Legal Affairs – An Elegant Mess Partially Reaffirmed

National Journal

By the Court On the face of it, the Supreme Court’s 6-3 decision on campaign finance, handed down early this week, was a routine reaffirmation of the status quo-the Justices’ 1976 Buckley vs. Valeo precedent, an exercise in constitutional baby-splitting that once seemed elegant to some of us but that has, in practice, made an awful mess of things. But the Jan. 24 ruling touched off noisy celebrations among self-styled campaign finance law reformers who detest the status quo. This was partly spin on their part, of course. But the decision did reflect subtle movement in the reformers’ direction by some Justices, at least three of whom openly invited tighter campaign finance restrictions.

NewsHour: Campaigns Under Scrutiny – Reno Testifies – October 15, 1997

KWAME HOLMAN: Even with Attorney General Janet Reno ready to testify before them, Republicans on the House Judiciary Committee didn’t bother to ask the question they most want answered: Will she request the appointment of an independent counsel to investigate President Clinton’s fund-raising related activities at the White House? Yesterday, Reno put off having to make that decision when she extended her preliminary investigation until at least the first week in December. But this morning Committee Chairman Henry Hyde made it clear from the start he thinks an independent counsel should be appointed.

REP. HENRY HYDE, Chairman, Judiciary Committee: I question her view that soft money is not covered under criminal law. I question her notion that the White House belongs to the President to use as he pleases. I find her belief that she has no conflict of interest frankly astounding. I’m not alone in believing her situation fairly bristles with conflicts of interest. The standard response that this matter is under investigation and that it cannot be discussed has some merit. And we don’t want to compromise any ongoing investigation, but at some point questions must be answered if only to build confidence that a rigorous investigation is underway and the justices are merely circling the wagons to defend the White House.

KWAME HOLMAN: Attorney General Reno has heard congressional Republicans repeat those criticisms for months, and she repeated the response she has given for months.

NewsHour: Campaigns Under Scrutiny – Reno Testifies – October 15, 1997 (con’t)

JIM LEHRER: Now how all of this looks to our regional commentators: Lee Cullum of the Dallas Morning News; Robert Kittle of the San Diego Union Tribune; Mike Barnicle of the Boston Globe; Cynthia Tucker of the Atlanta Constitution; and Patrick McGuigan of the Daily Oklahoman. Lee, how do you think the attorney general did before the House committee today?

LEE CULLUM, Dallas Morning News: Jim, I thought she did very well. I thought she held her own. I like her imperturbability, and I think that she should be very pleased with her performance today. You know, I find support for her in this part of the country which surprised me actually because Dallas tends to be very Republican. Of course, there are those who stay she’s weak administratively, but they’ve said that for a number of months, if not years, but I found in talking to people about her the last two or three days I have found that especially young professional and businessmen speak well of her. They say that she’s a decent public servant in a very difficult circumstance. So I don’t think her reputation is suffering from this campaign funds crisis.

JIM LEHRER: You think so, Cynthia, her reputation is suffering?

NewsHour: New Direction – September 17, 1997

JIM LEHRER: The Justice Department is also conducting a fund-raising investigation. Phil Ponce looks at the developments there.

PHIL PONCE: That investigation went through a maker shake-up yesterday when Attorney General Janet Reno replaced the top federal prosecutor and the FBI agent in charge with more experienced senior personnel. For more on this we’re joined by NewsHour regular Stuart Taylor, correspondent for Legal Times and the American Lawyer, and Dan Klaidman, Justice Department correspondent for "Newsweek." Dan Klaidman, before we get into the question of the changes that the attorney general has made in the task force, what exactly are they looking at?

DANIEL KLAIDMAN, Newsweek: Well, among the principal allegations is that the Clinton administration systematically solicited contributions, millions of dollars in contributions from foreign donors, which is illegal, and that in some instances perhaps tried to disguise the source of those contributions by laundering through–laundering them through legal donors. Among the other allegations, most serious allegations, is that in exchange for political contributions contributors got certain favors, perhaps policy changes, access.

That would be a bribe, and that’s very serious but very difficult to establish the quid pro quo. Then there are the allegations involving Vice President Gore, essentially soliciting contributions from federal offices, and under some analysis what he did is illegal. And that remains to be seen. But most serious–potentially the most incendiary of the allegations is the Chinese government had a plot to subvert the American–the 1996 presidential and past congressional elections. That remains to be seen as well.

