The MacNeil/Lehrer NewsHour

MR. MAC NEIL: Good evening. I'm Robert MacNeil in New York.

MR. LEHRER: And I'm Jim Lehrer in Washington. After our summary of the news this Thursday, [Newsmakers - Whitewater Report] Congressman Jim Leach and White House Lloyd Cutler react to the first report of a Whitewater independent counsel. Two legal scholars assess two major Supreme Court decisions and the court that made them [Focus - End of the Term], and two journalists explain the latest change of government in Japan [Focus - Politics Japanese Style]. NEWS SUMMARY

MR. MAC NEIL: The Whitewater special counsel, Robert Fiske, said today his investigation has concluded that White House Deputy Counsel Vincent Foster killed himself last July during a bout with depression, and his death was not related to the so-called "Whitewater Affair." It was the first phase of the special counsel investigation into President and Mrs. Clinton's involvement in an Arkansas land deal. Another part of the report concluded that White House aides broke no laws when they discussed a Whitewater-related savings & loan case with Treasury officials. White House Counsel Lloyd Cutler welcomed the findings at a briefing for reporters.

LLOYD CUTLER, White House Counsel: The independent counsel's report establishes conclusively that Vincent Foster committed suicide in Ft. Marcey Park just as the park police reported at the time. This should put to rest the irresponsible speculations, many of them politically motivated, that something more sinister had occurred. And we're also pleased by the independent counsel's conclusion that no indictments will be sought relating to the White House/Treasury contact so called. And while some of these contacts may have been inadvisable in hind sight, in our view, they violated no law.

MR. MAC NEIL: Republican Senator Alfonse D'Amato said White House contacts with Treasury officials were improper, if not illegal. He said they appeared to be aimed at obstructing justice or influencing an ongoing investigation. Republican Congressman Jim Leach said today's report was good news for administration officials but said it covered only about 5 percent of the Whitewater matter. We'll have more on this story right after this News Summary. Jim.

MR. LEHRER: The Supreme Court ruled on cases today involving abortion protests and voting rights. By a 6 to 3 vote, the Justices upheld a Florida judge's ban on protests within 36 feet of an abortion clinic in Melbourne, Florida. Anti-abortion activists said the ban violated their rights of free speech. In another Florida case, the court threw out a minority redistricting plan ordered by a lower court. It had boosted the number of Hispanic-held seats for the Florida House of Representatives. We'll have more on both cases later in the program.

MR. MAC NEIL: The CBS Television Network and QVC Home Shopping Company today announced they were close to a merger deal. CBS owns and operates seven TV stations and twenty-one radio stations. QVC sells consumer products through cable TV. The two companies have combined assets of more than $5 billion. In other economic news today, the Commerce Department reported that Americans earned and spent more in May. Personal income rose .6 percent, the fourth straight gain, and consumer spending increased by .4 after dropping in April. The Commerce Department also reported factory orders rose .6 percent. Much of the gain was due to rise in orders for aircraft and parts.

MR. LEHRER: The House Ways & Means Committee passed a Clinton type health reform bill today. It requires employers to pay a share of workers' insurance costs. The vote was 20 to 18 with all the committee's Republicans and four Democrats voting against it. But on the Senate side, the Finance Committee defeated an employer mandate proposal, and the U.S. Chamber of Commerce and other business groups today endorsed Senate Republican Leader Bob Dole's plan, which contains no mandates. At the White House, President Clinton assailed the Dole proposal in a speech to a gathering of small business people.

PRESIDENT CLINTON: Yesterday, Senator Dole offered a plan, and well, let's just talk about it. Small business and middle class families are not affected by it, except they lose more under the plan if it passes. It leaves small business at the mercy of insurance companies who can still discriminate against certain businesses, still charge small business more than big business, still leave million of workers in small firms uncovered. The alternative plan is really old style government, the same thing you used to get really from both parties. It does a little bit for the poor. It leaves all the powerful vested interest groups with everything they've got, and it walks away from the middle class and small business. It is politics as usual.

MR. LEHRER: Sen. Dole responded to the President. He did so at a news conference on Capitol Hill.

SEN. ROBERT DOLE, Minority Leader: This is not a partisan bill. It's another option. We're talking to Democrats in the House and the Senate. We're serious about it. We think it does most everything the American people want done, and according to one of the publications support is still dropping for the President's plan, so I hope he -- I think he's probably just made this statement probably without really looking at our plan. He ought to look at it first and I'm going to send him a copy this morning, because I think he needs to look at it. He needs to study it. He needs to know this is not politics as usual. When you get 40 Republicans together on anything, it's not politics as usual.

MR. LEHRER: The Dole Bill provides increased access to insurance but does not provide universal coverage. President Clinton told a group of Senators today he would not back down on his insistence that a final bill provide coverage for all Americans.

MR. MAC NEIL: A preliminary hearing began today to determine whether Los Angeles officials have enough evidence to bring O.J. Simpson to trial in the murders of his ex-wife and a friend of hers. But before the actual hearing could begin, defense and prosecution lawyers argued over how the evidence would be divided for independent testing by each side. Prosecutors presented a list of more than a hundred pieces of evidence, much of it accumulated at the crime scene and at Simpson's home. Defense lawyers have filed papers arguing that some of that evidence was improperly obtained. The U.S. Figure Skating Association today stripped Tonya Harding of her 1994 national title. It also banned her from the association for life. The action was taken because of Harding's role in the clubbing attack on rival skater, Nancy Kerrigan. Harding's husband and three other people admitted to the assault which forced Kerrigan out of the competition. Harding pleaded guilty to conspiracy and hindering the prosecution.

