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TITLE |
Page |
COVER |
Cover |
FINAL REPORT OF THE INDEPENDENT COUNSEL IN RE: BRUCE EDWARD BABBITT |
Title Page |
U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ORDER FILED AUGUST 22, 2000 |
Order |
ACKNOWLEDGMENTS |
i |
TABLE OF CONTENTS |
xi |
PREFACE |
1 |
A. The Mandate |
1 |
B. Structure of the Investigation |
2 |
C. Purpose and Approach of the Report to the Special Division |
5 |
I. SYNOPSIS OF EVENTS LEADING TO THE APPOINTMENT OF THE INDEPENDENT COUNSEL
|
7 |
II. REVIEW OF EVIDENCE
|
13 |
A. Origins of the Hudson Casino Proposal |
13 |
1. Indian Gaming in Minnesota and Wisconsin Is a Lucrative Industry in Which Established Participants Have the Ability to Protect Their Financial Interests |
14 |
2. The City of Hudson Is an Attractive Site for Gaming Because of Its Proximity to the Twin Cities |
19 |
3. The Hudson Dog Track Owners First Attempted to Establish An Indian Casino by Seeking a Partnership with the St. Croix Tribe in 1992 |
22 |
4. Minnesota Indian Gaming Association Opposition to the Initial Hudson Proposal |
23 |
5. The Hudson Dog Track Owners Form the Four Feathers Partnership with Three Wisconsin Indian Tribes in a Second Effort to Establish An Indian Casino at the Dog Track |
26 |
B. The BIA Area Office Consideration of the Hudson Casino Proposal |
29 |
1. Legal Framework and Procedures Governing Land to Trust Acquisitions for Off-Reservation Gaming |
29 |
a. The Indian Reorganization Act of 1934 |
29 |
b. The Indian Gaming Regulatory Act of 1988 |
32 |
2. DOI Experience and Procedures for Reviewing Gaming Applications |
39 |
3. Consultation Process and Review of the Hudson Application |
49 |
a. Responses by Local Governments |
50 |
b. Responses by Local Residents and Activists |
51 |
c. Responses by Wisconsin and Minnesota Tribal Governments and Associations |
54 |
1) Tribal Opposition to the Hudson Application Was Led by the Minnesota Indian Gaming Association |
54 |
2) MIGA and Its Members Contact the BIA in Washington |
55 |
3) MIGA and Its Members Contact the Minneapolis Area Office of BIA |
58 |
4. The BIA Issues a Draft Finding of No Significant Impact |
63 |
5. Minneapolis Area Office Recommends Approval Under IGRA 66 |
66 |
C. Coordinated Opposition Efforts By Minnesota and Wisconsin Tribes |
71 |
1. Opponents Mobilize Congressional Support |
72 |
2. MIGA Considers Political Contributions |
75 |
3. The Coordinated Opposition Lobbying Effort Focuses Its Political Arguments and Agenda |
77 |
a. The Tribal Opponents Identify Their Arguments, and Their Audience |
77 |
b. O'Connor & Hannan Joins the Opposition |
82 |
c. The Opponents Secure a Feb. 8 Meeting with Secretary Babbitt's Counselor, John Duffy |
86 |
D. Events Occurring During Early Analysis of the Hudson Application by DOI's Indian Gaming Management Staff (December 1994 - May 1, 1995) |
89 |
1. IGMS's Initial Analysis Identifies Concerns With the Best Interests Analysis, But Finds That The Casino Would Not Be Detrimental to The Surrounding Community |
89 |
2. The Feb. 8, 1995 Meeting of Opponent Tribal Representatives and DOI Officials at Congressman Oberstar's Office |
93 |
a. The "Strategy" Meeting |
94 |
b. The Meeting with John Duffy and George Skibine |
95 |
3. Opponent Representatives Meet with DOI Chief of Staff Thomas Collier on March 15, 1995 |
100 |
4. DOI Sets April 30, 1995, Deadline For Additional Comments |
103 |
5. The Secretary and Senior DOI Officials Meet with Wisconsin Tribes on April 8, 1995 |
105 |
6. Additional Comments Submitted to DOI on the Hudson Proposal |
107 |
a. New Materials Indicating Changes In Support by Local Governments and Other Officials |
107 |
b. Additional Materials, Including Economic Impact Studies, Submitted by Opposition Tribes and Tribal Associations |
