[Sen. Robert Torricelli , New Jersey:] Perhaps I've earned some enemies in government and in politics. But I have never ever done anything at any time to betray the trust of the people of the State of New Jersey. Never.
[Greta Van Susteren, Co-host:] Today on BURDEN OF PROOF, Senator Robert Torricelli fights back against criminal allegations. What is the law? The answers could be found in a recent U.S. Supreme Court ruling.
[Announcer:] This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.
[Van Susteren:] Hello. Welcome to BURDEN OF PROOF. To those close to him, Robert Torricelli is known as the torch. Now the New Jersey senator is feeling the heat of a campaign finance investigation. From 1996 to 1999, David Chang, a campaign contributor, claims he gave Torricelli thousands of dollars of cash and gifts.
[Roger Cossack, Co-host:] The probe involving Torricelli could turn on a 1999 Supreme Court decision in the case of former Agricultural Secretary Mike Espy, which said that a gift to a federal official must be linked to a specific official act to make it illegal. Senate ethics rules limit gifts from an individual to $50 with a yearly limit of $100 from each individual. But gifts from friends are exempted from those regulations, so if you want to give me some money, it's OK.
[Van Susteren:] I'm not giving you anything because I'm going to our guests, who are joining us today from San Diego, California. First, is Charles LaBella. He's former head prosecutor of the Justice Department's campaign finance task force and he's also a former federal prosecutor. From New York, we're joined by "Newsweek" investigative reporter Mark Hosenball.
[Cossack:] And here in Washington, Frank Grimes, Eric Bloom, former attorney for Mike Espy and Ian Mahoney. And in the back, Dennis San Giorgio and Andy Martin. I want to go first to Mark Hosenball. Mark, what are the allegations against Senator Torricelli now?
[Mark Hosenball, "newsweek":] Well, there are three different sort of classes of allegations. The first set of allegations is that he may have known about the laundering of campaign contributions through straw donors. And five, or, sorry, seven people have already plead guilty to making sort of straw donations to his 1996 campaign, and three of his aides have been sent target letters by the prosecutors indicating that they may be involved in or may have known about straw donor contributions to his 1996 campaign. Secondly, there are the allegations by David Chang that you mentioned in your intro that he gave gifts andor other, you know, cash even to Torricelli about the same time. Thirdly, there are allegations that haven't received much publicity, but they're out there, by Chang and possibly othersor people around him engaged in some sort of campaign to intimidate Chang and maybe other witnesses not to tell prosecutors their story about what had gone on. So it's a very complicated investigation.
[Cossack:] It's sort of, so the last part would be an obstruction of justice allegation?
[Hosenball:] Correct.
[Cossack:] All right, let me just...
[Van Susteren:] Mark, let me ask you...
[Cossack:] Let me just, one question. What's a straw donor that you talked about in the first, you said there'd be through straw donors laundering of perhaps campaign funds. What does that mean?
[Hosenball:] Well, as you know, in the case of hard money, particularly money that goes directly to a specific political candidate for a specific political campaign, there are upper limits on the amount of money that any individual donor can give. Now, in many cases, there have been cases where somebody who wants to give more than that limit will spread out the money amongst a bunch of people whose money it isn't really to give and give his own money through people who are not giving it on their own, and that's a sort of straw donor.
[Van Susteren:] Mark, I want to talk about Senator Torricelli. I mean when you have allegations and you're a politician it's pretty sort of deadly in the sense even, you know, an innocent politician, to have someone say that. But has he actually received a target letter indicating that he himself is the target of the investigation rather than just the people around him?
[Hosenball:] Well, last week when he came out and gave this sort of denunciation of the prosecutors and everything, his lawyers also said on the side, as I recall, that he had not received a target letter. On the other hand, his lawyers have also said that they're in some sort of "dialogue," whatever that means, with the U.S. attorney's office for the Southern District of New York, in other words, Mary Jo White's office in New York. So this, I mean he knows that there's a very serious investigation. As I understand it, he hasn't received a target letter, which by the way I understand it, a target letter means that they have notified whoever the target is that they believe they have enough information to indict him. He hasn't received such a letter yet, as I understand it.
