CBS "Face The Nation"-Transcript

Interview

Announcer: FACE THE NATION, with chief Washington correspondent Bob
Schieffer. And now from Washington, substituting for Bob Schieffer, CBS News
chief White House correspondent Jim Axelrod.

AXELROD: And welcome again to the broadcast. Bob Schieffer is off this
morning. Joining us now from Long Island, New York, Senator Chuck Schumer. And with us here in our studio...

Senator CHARLES SCHUMER (Democrat, New York; Judiciary Committee): Hi.

AXELROD: ...Senator Orrin Hatch. Gentlemen, thank you both for being with
us. Senator Hatch, let's start with you. And I'd like to discuss this executive
privilege battle that really seems to be intensifying between Congress and the White House. Now, tomorrow is a congressional deadline for the White House to provide a justification for not complying with a subpoena, as well as a log of the documents that it'll be withholding. You got a problem with the White House position on this?

Senator ORRIN HATCH (Republican, Utah; Judiciary Committee): I don't have any problem with that position. I think that--I think they're asserting executive privilege properly. And frankly, I think they have a pretty strong case. The White House has cooperated fully. They've given over almost 10,000 pages of documents to the committee on this US attorney matter. They give over--given over 200,000 documents on virtually all the matters. They've put the attorney general, the deputy attorney general, a whole raft of other people up here to testify under oath. They offered to put Karl Rove and others to come up, but off the record, so that you could--the committee could find out just exactly what they--ask any questions they wanted and find out just exactly what was going on. But there comes a point where the White House has to say, `Hey, look, there are certain confidential things in the White House that we're not going to share with Congress,' just like there are confidential things in Congress we're not going to share with the White House.

AXELROD: But there are ways to do that. And, for instance, not providing a
log of documents, that's not exactly standard operating procedure. So it
would seem as though the White House must be very sure if itself, to say the
least, but also making this especially difficult.

Sen. HATCH: The logs have been provided in the past, but I think the White
House is sure of itself. I think they have a very good case. I don't
think--if you read the letter from Fred Fielding, the counsel in the White
House, it's a pretty strong, very, very articulate, good letter. And I think
he outlines it about as well as it can be outlined.

AXELROD: Chuck Schumer, where is this going to end? Is this going to end
with criminal contempt of Congress?

Sen. SCHUMER: Well, let me just say I don't think the claim of privilege is
very strong. There are three reasons. First and foremost, this is not a
general fishing expedition, but rather it's to look at a specific act of
wrongdoing. The courts have looked more favorably on privilege when that's
the case. Second, some documents related to this have already been revealed. That weakens the case of privilege. And third, there's nowhere else to get the information. So we think that if it should go to court, we'll prevail. But what usually happens in these, Jim, is Congress does invoke contempt. Both Chairman Leahy and Chairman Conyers have said they would. And then there's a negotiation, and the person almost always, in the past, has come before the Congress and testified. And that's where I think it's going to end up.

AXELROD: Senator Hatch just mentioned what the White House considers to be a generous offer. And I know that the Senate, the Judiciary Committee has said you're fine on conducting the testimony in private, you're fine with not doing it under oath, it's the transcripts that seem to be the sticking point. Is that right?

Sen. SCHUMER: Exactly. And even Arlen Specter, the Republican ranking
member of the Judiciary Committee, has said that, without a transcript, it's
meaningless. It means no accountability. And what they've done--Orrin is
right--they've given us a lot of documents related to the Justice Department.
But, as you know, everyone in the Justice Department--Gonzales, McNulty and everyone on down--said, `We didn't do it.' It looks like the White House did it. They won't give us any documents from the White House. They won't let us talk to anyone with a transcript or under oath or in public. You know, when somebody claims these--this kind of secrecy on these kinds of specific acts, it's usually because they have something to hide.

AXELROD: Senator Hatch, explain this to me about the transcripts, though.
It's sort of standard operating procedure to have a written record of what's
said anytime somebody testifies.

