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Burden of Proof

Ashcroft Nominated for Attorney General; Clinton Faces More Legal Trouble, Disbarment

Aired December 22, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: As George W. Bush continues to build his administration and make his move to the White House, President Clinton is making his own plans to move on. The question is, what are independent counsel Robert Ray's plans?


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time, never. These allegation are false.



UNIDENTIFIED MALE: There was no sex of any kind and any manner, shape or form with President Clinton, was an utterly false statement, is that correct?

CLINTON: It depends upon what the meaning of the word "is" is.



CLINTON: at no time did I ask anyone to lie, to hide or destroy evidence, or to take any other unlawful action.


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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF. Roger is off today.

With less than a month to go until inauguration, George W. Bush continues to prepare to take office. This morning, he nominated Senator John Ashcroft of Missouri to be the next attorney general of the United States.

But Bush is not the only one who has been keeping himself busy. Bill Clinton may be leaving the White House, but is he leaving his legal troubles behind?

Joining us to discuss both these topics are constitutional law scholar Bruce Fein, former assistant U.S. Attorney Judy Smith, and Richard Ben Veniste, former Whitewater Committee minority counsel.

And in our back row, Gary Farris (ph), Jennifer Maser (ph), and Michael Weisskopf, "Time" magazine reporter and the author of "Truth at any Cost."

Michael, let me go first to you. What do we know about Senator Ashcroft?

MICHAEL WEISSKOPF, "TIME" MAGAZINE: He is certainly on the right of the political spectrum, Greta. You've got to see the Bush administration as it comes in as a political mosaic, with the appointment of Colin Powell and Paul O'Neill, he had a couple of moderates on the Republican side. He is likely to appointment Governor Whitman to the EPA, again, another political moderate. He had to throw a big bone on the base of the party on the right wing.

Ashcroft is very conservative. He also proved to be a very good loser in the Senate race against Mrs. Carnahan. And the president- elect has had some questionable experiences with bad losers. So I'm sure that that weighed in on his side.

VAN SUSTEREN: Richard, what about some of the big sort of headline issues, like right to life in this new appointment, what impact will that have, if any?

RICHARD BEN-VENISTE, FORMER WHITEWATER COMMITTEE MINORITY COUNSEL: I think it is very important. I would say that he will have little trouble being confirmed as a member of the Senate, and we will have to see. I would be very interested and concerned about his position on protecting abortion clinics. That's a major issue.

VAN SUSTEREN: Richard, how does an attorney general handle the issue that, for instance, this is a man who is pro-life, and has been very outspoken about it; on the other hand, you have the competing interests of the United States Supreme Court saying that there is a right to choose, essentially, in Roe versus Wade, and now he has to enforce the laws, protecting these abortion clinics. Now what do you do?

BEN-VENISTE: Well, whether he will continue to vigorously enforce the laws will be something that a lot of Americans will be watching.

VAN SUSTEREN: Will that part of his confirmation hearings? Will that be an issue, do you think?

BEN-VENISTE: I'm sure he will be asked about that, and I'm sure he will indicate that he will respect the law, even if he disagrees with the underlying principle of abortion, which he obviously does. He has opposed a woman's right to choose on a number of different issues. Whether he enforces the law, in reality, will be an issue a lot of people will be watching. There will be an issue about replacing Louis Freeh as FBI director, that will be a very interesting decision for the new president.

VAN SUSTEREN: And of course, if there's violence outside the clinic, that of course is a different crime from the issue of what goes on inside the clinic.

Bruce, let me turn to you. Microsoft antitrust, do you see a new attorney general having any impact on that ongoing litigation?

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: Very possibly. I know, when I was at the transition between Carter and Reagan, Bill Baxter, the incoming assistant attorney general with the approval of the attorney general, then William French Smith, reexamined the IBM, AT&T cases; dropped the IBM case, AT&T ended up in a settlement, which was in a far different direction than where it was headed earlier.

VAN SUSTEREN: But here you have the added problem, though, that it is not just the federal government that's going after Microsoft, but you have states' attorney generals going after -- you have states going after Microsoft. So will it really make a difference?

FEIN: It can make a difference in the remedy. The attorney general of the United States cannot prevent private parties or states from bringing suits under state antitrust laws. But with regard to the break up, if there is a break up, what should be done if there is a violation, the attorney general can be very influential.

I would like to just repeat one element here that was previously commented on about, if you have on desperate -- discrepancy between your personal views and the law, what do you do? Janet Reno confronted the same dilemma when she said she was against the death penalty, yet she has enforced the death penalty.

