No harm, no foul

A law professor says Clinton and Gore will walk away from the campaign finance fiasco unscathed.

Published September 23, 1997 7:00PM (EDT)

over the past few days, the Clinton administration's campaign finance troubles appear to have reached critical mass. First, Vice President Al Gore announced last Friday he had retained a pair of criminal lawyers against the possibility that Attorney General Janet Reno might appoint an independent prosecutor to investigate the fund-raising telephone calls he made from the White House last year. Then on Saturday, Reno announced that President Clinton had joined Gore as a subject of her formal Justice Department inquiry into whether the telephone solicitations both men made from the White House were illegal.

The New York Times and other newspapers now say the appointment of an independent prosecutor is "highly likely" and Washington appears to be gearing up for yet another political drama in the tradition of Watergate and Iran-contra. But University of Baltimore Law School professor Charles Tiefer has been there before, and he suggests the current furor over Clinton's and Gore's telephone calls are generating far more sound and fury than legal significance. From 1979 to 1995, Tiefer was the nonpartisan congressional counsel and Senate counsel, making him one of the foremost experts on issues like campaign finance law. Tiefer told Salon that when all is said and done, Clinton and Gore will be completely exonerated.

Is there a case to made against the president and vice president?

No, I don't think so. There will be a thorough investigation, but I'm confident that 90 days from now, or whenever the preliminary investigation is completed, the Justice Department will announce, despite all the media predictions to the contrary, that they broke no law. I have seen, in my career as the chief courtroom lawyer for the House of Representatives and in my work on many congressional investigations, this kind of media feeding frenzy before. And at the peak of the feeding frenzy, the press is not interested in the legal technicalities but only in -- pardon my impudence -- the recycling of what one reporter says to the other.

Explain why you think there is no case here?

The Justice Department's preliminary investigation of the president and vice president's phone calls concerns whether they broke an 1883 statute. That statute prohibits soliciting contributions "in any room or building" occupied by federal employees at work. In interpreting it, the question is: Does the phrase "in any room or building" refer to where the contributors are, or where the people who are making the solicitations are?

The background of this law is fascinating. It was passed in the aftermath of the outrageous assassination of President Garfield by a disgruntled job seeker in the early 1880s. Back then, there was no civil service. Every federal job basically went by the spoils system that had dated back to President Andrew Jackson. Everybody who wanted a federal job went to the president or went through a party mechanism. After the assassination, Congress feared there was a great danger that the federal system would become something like the gross patronage machines of Chicago or Tammany Hall, where the party bosses would systematically harvest percentages of earnings from the government employees. Congress could see the potential that federal employees would be visited on the job by people going office to office demanding a kickback in return for keeping their job. This was a form of intimidation, and this caused Congress to take a number of measures to deal with the possibility of patronage abuses. So in 1883, they passed the Pendleton Act, which started the modern civil service.

Has there ever been a case, an indictment or conviction based on the Pendleton Act?

There have been indictments and convictions under the Pendleton Act for soliciting contributions, and some of the convictions have gone all the way to the Supreme Court, which has upheld them. But these cases always have involved the contributor being in a federal building. For example, one involved a situation where money was asked from federal employees who were at the Agriculture Department at the time of the solicitation. They have never involved situations where the person asking for the contribution was himself in a federal building and the person being asked, like these contributors whom Clinton and Gore asked, were off the premises. In a word, they never involved outgoing calls.

The Congressional Research Service, which is nonpartisan and is the most scholarly resource on this subject, reiterated this in a report reissued last month. This is what they found: "In more than 100 years since its enactment, however, the law appears to have been neither specifically construed by any court nor applied in any prosecution to cover one who solicits a campaign contribution from a federal building by letter or telephone to persons who are not located themselves in a federal building."

Does that mean the law can't be applied in this case of Clinton and Gore? Does the absence of any such prosecutions in 114 years create a legal precedent, or at least a tradition of interpretation?

Yes. A 114-year history of no prosecutions creates a very firm precedent. It particularly creates a precedent where you are dealing with a criminal law in an area of the First Amendment and political activity, like election campaigns and fund raising. In such an area, we do not look for novel, unprecedented and broad interpretations of old criminal statutes that would unfairly surprise leading public figures of every political persuasion and destroy their careers without their having had any notice.

When you have 114 years of not enforcing or interpreting the law against individuals who merely make outgoing phone calls or send outgoing messages, it is because there is a well-established sense that there is no similar intimidating effect as when the call is made to a federal employee in his or her office. The law is not on the books simply so as many people as possible can be locked up. The law is on the books to give guidance, so that those who solicit will stay away from what Congress considered intimidating. The alternative is anarchy, a system of electioneering in which all our candidates, Republicans and Democrats alike, accumulate the hundreds of millions of dollars needed for advertising costs and none of them knows whether at random any one of them could be locked up on the contention that this one's phone call could be the subject of a criminal case, even though the law seems not to prohibit such outgoing calls.