MR. LEHRER: Sec. of State Christopher said today the military leaders of Haiti were responsible for the new exodus of refugees from there. More than 3,000 boat people have been intercepted by the U.S. Coast Guard just in the last six days. Refugee groups claim the reason for the exodus is the U.S. decision to grant Haitians asylum hearings. But Christopher disputed that. He spoke to the Senate Foreign Relations Committee.

WARREN CHRISTOPHER, Secretary of State: The recent increase in the refugee flow from Haiti is a result of the repressive regime's constant efforts. The illegitimate military regime's repression is what's caused the outflow of refugees. Our strategy now is to put maximum pressure on the military and the police and their wealthy supporters. And I think we are now getting some traction there. We're getting some effect of the sanctions that are underway. I can't tell you when, when the military and police leaders will be out. I think they will ultimately be out because of the pressure we've brought and also because we've not excluded other possible remedies.

MR. LEHRER: The Secretary also said a special international tribunal should investigate the genocide occurring in Rwanda. A United Nations investigator reached the same conclusion in a report issued today. He said the massacres seemed systematically planned and that the number of people killed could be as high as one million.

MR. MAC NEIL: Russian President Boris Yeltsin will officially participate in next week's G-7 summit in Naples, Italy. National Security Adviser Anthony Lake said today Yeltsin will take part in discussions on the last day of the summit and may sign the group's political declaration. That statement will probably focus on the war in Bosnia and the North Korean nuclear situation. It'll be the first time a Russian leader has had an official role at the G-7 talks. That's our summary of the news. Now it's on to the Whitewater report, the Supreme Court, and Japan's new government. NEWSMAKERS - WHITEWATER REPORT

MR. LEHRER: Whitewater is our lead story tonight. Special Counsel Robert Fiske today released part one, the so-called Washington phase of his investigation. He concluded that White House and Treasury Department officials did not improperly influence a federal investigation into Madison Savings & Loan and that former White House Deputy Counsel Vincent Foster's death was a suicide and that it had nothing to do with the Whitewater matter. We get two reactions to today's report from the Republican who has been leading the congressional push for investigations into the Whitewater affair and from White House Counsel Lloyd Cutler. First, the Congressman, Jim Leach of Iowa. Congressman, welcome.

REP. LEACH: Good to be with you, Jim.

MR. LEHRER: All right. There are three aspects essentially to what Mr. Fiske said today, and let's go through them one at a time. Do you accept the finding that Vince Foster's death was a suicide?

REP. LEACH: Yes, I do. And I would like to stress Bob Fiske is an honorable man doing an honorable job, and he brought in some of the finest forensic experts in the country. I have no background in the area of forensic criminology. They do. I assume that their findings are thoroughly correct.

MR. LEHRER: Did you -- until Mr. Fiske made his report today -- think otherwise or suspect otherwise? What was your state of mind before today?

REP. LEACH: On this issue I've never had much doubt at all, and I think this is good news for the family, you know, to put this issue aside. Clearly, Vincent Foster was an extraordinarily superior man who was also very troubled and the -- for whatever reason, his state of mind was such that led to a suicide. It's sad. It's tragic. This aspect of Whitewater must be put behind.

MR. LEHRER: Do you agree with the second part of the conclusion that Whitewater -- concern about the Whitewater affair had absolutely nothing to do with the depression of Vince Foster that caused him to kill himself?

REP. LEACH: Well, I think that's a subject no one will ever know for sure. Clearly, the special counsel interviewing a number of people in the White House took their representations that Mr. Foster had never discussed Whitewater with them and took that very seriously. He knows more about those discussions than anyone else, and I am not here to object to that conclusion. I might, you know, maintain some skepticism, but I want to accept to accept to the fullest degree possible the special counsel's report.

MR. LEHRER: What is your reaction to Mr. Cutler's reaction to the report today that much of the rumor mongering, I think is the term he used, about the death of Vincent Foster was politically motivated, a suggestion, of course, that was coming from Republicans and others who were trying to harm the President?

REP. LEACH: Well, I think it is true that there's been a lot of rumors. To say that it's come from a political party I think frankly is somewhat doubtful. It has come from conservative people who have doubts about the circumstance and that may or may not be sympathetic with the President and his views. But certainly there's been no orchestrated political party manipulation of this part of the issue. And I don't suspect he intended to imply that.

MR. LEHRER: Do you expect this to stop now as a result of today's report, whatever the motivations, wherever it's coming from?

REP. LEACH: I would hope that what this report, which deals with about 5 percent of the Whitewater circumstance, i.e., things that happen in Washington, and a very tragic suicide can largely be put behind. I think it is excellent news for governance in general that the special counsel has concluded that there is insufficient evidence for bringing criminal charges, although clearly from those of us who followed it, there might be some improprieties that might --

MR. LEHRER: Now you're talking there now about -- excuse me -- that's the third aspect of this.

REP. LEACH: No, that's the second aspect.

MR. LEHRER: All right. The contacts between White House officials with Treasury officials.

REP. LEACH: Treasury officials. Clearly, there are some improprieties that might well have breached ethical guidelines and inquiries in that regard, both in Mr. Cutler's office and at Treasury, are ongoing and I think are appropriate for congressional review.

MR. LEHRER: Do you think Congress should pursue this matter of the contacts between the Treasury and the White House?

