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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Government Reform and Oversight. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/reform]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.
THE DEPARTMENT OF INTERIOR'S DENIAL OF THE WISCONSIN CHIPPEWA'S CASINO APPLICATION
WEDNESDAY, JANUARY 28, 1998
House of Representatives,
Committee on Government Reform and Oversight,
Washington, DC.
The committee met, pursuant to notice, at 11:25 a.m., in room 2154, Rayburn House Office Building, Hon. Dan Burton (chairman of the committee) presiding.
Present: Representatives Burton, Gilman, Hastert, Cox, McHugh, Horn, Mica, Souder, Scarborough, Shadegg, Sununu, Pappas, Snowbarger, Barr, Miller, Waxman, Lantos, Kanjorski, Maloney, Barrett, Norton, Cummings, Kucinich, Blagojevich, and Tierney.
Staff present: Kevin Binger, staff director; Richard Bennett, chief counsel; Judith McCoy, chief clerk; Teresa Austin, assistant clerk/calendar clerk; William Moschella, deputy counsel and parliamentarian; Will Dwyer, director of communications; Ashley Williams, deputy director of communications; Dudley Hodgson, chief investigator; Barbara Comstock, chief investigative counsel; Dave Bossie, oversight coordinator; James C. Wilson, Robert Rohrbaugh, and Uttam Dhillon, senior investigative counsels; Bill Hanka, investigative counsel; Robert Dold and E. Edward Eynon, investigative attorneys; Jason Foster, investigator; Robin Butler, office manager; Carolyn Pritts, investigative administrative assistant; Barrett Davie and Mark Sylvester, investigative staff assistants; Phil Schiliro, minority staff director; Phil Barnett, minority chief counsel; Kenneth Ballen, minority chief investigative counsel; Michael Raphael, David Sadkin, Michael Yang, and Michael Yeager, minority counsels; Harry Gossett and Rick Jauert, minority professional staff members; Ellen Rayner, minority chief clerk; and Jean Gosa, Becky Claster, and Andrew Su, minority staff assistants.
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Mr. BURTON. The committee will come to order. I'd like to welcome everyone back to our third day of hearings regarding Secretary Babbitt and the Interior Department's rejection of an Indian gaming application. This application was submitted by three poor Indian tribes in Wisconsin and it was opposed by several very wealthy tribes who are major donors to the Democratic National Committee and party.
Last week, we heard testimony from the chairmen of the three Chippewa tribes who submitted the application. We heard from the owner of the dog track at which the casino was to be located. We heard from four Interior Department officials, both career officials and political appointees who were involved in the decision. And we heard from both an opponent and a supporter of the casino from the town of Hudson.
We learned a number of important facts during these 2 days. We heard testimony that the chief fund-raiser for the Clinton/Gore campaign, Terry McAuliffe, approached Frank Havenick and told him that he had a hand in killing the casino application. We learned that a Justice Department attorney defending the Interior Department in the lawsuit criticized the Department for not following its own procedures and suggested settling the case.
We learned that the tribes who opposed this casino so strenuously and benefited from the decision to reject it contributed nearly $360,000 to the Democratic National Committee following its rejection. We heard testimony from two witnesses and received affidavits from six more that the head of the Indian Gaming Management Staff, George Skibine, told a group of people at a meeting in Wisconsin that political appointees in the Department were responsible for killing the application.
We then received five affidavits from Interior Department staff who denied that that statement was made. However, because two different meetings were held on that day, questions have been raised as to whether these Interior Department people were at the meeting in question. We are pursuing that to find out more of the details.
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We learned from a number of documents, e-mails and deposition testimony that a senior counsel in Secretary Babbitt's office, John Duffy, appears to have been the driving force behind the decision.
Mr. Duffy was a political appointee of Secretary Babbitt. We learned that after the decision to reject the application was made, Mr. Duffy and Mr. Babbitt's chief of staff, Tom Collier, left the Department and went to work for the Minnesota Shakopees, an Indian tribe which was the wealthy Minnesota tribe that benefited the most from this decision.
We learned that in February 1995, the Department reopened the comment period on this application for 2 months at the request of the opposing tribes. They did not inform the applicant tribes until they were confronted by the tribes about it 6 weeks later, which was highly unusual.
We also learned that the Interior Department never met with the applicant tribes to give them a chance to correct any flaws in their application. They kept these tribes that they were supposed to be helping completely in the dark.
This type of consultation is required by law. It flies in the face of the procedures used in considering every other application. To reinforce this very important point, let me just read to you from Mr. Skibine's deposition.
Question, ''Here were three poor tribes that had presented an application to the Department of the Interior and you were making a determination as to whether to approve the application or deny the application. If you, as Director of the IGMS staff, identified a particular problem that might lead to the rejection of the application, did you consider it important to communicate that directly to the applicant tribes to give them an opportunity to cure the problem?''
The answer by Mr. Skibine, ''Good question. I don't think that I did that on this application, the first application I considered as head of the Gaming Office. If I were to do that again different now, you know, it might be different, it might be something I would consider doing, but at the time I didn't do it.''
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It appears as though the reason they didn't do this is they didn't want to approve the application.
This week, we will hear from four very important witnesses. We will first hear from Patrick O'Connor, the former Treasurer of the Democratic National Committee, who was the chief lobbyist for the wealthy Minnesota and Wisconsin tribes opposing the application. Mr. O'Connor vigorously lobbied the President, Deputy White House Chief of Staff Harold Ickes, and the head of the DNC Don Fowler, and others to kill the application. In September 1995, after he succeeded in getting the application killed, he wrote a fund-raising letter to his Native American clients. Here is what it said, ''As witnessed in the fight to stop the Hudson Dog Track proposal, the Office of the President can and will work on our behalf when asked to do so.''
We will hear from Tom Collier, Secretary Babbitt's former chief of staff, and Michael Duffy, the Secretary's chief counsel for the Indian gaming issue, and finally tomorrow we will hear from Secretary Babbitt himself.
We have a great deal of work to do over the next 2 days, so I'll not take any more time right now.
I would like to invite the gentleman from California to make any opening comments he has and then we will hear from our first witness. But before Mr. Waxman makes his comments, let me just say that we may have a motion or two that we will have to vote on at some point during the hearing, and there may be a unanimous consent request, so I will make all of my colleagues aware of that in advance. So if you could stick around, we would appreciate it.
Mr. Waxman.
Mr. WAXMAN. Thank you very much, Mr. Chairman. I want to point out that over the last year or so, we have had a lot of accusations about scandals, but when it came down to it, these accusations were unsubstantiated. I think that is important to point out, because people forget. We had allegations, and pretty colorful ones. We had allegations that the White House kept an enemies list; that it was using the IRS to punish political enemies; and that the White House was a haven for hard drug users.
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We also had a pretty big bumper crop of accusations that were pretty sensational during this last year. The White House was accused of altering its videotapes. Former Energy Secretary, Hazel O'Leary, was accused of demanding charitable contributions from Johnny Chung. Maggie Williams was accused of soliciting campaign contributions in the White House. This is a list that I pointed out last week in my opening statement, and I also pointed out that the fact of the matter was that all of these statements were completely untrue.
One statement also was that the White House was selling burial plots at Arlington National Cemetery. That is also untrue. But the reason I raise it is that the accusations get the headlines, but the corrections are buried. On page 10 of the Washington Post, I want to hold it up, buried over in this little corner, is an article that says ''Political Donations Not a Factor in Arlington Waivers, GAO Says.'' So GAO did a study. They found this accusation was inaccurate. They print a clarification that the accusation was not valid, and it appears on A–10. Where do the attackers' statements that are unsubstantiated appear? Usually on page 1. What we have is investigation by innuendo, and that will, I suspect, continue today.
Let me try to summarize where we are. Mr. O'Connor and others on both sides of the casino controversy lobbied this issue. Both sides made campaign contributions and both tried to exert political influence, not an unusual situation in this city of Washington, where both sides hire lawyers and lobbyists and try their best to win their side. That makes the Hudson Casino controversy like nearly everything else we have seen in Washington.
What would make this issue different is if we had solid evidence that the decision was improperly affected by campaign contributions. But there is no such evidence. Last week, George Skibine, Tom Hartman, and Michael Anderson all testified under oath that the casino decision was made on the merits, without improper political influence.
Hilda Manuel, another senior Interior Department official, provided similar testimony in a sworn deposition, but was not permitted to testify, although she would have told us that she talked to Secretary Babbitt and he told her, you decide, you career people decide this case on the merits. These are the four Interior officials who were most involved in this matter and who would be in a position to know if any wrongdoing occurred. They are the ones we would normally rely on to see if there is substance to the innuendo. And they have all said that the decision was made on the merits.
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I realize the chairman is determined to plug away at trying to uncover more innuendo to fuel his theory of wrongdoing, but the facts are that every member of this committee seems to think the decision was a right one. And there is no solid evidence that anything improper happened in the decisionmaking process.
Our committee has conducted hearings, but more than hearings, we have had depositions. These depositions, by the way, compel—under subpoena, some people are compelled to come in, give testimony under oath. The press and the public are not there to witness it. These depositions can take an extraordinarily long period of time. People are deprived of their rights because they are compelled to be there. And sometimes these depositions become public, but sometimes they are not.
We, during the past year, had over 100 witnesses deposed, many of which had already been deposed by the Senate. Most of these witnesses have never been and will never be called to testify. So they won't have a chance to speak in public. Until last week, I had never requested that a witness be deposed. But last week, I asked that we depose Patrick O'Connor, our first witness at this hearing today, so that we could prepare for this hearing.
On Monday, I was informed that the chairman had rejected this request. I, frankly, can't think of a single legitimate reason for the chairman's rejection, especially given the large number of wasteful and redundant depositions the staff had already conducted. Perhaps my suspicions would not be as great had it not been for Fred Havenick's testimony last week.
At the last moment, before that hearing, we learned that Mr. Havenick would testify that Terry McAuliffe was somehow involved in the Hudson Casino decision. Terry McAuliffe, by the way, was one of the major fund-raisers for the Clinton/Gore campaign. Although that charge has subsequently been reported in the press, no evidence has been produced to substantiate the allegation. The press reported it. No evidence was produced to substantiate it.
In fact, every Interior Department official who was involved in this decision has testified under oath that they were never contacted by Mr. McAuliffe about this issue. The same is true of Mr. Havenick's allegation about his meeting with George Skibine. We have learned since last week that two of the people Mr. Havenick claims were at the meeting now say that they did not attend, and we have received affidavits from five other Department of Interior employees who dispute Mr. Havenick's allegations.
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Mr. Chairman, our committee's resources would be better spent focusing on real scandals. Last week, I brought to the attention of the chairman and the members of this committee the facts behind the Gingrich-Lott tobacco scandal. The facts are that the tobacco industry is the biggest contributor to the Republican party; that it hired Haley Barbour, who was the Republican National Committee chairman, as its lobbyist, and that Newt Gingrich and Trent Lott were personally responsible for sneaking a $50 billion tax break for the industry into last year's budget bill. These are facts.
[The chart referred to follows:]
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[The official committee record contains additional material here.]
Mr. WAXMAN. When I raised this issue last week, we were told that my request for subpoenas to look at this scandal—what purports to look like campaign contributions producing favors for the contributors—when we asked for subpoenas, the chairman said he had it under consideration. We haven't received a reply from him.
One deposition that was taken during the course of our investigations was of Vernon Jordan. It had nothing to do with this casino. It had—I don't know what it particularly had a lot to do with. But I read today in the newspaper called the Hill, ''House Probe Turns Sights on Jordan.''
''Investigators for the House Government Reform and Oversight Committee are scrutinizing the deposition of Washington superlawyer Vernon Jordan to look for specific turns of phrase that might provide new insights into the White House sex scandal.''
Well, let's let everybody scrutinize this deposition. Let's make it public. Why should we have depositions taken and not released? I called at a previous meeting to have all those depositions made public. I am going to at the appropriate time ask unanimous consent that this deposition be made public. Let's get the facts on the table. And I would hope to get the facts on the table before the accusations are made, so that we know that accusations are based on facts and not innuendo.
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Mr. Chairman, if this is an appropriate time, I would make my unanimous consent request. If the Chair would like me to withhold it because we have other documents we are going to try to make public into the record, I would be pleased to withhold it, whatever his desires may be. But I do want to make this request at some time.
Mr. BURTON. We will entertain that. Have you concluded your remarks?
Mr. WAXMAN. I have.
Mr. BURTON. Let me just make a couple of brief comments regarding some of the issues that have been raised. First of all, the Commerce Department, which I believe you serve on, is investigating the tobacco issue and I think they will continue. Our plate is pretty full right now. That's why we haven't made any comment about that. Nevertheless, we believe it will be looked into by the Congress.
Regarding depositions, almost all the people we have deposed have come voluntarily. We have not had to subpoena, I think, over maybe one or two. There haven't been very many.
The reason we did not agree to have Mr. O'Connor come in for a deposition last week was because he was going to be before the committee today and we didn't think bringing him in here twice was necessary. So that's the reason for that.
Finally, regarding Vernon Jordan, let me make it clear, we are not involving this committee in any way in the scandal that is now engulfing Washington, DC. And the deposition regarding Mr. Jordan that was taken of him dealt with Webster Hubbell and other issues. I have no objection. I don't think our counsel does or anybody on the committee has any objection to making that deposition public. And so at the proper time we will entertain that motion, and I think that when the public sees that deposition, they will find that there was no reference made to any kind of a scandal of the type that we are talking about here in Washington today. And so with that, let me——
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Mr. WAXMAN. Mr. Chairman, may I just make a couple of comments?
Mr. BURTON. Sure.
Mr. WAXMAN. First of all, I serve on the Commerce Committee. That committee is going to look into the merits of legislation for tobacco control. It is not going to investigate the campaign contributions by the tobacco industry that I believe influenced the decision to give them a $50 billion tax break. That is something that ought to be looked at by the committee that is looking at campaign finance abuses. But as I pointed out, this committee doesn't look at abuses when it involves Republicans, only Democrats.
Second, I am pleased that you are going to allow the Vernon Jordan deposition to be made public. But I didn't say that this committee is looking at this campaign—at this scandal at the White House. I am reading from something that your investigators told the Hill newspaper; that they're scrutinizing the deposition of Vernon Jordan to look for specific turns of phrase that might provide new insights into the White House sex scandal.
Let's get that information out there and see if there is any turn of phrase. But that isn't something I have raised. It is something your staff reported to the press. Again, it made a nice headline. ''House Probe Turns Sights On Jordan.''
Now, of course, when the deposition gets out and is looked at, I don't think we will find another article that says, ''Nothing found in Jordan's deposition relating to the so-called sex scandal.'' But this is the kind of investigation that we are conducting on this committee and I want to point it out.
Mr. Chairman, if it is OK, I would make my unanimous consent request since we have an agreement on it.
Mr. BURTON. In just a moment. We have some other unanimous consents we want to entertain prior to that. But let me just say, I don't know where that rumor came from. To my knowledge, nobody on our staff was instructed or gave any information of the type you are talking about to the Hill newspaper. If you have specific individuals who said anything of that type, if you will bring them to my attention, they will be taken to task. We are not involving ourselves in that issue at all.
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I promise you we are not getting into that. That is something that is beyond what I want the scope of this investigation to be involved. I ask unanimous consent that the depositions of John Duffy and Ann Jablonski be included in the record after they have reviewed their depositions. I have no problem with them reviewing their depositions. So without objection, so ordered.
I ask unanimous consent that all documents regarding the St. Croix Meadows Greyhound Racing Park, except any proprietary studies included in volume 14 of the Interior record, be made publicly available, provided that any documents with sensitive personal information such as Social Security numbers and home addresses and phone numbers shall be redacted by committee staff before release. Without objection.
Mr. WAXMAN. Reserving the right to object, and I will object, Mr. Chairman, so that our staffs can look over these documents. As I understand, there are some problems with the release of some of these documents based on the Solicitor General's concern about it regarding attorney-client issues. So I will at this time object and hope that before the end of this hearing we can work out the problems in this so that we can make as much of it public as possible.
Mr. BURTON. Objection is heard. We will revisit this issue after staff has had a chance to try to work out our differences. If not, we will just have a vote on it. I ask unanimous consent that questioning in the matter under consideration proceed under clause 2(j)2 of House Rule XI and committee rule 14 in which the chairman and ranking minority member allocate time to members of the committee as they deem appropriate for extended questioning, not to exceed 60 minutes for the questioning of Secretary Babbitt, equally divided between the majority and the minority. Without objection, so ordered.
Now, I will entertain your motion.
Mr. WAXMAN. Mr. Chairman, I do want to point out that the Hill article says Republican staffers for the committee headed by Representative Dan Burton say different things. However, the staffers insisted on anonymity, so it is really up to you to talk to your staff to find out if, in fact, they are leaking this information to the press.
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Mr. BURTON. I will check with our staff. We will look into it. If we find anybody is making those kinds of comments to the Hill newspaper or any other publication, we will severely correct them. Because that is something we are not going to get into.
Mr. WAXMAN. I ask unanimous consent that the deposition of Vernon Jordan taken by the staff of this committee be made public.
Mr. BURTON. Without objection, so ordered.
Our first panel today consists of Mr. Patrick O'Connor. Would you please come forward, Mr. O'Connor? Would you stand and raise your right hand.
[Witness sworn.]
Mr. BURTON. Please be seated.
Mr. O'Connor, do you have an opening statement you would like to make?
STATEMENT OF PATRICK O'CONNOR, ATTORNEY AND LOBBYIST, O'CONNOR & HANNAN
Mr. O'CONNOR. I would waive that opening statement. It's part of the record. In light of our delay in getting under way, I think it would save some time.
Mr. BURTON. Mr. O'Connor, we will submit your statement for the record. Without objection it is so ordered.
[The prepared statement of Mr. O'Connor follows:]
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[The official committee record contains additional material here.]
Mr. BURTON. So, Mr. O'Connor, we will now start with questioning from the chief counsel, Mr. Bennett, who is recognized for 30 minutes.
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Mr. BENNETT. Good morning, Mr. O'Connor.
Mr. O'CONNOR. And good morning to you.
Mr. BENNETT. Sir, in your opening statement, which is part of the record, you made reference to two different, I guess, aspects of your life. One, that you have essentially been—you started your career as a trial lawyer and the record should reflect the great respect you enjoy as a trial lawyer in the Minneapolis area, and then I believe that around 1961, according to your prepared statement, you began to engage more in activities that would be defined as lobbying, isn't that correct?
Mr. O'CONNOR. Working with clients in terms of their problems with the Congress and with Federal agencies.
Mr. BENNETT. Would you agree, sir, that generally in the parlance, that would be defined as being a lobbyist? I'm not disparaging that, I'm just saying essentially you've been a lobbyist for the past 25 or 30 years, haven't you, sir?
Mr. O'CONNOR. It also included lobbying, yes.
Mr. BENNETT. And then, sir, totally separate from that, you are a former treasurer of the Democratic National Committee; is that correct?
Mr. O'CONNOR. That's correct.
Mr. BENNETT. And I think the record should reflect your great prominence in the Democratic party and I believe now you are a trustee of the Democratic National Committee, is that correct, sir?
Mr. O'CONNOR. I believe they now refer to them not as trustees, but as to——
Mr. BENNETT. Major supporter?
Mr. O'CONNOR. Major supporters.
Mr. BENNETT. With respect to your lobbying activity and your activity as a major supporter of the Democratic party, I think in your prepared statement, you noted that as a major supporter, you have the responsibility for fund-raising, isn't that correct?
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Mr. O'CONNOR. That's correct.
Mr. BENNETT. Sir, as a lobbyist, I am sure that you have represented clients on the merits of issues having nothing to do with the matter of political fund-raising; isn't that correct?
Mr. O'CONNOR. Certainly I have represented clients that did not involve fund-raising.
Mr. BENNETT. And also in terms of your great commitment and dedication to your party of which you should be proud, the Democratic party, you had raised money for the Democratic party and have expected nothing in return on many occasions; isn't that correct?
Mr. O'CONNOR. I have raised money for the Democratic party, yes. And I did not—I do not expect any return, if that's the term you want to use.
Mr. BENNETT. And, sir, my question to you, then, is based upon your status in the legal community and your many years of experience both in the law and in politics, you would agree, would you not, that it can become somewhat dangerous if you intertwine the two too closely, meaning intertwining fund-raising and lobbying for a particular client?
Mr. O'CONNOR. I don't believe—I don't know what you mean by intertwining. But certainly I believe that you can be working on a matter for one client and still be involved if that client has a willingness to make a contribution to a political party or to a Member of Congress.
Mr. BENNETT. But that willingness should not be imposed on that client, wouldn't you agree, sir?
Mr. O'CONNOR. Say that again.
Mr. BENNETT. That willingness, as you said, that willingness should not be imposed on the client as a condition of getting a result; would you agree with that?
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Mr. O'CONNOR. No.
Mr. BENNETT. You would agree with that, wouldn't you, sir?
Mr. O'CONNOR. What you are saying——
Mr. BENNETT. I'm sorry. Go ahead.
Mr. O'CONNOR. What you're saying is, I shouldn't, in my capacity of representing a client, impose upon him to make contributions or to force him to make contributions. That is what you are saying?
Mr. BENNETT. Yes, that's correct, sir.
If I can, sir, you have an exhibit book before you, I believe, and I want to make reference to exhibit 356, that being the billing records of your law firm, O'Connor & Hannan to the St. Croix tribe, the client which you represented in this matter, exhibit 356. If you want to take a second to look through those billing records or have those before you, Mr. O'Connor.
[Exhibit 356 follows:]
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[The official committee record contains additional material here.]
Mr. LEEPER. Mr. Bennett, excuse me, I'm Charles Leeper, counsel for Mr. O'Connor, and we do not have an exhibit book before us.
Mr. BENNETT. I apologize. You should have one right before you, Counsel. I'm sorry.
Mr. LEEPER. May we have the number?
Mr. BENNETT. Yes, I'm going to do it right now. The exhibit is 356. For your assistance, each panel is marked, and looking at the page marked 356–45 of that exhibit, Counsel.
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Mr. O'Connor, as your attorney finds that document, there is reference—that is a billing record, and I believe your billing records would have, as with all law firms, it is itemized to the 10th of an hour and records the various lawyers who worked on matters, isn't that correct, Mr. O'Connor?
Mr. O'CONNOR. Yes. I believe, Counsel, you're a little too close to the microphone.
Mr. BENNETT. Excuse me.
Mr. O'CONNOR. I have difficulty hearing.
Mr. BENNETT. I apologize, sir.
Mr. O'CONNOR. Not hearing, but understanding.
Mr. BENNETT. The echo, and I apologize.
The entries there in those time records, ''PJO'' represents you, does it not, in those time records?
Mr. O'CONNOR. Yes.
Mr. BENNETT. Referring to 356–45——
Mr. WAXMAN. Mr. Chairman, there's some reference to exhibits, but I want to point out for the record the minority has not been furnished these exhibits. If we are going to have exhibits in a hearing, they ought to be given to the witness and to the minority so that we will all know what is being discussed.
Mr. BURTON. The gentleman will suspend for a moment. Would you make sure the minority has all the exhibits, please, and in the future those exhibits should be given to the minority well in advance of the hearing so that they are prepared. I don't know what happened there.
Mr. BENNETT. I have no idea, Mr. Chairman.
Congressman Waxman, sir, do you have those exhibits in front of you?
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Mr. WAXMAN. We just got one book. I want my counsel to look at it. I would like to have it as well. Could we have two maybe?
Mr. BENNETT. For the record, Mr. Chairman, these exhibits are to be placed on the television screen as well, as we discussed that.
Mr. BURTON. The problem we have with that is it is hard to read sometimes on these monitors, especially when we have the fine print. Let's just hold off for a second to make sure everybody has the exhibits so we are all singing from the same hymnal, at least in this case.
Mr. WAXMAN. I thank you for providing this. I have made this suggestion in the past, that when you are going to use exhibits, they ought to be furnished to the minority. This it seems to me is basic procedural courtesies that ought to be extended to us. I just want to state again my strong objection, and it looks like the chairman agrees with it. When you are talking to your staff about leaks, also talk to them about getting us exhibits. Let's get this committee on track.
Mr. BURTON. Before we go any further, let me just say, there is no evidence of any leaks. We will look into it. If we find that there were leaks, we will take care of it. But you don't need to keep bringing that up again and again. We will check into it. And we will try to make sure in the future all documents are presented to you well in advance of the hearing. I hope everybody on the staff heard that. I want that done.
OK, the gentleman from Virginia, Mr. Bennett.
Mr. BENNETT. From Maryland, Mr. Chairman.
Mr. BURTON. From Maryland, pardon me.
Mr. BENNETT. It's a stepsister to Virginia.
Mr. O'Connor, if we can, I have this up on the projection screen in the hearing room, and we will try to make sure, Congressman Waxman, I don't know why those exhibit books weren't placed in front of you, we have an abundance of them, and I apologize.
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Referencing July 14, 1995, that is the day that the casino application of the Chippewa Indians was rejected by the Department of the Interior.
Do you see that there, sir?
Mr. O'CONNOR. Yes. At the top of the page.
Mr. BENNETT. Yes, sir. On that exhibit, there is reference that you are to followup with Harold Ickes of the White House for, quote, ''outlining fund-raising strategies.'' Do you see that sir?
Mr. O'CONNOR. I see here that ''Discussions regarding necessity to followup with Harold Ickes at the White House, Don Fowler at the DNC, and Terry McAuliffe at the Committee to Re-elect.'' That stands as one item.
Mr. BENNETT. Right. And then doesn't it say right there next to it, sir, it says, ''outlining fund-raising strategies''?
Mr. O'CONNOR. Yes. That's another item, yes.
Mr. BENNETT. And it's right there on your time entry for July 14.
And continuing down that page, sir, July 20, 1995, there is reference in your billing records to fund-raising again, if you look at your entry of July 20, 1995, fund-raising.
Mr. O'CONNOR. Yes.
Mr. BENNETT. Mr. O'Connor, my question to you, sir, is why would you be billing your client, the St. Croix tribe, for your steps in fund-raising?
Mr. O'CONNOR. I bill clients on occasion, and certain clients if I feel that fund-raising activities are important to the client, to any input I might get as a result of attending fund-raising receptions, any data I might get on issues that might be discussed at that fund-raising that are pending in Congress. If I feel that it would be of importance to the client and the client should know it, I bill my time for it, yes.
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Mr. BENNETT. And so, then, sir, again not casting any aspersions upon you, Mr. O'Connor, but then clearly the matter of raising money and political fund-raising was very much involved in this process of trying to kill this casino application; isn't that correct?
Mr. O'CONNOR. Can you——
Mr. BENNETT. I'm sorry, isn't that correct? You're billing your client for political fund-raising activities, and I gather in light of your last answer, you felt that the matter of raising money was very much important in connection with succeeding in the objectives of your client; isn't that correct?
Mr. O'CONNOR. If you're talking about going to fund-raising events or working on fund-raising itself, if I was of the opinion that it would be helpful to the client, I would bill for it.
Mr. BENNETT. Do you ordinarily bill your clients for fund-raising activities as you did with the St. Croix tribe here, sir?
Mr. O'CONNOR. I have in the past. If I feel that fund-raising activities are part of the work that I'm doing for the client, I'll bill for it. It varies.
Mr. BENNETT. Then, sir, obviously with respect to fund-raising activities being part of the process, obviously politics were very much a part of this process in terms of killing this casino application; isn't that correct?
Mr. O'CONNOR. Politics, in what sense, Counsel?
Mr. BENNETT. I guess the point is we have had Secretary Babbitt in light of his comments, and he is going to testify here tomorrow, has essentially said this, that politics wasn't involved at all with respect to the rejection of this casino application.
Mr. O'CONNOR. That could be.
Mr. BENNETT. And we are going to go through the chronology of your billing records, sir, but I submit that the points I raised, your billing records as well as others throughout those billing records, reflected by exhibit 356 contain notations to your billing your client for fund-raising activities, billing your clients for discussions with the Committee to Re-elect the President, billing your client for discussions with Harold Ickes about political fund-raising. So Secretary Babbitt would not be correct, would he, to say that politics wasn't involved? Politics was very much involved in this matter.
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Mr. O'CONNOR. I think that what you said about my billing is correct. However, I never talked to Harold Ickes in terms of fund-raising or, in fact, I never talked to Harold Ickes at all on this issue.
Mr. BENNETT. Let me show you if I can, and move on, sir, looking at your time records, exhibit 356, Counsel, page 33, 356–33. It appears, looking at those time sheets, Mr. O'Connor, that your first involvement specifically on the matter, not your first entry in your time sheets but your first involvement, appears to have been on March 15, 1995, when you had a meeting in Washington. You want to look at that time entry there, sir?
Mr. O'CONNOR. Certainly.
Mr. BARRETT. Excuse me, Mr. Chairman. If I could, please. If counsel is going to be referring to a number of documents, maybe it would be helpful to tell us which documents he's going to be referring to. We can have staff get us those documents right now; then we won't have to scurry every time it goes on the screen, if you would be kind enough to do so.
Mr. BURTON. The problem it appears, though, is that we don't have enough books to give every Member one.
Mr. BARRETT. I understand that. What I'm saying is, I think Mr. Bennett probably will be referring to other comments in the course of his questioning. If he could let us know what numbered documents those are now, we could send the staff back on our side to make copies.
Mr. BENNETT. Congressman Barrett, we will be referring to, for example, 356, the time records, and we can have someone prepare a list in the next few minutes as we move forward so you can get some documents later on.
Mr. BARRETT. That would be helpful. Thank you.
Mr. BURTON. Do you need some time before we get back to the questioning to review the documents?
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Mr. BARRETT. It would be helpful.
Mr. BURTON. We can hold up for a minute or two, if you would like.
Mr. BARRETT. I would like to be able to read these.
Mr. BURTON. Let's just suspend, then, while the staff makes copies of the relevant documents so that everybody has them in sequence. How long is it going to take?
Mr. BENNETT. It should only take a matter of a minute or two, Mr. Chairman.
Mr. BURTON. Let's suspend for a minute or two.
[Brief Recess.]
Mr. BURTON. The gentleman from Maryland may proceed.
Mr. BENNETT. Thank you, Mr. Chairman. My apologies, Congressman Barrett. Do you have this document in front of you now, sir?
Looking at exhibit 356–33, your time sheet for March 15, 1995, Mr. O'Connor, it reflects your first involvement in this matter, I think, basically was March 15, 1995, when you came here to Washington; is that correct?
Mr. O'CONNOR. I believe there may have been some involvement prior to that time. My recollection is I got involved in this matter in February.
Mr. BENNETT. And I think in fairness to you, sir, your time records will reflect some telephone calls, but I am mainly addressing the first time you actually were in a meeting, and according to our review of the records, it is March 15, 1995, when you are here in Washington, I believe, Counsel. Looking at that entry, I note that you not only met with officials at the Department of the Interior but also at the Democratic National Committee; isn't that correct?