111 |
E. Tribal Opponents' Continuing Lobbying Efforts (Feb. 9, 1995 - June 8, 1995) |
114 |
1. Opposition Lobbying on Capitol Hill |
117 |
a. Opponent Representatives Continue to Lobby Individual Congressmen |
117 |
b. Hudson Opponents Lobby Sen. McCain With False Information Regarding the Ownership of the Hudson Dog Track |
124 |
2. Tribal Opponents Seek and Obtain the Assistance of the Democratic National Committee |
128 |
a. Emergence Of A Strategy For DNC Involvement |
128 |
b. DNC's Fund-Raising Strategies in Anticipation of the 1996 Presidential Election |
131 |
c. DNC Native American Fund-Raising Prior to Spring 1995 |
135 |
d. Patrick O'Connor and Larry Kitto Meet with DNC Chairman Fowler on March 15, 1995 |
139 |
e. Discussions Among the Tribal Opponents in Anticipation of the April 28, 1995 Meeting |
142 |
f. Tribal Opponents Meet with Fowler on April 28, 1995 |
147 |
g. The DNC Contacts DOI and the White House About Hudson |
158 |
1) DNC Contact with the White House |
158 |
2) DNC Contact with the Department of the Interior |
160 |
h. DNC Policies and Practices Concerning the Intersection of Fund-raising and Contacts with Administration Officials |
161 |
1) DNC Finance Policies on Administration Contacts |
162 |
2) Evidence of DNC Conduct in Other Matters Involving Both Contributions and Issues Pending Before the Administration |
165 |
3. Tribal Opponents Seek Assistance of Clinton/Gore Campaign |
172 |
4. Tribal Opponents Contact the White House, and the White House Contacts Interior |
177 |
a. Patrick O'Connor's First Attempts to Involve the White House |
177 |
b. O'Connor Speaks to President Clinton and Bruce Lindsey |
178 |
c. O'Connor's May 8, 1995, Letter to Harold Ickes |
185 |
d. Thomas Schneider's Contacts With Ickes |
187 |
e. Ickes's Office Contacts the Interior Department |
191 |
1) Jennifer O'Connor's May 18, 1995, Memo |
193 |
2) Heather Sibbison's June 6, 1995, Conversation with the White House |
197 |
3) Department of the Interior Assistance in Responding to the June 12, 1995, Congressional Letter to Ickes |
199 |
f. White House Policy Regarding Contacts With Agencies |
201 |
g. O'Connor & Hannan Curtails Its Lobbying of the White House Prior to the Decision on July 14, 1995 |
206 |
5. Other Tribal Opponents Continue Lobbying |
207 |
F. Events Occurring During On-Going Analysis of Application by DOI in Washington, D.C. (May 1, 1995-June 8, 1995) |
209 |
1. Collier, Duffy and Skibine Meet with Congressman Oberstar on May 2, 1995 |
209 |
2. The Four Feathers Partnership Enlists Lobbyists |
211 |
3. Four Feathers Partners Meet with Duffy and IGMS Staff on May 17, 1995 |
213 |
4. White House Contacts with Interior During Consideration of the Hudson Application |
216 |
5. Tribal Opponents Meet with Michael Anderson and IGMS Staff on May 23, 1995 |
218 |
6. Four Feathers Representatives Meet with IGMS Staff on May 31, 1995 |
220 |
7. Further Contact Between IGMS Staff and Applicant Representatives |
222 |
8. IGMS Concludes that the Hudson Casino Proposal Would Not Be Detrimental to the Surrounding Community |
224 |
G. The Department of the Interior Decides to Deny the Hudson Application |
229 |
1. Internal Debates Over the Basis of Denial: IGRA Section 20 or IRA and Part 151 Regulations |
229 |
2. Skibine Drafts a Decision Letter Denying the Hudson Application Based Only Upon the Secretary's Discretion Under IRA and Part 151 Regulations |
233 |
3. Duffy Directs that Denial Be Based Upon Section 20 of IGRA, As Well As Section 465 of IRA and its Part 151 Regulations |
237 |
4. Recusal of Assistant Secretary Ada Deer |
241 |
5. The Issuance of the Decision Letter |
242 |
6. Interior Department Witnesses Deny Both Being Influenced by Political Party Affiliations and Being Aware of the Hudson Opponents' Efforts to Obtain Assistance from the DNC |