REP. LEACH: I think it is very crucial that it be pursued with two kind of balancing circumstances in mind. One is that in America we have a circumstance that no person should be above the law and should be able to craft the law or processes that benefit them. On the other hand, I think we also should understand that when people work for a President, it's not unnatural that they would want to protect that process. And so some of which has occurred I think is a very natural and understandable circumstances. Some may have breached very clear ethical guidelines, both at the Treasury, the RTC as well as the White House, but that will be the subject to review by Congress as well as the agencies involved.

MR. LEHRER: Do you accept Mr. Fiske's conclusion that, that there may have been improper or ethical -- I'm paraphrasing here -- but his conclusion was that there -- that he was not going to ask for any indictment, that he was not going to allege that any criminal laws had been violated. Do you accept that on the face of it?

REP. LEACH: I expect -- I accept his judgment, and I would also stress that when you're dealing with something that might become a close call, you should give the benefit of the doubt to the people who work for the President, and if there was a close call, I think the benefit of the doubt should have been for the people involved, and I would stress as strongly as I can I have argued that we're dealing largely here with an issue of public ethics, rather than criminality, particularly as it relates to the White House RTC-Treasury kinds of contacts. There may be aspects of other parts of the investigation about what occurred in Arkansas, which is --

MR. LEHRER: Which is the big part of this.

REP. LEACH: And for which the special counsel has an ongoing and very in-depth investigation that may or may not lead to charges, although I do not believe it will lead to charges involving people in the White House today.

MR. LEHRER: Congressman, let me ask you this. You said you praised -- in your first answer -- you praised Mr. Fiske. Based on this is the first product we have seen thus far, you have seen thus far of, of his work as the independent counsel, and you are credited with, with having more knowledge probably than anybody about the ins and outs of the Whitewater affair, based on what you've seen in this first report, how -- how would you grade him in terms of his evenhandedness and his professionalism or in any other criteria you would like to bring?

REP. LEACH: Well, I think he gets top marks for bringing together some of the best people in the country in the very narrow area of forensic criminology. And I would hope that his report would be fully accepted in that regard. I think he's also demonstrated a human touch in being very sympathetic to the man, Vincent Foster, someone, frankly, who I've never met but have come to have the sense for as a public servant and for his difficulties. And I think that anyone that does not have the human empathy for someone who comes to be criticized in public life and finds it so troubling that he makes a decision for suicide I think has no balance. I mean, this is a human circumstance for which there should be great sympathy and not the reverse. In terms ofthe work product, it is quite clear that Mr. Fiske interviewed a large number of people. It is quite clear that he interviewed at great presumption the President of the United States and his wife. And that has to be a very difficult art for any kind of, of counsel. And so even though one might say there would be partisan advantage to another set of conclusions, I am extremely pleased with this set of conclusions on this part of the probe.

MR. LEHRER: And what does that set in your mind as far as your expectations for what Mr. Fiske may or may not accomplish in the next phase, the phase -- the other 95 percent that you referred to?

REP. LEACH: Well, Mr. Fiske operates with a great deal of confidentiality, but I am personally impressed with the team of lawyers he's put in place, with his FBI assistance, and the comprehensiveness of the probe that is underway in Arkansas, at least as it relates to the failure of a financial institution which, after all, is the mandate of Mr. Fiske. Whether or not they broaden the probe to include other issues that have come up over the last six or eight months is a matter of review. But with regard to the failure of an S&L and the ancillary kinds of issues rounded into taxpayer losses which in percentage terms were more significant. I'm very confident Mr. Fiske will do a very thorough job and that a very thorough investigation is underway.

MR. LEHRER: All right. Congressman, thank you very much.

REP. LEACH: Thank you.

MR. LEHRER: Now, for the White House perspective, and it comes from White House Counsel Lloyd Cutler. Mr. Cutler, welcome. Let's start where we finished with the Congressman and work backward. What is your reading of Mr. Fiske's work product and just your evaluation, his findings aside about how he went about this, and what do you think of this first outpouring here?

MR. CUTLER: Well, I think this first outpouring is an excellent demonstration of what a capable lawyer, investigator, and careful prosecutor Mr. Fiske is. I've known Mr. Fiske for years. Professionally, I have the highest opinion of his abilities. I agree with Jim Leach entirely about Mr. Fiske's qualifications and capabilities for the job.

MR. LEHRER: So then if he should come up in the next phase with something that is less favorable, your position or the President's position, you won't be, be saying, hey, wait a minute, I knew from the first that maybe this guy -- in other words, he has got your - - he has passed your credibility test at least on the first round?

MR. CUTLER: Oh, I noticed that Jim Leach took a little caveat on that. He said he approved what he did during this first phase, but should Mr. Fiske do something later on that I might disagree with I would not base my disagreement on his lack of qualification or prejudice or fairness.

MR. LEHRER: All right. Now, his finding specifically, the Vincent Foster matter, from your perspective is that now behind -- should that be behind all public scrutiny at this point?

MR. CUTLER: It should be behind any further public scrutiny. I have been through this report in some detail. And I am certainly not a pathologist any more than Jim is, but it is entirely convincing to me and it should make these rumor mongerers, as you said, who were circulating ideas that Vince Foster had been murdered instead of shot, that it had been done by a German hit team, that if he committed suicide, his body had been moved, it should make them very ashamed. And those that Jim referred to, the issue of whether any of these charges were politically motivated, they were certainlycirculated. Sen. Dole referred to the "alleged suicide." Sen. D'Amato suspected and said publicly he thought the body must have been moved from another location. And Congressman Dornan compared this case to Chappaquidick.

