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Tony Snow Interviews McVeigh Lawyer, Okla. Governor

Transcript of Fox News' interview with McVeigh defense lawyer Robert Nigh and Oklahoma Gov. Frank Keating on Fox News Sunday.

TONY SNOW, HOST, FOX NEWS SUNDAY: Attorney General John Ashcroft, acting on news that the FBI had failed to share more than 3,000 pages of documents with Timothy McVeigh's defense team, has delayed the Oklahoma City bomber's execution until at least June 11. Here to discuss the McVeigh legal strategy is McVeigh's lead attorney, Robert Nigh. Also here, Brit Hume, Washington managing editor of Fox News.

Brit?

HUME: Mr. Nigh, you've now had an opportunity, you and your colleagues, to go through some of these documents. Have you found anything that is in any sense exculpatory or anything that might change the outcome of this case if you had had them in hand when the trial occurred?

NIGH: We have just begun the process of reviewing the documents, and certainly the materials are relevant. We are not prepared to disclose the nature of the items that we have found thus far. We've only begun the process.

HUME: Well, I'm not asking you to disclose their nature in any specific way. I'm just asking you to tell me whether there's anything in them that would change the legal status of this case, going to the question of guilt or innocence, going to the issue of punishment. Have you come across anything?

NIGH: Well, the fact of the production itself could possibly change the legal outcome of the case. And certainly, we have had a very limited opportunity to review some of the documents in isolation.

I'm not prepared to discuss now what the legal implication of those particular documents might be.

HUME: Well, what's your next move here then?

NIGH: The next move is to go through the materials themselves, conduct an analysis of them by themselves, but then also in the context of the evidence in the case, and during the same time, conduct legal research and formulate a legal strategy about what to do on Mr. McVeigh's behalf.

HUME: Now, has he authorized you to go ahead here and seek this further delay, or are you just acting on what you consider to be his interests, his wishes not withstanding?

NIGH: He has not authorized us to go forward with anything at this point. But he is willing to consider the options, and he's willing to listen to what we have to present. And in light of that, of course, we have to proceed with all dispatch.

HUME: I understand. Is your task not somewhat complicated, sir, by the fact that your client admitted he did this?

NIGH: It is not. This case has to be viewed in the context of the evidence at trial. It has to be viewed in the context of the evidence that is now available to us that was not available to us in 1997.

SNOW: Mr. Nigh, let's go through several possibilities. You received 3,000 pages of documents. Do you intend to go back and re- interview people who were interviewed by the FBI in the hours immediately following the bombing?

NIGH: That certainly is a very real possibility. One of the problems with this is that witnesses that might be identified within these pages may no longer be easily located. Their memories certainly have faded since they made their statements in 1995. And that's one of the fundamental problems caused by this extremely late production.

SNOW: That being the case, you're almost certainly going to ask for more time than June 11?

NIGH: That's going to depend, in part, upon Mr. McVeigh.

SNOW: Mr. McVeigh has said that he is the sole person responsible and that he wants to die. Has he been lying to everybody?

NIGH: He has never said that in court, and under the legal status of his case when he indicated that he did not want to pursue any further appeals, we did not have the kind of revelation that we have today.

NIGH: In light of that, it's completely reasonable for him to reevaluate his position. 

SNOW: Mr. Nigh, isn't Timothy McVeigh's only chance of staying alive to demonstrate that somebody else was involved in this? 

NIGH: No, I would say not. 

SNOW: Why? 

NIGH: The facts of the case are now certainly at issue. 

SNOW: But Mr. Nigh, the FBI produced millions of pages of documents. The 3,000 pages came from 46 different field offices. It wasn't as if they had a single file that they were trying to hide. Don't you think it's conceivable that this was simply a screwup? 

NIGH: Well, we have to look very carefully at how this came about. We have to determine precisely how it was that these documents could exist and not be produced to the defense prior to the time of trial. 

One of the rules that the court imposed was that discovery materials had to be produced in sufficient time for the defense to make fair use of them, and that's only reasonable. In this instance, it wasn't done. 

