For Thompson And McCain, It's Too Little Too Late

U. S. Sen. John McCain, R-AZ, has spent the better part of the last decade running for president. He actively sought the office in 2000 and lost handily to George W. Bush. Since that time, he has done everything he could think of to antagonize the base of his own party.

Former Sen. Fred Thompson, R-TN, acts as if the thought of running for president just occurred to him five minutes ago. Some days he acts as though it still hasn't occurred to him.

For very different reasons, these two men, with their totally different approaches to politics, have probably slammed the door on their chances for winning the Republican presidential nomination.

In 2000, McCain was the darling of the mainstream media. Back in those days, he was the anti-Bush, which appealed to them. This year his worldview is anathema to theirs because he has unapologetically defended "Bush's war."

But McCain's unpopularity within his party stems from two other issues: illegal immigration and campaign finance reform.

On immigration, McCain seems to have learned his lesson. In what radio host and bestselling author Laura Ingraham would call a "Power to the People moment," McCain (along with a lot of other members of Congress), has gotten the message loud and clear: border enforcement first.

"I understand why you would call it a, quote, shift," McCain said to reporters after being grilled by voters in South Carolina. "I say it is a lesson learned about what the American people's priorities are. And their priority is to secure the borders."

Too bad it took a meltdown of the congressional phone lines last June to convince the senator of the common sense of the American people. Until he saw his poll numbers sink to single digits, McCain seemed absolutely oblivious to - nay, defiant of - the people's will. Nevertheless, those of us who have been incredulous to the deafness of the president and far too many members of Congress on this issue welcome Sen. McCain into the bright light of reason on this issue.

While "comprehensive immigration reform" (better known as "amnesty"), is dead, the legislation for which John McCain is best known is still alive and festering within our political system. The McCain-Feingold campaign finance reform bill passed by Congress and signed into law by the president will be haunting us for years, despite the fact that the Supreme Court has struck down certain provisions of the law. For that reason, it has left the base of the Republican Party with a permanent bad taste for McCain's brand of politics.

Fred Thompson's alienation from the GOP activists who comprise the nominating block of the party is much more recent. In fact, it unfolds like a wet blanket of sad disappointment day by day. Desperately seeking a candidate to rally around, social conservatives keep waiting for Fred Thompson to show them p something.

His recent underwhelming performance on "Meet the Press" did not help. Asked about his positions on abortion and same-sex marriage, Thompson, who has a respectable record on both issues, managed to flub his answer. He told host Tim Russert he opposes to an amendment to the U.S. Constitution on either issue, preferring to leave these two crucial social issues to the individual states. As Dr. James Dobson of Focus on the Family has pointed out, Thompson endorses the idea of fifty different definitions of marriage. The same is true, it seems, on the definition of life, since Thompson simply wants to see Roe v. Wade overturned and the issue returned to the states.

In addition, Thompson seemed muddled and indecisive about his opinion on water boarding as a technique for dealing with terrorist detainees.

With less than two months remaining until the Iowa caucuses, it is likely that Fred Thompson and John McCain will both continue to decline in the polls, while former Governors Mitt Romney (Massachusetts) and Mike Huckabee (Arkansas) will continue to gain on the current frontrunner, former New York City Mayor Rudy Giuliani. So be it.

Doug Patton is a freelance columnist who has served as a political speechwriter and public policy advisor. His weekly columns are published in newspapers across the country and on selected Internet web sites, including Human Events Online, TheConservativeVoice.com and GOPUSA.com, where he is a senior writer and state editor.

May 3, 1992

Memorandum for: Vice Chairman, Senate Select Committee on Prisoners of War and Missing in Action

From: John F. McCreary

Subject: Possible Violations of Title 18, U.S.C., Section 2071, by the Select Committee and Possible Ethical Misconduct by Staff Attorneys.

1. Continuing analysis of relevant laws and further review of the events between 8 April and 16 April 1992 connected with the destruction of the Investigators' Intelligence Briefing Text strongly indicate that the order to destroy all copies of that briefing text on 9 April and the actual destruction of copies of the briefing texts plus the purging of computer files might constitute violations of Title 18, U.S.C., Section 2071, which imposes criminal penalties for unlawful document destruction. Even absent a finding of criminal misconduct, statements, actions, and failures to act by the senior Staff attorneys following the 9 April briefing might constitute serious breaches of ethical standards of conduct for attorneys, in addition to violations of Senate and Select Committee rules. The potential consequences of these possible misdeeds are such that they should be brought to the attention of all members of the Select Committee, plus all Designees and Staff members who were present at the 9 April briefing.