MR. LEHRER: And that says to you --

MR. CUTLER: That says to me I think they also should leave the Foster family in peace.

MR. LEHRER: And do you -- excuse me.

MR. CUTLER: I might also point out the Wall Street Journal said shortly after the suicide that if it should turn out that Mr. Foster committed suicide for personal reasons then it would be entirely appropriate to mourn him. And I hope the Wall Street Journal will do that appropriately now.

MR. LEHRER: Do you expect them to?

MR. CUTLER: I won't answer that question. Let's watch and see.

MR. LEHRER: Do you expect all of the people that you just named, the Wall Street Journal and the Senators you just named and the Congressmen you just named to put this aside? I mean, what do you think that the impact of this report today from Mr. Fiske is going to be on the Vincent Foster matters?

MR. CUTLER: With respect to the physical facts of the Foster suicide and whether Whitewater had anything to do with it, and what the causes were, it seems to me that should be a dead issue. Congress in its oversight capacity has every right to look further and to listen to anyone who disagrees with the Foster report that the, the Fiske report about Mr. Foster, but I doubt that many will appear to challenge it.

MR. LEHRER: All right. Let's go to the other major part of this which is the White House/Treasury contacts. What happens next, from your point of view? Is the fact that Mr. Fiske says that no laws were violated, that doesn't end it, does it?

MR. CUTLER: I don't think it ends it. Mr. Fiske said at the very end of his report -- his little five-page report on this subject - - that Treasury Sec. Bentsen had announced shortly after the news of the contacts became public that he had asked the Office of Government Ethics to conduct an investigation. Mr. Fiske says he asked that that investigation be suspended so that he could go forward with his inquiry and that he expected it would now be resumed. In the White House, we're going to make a parallel review, so far as the White House people are concerned, and we also will be consulting the Office of Government Ethics, and I imagine that in these hearings, both Sec. Bentsen and I on behalf of the White House will state the conclusions we have reached. Jim, Mr. Fiske did not suggest that there were improprieties. He said he was not passing on whether there were improprieties, i.e., a careful prosecutor was not within his domain.

MR. LEHRER: I misspoke. But you have said that in hind sight this shouldn't have happened, right?

MR. CUTLER: And the President said shortly after the news of these contacts became public, he said it would have been better if some of these contacts had not occurred. The question is really a question of appearances. It does not appear to me, but I am also in a very early stage of my own review since Mr. Fiske also asked us to refrain from querying people in the White House while he was doing his investigation. It does seem to me that most of these contacts appeared to be quite innocent and not intended to obstruct justice. Indeed, Mr. Fiske has concluded that there is insufficient evidence of any attempt to obstruct justice.

MR. LEHRER: Well, what was the intent?

MR. CUTLER: Part of the intent, if you take the case of George Stephanopoulos and his reaction to the news that Jay Stevens, anannounced political opponent and critic of the President, is being detained by the RTC to sue the civil side of any possible case against the Clintons, his reaction was perfectly understandable. I believe Mr. Leach has expressed the same sentiment, and Mr. Fitzwater, who is I believe President Bush's press secretary, said the same thing. It was perfectly understandable from his point of view. I don't want to pre-judge where I'm going to come out in my own review of what happened, and what remedial measures we should take to make sure that a similar event occurs in the future, but I believe it was a perfectly understandable event.

MR. LEHRER: Do you believe that the, the total Fiske report today should in any way change the nature of the congressional hearings that are about to begin next month, toward the end of next month?

MR. CUTLER: Well, I would hope it would reduce the portion of those hearings that are devoted to the physical facts of the Foster suicide and any possible relationship they may have had to Whitewater. I believe that is -- should be a dead issue at this point, although Congress is free to look into it if it wishes. With respect to the other issues, the contacts issue, there are questions not resolved by Mr. Fiske which I assume they will wish to go into about the nature of the contacts and whether any ethical rule was violated or whether further precaution should have been taken to prevent such contacts from occurring.

MR. LEHRER: Do you agree with Congressman Leach that all we have here today is 5 percent of the 100 percent that is now referred to as the Whitewater matter?

MR. CUTLER: Yes. But I would make the further comment with which I think he would agree that not more than another 5 percent relates to President and Mrs. Clinton. The so-called Whitewater matter is really a matter of the failure of an S&L run by Mr. MacDougal and the only part of it related to the Clintons is whether Mr. MacDougal may have improperly diverted some Madison Guaranty S&L funds into the Whitewater partnership he had with the Clintons and whether that might have benefited the Clintons and the other peripheral issue is whether Madison Guaranty money might have been used in an effort of Mr. MacDougal to assemble political contributions for a Clinton gubernatorial campaign. But if that 5 percent and the other 5 percent of his Washington events are added together, 90 percent of Mr. Fiske's tasks relates to whether officers and directors and other people who involve Madison Guaranty, itself, acted improperly either in the criminal or the civil sense and whether suits should be brought against them. That is the 90 percent of the iceberg that's full of water and is going on and is going to take Mr. Fiske so much time.

MR. LEHRER: Have you looked at the 5 percent in-between, in other words, the 5 percent that does involve the Clintons? Have you looked at that in-between?