[Van Susteren:] All right, now, there has been a search of his home, has there not?
[Hosenball:] There has.
[Van Susteren:] And when was the search of his home and have you had a chance to see the affidavit in support of the search warrants so we know what was being looked for?
[Hosenball:] Well, we don't even know there was a search warrant. As his lawyers sort of cast it, they took representatives of the Southern District of New York or the FBI or whatever through this house. We're not even sure which house it is. He has a residence in Washington and he has a residence in Englewood, New Jersey. But we think it was in New Jersey. To look around. We don't know whether that was as a result of a search warrant. We don't know whether that was as a result of him merely inviting them in. We don't know whether there was a threat of a search warrant. We don't know the circumstances. There's a lot of material about this investigation that we don't know. There are extensive sealed files and sealed litigation in this case.
[Cossack:] Charles, let's talk about the discussions that Mark has talked to us about, that he said his lawyers are in discussions, if you will, with the U.S. attorney's office. What kind of discussions are they having?
[Charles Labella, Former Head, Campaign Finance Task Force:] Well, that sounds like with respect to the search, they may have done a consent to search. They may have all agreed that rather than go through the formality of getting a search warrant signed by a judge, they would consent to search. Those sorts of discussions are probably going on. I would assume, given the lawyers that he has, he's got very good lawyers, Mr. Wells, Mr. Pomerantz, very good lawyers, I would suspect that the kind of negotiations that are going on now are by way of explanation as the government uncovers various evidence, as they elicit testimony from various witnesses. The defense team would inevitably try to counter that by explaining or putting in context that evidence.
[Van Susteren:] Let me go back to Mark. Mark, David Chang, who's he and what's what are the specifics on that allegation? And I underline allegation.
[Hosenball:] Well, David Chang is a very mysterious businessman from somewhere in Asia. There have been various stories about where he was born and where he wasn't born. But according to the prosecutors themselves, they prosecuted him for obstruction of justice and, I believe, sort of campaign finance violations, he's given several dates of birth. I mean nobody really knows exactly who he is. He appears to be some sort of businessman stroke, you know, swindler from Asia, maybe Korea, maybe China, who moved to New Jersey in the 1990s at some point, got involved in various business deals, both locally and in Asia, and approached Torricelli and various other politicians, so I'm told, for help with his business deals, particularly some very complicated business deals involving North Korea and agricultural commodities and South Korea and an insurance company. And we do know now that Torricelli, at any rate, you know, wrote various letters to the American government and also put pressure on the South Korea government to help Chang with his business deals. We also know that Chang, since he was picked up and arrested and charged and plead guilty, I believe, to the violations that he was charged with, he's now essentially become a government witness and has made various allegations against Torricelli and possibly others.
[Cossack:] All right, let's take a break. When we come back, the limits of gift giving on Capitol Hill and how the Justice Department tracks cash exchanges in Washington. Don't go away.
[Legal Brief:] The U.S. Supreme Court Monday rejected Jack Kevorkian's appeal of his $10 million libel lawsuit against the American Medical Association. Kevorkian, the assisted suicide doctor who is serving between 10 and 25 years in prison for second degree murder, had sued the AMA for calling him a "killer."
[Torricelli:] I do not believe that any candidate for president of the United States or anyone who has ever managed a similar United States Senate campaign could have withstood such an inquiry, resulted in nothing more than a handful of commonplace regulatory issues. Seven people were found to have engaged in reimbursing contributions from among 20,000 campaign donors. Only one of those seven people, David Chang, despite numerous previous denials, now claims that I had knowledge of his activities.
[Cossack:] Federal investigators are looking into alleged gifts and cash payments to Senator Robert Torricelli. At issue are the senator's relationship with businessman David Chang and whether the New Jersey Democrat lobbied on Chang's behalf for the purchase of a South Korean insurance firm. Now, last summer Chang pleaded guilty to making illegal donations to Torricelli's 1996 campaign. Eric, let's talk a little bit about what the burden of the government is to prove in these cases. It's not just enough, and you were involved in making the law in this case, it's not just enough to show that a politician accepts money from a consistent. It has to be shown, the government has to show that they took the money with the intent of giving back something, right?