Now, I could just add, I think Ashcroft's most important influence will be in the selection of federal judges, where he has held hearings as a senator, really railing against activism. And I we can see him at least championing a lot greater conservativism than we found, say, in the earlier Bush administration.

VAN SUSTEREN: Let me ask Judy a quick question before we go break.

Judy, you were a former prosecutor on the federal level. All the cases that are prosecuted, or most of them, by prosecutors all across the country, does the attorney general have any impact on the prosecutions?

JUDY SMITH, FMR. SPOKESWOMAN FOR MONICA LEWINSKY: Absolutely, I think in two ways. Number one, it is important from a leadership position that whoever is selected, and we do have Ashcroft here, is -- can demonstrate that he can lead assistant U.S. attorneys. And he has that experience. And I think the attorneys there were very pleased about that. In the other way that it is important is, not only in leadership, but also in deciding what cases are right to bring. I think on those two levels it is important.

Let me just add very quickly, if we have time, that I think one other key issue here is going to the civil rights appointment.

VAN SUSTEREN: We are going to take a break. Bill Clinton will leave the White House on January 20th. What legal troubles might lie ahead?

Stay with us.


The family of the late Missouri Gov. Mel Carnahan filed suit on Thursday against five companies for their alleged role in the crash that killed Carnahan, his son and an aide.

The family believes faulty equipment contributed to the October 16 crash and is seeking unspecified damages.




ROBERT RAY, INDEPENDENT COUNSEL: I think the public would like me to wrap up this investigation, but that doesn't mean walk away from the responsibilities that I have. I took an oath to promptly and fairly and impartially, and responsibly, in a cost-effective way, conclude this investigation, and you are right, that decision will be rendered shortly, very shortly after the president leaves office, in the best interest of the country, and also not to unfairly tread on the new president's administration. But closure comes not at the price of waving away one's responsibilities.


VAN SUSTEREN: On July 11th, independent counsel Robert Ray empaneled a new grand jury.

Michael, what is this new grand jury doing now? Is this a wrap- up or a walk away, what do you think we can expect?

WEISSKOPF: It is decision moment what to do legally with the president. He was impeached, of course, and acquitted in the Senate. But the question is, what happens when you take it out of the political arena into legal arena, did he cross the line legally?

It won't be such a black and white case, however, because, in the view of the prosecutors, at least the last time I checked in during the Starr period, there was a clear cut case of lying under oath. The question is, in the case of the prosecutors now, is whether or not the rule of law could have been vindicated some other way. VAN SUSTEREN: Or whether or not -- and we will get to in a second -- as horrible as it sounds to almost every viewer is that lying under oath isn't necessarily a crime, it is when it is material is that it becomes perjury, which is another whole issue.

But, Michael, is the venom there? I mean, prosecutors have a lot of opportunity to exercise prosecutorial judgment, even if they can, they don't necessarily have to. Is there venom in the office, that sort of aggressive, let's go get them, or is there sort of a sense of mission, or is it just like we are going to just do our job?

WEISSKOPF: I think Ray sets the tone, as you just heard. It is a balanced, rational look at the facts, and a decision about what the responsibilities are.

Gone is the kind of shrill rhetoric coming from the White House and the Clinton allies, so that they have had months and months of being able to work in quiet and make decisions outside the political glare.

VAN SUSTEREN: All right, Judy, you used to work with Monica Lewinsky as a spokesperson. What do you think Monica Lewinsky's view is? Does she want to be part of this, and want to push this, or does she want this one just to go away?

SMITH: I think probably the majority of country's view is that they probably just would like for it to go away. I think that you would have to look at two facts. One is that a lot of people involved got immunity, and so, as Ray proceeds through the investigation and he tries to collect evidence, would in fact anybody who has given testimony would have changed? And the answer to that question is no.

I think the other thing that he has to balance is, even if he decides to bring down an indictment, would it likely have a way to succeed? Would Americans vote to convict?

VAN SUSTEREN: Exercising prosecutorial judgment, is this a case, if you were a prosecutor, you would bring at this point?

SMITH: No, I would not.

VAN SUSTEREN: Richard, your view on this sort of ongoing case, whether or not it is dead or alive?

BEN-VENISTE: I think it is dead and deadening for most Americans, and this prospect of seeing this resurrected in 2001, I think is more than most people can stomach. As an exercise of prosecutorial discretion, I think anywhere in the country, prosecutors faced with these facts would decline prosecution.