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Mr. O'CONNOR. That's correct.
Mr. BENNETT. In fact, there is a document which was produced pursuant to a subpoena issued to the Democratic National Committee, exhibit 299. That exhibit, Mr. O'Connor, exhibit 299, which is on the projection screen here in the hearing room and I believe your attorney is about to locate it, it is a memo from David Mercer to Chairman Fowler, Don Fowler of the Democratic National Committee.
Who is David Mercer, Mr. O'Connor?
[Exhibt 299 follows:]
INSERT OFFSET FOLIOS 212 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. David Mercer is an employee of, or was at that time, of the Democratic National Committee.
Mr. BENNETT. Why would your first meeting be with the Democratic National Committee?
Mr. O'CONNOR. Why would I be meeting with the Democratic National Committee?
Mr. BENNETT. Yes, sir. In fact, looking at, again, at your time records, exhibit 356–33 with respect to your time sheet on this day, and again we will have it on the television screen here in the hearing room and there at the table before you, there apparently may be a little difficulty in seeing those, but they are being projected up on the screen now and they are in the exhibit book before you. On that page in your time sheets, there, in fact from March 15, again these are matters you're billing the St. Croix tribe for in relation to your representation in stopping the casino of the Chippewa Indians. There is reference to meetings to various Democratic national campaign organizations.
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My question to you, sir, again, is what would various national campaign organizations of the Democratic party have to do with the application of the Chippewa Indians?
Mr. O'CONNOR. Well, as you're aware, we met on the 28th, I believe. Yes, April 28th, with Chairman Fowler and several chiefs or chairmen of Indian tribes that were involved in the Hudson Dog Track matter. Now, you're calling my attention now to the meeting——
Mr. BENNETT. March 15, sir. I will get to the April 28 meeting, presuming my time doesn't expire, but the March 15 meeting is what I am addressing now, sir.
Mr. O'CONNOR. Yes. I should say at the outset that I recorded time such as I recorded as shown in this billing. I was not involved in the actual billing. That was left to another—to a partner in the firm. I recorded time. Whether or not it was—whether or not I was paid for it or not, I don't know, because you should know that we were on a retainer every—$7,500 a month. That would account for about 33 hours of time in a particular month at our rate of about $225 an hour.
In reviewing these records, I have seen that every month in the 6-month period, except one, we went way over. So whether or not I was paid, the fact remains I did record time.
And I recorded this time. I don't recall at this moment what was discussed at this meeting with the DNC with Truman Arnold and Chairman Don Fowler. I don't recall what transpired or what was discussed at that particular meeting. I do have recollections on the other meeting.
Mr. BENNETT. Mr. Chairman, did you want to ask a question?
Mr. BURTON. Your billing records showed you billed the Chippewas, the St. Croix tribe for this time. Why would you be billing them for time when you were discussing issues at the DNC regarding that tribe? What was the purpose of you talking to the people at the DNC about this tribe at all?
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Mr. O'CONNOR. The reason, I would think, that I put time down for meeting with Fowler on the 15th was the fact that I may very well have talked to Don Fowler about this issue, about this application that was pending.
Mr. BURTON. Mr. O'Connor, why would the DNC be involved in any way in this application?
Mr. O'CONNOR. When we get to the 24th, we went to Mr. Fowler to ask him whether or not he would consider talking to Harold Ickes about this matter.
Mr. BURTON. So you wanted Mr. Fowler to use his influence with Mr. Ickes to try to kill the application.
Mr. O'CONNOR. No. No, Mr. Chairman.
Mr. BURTON. Then why would you want him to talk to Mr. Ickes?
Mr. O'CONNOR. I can answer that.
Mr. BURTON. Sure.
Mr. O'CONNOR. The reason that we wanted Mr. Fowler to go talk to Harold Ickes was, first, I wanted a meeting with Mr. Ickes at some time with a couple of people from the St. Croix tribe. I was hopeful that Mr. Ickes would give us such a meeting. I was also hopeful that he might make an inquiry over at Interior and say, look, people have approached me on this issue and they feel you're not focusing on their opposition to this application. That was my hope.
Mr. BURTON. I understand, Mr. O'Connor. So the point was, you wanted the DNC to use their influence to at least set up a meeting with Mr. Ickes so you could present your case.
Mr. O'CONNOR. I think that's a fair statement. I question influence. I would rather—you call it what you want, but I wanted Mr. Fowler to see, because I knew he worked with Ickes, whether Mr. Fowler would raise this issue with Mr. Ickes to see if I could get a meeting both with myself and with my client, and also so that we would have an opportunity to discuss our concerns. That's true.
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Mr. BURTON. I don't want to infringe too much on your time. When you were asking Mr. Fowler to do this and you weren't getting the proper results, you talked to some other people about getting access to Mr. Ickes and people at Interior; didn't you?
Mr. O'CONNOR. In addition to Mr. Fowler, yes.
Mr. BURTON. Who did you talk to?
Mr. O'CONNOR. I talked to Terry McAuliffe.
Mr. BURTON. What did Mr. Mr. McAuliffe say?
Mr. O'CONNOR. In my meetings with Mr. McAuliffe, I was on his committee and I was attempting to raise money, hard money, $1,000 an individual for the Committee to Re-elect in the primary. During my discussions there, I did—I've known Terry for a long time. I did tell him that I was having difficulty getting to Harold Ickes and I knew he saw him frequently, and I said, I'm trying to get a meeting with Harold Ickes; would you, as a personal favor to me, would you mention that to him. I might add, Mr. Chairman, I don't have a relationship with Mr. Ickes. I don't even think I ever met him.
Mr. BURTON. I understand. But you were trying to get access.
Did you talk to anybody else?
Mr. O'CONNOR. I would have talked to anyone that I thought would help me get it. Did I talk to anyone else? My recollection is the only people I talked to were Fowler, I mentioned it, of course, to Mercer, and I talked to——
Mr. BURTON. Mr. Schneider?
Mr. O'CONNOR. And I talked to McAuliffe. I may have——
Mr. BURTON. Did you talk to Mr. Schneider?
Mr. O'CONNOR. Oh, yes, I did.
Mr. BURTON. What did Mr. Schneider tell you?
Mr. O'CONNOR. Mr. Schneider, I asked whether or not if he were over at the White House and ran into Ickes, would he mention it if he thought it was appropriate to do so.
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Mr. BURTON. What did he say then?
Mr. O'CONNOR. When he reported back?
Mr. BURTON. Yes, sir.
Mr. O'CONNOR. To me?
Mr. BURTON. Yes, sir.
Mr. O'CONNOR. Yes. My recollection is on the phone he reported back to me, and he said, I did talk to Ickes, and he said he was looking into it.
Mr. BURTON. So you did. You were able to get indirectly some access to Mr. Ickes and that he said he would look into it?
Mr. O'CONNOR. Through Mr. Schneider.
Mr. BURTON. Through Mr. Schneider?
Mr. O'CONNOR. Yes.
Mr. BURTON. Mr. Bennett.
Mr. BENNETT. Mr. O'Connor, picking up on the matter of Mr. Schneider, for the projectionist, it is page 13 of the prepared materials. Mr. O'Connor, if you will look, sir, on the matter of Mr. Schneider, to pick up on the chairman's questions, if you will look at your time sheets again, exhibit 356–38.
Mr. O'CONNOR. Yes.
Mr. BENNETT. Here is, in fact, an entry in that time sheet record for May 16, 1995, wherein you make a reference to getting a report from Tom Schneider, that he talked to President Clinton.
Do you see that notation in your billing records, sir?
Mr. O'CONNOR. I recall that.
Mr. BENNETT. In fact, in a deposition taken by this committee, which has now been made public Mr. O'Connor, Mr. Schneider has indicated that in early May 1995, you asked him if he could help, and he explained that he did, in fact, speak with Harold Ickes, and to followup on the point of Mr. Schneider, apparently his contacts with Mr. Ickes proved to have some weight because I will ask you, sir, to refer to exhibit 312. It is a document, sir, while you're looking for it, I will tell you was produced by the White House pursuant to a subpoena issued by this committee. It is, in fact, a May 18, 1995, memorandum for Mr. Harold Ickes from Ms. Jennifer O'Connor. There is specific reference to that May 18 memo to there having been a meeting last night by members of his staff on May 17, the day after Mr. Schneider's contact, essentially indicating the rejection of the casino application.
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Were you aware that there was a meeting of Mr. Ickes' staff the day after Mr. Schneider spoke with Mr. Ickes?
[Exhibit 312 follows:]
INSERT OFFSET FOLIOS 213 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. Are you referring——
Mr. BENNETT. Exhibit 312, sir. It is a document——
Mr. O'CONNOR. You are referring to memorandum for Ickes from Jennifer O'Connor?
Mr. BENNETT. That's correct.
Mr. O'CONNOR. Who is a staffer for——
Mr. BENNETT. That's correct. Sir, to my knowledge, Jennifer O'Connor is not related to you and I am not suggesting that she is.
Mr. O'CONNOR. No, she isn't.
Mr. BENNETT. I don't even know that you have seen this document before. I assume you have not seen this document before, have you, sir?
Mr. O'CONNOR. No, I haven't seen it.
Mr. BENNETT. Just so you understand, the document was not produced by you. I am just bringing to your attention the fact that your time records reflect Mr. Schneider speaking with Mr. Ickes requesting on May 16, the memorandum dated May 18 reflects that the day before, May 17th, the day after Schneider spoke with Ickes, the staff of Harold Ickes had determined to reject the casino application.
You don't have any knowledge of those meetings, do you, sir?
Mr. O'CONNOR. No.
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Mr. BENNETT. If I can, Mr. O'Connor, stepping back a minute in terms of your attempted contacts with the White House, looking at exhibit 356, page 35, your time entries for April 24, 1995. On that day, April 24, 1995, you in fact spoke with President Clinton directly about the Hudson Dog Track issue, didn't you, Mr. O'Connor?
Mr. O'CONNOR. Yes.
Mr. BENNETT. And in fact the President became involved, and he spoke with Bruce Lindsey who called back to the White House from Air Force One; isn't that correct?
Mr. O'CONNOR. I don't know about his callback. But I did meet with the President, and I did meet on that date in Minneapolis with Bruce Lindsey.
Mr. BENNETT. And, in fact, you had been trying to get ahold of a woman named Loretta Avent at the White House and had had some difficulty, and as a result of this discussion that same day, Ms. Avent did in fact contact you; isn't that correct?
Mr. O'CONNOR. I was having difficulty getting through to Loretta, do you pronounce it ''Avent''?
Mr. BENNETT. Avent, I believe is how she pronounces it.
Mr. O'CONNOR. Avent.
Mr. BENNETT. She, in fact, that same date as a result of your speaking directly with the President, getting President Clinton involved in this process, you did receive a response back from Ms. Avent; isn't that correct?
Mr. O'CONNOR. That's correct.
Mr. BENNETT. Now, sir, I will show you exhibits 304 and 305, and I believe in the interest of time, Mr. Chairman, that is a matter that can be addressed by members of the committee in some later questioning.
But essentially exhibits 304 and 305, one is a memorandum from Ms. Avent to Mr. Harold Ickes that same day, April 24, 1995. The other is another memorandum from Michael Schmidt of the Domestic Policy Council at the White House to Cheryl Mills of the White House Counsel's Office, again that same day, April 24, 1995.
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In there there is reference, particularly as to exhibit 304, Mr. O'Connor, there is reference in the exhibit—on exhibit 304, there are comments to the effect that it's a mistake for Pat O'Connor to be trying to tie the President into this issue. And then there's direct language in that exhibit that says, I'll read it for you in the interest of time ''He'' meaning you, ''must stop telling others that he has access to the White House on this issue.'' And then makes reference to this being political poison for the President.
Did either Mr. Schmidt or Ms. Avent ever criticize you or voice any objection to your contact with the President or tell you this was political poison for President Clinton, Mr. O'Connor?
[Exhibits 304 and 305 follow:]
INSERT OFFSET FOLIOS 214 TO 218 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. I can answer that. First of all, I don't know who—I have since learned, but I don't know who Schmidt was. I don't recall him being in a conversation on the telephone with me when I talked on that date with Loretta Avent. I recall that conversation with her. It was a short conversation. But I definitely recall that conversation.
Mr. BENNETT. But no one ever voiced such criticism to you directly to your face or on the telephone?
Mr. O'CONNOR. Nothing was said by Avent, I will just say Loretta, although I've never met her.
Mr. BENNETT. I understand.
Mr. O'CONNOR. Nothing was said in that conversation criticizing me for anything.
Mr. BENNETT. Or telling you to stay away from the President on this issue or this could be political poison for the President?
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Mr. O'CONNOR. No.
Mr. BENNETT. Directing your attention, just wrapping up here, Mr. Chairman, these last 2 minutes of my time, for exhibit 356, again I believe it is page 39, Counsel, your entries from May 24, 1995, Mr. O'Connor. You, in fact, billed your client for time you spent, dinner with Vice President Gore. Apparently, Vice President Gore also became involved in assisting you in stopping the application of the Wisconsin Indian tribe?
Mr. O'CONNOR. No. Mr. Gore did not get involved with me. In connection with that note that was recorded on that date, my time, that was not a dinner. That was a reception and that was an error on my part putting down dinner. It was a reception.
Mr. BENNETT. But your client, it is contained in your client's billing records with respect to the contact with Vice President Gore.
Mr. O'CONNOR. I did not contact Vice President Gore then or any other time. But the indication in there was a Gore dinner, it was a Gore reception, and I think that just placed the event. It was at the Mayflower.
Mr. BENNETT. Sir, my time is about to run out. I don't mean to interrupt you, but I believe others can perhaps followup on the matter of Vice President Gore. Just one last question, as my time is expiring.
Exhibit 357 is your calendar book, sir. And on page 23 of that exhibit are entries from May 5, 1995. And I will conclude with this very question, Mr. Chairman.
Mr. LEEPER. What date, Mr. Bennett?
Mr. BENNETT. May 5, 1995, Counsel.
And the entry is also on the television monitor here in the hearing room. In that entry, on May 5, 1995, Mr. O'Connor, you will note there is an entry that underneath the Hudson Dog Track category says, ''Indians,'' dash, ''50 DNC,'' and then it references Larry Kitto, who I believe was the consultant with you on this matter, and it also references the Committee to Re-elect. In fact, that is a direct reference to political contributions that were in fact to be made by your client, the St. Croix Indian Tribe, isn't that correct, Mr. O'Connor?
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[Exhibit 357 follows:]
INSERT OFFSET FOLIOS 219 TO 268 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. Counsel, what you are referring to there is part of No. 3. And counsel, as you are aware, in my day timer on the left-hand side are notes that I make to refresh—or to remind me of certain things. It does not contain any recording of billing. And so these comments relate to the Committee to Re-elect.
Mr. BENNETT. Mr. O'Connor, in concluding, sir, in fact, along with the notation in your calendar of ''50'' dash ''DNC'' with respect to the St. Croix Indian Tribe, in fact, sir, that is exactly the amount of money, $50,000, that the St. Croix Indian Tribe contributed to the Democratic National Committee. Are you aware of that, sir?
Mr. O'CONNOR. I am aware one of the Indian tribes that we do not represent, or did not represent, made a $50,000 soft money contribution. I am aware of that.
Mr. BENNETT. Sir, I believe later there will be followup questions. There are three different contributions from your client that total exactly $50,000, and I am asking you, sir, whether or not that is a specific entry in your calendar to the political contribution that was going to be required of your client.
Mr. O'CONNOR. If they made a $50,000 contribution, it would be, as you and I both know, in the campaign statements. I should say——
Mr. BENNETT. They are, sir, and those statements reflect those three.
Mr. O'CONNOR. And it would be in there. My reference—I don't recollect on this particular day 2 1/2 years ago what that 50 stands for, but in my judgment, I know that $50,000 was mentioned as a goal by McAuliffe to see whether or not Kitto and I could raise $1,000 a person from 50 Indians, not just our clients but other Indians as well. And I remembered Kitto saying it is hard to raise that money from Indians because they want to tie it into an event, but he said, ''I will do what I can.'' And my recollection as to why these things appeared on five—I don't back away from them at all, but my best judgment is that that 50 referred to a goal that was mentioned by McAuliffe, whether or not we could raise from 50 Indians $1,000 apiece.
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Mr. BENNETT. I think my time is up, Mr. Chairman.
Thank you, Mr. O'Connor.
Mr. O'CONNOR. Thank you.
Mr. BURTON. Mr. Waxman.
Mr. WAXMAN. Thank you very much, Mr. Chairman. And Mr. O'Connor, pleased to see you here. I am pleased I have this opportunity to ask you some questions.
You have been a lawyer for around 50 years?
Mr. O'CONNOR. Yes, Congressman.
Mr. WAXMAN. And you have helped lobby for clients for a large part of that time?
Mr. O'CONNOR. That is correct, Congressman.
Mr. WAXMAN. And I imagine you know how our political system works and how it doesn't work. It seems to me that what we have here with your work on behalf of the St. Croix Tribe is the same sort of lobbying that occurs every day in Washington, and in our State capitals, on all matter of issues. There seems to be some suggestion that something more is being made out of your lobbying than there is, and that you were doing something improper or illegal in helping get your clients' views heard.
You are a lobbyist, you got a strategy, you are trying to get your clients' position heard by the decisionmakers?
Mr. O'CONNOR. Right.
Mr. WAXMAN. Isn't that what is going on?
Mr. O'CONNOR. That is correct.
Mr. WAXMAN. So you talk to anybody you can in politics. It helps flag the issue, helps you get meetings so you can present your clients' point of view or they can present their point of view. Isn't that what is going on?
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Mr. O'CONNOR. There was nothing different, Congressman, in the way I approached this lobbying issue than I would approach any other lobbying issue.
Mr. WAXMAN. You hope you will come up with a decision that is favorable, but your job is to get the arguments to them, to let them know there is an issue there they ought to give a little extra attention to?
Mr. O'CONNOR. That is correct.
Mr. WAXMAN. OK. Now you talked to a number of people and you tried to get them to talk to others. You talked to Mr. Fowler, who is the head of the Democratic National Committee?
Mr. O'CONNOR. I did.
Mr. WAXMAN. You talked to Mr. Snyder, you talked to Mr. Schmidt, is that right? These are all fund-raisers?
Mr. O'CONNOR. I don't recall Schmidt. I checked some of these memos in the White House, and there was a Schmidt involved in—with Avent, with Loretta, but I don't recall any particular Schmidt that I talked to about contributions.
Mr. WAXMAN. Then maybe that is my error. But you talked to others——
Mr. O'CONNOR. Oh, yes.
Mr. WAXMAN [continuing]. To try to get a meeting with Harold Ickes. Did you ever have a meeting with Harold Ickes?
Mr. O'CONNOR. No.
Mr. WAXMAN. Did you ever talk to Harold Ickes?
Mr. O'CONNOR. No. He called me twice on two different days, one after another, and I returned those calls and talked to a man in his office, and that man said Ickes wasn't there, but then I asked whether or not Mr. Ickes would get back to me.
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Mr. WAXMAN. Did Mr. Ickes indirectly or implicitly send a message to you that should the tribes make a contribution—that they better make a contribution if they wanted their application denied?
Mr. O'CONNOR. No.
Mr. WAXMAN. What about Secretary Babbitt? Did he make any suggestions to you, directly or indirectly?
Mr. O'CONNOR. Congressman, I never talked to Secretary Babbitt on this issue.
Mr. WAXMAN. Did you ever offer to anyone at the White House, the DNC, or the Clinton/Gore campaign that the tribes were willing to trade campaign contributions in exchange for the Department of Interior making the decision in your favor?
Mr. O'CONNOR. Absolutely not.
Mr. WAXMAN. And did anyone at the White House, the DNC, or the Clinton/Gore campaign ever tell you that a contribution from the opponent tribes would help them get the Hudson application denied?
Mr. O'CONNOR. No one from any source ever told me that.
Mr. WAXMAN. You talked to a number of people. You even talked to the head man. You talked to President Clinton. You saw him at a campaign reception, is that right?
Mr. O'CONNOR. No, it was not a campaign reception. He was in Minneapolis to address the Association of Community Colleges, and after that he came in on what we have—on what we call ''meet and greet,'' and I was advised by someone if I wanted to greet him at that time, after that discussion, that he would be in a room nearby. And I was there, but it was not a fund-raiser.
Mr. WAXMAN. So you had an opportunity to say something to him, and you raised the question of your clients' concerns?
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Mr. O'CONNOR. Yes.
Mr. WAXMAN. And then what happened? He referred you to someone else?
Mr. O'CONNOR. The President said, ''Bruce, come over here and talk to Mr. O'Connor. He has a matter he wants to discuss.''
Mr. WAXMAN. That was Bruce Lindsey?
Mr. O'CONNOR. Yes.
Mr. WAXMAN. And then what happened? Did you talk to Bruce Lindsey?
Mr. O'CONNOR. I talked to Bruce Lindsey.
Mr. WAXMAN. And what happened from there?
Mr. O'CONNOR. I said to Mr. Lindsey: My clients have a real concern. There is an application pending at Interior to create an off-reservation trust land at a—for a casino in Hudson, WI, which is across the river from us here, and I believe and my clients believe that the staff that is working on this in Interior is not focusing on our opposition, and why we are opposing, and the data that we submitted pointing out the adverse consequences that would occur.
Mr. WAXMAN. What did Mr. Lindsey then say or do?
Mr. O'CONNOR. Mr. Lindsey—oh, I also said, ''I have been trying to reach Loretta Avent.'' And Mr. Lindsey said to me, ''Are you going to be in your office this afternoon in Minneapolis?'' I said yes. He said, ''You will be getting some calls,'' and he said, I think, ''You will get a call from Loretta Avent, and perhaps from Harold Ickes.''
Mr. WAXMAN. And you did not get a call from Harold Ickes?
Mr. O'CONNOR. Oh, he called.
Mr. WAXMAN. But you didn't make contact?
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Mr. O'CONNOR. We never made contact. He called twice, that day and the following day.
Mr. WAXMAN. Did you get a chance to talk to Loretta Avent?
Mr. O'CONNOR. Yes.
Mr. WAXMAN. And tell us about that conversation.
Mr. O'CONNOR. She called me and she said, ''Mr. O'Connor, the reason that I haven't returned your calls is there are 400 tribes, and I only talk to the chairman or the chiefs. I do not talk to lobbyists.'' And she made it rather clear to me that she wasn't going to discuss this issue with me. And so I thanked her, and it was a short conversation.
Mr. WAXMAN. So you, in representing your client, tried to get the decisionmakers to focus on this issue, and it turned out the decision was made in your favor, in your clients' favor?
Mr. O'CONNOR. Yes.
Mr. WAXMAN. From your own personal knowledge, do you have any reason to believe that the Department of Interior's decision was made because of campaign contributions from your clients?
Mr. O'CONNOR. No. And Congressman, further, I failed to talk to Mr. Ickes. I tried, but I never talked to him.
Mr. WAXMAN. Well, the decision was made, and we heard from the people who made the decision.
Mr. O'CONNOR. Yes.
Mr. WAXMAN. And they told us, under oath, they made the decision because it was the right decision as they saw it on the merits. They said there was no political interference or influence, and that is the record. Do you have any reason to dispute that?
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Mr. O'CONNOR. No, and my recollection is the only person in the staff that I talked to, I had a meeting with Collier, and also there was a Deputy Assistant Secretary there, a woman.
Mr. WAXMAN. Well—yes?
Mr. O'CONNOR. Sibbison. Those are the only two people that I talked to at Interior.
Mr. WAXMAN. And you made your case to them on behalf of your client?
Mr. O'CONNOR. Yes.
Mr. WAXMAN. The White House gets blamed for a lot of things that they supposedly did wrong. It sounds like in this case they did everything right, they did what they should have done. They tried to get the information, and that was it.
Mr. WAXMAN. You billed your clients for attending some fund-raising activities?
Mr. O'CONNOR. I didn't bill them, Congressman. I recorded time that I spent in some fund-raising activities for this client.
Mr. WAXMAN. That is an issue between you and your client?
Mr. O'CONNOR. Yes.
Mr. WAXMAN. That has nothing to do with the Department of Interior, the White House, Chairman Burton or myself, isn't that right?
Mr. O'CONNOR. No, nothing to do with that. I submitted my time and a partner in the office made the billing.
Mr. WAXMAN. You have been an active Democrat over the years, and you helped raise money for the campaign?
Mr. O'CONNOR. I have, for a lot of campaigns.
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Mr. WAXMAN. For a lot of campaigns. And you were—in doing that, you were hoping that when Democrats are in power, you can try and get their attention and get the case made to them on behalf of your client. Is that what is going on here?
Mr. O'CONNOR. I am just a trifle hard of hearing. Could you state that again, Congressman?
Mr. WAXMAN. Well, it seems to me you had two discrete things you were doing. You were doing some fund-raising, and you were lobbying for your clients.
Mr. O'CONNOR. That is correct.
Mr. WAXMAN. And you were keeping track of the time you were spending in both areas.
Mr. O'CONNOR. Yes, that is true.
Mr. WAXMAN. What I fail to see is if that is true, what that has to do with the decision, unless the decision had to do with the money that was paid to the Democratic party.
Mr. O'CONNOR. I agree. As far as my actions were concerned, I don't see how the contributions that I was involved in or knew about had any bearing on the decision that was made by Interior. And I answered before, that I never asked anyone to—as a result of being involved in contribution, will you see that this application is denied?
Mr. WAXMAN. It is interesting just to note that no one on this committee has even talked to Harold Ickes. People think Harold Ickes might have done something. The best way to find out is to ask him. We haven't even asked him whether he did anything.
As far as you know, did Harold Ickes intervene in this whole issue?
Mr. O'CONNOR. I don't know what, if anything, Harold Ickes did. I tried to reach him on behalf of my clients on more than one occasion. I also asked others that knew him if he would look into, but I never talked to Mr. Ickes. In fact, the only time I have ever seen him is on certain briefings, and maybe two or three at the Committee to Re-elect where he gave a briefing on the status of the campaign, and I don't recall even at the briefings I even went up and shook his hand.
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Mr. WAXMAN. Well, I thank you very much for your testimony. I appreciate it. I have more time, and I want to yield 5 minutes to my colleague, Mr. Lantos.
Mr. LANTOS. Thank you very much.
Mr. O'Connor, welcome.
Mr. O'CONNOR. Thank you.
Mr. LANTOS. I have often used the phrase ''trivial pursuit'' during the course of these hearings, and I don't think the phrase was ever more appropriate than it is today.
I am fortunate to have 17 grandchildren. One of the great joys of having grandchildren is to see how each generation rediscovers things that the rest of us, having been through those experiences, already knows. It is wonderful to see that Lassie is a new phenomenon, or Mickey Mouse or Donald Duck, or Bert and Ernie, and every time we have a new generation, these are exciting new things. But it is difficult to have a straight face when middle-aged lawyers or middle-aged Congressmen pretend to virtual naivete with respect to lobbying activities, and of course this is what we had a display of for the first half-hour of this hearing.
Now as far as I understand, there are about 10,000 lobbyists in this town, and they pursue a tremendous variety of goals and objectives, some noble, some ignoble, ranging forward from getting better schools for children to peddling tobacco. Now in what sense did this particular lobbying activity differ from any other lobbying activity that you have engaged in, or the other, whatever number it is, 10,000 lobbyists engage in?
Mr. O'CONNOR. I don't know of any difference. Lobbying, I think, is an honorable profession. I am a lobbyist, I have been a lobbyist for a long period of time, and this was just another matter that I lobbied, along with others in our firm.
Mr. LANTOS. And one of the others in the firm, who was I believe the principal of this issue, happened to be a former Republican Member of Congress?
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Mr. O'CONNOR. That is correct.
Mr. LANTOS. So you really had a former Republican Congressman and you and maybe others who lobbied on behalf of this client?
Mr. O'CONNOR. Yes.
Mr. LANTOS. Since there has been such a strained and unsuccessful attempt to tie money to lobbying, fund-raising to lobbying, let me read to you, Mr. O'Connor, a piece from the Washington Post dated November 25, 1995, describing a lobbyist's meeting with Tom DeLay, and this lobbyist was shown a book that lists the amounts and percentages of money that the 400 largest political action committees contributed to Republicans and to Democrats during the preceding cycle. Now the preceding cycle was the cycle that just preceded the great Republican sweep of 1994, and this is what the Washington Post says ''By the time the lobbyist had left the Congressman's office,'' that is Tom Delay's office, ''he knew that to be a friend of the Republican leadership, his group would have to give the party a lot more money.''
So here we have, in about as distilled a fashion as we could, as to what happens in this town when political power shifts. This lobbyist apparently went in to see the Whip, and the Whip, as many other news stories indicated, expressed unhappiness of previous donation patterns and wanted those shifted. And of course, as the evidence clearly shows in the form of FEC records, that shift has now taken place.
So what I find rather amusing, perhaps I should say nauseating, is this pretense of virtual naivete in the face of a lobbying activity which, as far as I can tell, was no different from literally thousands of other lobbying actions that take place in this city and in State capitals across the country. I don't find the pattern attractive, I think we need to change it, I think we need to change it drastically, but the intent by the counsel for the other side to rediscover what lobbyists do is so strained and artificial and insincere as to boggle the mind and even the imagination.
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I would merely like to ask one question, if I may, of a general nature. It seems to me that in every field of human endeavor defeat is often an orphan and victory has many parents. Isn't it customary for lobbyists—and I don't mean you—but lobbyists in general, to claim credit for things that happen even though they would have happened without their intervention? Is that a common affliction of lobbyists?
Mr. O'CONNOR. I believe it is.
Mr. LANTOS. And it is this unique affliction of lobbyists which perhaps explains why some of them have such extraordinary incomes, because they succeed in brainwashing their clients that had it not been for their unique intervention, the project would have failed?
Mr. O'CONNOR. I believe that that has happened in the past, but Congressman, in my case——
Mr. LANTOS. I am not talking about you.
Mr. O'CONNOR [continuing]. I failed. I never got to Ickes.
Mr. LANTOS. All right. I think my time is up. Thank you, Mr. O'Connor.
Mr. WAXMAN. Thank you, Mr. Lantos. I want to yield to Mr. Kanjorski for 5 minutes.
Mr. KANJORSKI. Thank you, Mr. Chairman.
Mr. O'Connor, of course you are an unusual lobbyist to admit that you never even got the ball over the goal post, so you couldn't make the artificial claims that Mr. Lantos talked about. But to put this in perspective, here we have two contestant parties interested in something that could be financially very rewarding to either one, depending on the victory, and apparently brought the heaviest guns to bear to try and penetrate either the Department of Interior or even the White House, and to have whatever influence could be brought to bear, if there was any that could be brought to bear.