[Eric Bloom, Former Attorney For Sun-diamond:] Well, that's right. Well, you have two different statutes, of course. You've got the bribery statute and the giver, there's got to be an exchange, the quid pro quo, the giving of a gift in exchange for an act. The other statute, and that was the case that I argued before the Supreme Court, is the gratuity statute, and the intent element there is different. You have to give a gift and the statute says, "for or because of any official act performed or to be performed." Now, that language has gotten a lot of play in the courts of appeals and now in the Supreme Court. And let's talk a bit about what that does that does not mean, it's not giving a gift to simply ingratiate yourself generally, to get in the good graces of the elected official. It's not getting access.
[Cossack:] It's not taking somebody just out to dinner and saying nice meeting you, don't forget me?
[Bloom:] Even if the purpose is to get access to the person, that's not enough. The Supreme Court says it has to be for an act, an official act, and it has to be for a specific official act. That's a very high standard and after the Supreme Court ruled in our case that that was the standard, the independent counsel who had prosecuted Mike Espy dropped the charges against our client because I think it's a materially much more difficult standard for the government to satisfy.
[Van Susteren:] Charles, how do you satisfy that? If I'm going to contribute to a candidate because I think, let's say I want some national park preserved and I know that candidate is going to do what I want for that national park so I flop down 10 bucks. That's not, there's nothing wrong with that, right?
[La Bella:] Right.
[Van Susteren:] Where does it become wrong? I mean in, where does it become a crime?
[La Bella:] It's really, as was said, it's an extremely high threshold now after the Supreme Court case in Sun-Diamond. It's, you know, you almost have to have a videotape or a recorded conversation saying look, I'm giving you this for that. It almost has to be that clear. It's a very difficult standard right now for prosecutors.
[Van Susteren:] Than why pursue it? I mean so how if you were back in your old days as a prosecutor up in New York, where would you investigate this? Now, no one, I mean we don't know that Senator Torricelli did anything wrong at all. He denies it.
[La Bella:] Right.
[Van Susteren:] But how do you go about investigating and prosecuting?
[La Bella:] Well, I think what the Southern District is doing now is they're looking for corroboration. They went into the home. They're looking for evidence of the gifts that were given. They're going to interview all the people who were associated with those gifts, whether they can corroborate the witness or not is going to be the real test here.
[Van Susteren:] What if in David Chang's mind, let's say that he gave Senator Torricelli all these great gifts and in his mind he thought that Torricelli was going to turn around and help him. In Torricelli's mind let's say that he didn't, but he thought he was just some of constituent and writes a letter. That's not enough, is it?
[La Bella:] No. That's going to make it a very difficult case, almost an impossible case on the gratuity statute and on the bribery statute. It does make a more interesting case, though, on a mail fraud and a, also failing to disclose gifts. That's more problematic, I think, in this situation.
[Cossack:] Well, Mark, let's talk about what the government, at least at this stage, is claiming was the quid pro quo. Now, David Chang says that I gave a certain amount of money or certain gifts and things to Senator Torricelli. As we all agree, that's not enough, and there must be and he agreed to do the following. What was that?
[Hosenball:] Well, I mean, the problem is, of course, we don't know what the government is claiming. The government hasn't put anything on the record specifically about, you know, its investigation about, of Senator Torricelli other than the sort of straw donor aspect of the investigation. So we don't know the extent of the government case. It appears that Chang, however, has made allegations that in return for cash and gifts, Torricelli did various favors for him such as pressure the U.S. government and maybe foreign governments to, you know, help him with his business deals. Now, whether you can tie any of those specific acts by Torricelli helping Chang to any of the specific gifts, you'd have to know the dates. You'd have to know, you know, the way the gifts were paid, if the gifts, indeed, were paid and, of course, you have the problem with Chang's credibility. So we don't really know the strength of the government's case now. But with, I agree with your previous guest. What the prosecutors now are doing is looking for corroboration for Chang's allegations, allegations from a problematic witness.