Robert Ray comes from the same prosecutorial office I once served in a little bit earlier than Mr. Ray, on the Southern District of New York. I doubt that this would be a case that would be seriously considered on its facts for prosecution then. But here we have a whole different variety of influences at play. If it were simply objectively put before a grand jury, without any attempt to define the result, I think there would be no true bill and...

VAN SUSTEREN: Is that because -- and I do you agree with you that the issue is, in many parts, material because, I mean, in order to be perjury it has to be a statement under oath, and it has to be material. And the fact that the statement under oath, the one that I believe to be false is, "I don't recall being alone with Monica Lewinsky," which was made on January 17th, not before the grand jury, but rather at a civil deposition, that Monica Lewinsky issue in the Paula Jones case, which is what that deposition was about, was ultimately carved out and tossed out by the judge. Does that make it -- is materiality the issue or not?

BEN-VENISTE: Moreover, the whole context in which the questioning took place, where there was essentially an attempt to entrap the president...

VAN SUSTEREN: Is that really the issue? Isn't the issue materiality.

BEN-VENISTE: Yes, in the context of that, you have to look at whether something was obstructed, whether the alleged false statement -- and I agree with you that that's the most troublesome of all the statements made -- has any relation to an ongoing investigation, where they already have the witnesses' testimony about the framework of the testimony.

VAN SUSTEREN: I don't think that two wrongs versus a right is the issue so much, but rather whether or not admits...

BEN-VENISTE: I'm not putting it in terms of wrongs, Greta, but rather in the context of whether something was obstructed. What was the import of all of this, when they already had Monica's testimony? You can look at it from...


BEN-VENISTE: Excuse me for a second. You look at it as a prosecutor from the standpoint of what the import of any allegedly false statement is to an ongoing investigation...

VAN SUSTEREN: That's the...

BEN-VENISTE: ... or underlying case. If the case had been tried, and somehow this statement was an important statement in the context of the trial of the underlying Paula Jones case, one might have some sense of materiality.

VAN SUSTEREN: Bruce, you want to get in.

FEIN: Yes, Judge Susan Webber Wright did find that there was a clear tendency to obstruct the discovery process and justice in the Paula Jones case...

VAN SUSTEREN: But that's not a perjury issue.

FEIN: I understand that.

VAN SUSTEREN: When you look at perjury, you look at the question and the answer. Was there a statement under oath that was material, that there was a false statement rather?

FEIN: I agree with you. The standards are not exact, but they are chose. I'm not saying it is an open-and-shut case, but it is very serious.

In my judgment, however, the larger issue really is one, that Richard pointed out, is it is prosecutorial discretion. I don't think it is discretion in the ordinary kind of case because for good or for ill, this does clearly have political overtones and ramifications to it.

VAN SUSTEREN: Would you bring this case?

FEIN: Absolutely not. I would have shut down the grand jury long ago. This is also different from most cases, as Richard can tell you, because under the OIC statute, all of the reasons that were used not to indict and all of the evidence will be submitted to a three- judge court and almost invariably exposed to the public. So we don't have a case where the additional stigma, if you will, of things that were maybe quasi illegal won't attach. And moreover, it would be impossible, in my judgment, to hold any kind of trial in a less than carnival-like O.J. Simpson atmosphere. And that further militates against going forward at this stage.

VAN SUSTEREN: Michael, do you think it is going to go forward or do you think it is over?

WEISSKOPF: It is probably right down the middle, Greta. It is hard to tell you. I will tell you one thing, though, that the prosecutors are looking at other factors to see whether the rule of law can be vindicated, such as whether this president has suffered enough. He does have the stain of impeachment on his record. He did pay a hefty settlement to Paula Jones, and a $90,000 fine ordered by the judge in Arkansas. Are those enough to compensate for not going forward?

VAN SUSTEREN: What they should look at are the guidelines of the Justice Department, as I recall, is whether or not you think you can win on the merits? And I've got to tell you, that material issue is not a small issue, the fact that it was carved out of the case.

But I get the last word on this topic. We are going to take a break. When we come back, the status of the president's Bar license. Stay with us.


Q: What TV judge has decided to retire from the bench early next year?

A: Judge Jerry Sheindlin of "The People's Court." Judge Sheindlin is passing the gavel to former Miami judge Marilyn Milian.



VAN SUSTEREN: The Arkansas Supreme Court Committee on Professional Conduct filed suit on June 30th seeking to disbar President Clinton. The committee contends his behavior constituted serious misconduct when he gave false testimony about his relationship with former White House intern Monica Lewinsky.

