Of course, you don’t really need the standard ticket-takers when you have a complement of Secret Service officers at the gate.
The White House Counsel’s Office claimed it was completely unaware of the coffee “fund-raisers” or Lincoln bedroom sleepovers—which is probably true. Abner Mikva, former Clinton White House counsel, was asked by Newsweek if there had been any White House “finance-related events” on his watch. He said if he had known about the coffees or sleep-overs he “sure as hell would have been upset about it—and we would have put a stop to it. Any Philadelphia lawyer knows you don’t raise money in a government building. And if they were budgeting money for them, that’s raising money.”19
THE LAW
Federal law—if not the Clinton administration—seeks to separate political fund-raising from public policymaking. It is a federal crime to solicit or receive campaign contributions on federal property. In observance of this policy, some care is usually taken to avoid involving White House staffers directly in fund-raising matters. But such precautions were thrown to the wind as Alexis Herman and Harold Ickes played active roles in organizing coffees and other events requested by the DNC.
Fund-raising events on federal property would, as Mikva says, violate a federal felony statute. Theoretically, Clinton has also opened himself up to a conspiracy charge under Section 371 of Title 18. The conspiracy statute criminalizes a conspiracy to commit any offense against the United States—such as soliciting contributions on federal property. The draw of the White House coffees to potential donors was not the opportunity to meet with DNC officials; it was the opportunity to meet with the president, the vice president, or the first lady. Though mere presence during the commission of a felony is not itself a felony, in the case of the coffees, an understanding that one of the executive branch luminaries would attend each coffee was a central element to the fund-raising scheme. DNC Chairman Don Fowler may be a charming fellow, but he wasn’t the reason people were paying an average of $75,000 for a cup of coffee. A jury could thus find a conspiracy to violate Section 607 of Title 18, the statute prohibiting solicitation on federal property.
In addition, Section 4 of Title 18, “Misprison of felony,” seems designed for such situations as this. That section of the federal criminal code provides: “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” President Clinton is legendary for his ability to pass the buck to others whenever “mistakes were made.” If he knew of the mistake the DNC was making in holding fund-raising events at White House coffees, with himself as the star attraction, the misprison statute passes the buck back to him.
The currently available facts could also—again theoretically—form the basis for an extortion charge under the Hobbs Act, 18 U.S.C. 1951. Significantly, in a 1992 opinion, the Supreme Court confirmed that the “passive acceptance of a benefit by a public official is sufficient to form the basis of a Hobbs Act violation if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. The official need not take any specific action to induce the offering of the benefit.”20 It is difficult to avoid surmising that Clinton’s agreement to listen to hundreds of large donors “share their convictions” with him during 103 coffees was implicitly predicated on their making contributions to his campaign or to the DNC. President Clinton’s passive acceptance of this benefit in exchange for listening to the donors could constitute extortion—even if Clinton never acted on the convictions shared by the donors.
If—as appears to be the case—these donors were contributing more than the average American’s annual income not merely for an opportunity to shake the president’s hand, but to influence the president in some official action, a series of federal bribery laws would also come into play. The federal bribery law, 18 U.S.C. 201, provides that a public official faces criminal penalties if he “directly or indirectly, corruptly demands, seeks, receives, or agrees to accept anything of value personally or for any other person or entity, in return for… being influenced in the performance of any official act….” The courts have interpreted “corruptly” to mean a quid pro quo. But this does not mean that envelopes stuffed with cash need to change hands. The statute is written broadly to encompass certain direct and indirect efforts at selling or buying influence.
Clinton said on March 7, 1997, “I don’t believe you can find any evidence of the fact that I had changed government policy solely because of a contribution” (emphasis added). According to bribery statutes, it is not necessary for the official to act solely because of the bribe; it’s still a crime to be partially influenced by a bribe. Also, to be convicted under the gratuity statute, the official does not have to be influenced by the gratuity at all. Clinton’s statement is remarkable because, by negative implication, it’s a confession. It’s just like, “There is no improper relationship.”
And yet no action was ever brought to determine whether Clinton broke the law. To determine, that is, whether there was “any evidence of the fact that [Clinton] had changed government policy” in part “because of a contribution.” Only Michael Kelly ever understood this point in the mainstream print, writing in his first satirical “I Believe the President” column, “I believe that it is proper to change government policy to address the concerns of people who have given the president money, as long as nobody can find evidence of this being the sole reason.”
MEDDOFF
Though no coffee was served, one potential donor has already provided evidence of palpably illegal conduct by the Clinton administration. A federal grand jury in Washington, D.C., heard testimony from Florida businessman R. Warren Meddoff on March 26, 1997. Meddoff testified that he had a conversation with President Clinton at an October 22, 1996, fund-raiser, at which Meddoff gave Clinton a business card with a note stating that he had a friend, Bill Morgan, who wanted to make a tax-deductible donation of up to $5 million to the DNC. Instead of leaping back in horror and loudly proclaiming, “Sir, that would be improper!”, Clinton turned back to him and asked him for another card.