[Van Susteren:] Charles, how does this end up in New York? This is a New Jersey senator and, I mean, what, maybe you don't know this. I mean this is being investigated in New York. Why? Do you know?
[La Bella:] Well, I think, I mean my information is that as the campaign financing task force was winding down, Bob Conrad was made U.S. attorney. This case was being handled out of the task force. It just was natural to send it to a U.S. attorney's office. It had to be done, had to be done competently and the prosecutors who are now still on the case are being supervised by the Southern District of New York. The case is being handled by the Southern District of New York. I think it couldn't go to New Jersey because the senator probably had some hand in picking the U.S. attorneys there. So I'm sort of reading tea leaves here, but I think that it probably went to the Southern District of New York because it's the closest jurisdiction and it has venue over the allegations.
[Van Susteren:] And that's the...
[Hosenball:] The germ of the investigation began in New Jersey, in fact, with the U.S. attorney's office in New Jersey. They were the ones who first heard the allegations about Torricelli and, indeed, the U.S. attorney there under Clinton was conflicted out. So it transferred to main Justice and then main Justice, Ashcroft abolished that task force that Conrad ran and that Mr. LaBella ran and so then they switched it over to the Southern District, which seems to be cleaning up a lot of the messes left behind by the Clinton administration.
[Van Susteren:] And the appearance that...
[Cossack:] How did they get jurisdiction? Probably somebody made a phone call from New York?
[Van Susteren:] Or even the thing I think that probably the smart thing is because, as Charles pointed out, Senator Torricelli probably did help choose the U.S. attorneys in the State of New Jersey and everyone would be screaming about that, and rightfully. It would have the appearance of impropriety. We're going to take a quick break. We'll be right back. Stay with us.
[Q&a;:] Why did authorities at a New Mexico prison have to fire tear gas at prisoners Monday night? Why did authorities at a New Mexico prison have to fire tear gas at prisoners Monday night? To break up a daylong protest. About 700 inmates had refused to leave the recreation yard to go to classes or work assignments.
[Van Susteren:] Welcome back to BURDEN OF PROOF. We're talking about Senator Torricelli of New Jersey and the allegations that underline, allegations against him having to do with campaign contributions and the like. Eric, talking about the law. In order to be fair, the law must be clear. In your opinion, is the law clear for politicians in this area?
[Bloom:] Well, no. The truth is there is such a morass of very complex administrative regulations in the House, in the Senate, in the executive branch and they've changed several times, too. It is very easy for someone simply to trip over some of those regulations. One of the things that the Supreme Court, in fact, pointed to in ruling that you apply the criminal statute very narrowly is the fact that you do have these administrative regulations and suggested that more times than not, that's where these cases should go.
[Van Susteren:] Charles, do you agree about, with Eric about whether or not the law is clear?
[Labella:] Well, I think some of the administrative regulations are unclear, but I think the law on bribery and gratuities is pretty clear and I think one thing you have to keep focused on is the Southern District of New York is not going to bring a criminal case on petty or trite conduct. It's going to make sure that if they ever go forward on a case like this, it's going to be pretty substantial conduct.
[Cossack:] Charles, you know, one of the things lawyers talk about from the Supreme Court is looking for bright line decisions, you know, bright line decisions.
[La Bella:] Right.
[Cossack:] OK, this is the line in the sand. We all know what it is now. Is the case that we talked about, that Eric talked about, the Sun-Diamond case, does that lay down a bright line decision to make it so difficult now for prosecutors that they say, you know, we'd better have the goods before we do anything about this?
[La Bella:] I don't think it makes it impossible, but it makes it, I mean it raised the bar. I mean it clarified the law. Prior to that, there had been some confusion about what would sustain a gratuity conviction and I think the Supreme Court case cleared it up and raised the bar.