Joining us now from Little Rock is law professor John DiPippa.

John, what's the status of this bar proceeding down in Arkansas?

JOHN DIPIPPA, LAW PROFESSOR: Well, just last week, the judge gave another 30 days to both sides to complete their discovery. So the next round of discovery is due January 9th. But at that point, there will be a new judge on the case. And so it is essentially in limbo at the moment.

VAN SUSTEREN: Why is there going to be a new judge on January 9th?

DIPIPPA: The judge who is hearing it now, his term expires on December 31st. A new judge takes over on January 1st, and therefore, Judge Johnson will simply not be on the bench at the time.

VAN SUSTEREN: John, I mean, how does this work? In many jurisdictions, Bar proceedings are before a panel of lawyers, even citizens. How does it work in Arkansas?

DIPIPPA: Remember, this started before a panel of lawyers, and it was the panel's recommendation in May to seek disbarment. Once the panel does that, the panel then files suit in front of a circuit judge, and they have a trial, just like any other civil trial.

VAN SUSTEREN: John, now, there's a difference between lying under oath and committing perjury under oath. I assume that perjury under oath would be disbarrable offense, that would call for disbarment in Arkansas?

DIPIPPA: Well, it would certainly come within what the Arkansas rules calls "serious misconduct," which would clearly cover perjury.

VAN SUSTEREN: What about lying about a personal affair under oath that was not material, in the sense it didn't constitute perjury, is that different?

DIPIPPA: Well, I don't think it is different in the sense that there may be a substantive violation because the rules also say that any conduct involving dishonesty is also subject to discipline. The question would be whether or not perjury is somehow different in the penalty phase than lying in this situation.

VAN SUSTEREN: is there anything to compare it to? I mean, are there any instances where someone, a lawyer, has lied under oath, is there some sort of standard, in terms of what the discipline has been, as sort of a benchmark?

DIPIPPA: It is really difficult to find one. There has been much made of a case in which a lawyer lied in admission to the Bar, and was denied admission. But that's the closest the Arkansas precedents come to something like the president's case.

VAN SUSTEREN: What did he get?

DIPIPPA: He was denied admission to the Bar, it was not a discipline case.

VAN SUSTEREN: Richard, assuming that the president is found to have lied under oath, but not committed perjury, what in your mind would be the appropriate sanction?

BEN-VENISTE: I think some period of suspension is probably about right, a year or so of suspension. This idea of disbarment that seems to me to be totally disproportionate to what occurred, particularly in view of what I've heard about the precedents for other disciplinary action by the Bar in Arkansas, and perhaps John could comment on that. But I think lawyers have been accused of selling drugs and doing all sorts of things, embezzling money from their client, very serious offenses for lawyers, which did not involve disbarment.

VAN SUSTEREN: Judy, what would you, in your mind, based on what facts we know now -- we may have incomplete facts -- if you were sitting in judgment. what would you do?

SMITH: I think suspension. I do think, though, there will be a lot of talk among committee members about whether a higher standard should be in place because he was the president of the United States, and in that particular case, then the committee members might recommend disbarment.

VAN SUSTEREN: John, what is sort of the gossip behind the scene among the lawyers down there, what are the lawyers sort of thinking should happen?

DIPIPPA: Well, I think the lawyers here are split, like most people in the country. But I think the most significant feature, however, is that there is some talk that the Arkansas Supreme Court has decided to crack down on lawyers in general, and there's been some history in which recent decisions by the Arkansas Supreme Court have reversed more lenient sanctions by the committee and by circuit courts, especially in disbarment cases.

So the trend seems to be that, even if the president does not get disbarred at the trial level, there's some talk that he will be disbarred by the Arkansas Supreme Court on appeal.

VAN SUSTEREN: Michael, in the 30 second we have left, do you think it makes a difference if the president is disciplined?

WEISSKOPF: Not in any practical sense, Greta, because he hasn't practiced law for many years. It is another symbolic defeat for him if it happens, and it would add to the stain of impeachment, and he wants to go the other direction, in terms of legacy.

VAN SUSTEREN: That's all the time we have for today. Thank you very much to all our guests today, and thank you for watching.

Join me tonight at 8:30 p.m. for CNN's new show "THE POINT": Airline delays; can it get any worse? We'll be talking to outgoing Transportation Secretary Rodney Slater.

And we'll be back Monday with another edition of BURDEN OF PROOF.



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