PHIL PONCE: And what exactly prompted her to make these changes? What was the motivation there?

Gore: Lame But Legal?

President John F. Kennedy’s most memorable line was "Ask not what your country can do for you; ask what you can do for your country."

Vice President Albert Gore’s may be his mantra at his March 3 press conference: "My counsel advises me that there is no controlling legal authority or case that says that there was any violation or law whatsoever in the manner in which I asked people to contribute to our re-election campaign."

Gore’s remarkable choice of words was designed to dance around this problem: A plausible case can be made that Gore’s high-pressure fund-raising calls from his White House office amounted to federal felonies, punishable by up to three years in prison.

But a plausible case can also be made that these calls were legal, if sleazy and perhaps unprecedented. The legal question turns out to be surprisingly tricky, as does the related question (touched on in my column last week, "Janet Reno’s Burden of Proof," Page 21) of whether the attorney general should seek an independent counsel to determine whether to prosecute Gore.

The relevant statute, 18 U.S.C. §607, makes it "unlawful for any person to solicit or receive any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 [FECA] in any room or building occupied in the discharge of official duties by any person mentioned in section 603," which in turn mentions (among others) "officer[s] or employee[s] of the United States."

Janet Reno’s Burden of Proof

Unleashing yet another independent counsel-and perhaps another partisan Republican one, at that-to comb for years and years through the burgeoning Clinton campaign finance scandals in search of crimes, with dozens of potential targets up to and including both the president and the vice president, would be a national nightmare.

The record to date suggests that the Clinton campaign’s desperate search for money reached a level of sleaziness unrivaled since Watergate. A no-holds-barred prosecutor might be able to make a plausible legal case that crimes were committed, perhaps involving people at the top.

But no such high-level officials should be prosecuted, barring the emergence of more smoking guns than we are likely to see. Among the reasons are that many of the alleged crimes are too difficult to distinguish from the access-peddling that has long been practiced by most candidates for federal office; that some of the same theories that could be used against Clinton campaign officials (including the president) could also be used against Dole campaign officials (perhaps including Dole) and many members of Congress; that the campaign finance laws are nightmarishly complex and riddled with First Amendment problems; and that the resulting tangle of rules and loopholes often does not draw clear lines between what is legal and illegal.

A wise prosecutor, sensitive to such considerations, would err on the side of lenity and bring the matter to closure as quickly as possible. But is that what we would get from the special three-judge court, headed by D.C. Circuit Judge David Sentelle, that chooses independent counsel? The track record does not inspire confidence.

Can Campaign Finance Be Fixed?

Almost everyone agrees that our federal campaign finance laws-which have spectacularly failed to reduce the influence of special-interest money in politics-are a stinking mess and should be "reformed."

The hard part is agreeing on exactly what is wrong and how to fix it. Indeed, while reform proposals abound, the problems are so daunting that it’s unclear whether the system can be fixed, by even the most brilliantly drafted law-let alone one with a chance of getting through Congress.

The polar positions espoused by libertarian conservatives (encouraging candidates to sell themselves to the highest bidders) and Utopian liberals (pressing a doomed effort to purge private money from politics) both seem deeply flawed. So does the bill co-sponsored by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), which has won endorsements from President Bill Clinton and a gaggle of editorialists less because they love it than because it’s the only game in town with even a patina of bipartisan support.

But in a penetrating cover story ("Blow It Up") in the March 29 National Journal, Jonathan Rauch makes an intriguing, ideologically eclectic proposal for a simplified system of "public financing plus private deregulation."

Rauch begins with the perception that the current system of labyrinthine regulations, "understandable only to lawyers, and sensible not even to them,… is founded on a naive faith in rules, an discriminating disgust for money and a belief that political spending can be meaningfully distinguished from political expression. All of those premises are unsupportable, and doom any system built upon them."

Scandal Hidden in Plain View

Forget about whether Vice President Al Gore’s dialing for dollars from the White House violated the law against asking for dollars in the White House, and whether the Riadys or Johnny Chung were agents of the Chinese government, and whether Web Hubbell got hush money. Forget about the what-did-the-president-know-and-when-did-he-know-it game, and about who handed fat checks to whom in the White House, and about the Lincoln Bedroom, and all those coffees, and the similar access-peddling by Republican bigwigs.

Pause, for a moment, in the search for smoking-gun evidence about how they raised the money, and focus on how they spent it The evidence of high-level lawlessness has been sitting in front of us for months, hidden in plain view.

