain that the district court was correct in saying that a drastic, far- reaching remedy was absolutely necessary to address these violations, very egregious violations of law. And even if, even if the Department of Justice should change its position on the breakup, I think it still has to deal with the fundamental violations of dominance and power that the records so dramatically shows by proposing an alternative remedy that makes sense.

COSSACK: Dan Lungren, let me -- you've heard now two different viewpoints, you know the state viewpoint saying, we are in this thing, we are staying the course, perhaps a suggestion that the federal government will change. As the new attorney general comes in, how does that attorney general then try to get these two points to coincide? How does the attorney general work with the states, and yet perhaps have leadership from his president, who is saying, you know, I don't think we should be so tough?

LUNGREN: Well, I think a couple of things are of importance here. First of all, as Dick said, Democrat and Republican AGs are involved in this process. I was the attorney general of California when we made the decision that we would be a part of this lawsuit.

With respect to the underlying violation of law finding, I would be very surprised if a new administration came in and reversed the position on that on appeal.

But with respect to the remedy, I think the new administration has an obligation to come in, take a look at it, see if it is too drastic, not only because of the particulars of this case, but let's face this, this is a very important case in applying traditional standards of antitrust law to a new industry; that is the high-tech industry.

I was one of those who believed it was appropriate. But when you do apply it, in new circumstances, to this new industry, which does, as suggested, change so rapidly, the question of remedies, it seems to me, ought to be reviewed. Not that you would have a weak remedy, but rather you might adjust the remedy, in light of the fact that you have these tremendous changes in position within the industry, in terms of technology, but also in terms of, quote, unquote, "dominance."

People who were not dominant, or not even players in the field three years ago, are now big players. If that is the case, remedies might have to be adjusted to make sure that, while the antitrust principles, legal principles, are imposed properly, the question of the remedy is adjusted in light of the circumstances.

VAN SUSTEREN: Steven, let me ask you this...

COSSACK: Isn't that Microsoft's argument, what Dan just made? And I know you are not making it for Microsoft, but how do you justify backing off a winner?

SUNSHINE: Well, I think that argument is the exact argument that Microsoft would make, and it is going to hold some sway. It could be, all right, we will concede for the moment that we violated the law in '93 and '94, but the market has basically fixed itself, it has moved beyond it, therefore what we really need is slap on the wrist. That's going to be their argument, and I'm not going to say that that argument is going to take sway with the next assistant attorney general, but my guess is is that they are going to back off the full remedy.

LUNGREN: Could I just say, I didn't suggest that they necessarily would make that decision. What I'm saying is, if you want to see where they will take a real hard look, I think it will be on that end of the case, not on the question of whether or not there was a violation, as proven in the court of law at the trial court.

VAN SUSTEREN: Steve, when we talk about the law, we always at least think that it is dispassionate. When you talk about antitrust, that is when people say that it is political, which I think is for some reason a little bit insulting. I think probably, a more decent way to describe it, is a different philosophy, in terms of -- is this the one area of the Justice Department that you think that will be the most significant, where someone's philosophy can have the greatest impact on how justice is administered?

SUNSHINE: Absolutely. I think in the area of these sort of conduct cases, that's the most aggressive way to reach into the marketplace, and bring some government intervention. In the area of criminal price fixing, no change. In the merger area, some changes, but around the edge. It is really in this monopolization area, how far should the government reach? what kind of judgment should we make? and what kinds of mistakes are we willing to make? Would we rather let, you know, make mistakes and let the market fix itself? or are we willing to go in and intervene? And I think that's what the big philosophical differences is between...

VAN SUSTEREN: And philosophical sounds so much nicer to me than political. For some reason, political is code word for I don't like you. But we are going to take a break.

When we return, will there be an abrupt change in ongoing investigations?


Q: What Supreme Court justice shot a hole-in-one during a golf game on Sunday?

A: Justice Sandra Day O'Connor. O'Connor was playing at her home golf course in Phoenix when she scored an ace on the 125-yard par-3.



VAN SUSTEREN: Washington is preparing for a new Justice Department under President-elect George W. Bush.

Dick, one of the issues, no doubt, to confront the new administration will be the allegations of voting rights problems, or violations down in the state of Florida. What advice do you have, if asked by the new attorney general, how do you handle those investigations, in light of the fact that this is a new administration and we certainly got into ourselves the country in a mess down there over the past 36 days?

BLUMENTHAL: Well, for philosophical reasons, I won't say political reasons, the wisest course, the best course for any new attorney general would be to pursue those allegations very, very vigorously, and do it through an agency like the FBI, even though it may not be strictly at this point a criminal investigation, it may not have a criminal predicate. But to pursue any allegations of fraud, wrongdoing relating to the electoral process would make a lot of sense for the attorney general of the United States. And then possibly with some positive civil outcomes, reforms in that area, uses of new methods, a broader kind of reporting outcome, as well as any prosecutions that develop if there is evidence of fraud.

VAN SUSTEREN: Dick, how do you maintain a sense -- I mean, this is such an awkward position for any attorney general -- I mean, how do you maintain sort of a position credibility for the investigation? I mean, and this is true of this situation, we've had others in history, where an attorney general has to maintain at least some stature of credibility when people are taking shots at him or her.

BLUMENTHAL: Well, you know, for anyone involved in law enforcement, Dan Lungren has been there, I've been there, almost any attorney general, a United States attorney, has been in a position where you just have to be aggressive, be objective, let the chips fall where they may. And ultimately, the rest of it takes care of itself. If you do the right thing I think it is perceived in that way by the press, by the public, because if you are truly dispassionate and vigorous in these investigations, they tend to produce results, if there is any basis for them. And I think that's the best posture for a new attorney general, or any attorney general.

COSSACK: Dan, there may be some issues, though, that the attorney general may have a tough time being dispassionate about. For example, let's talk about the criminal law, let's talk about drug enforcement in which the statistics indicate that minorities seem to be prosecuted much more so than any other group in this country, as well as the mandatory minimums, and as well as the federal death penalty, and you know the criticism that the death penalty is now receiving across the country. Now I would think an attorney general is going to have to face those issues, and perhaps make some decisions.

LUNGREN: I don't think there's any doubt the new attorney general will have to, as well as the president. I would suggest this, it is not quite Nixon going to China, but I think that George W. Bush could more easily take a look at those things without people believing that he's trying to prove how tough he is. That is, I think he could be more dispassionate from a political standpoint, if you want to look at it from that standpoint, than perhaps someone who had to prove that he or she was tough on crime.

A couple of things, I was in the Congress when we voted for the mandatory minimums, and when we increased the penalties, for instance, on cocaine. We did that in response, specifically, to requests from the minority community to try and do something about this plague of drugs that was just devastating their community.

COSSACK: And Dan, it is my fault, I asked you too tough a question because we have no time left. I'm terribly sorry. That's all the time we have for today. Thanks to our guests, thank you for watching.

Later today on "TALKBACK LIVE": Linda Tripp is "George" magazine's new cover-girl. But have changes in her physical appearance changed the public's perception of her? Call and e-mail your comments to Bobbie Battista at 3:00 p.m. Eastern.

VAN SUSTEREN: And we will see you tomorrow on BURDEN OF PROOF.



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