Subsequently, Harold Ickes telephoned Meddoff, leaving a message on his office answering machine “saying that he was calling on behalf of the president from the White House, and would I please contact him.”21 Ickes later faxed a three-page memo to Meddoff from the White House on October 31. The memo suggested that Morgan’s proposed donation be contributed in the form of $540,000 to three pro-Democrat tax-exempt groups and another $500,000 go directly to the DNC. (One allegedly tax-exempt organization had the unlikely name “Defeat Proposition 209.”) Ickes included the bank account numbers for the DNC and the other organizations and stressed that Morgan should make the payments.
That would seem to be sufficient to convict Harold Ickes for soliciting contributions on federal property, in violation of Section 607 of Title 18. Ickes even told Meddoff to shred the fax-memo; as Meddoff testified, “Anytime an individual asks me to shred a document, there’s a problem.” Moreover, Meddoff said negotiations broke down when Morgan requested a thank-you note from the president. Ickes clearly committed a felony when he followed up on the offer of a $5 million donation. Unless both Ickes and the donor are lying—and what Clinton really said to Ickes was “please give this card to someone at the DNC immediately”—Clinton did, too.
SLEAZE AND CORRUPTION
If you’re going to take bribes as president, it helps if you fire all the United States attorneys, replacing them with your own people upon taking office. President Clinton is the first president to have done this, at least in recent memory.
Relying on his own appointees not prosecuting him, Clinton lives in the interstices of the law and the proof-beyond-a-reasonable-doubt standard. Perhaps there wouldn’t have been sufficient evidence
to convict him. The difference between a “fund-raising” event and the president having coffee with his new rich “friends” is admittedly tricky to establish under the law. But there is still the little matter of political ethics, involving the wholesale auctioning off of the president’s time.
As Clinton lawyer Bob Bennett reminded the Supreme Court in attempting to block Paula Jones from having her day in court, the president’s time is extremely valuable. The president’s day is parceled out to various duties by a small army of timekeepers and schedulers. The president simply does not have time to absorb every input that might conceivably lead to a better policy decision on a particular matter. For better or worse, he must depend for advice on the advisers he has chosen, and who are known or knowable to the public (and confirmed by the Senate, in the case of higher-ranking executives), and on a paper flow that is tightly regulated by those same advisers.
There are some minor and unavoidable exceptions to this rule. A president may unilaterally override his advisers and take in a source of advice on which he particularly depends. Or he may talk to his personal friends: no posse of advisers and schedulers can keep him from doing that. But these are trivial exceptions to the general rule that the president’s time, and his radar screen, are public trusts.
Of course, the term “Gucci Gulch” had to come from someplace. The lobbying business does seem to be a profession precisely designed to circumvent prohibitions on selling access to government officials. But lobbyists are also heavily regulated by law. And whenever there are quids discernably matching up with quos, both the lobbyist and lobbied can be in trouble.
Noticeably, fund-raising letters from both parties purporting to offer special briefings with high-ranking officials in return for high-dollar contributions are like letters from Ed McMahon. Typically, they clarify in the fine print that what is being offered is a “briefing,” in which the senator or the cabinet secretary briefs you—not an unstructured shmooze session in which you get to brief him. There is no prohibition on this—provided those letters are written on party stationery and at party expense, no publicsalaried officials help set up any of the briefings, and the briefings take place at clubs or restaurants and not federal property.
An occasional White House coffee with large donors or Lincoln bedroom sleep-over by a large donor would not implicate any criminal statutes. What sets the Clinton coffees and sleep-overs apart is this: the DNC documents referring to them as “fund-raisers”; the DNC charts—reviewed by Clinton—listing anticipated revenue streams from each coffee; Clinton’s handwritten note, Ready to start overnights right away; the presence of DNC officials at the coffees; the existence of large contributions from the attendees the day of, or soon after, meetings with the president; and the sheer number coffees and sleep-overs. Clinton has been shown to have used the White House as the command center for his presidential campaign, with DNC Headquarters being used “as little more than a checking account,” as former Bush administration White House Counsel C. Boyden Gray has observed.
So what you’re left with in the White House coffees is an administration that defends itself by saying, We didn’t break the law, we’re just sleazy. For columnist William Raspberry, the apparent sale of the Lincoln bedroom was the last straw. He professed himself not all that upset about Paula Jones or about anything that had come out in Whitewater. But, he wrote, “the selling of nights in the White House is so crass a thing, so close to the possibility and appearance if not the actuality of corruption—and such god-awful judgment on Clinton’s part—that I cannot imagine any defense for it.”22
Chapter Eighteen
Wampumgate
Secretary of the Interior Bruce Babbitt’s transformation from potential Supreme Court nominee to potential highest member of the Clinton administration to be indicted calls to mind Mark Shields’s line that Clinton could drive a convertible through a car wash with the top down and only Al Gore would get wet. Babbitt’s getting wet, too.