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In the process of doing that, we have heard a lot of names that are very familiar to the American public: Harold Ickes, Secretary Babbitt, and the various other people involved. When the day is over, the record is closed, and we all go home, those names will never stop having penetrated the minds of some people, by virtue of the fact they were brought up or mentioned, there will forever be a stain. That is an unfortunate part of the history of Washington, it seems to me.
Let me just follow, in this course, your firm and you individually. Well, I should say you individually, as part of your firm. You are more associated on the Democratic side of things; is that correct?
Mr. O'CONNOR. That is correct.
Mr. KANJORSKI. But you do have a former Member of Congress who was elected as a Republican Member, Mr. Corcoran of Illinois, who really handled the Republican side of this thing; is that correct?
Mr. O'CONNOR. Yes, along with other Republicans in the firm.
Mr. KANJORSKI. He was really the signatory of this retainer contract or agreement you had, that your firm had. He was actually the one who signed on behalf of the firm as the ''chief lobbyist;'' is that correct?
Mr. O'CONNOR. I'm sorry, Congressman, I am a little hard of hearing. Could you say that again?
Mr. KANJORSKI. It was actually Mr. Corcoran that signed the retainer agreement on behalf of your firm?
Mr. O'CONNOR. That is correct.
Mr. KANJORSKI. So, he was the direct contract party and chief lobbyist for this exercise?
Mr. O'CONNOR. That is correct. He is a partner.
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Mr. KANJORSKI. You have been kind enough to concede that you weren't very fortunate. Although you tried to contact people that you knew, to see if you could move the process or find out what was happening, you failed?
Mr. O'CONNOR. I failed as far as Mr. Ickes was concerned.
Mr. KANJORSKI. But the result that ultimately was made by people in the Department who were not the people you contacted. People in the professional range of the organization made the decision that benefited your client. And then the logic, as I understand it for the last several days here, is sort of a post-hoax fallacy: Your clients contributed money, and our friends on the other side of the aisle would like us to assume that by virtue of that, after that fact, it alone is evidence that something improper was done or accomplished here, and it stemmed from the payment or donation of campaign moneys to the Democratic National Committee. Is that correct?
Mr. O'CONNOR. In 1992, and of course in the subsequent campaign, Indian clients of ours donated money to the—both to the DNC and to the Committee to Re-elect, and also to Members of Congress.
Mr. KANJORSKI. I see. Now, the interesting thing here, I looked at our panel we are going to have before us, and there is another very accomplished lobbyist in town, Mr. Eckstein. I have seen his name, but I don't see him on the panel. And he apparently did actually get the occasion to talk three times to the Secretary of the Interior, but for some reason his direct testimony is not necessary to the American people. It is a testimony of people who never made the score, didn't get the contact. But the person who got the contact, that we would like to ask exactly what did you say and exactly what did Secretary Babbitt say, they will never appear before this committee or never be on the record in an open session. Is that correct?
Mr. O'CONNOR. That is correct.
Mr. KANJORSKI. You know, we also have an outstanding former Governor and cabinet officer, and I think certainly an outstanding member of the bar that could eventually stand for the Supreme Court if nominated, Mr. Babbitt. Now, he has taken a lot of heat on this thing.
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Mr. O'CONNOR. He certainly has, and he is a very able person.
Mr. KANJORSKI. And it seems to me that from just reading the record, and looking forward to his testimony tomorrow, a law school classmate exercised his ability to meet face-to-face with a cabinet officer who was not directly involved in the decision, did not take any action in the decision and it was made by professionals much lower in his agency. He has to now have his name questioned, and his integrity and his honor questioned, and it stems from another lobbyist who was retained by the other side in this case that the majority party doesn't see fit to put him before us so we can ask questions on what happened and get the best recall. I guess we are just going to have to rely on the public press and the insults cast about in the public press to Secretary Babbitt and Mr. Ickes and the administration and whoever you will. That is an unfortunate result.
Mr. O'CONNOR. I agree.
Mr. WAXMAN. Mr. Kanjorski, we have only 5 minutes left, and I wanted to yield some of the time to Mrs. Maloney.
Mr. KANJORSKI. Very good. I will yield back to you, Mr. Chairman, so you can yield to Mrs. Maloney.
Mrs. MALONEY. Thank you, Mr. Chairman.
Mr. O'Connor, when you contacted officials or attempted to contact officials in Government or in campaigns on behalf of your client, you had a very strong story to tell in terms of the degree of community opposition; is that correct?
Mr. O'CONNOR. Ma'am, again, I got to apologize. I am somewhat hard of hearing and I am not using a hearing aid, although my wife claims that I should. Could you just say that again?
Mrs. MALONEY. I am going to speak up. When you contacted officials in Government, or attempted to contact officials in Government or in campaigns on behalf of your client, you had a very strong case to make in terms of the degree of community opposition. Is it not correct that the entire Minnesota delegation was opposed to the casino developers from Florida's plans, as well as the Wisconsin—as well as the Republican Congressman from the area, as well as the local people? Is that a correct statement?
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Mr. O'CONNOR. That is a correct statement.
Mrs. MALONEY. I would like to ask you if you agree with the testimony of Mr. Skibine, if you believe that this decision was made entirely on the merits?
Mr. O'CONNOR. I do believe that that is what happened.
Mrs. MALONEY. Do you believe that campaign contributions or political influence determined the outcome of this matter in any way?
Mr. O'CONNOR. Absolutely none.
Mrs. MALONEY. In this case, we had two sides, both sides had lawyers, both sides had well-paid lobbyists, both sides made contributions. And I would like to ask you, it has been widely reported that both sides made contributions, one said to the Democratic committee, other members made contributionss to the Republican committee, and the majority of these contributions on both sides was soft money, correct, was soft money?
Mr. O'CONNOR. I can only speak on our side, and that was the side that opposed the application. Both soft money and hard money was involved, because I believe some of our clients contributed to the Committee to Re-elect in the amount of $1,000.
Mrs. MALONEY. Last night the President, in his State of the Union address, called upon Congress to ban soft money so that large contributions could not be given to parties for party building. In your opinion, do you think that if we banned soft money as the President called for, that it would help eliminate concerns about purchasing influence over policy?
Mr. O'CONNOR. I certainly do.
Mrs. MALONEY. You support the President?
Mr. O'CONNOR. I support the President on his position on soft money.
Mrs. MALONEY. And in this case, in many cases in which two teams are out there, two sets of lobbyists, there are winners and losers, and when the winner later makes contributions, there will inevitably be an appearance of impropriety. And I would like to ask you, do you think that banning soft money might remove the appearance that decisions can be purchased?
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Mr. O'CONNOR. I believe that, because soft money is usually in large amounts, and it raises the question why would he or she gives a large amount of money if there wasn't some economic reason for it.
Mrs. MALONEY. I would like to followup on the questioning of my colleague, Mr. Lantos, and he used the term ''trivial pursuit.'' I would like to use the term ''common sense.''
Let me tell you, if the New York delegation, of which I am a member, was united in opposition to a casino in their State and Interior overruled us, let me tell you, we would have taken the issue to the floor. You would have never heard the end of it.
And what I don't understand, I feel like what is the fuss? If Interior had decided against what—in this memo that Mr. Bennett cited, 312, from Jennifer O'Connor to Harold Ickes, she begins, one paragraph, she says the local community is almost uniformly opposed to the proposed casino. And again, Mr. Chairman, I truly believe if Interior had decided in any way except the way they did, we would have heard such an outcry from every Republican in this Congress for overruling community input, the position not only of the congressional delegation, the State Senators, the city council members, the assembly people that represented the area.
People are elected to represent the point of view, oftentimes, of their constituents. If every constituent is telling you ''We don't want a casino,'' what do you expect them to do? If Interior had overruled the delegation, I can't speak for the Wisconsin and Minnesota delegation, but I truly believe we would have seen a bill in Congress to reverse the position of Interior, and I for one would have supported them in the opposition that supported the community's point of view against the casino developer from Florida.
My time is up. I have quite a few more questions for you, Mr. O'Connor.
Mr. BURTON. The gentlelady's time has expired.
Mr. Hastert, you are recognized for 5 minutes.
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Mr. HASTERT. I thank the chairman. I would just remind the gentlewoman, I guess she wasn't here last week when Mr. Skibine testified that he was the person from Indian Affairs and Gaming who had to make that decision. That was the first time in the history of making a decision about whether tribes had gaming privileges or not, or the license to do that, that took into effect what public opinion was. And the fact it wasn't in Minnesota, it happened to be in Wisconsin, a different State than the objectors.
Mrs. MALONEY. Point of information, since my name was mentioned——
Mr. BURTON. The gentleman has the time. He doesn't want to yield.
Mr. HASTERT. Mr. O'Connor, a couple things I want to talk about. Mr. Corcoran, Tom Corcoran, was deposed. Tom Corcoran happened to be one of my predecessors in the Congress, a good friend of mine and a fine gentleman.
But in his discussion there was talk about the frustration he talked about in his deposition, the frustration of not being able to get in contact with Mr. Ickes, and in fact the discussion with Ickes never took place, but the communication did. In fact, he testifies that he signed a letter that you sent to him, and with your permission he signed your name to the letter. And that letter then by messenger went to the White House, and it was also faxed to Mr. Ickes at the White House, and basically, I will read what happens here.
It says: ''I have been informed by Pat O'Connor that because he was unable to reach Mr. Ickes by telephone, that he was going to send a letter to Mr. Ickes. He subsequently sent over a draft of that letter and he asked me to assist in reviewing it to make sure that the facts were correct, and he also asked me to facilitate its delivery to Mr. Ickes because Mr. O'Connor at that time was in Minneapolis, so I assisted him in both respects.''
It goes on to say that—a question about what was in the letter, and it says—the question is, to Mr. Corcoran, if I make reference to what would be page 2, and it is really number 4, I want to address right now what number 4 says. And it says: ''All of the representatives of the tribes that met with Chairman Fowler are Democrats, and have been so for years, and I can testify to their previous financial support to the DNC and to the 1992 Clinton/Gore Campaign Committee.''
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Now that was a reference just to refresh people's memory, right?
Mr. O'CONNOR. It was in my letter that—pardon me. It was in my letter dated May 8 that went to Harold Ickes.
Mr. HASTERT. Right. Then he goes on to say, ''Pat O'Connor told me that with respect to Item 4 that he wanted to get the further attention of the chairman of the Democratic party, and that the opponents, not only our client but other tribes were, in Pat's words, good Democrats.''
Mr. O'CONNOR. Can you say that again?
Mr. HASTERT. I will be happy to. It says, ''Pat O'Connor''—this is Mr. Corcoran testifying—''told me with respect to Item 4 that he wanted to get further attention of the chairman of the Democratic party, and that the opponents, not only our client but other tribes were, in Pat's words, good Democrats.''
Mr. O'CONNOR. I'm getting confused about—we were the opponents.
Mr. HASTERT. About the Minnesota Indians who didn't want the dog track and casino in Wisconsin, that your clients, in essence, were good Democrats?
Mr. O'CONNOR. Yes, our clients were the Democrats.
Mr. HASTERT. OK, fine. So sometimes there is a fine line with—Mr. Lantos said it, I guess, very well—between what decisions makes and politics. I mean, it is there, it is part of the essence of this business.
Corcoran concluded by saying, ''The only other contact that I know of with respect to anybody from O'Connor & Hannan with the President was a casual contact, not really a lobbying contact, that Tom Snyder told me about.'' Tom Snyder is a member of your law firm, is that right?
Mr. O'CONNOR. That is correct, was at that time.
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Mr. HASTERT. ''As I recall, a day or so after it happened, Mr. Snyder, a good friend of the President, he was attending a reception and they were chatting, and in the course of that chat the President indicated that Pat O'Connor had mentioned this dog track to him. They both had a pretty good laugh about it, but the President of the United States had been informed about a dog track in Wisconsin, and I must say Tom and I had a pretty good laugh about it as well.''
So you did get this communication to higher levels, is that correct?
Mr. O'CONNOR. I did get the communication to the President of the United States.
Mr. HASTERT. And you did write the letter to Harold Ickes?
Mr. O'CONNOR. I did write a letter to Harold Ickes.
Mr. HASTERT. So there was communication?
Mr. O'CONNOR. That's correct.
Mr. HASTERT. I just wanted to set that straight.
Finally, there is an exhibit, 357–23, and it is on your calendar, and you note that you have a notation concerning the Hudson Dog Track, that there is a reference to Loretta Avent. And we talked about her, and she is the person who said, ''No, absolutely, there is an impropriety here and I am not going to talk to you about it,'' right?
Mr. O'CONNOR. She never said it was an impropriety to me, but she said she didn't want to talk about it.
Mr. HASTERT. So she did the right thing. Basically, from her perspective, she did the right thing.
Mr. O'CONNOR. I don't wish to speak about her perspective, but I don't think there was anything improper about me asking her.
Mr. HASTERT. Absolutely. OK. So, Mr. O'Connor, you will note that there is an entry there underneath the Hudson Dog Track, and it says, ''Indians, 50, DNC.'' I am not sure if that is 50 Indians or 50 tribes, it could have been $50, but you probably wouldn't have put a thing down for $50. Could that have been $50,000? You talked about Larry Kitto in reference to the Committee to Re-elect.
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Mr. O'CONNOR. Congressman, I believe that that reference, and this was on the part—on the left-hand side of my day timer where I put down things to remind me to do things. The Indians, 50 DNC, Larry Kitto, Committee to Re-elect, I don't recollect when I put that down and why I put it down, but I do know that it refers to No. 3, which is the Committee to Re-elect. And my feeling about it would be that that 50 probably relates to what Terry McAuliffe asked me and Larry Kitto to do, and that is get 50 different Indians, whether clients of ours or not, to contribute $1,000 apiece of hard money.
Mr. HASTERT. In conclusion, one final thing. I would like to enter exhibit C–113, which says DNC Services Corp., DNC, and Democratic Senatorial Campaign Committee, and it adds up to $50,000. So maybe that is a coincidence, I don't know.
I yield back the remainder of my time.
Mr. BURTON. Without objection, it is entered.
[Exhibit C–113 follows:]
INSERT OFFSET FOLIOS 269 HERE
[The official committee record contains additional material here.]
Mrs. MALONEY. May I state a point of order?
Mr. BURTON. The gentlelady will state her point.
Mrs. MALONEY. One of personal privilege. Since my name was mentioned by Mr. Hastert——
Mr. HASTERT. Point of order, Mr. Chairman. I did not mention the lady's name. I said a colleague from New York.
Mr. BURTON. Mr. Hastert had the time. You are recognized for the next 5 minutes.
Mrs. MALONEY. I did mention that both Wisconsin and—the Wisconsin delegation that went on record, Republican Roth, Republican Gunderson, were opposed to the project, as well as——
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Mr. HASTERT. Regular order, Mr. Chairman.
Mr. BURTON. You are not in order right now.
Mr. Barrett, you are recognized for 5 minutes.
Mr. BARRETT. Thank you, Mr. Chairman.
Mr. O'Connor, over here, to your left, way over here, way over here.
Mr. O'CONNOR. Yes, the Congressman from Wisconsin.
Mr. BARRETT. Nice to see you, sir. Thank you for being here today. I'm not a very good dancer so I am not going to dance around the issue. Your client gave a lot of money to the Democratic National Committee.
Mr. O'CONNOR. Yes.
Mr. BARRETT. Did you ever offer to anyone at the White House that your client was willing to give campaign contributions in exchange for the Department of Interior making a decision in your favor?
Mr. O'CONNOR. Absolutely none.
Mr. BARRETT. Did you ever offer to anyone at the DNC that your client was willing to give campaign contributions in exchange for the Department of Interior making a decision in your favor?
Mr. O'CONNOR. I never said that to anyone at the DNC or anywhere else.
Mr. BARRETT. Did you ever offer to anyone on the Clinton/Gore campaign that your client was willing to give campaign contributions in exchange for the Department of Interior making a decision in your favor?
Mr. O'CONNOR. I never made such a request.
Mr. BARRETT. Now let me ask it the other way. Did anyone at the White House ever tell you that a contribution from your client would help them get the Hudson application denied?
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Mr. O'CONNOR. No one in the White House said that to me.
Mr. BARRETT. Did anyone at the DNC ever tell you that a contribution from the opponents—from the opponent tribes would help them get the Hudson application denied?
Mr. O'CONNOR. No one at the DNC ever said that to me.
Mr. BARRETT. Did anyone at the Clinton/Gore campaign ever tell you a contribution from the opponent tribes would help them get the Hudson application denied?
Mr. O'CONNOR. No one at the Clinton/Gore Committee to Re-elect ever said anything like that to me.
Mr. BARRETT. Do you know of anyone who either made or received any offers of that kind?
Mr. O'CONNOR. I know of no one that ever made such a statement or offer.
Mr. BARRETT. And you are under oath today.
Mr. O'CONNOR. What?
Mr. BARRETT. You are under oath today.
Mr. O'CONNOR. I am aware I am under oath.
Mr. BARRETT. Thank you. I would like to go to exhibit 312, which is something we have talked about a little bit earlier today. I think Mr. Bennett made reference to it. It is a memorandum to Harold Ickes from Jennifer O'Connor. Do you know what Jennifer O'Connor's title is, or her role was? I don't.
[Note.—Exhibit 312 may be found on p. 486.]
Mr. O'CONNOR. I don't.
Mr. BARRETT. Mr. Bennett, maybe you can help us with that.
Mr. BENNETT. For the record, Congressman, I know she is on Mr. Ickes' staff. I don't know what her title is.
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Mr. BARRETT. And this was May 18, 1995. The smoking gun in all this is that there was some sort of improper influence, it was asserted, and it drove this decision. But if you look at this memorandum, what are the reasons that this memorandum of why this off-reservation proposal was going to be denied, if you can take a look at that.
Mr. O'CONNOR. Well, this memorandum for Harold Ickes from Jennifer O'Connor points out that the local community is almost uniformly opposed to the proposed casino. And it goes into the fact that the Minnesota delegation is also uniformly opposed to the proposal. And it goes on to say the Minnesota tribes located near the State border feel they would be adversely impacted by the competition.
Mr. BARRETT. Are those, to your knowledge, the correct assertions?
Mr. O'CONNOR. To my knowledge, I believe that these were factors that were brought to the attention of the Interior, and to what extent they weighed into the Interior's decision, I am not privy to.
Mr. BARRETT. OK. You are aware of the fact that the actual denial letter did lead off with the local opposition?
Mr. O'CONNOR. I am well aware of it.
Mr. BARRETT. You are aware the letter also refers to opposition from other tribes, although I don't know it mentioned Minnesota tribes.
Mr. O'CONNOR. What?
Mr. BARRETT. You are aware the letter of denial also mentioned opposition from other tribes.
Mr. O'CONNOR. Yes, I am aware of that.
Mr. BARRETT. When you talked to President Clinton in that line in Minneapolis, were you frustrated with the woman who—why did you complain to the President of the United States?
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Mr. O'CONNOR. I wouldn't characterize it as frustrated. I just told the President that I wasn't getting calls returned from Loretta Avent at the White House.
Mr. BARRETT. And she did ultimately return your call?
Mr. O'CONNOR. What?
Mr. BARRETT. She did ultimately return your calls?
Mr. O'CONNOR. That particular day.
Mr. BARRETT. That particular day?
Mr. O'CONNOR. She called me.
Mr. BARRETT. Let me just say there have been occasions when I as a Congressman am out in the community and people will say, ''I have contacted your office. I haven't gotten response.'' And what I will immediately do is turn to the staff person next to me and say, ''What is the problem? Let's get back to that person.''
I am pleased the President's staff got back that quickly. In any event, the reason she gave you for not getting back to you was what, again?
Mr. O'CONNOR. The reason is, she said, ''I deal with 400 different Indian tribes, and I only talk to the chairman of the tribes or the chiefs of the tribes.''
Mr. BARRETT. And in fact, her memorandum, which is also in this record, says that this issue is such a hot issue the White House wants to stay away from it; isn't that correct?
Mr. O'CONNOR. She never made that comment to me.
Mr. BARRETT. But in hindsight, now we are aware of it?
Mr. O'CONNOR. Oh, yes, we are aware of it.
Mr. BARRETT. You never got to see Bruce Babbitt on this issue?
Mr. O'CONNOR. No, I did not.
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Mr. BARRETT. Did your counterpart, Mr. Eckstein, ever get to see Bruce Babbitt on the issue?
Mr. O'CONNOR. I have read quite a lot about that, and of course I observed Secretary Babbitt's testimony over on the Senate side, and I believe he is not only a former classmate of the Secretary, but I believe he might have been also a partner of Secretary Babbitt when he was in the private practice.
Mr. BARRETT. Finally, again just for the record, the person from your law firm who is on the retainer letter—and I don't know if this has been introduced into the record, if it is not, I ask unanimous consent to have it introduced into the record—is Mr. Corcoran, who is in fact a former Republican Congressman from Illinois. You are not mentioned in this letter, is that correct?
[The letter referred to follows:]
INSERT OFFSET FOLIOS 270 TO 271 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. Mr. Corcoran, it is true, he is a former Republican Congressman.
Mr. BARRETT. I don't blame him, we all have problems, I don't blame him for that.
Mr. O'CONNOR. Mr. Corcoran was the partner in charge, and responsible in supervising this particular client.
Mr. BARRETT. You are not mentioned in this letter, are you? I mean, I did not see your name in the retainer letter.
Mr. O'CONNOR. I doubt if I would be mentioned in it. I don't think I ever saw the letter.
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Mr. BARRETT. Thank you. I don't think I have any further time.
Mr. BURTON. The gentleman's time has expired.
The gentleman from California, Mr. Cox.
Mr. COX. I thank the chairman.
Mr. O'Connor—and for the benefit of your counsel, the exhibits to which I will be referring are 304, 305–1, and 311–A–3 and 4—Mr. O'Connor, are you aware that the White House Counsel's Office advises that the White House should be kept away from lobbyists on Indian matters?
Mr. O'CONNOR. On what?
Mr. COX. On Indian matters.
Mr. O'CONNOR. Am I aware of it?
Mr. COX. Yes.
Mr. O'CONNOR. No, I'm not aware of it.
Mr. COX. We have in exhibit 304 a memo from the Executive Office of the President that states: ''As you know, last year, White House Counsel advised Loretta,'' referring to the very Loretta Avent that we have been discussing here, ''that she should not meet with lobbyists or lawyers on Indian issues.''
On April 24, 1995, in a memo to Harold Ickes, whom you had gotten involved in this, and he was obviously very, very senior at the White House, from Loretta Avent, she advises Harold Ickes, quote, ''The legal implications of our involvement in the White House would be disastrous.''
You then wrote a letter after that, again to Ickes, having already gotten involved, in which you laid out political reasons—not legal reasons but political reasons—for rejecting the application that was then before Interior. You said in your letter of May 8, 1995, quote, ''I am concerned that those at Interior''—not those at the White House, but those at Interior were involved—''are leaning toward creating trust lands.''
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And your clients of course were paying you to stop that, and you wanted, in your letter you say, quote, ''to relate the politics involved in the situation.'' No. 1, Governor Thompson of Wisconsin, a Republican, I note, supports this project, the opposite view of your clients. No. 2, Senator Al D'Amato, a Republican, I interpolate, supports this project. No. 3, the chairman of the Indian tribe in the forefront of this project, which you opposed, is active in Republican party politics.
Now I would like to ask the staff to put up a video quickly, with the sound.
[Video played.]
Mr. COX. I would like to ask you the question why, given that the White House Counsel's Office had advised that lobbyists ought not to be involved—and I should add I worked in the White House Counsel's Office, and the policy was not to get the White House and the President and the high people involved there to interfere with agency decisions—why did you have, as your basic approach to this, to involve the White House, to involve Harold Ickes? And why did you write Harold Ickes a letter that laid out purely political reasons that had nothing to do with the legal basis that Interior could legitimately use to make this decision? Why did you do that?
Mr. O'CONNOR. First of all, Congressman, this letter not only laid out politics involved but it did, in the first page and part of the second, talk about the reasons for the substantive opposal. Which do you want to talk about?
Mr. COX. I want to ask you why you raised those political issues and why you wanted to involve the White House, when you knew they were—ought not to be involved in the decision?
Mr. O'CONNOR. I raised these five points in the letter to get Harold Ickes' attention to our problem. I decided that Harold Ickes gets a lot of mail, and I wanted to bring out the politics involved in the situation. Also, as you are well aware, when I addressed this letter I addressed it to Ickes as Deputy Chief of Staff for Policy and Political Affairs.
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Now, why did I write the letter? I was hopeful that I would get Ickes to at least read it, to see the concerns of our client, and I was hopeful that he might make a call over there and say I have been talking or I have got some correspondence here from people who are opposing this application, and they are concerned that the committee is not focusing on why we are opposing this application.
Mr. COX. Mr. Chairman, my time has expired. I just want to reiterate, as I said at the earlier hearing, that I am not sure the decision that was reached here was not good for the community of Hudson, WI, but that is not what this hearing is about and I am very troubled by what I am hearing.
Mr. BURTON. Thank you, Mr. Cox.
Mr. Kucinich.
Mr. KUCINICH. Thank you very much, Mr. Chairman.
Mr. O'Connor, according to your date book—hi.
Mr. O'CONNOR. Hi, Congressman.
Mr. KUCINICH. How are you this afternoon?
Mr. O'CONNOR. I'm very fine. And you?
Mr. KUCINICH. Very good, and I appreciate it. I have a few questions for you and I appreciate your cooperation in answering them.
Mr. O'CONNOR. Certainly.
Mr. KUCINICH. Mr. O'Connor, according to your date book, it appears you tried a number of times to contact Loretta Avent, an Indian specialist at the White House, in April 1995. Do you recall those attempts to reach Ms. Avent?
Mr. O'CONNOR. I do.
Mr. KUCINICH. And Ms. Avent did not call you back, did she?
Mr. O'CONNOR. No.
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Mr. KUCINICH. So on April 24 you mentioned the issue to the President, and he referred you to Bruce Lindsey, as he moved out. Now Lindsey told you he would have someone call you, and Ms. Avent did. What did she tell you when she called you?
Mr. O'CONNOR. She called me and she said to me—pardon me so I can get closer to the microphone. She called me and in response, she said, to my calls to her. And then she started right out by saying, ''My job is to work with some 400 Indian tribes, and I only talk to the chiefs or the chairman of the tribes.'' She didn't say—she just stated that as a matter of fact. She didn't say it in any irritating tone, but she made clear to me that she didn't want to—and she added, ''I don't talk to lobbyists.''
Mr. KUCINICH. And Harold Ickes left a message for you and you left messages for each other?
Mr. O'CONNOR. Yes.
Mr. KUCINICH. But you never spoke to each other; is that correct?
Mr. O'CONNOR. That is correct.
Mr. KUCINICH. You then tried to contact Mr. Ickes by going through Don Fowler, but you do not know if Mr. Fowler ever contacted Ickes for you; is that correct?
Mr. O'CONNOR. I went to him, yes, and asked him, and I attended a meeting with him, along with some of our clients and other tribal leaders.
Mr. KUCINICH. Yes, sir. But do you know if Mr. Fowler ever contacted Mr. Ickes for you?
Mr. O'CONNOR. I don't recall a conversation with Fowler after that meeting on the 28th. But I know that Mr. Fowler did talk to me after that 28th meeting, I know that, and I can't recall right now what he told me.
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Mr. KUCINICH. Thank you, on that point.
You sent a letter on May 8, I think it was, 1995, to Mr. Ickes, but you don't know if he read the letter. You don't know if he acted on it; is that correct?
Mr. O'CONNOR. That's correct. I don't even know if he got it.
Mr. KUCINICH. You never actually spoke to Mr. Ickes, you never had any substantive discussion about the Hudson Casino with anyone in the White House. And you do not know whether anyone in the White House did anything with regard to the casino; is that correct?
Mr. O'CONNOR. That is correct. The only thing I know is I did get a telephone call from then partner of our firm, Mr. Schneider, whom I had asked if he was over there at any time, and he ran into Ickes, if he thought it appropriate to make an inquiry. And then he called me back, and my recollection is what he said was, Ickes said he'd look into it. Now, that's the only thing I know from Schneider.
Mr. KUCINICH. I am going to ask you a question that might be a particularly sensitive question to ask a lobbyist, but here it goes. So you don't really know of any reason why—all of your efforts, you don't know that if any of your efforts, for that matter, on behalf of your client, are connected to the outcome of the case?
Mr. O'CONNOR. No, I don't. I don't know whether or not my efforts were ever—well, I know this. Ickes never called me back, and I sure tried to get ahold of him.
Mr. KUCINICH. So you don't have any reason to think that the White House had anything to do with the outcome of the case?
Mr. O'CONNOR. No, I don't. The only person I talked to who knew what I was talking about was Loretta Avent.
Mr. KUCINICH. As far as the DNC, you don't have any reason to believe that they had anything to do with the outcome of the case?
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Mr. O'CONNOR. No.
Mr. WAXMAN. Mr. Kucinich, would you yield to me?
Mr. KUCINICH. I would certainly yield to Mr. Waxman.
Mr. WAXMAN. It is almost comical that we had to see an ABC film. It has come to this. This is what the Republicans are relying on, an ABC news report that 3 days of hearings on this subject have completely rebutted, as well as Mr. O'Connor's testimony today. They tried to argue that there was some connection between campaign contributions and big lobbyists like Mr. O'Connor and the result. They just have not established it because apparently it is just not true. So after all is said and done, they want to rely on an ABC news show that has been discredited because we have got more information than they had when they did their show. Thank you.
Mr. O'CONNOR. Mr. Congressman, I would like to say that they were hounding me, and if I had been 5 years younger, I think I could have outraced them.
Mr. KUCINICH. I sometimes feel that way myself.
Now, Mr. O'Connor, you had a letter to Harold Ickes that said that Governor Thompson of Wisconsin supports this project.
Mr. O'CONNOR. Yes.
Mr. KUCINICH. We know, in fact, though that Governor Thompson opposed the casino; isn't that right?
Mr. O'CONNOR. Say that again?
Mr. KUCINICH. Isn't it a fact, though, that Governor Thompson opposed the casino?
Mr. O'CONNOR. It was my belief at the time that the Governor was wavering, that the Governor was—maybe he would support the casino. Of course, I have heard in testimony last week a view of one of the witnesses that said he thought the Governor had an open mind about it and that he felt that he might very well support it and he felt that it didn't necessarily mean an expansion of gambling.
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At the time I wrote this, I was satisfied with the information that was before me that he was supporting the casino. I wouldn't have put it in there if I wasn't satisfied with what had been told me.
Mr. KUCINICH. Thank you very much, Mr. O'Connor. Mr. Chairman.
Mr. BURTON. I think I'll take my 5 minutes at this point.
On April 24, Ms. Avent said no talking to lobbyists. That's shown in 305. You don't need to put it on the screen. But she was very clear that she thought that this was a serioius legal problem if the White House got involved. And then you look at——
Mr. O'CONNOR. Not with me.