MR. CUTLER: I am aware of it. I read the newspapers. The Clintons, as you know, have their own private counsel in that case, David Kendall of Williams & Connolly. I am in touch with Mr. Kendall from time to time. I probably don't know as much about it as Mr. Leach because he has talked at great length with the RTC, and we're not allowed to do so.

MR. LEHRER: Did the -- in the interviews that the Fiske -- that Robert Fiske had with the President and Mrs. Clinton, did they talk about the other 90 percent? Was that only about the --

MR. CUTLER: It was limited to the so-called Washington events which are the Foster suicide, the disposition of the papers in Mr. Foster's office, and the alleged White House Treasury contacts.

MR. LEHRER: Is there going to be a second round of interviews with the Clintons about this?

MR. CUTLER: I don't know. We have not been asked.

MR. LEHRER: You have not -- there's been no request at this point?

MR. CUTLER: No. And Mr. Fiske, I think, is really, while his Arkansas grand jury has been going on, I don't think he has devoted much time up to the present to the portions of that investigation that relate directly to the Clintons. We don't know, of course, because we're not privy to his investigations.

MR. LEHRER: Finally, Mr. Cutler, did you talk to the President about this report today?

MR. CUTLER: Yes, I did.

MR. LEHRER: What did he say? What was his reaction?

MR. CUTLER: He is very gratified, in particular, as to the conclusions relating to Vincent Foster, his very close personal friend, the damage that has been done to the Foster family and the fact that damage should now be at an end.

MR. LEHRER: Mr. Cutler, thank you very much.

MR. MAC NEIL: Still ahead on the NewsHour, the end of a Supreme Court term and Japan's new government. FOCUS - END OF THE TERM

MR. MAC NEIL: A Supreme Court wrap-up is next tonight. The court finished its term today, handing down decisions on voters' rights and on access to abortion clinics. The court threw out a Florida, court-ordered redistricting plan that had boosted the number of Hispanic-dominated seats for the state House of Representatives. The court said abortion protesters can be made to stay behind a 36 foot buffer zone outside an abortion clinic.

MR. MAC NEIL: For an overview of the court's decisions this term, we turn to Kenneth Starr, former solicitor general for the Bush administration, and Laurence Tribe, a professor of law at Harvard Law School. Prof. Tribe, can the abortion rights group legitimately claim a victory today?

PROF. TRIBE: Well, I think that there was a victory for access to abortion clinics in the sense that the Supreme Court was willing to uphold narrow restrictions on those who would interfere with such access. At the same time, there was a significant First Amendment victory for abortion protesters because the Court struck down numerous aspects of the injunction that have been entered by the Florida court, so that although I'm not myself satisfied with the guidance the court provided, there was a victory of sorts for both sides.

MR. MAC NEIL: In other words, they said you could keep protesters outside a 36-foot buffer zone but you couldn't stop protesters from interfering with women on the way to have an abortion or consult an abortion in a 300-foot area?

PROF. TRIBE: Well, it was not only 300 versus 36 line, they also said that the 36-foot zone was impermissible in the back or the side of the clinic because it wasn't quite necessary there. They also said that a number of rules of engagement within 300 feet were too broad. And they said that you couldn't prevent people from holding up signs and pictures of fetuses where they are visible. There were a number of important First Amendment victories.

MR. MAC NEIL: Do you see it that way, Mr. Starr, a victory in a sense for abortion rights people but also for free speech?

MR. STARR: I think it was a mixed decision, Robin. It seems to me that the court was almost subconsciously trying to find middle ground here to vindicate First Amendment interest and at the same time take into account the right of individuals to seek access to clinics as well as frankly one thing that featured in the court's opinion is the right of people who own property to carry on the lawful activities of that property. So I think those were considerations that were guiding the court. I think it was trying to embrace a middle road, moderate solution to the problem.

MR. MAC NEIL: So you wouldn't agree then with Mr. Justice Scalia's dissent with two other justices that this decision damaged free speech?

MR. STARR: I think it is a damaging opinion to free speech because the court was quite willing in order to embrace a moderate solution to say that certain First Amendment rights must, in fact, give way, and the court, in fact, was very creative in order to be moderate, creating a new kind of standard. So it was if the court was saying our present view of the First Amendment isn't quite adequate for these circumstances, so we're going to create a new rule that will frankly allow us to regulate almost in an administrative law sense of very closely calibrating the way people conduct themselves in this particular jurisdiction. It's almost as if this was a doctrine for abortion clinics as opposed to generally applicable doctrine.

MR. MAC NEIL: Do you see it as an infringement of free speech or carving out new ground, Mr. Tribe?

PROF. TRIBE: To some extent, I'd have to admit that I do, although I think that the majority opinion by Chief Justice Rehnquist did not, contrary to what Ken Starr suggests, bend over backwards to help abortion clinics. It's not exactly his agenda. I do think that the novel standard that was enunciated with a very substantial amount of deference to certain findings by the judge who issued the injunction will give the court some difficulty in the future in areas where I think everybody is going to agree speech should be protected.

MR. MAC NEIL: You mean, other people can come and claim that they -- because what they do is legal and important -- that the free speech of people who don't like it should be curtailed?

PROF. TRIBE: Well, curtailed at least when you have a history as in this case of first a very narrow injunction that was allegedly violated, and then a follow-up injunction. The case is so fact specific that I think the attempt by Justice Scalia in dissent to say that the apocalypse is here for free speech, that was not very believable. He even cited the infamous Koramatsu decision where the Supreme Court upheld the relocation of Americans of Japanese descent as though this was somehow as terrible as that. And there, I think, he really went off the wall.