Sen. HATCH: Not on top White House employees. The White House has to guard its right to have confidential communications on the best advice they can get from their employees. You know, this is a big tempest in a teapot. First of all, the president has an absolute right to discharge any US attorney at any time. The fact of the matter is they did it--I think it was heavily handled, it wasn't well done, and that's, I think, a criticism that is justified. But in all of the hearings we've had and all the requests for documents, the
demand of people to come up and testify before the committee, which the White House has cooperated in, there hasn't been one indication of any real
impropriety. There's been no interference with an ongoing investigation or an
ongoing case. And it just looks--I disagree with Chuck--it is a fishing
expedition. And the White House says, `We're not--just not going to go along with it any further, especially with regard to internal White House
communications that, really, every White House believes ought to be
confidential.

AXELROD: All right, let's move along to what has been probably the burning
issue this week in Washington, which is the commutation of Scooter Libby's
sentence.

Sen. HATCH: Right.

AXELROD: Are you disputing that this was special treatment given to a top
administration official?

Sen. HATCH: I don't think it was special treatment. I think the president
has an absolute right--I think Chuck would agree with that--an absolute right
to commute sentences or grant pardons. The only thing I was disappointed in, I think he should've been pardoned.

AXELROD: But the president has done 113 times pardoned somebody, three times commuted a sentence.

Sen. HATCH: No, four.

AXELROD: Always, always vetted through the Justice Department. Not this
time. How can you say it's not special treatment?

Sen. HATCH: Well, it's no different from what President Clinton did when
he--when he granted 140 pardons and 36 commutations on the last day of his tenure in office. Now, I didn't disagree with most all of those, but we did
have some problems at the time because the Marc Rich, Pincus Green, those
pardons were granted to two fugitives from justice. Now, the president gave a reasonable explanation in his article in The New York Times. But really, what
really upset me was the two felons, one of whom was a cocaine dealer that
wasn't--the other wasn't any better. And they both got pardons. They both
got pardons after they had given $200,000 each to Hugh Rodham, Senator
Clinton's brother.

AXELROD: Senator Schumer, in your view, is there any difference between a
commutation and a pardon?

Sen. SCHUMER: Yes. And this is the real difference here. It hasn't really
been brought out. Under commutation, the person who's commuted has much greater Fifth Amendment rights, and so it means that if there were a pardon, Libby could be called before Congress to testify on a whole bunch of things. Commutation makes it much, much harder to do that. And I think that's an unspoken reason why the president did this.

AXELROD: You're saying that commutation...

Sen. SCHUMER: Let me just say one other thing.

AXELROD: Senator Schumer, just let me make sure I got my arms around this.

Sen. SCHUMER: Yeah.

AXELROD: You're saying what a commutation does is, in essence, insulate the
White House further from Scooter Libby being a...

Sen. SCHUMER: To a far greater extent, yes. To a far greater extent than
pardon, commutation, you're allowed to keep your Fifth Amendment rights and, therefore, you can ask--you have--you don't have to answer many questions at all. And I think that may be one of the reasons here that they commuted rather than pardoned. Most Republicans, as Orrin said, preferred pardon.

AXELROD: I asked Senator Hatch about President Bush, and he answered by using President Clinton's example. Is there a difference in your view between what President Bush has done this week and what Republicans call the sort of fire sale pardons of the Clintons on their way out the White House door?

Sen. SCHUMER: Well, look, I think most people, most Democrats, myself
included, at the time said the Clinton pardons were wrong. These are wrong
also and, you know, that's just looking backward. I mean, the issue here is
the Libby pardon, 64 percent of America--the Libby commutation--is the issue.
Sixty-four percent of the American people said it was wrong. And they're just
trying to create a diversion as always. And let me just say one other thing, Jim. One thing, and I've spoken to Senator Leahy about this, that we're thinking of doing is calling Patrick Fitzgerald, the prosecutor, before us. You know, he's not allowed to talk about what happened before the grand jury, but he did interview the president and the vice president not before a grand jury, and he might have some very interesting things to say. He issued a rare statement after the commutation that was very harsh in condemning it, and with good reason. The average guidelines, the Justice Department guidelines in these types of situations call for 30 to 37 months in prison. That's what Libby got, and so there are thousands and thousands of people who committed the same crime who are sitting in jail, and Scooter Libby is not. And that's just not fair. That's not equal justice before the law.