Mr. BURTON. I know. I'm making some statements here.
Mr. O'CONNOR. Pardon me. Excuse me.
Mr. BURTON. In looking at exhibit 356–39, your billing records, Mr. O'Connor, of May 23 and 24 reflect your discussion of this matter with Terry McAuliffe, who is the head of the Clinton/Gore Reelect Committee. There is a reference to you asking him to agree to call Harold Ickes and arrange an appointment for the Indians. Your time entry for June 6, 1995, exhibit 36–41, talks about McAuliffe making contact with Ickes. So it refers to this contact actually being made.
The people at the White House had been red flagged, I believe, by Ms. Avent that this was a hot potato and they should not get involved. Nevertheless, it appears as though that they did get involved. Mr. Kitto said when he was questioned and we have his deposition, which you may not have in front of you, but I will read from it: ''Weren't you advocating that the White House get involved to get the BIA,'' Bureau of Indian Affairs, ''to turn it down?''
He says, ''Well, of course, when they—if they look at the information in our opinion, there was no other decision to make, but to turn it down.''
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''But you did, in fact, solicit the White House intervention for the express purpose of getting the result you got.''
He says, ''Absolutely.''
''And you wanted the White House to intervene and to put pressure, whatever pressure was necessary on the BIA so that you could succeed in getting the thing turned down?''
We wanted the Federal Government to do its job and it, and hopefully the White House helped in that process.
Do you believe that the White House pressure was part of the process in approval or denial of fee-to-trust applications at the BIA?
Well, I would hope that somebody in the White House called the Department of Interior and said, take a good look at this. Which they shouldn't do because Ms. Avent says this is a hot potato; it's legally something we aren't allowed to get involved in. Then we go on.
You think if somebody at the White House phoned and said, take a good look at this, somebody at the BIA would get the point of what side the White House was on.
Well, I hope people know who they work for, he said. I'm assuming that they take their—Babbitt takes his orders from somebody in the White House.
So your partner, Mr. Kitto, felt like this kind of pressure being put on the White House would end up getting the White House to put pressure on the Bureau of Indian Affairs and the decision being made that would stop the casino.
I want to point out something that is of great interest to me and I pointed it out last week. Prior to this decision being made, there was by the tribes in question $500 in contributions that had been made to the DNC or related Democratic fund-raising efforts. After this decision was made, on July 14, 1995, they contributed $356,250. Why do you think they did that?
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Mr. O'CONNOR. First of all, from what you said, Mr. Chairman, there was $500 before——
Mr. BURTON. July 14.
Mr. O'CONNOR. I'm not aware—I haven't any information as to when these were—and I don't dispute what you say. But these Indians in 1992 made substantial contributions to the Clinton/Gore campaign. Now, why would they make substantial contributions afterwards, after that date that you——
Mr. BURTON. After that decision.
Mr. O'CONNOR. After the application was turned down?
Mr. BURTON. Right.
Mr. O'CONNOR. Your question to me is why would they make it?
Mr. BURTON. Yes.
Mr. O'CONNOR. First of all, these Indians have been strong supporters of the Democratic party since the casinos went into operation. They have been very active in making contributions.
Mr. BURTON. I think you have made your point. I understand what you are saying, Mr. O'Connor. I just have a limited amount of time.
Mr. O'CONNOR. I'm sorry.
Mr. BURTON. I think you have made the point.
But in your memo book and Mr. Kitto's memo book, you both refer in about a 3-week period to $50,000 being contributed to the DNC. This is in your billing records as related to the tribes in question.
Mr. O'CONNOR. First, my records and that 50 was not in the billing records. Second——
Mr. BURTON. It was in your calendar.
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Mr. O'CONNOR. It's in my calendar on the left-hand side. It was in my calendar. My recollection, that $50,000, and if you look, it deals with not the DNC, but with the Committee to Re-elect. In my recollection, Mr. Terry McAuliffe had asked us if we could get 50 individual contributions.
Mr. BURTON. I understand. And Mr. McAuliffe is one of the people that you asked to intercede to try to get an appointment with Mr. Ickes to talk about this issue. And Mr. McAuliffe did, $50,000 was raised by the tribes in question, and Mr. Kitto, in his memo book, also refers to the $50,000. So there was $50,000 referred to in your memo book, and in his memo book. Mr. McAuliffe asked for the $50,000. Mr. McAuliffe made the connection with Mr. Ickes at the White House, and the $50,000 was given. And ultimately the application was rejected. You don't see any connection between those?
Mr. O'CONNOR. No. And furthermore, I can't talk about what's in Mr. Kitto's book or what Mr. Kitto said in his deposition.
Mr. BURTON. He's your law partner, is he not?
Mr. O'CONNOR. I don't dispute that at all. I do know my situation. In my situation that 50, in my judgment, referred to Terry asking us whether we could raise $50,000 from the Indians individually, and I don't recall that we did that. My best recollection—I don't know what Kitto raised, but my best recollection, I raised about $14,000 and it was from not only Indians, but from others.
Mr. BURTON. One final question. During the conversation when Mr. McAuliffe asked for the $50,000, did you discuss at that time the problem that you were having with the application of the Indian tribes?
Mr. O'CONNOR. I'm not sure whether it was there or in a subsequent conversation. I was working on that committee, and I saw McAuliffe on more than one occasion. One of them was with Kitto. Whether or not I asked him at that time, will you as a personal favor talk to Ickes or whether it was in a later discussion which was only maybe a day or so later, but I did ask him.
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Mr. BURTON. Well, the point is, during the conversation, the $50,000 was discussed. It is very possible that you also discussed the Indian tribe issue.
Mr. O'CONNOR. I don't think so. But it's possible.
Mr. BURTON. Let me just say that we have a vote on and nobody has had any lunch. What I would like to do is have everybody go vote and come back and we will conclude with this panel.
Mr. WAXMAN. Mr. Chairman, if I might, we have no evidence, maybe the chairman can help us on this, that Mr. McAuliffe did anything, whether he called Mr. Ickes. Mr. O'Connor can't testify. You made the statement, but I'd like to know what evidence you have to back up that statement.
21Mr. TIERNEY. Mr. Chairman, I would like to ask if the Chair would indulge just recognizing me for the moment so that I could give my time to Mr. Barrett when we come back because I will not be able to come back, so I ask for that courtesy.
Mr. BURTON. The Chair will accept that. We will stand in recess until as close to 2:15 as possible.
[Recess.]
Mr. BURTON. Gentleman, if you don't mind, we will go ahead and get started. Other Members, I'm sure, will be coming back very quickly, but in the interim we have Mr. Barrett.
Mr. BARRETT. Thank you, Mr. Chairman. I want to thank Mr. Tierney for yielding me his time. Mr. Tierney wanted me to point out that he has a bill pending for campaign finance reform and that this type of hearing could just as easily be a hearing on tobacco, and that both sides are going to continue to criticize the other's money and that is the real issue is campaign finance reform, and he wanted me to mention that.
Along those same lines, Mr. Chairman, I also have to weigh in that several times during the course of this hearing Mr. Waxman and others have talked about the anomaly that we are here to discuss this issue, but nowhere on this committee's agenda is there the issue of tobacco. I realize that initially the response of the committee, of the Chair was that this committee's purview was foreign money, that was at the time when we were looking at the allegations of Chinese money.
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Next, we have been told that that is under the jurisdiction of the Commerce Committee, although that doesn't deal with the campaign finance reports. I actually think that the next, if I could offer one, the next excuse would be when the weather conditions are correct or when the weather conditions are right, because I think it is going to be a cold day in hell before this committee would ever look at allegations involving the Republican National Committee.
I would love to go through Haley Barbour's time slips and ask him some questions about his billing practices and contributions to the Republican National Committee. And I say that because I am critical of the money involved in politics. And I do not like the fact that there was a lot of money raised here. But that money pales in comparison to the amount of money that was raised by the Republican National Committee and anybody who looks at those figures knows that. So you can have a good hearing and this is a good hearing, and in a way it is an important hearing because it highlights to the American people what the scandal is.
The scandal is not that this money was given, because Mr. O'Connor testified that there was no quid pro quo here. I specifically asked him if he knew that he was under oath when he gave that answer and he said, yes. So I accept him at his word. The scandal is that this type of practice is legal in this country and the scandal is that this Congress refuses to do anything about it.
The sad reality is that I think what happens as a result in my home State and other parts of the country is that people just turn themselves off to the process. They say, we don't have the money to get involved, we're not going to get involved in the political process. And I think that there might be a grand design on behalf of the Republican leadership of this Congress to have fewer people involved in democracy, because it then allows more monied interests to have greater power in this country. And I think that that is something that has to be said.
I also want to talk a little bit about the comparisons at the Federal level and the State level, because I think that they are very interesting and we really haven't spent much time on that issue. On the State level, as we know, Governor Thompson had some pretty clear statements that he was opposed to expanding gambling. Yet, when we talked last week to Mr. Havenick and the members from the three tribes, they intimated that that really was not all that it appeared; that they understood that the Governor had to make these public statements against gambling, but they were getting messages or they were hearing that the Governor was open to their proposals.
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So in essence, what they're saying is that there's some sort of secret understanding, and I don't think they use the word ''secret,'' but secret understanding that the Governor would look at this with an open mind. So on the one hand, they are coming here, and the dog track interests in particular, is coming here and saying that they have not been given the right access that they want, that they feel they deserve; notwithstanding the fact that their lobbyist was the only one to meet personally with Mr. Babbitt, but at the State level, there is nothing wrong for them to have agreements that are reached without public input with the Governor of the State of Wisconsin. So I think as we—as we put this up, if we had a blackboard here and, of course, the minority doesn't have the resources that the majority does, so we can't do that, but if you look at State-Federal, the Federal allegation is unfair access by the Democrats.
On the State level, there is basically an acknowledgment that they had access to the Governor where the decision was made. The other allegation, of course, is the money here. And here the allegation is that hundreds of thousands of dollars were in play. But I have an article here, September 18, 1990, Eau Claire Leader-Telegram, which starts out, ''Dog racing interests in the St. Croix Meadows Greyhound Park being built in Hudson have contributed $181,923 to Governor Tommy Thompson's gubernatorial campaign since 1985, a representative of Democratic Thomas Loftus' campaign said today.'' He was the challenger to Governor Thompson.
You have said that $250,000 is a lot of money on the Federal level. If $250,000 in 1996 is a lot of money on the Federal level, what is $181,000 in 1990 at the State level in terms of access and buying favorable results? The comments by Loftus, the article goes on to say, the State assembly speaker from Sun Prairie, came a day after the Milwaukee Journal reported that dog racing interests in the State's five tracks had donated at least $286,000 to Thompson's campaign.
The article goes on even further to state, ''At his news conference, Loftus questioned why a Florida family seeking a track license would hire attorney Michael Grebe, Chairman of the Republican party of Wisconsin, to represent it.'' I think the answer is clear, because he was the one that they perceived with the Republican Governor had the most access. So, yes, you can hurl all the accusations that you want toward us and we will hurl all the accusations that we want back toward you. But until we get at the root problem, this is going to go on. This is legal.
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I am sure that if we brought in Mr. Barbour and I asked him under oath whether he ever accepted or made the representation that by giving millions of dollars to the Republican National Committee that the Republican National Committee—that the Congress would act in favor of his clients on tobacco, he would say, yes—he would say, no, there was no influence at all. But as long as you are going to permit, under your jurisdiction, this practice to continue, then I don't think we can ever be surprised. The real loser in this is the American people because they feel that they are not part of this system and I am afraid, Mr. Chairman, that they might be right.
I yield back the balance of my time.
Mr. BURTON. The gentleman's time has expired.
Mr. Mica.
Mr. MICA. Thank you, Mr. Chairman.
Mr. O'Connor, I hope you can hear me OK. I will try to be as loud as possible so you can respond. You said you never talked to Harold Ickes; is that true?
Mr. O'CONNOR. That's true.
Mr. MICA. That's correct. Maybe you could pull that up a little so I can hear you. My wife says the same thing about me.
You said you did talk to Mr. Fowler at the DNC.
Mr. O'CONNOR. Yes.
Mr. MICA. What did you ask him to do, to kill the project if he could, or to contact someone else, or what?
Mr. O'CONNOR. I met with Mr. Fowler and——
Mr. MICA. Was that May 5?
Mr. O'CONNOR. No, I think it was on April 28.
Mr. MICA. April 28, that is right. Did you ask him to kill the project? Or to contact Harold Ickes? Or to contact someone in the Interior Department? What was the strategy?
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Mr. O'CONNOR. At that meeting, Congressman, it was attended by me and several tribe leaders. In our discussions with Mr. Fowler at that time, we asked, and I used the word ''we''—I was part of the group—we asked if Mr. Fowler would consider talking to Mr. Ickes at the White House to express our concern that we didn't believe that the people in Interior working on this particular application were focusing on our opposing the application and were not focusing on the question of the serious economic consequences that would be suffered by tribes.
Mr. MICA. But basically you wanted the project not to go forward, right?
Mr. O'CONNOR. That's right.
Mr. MICA. Then you met with Mr. McAuliffe. You talked to him you testified, and basically you told him the same thing. And you had still not talked to Mr. Ickes. And then you have a partner, is it Tom Schneider?
Mr. O'CONNOR. Yes, he was a partner at——
Mr. MICA. Did you suggest to Tom to go to this fund-raiser or did Tom tell you that he was going to a fund-raiser where he might see the President and maybe Mr. Ickes?
Mr. O'CONNOR. I think I understand your question. And it is did I talk to Mr. Schneider about possibly talking to Mr. Ickes and the President if he happened to be over at the White House, and the answer is, yes, I did talk to him and I did tell him if it was appropriate, would he bring it up to Mr. Ickes.
Mr. MICA. And then I think you testified a little bit earlier that Schneider came back and said that he talked to the President, or at least he talked to Ickes; is that right?
Mr. O'CONNOR. Yes.
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Mr. MICA. He reported back to you.
Mr. O'CONNOR. Yes.
Mr. MICA. What did he say, that they were going to help?
Mr. O'CONNOR. He told me by phone that he had brought it up with Ickes and Ickes said that he would look into it.
Mr. MICA. So basically you hadn't been able to directly convey this to Ickes, but Fowler sort of sent a message, McAuliffe was going to send a message and Schneider was going to send the message; is that correct?
Mr. O'CONNOR. Yes.
Mr. MICA. And then you said to one of my colleagues over here that you couldn't remember what Tom told you about the meeting.
Mr. O'CONNOR. I don't recall if I said that, because I do recollect, one, that Schneider did call me and that he did say that he had talked to Ickes and that he did say that Ickes would look into it. That's my recollection.
Mr. MICA. See, the problem I have, and maybe we could pull this up, is exhibit 356–45. The chairman had finished with some questioning about tying this all together and your involvement. See, I am not an attorney. I am experienced in politics, but this is pretty damaging when you look at that document, 356–45, and you see on your entry, and I think you are PJO, on 7–14–95, the day the project was killed, in your notes it says discussions regarding necessity to followup with Harold Ickes at the White House, who you didn't talk to, Don Fowler with the DNC, and Terry Mac, it must be McAuliffe unless there is somebody else by that name, at the Committee to Re-elect, outlining fund-raising strategies.
We see the $50,000 trail there that has been brought out today. Then, on the same page, 7–20, a few days later, PJO, it looks like you again, somebody has doctored this, briefing with Larry Kitto on my conversations with Chairman Fowler of the DNC, discussion regarding thank you letters to White House and Members of the Congress, discussions regarding fund-raising.
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This is the partner who raised some $300,000. So it looks like you had past support, which we all know about, and people do support folks over time, but then there is some pretty clear linkage to the day of the rejection, and then a direct followup to pay the balance due. What do you think?
Mr. O'CONNOR. Congressman, first in connection with the notation that occurred on the 14th, those discussions with Mr. Kitto took place in Minneapolis, and they took place before I was aware that the Interior had turned down the application.
Mr. MICA. It is just ironic it was the same day? No one told you in advance that it was going to be denied? You don't think that you all had done your deed?
Mr. O'CONNOR. No, I had no knowledge in advance. And the first knowledge I had of it was when our office in Washington received the press release from Interior, and I believe either that afternoon or the following day, it was faxed to me in Minneapolis.
Mr. MICA. We are investigating this because a Federal judge has looked at this. There has been a complaint about this. In fact, political influence might have occurred with this decision. That is our concern. Thank you, Mr. Chairman.
Mr. BURTON. The gentleman's time has expired.
Mr. Souder.
Mr. SOUDER. Thank you, Mr. Chairman. One thing I just want to insert in the record, it probably has already been inserted before, is exhibit 297–A–6, which was a local BIA finding based on the studies of Dr. Murray and Arthur Andersen. It says three times in response to comments and questions that the findings of Dr. Murray and Arthur Andersen Inc., indicate that the market size is of sufficient size to support an additional casino operation and will not saturate the market.
The reason that is important is because that is why all this political lobbying has taken place because at the local level they did the study, determined this, and they had to bring in high-powered lobbyists to combat them. I wanted to followup a little bit, Mr. O'Connor, and I talk real fast, so I will try——
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[Exhibit 297A follows:]
INSERT OFFSET FOLIOS 272 TO 309 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. Congressman, I didn't hear what you said.
Mr. SOUDER. It wasn't really directed at you, either. I wanted to followup with this. You indicated you didn't have a dinner with Al Gore, that it was a reception that you billed for, your records indicate, on May 24, 1995, that you had a dinner, but you said it was a reception.
Mr. O'CONNOR. Yes.
Mr. SOUDER. And you also billed for a conference with Peter Knight and David Strauss.
Mr. O'CONNOR. Yes.
Mr. SOUDER. Peter Knight is one of the Vice President's closest confidants and was chairman of Clinton/Gore 1996, a former Gore staffer, a lobbyist. David Strauss is Gore's Deputy Chief of Staff. He testified in Senator Thompson's committee about the Buddhist temple event, and said it wasn't a fund-raiser. You said you didn't have any discussions with Vice President Gore, right?
Mr. O'CONNOR. Say that again.
Mr. SOUDER. You had no discussions with Vice President Gore?
Mr. O'CONNOR. I had no discussions with Vice President Gore.
Mr. SOUDER. Any discussions with David Strauss? Did you have any discussions with David Strauss?
Mr. O'CONNOR. Yes.
Mr. SOUDER. What did you discuss with him and what did you ask him to do?
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Mr. O'CONNOR. At that particular event, which was a reception over at the Mayflower, a reception for Vice President Gore, David Strauss was at that reception, so was I, and I did see him and I did talk to him.
Mr. SOUDER. And that's one of the reasons you bill for, my understanding earlier, that you billed for these fund-raising receptions because you hoped to be able to talk to people of influence at these receptions?
Mr. O'CONNOR. I billed for that because I did talk to people at that reception on that issue.
Mr. SOUDER. Do you believe that resulted in any help to you to talk to them? Is that why you bill for them?
Mr. O'CONNOR. Say that again?
Mr. SOUDER. I assume you're billing your clients for that because you assume that by meeting and talking to people like David Strauss at these receptions, it's helpful to your cause?
Mr. O'CONNOR. Yes.
Mr. SOUDER. Do you believe it was?
Mr. O'CONNOR. It's hard to say whether it was helpful or not. First of all, there were a couple of hundred people there at that reception, and I—and that was the first time that I introduced the subject to David Strauss. It was not a long or a substantive discussion at all. It was only the first time I introduced it to him. I did that. I did not follow it up with asking for appointments or discussing it in substance.
Mr. SOUDER. Did you introduce it to him hoping he would influence Vice President Gore?
Mr. O'CONNOR. No, I put it this way. I introduced the issue. It was my intention to have him know that I was involved in it. I didn't ask him to do anything. I just left it that way, with the thought in mind that if I do have to or I do decide to talk to him later about it, I would call him up and get an appointment.
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Mr. SOUDER. Isn't it partly, also hoping that if he's in some meeting somewhere, where he hears about something, he could be of aid?
Mr. O'CONNOR. Well, all that helps, you know, in my judgment, and I let him know of my involvement.
Mr. SOUDER. Is the same true of Peter Knight? Did you talk to Peter Knight?
Mr. O'CONNOR. Yes, and it was again the first time I introduced it, the subject, a very brief conversation. As I mentioned before, a crowded room, a lot of noise. That's all I did. I didn't ask him to do anything.
Mr. SOUDER. Would you say that the primary reason you went to that fund-raiser was to talk to Gore's close confidants, David Strauss and Peter Knight? Are they the two main people you wanted to see or who else were you targeting that night?
Mr. O'CONNOR. I usually go, or went, to Gore receptions, for whatever purpose. There was no prearrangement to see them there. Nor did I know whether they'd be there. But they were there. And I did raise—introduce the subject to both of them at that time.
Mr. SOUDER. And presumably while you've tried to explain that it's not direct billing hours, it's part of the minimum number of hours that your firm bills for, that presumably you billed for that because you talked to Gore's people that night?
Mr. O'CONNOR. Yes, I did. And also on that date I had another meeting and it was all coupled together in that billing.
Mr. SOUDER. Can I ask you one other question that I've been curious about for days of this hearing? Why did you include the Delaware North when the track wasn't owned by Delaware North?
Mr. O'CONNOR. You mean in my letter of May 8?
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Mr. SOUDER. Yes.
Mr. O'CONNOR. At the time that this—I was preparing this letter, from information I had at hand at that time, I was satisfied that Delaware North were the owners of that track.
Mr. SOUDER. Who gave you that information?
Mr. O'CONNOR. I'm not certain—I got information from time to time from tribes. I got information from Larry Kitto. And I read articles that appeared in the Wisconsin Journal and other sources. So I can't tell you after 2 1/2 years where I got it. But I was satisfied at the time that Delaware North were the owners of that track or I wouldn't have put it in.
Mr. SOUDER. So you never actually checked, though?
Mr. O'CONNOR. No, I did not.
Mr. SOUDER. Did you ever check to correct it?
Mr. O'CONNOR. No, I did not.
Mr. SOUDER. So Terry McAuliffe, apparently, and the White House thought that it was owned by Delaware North? Obviously, that's a leading question and I shouldn't have asked. I yield back.
Mr. BURTON. The gentleman's time has expired.
Mr. Shadegg.
Mr. SHADEGG. Thank you, Mr. Chairman. Let me begin, if I could, Mr. O'Connor, with a question which I think is substantiated by the memos and the exhibits we have, referring specifically to exhibit 296. You have had a political relationship with Bruce Babbitt for over a decade, have you not?
Mr. O'CONNOR. I've known Bruce Babbitt for over a decade, that's correct.
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Mr. SHADEGG. And you were the point man for raising money for him to qualify for Federal matching funds for the State of Minnesota in his race clear back in 1986, were you not?
Mr. O'CONNOR. You mean for Bruce Babbitt?
Mr. SHADEGG. For Bruce Babbitt's race.
Mr. O'CONNOR. May I inquire of my wife? I don't think so.
Mr. SHADEGG. Take a look at exhibit 296–A–1 and at exhibit 296–A–6, if you would, which is a memo generated by Fred Duval of the Babbitt campaign to Matthew Rueter in the Babbitt campaign, dated December 3, 1986, talking about matching State plan and it lists you as the contact for the Babbitt campaign for the State of Minnesota, the individual who was to interface with Fred Duval. And it refers to you as, quote-unquote, ''in the bank.''
[Exhibit 296A follows:]
INSERT OFFSET FOLIOS 310 TO 321 HERE
[The official committee record contains additional material here.]
Mr. LEEPER. Congressman, where is that reference please, if I may?
Mr. SHADEGG. Exhibit 296, page A–6. I think it pretty clearly shows that, wouldn't you agree?
Mr. O'CONNOR. This is the first time I have seen this.
Mr. SHADEGG. I think the document speaks for itself.
Mr. O'CONNOR. If I was asked, I assume I would help qualify him. I would have no reason not to.
Mr. SHADEGG. I think the document speaks for itself and pretty well shows that you were doing that.
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Let me ask you, I am not yet able to reach any conclusions about the conduct of the Department of Interior in this particular instance, but I have to tell you by the conduct of the White House and the conduct of Mr. Ickes and quite frankly by your letter of May 8, I would like you to refer to that, that is exhibit 311 A–4.
Specifically at page 2, where you write that you would also like to relate the politics involved in this situation and at the first four points under the politics of this situation. In reflecting on that letter, do you now wish to disavow it and acknowledge that it was an improper letter and should not have been sent, that those materials should not have been included in the letter?
[Exhibit 311A follows:]
INSERT OFFSET FOLIOS 322 TO 327 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. I certainly do not want to disavow it and I do believe it was a proper letter.
Mr. SHADEGG. So—you're a lawyer, are you not, Mr. O'Connor?
Mr. O'CONNOR. Yes, I am.
Mr. SHADEGG. Do you accept the principle of the rule of law?
Mr. O'CONNOR. What is the rule of law?
Mr. SHADEGG. I think the rule of law is that decisions which are supposed to be made on the merits, based on the law, should not be influenced by, nor decided on the basis of the people who are backing them. And your letter, for example, points out to Mr. Ickes, Deputy Chief of Staff at the White House, that the project you oppose is supported by Republican Governor Thompson of Wisconsin. I presume your purpose in pointing out to him that a Republican Governor supported the project and you opposed it was that you wanted him to know that Republicans supported it and Democrats favored it; isn't that correct?
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Mr. O'CONNOR. That was a long question.
Mr. SHADEGG. Your letter, items 1, 2 and 3.
Mr. O'CONNOR. Yes, I'll talk about any one of those if you wish me to.
Mr. SHADEGG. Each one of them make it very clear that you wanted Harold Ickes to know, point by point, that Republicans supported this license and Democrats opposed it.
Mr. O'CONNOR. I wanted Ickes to know, Congressman, exactly what I put in that letter.
Mr. SHADEGG. You wanted him to know that Thompson supported it.
Mr. O'CONNOR. I wanted him to know that Governor Thompson of Wisconsin supported this project.
Mr. SHADEGG. And you wanted him to know that Senator Al D'Amato, also a Republican, supported it?
Mr. O'CONNOR. Yes.
Mr. SHADEGG. And in the third paragraph you wanted him to know that the chairman of the Indian tribe in the forefront of the project was an active Republican?
Mr. O'CONNOR. That's correct. Whatever it says there, and that's what it says.
Mr. SHADEGG. And you wanted him to know that that gentleman had been a Republican candidate for the Wisconsin State Senate, didn't you?
Mr. O'CONNOR. That's right.
Mr. SHADEGG. And then in the next paragraph you wanted to make it very clear that you had met with the chairman of the Democratic National Committee, Mr. Fowler, and that you took a group with you and the entire group you took opposing the license were Democrats. You wanted him to know that?
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Mr. O'CONNOR. I wanted him to know what it says in there. Yes.
Mr. SHADEGG. You wanted him to know that they had previously given money?
Mr. O'CONNOR. Yes, if that's what it said. I can—yes, that's correct.
Mr. SHADEGG. Do you know of any basis under IGRA on which Mr. Ickes or the Secretary of the Interior could have decided to turn the license down because it was supported by Republicans?
Mr. O'CONNOR. Say that again.
Mr. SHADEGG. Do you know of any basis under the Indian Gaming Regulatory Act which would have allowed either Mr. Ickes, Mr. Babbitt or anyone to turn down this tribe's request because it was being supported by Republicans?
Mr. O'CONNOR. No. There is no basis—the Interior made their decision based on the substance.
Mr. SHADEGG. Well, you sure wanted them to know something that wasn't substance. You wanted them to know politics.
Mr. O'CONNOR. Yes, I wanted to get his attention.
Mr. SHADEGG. You don't need to ask—if this paragraph began by saying I would appreciate it if you would give these people a meeting because they are members of your party, that might be one thing. But you specifically are going to the merits of this proposal. You're talking about who's supporting it, not whether or not he should meet with you.
You're saying Republicans support it; Democrats oppose it. Indeed, you go beyond that. You say Democrats who have provided financial support to the DNC oppose it. Is there anything under IGRA which would have allowed Mr. Babbitt or Mr. Ickes to turn this down on the basis of the fact that Democrats who oppose it had given money to the DNC?
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Mr. LEEPER. Mr. Chairman, the witness has tried three times to answer the Member's question and at every attempt to answer, his answer has been interrupted. Would you let him answer?
Mr. BURTON. We will let the witness answer.
Mr. O'CONNOR. All right. I wrote this letter. I stand behind it. And I don't think there's anything improper at all in advising Mr. Ickes of the politics involved in this situation. At the time I drafted this letter, I had information from various sources that led—to satisfy me that these allegations were correct. I wrote the letter, it was sent to Ickes.
Mr. SHADEGG. I happen to think it's one of the most stunning examples of an acknowledgment in writing of an attempt to buy influence and affect a decision on a basis that is not permitted in the law.
Mr. O'CONNOR. Whatever you think, you think. I'm telling you what I think. And why I wrote it.
Mr. SHADEGG. I yield back the balance of my time.
Mr. BURTON. The gentleman's time has expired. Mr. Barr of Georgia.
Mr. BARR. Thank you, Mr. Chairman. Exhibit C–106 is a quote from a Federal district court judge, Barbara Crabb indicating that, quote, ''There is considerable evidence that suggests that improper political pressure may have influenced agency decisionmaking.'' Exhibit C–104 lists one, two, three, four, five instances in which the Department of the Interior at levels below Secretary Babbitt made a decision or a finding that there was no reason not to approve the request of the tribe to expand their activities.
[Exhibit C–104 follows:]
INSERT OFFSET FOLIOS 328 HERE
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[The official committee record contains additional material here.]
Mr. BARR. Yet, on July 14, 1995, which is exhibit 328, the Department of the Interior does indeed disapprove the project, which is what the witness sought. Mr. O'Connor, I think your protestations of lack of influence are greatly exaggerated. Then, we have also, Mr. O'Connor, I believe, in exhibit 356–45 some activity, despite the fact that you believe that you have little influence in anything, on the very same day that the Department of the Interior went against at least five recommendations to approve, on that day they disapproved it, and you billed your clients additional moneys to outline fund-raising strategies.
Six days later, you also billed your clients to discuss fund-raising. Apparently, these discussions were also successful. You may believe that they were not, but apparently they were. Exhibit C–102 lists, I think, close to $360,000 of contributions that did then, indeed, come in from those very tribes who sought to disapprove—sought the disapproval of the Department of the Interior.
It seems obvious to me, as it did to a U.S. District Court judge, Mr. O'Connor, that there is indeed something here that is unusual. The tie-in between the DOI, that is, Department of the Interior disapproval in a matter that normally would be approved, and according to any number of other instances similarly situated, the Department did agree with its field offices and approve, in this case they did not, and their unusual action not in accord with their previous practices and not in accord with their lower offices immediately caused you to engage in fund-raising strategy discussions with Chairman Fowler of the DNC, Harold Ickes or at least your discussions regarding the, quote, ''necessity to followup with Harold Ickes,'' raises the interesting question if you had absolutely no influence with him and you had no discussions with him, why it would be necessary to followup.