HUME: Now, what do you sense, though, about this? You just heard Tony suggest to you the possibility that this was a mistake, a bad one, perhaps, but an honest mistake. Do you view this otherwise? Or do you have any reason to suspect this was other than a serious, but honest mistake? 

NIGH: We simply don't know at this point. 

HUME: Will you need to take testimony from FBI agents to determine that? And what if you were to determine that this was done deliberately? Wouldn't ultimately the substance of the documents themselves be the controlling factor? 

NIGH: Those questions are very good questions, and I don't think there's a good answer yet. I think that if there is intentional conduct, that creates a whole different series of legal issues. That's why it's extremely important to determine precisely how this could happen. 

SNOW: Mr. Nigh, the 10th U.S. Circuit Court of Appeals last year heard an appeal from Terry Nichols after he discovered that the FBI had failed to turn over about 13,000 pages of documents. The court considered his plea, said the documents didn't have any ultimate bearing on the case, and they threw out his appeal. Why wouldn't that precedent hold in your case unless there's clear evidence either that Timothy McVeigh did not do it or that he did not act alone? 

NIGH: There was a distinction between the types of documents that were revealed at that point in time and the types of documents that are being produced to us now. The types of documents that are being produced to us now clearly were required under the legal agreement of the parties to be produced prior to trial, but they were not. 

SNOW: Mr. Nigh, Judge Richard Matsch, who is the federal district judge hearing the case, is it conceivable that he could decide that this case needs to continue until he's satisfied that all the evidence has been presented? 

NIGH: At this point, I would say that anything is conceivable in this case. 

SNOW: All right. Robert Nigh, thanks for joining us. 

NIGH: Thank you. 

SNOW: Now, for further reaction, we're joined from Oklahoma City by Oklahoma Governor Frank Keating. 

Governor Keating, you've just heard Mr. Nigh say anything is conceivable. A lot of people now believe that as a result of this late-appearing evidence that there might be grounds for a retrial or even for rehearing the sentencing phase of the McVeigh trial so that he might get a life sentence rather than the death penalty. 

In either of those cases, would it be appropriate for Oklahoma authorities to consider having a trial for the 160 people whose deaths were not covered by the federal trial? 

KEATING: Well obviously, that's something that the Oklahoma authorities have always thought about. 

Tony, when McVeigh was first tried, it was the intention of the district attorney in Oklahoma County to proceed with a trial against McVeigh for the 160 victims that were not mentioned. As you noticed, only the eight law enforcement, federal law enforcement victims were mentioned in the Denver prosecution, but when McVeigh received the death sentence, that decision was made not to go forward. 

As far as Nichols is concerned, even though he received a life sentence in Denver, it was the decision of the district attorney, Bob Macy in Oklahoma County to proceed with a state prosecution for the very same reason. 

So the conceivable is conceivable, but I really don't see this case changing substantially. I think perhaps there will be a delay or two and that's it. I think that McVeigh's admission obviously is significant in any retrial. 

And right now, it looks like, at least from the preliminary snippets of information, that probably these materials are John Doe One, John Doe Two, some 302's that aren't particularly material to the case in chief, but were certainly material to the discovery requests. So, who knows, we'll see. 

SNOW: 302's, of course, are evidentiary reports filed by FBI agents that summarize the evidence that they've gathered or testimony that they've gathered. 

Governor, one of the questions a lot of people have is about the FBI. You've had experience, you've had a field agent in Oklahoma City who has made some errors that have led to the reversals of death sentences. Don't you think the FBI has some serious problems right now? 

KEATING: Well, we had a chemist in the Oklahoma City police department that made apparently some serious mistakes that resulted in a re-examination of cases and the release of one individual. But I think the FBI, even though they have starts and stops, even though as a human institution they make mistakes, is fundamentally a sound organization. The people are outstanding. 

