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Al Gore

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123456
from: Phillip Heymann
to: Bruce Fein

Posted Tuesday, Oct. 14, 1997, at 3:30 AM ET

Dear Bruce Fein,

No one has criticized more vigorously than me the fund-raising practices of both parties in 1996. Seeing what they thought was a loophole, and trusting that they would get no great trouble from the FEC or the Department of Justice, they very explicitly offered favored access, and the influence that comes with it, to very large contributors, including corporations and labor unions. If the attorney general would take that bipartisan sale of our government seriously, I would be the first to applaud.
You and I are arguing about something different. Is the vice president the only person to be prosecuted, on the ridiculous grounds that he was sitting in the wrong room of the White House when he made calls to contributors, of the sort that scores of others also made?
The crime you urge the vice president be prosecuted for has been around since 1883, and as far as we know, it has never been used to prosecute anyone for simply making calls from federal government offices. Everyone has recognized that the core purpose of the statute was to prevent people from pressuring government employees for contributions. It is not as if the issue has never arisen before. The statute applies to senators and representatives. On several recent occasions, senators have been found to have made calls from their offices. Not one of them has been prosecuted.
There are explanations of why the statute has never been applied to phone calls from a government office. The language of the statute may look clear to you, but it hasn't looked clear to the Department of Justice over all these years. The Watergate special prosecutor thought, and then announced, that the statute did not apply to calls from a government office; the legal counsel under President Carter thought it did. Congress must clarify the reach of the statute before someone gets prosecuted for the first time in 115 years.
Most important, no one can think of any reason why it matters whether Vice President Gore made calls from the living quarters of the White House or working quarters of the White House or a cellular phone on Pennsylvania Avenue. Any purpose that Congress might have had either allows phone calls to fat cats or forbids them, without regard to the location of the caller. You have to have a very high degree of belief in the absurdity and irrationality of Congress to argue that it wanted a call from the working areas of the White House to be illegal, and calls from a few feet away in the other two locations to be legal. The recipient of such a call doesn't even know which location the call came from.
A prosecution would therefore be pointless, unprecedented, and discriminatory. Worse, it would turn everyone's attention away from the outrageous open sale of access that both parties engaged in and suggest that the real problem our democratic institutions face is the vice president's failure to walk outside, or even just upstairs to the living quarters of the White House.

dialogues
entries
123456
from: Phillip Heymann
to: Bruce Fein

Posted Tuesday, Oct. 14, 1997, at 3:30 AM ET
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Bruce Fein served as associate deputy attorney general in the Reagan administration. He is a syndicated columnist at the Washington Times, and practices international and constitutional law. Philip Heymann served as deputy attorney general in the Clinton administration. He is a professor at Harvard Law School and the John F. Kennedy School of Government.
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