Clearly, there is at least an implication that the reason you felt it necessary to followup was to raise moneys that may, and I use the word ''may,'' have been a quid pro quo for the unusual action by the Department of the Interior, which gave rise to the quote from Federal district court judge Barbara Crab, ''There is considerable evidence that suggests that improper political pressure may have influenced agency decisionmaking.'' Your friends on the other side of the aisle may believe that findings such as that by the district court judge fall into the category of trivial pursuit. If they do, then the category of trivial pursuit is vast indeed, as I believe your influence is, despite your protestations to the contrary.
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I do have one specific question, if I could, Mr. O'Connor. In exhibit 357–23, about which there was some discussion earlier, and this is your May 5, 1995, diary and work record, one of the few that your firm did furnish pursuant to a very broad subpoena that requested much, much more information, but on this one in particular about which we discussed earlier, also, there is a reference under a written No. 3 there to Hillary followed by a date and a number, of what appears to be thousands of dollars. What does that refer to, please, Mr. O'Connor?
Mr. O'CONNOR. Yes. That referred to a previous discussion that I had had with Terry McAuliffe about attending this May 18 luncheon, I believe, over at the headquarters of the Committee to Re-elect.
Mr. BARR. What did that have to do with the Hudson Dog Track matter?
Mr. O'CONNOR. It had nothing—the Hudson Dog Track are the comments up in No. 2.
Mr. BARR. You can see on both of those pages there, there are substantial portions that are redacted. One presumes that the reason those are redacted is they have nothing to do with the Hudson Dog Track.
Mr. O'CONNOR. That's right.
Mr. BARR. The implication then being that we should draw from this material that is not redacted has to do with the Hudson Dog Track matter. Otherwise, it would have been redacted. Would that not be a reasonable presumption on our part?
Mr. O'CONNOR. I don't think so.
Mr. BARR. You don't think so?
Mr. O'CONNOR. No. These comments——
Mr. BARR. Then why were the other parts redacted?
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Mr. O'CONNOR. The parts that were redacted were redacted because they dealt with other clients and other matters.
Mr. BARR. I thought you said that this did, also.
Mr. O'CONNOR. What?
Mr. BARR. You said that this, that this matter had nothing to do with the Hudson Dog Track matter, that is the reference to Hillary.
Mr. WAXMAN. Point of order, Mr. Chairman.
Mr. BURTON. The gentleman will finish this question and we will get on with Mr. Waxman.
Mr. BARR. You indicated, Mr. O'Connor, that is reference here, which is not redacted, the reference to Hillary, had nothing to do with the Hudson Dog Track.
Mr. O'CONNOR. That's correct.
Mr. BARR. OK. Other portions of your records that had nothing to do with the Hudson Dog Track have been redacted.
Mr. O'CONNOR. Yes.
Mr. BARR. My point is why should we not presume, then, since many other portions not having to do with the dog track issue were redacted, that these entries here, including the reference to the First Lady, did have something to do with the Hudson Dog Track?
Mr. O'CONNOR. All I can say to you about that, Congressman, is perhaps it should have been redacted, but it wasn't. Actually, this dealt with a fund-raising luncheon that Hillary Clinton was going to attend at the offices of the Committee to Re-elect, and that $5,000 figure, I believe, my recollection would be that either Hartigan or Terry said, if you want to attend that thing, see if you can get five contributions of $1,000 apiece from five sources. They didn't—it wasn't Indian sources. It was any source.
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Mr. BURTON. Mr. Waxman.
Mr. WAXMAN. Thank you, Mr. Chairman. Mr. O'Connor, you said you didn't talk to Vice President Gore, but you talked to his aides. Do you have any reason to think that Vice President Gore or his staff had anything to do with the denial of the Hudson Casino application?
Mr. O'CONNOR. None, that I know of. None.
Mr. WAXMAN. You wrote a letter on May 8 and a lot of people made a big to-do about this letter. This was a letter to Mr. Ickes you said, who supported it, the application, who opposed the casino. Mr. Ickes didn't write this letter. You wrote the letter.
Mr. O'CONNOR. I wrote the letter.
Mr. WAXMAN. It's a very strange thing to me to hear people criticize Mr. Ickes and the White House for a letter they didn't write. This was a letter you wrote.
Mr. O'CONNOR. I stand behind this letter, Congressman.
Mr. WAXMAN. Well, that's your letter, so you ought to stand behind it. Do you know what Mr. Ickes' reaction was to the letter?
Mr. O'CONNOR. No.
Mr. WAXMAN. If it is a letter you wrote him, you stand behind it, but to make him have to stand behind the accuracy of your letter to him is a very peculiar notion. No one in the White House or the Department of Interior, for that matter, is responsible for you writing to them; are they?
Mr. O'CONNOR. No.
Mr. WAXMAN. Since the chairman made a very blanket statement, that Mr. McAuliffe contacted Mr. Ickes on behalf of your clients, we have contacted Mr. McAuliffe, and we are going to submit his affidavit to this committee record. He has told our staff that he didn't contact anybody; he didn't contact Mr. Ickes; he didn't contact anybody at the Department of Interior. I don't know whether he ever talked to Mr. Havenick, but Mr. Havenick said he talked to him. Maybe he did and maybe he didn't. His statement is he didn't influence the decision.
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What is really involved is was there an improper influence in the decision by the Department of Interior. In fact, the people from the Department of Interior, including the young man who had the decision of power, who had gone to school with Mr. McAuliffe, said he hadn't talked to Mr. McAuliffe, none of them had talked to Mr. McAuliffe, so I just want that out there on the record, because it is so contrary to what the chairman said as an absolute statement of fact.
What we need are the facts, not innuendo, but the facts. And when we look at the facts, we find out that the decision was made by people who are career civil servants at the Department of Interior. And I will ask you again, do you have any reason to believe they made that decision on anything other than the merits?
Mr. O'CONNOR. I have no reason to believe that. Also, I never did get a report back from Mr. McAuliffe that he had made any call to Mr. Ickes.
Mr. WAXMAN. Well, today's testimony shows that there was political activity but no evidence of improper conduct at the Department of Interior, and, if anything, it is a good day for the White House, because when there was an attempt by you to influence them, they pretty much rejected it and said they weren't the person—the person who finally talked to you said they weren't going to talk to you because you were a lobbyist, so, if anything, the White House ought to be happy about this hearing. I don't know if that pleases the chairman, but the White House ought to be pleased about it.
I guess there are several truths that are coming out. We find that lobbyists sometimes take credit for things they didn't really do. We find that fund-raisers sometimes try to take credit for things they didn't do. And I am worried that the noose is tightening. Pretty soon they are going to find out that Members of Congress take credit for things that we didn't do. We certainly get blamed for some things we didn't do as well.
I thank you. You have been an excellent witness, very forthright. I appreciate your testimony. I think that you have given us a clear perspective that you did what you could as a lobbyist for your client, that what you did was what lobbyists do all the time, try to get your point of view across to the people that make the decision. And as far as you know, the people that actually made the decision may or may not have heard from those you were contacting, but they all say they hadn't heard from anybody.
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Mr. O'CONNOR. I have no idea of who they talked with or what they did; I read their opinion.
Mr. WAXMAN. Well, Mr. Chairman, I yield back the balance of my time.
Mr. BURTON. Are you ready for questioning, Mr. Scarborough? Would you yield to me?
Mr. SCARBOROUGH. Yes, I will yield to you.
Mr. BURTON. Mr. Scarborough yields to me.
Mr. O'Connor may have been ignorant of the law regarding the White House exerting influence over the Department of Interior in this area, but the White House was not ignorant about that. When they got these letters and contacts from various individuals, they very clearly knew they shouldn't be interfering in the decisionmaking process over at the Department of Interior, and I think that is the major question.
Now you indicated there are no facts to back up if Mr. McAuliffe was involved or did anything. Mr. Havenick, this is a fact, Mr. Havenick said last week under oath before the committee, and there were some statements that accompanied it that were sworn under oath, that Mr. McAuliffe said to him in the presence of others that he killed the deal, meaning the dog track at Hudson, WI. You may not agree with that but it was a fact in sworn testimony before this committee last week. Mr. Havenick said that, and he stands by that statement.
Now I have a couple questions I want to ask you in closing here.
On July 14, 1995, and this is exhibit 334, if you can put that on the screen. On July 14, 1995, the Interior Department rejected the Wisconsin Chippewa's application for a casino in Hudson, WI. Over the next 18 months, Mr. O'Connor's clients and others contributed nearly $360,000 to the DNC.
On September 14, 1995, Patrick O'Connor and his partner, Larry Kitto, circulated a fund-raising letter to their Native American clients, who benefited from this decision, I might add, seeking contributions for a session with the President. And here is what Mr. O'Connor wrote in his letter: ''As witnessed in the fight to stop the Hudson Dog Track proposal, the Office of the President can and will work on our behalf when asked to.''
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That is a pretty definitive statement. Very, very clear. When we
ask the Department or the Office of the President of the United States to help us out with something like the Hudson Dog Track matter, they will do it, and that is why you ought to kick in some money.
Now at least that is the way I look at it.
[Exhibit 334 follows:]
INSERT OFFSET FOLIOS 329 HERE
[The official committee record contains additional material here.]
Mr. O'CONNOR. Can I comment?
Mr. BURTON. Can you tell me what you meant by that statement?
Mr. O'CONNOR. Certainly.
Mr. BURTON. Tell me.
Mr. O'CONNOR. First of all, I did not make that statement.
Mr. BURTON. It is not in your letter?
Mr. O'CONNOR. It is not in my writing; I never saw the memo when it went out.
Mr. BURTON. Who wrote the memo?
Mr. O'CONNOR. It was written by a Mr. Kitto.
Mr. BURTON. Mr. Kitto, your associate?
Mr. O'CONNOR. Mr. Kitto was one of the people in 1995 that was working on this issue, yes.
Mr. BURTON. Mr. Kitto and you were working on the issue and he was an associate working on it?
Mr. O'CONNOR. Yes.
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Mr. BURTON. And your name is on the letter.
Mr. O'CONNOR. I did not put it there.
Mr. BURTON. Who did?
Mr. O'CONNOR. I assume Mr. Kitto did, but I never did.
Mr. BURTON. Did you ever discuss the dog track matter with Mr. Kitto?
Mr. O'CONNOR. I discussed that memo.
Mr. BURTON. Well, if you discussed this memo——
Mr. O'CONNOR. And he said that he had put my name on it.
Mr. BURTON. If you discussed it, you must have known the content of it.
Mr. O'CONNOR. It came up later when I was being deposed in the action pending in the Wisconsin State Court, and it came up at that time, and that is when I found out and first read it.
Mr. BURTON. And what did you say to Mr. Kitto at that time?
Mr. O'CONNOR. At that time, which was maybe a few months ago, I said, I don't recall ever signing or participating in that memo, and he said, You didn't. And I said, Well, my name is there. He said, Well, I put your name.
Mr. BURTON. Did he tell you why he put that name there without your permission?
Mr. O'CONNOR. No. No, he didn't.
Mr. BURTON. But you guys were in this together, all the way up and down the line, weren't you, in trying to get the casino stopped?
Mr. O'CONNOR. We worked together on this issue. I am only saying I did not participate in the drafting of that memo. I didn't know that it went out. I never read it until it was raised in the—when my deposition was being taken.
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Mr. BURTON. Did you ask any of the Indian tribes for money after the fact, though, for the DNC or other Democratic causes?
Mr. O'CONNOR. Did I ask for any of the tribes for any money after the——
Mr. BURTON. Decision was made.
Mr. O'CONNOR. After the application was denied?
Mr. BURTON. Right.
Mr. O'CONNOR. I don't recall if I did or not, but I would say this: Mr. Kitto was the person who worked with the Indian tribes, not me. Now whether or not on some particular event or issue I may have solicited some money, I don't believe so, but I may have.
Mr. BURTON. The St. Croix were your clients, though; were they not?
Mr. O'CONNOR. St. Croix was the client of the O'Connor & Hannan firm.
Mr. BURTON. And you were representing them.
Mr. O'CONNOR. I, as a contractual partner—not partner, I have a contract with them.
Mr. BURTON. The point is you were asking people all over Washington to help you out in getting access to Mr. Ickes. Obviously, you were representing them in trying to stop——
Mr. O'CONNOR. I am not saying I didn't participate in the representation, I certainly did, and I am proud of the fact that I did.
Mr. BURTON. But you had nothing to do with this letter saying we got the job done by going to the Office of the President and you ought to kick in some money?
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Mr. O'CONNOR. I did not write that letter. I had nothing to do with it.
Mr. BURTON. But your associate did.
Mr. O'CONNOR. Mr. Kitto wrote it. He was not an associate of our firm at that time, but he was working on the same issue.
Mr. BURTON. I wonder on what basis he would make that kind of statement in writing if he didn't have your approval.
Mr. O'CONNOR. You are perfectly right to think whatever you want, but I am telling you he did not have my approval, and I did not participate in that memo at all.
Mr. LEEPER. Mr. Chairman, if I could say on behalf of my client——
Mr. BURTON. Just one final question. Do you think the letter was appropriate or inappropriate?
Mr. O'CONNOR. The Kitto letter?
Mr. BURTON. Yes, the one we are referring to.
Mr. O'CONNOR. I don't view it as being all that inappropriate. I wouldn't have written it.
Mr. BURTON. Thank you, Mr. O'Connor.
Mr. LEEPER. If I might say, Mr. Chairman——
Mr. BURTON. Counsel, you are not under oath. If you want to confer with your client, this has been a standing procedure of the committee, that legal counsel can confer with his client, but as far as addressing the committee on any relevant issue, he has to do it through his client.
Mr. LEEPER. Very well, Mr. Chairman. I was just going to offer some information about your reference to the law, but I will make that available. I will submit that to the committee in writing.
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Mr. BURTON. That will be fine. Thank you.
Any other Members have any—Mr. Kanjorski, do you want to be recognized?
Mr. KANJORSKI. I will yield to Mr. Barrett.
Mr. BARRETT. I have a couple more procedural matters, if I could, Mr. Chairman.
Last week Mr. Havenick testified before this committee that Mr. Skibine, then-director of the Indian Gaming Management, told him and a group of tribal representatives that the Hudson application was denied because of political interference. According to Mr. Havenick, Skibine said, ''Look, don't blame me, we would have given it to you, it was the political people who turned it down.''
Mr. Havenick also testified under oath that several of their people heard the comment, including Rose Gurnoe and Margaret Diamond. Mr. Skibine emphatically denied having said this. He testified that he recommended that the application be rejected. Mr. Skibine's recollection was corroborated by the affidavits of five Department of Interior officials, who were also at the meeting. Clearly, someone was mistaken.
Following our hearing, there was a story in the Wisconsin State Journal, and it sheds a little light on this issue. According to the story, at least two of the people Mr. Havenick claimed were at the Wisconsin meeting, Rose Gurnoe and Margaret Diamond told the reporter they were not there. The article in the paper actually also included Mr. Ackley, from the tribe, although my understanding is Mr. Ackley, in fact, was there.
So what I would ask, Mr. Chairman, is I would ask unanimous consent that the relevant excerpt of Mr. Havenick's testimony in the January 23, 1998, article from the Wisconsin State Journal be inserted in the record. Mr. Chairman, I made a unanimous consent request there.
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Mr. BURTON. Without objection, so ordered.
[The information referred to follows:]
INSERT OFFSET FOLIOS 537 HERE
[The official committee record contains additional material here.]
Mr. BARRETT. Thank you.
One other request, if I could, Mr. Chairman. I received earlier today a letter from my constituent—not a constituent of mine, I should say a resident of Hudson, WI, a Mr. William Cramer, Ph.D. I don't know this man. It was to you. I don't know if it is the ordinary practice of the committee to include these in the record, and I have not really looked in depth at his letter, but I think it would make sense to have this included in the record as well. So I also ask unanimous consent that the letter from William H. Cramer, Ph.D., of Hudson, WI, dated January 26, be included in the record.
Mr. SOUDER. Reserving the right to object. I would like to see it.
Mr. BARRETT. We will get you a copy.
Mr. BURTON. Let's move on and we will hold that under the reservation.
Mr. BARRETT. Fine. And I yield back my time to Mr. Kanjorski.
Mr. BURTON. The gentleman yields back to Mr. Kanjorski, who yields back the balance of his time.
Who is next? Mr. Horn. Mr. Sununu.
Mr. SUNUNU. Good afternoon, Mr. O'Connor. On what day did you learn that the application had been rejected?
Mr. O'CONNOR. I believe that I heard that—pardon me, I am not talking into the microphone properly. I believe that I heard that either the afternoon of the 14th or the 15th. I was in Minneapolis, and one of my associates told me that the O'Connor & Hannan office had received a press release.
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Mr. SUNUNU. Who was it that told you?
Mr. O'CONNOR. I believe it would have been Mr. Corcoran.
Mr. SUNUNU. Well, I would like to ask you about exhibit 385. This is a fax that was sent from Heather Sibbison to Councilwoman Benjamin, and it says in part, it asks the councilwoman to destroy, dispose of the old version of the rejection letter. So there was obviously a draft of the rejection letter prior to June 14th that apparently had been sent to your clients.
[Exhibit 385 follows:]
INSERT OFFSET FOLIOS 330 TO 331 HERE
[The official committee record contains additional material here.]
Mr. SUNUNU. I guess my question——
Mr. LEEPER. We do not have exhibit 385 in our book.
Mr. BURTON. We will suspend just a moment. Can you get him exhibit 385 please, quickly?
Mr. SUNUNU. Clearly, from the exhibit, there is an indication that a draft of the finding, a draft of the rejection, was sent prior to July 14 to your clients, the St. Croix Tribal Council, as evidenced in this exhibit. My question would be, didn't your own client let you know that they had received an indication that a rejection had been written?
Mr. O'CONNOR. I have never seen either one of these documents I now hold in my hand, and my—as far as I can recollect, no client of ours, which would have been the St. Croix tribe, ever communicated this to me.
Mr. SUNUNU. So the tribe knew that it had been rejected prior to the 14th but they never bothered to inform you who were working on their behalf.
Mr. O'CONNOR. I am only saying I have not seen these, until today.
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Mr. SUNUNU. I understand that you haven't seen this, but did they communicate to you that they knew in advance of the decision?
Mr. O'CONNOR. Anyone from the St. Croix?
Mr. SUNUNU. Anyone at all, communicate to you——
Mr. O'CONNOR. No one at all ever communicated to me in advance of the decision of the Interior.
Mr. SUNUNU. No one prior to the 14th?
Mr. O'CONNOR. No one prior to the 14th.
Mr. SUNUNU. On June 2, 1995, Tom Corcoran, your partner, billed 1 1/2 hours for drafting a memo to Vice President Gore with regard to the Hudson Casino. We have not received a copy of this memo. Have you ever seen a copy of the memo being drafted to Vice President Gore about this issue?
Mr. O'CONNOR. I don't believe I ever saw it.
Mr. SUNUNU. Do you know what that memo dealt with?
Mr. O'CONNOR. No.
Mr. SUNUNU. Did it ask the Vice President to take any action?
Mr. O'CONNOR. Well, I never asked the Vice President to take any action, or communicate with him, either by phone or in writing.
Mr. SUNUNU. And you are not aware of any request that Mr. Corcoran may have included in this memo he drafted, and obviously billed time for?
Mr. O'CONNOR. No, and I find it strange that Mr. Corcoran—well, that is neither here nor there.
Mr. SUNUNU. I certainly find it strange that he would bill to draft this memo and then not be able to produce it for the committee.
I would like to ask you about the fund-raiser that you had on October 23, 1996, for the Vice President specifically. That was in Minneapolis, I believe, and we have a list of 20 attendees. Do you recall the event?
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Mr. O'CONNOR. It was in October 1996?
Mr. SUNUNU. That is correct.
Mr. O'CONNOR. Of what date?
Mr. SUNUNU. October 23, 1996, a fund-raiser with approximately 20 attendees.
Mr. O'CONNOR. Approximately——
Mr. SUNUNU. With the Vice President.
Mr. O'CONNOR. Yes, in October, in Minneapolis. What is the significance of 2,800?
Mr. SUNUNU. October 23, 1996, there were approximately 20 attendees.
Mr. O'CONNOR. Twenty?
Mr. SUNUNU. Twenty.
Mr. O'CONNOR. Yes, I recall that.
Mr. SUNUNU. Is it true that approximately 14 of the 20 people at the fund-raiser were opponents of the casino project?
Mr. O'CONNOR. I'm not sure. I would have to look at the names of the people, but 14 out of 20 doesn't sound right to me.
Mr. SUNUNU. Well, the information that the committee has is that there were 14, and I would certainly ask the chairman to make a notation and verify that we have it correctly stated in the record that 14 of the attendees were opposed to the application; 7 in particular were from the Shakopee tribe.
Do you recall how much money was raised at that event?
Mr. O'CONNOR. Say that last sentence.
Mr. SUNUNU. Do you recall how much was raised at the event?
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Mr. O'CONNOR. No, I don't recall offhand how much money was raised at that event. But it is a record with the Election Commission.
Mr. SUNUNU. Was the Hudson Dog Track proposal spoken about at the event?
Mr. O'CONNOR. No.
Mr. SUNUNU. Never came up in any conversation?
Mr. O'CONNOR. No, not in that event. Not with me.
Mr. SUNUNU. You talked earlier about a $50,000 goal that Mr. McAuliffe had set for you. When did he establish that as a fund-raising goal for you to raise that money with your tribal clients?
Mr. O'CONNOR. My recollection is that when McAuliffe met with me and Kitto, my recollection is that the purpose of the meeting was to discuss how much of a money—hard money, $1,000 a person, could be solicited or secured from Indians, not just our Indians, but Indians throughout the United States that Mr. Kitto has contact with.
Mr. SUNUNU. Mr. McAuliffe was aware you were working to try and kill the Hudson proposal?
Mr. O'CONNOR. Me?
Mr. SUNUNU. Yes.
Mr. O'CONNOR. Well, if I was killing it, I certainly didn't succeed in my efforts.
Mr. SUNUNU. To try and prevent the casino project.
Mr. O'CONNOR. Well, I never got to Ickes.
Mr. SUNUNU. But it wasn't killed. My point is Mr. McAuliffe was aware of your efforts.
Mr. O'CONNOR. McAuliffe was aware that I represented Indians that were opposed to the Hudson—the granting of that application, he was aware of that.
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Mr. BURTON. The gentleman's time has expired.
Mr. SUNUNU. If I could ask you to clarify one statement you made. You said you never got to Ickes. Didn't you state earlier today, however, that Mr. Schneider, your partner, spoke specifically to you saying, ''I did talk to Ickes and he said he was looking into it,'' that was your testimony earlier.
Mr. O'CONNOR. That is true.
Mr. SUNUNU. I would only make clear for the record that if one of your partners got to Ickes, and this group is a client of yours, then that in fact is getting to Mr. Ickes.
Thank you, Mr. Chairman.
Mr. BURTON. The gentleman's time has expired. Mrs. Maloney.
Mrs. MALONEY. Mr. Chairman, I yield my time to the ranking member.
Mr. WAXMAN. Thank you very much for yielding.
Mr. O'Connor, your lawyer wanted to tell us what the law was with respect to the White House contacting the Department of Interior. The chairman didn't want him to testify. Will you confer with your lawyer and tell us what your lawyer was going to tell us so we can get a clarification on that issue?
[Discussion off the record.]
Mr. O'CONNOR. I would say this, Congressman, there has been references made here about Judge Crabb's decision, and a lot of emphasis put on the fact and possibility that there may have been some implication of politics involved in this. I can say that Judge—the judge also said that it is perfectly proper for Members of Congress or for members of the executive branch, including the White House, to communicate with Interior. It is in that opinion.
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Mr. WAXMAN. So, in other words, the blanket statement that it is against the law for the White House to communicate in any way its views on a matter to the Department of Interior is not a correct statement.
Mr. O'CONNOR. In my judgment, no, and the opinion of the Judge says that, a Federal judge in the Federal litigation that is pending against Interior, in Federal district court in Wisconsin.
Mr. WAXMAN. It may be a moot issue because we have no evidence that the White House contacted the Department of Interior, but to say that it is against the law for them to contact the Department of Interior is a big leap.
Now you were asked about a letter written by John J. Duffy, Counselor to the Secretary on stationery from the United States Department of Interior. You didn't write that letter, did you? There is a letter that—I think Mr. Sununu asked you about this. There is a letter to Lewis Taylor, tribal chairman, St. Croix Tribal Council, from John J. Duffy, Counselor to the Secretary.
Mr. O'CONNOR. To the Secretary?
Mr. WAXMAN. Right.
Mr. O'CONNOR. No, I wasn't privy to any of that.
Mr. WAXMAN. Now as I understand it from depositions, the person who did write this letter is Ms. Sibbison who works for the Department of Interior, and we asked that she be permitted to testify but we were refused the opportunity to hear her testimony. But in her deposition she said this letter was sent by mistake, I haven't heard any evidence to the contrary, but to ask you about a letter that you didn't write, and then to try to attribute what is in this letter to you, is about as unfair as trying to attribute to Mr. Ickes a letter you wrote to him. I mean, it is almost like Alice in Wonderland, things don't have any connection.
It reminds me of the story of the man in New York who was standing with his stick and another man said to him, What is that stick for? And he said, This is an elephant stick. He said, An elephant stick, what does that mean? He said, Well, this is to keep elephants away. He said, How do you have a stick to keep elephants away? And he said, Well, do you see any elephants here?
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When you have an issue where there are two sides, both heavily lobbying, one side is going to win and the other side is going to lose and somebody can say it is their elephant stick that did it, it was magic that did it, or they can try to take the credit, whether it was due or not. But if it didn't influence the decision that the Department of Interior actually made, without any political pressure, that is really—the facts speak for themselves, just like it is hard to believe the elephant stick really kept the elephants away.
I think the gentlelady from New York was yielding to me so we could get a clarification of the loose things being said around this hearing, so we know what we should hold you responsible for and what we should hold other people responsible for. Members of Congress have to be responsible for statements they make, hopefully made with some sense that there is a commitment to accuracy.
Mr. Chairman, do you want me to yield any of my time to you?
Mr. BURTON. Yes, I would be happy if you would yield a brief moment to me.
We stand corrected on whether or not it was the law, but we will stick by what we said earlier, that Ms. Avent and Mr. Schmidt, both in memos 304 and 305, said very clearly that it was political poison to get into this, No. 1, and No. 2, it was totally improper for them to be interfering with the processes over at the Department of the Interior.
Mr. WAXMAN. Now when Mr. O'Connor called Ms. Avent, she said, I don't want to talk to you, I don't talk to lobbyists. It sounds like they did what they were supposed to do.
Mr. BARRETT. Will the gentleman from California yield?
Mr. WAXMAN. Yes.
Mr. BARRETT. I just want to concur, in going back to that memo, I think it was political poison, and what we saw is, frankly, attempts made by both sides to continue to have influence on this, it wasn't just Mr. O'Connor, but as we know, others were trying to have an influence, and in the end, the correct decision was made, the people of Hudson, WI, and the people of St. Croix, WI, did not want a Las Vegas style casino foisted upon their community, and that was what the decision was and that was the correct decision.
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Mr. BURTON. Mr. Souder has a consent——
Mr. SOUDER. I would like to come in on my reservation and ask a question. The letter appears to be very eloquent testimony against the casino, and I don't have any problems with that. My question is, the chairman had encouraged people to submit—who were here and didn't have a chance to talk, and late in this letter, he is particularly commenting on some testimony from other witnesses, and as long as the record shows there is a difference between depositions and sworn testimony and letters that people sent in, I don't have a problem with putting it in because I think it is a very heartfelt and well written letter, but there is a distinction between the witnesses under oath.
Mr. BARRETT. I would ask unanimous consent it be included and that it was a letter and it was not submitted under oath.
Mr. BURTON. Does that meet your concerns?
Mr. SOUDER. I withdraw my reservation.
Mr. BURTON. Without objection, so ordered.
[The letter referred to follows:]
INSERT OFFSET FOLIOS 332 TO 344 HERE
[The official committee record contains additional material here.]
Mr. BURTON. Mr. O'Connor, you have been a very patient witness and you have acquitted yourself well, although we may have some disagreements, and your counsel has been very patient. We appreciate your being with us today. Thank you, you are excused. We will get to the next panel in just one moment. Thank you, sir.
Mr. O'CONNOR. Thank you, Mr. Chairman.
Mr. BURTON. Earlier today I offered a unanimous consent to release all documents relating to the St. Croix Meadows Greyhound Race Park to be made publicly available. I did this because the committee will wrap up the hearings in this matter tomorrow and the public has a right to know the entire story. The Department of the Interior has raised some objections and we are accommodating the Department on two out of three of their concerns. Because of this, the minority has agreed not to request a recorded vote but has demanded the question be placed before the committee in the form of a motion, and not a unanimous consent request. With that understanding, I have a motion at the desk and ask unanimous consent that the motion be considered as read, and I recognize myself for 5 minutes in support of the motion.
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The Department of the Interior has said that some documents may be subject to the attorney-client privilege. Secretary Babbitt has not asserted the privilege, however. It is my judgment that privilege does not apply. Furthermore, these e-mails and letters concern the issue of whether there was detriment to the community, an issue that was the subject of our hearings last week. I believe the public has a right to know this information and balance for themselves whether the decision to deny the application was on the merits or not.
I now recognize Mr. Waxman for a brief statement.
Mr. WAXMAN. I want to speak in opposition to this motion. The Interior Department is a party to a Federal lawsuit in Wisconsin on the Hudson Casino issue. In that lawsuit, the Department withheld some documents written by its attorneys on grounds that they are subject to attorney-client privilege. They also withheld some documents prepared in anticipation of litigation on grounds of a work product doctrine.
Although the Interior Department has withheld these documents from its opponents in the Wisconsin lawsuit, it produced them to the committee with the expectation that the committee would consult with them before releasing the documents to the public. It is our understanding, based on the representation of the Interior Department, that the majority intends to release these documents without any consultation. The question of whether the attorney-client privilege or work product doctrine is one that will require close scrutiny of the author, recipient, and content of each document. The Interior Department should have an opportunity to present its views on whether any of these documents are legitimately privileged or protected attorney work product.
The majority apparently takes the position that its release of documents will not affect the Department's claim of privilege in the Wisconsin lawsuit, but this is an open legal question that the Department will likely have to litigate. The Department's claim of privilege and work product are matters that Judge Crabb can and ultimately will decide in the Wisconsin lawsuit. There is no reason the committee should interfere with the litigation and no reason why, at the very least, the committee cannot sit down with Interior Department officials and attempt to resolve this issue amicably, and for that reason we oppose the chairman's proposal to make these documents part of the record and make them public.