But there's no question, it appears at least, that there are some systems breakdown. I don't think there's anything insidious about this, but obviously the bureau needs to go in and look at this top- down, bottom-up. And if they don't have a retrieval, a computer system and an assimilator, if you will, of all these multi-thousands of pieces of evidence and have a system that is sufficiently sophisticated to send it back out again when it's called upon, that's certainly not good. And that certainly gives the opportunity for conspiracy theorists to say, "Look, I told you so. The government's covering up. All the facts are not out." 

So the bureau certainly needs to fix its systems, but I think fundamentally the people are sound. 

HUME: Well, Governor, though, this has been a difficult period for the bureau. 

KEATING: That's true. 

HUME: One recalls J. Edgar Hoover's famous edict to all: "Don't embarrass the bureau." It would seem that that edict has been flung down and danced upon as Mark Twain might put it, in a number of ways. The Hanssen case being one, the FBI contributions to the events at Waco, and now this, among other things. 

One's sense is -- you talk about systems that might better catalog and make available evidence in cases, but I think a lot of people are suggesting that there's something more deeply wrong with the FBI. What is your reaction to that? 

KEATING: Well, I don't know. I think that obviously, everyone has a different opinion here, but the bureau -- any organization, particularly an organization that has the power of life and death over people, any organization has to have the most sophisticated background systems in place to make sure they only get the best people. Organizations like the FBI, law enforcement organizations, need to have very stringent ethical standards that only the very best, only the most ethical, rule-of-law people are individuals that wear guns and carry badges and can arrest and incarcerate. 

And I think also, that you need to look at every system in your organization to make sure that it doesn't permit itself to break down like this one did. 

This is the largest terrorist incident in the history of the United States, the largest criminal case ever. And to lose thousands of pieces of evidence is just terrible, but hopefully they'll address it, clean it up and it won't happen again. But they must make sure that that commitment is made. 

HUME: Governor, you have been on a number of people's lists as a potential candidate to succeed Louis Freeh. First of all, would you be interested? And a second question with that is, if you were to take over the bureau, what would be the first thing you did? 

KEATING: I like being a bridesmaid, Brit. I've been a bridesmaid over the course of the last number of months. 

But let me say, this is not a good time for me to leave what I'm doing now. We've sent to a vote of the people of (ph) right to work that is going to be voted on on September 25. We have a good prospect of sending to a vote of the people abolishing the personal income tax and the capital gains tax and the estate tax and the sales tax on groceries. We're building the dome on the capitol. 

HUME: OK, Governor, you're a busy man. We understand. 

KEATING: We're building a dome on the capitol largely with private -- I mean, these are exciting things. Anything that I can do to help George Bush I'll do, but I don't see this happening now. 

Whoever is the director's going to have to really go in and administer a thorough house-cleaning systems-wise. I think the people still remain very first rate. 

HUME: And does Louis Freeh's legacy, at least as it's perceived, now in jeopardy because of these incidents? 

KEATING: No, I think the next person's legacy is in jeopardy if he doesn't clean up these systems and have a computer system that works in a criminal case. 

SNOW: Governor, you talked about high ethical standards, but there are news reports that FBI agents knew as early as January that some of the items that they were collecting in inventory had not in fact been presented at trial. That doesn't seem to live up to high ethical standards, to cover this stuff up until six days before an execution. 

KEATING: Well, again, you assume it's been covered up. I don't know if that's true. And you assume that this material was presented in January and not brought out until April or May. I don't know that either. 

KEATING: But if that's true, if there is information that the agents knew were supposed to be presented at trial in Denver, were not presented in trial at Denver in violation of the discovery order, severe disciplinary action needs to be taken against those people. 

Remember, these guys are officers of the court, the lawyers are officers of the court on both sides. 

The only purpose of the bureau should be to get at the truth, to search for and to arrive at the truth. The facts determine the truth. The law, of course, is applied to determine whether somebody is convicted for that. 

But I think it is certainly inappropriate and should not be tolerated if that, in fact, occurred, but we don't know that. 

SNOW: All right. Governor Keating, thanks for joining us. 

KEATING: Happy anniversary, by the way. Fifth anniversary today for Fox News Sunday

SNOW: All right. Governor, thanks. 

KEATING: Thanks, Tony. 

END