245 |
7. The Policy Reason Given for the Hudson Decision Was Neither a Long-Standing, Nor a Consistently Applied, Interior Policy |
247 |
8. Secretary Babbitt's Involvement in Consideration of the Hudson Application |
253 |
a. Babbitt's Participation in Indian Gaming Matters Generally |
253 |
b. Babbitt's Role in the Hudson Decision-Making Process and Early Contacts with Interested Parties |
256 |
c. Secretary Babbitt's Contact with Paul Eckstein |
265 |
d. Eckstein and Babbitt's May 17 Meeting |
272 |
e. Additional Approaches to Babbitt by Applicant Representatives |
274 |
H. Events of July 14, 1995 |
277 |
1. Eckstein Arranges a Meeting with Duffy |
277 |
2. Eckstein and Moody Meet with Duffy on July 14, 1995 |
278 |
3. Eckstein's July 14, 1995, Meeting with Secretary Babbitt |
282 |
4. Further Efforts By the Applicant Representatives to Delay the Decision |
290 |
I. Efforts to Reverse the Hudson Denial |
293 |
1. The Applicants and Havenick Seek Reconsideration of the Denial |
293 |
2. Eckstein Provides an Affidavit Regarding Contact with Secretary Babbitt in Litigation Challenging DOI's Denial of the Hudson Application |
306 |
3. Applicant Tribes Meet with IGMS Director Skibine and Staff Members on Dec. 3, 1996 |
308 |
J. The Opponent Tribes Contribute Heavily to Democrats in the 1996 Election Cycle |
311 |
1. 1995 Contribution Activity Prior to the Hudson Decision |
312 |
2. DNC Contacts with the Tribal Opponents in the Aftermath of the Hudson Decision |
313 |
3. Other DNC Native American Fund-Raising Efforts in 1995 |
317 |
4. The DNC's Parallel Indian Fund-Raising Efforts Collide in August 1995 |
321 |
5. DNC Indian Solicitations and Contributions by the Hudson Opponent Tribes in Late Summer and Fall 1995 |
327 |
6. Summary and Evaluation of Tribal Opponents' National Democratic Contributions in 1995-96 |
333 |
K. Secretary Babbitt's Various Statements and Testimony |
352 |
1. The Wall Street Journal July 12, 1996, Article |
352 |
a. Ickes's Office Examines the Hudson Matter Internally in Anticipation of the Wall Street Journal Article Alleging Potential Impropriety in the Hudson Decision |
354 |
b. Sen. McCain Writes Letters to Secretary Babbitt, President Clinton and Deputy Chief of Staff Ickes |
356 |
c. The White House Responds to Sen. McCain's Letters to the President and the Deputy Chief of Staff |
359 |
d. Babbitt Responds to McCain's July 1996 Correspondence |
364 |
e. McCain's Reaction to the Responses |
368 |
2. Secretary Babbitt's Oct. 10, 1997, Letter to Sen. Thompson |
370 |
3. Secretary Babbitt's Telephone Conversation with Sen. McCain Regarding Babbitt's Aug. 30, 1996, Letter |
377 |
4. Secretary Babbitt's Testimony Before the Senate Governmental Affairs Committee |
379 |
5. Secretary Babbitt's Testimony Before the House Government Reform and Oversight Committee |
394 |
6. Secretary Babbitt's Interviews During the DOJ Preliminary Investigation |
398 |
7. Secretary Babbitt's Grand Jury Testimony |
401 |
III. LEGAL ANALYSIS OF EVIDENCE |
415 |
A. There Is Insufficient Evidence to Warrant Criminal Prosecution of Any Conduct Related to the Hudson Casino Proposal, Including Secretary Babbitt's Congressional Testimony |
415 |
1. Babbitt's Testimony and Other Evidence Before the Senate Committee on Governmental Affairs Raised Questions About Whether the Hudson Casino Decision Had Been Criminally Corrupted by Campaign Contributions |
415 |
2. These Well-Founded Concerns About the Secretary's Testimony and the Facts and Circumstances Surrounding the Casino Decision Led to the Appointment of an Independent Counsel |
417 |
3. After a Thorough Investigation and Analysis of the Facts and Circumstances Surrounding the Alleged Corruption and Perjury, the OIC Has Concluded that No Prosecution Is Justified |