Are there any well-known examples where other major political figures solicited political contributions from their offices with no political fallout?

There are two examples that are very well-known in Washington. One involved President Reagan making calls from the White House to a group of major Republican contributors in September 1982. The Reagan example is singled out because it was not thought that this was some kind of odd or unique situation, and Reagan did not feel that he was violating the law by calling from the White House. Our knowledge of these calls came out in the Iran-contra investigation. Indeed, I was special deputy chief counsel of the House Iran-contra Committee and recall how closely these calls were looked at. The mere fact that President Reagan made outgoing solicitation phone calls from the White House was well-known and well-examined and never raised any hackles. Had that been considered a violation of the law, you can be sure that Independent Prosecutor Lawrence Walsh would have taken out his pad or written out an indictment in a flash.

The most recent example occurred in 1995, when Sen. Phil Gramm, who was a leading candidate for the Republican presidential nomination, was making a large number of telephone solicitations for donations. You may recall that he accumulated a huge campaign treasury chest by his effective solicitations. And he told a Wall Street Journal reporter at the time that he felt no hesitation in making those phone calls from his house, from his car or from his Senate office, which was, of course, in a federal building. When the reporter printed this, Ralph Nader filed a complaint, which was glanced at by the legal authorities and went nowhere. It was not considered that he had broken the law by making outgoing telephone solicitations from a federal building.

Why then, when Vice President Gore was confronted with this issue, was he so confusing in his response? If I remember correctly, he stood before the press at the White House, said that he had only made a few calls, that there was nothing wrong with them and that he wouldn't do it again. Why such discomfort over something that isn't illegal?

I think that has more to do with Al Gore's way of speaking than his actual legal situation. He and Reagan had the same exact legal situation, since Reagan also made outgoing phone calls. But Reagan was the Teflon president. Reagan had a genius for making jokes to brush off criticisms and accusations. At least in this instance, Gore has not shown the kind of genius that Reagan had.

What then is the significance of Gore hiring a lawyer?

The significance is not that Gore has reason to think he's going to be indicted. Rather, Gore has been well-advised about what he should do during this period of preliminary investigation. He should have private counsel. If he did not hire private counsel, then his only method of lawyer-to-lawyer communication would be through the White House counsel, but it looks better if he gets a non-government lawyer. The same now goes for the president. I can confidently predict that the president will turn the matter over to his private lawyer, David Kendall.

How would you assess Attorney General Janet Reno's handling of this case so far?

Janet Reno is a very independent, tough and prosecutorially minded attorney general. She personally enjoys slapping the handcuffs on people, metaphorically speaking. She had the Justice Department take a hard look at these phone calls back in the beginning of the year and came to the conclusion in April that these phone calls didn't break the law. Now Janet Reno is not a specialist in federal campaign finance law. Her background is in state criminal prosecution. So she looked for a broad distinction by which she could separate between issues that might justify a prosecution and those that don't. That broad distinction was the difference between soft money and hard money. That was the basis of her explanation that there were no charges to make that would justify having an independent counsel.

At the time, specialists in federal campaign finance law said that she would have been better off making the point that, with respect to this particular 1883 statute, it simply didn't apply to outgoing phone calls. But while the specialists thought that, she didn't. Then it came out that the bookkeepers at the Democratic National Committee had reallocated some incoming contributions from one account to another and that they reported these contributions as hard money. That undermined Reno's main reason for why there was no offense here. So she reacted by blasting away with both guns and ordering a major preliminary investigation.

But that does not mean that in 90 days she will say that a case can be made where there is simply no case. Rather, it means that she's going to have the FBI and the Criminal Division's Public Integrity section go through all this with a fine-toothed comb and research the law as well. At that point, the specialists will come in and tell Reno that they will look like fools if she ignores the fact that there's never been a case against outgoing callers. When federal prosecutors evaluate a fact situation like this one, they evaluate what kind of criminal case they would have with the law as it is written and as it has been interpreted. A federal prosecutor will not want to make a case out of this because it is unthinkable to reverse more than a century of interpretation and try to make the very first case against someone like the president or vice president, who had every reason to think that they were not breaking the law. I simply cannot imagine conducting a monster independent counsel investigation, bringing an indictment, going to jury with the president and the vice president sitting at the defendants' table and saying to the jury, "Yes, we admit that we're charging them with something no one has ever been charged with before and that they had no reason to think that they were breaking the law. But how would you like to start a whole new century by changing the history of the law and locking up our national leaders?" Call me a Pollyanna, but I don't think that's going to happen.

By Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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