[Van Susteren:] And let me tell you, you know, let me tell you, I don't know if it raised the bar. I mean I'll take all of you to task a little bit. Maybe it just made it fair. I mean and the question of making it more difficult for prosecutors, maybe that the problem was is that in some ways it was being abused. I mean the law must be clear and definitive and I don't know if the Supreme Court necessarily raised the bar, but simply said to Congress when you write these statutes, you'd better be fair to everybody and make it plain and simple.
[Bloom:] Well, I agree with that.
[Unidentified Speaker:] I think that's true, yeah. That's true.
[Bloom:] Let me give you a couple of examples. The Supreme Court pointed to the New York Yankees, for example, are a championship baseball team, goes to the White House and they give a jersey to the president. Is that a gratuity? You're giving a thing of value and you're giving it to him because of his position. If the secretary of agriculture goes and speaks to farmers...
[Cossack:] Well, but you're not asking, but you're not asking him to be a Yankee fan, either, you know? You're just saying here's a gift, Mr. President. You're not asking him to...
[Van Susteren:] His wife is.
[Bloom:] But that's just the point. I mean if you're, but you are giving it to him because of his position, because of his status. At the trial court, the client was initially convicted because to the trial court judge, that is sufficient. If you're giving it to him simply because of his position, that is enough to convict.
[Cossack:] Oh...
[Van Susteren:] And sometimes the law can be really stupid, right?
[Cossack:] Well...
[Van Susteren:] Thank you. Let me go back to Mark, though, for a second. Mark, Senator Torricelli is a bit flamboyant. We've read about the fact that he's gone out with some rather flamboyant women. Is that, I mean tell us who, tell us how flamboyant he is and whether or not that has any sort of bearing on this story?
[Hosenball:] Well, he's very colorful. He's very outspoken. Remember also, he was the chairman of the Democratic Senatorial Campaign Committee, in other words, the fundraising arm of the Democrats in the Senate for the last couple of years. So to some extent he's a poster boy for the current campaign finance system. Now, that's attracted both television attention to him but also the attention of "The New York Times," which seems to regard him as the poster boy for campaign finance abuses. So "The New York Times" has kind of launched a campaign against him. Moreover, you know, his abrasive, he's an abrasive personality. He talks a lot on TV. He's gone out with Bianca Jagger and Patricia Duff. So he's kind of a colorful character and colorful characters, you know, attract attention. And yes, sure, that's probably increased the interest of the prosecutors in going after this guy, his high profile.
[Cossack:] Eric, it would seem to me that of all of his problems, maybe the least of it is these, the actual quid pro quo claims. But these claims of perhaps taking money through straw donors, that may be much more of a problem for him.
[Bloom:] Well, let me just add two things to give a little bit of perspective. First, as I think the clips showed from the senator, the only evidence the prosecutor has to show knowledge, knowledge the senator himself was involved. In all of these cases, you have straw donors happening all the time but that's from the other side, from the donor's side, not the donee's side.
[Van Susteren:] Unless they deliberately look the other way and sort of a nod and a wink. I'm not saying that happened here, but I mean it's conceivable you could do that.
[Bloom:] Sure. My point is in terms of evidence, that's very hard to establish. The second thing is, just to give it some proper perspective, the statute under FECA, the Federal Election Commission Act, actually makes it a misdemeanor. It's only been through, in my view, creative pleading that it's been felonized.
[Cossack:] Oh, I see. All right, that's all the time. I'm getting a note. That's all the time we have for today. Thanks to our guests. Thank you for watching. Today on "TALKBACK LIVE," did Navy Commander Scott Waddle get the right punishment? Send your e-mail to Bobbi Batista and tune in at 3:00 P.M. Eastern Time.
[Van Susteren:] And tonight on THE POINT, he claims he was pushed around and that drove him to fire on his fellow students. Now Charles Andrew Williams faces trial. Should he be tired as an adult? That's tonight at 8:30 Eastern. And join Roger and me tomorrow for another edition of BURDEN OF PROOF. We'll see you then.