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We recognize the fact that this would probably be a party line vote, and the chairman has more Republicans to vote with him than we have Democrats to vote with me, in opposition, so rather than inconvenience all the Members and make them come here and cast a recorded vote, I will accept the chairman's verdict that he will win on a voice vote, even though as I look around the room at the moment, we probably have more votes on our side, but the chairman will presumably call this as a victory for those who want the motion and we will accept that result, but I am registering my opposition. I yield back the balance of my time.
Mr. BURTON. The gentleman yields back the balance of his time.
The question is on the motion. All those in favor will signify by saying aye.
Those opposed, signify by saying no.
In the opinion of the Chair, as you suggested, the ayes have it and the motion is carried.
I would now invite the second panel, Mr. Tom Collier and John Duffy, to approach the witness table.
Mr. KANJORSKI. I was just going to make the observation that apparently the elephant stick worked in this case.
Mr. BURTON. I am glad you still have your sense of humor after this long day.
Mr. BURTON. Mr. Collier and Mr. Duffy, please stand and raise your right hands, please.
[Witnesses sworn.]
Mr. BURTON. You are welcome to make an opening statement, each of you, if you so choose. We would like, if you could, to confine it to a 5-minute period. If it is longer than that, we will be happy to submit the rest for the record. Mr. Duffy.
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Mr. DUFFY. I have an opening statement. Is my microphone on?
Mr. BURTON. I believe your microphone is on. You might want to pull it closer.
Mr. DUFFY. How is that?
Mr. BURTON. You may need to pull them closer. Those don't pick up as well as the mics up here.
STATEMENTS OF JOHN J. DUFFY, ATTORNEY, STEPTOE AND JOHNSON; AND THOMAS C. COLLIER, ATTORNEY, STEPTOE AND JOHNSON
Mr. DUFFY. Thank you, Mr. Chairman.
Mr. Chairman, members of the committee, my name is John J. Duffy. I am currently an attorney in private practice in Washington, DC, at the law firm of Steptoe and Johnson. I served as Counselor to Secretary of the Interior Bruce Babbitt from late 1993 until my departure in July 1996. While I served in that position, I had some involvement with the Hudson Dog Track Casino application. There are several points that I would like to make about the application and about my recollection of the process that it took.
First, neither I nor anyone else to my knowledge was instructed by the White House to deny the application. I had no contact with anyone at the White House about the matter. I understand that my assistant, Ms. Sibbison, spoke with Jennifer O'Connor in Mr. Ickes office and assisted in responding to correspondence from Congress about the application. I had no information that any of the tribes were contributors to either party, if in fact they were.
Mr. BURTON. Excuse me, Mr. Duffy, if you can pull the mic directly in front of you a little closer, I don't know if Mr. Kanjorski hears you as well as he should. You need to pull it up close to you, as close as you can or move closer to the table or whatever.
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Mr. DUFFY. Is that better?
Mr. BURTON. That is a lot better.
Mr. DUFFY. OK.
Second, the decision to deny the Hudson application was clearly correct. The Indian Gaming Regulatory Act, which Congress passed in 1988, makes it clear that Congress did not intend to authorize Indian gaming on land acquired by tribes far from their existing reservations, except in very rare circumstances. I have appended the relevant statutory section to my statement. If tribes could easily open casino-type gaming facilities on land that they or others purchased far from their existing lands, the purposes of IGRA would be subverted. One of the purposes of IGRA was to limit Indian gaming to existing Indian land. Off-reservation gaming by an Indian tribe was intended by Congress to be a rare event. The Department did not believe that an application prepared by a Florida-based company on behalf of three tribes in Wisconsin for gaming off their existing reservations, and right in the middle of communities which opposed it, qualified for this exception.
Third, I believed, and I said so, that the decision denying the application should address its compliance with the Indian Gaming Regulatory Act. It was, after all, an application to take land into trust for gaming. I felt the Department should be clear that in our view the application did not meet IGRA's statutory requirements for an exception. I believed then, and I believe now, that it was important for the Department to articulate its views on the requirements for the exception. I also thought it important that the decision explain the importance which the Department gave to local opposition to off-reservation gaming by a tribe.
In conclusion, I do not believe that it was the intent of Congress in enacting IGRA to permit Indian gaming off existing reservations under circumstances like this one. The notion that the decision was made because of any political affiliation or donation is simply incorrect.
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Thank you very much.
Mr. BURTON. Thank you, Mr. Duffy.
[The prepared statement of Mr. Duffy follows:]
INSERT OFFSET FOLIOS 345 TO 350 HERE
[The official committee record contains additional material here.]
Mr. BURTON. Mr. Collier.
Mr. COLLIER. Mr. Chairman, in a letter to me dated January 9, you requested that I appear before the committee to discuss the decision by the Department of Interior to deny the Hudson application on Wednesday, January 28, 1998, and Thursday, January 29, 1998. I am happy to appear today. My involvement in the denial of that application was minimal and I am prepared to answer any questions you might have.
Mr. BURTON. Thank you, Mr. Collier.
According to the rule, the counsel for the majority is now recognized for 30 minutes.
Mr. WILSON. Mr. Duffy and Mr. Collier, good afternoon. Thank you very much for being here today.
Mr. Duffy, I believe you testified that you were counsel to Secretary Babbitt; is that correct?
Mr. DUFFY. I was actually counsel or to Secretary Babbitt, yes.
Mr. WILSON. You remained in that position until midway through 1996?
Mr. DUFFY. That is correct, yes.
Mr. WILSON. Mr. Collier, you were the chief of staff to Secretary Babbitt; is that correct?
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Mr. COLLIER. That is correct.
Mr. WILSON. Mr. Collier, in the months before you left the Department of the Interior, did you in fact have a number of additional meetings than you would usually have had with Native Americans?
Mr. COLLIER. I met with two or three tribes in the month just before I left the Department, that is correct, sir.
Mr. WILSON. I would like to put up on the screen, if I may, exhibit 376, and just for everybody's convenience I think that I have managed to pass out lists of exhibits that I intend to be referring to and they are in the small packet in front of you, which might make it easier than looking through the large book, but you will have two opportunities there. Exhibit 376 is a memo from Scott Dacey to Gary Jordan and I would like to refer to a section on page 3 of that memorandum.
At the time of writing this memo, Mr. Dacey was the chief lobbyist for the Onieda tribe, which is one of the opponents to the Hudson Dog Track application, and the memo states, ''Mr. Collier will be leaving the Department of the Interior at the end of June. He has been meeting with a number of tribes recently and says that he has been meeting with a number of tribes recently and says he is putting a report to the Secretary together concerning the future of Indian gaming. I expect he will be joining his old law firm of Steptoe and Johnson in Washington, DC, and his recent desire to meet with Indian tribes is his unique way of looking for future clients.''
Do you agree with Mr. Dacey's characterization in this memo?
[Exhibit 376 follows:]
INSERT OFFSET FOLIOS 351 TO 354 HERE
[The official committee record contains additional material here.]
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Mr. COLLIER. I do not.
Mr. WILSON. When you left the Department of the Interior, you did in fact go to the law firm of Steptoe and Johnson, is that correct, Mr. Collier?
Mr. COLLIER. Yes, I first went to work for the law firm of Steptoe and Johnson in 1974, and I have been employed by that firm with a couple of opportunities for Government service since that time, sir.
Mr. WILSON. And Steptoe and Johnson has a significant practice dealing with Native American issues; is that correct?
Mr. COLLIER. No, sir, it does not.
Mr. WILSON. Are there a number of individuals currently employed at Steptoe and Johnson that deal with Native American issues?
Mr. COLLIER. There are several, sir.
Mr. WILSON. Does Steptoe and Johnson have an office in Arizona?
Mr. COLLIER. We have an office in Phoenix, yes.
Mr. WILSON. Was that first established at the time of Governor Babbitt's conclusion of his tenure as the Governor of Arizona?
Mr. COLLIER. It was not; it was established before that time.
Mr. WILSON. Now, it is my understanding that sometime after you joined the law firm that you began to represent the Shakopee Mdewakanton Sioux; is that correct?
Mr. COLLIER. That is correct.
Mr. WILSON. When did you first begin to represent the Shakopee?
Mr. COLLIER. In the month of November.
Mr. WILSON. Mr. Duffy, you were the counselor to the Secretary at the time——
Mr. BURTON. Let me interrupt. Mr. Collier, when did you leave the Department of Interior?
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Mr. COLLIER. I resigned as chief of staff at the Department on the first of June, sir, and stayed there until the first of July, and I left the Department on the first of July.
Mr. BURTON. And when did you start representing the Shakopees?
Mr. COLLIER. In November.
Mr. BURTON. Thank you.
Mr. WILSON. And Mr. Duffy, when you finished your tenure at the Department of Interior, where did you go to work?
Mr. DUFFY. I joined Steptoe and Johnson at that time.
Mr. WILSON. So you went to work at the same place as Mr. Collier; is that correct?
Mr. DUFFY. That is correct.
Mr. WILSON. And it is my understanding you have also done some work for the Shakopee tribe; is that right?
Mr. DUFFY. I have worked on the matters, yes.
Mr. WILSON. Now just to put this in perspective——
Mr. BURTON. One second. When did you leave the Department of Interior?
Mr. DUFFY. I believe I left on July 17, 1996.
Mr. BURTON. Did you immediately go to work for the same law firm?
Mr. DUFFY. I did, yes.
Mr. BURTON. When did you start doing work for the Shakopees?
Mr. DUFFY. I don't recall. Several months later, I believe.
Mr. BURTON. Thank you.
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Mr. WILSON. Just to try and put this in perspective, if possible. Was the Shakopee tribe in the Financial Analyst for the Indian Gaming Management Staff at the Department of Interior, identified as the wealthiest of the opponents of the Hudson Dog Track application?
Mr. DUFFY. I don't know.
Mr. WILSON. In fact, did you read the memorandum prepared by Mr. Hartman on June 8, 1995?
Mr. DUFFY. I don't believe so, no.
Mr. WILSON. There is a section there, and if you could, please put up exhibit 317A–1, page 8, and there is a reference in this document, and, again, if you would turn to page 8.
Mr. DUFFY. I'm sorry, our TV doesn't seem to be working.
Mr. WILSON. I think it is probably too small to see anything anyways. It may be better if you can look at the documents that are provided in the small packet in front of you, and it should be the second memorandum there. Just look to the bottom of the first full paragraph on page 8.
Mr. DUFFY. Excuse me, what exactly are you referring to?
Mr. WILSON. Exhibit 317A–8. I will read this, and I have a followup question. At the bottom of the paragraph, it states: ''At $96.8 million, the per enrolled member profit at Mystic Lake is $396,700. Reduced by $8 million, the amount would be $363,900. The detrimental effect would not be expected to materially impact Tribal expenditures on programs under IGRA, section 11.''
Mr. Duffy, when you were at the Department of Interior, did you ever meet with any members of the Shakopee tribe or their representatives?
[Exhibit 317A follows:]
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INSERT OFFSET FOLIOS 355 TO 371 HERE
[The official committee record contains additional material here.]
Mr. DUFFY. Not to my knowledge. They may have been present in the February 8 meeting, and I think I have learned later that they were present in the February 8 meeting of the Congressman's office, Congressman Oberstar's office.
Mr. WILSON. Mr. Collier, do you have any recollection of meeting with either members of the Shakopee or their representatives or lobbyists prior to your leaving the Department of the Interior?
Mr. COLLIER. Mr. Wilson, I don't believe I have ever met with the members of the Shakopee community while I was employed at the Department of Interior.
Mr. WILSON. And I will address this question to both of you. In 1995, just before the Hudson application was denied, I will ask you, Mr. Duffy, first, did you know any of the opponent tribes, for example, the Onieda, the Shakopees, the Mille Lacs, the St. Croix, had made political contributions to the DNC or to Democratic State parties?
Mr. DUFFY. Before the application was denied, I had no knowledge about that.
Mr. WILSON. Mr. Collier?
Mr. COLLIER. Nor me.
Mr. WILSON. Were either of you aware the opponents were said to be strong supporters of President Clinton?
Mr. DUFFY. No.
Mr. WILSON. Did either of you speak with chairman—then chairman of the Democratic National Committee, Don Fowler, about any issues involving the Hudson Dog Track application?
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Mr. DUFFY. I don't believe I did, no.
Mr. WILSON. Mr. Collier?
Mr. COLLIER. Not to my recollection.
Mr. WILSON. If we could please put up exhibit 383 on the screen, and I will read you a section from the deposition, and I just wanted to get your comment on whether this refreshes your recollection at all.
Mr. Ducheneaux attended a meeting with then-Chairman Fowler, and, actually, I would like to ask either of you, you have both testified you have not spoken with Chairman Fowler about any issues relating to the Hudson matter, correct?
Mr. COLLIER. That is correct.
Mr. DUFFY. That is my recollection.
Mr. WILSON. Mr. Ducheneaux states, in the meeting he attended——
Mr. COLE. Excuse me, Counsel, do you have a page number?
Mr. WILSON. It is exhibit 383–1. I have 383–1, it is a two-page document. The first page says, ''Deposition of: Franklin Ducheneaux.'' It should be the third document in the packet of information you have.
Let me just read you the comment Mr. Ducheneaux made in characterizing his meeting with Mr. Fowler. He said that at the meeting, ''They indicated to Mr. Fowler that, at least the Minnesota tribes did, that they had been strong supporters of President Clinton in his race for President. They had engaged in getting out the vote efforts on their reservations. They had contributed to the Democratic candidates routinely, and they were outraged that the Bureau of Indian Affairs was not giving adequate consideration to their objections, and felt that, particularly since one of the leaders of one of the tribes was a Republican, and also the Republican Governor of Wisconsin seemed to be getting some special treatment.''
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Did any of the observations made by Mr. Ducheneaux—were they ever brought to your attention, Mr. Duffy?
[Exhibit 383 follows:]
INSERT OFFSET FOLIOS 372 TO 373 HERE
[The official committee record contains additional material here.]
Mr. DUFFY. I don't recall having any information about President Clinton. I do believe that at the February 8 meeting there was a statement made about some of the tribes being Republicans and some being Democrats.
Mr. BURTON. The law firm that you two joined is the law firm that I guess Mr. Babbitt was a partner in at one time, right?
Mr. COLLIER. That is correct.
Mr. BURTON. When did the Shakopees become a client of that law firm?
Mr. COLLIER. In November 1995.
Mr. BURTON. So they became a client of this firm after the decision was made?
Mr. COLLIER. That is correct.
Mr. BURTON. When did you go to work for the law firm?
Mr. COLLIER. I began working for the law firm in July 1995.
Mr. BURTON. Is it safe to say you were the one that solicited and brought the Shakopees to the law firm?
Mr. COLLIER. No, it is not.
Mr. BURTON. Why did they come to the law firm?
Mr. COLLIER. They approached me and asked me to represent them. I did not solicit their business.
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Mr. BURTON. They approached you?
Mr. COLLIER. That is correct, sir.
Mr. BURTON. But you did know of the declination of the application for the gambling casino by the ones that the Shakopees opposed prior to them coming to your firm?
Mr. COLLIER. Mr. Chairman, I have two comments with respect to your question. I am not certain that I actually did know that the application had been denied at that point. And, second, I never knew that the Shakopees were one of the tribes that were involved on either side of this issue. I wasn't involved in this issue enough to know who the tribes were that had an interest in it on either side.
Mr. BURTON. How about you, Mr. Duffy?
Mr. DUFFY. I'm sorry, what was the question?
Mr. BURTON. You knew, obviously, of this decision by the Department to decline the application of the tribes for the casino at the Hudson Dog Track site before you left.
Mr. DUFFY. Oh, yes.
Mr. BURTON. Did you have anything to do whatsoever with the Shakopee tribe coming as a client to the law firm?
Mr. DUFFY. None whatever.
Mr. BURTON. Did you have anything to do with the decision to turn down the site at the Hudson Dog Track?
Mr. DUFFY. I participated in the decisionmaking process.
Mr. BURTON. To what extent did you participate?
Mr. DUFFY. I was in the Secretary's office. I had what I have described as a monitoring role on the decisionmaking process.
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Mr. BURTON. But you didn't make the categorical decision to turn it down?
Mr. DUFFY. I did not make the decision, no.
Mr. BURTON. Mr. Skibine said in a memo which we referred to last week, said on page 5, section 4—do they have a copy of this memo?
Mr. WILSON. Yes, they do. It is in the packet of information in front of you, and it is marked 337–5.
Mr. BURTON. 337–5. Page 5, section 4, it says—this is Mr. Skibine talking in his memo—he says, ''It is true that extensive factual findings supporting the local communities' objections are nowhere to be found. DOI's position is that such extensive factual findings are not required, under section 20 of IGRA.'' And we go up to section 3. It says, ''See comments under number 3 above.'' Go up to No. 3 and it says, ''[t]he point here, and a very crucial one, is that the Department has to rely on the record and the opposition of local communities in the record, is the evidence relied upon. The Department,'' and then in parentheses, it says Duffy, ''made a decision that the opposition of the local communities was evident per se of detriment and that the Department was not going to require the communities for detailed evidence to back up their opposition.''
It sounds like you were very deeply involved in the decisionmaking process.
[Exhibit 337 follows:]
INSERT OFFSET FOLIOS 374 TO 381 HERE
[The official committee record contains additional material here.]
Mr. DUFFY. Could you identify for me what this memo is?
Mr. BURTON. This is a memo from Mr. Skibine. It is a memo to Scott Keep, the assistant solicitor, of the tribal government in Alaska, from George Skibine. It was analysis of factual allegations in plaintiff's appeal brief in Sokaogon Chippewa community. So Mr. Skibine pretty much says that you were the guy who was making the decisions.
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Mr. DUFFY. I don't think he says that at all.
Mr. BURTON. What do you think he said?
Mr. DUFFY. I think he indicates that I took a position on this, and I agree that I took a position with respect to whether or not we should use section 20 of IGRA, and I believe I said that we should also rely on section 20 of IGRA.
Mr. BURTON. But if you read down to section 4, he says, ''DOI's position is that such extensive factual findings are not required under section 20 of IGRA.'' So his position is it was not required, and yet when he refers to you, you said that was the basis of the decision.
Mr. DUFFY. I just have to read this here. I am going to read section 4.
Mr. BURTON. We will suspend for a moment while you read it because we want to make sure we get through all the questionning.
Mr. DUFFY. Yes, go ahead now, I am ready.
Mr. BURTON. Mr. Anderson signed the declination, but it has been reported to us in the committee that Mr. Skibine made the decision to decline the application, but in this document, it says, DOI's position, Department of the Interior's position, is that such extensive factual findings are not required under section 20 of IGRA. It says, see comments, No. 3 above. It goes back and says you made the decision on another basis.
Mr. DUFFY. No.
Mr. BURTON. It says the Department, Duffy, made a decision that the opposition of the local communities was evidence, per se, of detriment, that the Department was not going to require the communities for detailed evidence just to back up their opposition.
Mr. DUFFY. Let me tell you, if I may, Mr. Chairman, what I understand this to be. This I understand is Mr. Skibine's response to the specific allegations in the complaint, and what he is saying here is that in response to the allegation that there is no factual support, he is saying it is true that extensive factual findings supporting the local communities' objections are nowhere to be found. Then he goes on to say that the position of the—DOI's position is they aren't necessary, and he explains it further on by saying that the language of the Indian Gaming Regulatory Act does not require such findings as a legal matter, rather, it provides, and I am quoting here, ''That the Secretary must determine that a gaming establishment on newly acquired lands would not be detrimental to the surrounding community, the Department must find it is not detrimental to the surrounding community.'' And what he then says is absent conclusive evidence that there is no detriment, the Secretary can reasonably determine that facts have not shown that the gaming establishment would not be detrimental to the surrounding community. He is applying the test to the facts in the record and he is indicating that the Department cannot make a finding of no detriment.
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Mr. BURTON. The criterion that was used prior to this decision, though, as we understand it did not use that same set of rules.
Mr. DUFFY. That's the language in the statute.
Mr. BURTON. Just 1 second.
Mr. WILSON. Mr. Duffy, if I could just followup on a distinction you made there. You said that as a legal matter it was true, and you had read the statement, DOI's position is that such extensive factual findings are not required under section 20 of IGRA and you noted that as a legal matter that was a correct statement of fact. Does that represent a change of policy for the Department of the Interior?
Mr. DUFFY. I believe this is the correct interpretation of IGRA. What is done here is Mr. Skibine is clearly following the statute that the burden of determining detriment is not placed on Hudson. The burden of determining whether or not there is existing detriment is on the Department. The Department must make an affirmative finding of no detriment.
Mr. WILSON. But, Mr. Duffy, recognizing that you believe that this is a correct interpretation of this statute, does it represent a departure in the way the Department of the Interior had interpreted the statute?
Mr. DUFFY. I don't believe so.
Mr. BURTON. It is my recollection when Mr. Skibine was before the committee last week, we brought to his attention this was the first time this had been decided this way and Mr. Skibine said, well, he was not in charge of the Department at that time, in previous cases, and that they had been incorrect in the way they had applied the law in the past. So this was the first time that they had used this approach.
Mr. DUFFY. Mr. Skibine here is pointing out what is, in fact, the approach that he has used which follows the statutory language.
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Mr. BURTON. This is a departure from what the previous procedure had been.
Mr. DUFFY. I don't believe so.
Mr. BURTON. You're the counsel, weren't you, to the——
Mr. DUFFY. I'm a counsel to the Secretary. I'm not the Solicitor's Office, the Solicitor's Office that determines the law and how the law ought to be interpreted.
Mr. BURTON. Did you talk to anybody at the Solicitor's Office about this?
Mr. DUFFY. I believe I spoke to Robert Anderson who was then the Associate Solicitor of Indian affairs.
Mr. BURTON. In your conversations with him did you talk about this being a departure from previous procedures?
Mr. DUFFY. I think we talked about whether or not the interpretation that Mr. Skibine gave here was an appropriate interpretation, and I believe he said it was.
Mr. WILSON. Just following up on that, you mentioned that you spoke with Mr. Robert Anderson about this matter. Did he provide you with a legal interpretation?
Mr. DUFFY. I don't recall a specific conversation. I did review as part of one of the depositions that I have participated in a document which I believe indicated that there was a meeting at some time that I attended with Bob Anderson. But I don't have a specific recollection of that. But my understanding is that there was a discussion there of that subject matter. That's what the memorandum, I believe, says and that Mr. Anderson agreed with the position that Mr. Skibine has taken here.
Mr. WILSON. But notwithstanding the inability to recollect a specific date, do you have a general recollection that Mr. Anderson provided you some advice on this matter?
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Mr. DUFFY. That's what this memorandum says, yes.
Mr. WILSON. This is just something of clarification for the record and for our knowledge. Is Mr. Anderson a member of one of the tribes opposed to the Hudson application?
Mr. DUFFY. I don't know what Mr. Anderson's tribal membership is.
Mr. WILSON. Perhaps that's something that we can followup on later.
Although it does not involve an application for a gaming facility, are you both aware that the Shakopee tribe is currently involved in an application to take land into trust in Minnesota?
Mr. DUFFY. We don't represent them on that.
Mr. WILSON. You do not represent them? Are you aware or do you have any knowledge of that, Mr. Duffy?
Mr. DUFFY. I believe—someone in conversation indicated that to me, but not as a legal matter. I think that was just a part of a conversation.
Mr. WILSON. Mr. Collier, do you have any knowledge of that?
Mr. COLLIER. I have a vague recollection that there is such a matter pending, but I don't know which land or any of the details and we don't represent them at all.
Mr. WILSON. Just as a related matter, are you aware that this application is being opposed specifically and strongly by the State of Minnesota, the city of Shakopee and Scott County where the land is located? Do you have any knowledge of that, Mr. Collier?
Mr. COLLIER. I have no knowledge of that.
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Mr. WILSON. Mr. Duffy?
Mr. DUFFY. No.
Mr. WILSON. The followup question, I think, will get the same answer, but it has come to our attention that the area director of the Bureau of Indian Affairs has resisted meeting with any of the opponents to this application to take land into trust that the Shakopees have advanced and I was going to ask your opinion of that, but if you have no knowledge of the other facts, I think I'm probably going to not get very far with that. But you have no knowledge of that, Mr. Duffy, or Collier?
Mr. DUFFY. I do not have any knowledge, no.
Mr. COLLIER. No.
Mr. BURTON. I want to go back to this memo quickly. Mr. Skibine's memo. It says it is true that extensive factual findings to support the local community's objections are nowhere to be found. He's saying that there was no factual basis supporting the local community's objections. But then it goes up and says in section 3, the Department, Duffy, made a decision that the opposition of the local communities was evidence per se of the detriment. So he is saying in section 4 that it is true that extensive factual findings supporting the local community's objections are nowhere to be found. Yet, it says that you made the decision that the opposition of the local communities was evidence per se of detriment.
Mr. DUFFY. Congressman, what you are asking me here is to interpret Mr. Skibine's memorandum. All I can tell you is what I understood.
Mr. BURTON. He was the fellow that was in charge of this area. He says, very clearly, it's true that there was no factual findings supporting the local community's objections; it was nowhere to be found. Yet, it says that you made the decision that the opposition of the local communities was evidence per see of detriment.
On what basis did you make that? Because Mr. Skibine was in charge of that area?
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Mr. DUFFY. Congressman, Mr. Skibine says here, it is true that extensive factual findings supporting the local communities were nowhere to be found. Now, as a matter of fact, the decision very clearly indicates a series of factual findings with respect to detriment concerning both the local community and the local tribe. I think the emphasis here is on extensive factual findings.
Mr. BURTON. Mr. Duffy, I don't want to split hairs here, but there was a referendum, there were votes, the mayor was involved. At the very least it was split, the decision of the local communities, on this issue. You had several people testify before us that, yes, there was a vote 51 or 52–48 that the town approved it and that the mayor was for it.
Then, of course, there was a recall petition. There were just a lot of things that went on politically in this fight, but it was half a dozen of one and six of the other, so how did you come to the decision that there was evidence of detriment when there was that kind of a split in the community?
Mr. DUFFY. Because, Congressman, we took the approach with respect to evidence of detriment that we would look entirely at the concerns of the local elected officials. We realized that there was no way that we could make a determination based on referendum, some of which were paid for by private parties, material, letters which might have been generated, we couldn't figure out a question of whether or not the community was in favor or against something. So we looked at the local community.
The reason for that was that when you take land into trust, Congressman, you take it away from the local community, out of their regulatory jurisdiction, out of their control, and you give it to the tribe. So it seemed to us that we ought to focus our attention on the party that was losing control. They were the ones that we should consult when there was a determination.
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Mr. BURTON. Is this the first time this has been done?
Mr. DUFFY. It is the first time that what has been done?
Mr. BURTON. That land has been put into trust like this and casinos constructed outside of the tribal community.
Mr. DUFFY. No.
Mr. BURTON. So it has been done before, there is no question about that?
Mr. DUFFY. Yes, it has.
Mr. BURTON. The dog track was already there. The parking lot had 8,000 spaces. According to testimony last week, they were only going to utilize about 4,000 of those spaces. As far as additional problems for the community from a physical infrastructure standpoint, there really wasn't going to be any. They had already done an environmental impact study before locally, and the environment was not going to be hurt anymore because there wasn't going to be that many cars and people there. So the only question was: Was there going to be a casino there and was this casino going to be stopped because of the local community or because of the lobbying efforts of the Shakopees?
The thing that troubles me, Mr. Duffy and Mr. Collier, is that you were involved, especially you, Mr. Duffy, in the decisionmaking process. You leave the Department of the Interior, and you go to a law firm and you immediately start representing the tribe that benefited from your decision, and Mr. Collier represents the tribe that benefited from these decisions.
Mr. Collier was the chief of staff and you were one of the chief legal experts in the Department of the Interior. It sure looks kind of funny, wouldn't you say? Doesn't it smack of a little bit of an unusual situation where you're involved in the decisionmaking process and the tribe that benefits ends up hiring you as a legal counselor with a law firm that you go to represent?
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Mr. COLLIER. Mr. Chairman, if I may, since the Shakopee representation came to me while I was at the law firm of Steptoe and Johnson, I'd like to respond to your question.
Mr. BURTON. Sure.
Mr. COLLIER. I think there are two very important facts. The first one is that there is no connection whatsoever to any work I did at the Department of Interior, including my minimal involvement in the Hudson Dog Track issue, and my representation of the Shakopees. And just so there's no misunderstanding, let me say it again.
There's no connection whatsoever to that representation and work I did at the Department. And, second, I take issues of ethics and revolving door concerns very seriously. When I left the Department, Mr. Chairman, I received a briefing in detail from the ethics officer in the Department, who was a career official, that had been in that job during the previous administration and then was there during our administration, and from a member of the Solicitor's Office that has dealt with these issues for an extensive career. I returned to my law firm. And just to make sure there wasn't any misunderstanding with respect to that, I asked them to put the essence of the briefing they had given me in writing, and they sent that to me in a letter.
I, then, took that advice to the executive committee of my law firm and discussed the matter with them. On the executive committee was our ethics counsel, Bob Jordan, who is the ex-president of the D.C. Bar Association, the ex-chairman of the D.C. Bar Association Ethics Committee.
Mr. BURTON. You don't have to go into this long litany. I understand where you are coming from.
Mr. COLLIER. Mr. Chairman, you have been making——
Mr. BURTON. I know. But let me just ask you one final question.
Mr. COLLIER. If I may finish my answer, Mr. Chairman.
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Mr. BURTON. You don't need to go into this long litany. I'm running out of time.
Mr. COLLIER. This is very important to me.
Mr. BURTON. I understand it is.
Mr. COLLIER. I want to make sure you appreciate that my representation of the Shakopees does not violate any ethics rule, it doesn't violate any statute. In fact, Mr. Chairman, there is a specific statute that allows that representation and that specific statute in certain circumstances requires you to inform the Department before you take on such representation. That does not apply in this situation. And yet I took an extra step under the law to inform the Department. And so the two points I want to make sure this committee understands without any doubt is that there is no question as to the legality or the ethical appropriateness of my representation of the Shakopee tribe; and, second, there is no connection whatsoever to work I did at the Department and my representation of the Shakopees.
Mr. BURTON. Because of your lengthy answer, I will take the liberty of just taking a little bit more time and I will give my colleague extra time, if he requires, as well.
First of all, the Shakopees were the beneficiary of the decision made by the Department of the Interior.
Mr. COLLIER. Mr. Chairman, I was not at the Department of the Interior when that decision was made.
Mr. BURTON. I understand.
Mr. COLLIER. I did not know the Shakopees were involved in that decision at all.
Mr. BURTON. How did the Shakopees come to ask you to represent them?
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Mr. COLLIER. The Shakopees were interested in counsel on several matters and they sought references from several people throughout the country. One of those referred them to me. They came and met with me. We had a discussion about those issues, and they decided to retain me.