2. The relevant section of Title 18, U.S.C., states in pertinent part: Section 2071. Concealment, removal, or mutilation generally (a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than three years, or both. (June 25, 1948, ch. 645, 62 Stat. 795)

3. The facts as the undersigned and others present at the briefing recall them are presented in the attached Memorandum for the Record. A summary of those facts - and others that have been established since that Memorandum was written - follows.

a. On 8 April 1992, the Investigators' Intelligence Briefing Text was presented to Senior Staff members and Designees for whom copies were available prior to beginning the briefing. Objections to the text by the Designees prompted the Staff Director to order all persons present to leave their copies of the briefing text in Room SRB078. Subsequent events indicated that two copies had been removed without authorization.

b. On 9 April 1992, at the beginning of the meeting of the Select Committee and prior to the scheduled investigators' briefing, Senator McCain produced a copy of the intelligence briefing text, with whose contents he strongly disagreed. He charged that the briefing text had already been leaked to a POW/MIA activist, but was reassured by the Chairman that such was not the case. He replied that he was certain it would be leaked. Whereupon, the Chairman assured Senator McCain that there would be no leaks because all copies would be gathered and destroyed, and he gave orders to that effect. No senior staff member or attorney present cautioned against a possible violation of Title 18, U.S.C., Section 2071, or of Senate or Select Committee Rules.

c. Following the briefing on 9 April, the Staff Director, Ms. Frances Zwenig, restated to the intelligence investigators the order to destroy the intelligence briefing text and took measures to ensure execution of the destruction order. (See paragraph 3 of the attachment.) During one telephone conversation with the undersigned, she stated that she was "acting under orders."

d. The undersigned also was instructed to delete all computer files, which Mr. Barry Valentine witnessed on 9 April.

e. In a meeting on 15 April 1992, the Staff's Chief Counsel, J. William Codinha, was advised by intelligence investigators of their concerns about the possibility that they had committed a crime by participating in the destruction of the briefing text. Mr. Codinha minimized the significance of the documents and of their destruction. He admonished the investigators for "making a mountain out of a molehill."

f. When investigators repeated their concern that the order to destroy the documents might lead to criminal charges, Mr. Codinha replied "Who's the injured party." He was told, "The 2,494 families of the unaccounted for US Servicemen, among others." Mr. Codinha then said, "Who's gonna tell them. It's classified." At that point the meeting erupted. The undersigned stated that the measure of merit was the law and what's right, not avoidance of getting caught. To which Mr. Codinha made no reply. At no time during the meeting did Mr. Codinha give any indication that any copies of the intelligence briefing text existed.

g. Investigators, thereupon, repeatedly requested actions by the Committee to clear them of any wrongdoing, such as provision of legal counsel. Mr. Codinha admitted that he was not familiar with the law and promised to look into it. He invited a memorandum from the investigators stating what they wanted. Given Mr. Codinha's statements and reactions to the possibility of criminal liability, the investigators concluded they must request appointment of an independent counsel. A memorandum making such a request and signed by all six intelligence investigators was delivered to Mr. Codinha on 16 April.

h. At 2130 on 16 April, the Chairman of the Senate Select Committee, convened a meeting with the intelligence investigators, who told him personally of their concern that they might have committed a crime by participating in the destruction of the briefing texts at the order of the Staff Director. Senator Kerry stated that he gave the order to destroy the documents, not the Staff Director, and that none of the Senators present at the meeting had objected. He also stated that the issue of document destruction was "moot" because the original briefing text had been deposited with the Office of Senate Security "all along." Both the Staff Director and the Chief Counsel supported this assertion by the Chairman.

i. Senator Kerry's remarks prompted follow-up investigations (See paragraphs 4 through 9 of the attachment) and inquiries that established that a copy of the text was not deposited in the Office of Senate Security until the afternoon of 16 April. The Staff Director has admitted that on the afternoon of 16 April, after receiving a copy of a memorandum from Senator Bob Smith to Senator Kerry in which Senator Smith outlined his concerns about the destruction of documents, she obtained a copy of the intelligence briefing text from the office of Senator McCain and took it to the Office of Senate Security. Office of Senate Security personnel confirmed that the Staff Director gave them an envelope, marked "Eyes Only," to be placed in her personal file. The Staff Director has admitted that the envelope contained the copy of the intelligence briefing text that she obtained from the office of Senator McCain.

3. The facts of the destruction of the intelligence briefing text would seem to fall inside the prescriptions of the Statute, Title 18, U.S.C., Section 2071, so as to justify their referral for investigation to a competent law enforcement authority. The applicability of that Statute was debated in United States v. Poindexter, D.D.C. 1989, 725 F. Supp. 13, in connection with the Iran Contra investigation. The District Court ruled, inter alia, that the National Security Council is a public office within the meaning of the Statute and, thus, that its records and documents fell within the protection of the Statute. In light of that ruling, the Statute would seem to apply to this Senate Select Committee and its Staff. The continued existence of a "bootleg" copy of the intelligence briefing text - i.e., a copy that is not one of those made by the investigators for the purpose of briefing the Select Committee - would seem to be irrelevant to the issues of intent to destroy and willfulness; as well as to the issue of responsibility for the order to destroy all copies of the briefing text, for the attempt to carry out that order, and for the destruction that actually was accomplished in execution of that order.

4. As for the issue of misconduct by Staff attorneys, all member of the Bar swear to uphold the law. That oath may be violated by acts of omission and commission. Even without a violation of the Federal criminal statute, the actions and failures to act by senior Staff attorneys in the sequence of events connected with the destruction of the briefing text might constitute violations

of ethical standards for members of the Bar and of both Senate and Select Committee rules. The statements, actions and failures to act during and after the meeting on 15 April, when the investigators gave notice of their concern about possible criminal liability for document destruction, would seem to reflect disregard for the law and for the rules of the United States Senate.

John F. McCreary

Source

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