The Hill By Ian Miller

The Senate Ethics Committee has ruled that despite the gift ban, the Clinton Legal Expense Fund may continue to accept individual contributions as high as $10,000 to pay the legal expenses incurred by Sen. Hillary Rodham Clinton (D-N.Y.) and former President Clinton before and during their tenure in the White House.

Senate rules provide that senators, Senate officers and employees may set up funds for legal expenses incurred “relating to their service in the United States Senate.” While the fund is pre-existing, it does not relate to Mrs. Clinton’s actions as a senator.

Some question whether the fund can continue to accept contributions under the rules of the Senate. These critics contend that a $10,000 contributor to the Clintons’ legal defense fund could earn more influence than someone who picks up the tab for $100 — the limit for meals under the gift ban — and question whether these contributors will unduly influence Sen. Clinton.

Nevertheless, the Ethics Committee has determined that the fund, established to pay millions of dollars in legal expenses incurred in the Clinton’s defenses in the Whitewater, Travelgate, Filegate and Monica Lewinsky cases, was exempt from the gift ban.

Victor Baird, staff director for the Senate Ethics Committee, said it is committee policy not to comment upon matters under its jurisdiction. But in a Dec. 28, 2000, letter to James Lamb, attorney for the Clinton Legal Expense Trust, Baird said the Ethics Committee “has reviewed the trust, the First Amendment and sworn affidavits and finds that they collectively comply” with Senate rules.

The decision has met with criticism. “It is not on its face clear under current rules why such an account would be permitted,” said Meredith McGehee, senior vice president and legislative director of Common Cause, the public interest group that examines money in politics.

“It would be appropriate for the Ethics Committee to make a public finding to that end and state their case why they have allowed for this to be permitted [under Senate rules], since a legal defense fund can provide another avenue for people to funnel money to senators,” she continued. “It’s very clear that they are not supposed to be for personal legal matters.”

William Canfield, former counsel to the Senate Ethics Committee, wondered whether the committee had ever questioned this aspect of the rule.

“The conduct which has resulted in legal proceedings which [Sen. Clinton] is required to defend herself in is, by definition, conduct that preceded her election to the Senate,” Canfield said. “So the question occurs, were pre-Senate and pre-House service-related legal expenses the kind of expenses that the Congress fought to include when creating the legal defense fund?”

“These are good questions that should be thought about before one makes a wide-scoping judgment,” he continued. “[A legal expense fund] was intended to be a narrow exception to a wide scoping gift rule.” “[The question] probably ought to be revisited,” Canfield added.

Jim Kennedy, a spokesman for Sen. Clinton, said, “The senator has registered with the Senate Ethics Committee to ensure compliance with Senate rules.”

The Senate Ethics Manual states, “Funds may be raised to defray the costs of legal proceedings of any nature — including, but not limited to, a congressional inquiry or investigation; a criminal investigation or proceedings — provided that such proceedings relate to or arise by virtue of the service of the member, officer or employee in or to the Senate.”

As of March 14, the Clinton Legal Expense Trust had received $8.7 million in contributions since its formation in February 1998 to pay for approximately $11.3 million incurred in legal expenses by the Clintons, of which $7.4 million has been paid.

Some ethics lawyers believe that the Senate rule allows for a wide enough interpretation, and the Clintons’ fund should be permitted by the Senate Ethics Committee.

“It would be a great Catch-22, a fine game of ‘gotcha’ to say that she can’t have the legal expense fund because she has moved from one branch of government to another, even though it is consistent with both branches,” said Ellen Weintraub, a former counsel to the Democratic House Ethics Committee and part-time assistant to the Senate committee.

“If the Senate Ethics Committee has approved it, it is by definition ethical,” she said.

Charles Tiefer, a University of Baltimore School of Law professor and former House general counsel, said there is a sufficient amount of ambiguity in the ethics rules to allow for a broad interpretation.

“Sen. Clinton is behaving quite properly in continuing her pre-existing legal defense fund under the elaborate Senate rules regarding disclosure and prohibitions,” Tiefer said.

“While a question would arise about a senator establishing a new legal defense fund for legal expenses unrelated to Senate service, Sen. Clinton does not have to establish a new legal defense fund but merely continue, with disclosure, her old one. That continuing a pre-existing defense fund would no more violate the Senate’s ethics rules than receiving a previously vested pension would violate the Senate’s outside income rules.”

Tiefer stated that “Congress recognizes that people had a life before they arrive [in Congress,]” and while rules do not prevent members from collecting certain outside incomes — investments, pensions, etc. — in like manner, the Senate rules do not assume that outside financial woes have to be discounted.

The Senate gift rule prohibits gifts of more than $100 in any given year to a senator, but a Legal Expense Fund allows for individual donations of up to, but not surpassing, $10,000 per year. The Senate ethics rule for establishing a Legal Expense Fund was adopted on Sept. 30, 1980, and amended Aug. 10, 1988, but has not been revisited since.

Clinton’s election to the Senate has prompted a number of precedent-setting decisions because of the uniqueness of her situation, and the interpretation of Senate rules have been taken to the limit of their literal meaning. These include the senator’s receiving of gifts before she took her Senate seat, and whether the money that former President Clinton is making through speaking engagements, specifically to financial institutions, will affect Clinton’s voting record.

The fund was established to pay for the Clinton’s legal expenses related to the Whitewater investigation, and then carried over to cover the various other legal expenses that arose during the Clinton’s tenure at 1600 Pennsylvania Ave. — including the 11th hour presidential pardons that have garnered so much attention.

-- Anonymous, March 28, 2001