Mr. BURTON. Let me read to you what—this was a question put to Mr. Babbitt. Does it concern you if only in appearance that Mr. Collier and John Duffy, after they had left the Department, worked on behalf of one of the tribes that opposed the Hudson Casino application at your former law firm? Mr. Babbitt said, although Congress has explicitly exempted such representation from the employment restrictions imposed on former Federal employees, it is not something that I condone nor something that I would ever do. So your former employer thinks that this gives the appearance of impropriety. The thing that concerns me and we are not here to try to impugn anybody's integrity, but we——
Mr. COLLIER. I appreciate that, Mr. Chairman.
Mr. BURTON. But we are trying to get the facts out and the facts are that Mr. Duffy was involved in the decisionmaking process. You were the chief of staff. A very, very wealthy tribe, and other tribes, benefited by this decision, and you went to work and in a short period of time thereafter, both you and Mr. Duffy are the beneficiary of that decision because you are now representing the Shakopees. Now, although there may not be anything legally wrong with it, the appearance of impropriety is very real even according to Mr. Babbitt, the Secretary of the Interior. With that, I will yield to Mr. Waxman.
Mr. COLLIER. Mr. Chairman, may I respond to your comment, please, sir?
Mr. BURTON. Sure you may respond.
Mr. COLLIER. With all due respect to my former boss, the Secretary of the Interior, since these matters came up, my counsel has advised me that I shouldn't discuss anything with him, and I have not. I don't believe that Secretary Babbitt, frankly, is fully aware of all of the facts with respect to my representation of the Shakopees, and I think that his comment reflects the fact that he's not fully aware of those facts.
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Second, if I may, I want to reiterate that there is no connection whatsoever to any work I ever did at the Department of Interior and my representation of the Shakopees. Mr. Duffy was hired by my firm more than a year after that decision was made. I was not involved in this decision at the Department of Interior. I had left the Department when this decision was made.
Mr. BURTON. Mr. Waxman.
Mr. WAXMAN. Thank you, Mr. Chairman. Mr. Collier, you described a lengthy process by which you had established the ethics process to move over to this law firm. Mr. Duffy, did you go through a similar procedure?
Mr. DUFFY. Yes, a relatively similar procedure, that's correct.
Mr. WAXMAN. Mr. Duffy, the applicant tribes and Fred Havenick testified last week that they believed that this application was going to go through, until politics got in the way. It is my understanding that all off-reservation casinos such as Hudson are closely scrutinized by the Department before they are approved; is that correct?
Mr. DUFFY. That's correct.
Mr. WAXMAN. Was the decision to deny the application based on the recommendations of George Skibine and the career gaming staff?
Mr. DUFFY. That's correct. And the decision was made by Mr. Anderson.
Mr. WAXMAN. In your judgment, was their recommendation based on the merits?
Mr. DUFFY. Absolutely.
Mr. WAXMAN. Mr. Collier, let me ask you the same question. Is it your understanding that the application was rejected based on the recommendations of career Department employees?
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Mr. COLLIER. Congressman, I had left the Department by the time this decision was made and I don't have any firsthand knowledge as to any basis for this decision.
Mr. WAXMAN. Mr. Duffy, did you ever pressure the Department's career employees to recommend that the application be rejected?
Mr. DUFFY. No, I did not.
Mr. WAXMAN. And you, Mr. Collier, did you ever pressure the Department's career employees on their recommendation?
Mr. COLLIER. No, Congressman, I did not.
Mr. WAXMAN. Mr. Duffy, did you ever receive any instructions or opinions on the Hudson application from Harold Ickes or anyone at the White House?
Mr. DUFFY. No.
Mr. WAXMAN. And the same question to you, Mr. Collier.
Mr. COLLIER. I did not, Congressman.
Mr. WAXMAN. Mr. Duffy, what about the DNC or the Clinton/Gore campaign, did anyone from those organizations ever express an opinion to you about the Hudson application?
Mr. DUFFY. I don't believe so, no. No.
Mr. WAXMAN. And Mr. Collier.
Mr. COLLIER. No, Congressman.
Mr. WAXMAN. Let me address the next question to both of you. Did Terry McAuliffe ever speak to you about the Hudson application?
Mr. DUFFY. No.
Mr. COLLIER. No.
Mr. WAXMAN. Again, to both of you, do either of you have any knowledge that suggests that the decision to reject the application was made in return for promises of political contributions from the opponent tribes?
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Mr. DUFFY. None whatever.
Mr. COLLIER. Nor me.
Mr. WAXMAN. Do either of you have any knowledge that the Department's decisionmaking process was tainted by any improper political influence?
Mr. DUFFY. None.
Mr. COLLIER. No.
Mr. WAXMAN. It seems to me a legitimate concern that you might have for the best interests of the Indian tribes was the effect that approval of off-reservation gaming might have on public support in Minnesota and Wisconsin for on-reservation gaming. In short it is possible that if the Department approved a series of off-reservation exceptions, the tribes could lose the benefits they currently have for the policy of on-reservation gambling. Was that part of your thinking, Mr. Duffy?
Mr. DUFFY. That's absolutely correct, Congressman. That's a part of my thinking, yes.
Mr. WAXMAN. And Mr. Collier? Do you remember?
Mr. COLLIER. Congressman, I don't recall specifically on this issue having that concern, but on this issue as a matter of general policy, yes, that was a concern.
Mr. WAXMAN. It was stated that Mr. Skibine told us last week that he didn't know about the precedents of these off-reservation issues, as I recall his testimony, and we can check it out, because there is a transcript, that he, as I recall his testimony, that he didn't look at the past precedents because he didn't think he needed to, to make a decision in this case. There have been some decisions in the past where off-reserves gaming has been approved; isn't that accurate, Mr. Duffy?
Mr. DUFFY. I believe that's correct, but I don't have a detailed knowledge of them.
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Mr. WAXMAN. Well, in one case in Connecticut, the land was contiguous to the reservation and was approved for a trust.
Mr. DUFFY. Which case was that?
Mr. WAXMAN. I think it was in Connecticut. I don't recall.
Mr. DUFFY. Was it the Pequot case?
Mr. WAXMAN. Yes.
Mr. DUFFY. That was not a gaming case. That was a pure land in trust case. It had no gaming implications whatever.
Mr. WAXMAN. Are you familiar with a decision in Oregon on an off-reservation trust?
Mr. DUFFY. Are you talking about the Siletz case?
Mr. WAXMAN. Yes, the Siletz tribe of Oregon.
Mr. DUFFY. Yes. That was made in the prior administration, I believe.
Mr. WAXMAN. As I understand the issue there, the tribe filed an application with the Bureau of Indian Affairs area office seeking to have land taken in trust for gaming purposes. The 10-acre parcel that was to be taken in trust was located in Salem, OR, approximately 40 miles from the tribe's reservation.
On July 14, 1992, and October 21, 1992, the BIA area office forwarded to the BIA central office its written recommendation for a departmental finding that, one, the requirements for taking the land into trust under part 151 had been met and, two, under section 20, taking land in trust for gaming would be in the best interests of the tribe and would not be detrimental to the surrounding community.
Mr. DUFFY. I don't know the details of that decision, Congressman.
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Mr. WAXMAN. Well, I point that out because there is this question of whether all off-reservation gambling requests had been approved and suddenly this one was disapproved. I don't think that's the historical record.
Mr. Collier, did the Shakopees make a contribution to the DNC?
Mr. COLLIER. I'm aware of one contribution that they made, Congressman.
Mr. WAXMAN. And that contribution was for $20,000, not $50,000 as has been alleged?
Mr. COLLIER. The contribution that I worked with them on was for $20,000, that's correct.
Mr. WAXMAN. Did you solicit that contribution?
Mr. COLLIER. I did not solicit the contribution, Congressman. They approached me and asked some questions of me with respect to that contribution, and I responded to those questions and gave them the assistance they needed.
Mr. WAXMAN. What did they ask you?
Mr. COLLIER. Congressman, it's difficult to communicate privileged communications between my client and myself. It is inappropriate to do so. But let me tell you what my goal was with respect to the work I did for the Shakopees on this contribution, and it was simply to make certain that the contribution was done in a proper and legal fashion.
Mr. WAXMAN. Do you know, Mr. Collier, of any linkage whatsoever between the Shakopee's decision to contribute to the DNC and the Hudson Casino decision?
Mr. COLLIER. I'm not aware of any information whatsoever that would lead me to believe that there was any connection between that contribution and the decision on the Hudson Dog Track.
Mr. WAXMAN. For the record, we were able to get the transcript from Mr. Skibine's testimony. He said, as the head of the office, the gaming office—this was part of the question put to him. ''As the head of the office, the gaming office, which you then were, and with your 20 years at Interior, can you give me today any examples of which an application was rejected, not under Section 20, but under Section 465?'' And Skibine answered, ''I cannot. I would—I cannot really talk about matters that occurred before I became the gaming director, so I can't answer that question. There may be some. There may not be.'' And then Mr. Cox was asking the questions, ''Do you know of any?'' Skibine: ''Specifically, I cannot recall of any.'' Cox: ''In connection with preparing this, did you find any precedent?'' Skibine: ''No. This decision was made on the merits of this application.'' That was Mr. Skibine's testimony.
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I want to put on the screen an excerpt from Mr. Duffy's deposition which was taken on January 26, 1998. Mr. Duffy said, ''I don't believe there's a shred of evidence that Mr. Ickes ever talked to the Secretary about this or the Secretary ever talked to Mr. Ickes about it.''
Is that a correct statement, Mr. Collier?
Mr. COLLIER. As far as I know, that's absolutely right.
Mr. WAXMAN. Excuse me, this was Mr. Duffy.
Mr. DUFFY. Yes, it is, Congressman.
Mr. WAXMAN. You said it and you still stand by it.
Mr. DUFFY. Absolutely.
Mr. WAXMAN. Then we had a colleague of ours, Mr. Horn, at a deposition. Again, a deposition is not like this, a public hearing with an audience, even a television camera. A deposition is in a room with a reporter taking things down. And Mr. Horn said, ''Let me ask a question. One of your sentences was, I don't believe there is a shred of evidence that Mr. Ickes ever called the Secretary. Was that because it had been shredded at either end, between the White House and the Interior Department?'' And then Mr. Duffy, your answer was, ''No.''
I wasn't there. I don't know if Mr. Horn asked that as a joke. Do you recall whether it was asked as a joke or was it sarcasm?
Mr. DUFFY. I think it was the latter. Sarcasm.
Mr. WAXMAN. I just point this out because I think that people who come in and give their depositions shouldn't be bullied by Members of Congress and I guess it's easy to bully people when you're in a little room and thinking that no one will pay attention. It also indicates that whatever your answer is, it doesn't make any difference.
The decision, in Mr. Horn's mind and others, is that there was some wrongdoing, no matter the fact that all the people made the decision on the merits, without political interference, that is their sworn testimony, and we really don't have anything to contradict those clear and unequivocal statements.
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Mr. Chairman, I would just like to conclude by reiterating the comments I made during my opening statement last week, before I yield to others. These questions were necessary because we have reached a point in the committee where individuals have to come before the committee to disprove baseless allegations that have been made against them. We are no longer in the normal situation where wrongdoing has to be proved by those making the allegations. No one has been able to prove, or even make, to me, a credible showing that there was any wrongdoing. And it seems to me those who make the accusations should bear that burden.
One last question, Mr. Duffy, just to clarify it. I cannot keep straight in my mind what the basis was, that Mr. Skibine wanted it turned down, the application, or what you suggested be the basis for turning down the application, but to me it doesn't sound like it makes a lot of difference, because we end up with the same result. Isn't that accurate?
Mr. DUFFY. I think that's exactly accurate. That's exactly correct. And it was really a technical matter within the Department of the Interior and not the question of the substance of the decision, but rather a technical question as to how we would express it and under what sections we would make our determination.
Mr. WAXMAN. Some people have suggested to me that the basis that you suggested for rejecting the application might be easier to challenge in court than the one that Mr. Skibine suggested. Do you know whether that is true?
Mr. DUFFY. I don't have an opinion on that, because we were not thinking about whether or not one was easier or one was harder to challenge in court. The underlying decision under 465 was an appropriate mechanism. Because, we would not under our approach have taken this land into trust no matter what the reason was it was going to be used for, this far away from the tribe's reservations. And I have repeatedly stated that, that this is a very long distance from their reservation.
The policy of the U.S. Government has been relatively clear on this, that as you get further away from the tribe's reservation, the impact that it will have on the local community rises in importance and the objection of the local community rises in importance versus land in trust close to the reservation. That is true regardless of whether it is gaming or not gaming. So Mr. Skibine was correct, that we could have made that decision alone. But I thought that it also should have been made under section 20, and that was my recommendation.
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Mr. WAXMAN. I want to yield to Mr. Kanjorski.
Mr. KANJORSKI. Thank you very much, Mr. Chairman.
Let me clear up a few points here that we will be facing tomorrow and will not have the opportunity of asking them tomorrow when the Secretary is here. It is my understanding of your testimony, Mr. Collier, that you left the Department prior to this decision having been made and you participated in no way in the making of this decision. May I ask you if you know whether Secretary Babbitt in any way had a direct impact on this decision or participated in any direct way on this decision?
Mr. COLLIER. Not while I was at the Department, sir.
Mr. KANJORSKI. And you left within 2 weeks prior to the decision being filed.
Mr. COLLIER. I did, although for the month of June I was much less involved in these things. I had resigned my job as chief of staff. So really there is a 6-week period there that I was out of the loop.
Mr. KANJORSKI. Mr. Duffy, a lot of questions have been raised on this memorandum. Perhaps, if I could understand, and correct me if I am wrong, it was the burden of the applicant to establish that there wouldn't be a detriment on the community. It was not the burden of the community to prove there was a detriment; is that correct?
Mr. DUFFY. That's my understanding. My understanding is the way this is phrased, it is the Department's obligation to determine that there's no detriment.
Mr. KANJORSKI. So that the minuscule amount of evidence that would be on the record to indicate detriment would be sufficient for the Department not to conclude that there was no detriment?
Mr. DUFFY. That's what I believed the decision actually says.
Mr. KANJORSKI. You used some legalistic terms, at least in this clause, that you took the position that since there was opposition expressed on the record, although not overwhelming or extensive factual information, since they had made an opposition and since there was some evidence of opposition, that would be evidence per se of detriment.
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Mr. DUFFY. I took the position, Congressman, that, in fact, I thought that opposition alone would be sufficient. That was my position, OK? Now, there was a considerable debate about that. And the ultimate decision is not that. That is not the ultimate decision of the Department. The ultimate decision of the Department rests on detriment, detriment to the local community and detriment to the local tribe, in this case the St. Croix Tribe, so there is detriment.
Mr. KANJORSKI. But if your interpretation of the weight of evidence necessary were a question, you then rather qualify by saying if the court doesn't agree with you, they'll reverse the opinion.
Mr. DUFFY. That's correct.
Mr. KANJORSKI. And that's up to a court and it's in court now, I assume that being one of the issues.
Mr. DUFFY. The question of whether that is adequate is a question initially for the Solicitor's Office and they have agreed with it.
Mr. KANJORSKI. Right. And on that position we have heard a lot of questions here from both sides about precedent. As I understand, this has nothing to do with stare decisis or common law, this is administrative law policy, and that each application is on its own merits and the facts particularly of that application; is that correct?
Mr. DUFFY. That's correct.
Mr. KANJORSKI. Whether all prior requests were made and granted or whether all prior requests were made and not granted would have no impact on how this particular decision would be decided; is that correct?
Mr. DUFFY. I'm not sure that's correct. I think there is a requirement for us to explain how we are deviating from policy if we have deviated.
Mr. KANJORSKI. It would be in deviation from policy but not pass conclusions on applications. It is not a matter of stare decisis here.
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Mr. DUFFY. Not technically, no.
Mr. KANJORSKI. You have been named as, quote, the representative of the Secretary that had some impact on this decision. As I understand your testimony today, you absolutely deny taking part in any of the substantive part of this decision but were only effective in the process, how the decision should be addressing these particular sections, section 20 or section 365 or 465?
Mr. DUFFY. I think I said that I participated in the decisionmaking process. I made recommendations as to what I thought the decision ought to be and how we ought to treat the matter, in the sense that I made a recommendation, for example, that we deal with this under section 20. But I did not make the decision and the initial decision, recommended decision, was made by Mr. Skibine.
Mr. KANJORSKI. Did that decision and recommendation in draft form get created before you stepped into the picture to polish the decision and see that it comported with what you thought the legal requirements would be?
Mr. DUFFY. My sense of the timing is that I received a decision recommendation from Mr. Skibine that had already been made, yes, Congressman.
Mr. KANJORSKI. Do either one of you know any involvement of Secretary Babbitt in the decision in this matter? And, second, do either of you know of any political influence or influence as a result of political contributions that affected this decision or imposed the Secretary into this decisionmaking process?
Mr. DUFFY. I don't know of any involvement of Secretary Babbitt in making this decision, no. And I know of no political influence on this decision. This decision was made on the facts, on the merits. It's obviously a good decision, and I am constantly amazed that this is not obvious to all parties.
Mr. KANJORSKI. Mr. Collier.
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Mr. COLLIER. I agree entirely with Mr. Duffy's answers.
Mr. KANJORSKI. Maybe I'll just go off the record in noting that the chairman is not an attorney by profession. Let the record show that it is not unusual, Mr. Chairman, for an attorney to be retained by opponents in a prior case or by disappointed parties in a prior case or members of a jury that may have witnessed that attorney in action. As a matter of fact, prior to the right of advertising that was very common, how an attorney or a law firm built a practice. To imply that there is some improper connection with gaining a client because of your demonstrated expertise as a counselor would do a great disservice to the legal profession.
I think, Mr. Collier, I'm going to ask you, is that what you're trying to show, that in every instance you used every method to determine what would be ethical, and you went beyond the path of notifying the department that you were going to undertake this representation because you knew it was an Indian tribe and your prior activities in the Department of Interior, you had some effect on Indian tribes; is that correct?
Mr. COLLIER. Mr. Congressman, you have said it much better than I did. I agree with your characterization.
Mr. KANJORSKI. Mr. Duffy, from your standpoint, I don't know, are you both at the same firm now?
Mr. DUFFY. We are, Congressman.
Mr. KANJORSKI. And I assume that is a rather long-existing firm of high integrity, both in Washington and in Arizona; is that correct?
Mr. DUFFY. Absolutely, Congressman.
Mr. WAXMAN. Mr. Kanjorski, if you would like to complete that last question, because I wanted to yield to somebody else.
Mr. KANJORSKI. More than happy, Mr. Chairman.
Mr. WAXMAN. Mr. Barrett.
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Mr. BARRETT. Thank you, Mr. Chairman.
Mr. Duffy, you were saying earlier that there is a relationship between the distance between the reservation and the site of the hoped-for casino; is that correct?
Mr. DUFFY. Yes. I was talking about the underlying statute of taking land into trust, section 465 and the regulations under that which are found in 25 C.F.R., section 151. There it clearly indicates that to the extent that the request for trust land is distant from the tribe's reservation, greater weight should be given to the objections of the community in which the new trust land would be located.
Mr. BARRETT. Is that in the statute or is that in——
Mr. DUFFY. It's in the regulations. It's written in the regulations.
Mr. BARRETT. So in this case, again, how far from the reservations was the site, was the dog track?
Mr. DUFFY. I believe it was 188 miles from one reservation. The closest I think was 85 miles. It was 85, 165 and 188 miles from the 3 reservations.
Mr. BARRETT. Just for my own benefit, is there any language that talks about crossing State lines? I know that there was the one case in Nebraska and Iowa, but let's say that there was a spot here in Virginia and you had a Wisconsin tribe that wanted to move to have Indian gaming there. Is that something that would be permissible under IGRA or under the Federal laws?
Mr. DUFFY. In section 151, the one I just previously referred to which discusses the distance, also discusses the question of State lines and indicates that's another negative factor if the land in trust, putting aside gaming now, just an ordinary land-in-trust application, if it would cross State lines.
Mr. BARRETT. But hypothetically, you could have a situation where an Alaskan tribe or a Wisconsin tribe could move into another State?
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Mr. DUFFY. Hypothetically, it could move. The Pine Ridge Sioux, for example, one of the poorest tribes in the country, could establish a gaming facility in, say, Knoxville, TN.
Mr. BARRETT. I was reading a report that quoted Mr. Babbitt last week, that talked about the different tensions within the Department, and I don't know if ''tensions'' is the right word but the debate. Is there a difference of opinion as to the strength of local opposition between the Bureau of Indian Affairs and the Department of Interior staff?
Mr. DUFFY. Not on this decision, I don't think.
Mr. BARRETT. Not on this decision but I'm talking—no, I understand there isn't on this decision, but just on the weight that is given to a local community's opposition. I think of the Bureau of Indian Affairs as being more of a proponent of the wishes of the tribes and not necessarily that being the case for the Interior. Am I wrong in my interpretation there?
Mr. DUFFY. Well, I think—I don't think that that's entirely fair, no, Congressman. I think that the Department of Interior as a general, as a whole, has an obligation to Indians and that obligation is effectuated by the Bureau of Indian Affairs. Obviously one of the reasons the Department of Interior has a central policymaking organization in the Secretary is for him to make some of these decisions from a higher plane, or from a broader perspective.
Mr. BARRETT. You were a proponent of making this decision under section 20; is that correct?
Mr. DUFFY. Yes, I was.
Mr. BARRETT. And that is the taking land into trust provisions?
Mr. DUFFY. That is the provision with respect to gaming. I fully supported Mr. Skibine's idea that this application should be rejected simply on the grounds of section 465, on the grounds that it was not an appropriate acquisition of trust land this far from the reservation with these many problems over the strong objection of the community. So that's 465 alone. I thought we should also consider and examine this under section 20.
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Mr. BARRETT. Can you tell me what the legal standards were, at the time that decision was made, for challenging each of those decisions?
Mr. DUFFY. When you say the legal standard, do you mean the process by which they would be challenged or what was the review standard?
Mr. BARRETT. The review standard.
Mr. DUFFY. I think the review would be arbitrary and capricious with respect to section 20. It's a little unclear what the standard was under 465. At the time the Solicitor took the position that the Department had unreviewable discretion under section 465 and therefore it could make any decision it wanted.
Mr. BARRETT. This is a hypothetical question. If the decision had been made solely on the basis of 465, one could make the argument that it was nonreviewable.
Mr. DUFFY. That would have been the argument that I presume the Solicitor's Office would have made, yes.
Mr. BARRETT. So by including section 20 language, you were in effect opening yourself up to a lawsuit?
Mr. DUFFY. Section 20 did provide a basis for a reviewability—for reviewability, yes, in the district court.
Mr. BARRETT. Mr. Waxman, I have no further questions at this time. I don't know if Mr. Kanjorski does or, Mr. Waxman, if you do. I will yield my time back to Mr. Kanjorski.
Mr. KANJORSKI. Just to go on that point, if in fact there had been political influence or consideration because of political contributions, you would have done a solid lock on the situation, if you gone over 465 as the reason, because that gave you absolute discretion. And it would have closed off the dog track people from ever raising a question or the Indians from raising a question. The very fact that you did use the process of using section 20 gave judicial review.
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Mr. DUFFY. At the time, Congressman, I have to say I did not think about those factors. But as you say them here, yes, that's correct.
Mr. KANJORSKI. Thank you.
Mr. WAXMAN. That is a good point, because no one anticipated, I assume, Mr. Duffy, when you were trying to decide on what basis to make this decision, that somebody was going to come in and question whether the decision was made based on political influence or any interference.
Mr. DUFFY. Absolutely. There was no suggestion of that.
Mr. WAXMAN. The purpose of our hearings, and this is the third day on this same subject, is whether the decision by the Department of Interior on this particular application to have a Las Vegas casino off a reservation in Hudson, WI was made because of political corruption. In other words, because campaign money was given to the Democratic party or the Clinton/Gore, and because of that, the White House, or someone in political power told the people in Interior who had the actual decisionmaking authority to make it a particular way.
Can you just say to us, you are under oath, whether there was any interference, whether there was any kind of pressure from the White House or from the Democratic party or from anyone outside the Department of Interior to come up with the result that was arrived at?
Mr. DUFFY. I can, and I will. There was none. None. None.
Mr. WAXMAN. And, Mr. Collier, you are also——
Mr. COLLIER. I emphatically agree.
Mr. WAXMAN. I thank you both for your testimony. We still have some time, but I will yield it back to the chairman.
Mr. BURTON. The chairman yields back the balance of his time. Mr. Souder.
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Mr. SOUDER. First I would like to say for the record that since my friend from California has had his deposition questions up there twice, that he is a pretty moderate, mild-mannered man, and I don't think his intention is to badger witnesses. I talked to him once on the floor, that certainly wasn't his intent, so I wanted to say that on his behalf.
Mr. Duffy, were you familiar with the Detroit casino? Did that occur while you were at the Department of Interior?
Mr. DUFFY. Yes, it did.
Mr. SOUDER. That tribe is farther away than these tribes, right, from Detroit, it is my understanding, by a large distance.
Mr. DUFFY. I don't know.
Mr. SOUDER. Were they not given additional time when there was community opposition, to try to work with a referendum, to try to see if public opinion, which in fact can be fairly fluid in these situations and generally is not particularly receptive to casinos in a community regardless.
Mr. DUFFY. I don't know. I wasn't involved in that aspect of it. I don't know.
Mr. SOUDER. Do you know whether in this particular case, either you or Mr. Collier, whether or not the applicants were told that there might be problems? That was the goal of the agency, to work with particularly poor Indian tribes and try to work through it, was it not?
Mr. DUFFY. I don't know what Mr. Skibine told the applicants.
Mr. SOUDER. Do you believe that that is an important part of the process?
Mr. DUFFY. I would assume that Mr. Skibine did what he thought was appropriate. The applicants had been consulted extensively at the area director's office.
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Mr. SOUDER. So you didn't ask him?
Mr. DUFFY. What?
Mr. SOUDER. You didn't ask him whether he had been working with those tribes.
Mr. DUFFY. No.
Mr. SOUDER. Particularly given the fact that he told our committee that the way that he told them was their letter of rejection. He had not discussed the problems that were developing. It seems like—let me ask a specific question of both of you. Does not the law require such consultation when it is being rejected? In other words, when the Indian tribes that were requesting it, when they are about to get rejected, doesn't the law require working with the Indian tribes to tell them what the problem is with their application and see if it can be worked out before you just unilaterally rule against them?
Mr. DUFFY. No, I don't believe the law requires that.
Mr. SOUDER. You don't think that that is—my understanding, and I am not an attorney, my understanding was that it certainly seems like a logical goal of the Department of Interior to work with the poor Indian tribes and not just outright reject them.
Mr. DUFFY. Congressman, it would be an absolutely infeasible approach to the decisionmaking process at the Department of Interior to receive applications from people and then after having received information from them, when we were in the decisionmaking process, to stop the decisionmaking process and ask them for more information.
I mean, the decision forms itself by consensus. It is made when Mr. Anderson, the man who has the responsibility to make the decision, signs the decision. Thereafter, the decision on the facts goes out.
Mr. SOUDER. You are saying——
Mr. BURTON. If the gentleman would just yield quickly. I just talked to our counsel about this and he says the law is pretty specific, that it does require consultation with the tribes in question before a decision like that is rendered so that they can try to correct those.
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Mr. DUFFY. And they were consulted, at the area level.
Mr. BURTON. At the area level. I thought this was pretty much approved all the way up the chain.
Mr. DUFFY. But the information that was the basis of the decision was collected at the area level.
Mr. SOUDER. At that level, we have numerous memoranda. I mean the area level recommended approval. In fact the Andersen study, you're familiar with the Andersen study, said there wasn't detriment.
Mr. DUFFY. I'm not familiar with the Andersen study.
Mr. SOUDER. That was submitted after the Department of Interior—and what partly we're looking at here is at the area level where the consultation was occurring, there wasn't that warning. Once it was kicked to Washington, an amazing process occurs. All of a sudden one tribe is left out until they do hire a high-powered attorney who had been a former partner of the Secretary to come in, because there was a whole intervening period there in June that is very disturbing. What I am trying to figure out is how one group was shut out while the other group had different Congressmen contacting, multiple memos flying around. Whether you saw them or not is something apparently we're not going to be able to resolve, I will take you at your word. It is kind of a questionable thing to us when we look at Detroit, where in fact the tribe is from farther away, with community opposition, apparently had time to correct the situation, and they didn't here in Hudson.
Mr. DUFFY. Congressman, this really surprises me. It really surprises me. Because to me, the tribes—once the decision is made, the tribes could have come back for reconsideration. They could have filed another application. We are simply making the decision on the facts as they appear on that record. We are not foreclosing them from ever taking any action.
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Mr. SOUDER. Isn't the goal here of this whole act, which I would not have voted for—and by the way, I just want to say for the record, I think you made the right decision, too. I am worried you made it for the wrong reasons. If not yourself, someone. Is not the point here that there are many very poor Indian tribes and we're trying to figure out how to provide employment for them? You have a group of three very poor tribes in effect at this point being blocked by several much more affluent tribes. The logical process would be to say, if you are in the process of turning them down, to give them options to work through, to see what you can do for them, unless of course there was political influence, and that's what we're trying to find out.
Mr. DUFFY. Congressman, one of the objections was that they would have detrimental impact on the St. Croix tribe.
Mr. SOUDER. But that is not what Arthur Andersen in that study found at that point. It said it was minimal impact, it may have been up to 10 percent, and the claim of detriment is not a factual statement.
Mr. DUFFY. That's millions of dollars, Congressman.
Mr. SOUDER. A detrimental impact. There was a detrimental impact whenever the next casino went in anywhere in the State of Minnesota. The question is, is it a significant impact? I like your interpretation because, in effect, your interpretation can block any casino anywhere. I mean, Atlantic City has a detrimental impact on Las Vegas.
Mr. DUFFY. Congressman, the question is whether or not there was going to be a detrimental impact. There was going to be a detrimental impact here. People would lose a great deal of money. The question was, what was meant by detrimental? How much impact was necessary to make it detrimental?
Mr. SOUDER. Three times the Arthur Andersen study said there was not significant detrimental impact and that was not a valid consideration for rejection.
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Mr. DUFFY. Congressman, this is an argument or a discussion that I'm interested in, because I like discussing these issues, OK? But just as background, the purpose of IGRA was to allow Indian tribes to game on their reservations. It was, as I say in my opening statement, an exception to have off-reservation gaming, for many other reasons, as was pointed out.
Mr. SOUDER. As is Detroit.
Mr. DUFFY. Right.
Mr. SOUDER. In fact, the Mystic Casino, is that on a reservation, I am just curious, the Shakopees?
Mr. COLLIER. My understanding is that it is, yes, sir.
Mr. SOUDER. It is in the metro area. I didn't know that.
Mr. COLLIER. My understanding is that it's on their reservation.