As detailed by Common Cause, it consists of essentially undisputed accounts of what look very much like deliberate, multimillion-dollar violations (or at least evasions) of campaign spending and contribution limits, directed by President Clinton personally and by others at the highest levels of both the Clinton and Dole campaigns.

The presidential candidates and their agents used the Democratic National Committee and the Republican National Committee as totally controlled cash conduits to finance unprecedentedly costly television advertising promoting Bill Clinton and Bob Dole. They thereby smashed, by tens of millions of dollars, the post-Watergate ceilings on spending by publicly funded presidential candidates, while also flouting (among other laws) the much older ban on using corporate and labor union money in federal election campaigns.

In so doing, the president, his aides, and their Republican counterparts relied upon legal ratiocinations that-while not without support in the convoluted campaign finance case law, and while perhaps sufficient to ward off prosecution for ”knowing and willful" crimes-make a complete mockery of the campaign finance laws.

Bribery vs. Politics

Clintongate is getting so multifarious and confusing, it makes your head hurt. Just when you think you’re getting close to figuring out how a couple of political bozos at the White House got hold of confidential FBI files on big-shot Republicans like Jim Baker, Ken Duberstein, Tony Blankley-and more than 400 other people-a bunch of Republican senators across town dump a 769-page report detailing Whitewatergate, Madisongate, Thomasesgate, Nussbaumgate, Williamsgate, Ickesgate, and other subgates of Hillarygate. Then a bunch of Democratic senators dump a nearly 400-page report dismissing the Republicans’ 769 pages as a bunch of bull, to borrow from President Bill Clinton’s elegant rebuttal of allegations by one David Hale.

(Pop math quiz: If the probability that Hillary Rodham Clinton is telling the truth is charitably assumed to be 50-50 on Travelgate, and 50-50 on the belated appearance in her house of her subpoenaed billing records with her fingerprints on them, and 50-50 on her denial that she tried to hide documents in Vincent Foster’s office from investigators after his suicide, and 50-50 on her involvement in the allegedly fraudulent Castle Grande real estate deal, and 50-50 on how she made $100,000 on a $1,000 investment in the commodities market, then what is the probability that she is telling the truth on all five of these things?

Answer: One divided by the number of words in the next paragraph.)

Meanwhile, the Supreme Court is mulling whether to invoke the Constitution to help Clinton’s lawyers stall PaulaJonesgate past the election. And two more erstwhile Clinton banker buddies are on trial in Arkansas.

What’s a body to make of it all? Whom can we trust to give us the straight poop? Alfonse D’Amato-the guy who made $37,125 on a hot stock in a single day in 1993, thanks to special treatment from a brokerage firm? Hah!

NewsHour: Stuart Taylor on Bruce Lindsey – June 19, 1996

MARGARET WARNER: Bruce Lindsey is the deputy White House counsel and a longtime friend and adviser to President Clinton. He was the treasurer for then Governor Clinton’s 1990 reelection campaign. It is that association which interests prosecutors in the current Whitewater-related trial in Little Rock. We get more on this now from NewsHour regular Stuart Taylor, legal reporter for the American Lawyer and Legal Times. Stuart, before we get into this case, explain: what is an unindicted co-conspirator? In other words, in what cases would a prosecutor choose to name some unindicted co-conspirator rather than indict them?

STUART TAYLOR, The American Lawyer: The prosecutor is saying in essence in court–and they haven’t said it yet by the way–but they apparently will–that we believe this man was part of the criminal conspiracy, along with the people who are on trial. We haven’t indicted him but the relevance of that for the purposes of the trial is that lets them get in more evidence about the unindicted co-conspirator’s or the alleged unindicted co-conspirator’s out-of-court statements than they otherwise could. It’s a way around the hearsay rule.

MS. WARNER: Explain that just a little more. What do you mean?

MR. TAYLOR: For example, if they want to–somebody, one of their witnesses, to talk about what Bruce Lindsey said to him, ordinarily that would be barred by the so-called hearsay rule. You can’t talk –you can’t testify in a trial about what somebody else said out of court. That rule has a lot of exceptions. One of the exceptions is if the person who you’re trying to quote, here Bruce Lindsey, is named by the prosecution as an unindicted co-conspirator, then you can talk about what he said out of court.

MS. WARNER: I see. Okay. Now explain this case. What’s this case about?