August 10, 1995 - Part 2
August 10, 1995 - Part 2
(11:35:31) Mr. NUSSBAUM. I decided in the first instance how the search would be conducted, but after the search was conducted, if there was any disagreement, or any feeling that it was inadequate in any way, there was a number of remedies available to the Justice De and other law enforcement agencies. Namely, they could' subpoena things, they could ask for search warrants, which of course there was no basis in this case to ask for. There's a number of things that could have been done by them if they felt that the search was inadequate in any way or correct processes were not being followed. I did not control the law enforcement process. Senator SHELBY. But you controlled the basics of all of it. I want to go on. Mr. NUSSBAUM. I disagree with that, Senator, as you know. Senator SHELBY. I think it's an important question. Did you decide, Mr. Nussbaum, as White House Counsel, to have your associates in the White House Counsel's Office sit in on the interviews conducted by the Park Police and the FBI, did you? Mr. NUSSBAUM. Yes. Senator SHELBY. Who decided, then, Mr. Nussbaum, or let me rephrase that. Strike that. Mr. NUSSBAUM. There was no objection, Senator. Senator SHELBY. Who decided when the note that was found would be turned over to the investigators? Did you decide that? Mr. NUSSBAUM. Yes, I did. Senator SHELBY. Who controlled basically the investigation of Mr. Foster's death? Mr. NUSSBAUM. The investigators, not me. Senator SHELBY. Not you? You had nothing to do with it? Mr. NUSSBAUM. I didn't control the investigation. I was responding to inquiries, producing documents, providing interviews, and also turning over the note. We were cooperating with the investigators in an intense but sensible fashion. Senator SHELBY. But going back to the abstract question I asked you, and you answered it in the affirmative when I said basically control of anything is central to the outcome of that particular transaction. I think it would apply to you in this situation. Mr. NUSSBAUM. But I just told you, I didn't control. Senator SHELBY. That was your opinion? Mr. NUSSBAUM. That's correct. It's also the truth. Senator SHELBY. Mr. Nussbaum, let me go on with some more questions. You were counsel to the House, the U.S. House of Representatives Judiciary Committee during the Watergate investigation in 1974, 1 believe it was. 1339 Mr. NUSSBAUM. Yes, I was the senior person on the staff, that's correct. Senator SHELBY. Absolutely. Mr. Heymann, was he also working over there? Mr. NUSSBAUM. As Senator Sarbanes pointed out yesterday, he was working for the special prosecutor. Senator SHELBY. Mr. Heymann said that you were not in a position, in his testimony, to be the referee concerning access to Mr. Foster's documents. Why were you the right person to be the referee? Mr. NUSSBAUM. Because, as I said in my statement yesterday, Senator, every single day of the year, tens of thousands of lawyers all over the country act as referees when it comes to reviewing and producing documents. The normal way people get documents, the normal way law enforcement gets documents, the normal way documents are produced in civil litigation, is for a subpoena to be sent or some other process to be sent. Then what happens is the lawyer on the other side acts as a referee. He gathers the documents, he reviews the documents, he decides what's privileged, what's not privileged. He does all those things. He acts as a referee. All I was doing is what lawyers do every day all over the United States, and Mr. Heymann has just sort of a misconception. Senator SHELBY. Lawyers every day don't have the power or the perception of power as Counsel at the White House that you did. Mr. NUSSBAUM. If I can just finish. Senator SHELBY. Go ahead. Mr. NUSSBAUM. Lawyers every day do what I was doing on that day, and Mr. Heymann just sort of misperceives it when he says a lawyer has a stake in the matter and, therefore, cannot act as a referee. Senator SHELBY. Mr. Nussbaum, during the Watergate situation, didn't the White House Counsel at that time want to be the referee over which tapes, the Nixon tapes, would be turned over to the Watergate prosecutor? That was central to the situation. Is that right? Just refresh your memory? Mr. NUSSBAUM. I'm glad we can talk about that, Senator, because in Watergate Senator SHELBY. I don't want to talk about it. I want you to answer my question.