White House counsel Lloyd N. Cutler told a Senate subcommitte yesterday that he felt his role in the Billy Carter investigation was not only "ethical and proper" but also instrumental in getting the president's brother to register as a foreign agent.
"I'm sure 10 other competent lawyers, if they had my job, might have done it a different way," Cutler testified. But, he said, "looking back, I like to think I did it just about right."
Several senators on the special subcommittee suggested that Cutler's monitoring of the case through repeated contacts with Billy's lawyers last June and July may have been improper, but Cutler strenuously rejected the idea.
The gray-haired Washington lawyer, who joined the White House staff last year, reminded the subcommitted that it was at his behest that the president called his brother last July 1 and urged him to register as an agent for the Libyan government of Col. Muammar Quaddafi.
The approach was apparently persuasive. Cutler said that a fresh review of his notes and telephone logs for a preliminary deposition last week showed that he spoke with Billy's lawyers, Henry Ruth and Stephen Pollak, July 2 in a telephone conversation that he had not previously recalled.
Thinking back on that contact, Cutler said he realized it was on that occasion that Pollak and Ruth told him "that Billy Carter had authorized them to negotiate a registration statement with the department's lawyers."
In short, Cutler said, "If I had not maintained that contact [with Billy's lawyers] and if the president had remained totally isolated and not made that [July 1 ] call, Billy Carter might never have registered."
Cutler said he believes he mentioned Billy's reported decision to register -- a step Billy had been resisting -- to the president on July 8 or 9 while the president and Cutler were en route to Tokyo to attend a memorial service for Prime Minister Masayoshi Ohira.
The president's counsel continued to hold firm to his earlier statements that he did not know until July 11 of the $220,000 that the Libyans had paid to Billy and that the president did not find out until after his brother publicly disclosed the payments July 14 in his formal registration statement.
During a break in the hearing, Cutler did disclose to reporters, however, that he had told the president much earlier, perhaps on July 1, that Billy was probably getting some kind of reimbursement from the Libyans.
Cutler said he "surmised" -- from the fact that the Justice Department had been investigating Billy since 1979 for his failure to register -- that the president's brother had at least gotten reimbursement of expenses in connection with his trips to Libya and perhaps was on some sort of retainer from the Libyans.
"I told him [the president] what I surmised," Cutler said. "In my view, even reimbursement of expenses would have been enough [to require that Billy sign up as a Libyan agent under the foreign agents' registration law]. I told the president that I didn't know, but I surmised that there must have been reimbursement of expenses and maybe some sort of retainer."
Despite that, Cutler insisted, that he never asked Ruth or Pollak just what payments Billy had gotten and they "carefully avoided" telling him until July 11 when they were on the verge of filling the registration statement itself.
With Cutler defending himself ably at the Senate hearing, the only casualties of the day appeared to have been the 124 House Democrats who were left high and dry after voting for an unsuccessful motion to table a resolution of inquiry into the Billy Carter controversy.
The effort to table the resolution was crushed by a vote of 260 to 124. House Democratic leaders then tried to give the 124 a chance to go on record in favor of the resolution -- and avoid being accused in the forthcoming campaigns of having taken part in a cover-up -- but Speaker Thomas P. (Tip) O'Neill Jr. (D-Mass.) overlooked the need for a roll call until it was too late. He pronounced the resolution of inquiry adopted on voice -- leaving the hapless 124 in the public posture of having voted only once, to squelch the resolution.
"Talk about shooting yourself in the foot," chortled Rep. Robert Bauman (R-Md.). "I think the Democrats may have shot off some other appendages as well. One hundred and twenty four of them are now hanging out on the line to dry, voted they don't want to know any more about the Billy Carter affair, having voted to cover it up. The purpose of the roll call was to get them off the hook."
House Judiciary Committee Chairman Peter Rodino (D-N.J.) was stunned by the outcome. He argued that the resolution itself was "fruitless" and "moot" since the administration has already provided the House with most of the documents that the resolution calls for.
House Republicans, however, were determined to keep the issue alive and they were joined by enough Democrats who were apprehensive over the leadership move. With the motion to table rejected, Rodino moved for adoption of the resolution. But the speaker appeared to have been distracted by Bauman, who jumped to his feet. As a result, O'Neill ignored Rodino's follow-up request for a roll call.
"The speaker said he didn't hear me," Rodino said later in distinctly unhappy tones. He pointed out that he then sought unanimous consent to have a belated roll call anyway, but the Republicans weren't about to allow that. They objected.
Bauman said later that the Democratic leadership, in pushing the motion to table, ignored the rule that "you don't bring up a bill if you don't know where your own troops are."
But yesterday's debacle was even worse, he said, because "when you lose the battle, you at least try to save your wounded. They didn't even know how to do that." y
The resolution of inquiry itself -- which calls for production of documents bearing on the Billy Carter investigation but nothing more -- will presumably require the Carter administration to double-check and submit any pertinent records that have not already been produced.But it will probably have little impact beyond that since the House seems in no mood to start a new investigation on top of the Senate's.
At the Senate hearing yesterday, Culter was the only witness, although he was accompanied by White House special counsel Alfred Moses, who is now in charge of dealing with the Senate inquiry, and Cutler's personal lawyer, John Hupper of the New York firm of Cravath, Swaine and Moore.
Under questioning about just when President Carter heard of the $220,000 in payments to Billy, Cutler indicated that he wasn't sure. He said he told White House press secretary Jody Powell on July 11 to make sure the president was alerted "by the time the court papers were filed."
The Justice Department filed a civel suit, forcing Billy to register under a court order, on July 14. Cutler noted that the president has said he didn't know about the payments until he read the papers the next morning, July 15.
At one point during the hearing, Sen. Strom Thurmond (R-S.C.) suggested that it would have been better if Cutler, instead of dealing through Billy's lawyers, had simply asked the Justice Department to advise the White House when the negotiations had been completed.
Cutler disagreed, saying that "all of you would have been on top of me" with accusations of having tried to intimidate the Justice Department. He said it would have been improper for him to have learned details of the investigation from officials at Justice and then passed them on to the target of the investigation -- but he said there was nothing wrong with "receiving from the target . . . and his counsel the information the Department of Justice had already elected to give" of them.
In another development, subcommittee chairman Birch Bayh (D-Ind.) announced that Bert Lance and his lawyers have agreed to come back to Washington Sept. 18 to prepare a sworn statement by Lance "on all matters pertinent to the subcommittee's inquiry." The statement, Bayh said, will be immediately made available to the public and the press. Lance had refused to give a deposition to the subcommittee Tuesday because it was not to be conducted in public.