418 |
B. There is Insufficient Evidence to Prove that the Hudson Casino Decision Was Criminally Corrupted |
425 |
1. A Campaign Contribution Can Form the Basis of a Federal Bribery Charge Only If an Official and a Contributor Specifically and Corruptly Agree that a Contribution Is Being Given and Received in Exchange for an Official Act |
425 |
2. There Is Insufficient Evidence to Prove that the Hudson Matter Was the Subject of a Corrupt Quid Pro Quo |
430 |
3. There Is Insufficient Evidence to Support a Finding that Any Other Federal Criminal Corruption Statutes Were Violated in the Hudson Matter |
442 |
C. There Is Insufficient Evidence to Prove that Secretary Babbitt Perjured Himself Before Congress |
445 |
1. There Is Insufficient Evidence to Prove that Babbitt Perjured Himself in Testifying About What He Said to Paul Eckstein About Harold Ickes's Involvement in the Hudson Casino Proposal |
447 |
a. Evidence Relating to Whether Babbitt's Testimony About His Conversation with Eckstein Was True or False |
452 |
1) Eckstein Repeated Key Parts of the Babbitt-Eckstein Conversation Shortly After the Meeting to at Least Four People, Each of Whom Has Corroborated Eckstein's Version of the Conversation |
453 |
2) Babbitt's Asserted Purpose for Invoking Ickes's Name Undermines His Subsequent Insistence that He Did Not Tell Eckstein the Decision Had to Be Issued "That Day" |
455 |
3) Babbitt's Testimony About the Eckstein Conversation Was Internally Inconsistent |
456 |
4) Babbitt Fully Understood the Meaning of the Senators' Questions |
457 |
5) The "Two-Witness Rule" Is Satisfied |
459 |
b. Babbitt's Testimony about His Conversation with Eckstein Was Material to the Senate Committee on Governmental Affairs |
462 |
c. There Is Insufficient Evidence to Prove that Babbitt Possessed the Requisite Intent to Provide False Testimony |
464 |
2. There Is Insufficient Evidence to Prove that Babbitt Perjured Himself in Testifying About Whether He Intended to Mislead Sen. McCain with His Aug. 30, 1996 Letter |
466 |
a. Evidence Relating to Whether Babbitt's Testimony That He Did Not Intend to Mislead McCain Was True or False |
469 |
1) The Text of Babbitt's Letter to McCain Shows He Misled McCain |
470 |
2) Babbitt's Letter to McCain Was Drafted as a Flat Denial that Babbitt Invoked Ickes's Name |
475 |
3) Babbitt's Subsequent Conduct Is Probative of Whether He Intended to Mislead McCain |
477 |
(a) Babbitt Wrote a Letter to Thompson in October 1997, Admitting That He Invoked Ickes's Name to Eckstein |
477 |
(b) Babbitt Telephoned McCain and Apologized for Misleading Him |
478 |
4) Babbitt Had a Motive to Mislead McCain |
479 |
b. Babbitt's Testimony About His Letter to McCain Was Material to the Senate Committee on Governmental Affairs |
480 |
c. There is Insufficient Evidence to Prove that Babbitt Possessed the Requisite Intent to Provide False Testimony with Respect to the McCain Letter |
482 |
APPENDIX |
App. 1 |
Responses Filed |
March 20, 2000, Michael Brozek |
App. 2 |
April 20, 2000, JoAnn Jones |
App. 5 |
May 12, 2000, Gerald E. Sikorski |
App. 9 |
May 30, 2000, Shakopee Mdewakanton Sioux Community, Stanley R. Crooks, Glynn A. Crooks, Susan Totenhagen, Paul Kempf, Kurt V. BlueDog, and William J. Hardacker |
App. 14 |
June 2, 2000, The Honorable Bruce Edward Babbitt |
App. 24 |
June 2, 2000, Patrick J. O'Connor |
App. 40 |
June 5, 2000, Thomas Collier |
App. 46 |
June 5, 2000, Cheryl D. Mills |
App. 52 |
June 5, 2000, David Mercer |
App. 56 |
June 5, 2000, Scott Dacey |
App. 62 |
June 5, 2000, Donald L. Fowler |
App. 76 |
June 5, 2000, The Honorable Albert Gore, Jr. |
App. 82 |
June 5, 2000, Chris McNeil, Jr. |
App. 86 |
June 7, 2000, Elena Kagan |
App. 90 |
MAP - Principal Tribal Locations and Cities |
App. 97 |