MR. MAC NEIL: Mr. Starr, the court took a less liberal or should I say more conservative position, it would seem, on the two Florida voting rights cases. What do you think is significant in the decision on minority voting districts?

MR. STARR: Two things, Robin. For one thing, it seems to me that the court finds this area of racial politics, the demographics of race, and racial voting to be the most difficult area on its docket right now. It struggles with this area. It is deeply divided over the area and yet, once again, what has the court done? I think the court has tried to move in a moderate, cautious way, not to rock the boat too much, but nonetheless to say there are only so -- there's only so much ground covered by the federal statute known as the Voting Rights Act, that it's very, very important. But the lower court should not seek to use this as a way to bring about a very substantial political transformation, that the court does not view Section 2 of the Voting Rights Act in particular as a license for courts to take considerable liberty with the districts that are drawn --

MR. MAC NEIL: Would you just -- for those of us who don't know all the details -- would you just sketch in, just summarize what the decision was in that case?

MR. STARR: What the decision essentially was reviewing in the Florida case was districts drawn by a district court and a, and a state of Florida, and determining eventually what the court determined eventually is that the lower court had gone too far in determining that the districts were not sufficiently sensitive to minority voting interest, that it could, in fact, do more to assist minority voting patterns. The court, speaking with a good deal of unanimity, even though there were a number of opinions written, nonetheless, was saying as we said last term, as recently as last term, the Voting Rights Act was not designed to maximize participation or electoral success. It is very importantly designed to assure full and equal participation but not to guarantee minority success. But, again, the court seemed to be going to some lengths to say we're trying to find the correct middle ground here, we find this area very difficult, and we're not saying that there's just one standard to apply. And as Prof. Tribe quite rightly said about the First Amendment case, the court seems to be very interested in looking very carefully at the entirety of the case and taking the cases one at a time.

MR. MAC NEIL: What message did you think, Prof. Tribe, they were sending on these voting rights?

PROF. TRIBE: Oh, I think several messages. For one thing, two justices, Justices Scalia and Thomas, separated themselves radically from the others by saying essentially that they would reverse 25 years of law in this area and would not allow any kind of attack on racial gerrymandering, i.e., they would not allow even the creation, as was found adequate here, of five districts in which Hispanics would have a majority, much less seven, which was the overreaching by the district court. The other seven justices led by Justice Souter, who has really found his voice as the moderate leader of the current court, rejected that extreme view and, indeed, pulled back from the precipice, the court seemed to be approaching last year in the North Carolina districting case pulled by suggesting that it was entirely permissible at least to take race into account in drawing district lines to overcome a history of racial discrimination.

MR. MAC NEIL: The North Carolina case was when the Supreme Court threw out that strangely configured district to, to maximize black voting patterns.

PROF. TRIBE: That's right.

MR. MAC NEIL: A district 150 miles long along the highway.

PROF. TRIBE: And one that was so narrow that if you drove down the middle, you could reach your arms out and touch both edges. The case from Georgia suggests a mixed message though. The court is seeking moderation in this area. I'm afraid it is sacrificing a good deal of clarity because in the Georgia case, five justices came close to taking the position that when you're challenging not a number of districts but the number of people who run a local government you can essentially never win under the Voting Rights Act. The challenge there was to a unique local government in Georgia that was run by one person who was simultaneously the Legislative and the Executive Branch, whereas, almost all cities in Georgia are multi-membered. Four members of the court concluded that that was enough of a departure to suggest that there was really a kind of racial gerrymander going on. But the majority took the position with a slight twist by Justice O'Connor that leaveslower courts I think probably confused that when you're challenging the structure of a district rather than the process of districting you just can't use this section of the Voting Rights Act. The court is not bringing clarity to this area, although it is very self-consciously seeking moderation.

MR. MAC NEIL: How would you, Prof. Tribe, characterize the court now with Ruth Ginsburg, Bader Ginsburg, having completed her first term and with Justice Blackmun just going, these were his last decisions today?

PROF. TRIBE: I would characterize the court as in a state of disarray and confusion. It is not providing clear criteria for the rest of the country and for lower courts, in particular, to follow its guidance. In decisions not only today but earlier in the term, the court is sending such mixed signals based on the facts of the cases that it is really crying out for some greater intellectual clarity which I would hope that a future Justice Breyer might help to provide.

MR. MAC NEIL: Disarray and confusion, is that what you see, Mr. Starr?

MR. STARR: Not at all. I think the disarray and confusion is seen rather much more powerfully in these latter day opinions, that the court has been struggling, that some of these decisions have been struggling with all terms. When we look over the course of the term, we see a good deal of consistency and a good deal of a sense of where the court is going. For example, in the equality area, the court has been quite consistent in saying we cannot in the jury system strike people from the service on juries this term on ground of gender, consistent with prior decisions. I think the court in a number of areas, in the sexual harassment area early in the term, was very clear, and was very concise, and unanimous in its approach overall. But these were the toughest cases that came down today and in the last few days.

MR. MAC NEIL: What impact is Ruth Bader Ginsburg making, Mr. Starr?

MR. STARR: Well, I think she is certainly an energetic voice on the court. She is a very active justice both at the oral argument, and she's a very effective advocate of her own views. Nonetheless, I would say in terms of the voting behavior we cannot find very many cases. I certainly haven't found any important cases that we can say with confidence we decided differently by virtue of the presence of Justice Ginsburg, but I think she's a very welcome, dynamic addition to the court but has not made a profound change.