AXELROD: When would you like to see Patrick Fitzgerald come to Capitol Hill?

Sen. SCHUMER: Well, you know, this would be Senator Leahy's call, but I
talked to him about it yesterday and he seemed inclined to do it. It would be
very interesting, and we'd like to hear what he has to say. Obviously, he
can't talk about anything that occurred in the grand jury, but there's a lot
else that he might be able to tell us because, obviously, with the commutation of Libby and with no one else meeting a criminal standard, but still something terrible being done, the name of an agent being leaked, and, you know, I started this--I called for the original investigation, we sure want to get more answers.

AXELROD: Senator Hatch, is--does what the president did this week, does that just sort of amount to a gift to defense lawyers all over the country who can now sort of file a Libby motion and--when they have clients that are facing similar charges and similar sentences?

Sen. HATCH: No more than it's done for any other commutation. The fact of
the matter is, is that Libby had given a lifetime of service to our country.
He certainly was--is not a criminal. He's a person who has--who has
sacrificed throughout his lifetime to serve this country, and he certainly has
been doing it over the last number of years.

AXELROD: He was also convicted.

Sen. HATCH: He was not a--he was not a threat to leave the country, he was
not a threat to--in any way. And it was an appropriate thing to do. And I
disagree with Chuck. I think both President Clinton and President Bush had an absolute right to grant pardons if they wanted to constitutionally. The only
difference between the Clinton and the Bush pardons is in the case of the
FALM, the Puerto Rican terrorists, case of Rich and Pinkus Green. In the case
of the two, who paid $200,000 to Hugh Rodham, these--two of them were
fugitives from justice, 16 of them were terrorists, and the other two, it
seemed to me, may have bribed their way through.

AXELROD: Right. We--right.

Sen. HATCH: And that's what really caused the problem here.

AXELROD: We just got about two minutes.

Sen. HATCH: But they both had an absolute right to grant pardons.

AXELROD: We've got about a minute and a half left.

Sen. SCHUMER: Well, one thing, Jim, two wrongs don't make a right. That's
the bottom line.

Sen. HATCH: Well, and by the way--by the way, they still have constitutional
rights after a pardon as well as a commutation.

AXELROD: Gentlemen--gentlemen, let's...

Sen. HATCH: I think that has to be clarified.

AXELROD: ...let's just leave it there for a second because I want to get your
thoughts on the war very, very quickly now. Pete Domenici comes out this week and calls for a further reduction in troops and of combat missions by next spring. Senator Hatch, is the drip, drip, drip bursting the dam and becoming a steady stream of Republicans leaving the president?

Sen. HATCH: Well, there's a lot of discontent with the war. But on the
other hand, Pete Domenici was not calling for us to immediately leave. He's
calling us to work towards withdrawing the troops over there, and I think--I
think that's different from what the president really wants, and there are a
few others doing that. But on the other hand, I don't think any Republican,
major Republican, is calling for us to just precipitously leave there and
leave that place in a mess.

AXELROD: Senator Schumer, you got about 20 seconds here. Your reaction to
Senator Domenici this week.

Sen. SCHUMER: Yup. Yup. I think the dam is about to burst. Republican
senators who have been holding up a reasonable change in policy on this war are going home and getting hammered by their constituents. And they're
beginning to change. If not this July, by September there will be real change
forced upon the president by a bipartisan Senate.

AXELROD: And we're going to leave it there. Chuck Schumer, Orrin Hatch,
thank you both for joining us. When we return, we'll talk politics with our
roundtable guests. And we're back in just a minute.

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