Mr. Integrity has been accused by the Chippewa Indian tribe of trading a decision on a government casino license—worth about $80 million—for hefty donations to the DNC.
THE CHIPPEWA CASINO
In October 1993 three northern Wisconsin bands of the Chippewa tribe made the fateful decision to apply to the Department of Interior for a permit to run a casino on the St. Croix Meadows Greyhound Racing Park track in Hudson, Wisconsin. The federal government, through the Interior Department, exercises extensive jurisdiction over Indian territories, arising out of various nineteenth-century treaties. This includes approving or disapproving Indian-run gambling casinos. In recent years, the gambling business has been seen by some tribes as a rags-to-riches formula. But, as the Chippewa would soon find out, it is also a business that leads to conflict with other tribes over government-granted monopolies.
About one year later, in November 1994, the regional Bureau of Indian Affairs (BIA) office in Minneapolis approved the Chippewa’s application and forwarded its recommendation to the Department of the Interior in Washington for final approval.
A coalition of five rival tribes—all much wealthier than the Chippewa, since they already had their casinos—was not keen on the idea of another casino in the area. In January 1995 the coalition retained the Washington lobbying firm O’Connor & Hannan to help it persuade the administration to reverse the BIA decision.
Patrick J. O’Connor, a name partner of O’Connor & Hannan and former DNC treasurer, raised the issue directly with President Clinton at a reception in Minneapolis on April 24, 1995. O’Connor spoke with Clinton and then, at Clinton’s direction, with White House adviser Bruce Lindsey, complaining that the White House aide on Indian Affairs, Loretta Avent, had not been returning his calls.1
That day Lindsey called the elusive Loretta Avent from Air Force One and asked her to investigate the Chippewa’s casino application at Interior. Avent responded to Lindsey’s call that very day by sending a memo to Harold Ickes, White House deputy chief of staff, curtly informing him that “the legal and political implications of our involvement in the Hudson casino case would be disastrous.”2 Also on that day, Michael Schmidt in the White House’s Domestic Policy Council sent a memo to the same effect to the White House Counsel’s Office stating that O’Connor “must stop telling others that he had access to the White House” on the Chippewa casino issue. Schmidt’s memorandum said O’Connor’s boasts would be “political poison” for the president.3
Ickes was unmoved by Avent’s and Schmidt’s concerns. Between April 25 and 28, 1995, Ickes repeatedly left messages for O’Connor. On May 8 O’Connor replied to Ickes’s phone calls in a letter: “I appreciate your calling me concerning the above subject on Tuesday, April 25, and again on Wednesday, April 26. I assume these calls were prompted by my discussions with the president and Bruce Lindsey on April 24 when they were in Minneapolis.”
O’Connor wrote that he wanted “to relate the politics involved in this situation” to Ickes, and proceeded to tick off the Republicans and Democrats arrayed on either side of the casino project: “Governor Thompson of Wisconsin [a Republican] supports this project.” He continued, “Senator Al D’Amato [a Republican] supports this project.” In addition, he noted, “[t]he chairman of the [Chippewa] Indian tribe in the forefront of this project is active in Republican party politics.” On the other hand, referring to an April 28 meeting between DNC Chairman Donald Fowler and the representatives of the anti-Chippewa tribes, O’Connor noted,“[a]ll of the representatives of the tribes that met with Chairman Fowler are Democrats and have been so for years. I can testify to their previous financial support to the DNC and the 1992 Clinton/Gore Campaign Committee.”4
Similarly unconcerned with—or unaware of—the resistance by some White House staffers to becoming involved in the Chippewa casino issue was a lobbyist from O’Connor’s firm, Thomas Corcoran. On April 25, the day after O’Connor’s little chat with Clinton and Lindsey, Corcoran called Babbitt’s office and talked to aide Heather Sibbison. He inform
ed her that she would soon be hearing from Loretta Avent at the White House. Bruce Lindsey, he told her, was on the case.5
Meanwhile, the rival tribes opposed to the Chippewa casino were working on a parallel track. On April 28, 1995, leaders of the objecting tribes smoked the peace pipe with Chairman Fowler of the DNC.6 In explaining the purpose of the meeting, the executive director of the Minnesota Indian Gaming Association, John McCarthy, wrote to the leaders on April 25, saying: “A meeting has been set… with Mr. Don Fowler, the head of the Democratic National Committee, a top-level White House staff member, and [others]…. The people we will be meeting with are very close to President Clinton and can get the job done” (emphasis added).7 Wampum is the mother’s milk of politics.
Soon thereafter Fowler began lobbying Ickes himself. “I called Mr. Ickes, explained to him the nature of the situation, and I called someone at the Department of the Interior,” Fowler told Senator Fred Thompson’s Senate Governmental Affairs Committee on September 9, 1997.8 On May 5, 1995, Fowler wrote a letter to Ickes, requesting his assistance on the casino issue.