MR. MAC NEIL: What is the absence of Justice Blackmun going to mean, Prof. Tribe?

PROF. TRIBE: Well, I think that one would have to have more of a crystal ball about Justice Breyer than any of us has to know that for sure. I think Justice Blackmun has made a major contribution to the court, but because his views on so many issues were already well understood by his colleagues, I'm not sure they listened as hard to him as they might when Justice Breyer articulates what in many cases may be similar views in terms of ultimate result. I do think that Ken Starr is right, that at least based on this first term it's too early to say that Justice Ginsburg has had a major impact on results, but she certainly has had a major impact on the vigor and energy of oral argument. And I would expect that Justice Breyer will add to that as well.

MR. MAC NEIL: Thank you both for the vigor and energy of this oral argument, and we must leave it. Thank you. FOCUS - POLITICS - JAPANESE STYLE

MR. LEHRER: Finally tonight, the newest government in Japan. Margaret Warner has more. Margaret.

MS. WARNER: Japan now has its fourth government in a year, and at the top of this one is the country's first socialist prime minister in 47 years. His name is Tomiichi Murayama, and he's nearly as unknown in Tokyo as he is in Washington. But President Clinton and other western leaders will be dealing with him at next week's economic summit in Naples. We get two perspectives now on this latest political shake-up, how it happened and what it might mean for U.S.-Japanese relations. Ayako Doi is editor of the Japan Digest, a daily newsletter published from Washington. And Bruce Stokes is the international economics correspondent of National Journal, a weekly magazine about government and policy also published in Washington. Welcome to you both. Ms. Doi, let's start by you just explaining to us who is this new prime minister, and how did a socialist end up as head of the Japanese government in partnership with another party with whom he has such violent disagreement?

MS. DOI: Well, first of all, I would like to say that has nothing to do with what the Japanese public wanted or the popular sentiment is or the result of the election.

MS. WARNER: So how can it happen?

MS. DOI: Well, what happened was that none of the political parties in Japan now has a majority in the parliament, and to form another government you'd better have a majority. We tried a minority government and then it fell in two months. And two forces, main forces, which is LDP, the former government party, and --

MS. WARNER: The Liberal Democratic Party.

MS. DOI: Liberal Democrat, and Prime Minister Hata's old coalition of centrist reformers, neither one had the majority and they both needed socialist head count to get the majority in the parliament. And the way to entice socialists was to offer its chairman the prime minister's job, and that's the only reason he got there.

MS. WARNER: So you agree, Mr. Stokes, it's just kind of old horse trading, power politics?

MR. STOKES: Well, I think that it's like two dowagers wanting to do one more dance before the end of the evening. They are two parties, the LDP, which had been in power for many, many years and wanted one last strike at the silver ring, and the socialists who had been out of power for so long. The question is whether they can hold onto that power, and I think many people think they can, not for very long, although they may surprise us. There's a lot at stake here. They would like to have another crack at writing a budget so that they can dispense some more pork to their constituents.

MS. WARNER: It sounds as if you disagree with the conventional wisdom, which is this government will only be around till the fall.

MR. STOKES: No. I think conventional wisdom is probably right. It probably won't be able to hold together, the center won't hold, but --

MS. DOI: But you can't rule out anything in Japanese politics these days.

MR. STOKES: Exactly. I agree. Let's face it. In an American perspective, this is like Jesse Helms voting for socialist Bernie Sanders for president. It's just incredulous that this happened, but it's also, I think, a very cynical gesture, which is, as Ayako said, has drawn a very bad reaction from the Japanese public.

MS. WARNER: Well, Ms. Doi, how do you explain this? The Japanese society, which is so cohesive and so orderly, has this unbelievably disorderly process right now.

MS. DOI: Well --

MS. WARNER: Or at least appears disorderly from the western perspective. What's really happening here?

MS. DOI: Well, I think, you know, we must say that there must be some defect in the parliamentary system that allows this to happen which is not the wish of the Japanese people. But it has -- it's nothing abnormal or illegal or you know, sinister about the process. You know, they were looking for a majority, and this is the way they got the majority. And former Prime Minister Hata's coalition wanted a policy coordination with the socialists before they can team up with the socialists. And the socialists just didn't agree with one of their important policies which is a tax reform and so they walked out and went to the other camp. And then the other camp offered the prime minister's job, so they'll take it.

MS. WARNER: But I mean, do you think this is the kind of thing that is going to continue, or do you believe that as some do that Japan is in the midst of this revolution and heading toward a different kind of a system?

MS. DOI: It's a big process of evolutionary change. It will take several years before it sorts out, I think. I think the sentiment now in Japan is that they -- everybody wants election. Unfortunately, you can't call election right now, because the parliament just passed a new electoral law, but new districting hasn't been completed yet. So we're waiting for the parliament to pass the districting law so that they can call and the election under the new rule.

MS. WARNER: And these new rules are supposed to make it much more representative or much more democratic, because it'll be what, one representative from each district.

MS. DOI: I'm not sure whether you can call that more representative or less. It's -- the new system is supposed to create stronger parties instead of multiple small parties.

MS. WARNER: So closer to an American system?

MS. DOI: Yes. The framers of this new election law conceived a two -party system of centrist conservative forces that can interchange the government in power and the government.

