Читать книгу 1997 Special Investigation in Connection with 1996 Federal Election Campaigns - United States Senate Committee - Страница 8

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The inability of the Committee to procure large amounts of relevant information was largely attributed to the imposition by the Senate of the December 31, 1997, deadline. This deadline essentially invited witnesses and organizations to refuse to comply with subpoenas. The deadline also encouraged other witnesses and organizations, particularly the White House and the DNC, to produce documents and videotapes responsive to Committee subpoenas in a slow, drawn out manner in an effort to run the clock out on the Committee’s investigation.

Shortly after the Committee issued its first set of document subpoenas, several recipients informed the Committee that they were invoking their Fifth Amendment right against selfincrimination and would therefore not produce responsive documents. The Fifth Amendment privilege does not, however, protect the contents of documents. It can protect the act of producing documents when that act is itself testimonial (i.e., the act of production demonstrates the existence of a particular document). This “act of production” privilege under the Fifth Amendment only applies to personal documents; it does not apply to the act of producing business records, for example, that happen to be in the possession of the person subpoenaed.

In the absence of the December 31 deadline, the Committee could have sought a judicial determination as to the appropriateness of various witnesses’ efforts to assert broadly their Fifth Amendment privilege against self-incrimination with respect to all the documents in their possession. Due to the December 31 deadline, however, the Committee was essentially foreclosed at the outset from pursuing the routine course of seeking a judicial determination as to the appropriateness of the large number of Fifth Amendment claims. The deadline made it unlikely the Committee would have ever received the responsive documents in a timely manner. Had the Committee sought to enforce its subpoenas against Huang, Webster Hubbell, Yah Lin “Charlie” Trie, Mark Middleton, and the other central witnesses who refused even to produce documents, it is likely that the judicial subpoena enforcement actions would not have been completed in time to receive the documents had it prevailed in the enforcement actions. Even had the documents been received prior to the expiration of the deadline, they would have been received so late as to have been virtually useless.

Had the Committee filed enforcement actions in April, responsive pleadings would have been due in May. The district judge would then have had to review the relevant documents in camera, a time-consuming task. Even with an expedited decision, the Committee staff determined it was unlikely to receive a decision before July, and any decision rendered by a district judge would have been subject to an appeal, which almost certainly would have taken to close to the end of the year.

Because of this likely timeline, the Committee staff determined not to expend resources to litigate enforcement actions that would not benefit the investigation. Had the Committee chosen to pursue enforcement actions, its staff would have been expending its limited time on enforcement rather than on the investigation itself. Such a diversion of resources was not an option given the limited amount of time in which the Committee had to conduct its investigation and hold hearings. In effect, the Committee had no choice but to proceed without all the documents or testimony relevant to the investigation, or else it might have run out of time and could have conducted no investigation at all.

The inability to pursue these initial enforcement actions was due directly and solely to the deadline imposed by the Senate on the duration of the investigation. Once the initial pattern had been set whereby the Committee did not seek to enforce its lawful process, others were encouraged to flout the Committee’s subpoenas. Most troubling of all were the organizations which had played significant roles and spent large sums of money during the 1996 election cycle. As was already noted, the Committee issued a subpoena to the AFL-CIO on May 22, 1997 requiring it to produce responsive documents to the Committee by the middle of June. Over two months late, on August 20, 1997, the AFL-CIO finally informed the Committee that it would not produce any documents in response to the subpoena, other than a few pages of documents that were already in the public domain. Again, the deadline prevented the Committee from seeking to enforce the subpoena.

On July 31, 1997, before the AFL-CIO expressed its contempt for the lawful processes of the Senate, an additional 24 non-profit organizations active in the 1996 federal election campaigns were subpoenaed to permit the Committee to determine whether these organizations had acted legally by making independent expenditures or illegally by coordinating their activities with candidates and political parties. With the example of the AFL-CIO and the Committee’s powerlessness to proceed against the AFL-CIO set before them, a number of these 24 non-profit organizations informed the Committee in late August and early September that they would not comply with the subpoenas they had received. Among these organizations that refused to comply was the Teamsters union, whose documents were clearly relevant to the Committee’s inquiry, as three of its officials have pleaded guilty to a participating in a broad criminal conspiracy that included contribution swaps between the union and the DNC.16

The deadline not only prevented the Committee from enforcing its subpoenas, but also encouraged other subpoena recipients to dribble documents out over months and months in an effort to run out the clock on the Committee. The parties that perfected this routine to a high art were the White House and the DNC. The particulars of the delays practiced by these entities are set out in detail in the body of the report. Suffice it to say here that the White House continued the pattern of delay, obstruction, and evasion that it had practiced in the House Travel Office and Senate Whitewater investigations. The DNC studied from the White House playbook and apparently learned its lessons well.

It was not only these political entities that failed to produce relevant information to the Committee in a timely manner. Even though the possibility that foreign governments may have sought to influence U.S. elections was a central focus of the investigation, the FBI failed to find critical and relevant information in its own files until well after the hearings had started and, in one importance instance, not until after the hearings had ended.

The deadline had one further important effect on the investigation. Because the work of the Committee had to be completed by the end of the year, the Committee was unable to proceed in the most orderly fashion of conducting and completing its investigation and then holding hearings to lay the facts before the Senate and the American people. Instead, the Committee had to begin holding hearings while the investigation was still quite new and ongoing. Many of the basic facts of several aspects of the investigation had not yet been developed when the hearings commenced.