Mr. SOUDER. Like I say, I have a concern that we're going to move to gas stations and all kinds of other things off the reservation. It's a legitimate concern. The fact is we have moved beyond that in the law and we need to change the law.
Mr. DUFFY. We address your issue. We don't disagree with you. We are trying to address your issue administratively. That's the reason for this decision. We understand your concern and we're trying to address it administratively.
Because frankly, speaking for myself now when I was at the department, I don't want you to change the law. I want to interpret the law in the way that will convince you that you don't have to change the law, because I think the Indian Gaming Regulatory Act is Indian tribes' real opportunity to make some money and to get to a position in this society that has been denied them for many, many years. With great respect for the Congress of the United States, I do not believe you were prepared to appropriate sufficient funds to do that. Therefore, I think Indian gaming is the only way to do it.
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And we are trying to make Indian Gaming Regulatory Act—how can I say this—I don't want to say appealing to you, but not obnoxious to you. We are trying to not have every community in America cry out, hey, we could have a gaming application here. We don't want that. That's why we're making these determinations. But purely on policy grounds. The Detroit application was strongly, overwhelmingly supported by people in Detroit. The mayor came in to see me.
Mr. SOUDER. Not initially. The application was delayed for an extended period of time so they could run advertising and change the thing, which you didn't give to these tribes.
Mr. DUFFY. Congressman, if there's a change in the view of the position of the St. Croix tribe or of the local community, this tribe could come back.
Mr. SOUDER. You don't think it's ironic that wealthy tribes seem to go farther, and tribes that give more money seem to go farther than poorer tribes that don't give as much money and aren't as wealthy? That's the irony.
Mr. DUFFY. It's an irony only because you're juxtaposing things that actually have no connection. There is no connection between what these individuals gave and this decision. No connection whatever. I don't know how strongly I can say that.
Mr. BURTON. The gentleman's time has expired.
Mr. Barr.
Mr. WAXMAN. Well, Mr. Chairman, I will take my 5 minutes.
Mr. BURTON. The gentleman is recognized for 5 minutes.
Mr. WAXMAN. I just want to jump into this discussion, and direct Mr. Souder to some discussion on this as well. I am impressed that you seem to have some knowledge of this Indian gaming law. I am learning a lot more than I ever wanted to know about this law. This is not the committee with jurisdiction over that issue, so if you think the law ought to be changed, it may be on the Resources Committee, it may not be, but that is the committee that is going to have to look at it.
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You said you agreed with the decision, but you disagreed with the way it was reached, and you seem to raise questions about maybe they didn't consult with the tribes sufficiently. I think that is a matter open to dispute. Or perhaps you didn't think that Mr. Duffy's theory or grounds were as good as Mr. Skibine's. But what does that have to do with why we are meeting here? If the decision was made on one basis to turn it down or a decision was made on another basis to turn it down, and it wasn't based on political interference, then it's up to another committee to decide whether they ought to have a third reason to turn it down or other procedural steps that they should follow.
I am going to yield to you. What are you getting at?
Mr. SOUDER. What I am getting at is I believe they made the right decision to turn down the casino, but I fear it is because of the financial impact.
Mr. WAXMAN. Financial impact on whom?
Mr. SOUDER. The contributions that came in after the decision, the processes that were occurring, all the influencing.
Mr. WAXMAN. But you haven't established that. Your whole time was taken up over whether they consulted with the tribes.
Mr. SOUDER. I, in effect, took them at their word. They are not going to change their position here that they were not under political influence, so there is no real point for me to ask that, or I would be called badgering the witness. I was trying to establish a more technical point; that is, was there a consultation with the poor tribes who were rejected.
Mr. WAXMAN. Look, we had Mr. Skibine, Mr. Hartman, Mr. Anderson, all the career people at the Department of Interior, very familiar with this law and very familiar with this case. They said there was no political interference, they made a decision on the merits. Now we have Mr. Duffy, who worked at the Department, who has given us that same testimony, all of them under oath. I mean, it is a serious matter when you say things under oath. It is a lot more serious than making a charge to get into the newspapers.
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So we have no evidence of any political interference, we just don't. And we have a lot of questioning as to whether the decision should have been made on one basis as opposed to another basis. That is a legitimate point, and you know what, it is going to be fought out in a lawsuit, because Mr. Duffy decided to turn them down on the grounds it is reviewable, and Mr. Havenick, who is still here, he has been here for 3 days, not alone, with a panel of lawyers, he is looking for grounds in the court case to overturn the decision. Now, once it is overturned, as I understand the law, if he doesn't get his way, then he has to submit another application.
Is that right, Mr. Duffy?
Mr. DUFFY. It depends on what the ground is, but it would have to be sent back to the Department for further action.
Mr. WAXMAN. So he is challenging on all sorts of different grounds. As I understand the judge's decision, which Mr. Barr earlier cited, he had a quote from the judge, and the judge said, political interference, but as I understand her decision, she said she had enough evidence that there might have been political interference, so she decided that discovery can be proceeded on the questions of political interference, she wasn't going to limit their lawsuit on procedural grounds, as to whether there was some kind of arbitrary and capricious decisionmaking at the Department of Interior, which is also the grounds Mr. Havenick and his partners are basing their objections to the decision on.
Mr. DUFFY. That's correct.
Mr. WAXMAN. OK. Well, look, I just want a reality test. We all seem to think this was an appropriate decision because the local people didn't want it, and I take that as a very serious matter. You can cite Atlantic City and say the local people might not have liked it. This was not an Indian land taken under reservation. When an Indian tribe takes land under trust, that means that the local people cannot pass laws applying to that area; isn't that right?
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Mr. DUFFY. That's correct.
Mr. WAXMAN. So even though the State of Wisconsin, the city of Hudson, and others who were living there didn't want this casino, their decisionmaking would have been completely irrelevant if the Department of Interior decided to use this little loophole that says land can be taken as a trust if it is an Indian tribe, or tribes, and then Federal law would apply; am I accurate in that?
Mr. DUFFY. That is why they can game on it, because it no longer is governed by local law, it is now governed by the tribes' law and the Federal law in the Indian Gaming Regulatory Act.
Mr. WAXMAN. There was a meeting Mr. Eckstein had with the Secretary, and he—did he meet with you?
Mr. DUFFY. He met with me before he met with Secretary.
Mr. WAXMAN. Then what happened at his meeting with you?
Mr. DUFFY. I told him the application was going to be denied.
Mr. WAXMAN. But Mr. Eckstein was there because he was hired by Mr. Havenick to make the case to you; isn't that right?
Mr. DUFFY. That's correct.
Mr. WAXMAN. He was their lawyer, lobbyist. The argument that these poor Indian tribes didn't have their say is absolutely incorrect. They had their say to the point where they hired a guy who was hired primarily, as best I know, because he could get access right to the Secretary, at the highest levels.
Mr. DUFFY. Mr. Eckstein, I think, himself concedes he saw both the gaming management staff and he contends—although I don't recall this, he contends he also saw me in a meeting on May 17, along with Congressman Moody, who was employed also to lobby on behalf of the tribes.
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Mr. WAXMAN. Mr. Skibine testified he met with the Indian tribes that wanted this application. He also met with the Minnesota congressional delegation that didn't want it. He got both sides to say what they had to say, then as a man who had no financial interest in this, without any political interference, he decided that this was too far a reach outside of a reservation for tribes that were 80 to 200 miles away to be allowed to take an area outside of local control, where the local people didn't want it, and hand it over to the Federal Government, and then allow them to open up a casino.
Mr. DUFFY. That's exactly correct.
Mr. BURTON. I am going to take my 5 minutes, but I will yield to Mr. Barr the majority of it.
I want to make a couple of points. Mr. Waxman continues to try to make the case that there is nothing but smoke, and there certainly isn't the fire, and he may be correct, but Tom Schneider was contacted by Mr. O'Connor and asked to contact Mr. Ickes at the White House. Mr. O'Connor did talk to the President. The President did instruct Mr. Ickes to be contacted. Terry McAuliffe was asked about this. Mr. Fowler was asked about this. There was political operatives asking people to take a hand in the decisionmaking process.
After the fact, there is a memo or a letter that was sent out asking for money from the tribes that benefited from this from Mr. Kitto and Mr. O'Connor. Mr. O'Connor says he didn't see the letter, but nevertheless his name is on it, as was Mr. Kitto's, and on September 14, this letter was sent out, circulated to Native American clients, asking for contributions, and in the letter, it said, as witnessed in the fight to stop the Hudson dog track proposal, the Office of the President can and will work on our behalf when asked to.
Now, these were two people who were lobbying to stop this program, this new casino at Hudson, and they say very categorically, you ought to give some money to the DNC because we got the job done through political contacts at the White House and elsewhere. Now, this isn't just hyperbole, it is in writing, it is in our files here, and it has been submitted for the record. And then after that, we have $360,000 in contributions that were made. Mr. Duffy and Mr. Collier went to work for a law firm, and the Shakopees, the main tribe that benefited from this, are their clients.
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Now, you know, maybe this is all coincidental, but it sure does smell a little bit, and that is why a lot of us have concerns, and that is why we are holding these hearings. So for you to say nothing is going on, that this is all baloney, just doesn't wash with a number of us.
And then, of course, Secretary Babbitt said that Ickes told him to get the decision out, that the tribes gave a half a million dollars. Now, that is what Mr. Babbitt said to Mr. Eckstein, and of course we are going to talk to Mr. Babbitt about that tomorrow.
Mr. Barr, you have the remainder of my time.
Mr. BARR. Thank you, Mr. Chairman.
I would like to ask unanimous consent to have entered in the record the court case which appears at 961 F.Supp. 1276, the Sokaogon Chippewa Community, et al., v. Bruce C. Babbitt, et al.
Mr. BURTON. WITHOUT OBJECTION.
[The information referred to follows:]
INSERT OFFSET FOLIOS 382 TO 392 HERE
[The official committee record contains additional material here.]
Mr. BARR. Have either of you gentlemen testified in that case?
Mr. COLLIER. I have not.
Mr. BARR. Mr. Duffy?
Mr. DUFFY. I have not testified, I have submitted an affidavit, which was, I think—well, I gave an affidavit to the Justice Department, I think, that has been submitted in some fashion in the case.
Mr. BARR Mr. Collier, have you submitted an affidavit or been deposed or in any other way submitted a statement to the court in that case?
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Mr. COLLIER. I spoke to counsel from the Department of Interior, I believe, but I don't think I ended up submitting anything.
Mr. BARR. OK. I am going to read briefly from the lead into that case.
Lake Superior Chippewa Indian bands challenge decisions of Department of the Interior denying their application under the Indian Gaming Regulatory Act, IGRA, for United States to acquire in trust a greyhound racing facility for conversion into off-reservation casino. After partial summary judgment was entered, 929 F.Supp. 1165, bands sought reconsideration. The District Court, Judge Crabb, held that bands made sufficiently strong showing of improper influence on agency decision to be entitled to extra record discovery and examination of agency personnel.
Now, the case is still currently an active one. It has not been tried. As we can see from this document, this official opinion, it is still in the discovery stage, but the reason I think in large part, following on what the chairman indicated, that we are here today is more than simply any singular or collective opinion on this side that, you know, something was wrong.
This is a U.S. District Court judge, and she has issued a fairly lengthy opinion here, and toward the end of it, on page 10 of the written opinion that we have here, she indicates appropriately that she does not intend to imply that all contacts between agency officials and White House staff are improper. She says, such meetings are a necessary outgrowth of the manner in which the executive branch is organized. However, whereas here, there is considerable evidence that suggests that improper political pressure may have influenced agency decisionmaking, it is necessary to allow extra record discovery to uncover whether that is true. Many of the events of which plaintiffs complain can be considered innocent in and of themselves, but their combination in this case raises substantial suspicion.
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That is not my opinion, that is not the opinion of the chairman or Mr. Souder or anybody up here; that is an opinion of a U.S. District Court judge, based on what we all can, I think, presume would be an extensive and very professional review of a very extensive record thus far in the discovery of that case.
She goes on to indicate that it would be a rare case in which a party will be able to present evidence similar to the evidence plaintiffs have produced here, suggesting that—and then I will go on when I have a little more time. But what she is saying is there are some very unusual things that appear, based on the record in this case, to have happened, and that is why it is of concern to us, and I will go into this and another matter in a little more detail when I have my 5 minutes.
Mr. BURTON. Mr. Barr, we will come back to you right after the next person to question.
Mrs. Maloney.
Mrs. MALONEY. Thank you, Mr. Chairman.
I would like to really ask both Mr. Collier and Mr. Duffy the same question. I would like to ask you, during really Secretary Babbitt's tenure and really during the time that both of you worked at the Department, is it a true statement that the Department policy was to give great weight to the views of local community and local politicians; was that the view of the Department, to listen to what the local people had to say?
Mr. DUFFY. Absolutely, yes.
Mrs. MALONEY. Mr. Collier, would you answer, too?
Mr. COLLIER. I agree with that, yes.
Mrs. MALONEY. Why was this important to the Department, to listen to elected officials, to rely on referendums from the people in the community, of various levels of Federal, State and city; why was that so important to the Department?
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Mr. DUFFY. Well, I was trying to encourage us, Congresswoman, not to rely on referendums, but to focus our attention on the response of the local elected officials, which I felt was the best test of what local public opinion would be or where the local community was in terms of support or opposition to a particular item.
Local community was important because there is an overriding political concern, and by political concern I mean that in the best sense, having to do with politics and elected officials, that the Indian Gaming Regulatory Act needs the support of Americans throughout the country. Indians do not do well as a general matter when they come up against the majority of non-Indians, and where their interests are in conflict, Indians tend to lose.
We didn't want the Indian Gaming Regulatory Act to be in conflict with local Americans. Most local Americans, from my own personal feeling, and uninformed and unofficial opinion polls, support Indian gaming, but they want to have some say if it is not going to be on a reservation, and I think that is what we were trying to get at. We wanted to listen to people when the gaming was off reservation because it is only appropriate that people should not be forced, as the Secretary has said, to have a gaming casino shoved down their throat.
Mrs. MALONEY. Was there an unusual degree of opposition to this particular project?
Mr. DUFFY. Well, in my focus of attention, and I believe the Department's focus, there was strong opposition across the board here, and the local community, as I said before, the local officials were against it.
Mrs. MALONEY. Did Secretary Babbitt ever pressure you to take a particular position with respect to the trust acquisition of the St. Croix Meadows Greyhound Racing Track, Mr. Duffy; did he ever pressure you?
Mr. DUFFY. No, I don't think he ever expressed a view on the specific issue, the specific application. I don't believe he had any view, and he was not involved in it.
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Mrs. MALONEY. So not only did he not pressure you, he didn't express a view.
Mr. DUFFY. He simply wasn't involved in it. I did have a conversation with him some months before, a long time before, in which we talked about the type of policy we ought to be putting into effect in the Department, and that is where the ''don't shove it down their throat'' remark came, but on this particular application he was not involved.
Mrs. MALONEY. So are you aware of the Secretary exerting any pressure on Department employees as to how the decision could come out?
Mr. DUFFY. No, I'm not.
Mrs. MALONEY. So he not only didn't affect you, he didn't pressure any other employees?
Mr. DUFFY. No.
Mrs. MALONEY. Did the Secretary ever indicate to you that he was receiving pressure from the White House, the Democratic National Committee or the Clinton/Gore campaign on this application?
Mr. DUFFY. No.
Mrs. MALONEY. And the Secretary never told you that you should ensure that the application was rejected; is that correct?
Mr. DUFFY. No, he never told me anything about how the application should be decided.
Mrs. MALONEY. I would like to ask both of you, Mr. Collier and Mr. Duffy, did any of your superiors—you testified about the Secretary—but any of your superiors ever tell you to take a particular position on this matter because of a tribe's campaign contributions or because of any other reason?
Mr. DUFFY. Not because of a tribe's campaign contributions, no.
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Mrs. MALONEY. Did any of your superiors ever tell you that any particular tribe of Indians was to be given deference because of their campaign contributions?
Mr. DUFFY. No, absolutely not.
Mrs. MALONEY. Did either of you ever pressure George Skibine, the 20-year career employee, to make a particular determination with respect to this matter?
Mr. DUFFY. I didn't.
Mr. COLLIER. Nor me.
Mrs. MALONEY. Did you Mr. Collier?
Mr. COLLIER. No.
Mrs. MALONEY. Did either of you ever ask George Skibine or anyone else on the staff to make a particular determination with respect to this matter?
Mr. DUFFY. Well, Congresswoman, I have participated in the decisionmaking process, and I did urge that we use section 20, so to that extent I have to tell you that I talked to Mr. Skibine and recommended an approach. But as to the initial decision, that was Mr. Skibine's.
Mrs. MALONEY. But actually, if you did disagree with the legal reasoning on which the Gaming Office based its determination, would there have been anything illegal, unethical or inappropriate in directing them to make a change?
Mr. DUFFY. There would have been something inappropriate—not inappropriate, but I would not have had the authority to direct him to make the change. He did not report to me. I was not in line authority with Mr. Skibine.
Mrs. MALONEY. But isn't it part of your job to review documents prepared by the Interior Department staff and to make changes based on your knowledge of the law?
Mr. DUFFY. It is more of the Solicitor's responsibility to make changes based on the law. It is my responsibility to provide recommendations with respect to what I think is appropriate policy.
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Mrs. MALONEY. And I know my time is up. I would just like to ask one last question. Do you believe that campaign contributions determined the outcome of this matter?
Mr. DUFFY. I know they did not determine the outcome of this matter because I was watching the process, monitoring the process. I saw how the process was made, and I know there was no influence by campaign contributions on this process.
Mrs. MALONEY. Thank you very much.
As I have said before, Mr. Chairman, we have a case where we had opposing sides, both of whom hired lawyers, lobbyists, both of which made campaign contributions, but we have had testimony from career professionals, from all types of people, that have said that it in no way influenced their decision. And I come back to the theme that really the President had last night in his State of the Union, that we should just ban soft money contributions, then we would never have any discussion of any impropriety because everybody could not make large contributions. You would be limited to $1,000.
Mr. BURTON. The gentlelady's time has expired.
Mr. Barr, you are recognized.
Mr. BARR. Thank you.
Mr. Chairman, I think one of the nice things about court opinions is they stick to the points. They don't go on and on about extraneous matters, and what the judge in this case has done—and I keep coming back to it because I think it is very important, because there is a constant effort in these hearings and every other time we have hearings to trivialize this or pull us off on tobacco or campaign finance reform or something. Our witnesses today are lawyers. I am sure that they have very strong regard for the opinions of courts, and what the court is suggesting here is that based on substantial evidence that it reviewed, there is a very serious question and suspicion that has been raised. That obviously is not important, has no importance whatsoever to the folks on the other side.
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Court opinions do have importance, and I respect them, and I know these witnesses do, and what the court is listing here, such things as agency officials meeting with opposition groups and not notifying the applicant, the head of the DNC meeting with opposition groups and shortly thereafter contacting the White House Chief of Staff and the agency about the application, raised suspicions.
Upper-level agency official rejecting the conclusions of the area office and agency staff without conducting further factual inquiries of their own; agency officials relying on a reason for denying the application that is considered insignificant with respect to a later similar application; and the head of the agency saying he was directed explicitly by the White House Chief of Staff to issue the agency decision on a given date. Those are not things that a court has made up, those are not things that a politician has made up, those are statements placed very seriously and very deliberately in a court proceeding that has to do with an awful lot of information that we have not even gone into here today, and that is why this is important.
Let me ask a couple questions, Mr. Collier, about something a little bit different, but something about which I know you are familiar.
We have some documents here regarding Mr. Hubbell and Mrs. Hubbell. On April 5—and these, I believe, were documents you provided to Senator Faircloth, both documents regarding meetings that you had, Mr. Collier, with Mr. Hubbell; and then a chronology of various matters, discussions, and telephone conversations with regard to bringing Mr. Hubbell's wife back from an extended leave of absence, in 1994 and 1995.
Did you indeed have lunch, which according to Mr. Hubbell's appointment calendar took place on April 5, 1994, with Mr. Hubbell?
Mr. COLLIER. I don't recall the specific date or the specific lunch, but I have had lunch before with Mr. Hubbell, yes.
Mr. BARR. And it wouldn't surprise you if indeed that entry on his log was a correct one?
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Mr. COLLIER. I have no reason to question that entry, Congressman.
Mr. BARR. And then again on October 12, 1994, and the entry is a little bit more difficult to read on that, would that have been a day—a likely day on which you had another meeting with him?
Mr. COLLIER. I have no recollection of—I just can't help you, Congressman. My name appears on a calendar.
Mr. BARR. OK. Are you saying in April 1994, you have no reason to suspect that you didn't have lunch with him on that day?
Mr. COLLIER. If that is what this calendar says.
Mr. BARR. You don't recall at all October 12?
Mr. COLLIER. That's right, I just don't recall.
Mr. BARR. What was the reason that Mrs. Hubbell took an unpaid leave of absence from her Interior Department position in March 1994?
Mr. COLLIER. She wanted to spend more time with her children.
Mr. BARR. OK. What was her grade level at that time when she left?
Mr. COLLIER. Congressman, I don't recall her grade level at all.
Mr. BARR. Was it a fairly senior position?
Mr. COLLIER. I don't recall at all, I'm sorry.
Mr. BARR. When she game back in February 1995, about a year later, there was some discussion about exactly what work she would be doing. Did she, in fact, come back to the same job she left, or was she given a different job?
Mr. COLLIER. I'm not certain. I think she was given a different job, Congressman.
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Mr. BARR. I think that is probably accurate.
Do you know what grade level she was brought back in at?
Mr. COLLIER. I believe she was brought back at the same grade level, Congressman.
Mr. BARR. Were there discussions that you had with Mr. Hubbell, Mr. Hubbell, that is, during this period of time, that is from April 1994, which is when he left the Department of Justice, until his wife was rehired about a year later; did you have conversations with him during that period?
Mr. COLLIER. Are you asking whether I had conversations with him about his wife's job status, Congressman, or are you asking me if I had conversations with him about anything?
Mr. BARR. That.
Mr. COLLIER. I have probably, in my life, had two or three conversations with Webb Hubbell. I don't recall when they occurred.
Mr. BARR. There being so few, you might have a pretty specific recollection of what was discussed. Could you tell us what you discussed at the meeting that occurred on or about—and the date isn't that important—April 5, 1994?
Mr. COLLIER. I have no idea what we talked about.
Mr. BARR. Do you recall what you talked about in any of your meetings with Webb Hubbell?
Mr. COLLIER. I don't.
Mr. BARR. Even though there were only a few of them?
Mr. COLLIER. Even though there were only a few, Congressman.
Mr. BARR. OK. Thank you.
[Exhibit 386 follows:]
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INSERT OFFSET FOLIOS 393 TO 396 HERE
[The official committee record contains additional material here.]
Mr. BURTON. Let's see who is next down there. Mr. Kanjorski.
Mr. KANJORSKI. Let me just take 1 second, Mr. Chairman, if I may.
I know my colleague on the other side talked about the decision of the District Court, Western District of Wisconsin. Maybe we should call the judge in that case. I don't know what she would offer other than she had a transcript before her.
As I understand that case, there was a limiting order signed by the judge restricting the amount of discovery that could be taken by the petitioner, the disappointed party in this case, the dog track owner, and that upon reconsideration, the court decided that there were a lot of unanswered questions, and that if you took the inferences all in favor of the defendant, you could arrive at one conclusion. If you took those same inferences all in favor of the plaintiff's side, you can arrive at another decision. And the court merely concluded that based on some of the facts, some of the allegations, that it would be unreasonable not to allow extra discovery procedure to be granted to the plaintiff in the case that otherwise would be prejudiced and potentially subject to summary judgment, which means, in the Federal district court, that you just don't get a chance to proceed and prove your case.
The position that Mr. Barr has taken in asserting statements in the record are out of context, are really disingenuous from the standpoint that I don't believe this judge has arrived at any conclusion, and this is an intermittent decision to allow the case to proceed in an orderly fashion, to allow extra discovery beyond the administrative record, that is all it involves. In seven instances, and two sustaining the court's original position that there is no reason to allow any further discovery, there was a failure of evidence, or allegation, which dismissed and allowed for summary judgment. And may I say that this was concluded, as best I can recollect, sometime in April 1997, which is what, almost a year ago, certainly precedes this hearing. And if we have any more evidence or facts, why not have live characters come in and testify rather than doing a disservice to all of us to attempt to use a Federal district court judge as a witness by citing or quoting out of context some of her decision or conclusions that she arrived at to attain fairness.
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So on the basis of that, I only hope we can wind this hearing down. I don't want to take any more time, Mr. Chairman. I yield back the balance of my time. I hope we don't have any more phantom witnesses.
If I may, I will yield to Mr. Barrett.
Mr. BARRETT. Mr. Chairman, as we come to the close here of this hearing today, some of the protestations from the Republican side about fund-raising make me think of the scene in Casablanca, where Claude Rains is shocked; he is shocked that there is gambling in Casablanca. Mr. Chairman, you and other Members seem to be shocked that there is fund-raising actually appearing in Washington, DC. But I would venture to guess, Mr. Chairman, that there has been not one, not two, not three, but hundreds if not thousands of letters that have gone out from lobbyists on behalf of yourself and Members on your side following action by this Congress, following action by you or other Members, explaining to clients the good work that you have done, and asking them to contribute to your campaign. And I would also venture to guess, Mr. Chairman, you have accepted those campaign contributions and felt you were doing your duty; that you had done the right thing, and that they were participating in the political process.
So I think that this is instructive to the American people, because I think that this is in some ways a garden variety issue and how Washington works. And a decision is made, a decision was made on the merits, and, yes, campaign contributions were made following a decision. But to suggest that something is wrong here, when we have the overwhelming evidence that the local community, from the mayor, the town council, every single elected Member of Congress who took a stand on this issue in the State of Wisconsin, every single Member of Congress from Minnesota who took a stand on this issue, that this decision was in agreement with that.
And the only parallel I can draw on the other side is last year when President Clinton made the designation for the State of Utah for the wilderness area and the howls that went up from the congressional Members that he didn't listen to them. In this case, the Department of Interior did listen, and it listened and it made the right decision, and I am glad that this decision was made.
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And I will yield back my time to Mr. Kanjorski, and if he doesn't need it, I will yield back to you, Mr. Chairman.
Mr. BURTON. Do you wish to use your 5 minutes, Mr. Barrett?
Mr. BARRETT. I will pass.
Mr. BURTON. Thank you.
Let me just say the metaphor you used regarding Claude Rains in Casablanca is near and dear to my heart. You have used it before. I hope you use it again. It always brings back fond memories.
Mr. Mica.
Mr. MICA. Thank you, Mr. Chairman.
Mr. Duffy, I have a couple of questions about your employ at the Department of Interior. I chair the House Civil Service Subcommittee dealing with Federal employees, Federal employment and issues of that sort.
When did you leave the Department?
Mr. COLLIER. Are you addressing Mr. Duffy?
Mr. MICA. Yes.
Mr. DUFFY. I left the Department in July 1996.
Mr. MICA. And when did you join the other firm?
Mr. DUFFY. Right thereafter.
Mr. MICA. And when did you get involved in this particular issue representing the Indian interests?
Mr. DUFFY. I think I said it was several months later.
Mr. MICA. Several months later.
And are you aware that there is a restriction, in fact, on employment for Federal employees in most instances, and you found that there was an exclusion in representing, I guess, Indian tribes; is that the case?
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Mr. DUFFY. There is a statute which authorizes the representation of Indian tribes, overriding the other ethical statutes.
Mr. MICA. Well, I chair the Civil Service Subcommittee. I wasn't aware of that loophole or that exclusion.
This has certainly caused at least the appearance of an improper relationship, a potential conflict of interest, or cast aspersion because some Federal employees who leave, who represent certain interests, can immediately be retained in the employ of a tribe. Wouldn't you think that would be a perception outside?
Mr. DUFFY. I really don't know what the perception outside would be. I mean, I can say this is not a loophole, this is a congressional policy.
Mr. MICA. Right, but it was set by Congress.
Mr. DUFFY. I know.
Mr. MICA. And permitted. But don't you think that this creates problems like what we have seen here, or at least the appearance of problems?
Mr. DUFFY. I don't think so.
Mr. MICA. I honestly never heard of the exemption. I wasn't here when they wrote the law, and it is something I think that we should have everyone who works for the Federal Government, with an agency, who has dealt with issues, recuse, I guess is the term, themselves for a year, would you agree with that?
Mr. DUFFY. Let me make sure we understand this. I am not working on any issue for the Shakopees that I worked on at the Department of Interior. That is not the issue here, all right, and that is why, in my view, I don't see the appearance of impropriety. I mean, the connection that is trying to be made here, with improper conduct on my part, which I frankly am strongly upset about, is that I joined a law firm which already had a client, which, at some point in time, was interested in a decision that I participated in but didn't make. Now, with great respect, Congressman, I don't see the appearance of impropriety here.
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Mr. MICA. Well, again, I think this hearing raises some questions about that law and possibly other attorneys that are in the—who serve in government and go out and work in other areas. This is a little bit more difficult, because I guess when you work just with Indian issues, you become an expert in that field, and you go out and expect to make a living at it in some of your area of expertise.
Do you have any suggestions for any modifications to the law?
Mr. DUFFY. I don't, Congressman.
Mr. MICA. Mr. Collier, I think you have a similar situation. Do you have any suggestions, or do you think the law is fine the way it is?
Mr. COLLIER. Congressman, I respectfully believe that is really an issue for your side of the table rather than my side of the table.
Mr. MICA. Well, again, I am not saying anyone has done anything wrong. You have complied with the law, it appears, the letter of the law, that Congress set those terms, and my question is, you have been through an experience here, and maybe we should go back and revisit that law, maybe we should make some changes. Our job, and this isn't just to beat you guys up, and we are not going to indict anybody, we don't take criminal action, we review what has taken place. We review the laws that Congress has passed, we investigate what took place, and here we have a situation that has cast some cloud. Do you have any recommendations to me for improving that, and in a positive vein? I am not here to roast you yet.
Mr. COLLIER. Congressman, I appreciate the spirit of your question, but I don't have any suggestions for you.
Mr. BURTON. The gentleman's time has expired.
Let me say in closing, first of all, we thank the witnesses for their patience. They have been sitting here all day along with their counsel. I know it has been a long day for you, so we appreciate your patience.
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I would like to say to Mr. Barrett down there, we have a bill that will close that, quote/unquote, ''loophole'' regarding Indian tribes having the ability, and you indicated you would be interested in cosponsoring it.
Mr. BARRETT. I am interested, and I will take a look at that.
Mr. BURTON. I will be happy to give it to you and maybe have you cosponsor it.
With that, we will recess until about 10 o'clock tomorrow morning. Thank you, gentlemen.
[Whereupon, at 5:41 p.m., the committee was adjourned.]
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