MR. STOKES: But we shouldn't deceive ourselves. Political reform in Japan is nothing like what we had hoped for. Under the new rules, it will come into effect. Someone can donate a corporate, or individuals can donate 11 times what they can to an American candidate, to a Japanese diet candidate. This is still not fundamental political reform in an American sense.

MS. WARNER: But do you think, Mr. Stokes, that as Americans we have wanted too much to see Japan becoming like us?

MR. STOKES: I think that's a real problem.

MS. WARNER: There was a lot of talk last summer.

MR. STOKES: We've expected the Japanese to evolve and change toward an American style system. I think we have to accept the fact that America is changing. It's evolving. But the Japanese are changing in a Japanese way. And what comes out of that process will be a uniquely Japanese political system. It will be different from the old system, but it won't be our system.

MS. WARNER: Well, let's look at now for however long this government is going to be in power what it's going to mean in terms of policy that the U.S. cares about. First of all, just briefly, on one security issue, North Korea, I gather the socialists, Ms. Doi, have always been quite close to the North Koreans. Do you think this is going to affect U.S.-Japanese cooperation if, for instance, it gets to a point say that the U.S. wants to play hard ball with North Korea over this nuclear --

MS. DOI: There is a strong possibility that it does. Socialists have been much closer to North Korea than to America so far, and the question remains: Who really holds the power, makes the policy in the new coalition? Is it going to be a majority LDP, or this smaller partner which issocialist? Since the prime minister is socialist, he must have some say in any policy that, that this government takes. So you know, there is a big doubt as to how much cooperation Japan can provide if the U.S. decides to go for sanctions or some drastic measures.

MR. STOKES: For example, the prime minister went to Kim Il Sung's birthday party recently. This is not a good sign.

MS. DOI: And he has never been to the United States.

MR. STOKES: He has never been to the United States. Now, I think the reality is that the ministries, the people who are the permanent elite in Japan, are the same. They haven't changed. And they are willing to cooperate on this issue with the United States.

MS. WARNER: Now, of course, that brings up economic issues and trade issues, and there wouldn't you say -- well, give me your assessment, Mr. Stokes, of how this government is going to handle the U.S.-Japanese trade relationship in the next several months.

MR. STOKES: It's probably going to be more of the same old thing which is very little progress, very few concessions. There may be some kind of cobble to get their deal right before the Naples summit or the G-7 leaders next week. At least, I think there's some elements in the Japanese government that would like to do that to demonstrate that they can still manage the U.S.-Japan relationship.

MS. WARNER: And you're talking about deals that might open up one Japanese market.

MR. STOKES: Might open a little bit of the insurance market, might even do something on medical technology, but the problem is that 2/3 of our trade imbalance with Japan, which bear in mind is running this year at its second highest level ever, 2/3 of that is autos and auto parts. Now that's the subject of discussion, and no one thinks we can make progress on that now or after the G-7 summit or if there's a new government. This is something the Japanese don't want to change, and it's going to be very difficult.

MS. WARNER: Well, how do you see it, Ms. Doi?

MS. DOI: I think both LDP and socialists are the most protectionist forces in Japan. I think the move towards deregulation, market opening, all those things, has to suffer. And also the big pressure now between the U.S. and Japan is how you - - how Japan will stimulate this economy so it can important more and consume more domestically. And socialists have been the sticking point in that by opposing future sales tax increases to pay for the income tax now, and Japan instituted an income tax cut this year. The old Hata government wanted to extend it for two more years. But to do that, the Finance Ministry won't do that unless it has assurance of added income coming in later on as a result of increase of consumption tax. And socialists, as you know, were opposing consumption tax increases all along. And so that means that there may not be an extended income tax cut. There may not be as much stimulus as the U.S. would like to have seen.

MS. WARNER: And what is this going to mean for the issue, we're all preoccupied with this right now, which is the value of the dollar versus the value of the yen?

MR. STOKES: Worst case scenario, which is very, very slim but still a worst case scenario, is that the yen continues to strength. It's now trading at 98 or 99. It goes to 95 or 90. This drives up long-term interest rates.

MS. WARNER: Because of what the investors think.

MR. STOKES: Investors think that the trade imbalance is not going to get any better so they need -- they're betting that the yen is going to have to get stronger. This drives up long-term interest rates in the United States. This causes the stock market to tumble, and the U.S. government is left with no real Japanese government, powerful Japanese government, to deal with to try to calm down the situation. It's a small risk but I think it's still the worst case scenario. Most likely, the scenario is we kind of fumble along, maybe the dollar trades at 90, 98, 99, something like that, for a while. And we continue to wait until there's a Japanese government to deal with.

MS. WARNER: Very briefly, do you agree with the scenario?

MS. DOI: Short-term, yes. I think Japanese trade surplus is already coming down in terms of volume and in terms of yen. And it will go down. So there will be a balance somewhere.

MS. WARNER: Thank you both very much. I'm sorry. We've run out of time. Thanks a lot. RECAP

MR. LEHRER: Again, the major stories of this Thursday, Whitewater special counsel Robert Fiske concluded that White House Deputy Counsel Vincent Foster committed suicide. And his death was not related to the Whitewater affair. Fiske also said White House aides had broken no laws when they discussed a savings and loan case with Treasury officials. And the U.S. Supreme Court upheld a ban on protests near a Florida abortion clinic. The Justices also threw out a Florida redistricting plan aimed at boosting minority representation. Good night, Robin.

MR. LEHRER: Good night, Jim. That's the NewsHour for tonight. We'll see you again tomorrow night. I'm Robert MacNeil. Good night.