[Congressional Record Volume 140, Number 27 (Friday, March 11, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 11, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                               WHITEWATER

  Mr. MITCHELL. Mr. President, I understand that the minority leader 
has, a short time ago, made another statement on the so-called 
Whitewater matter. Accordingly, I feel constrained to respond.
  First, the minority leader made reference to a letter which he had 
sent to me requesting a meeting to discuss this matter.
  Of course, I will be pleased to meet with the minority leader on this 
matter, as I have on any matter on which he has requested a meeting. In 
fact, we meet several times a day, including several meetings today, 
and I will be pleased to meet and discuss this matter with him at any 
time and to listen to and to give careful consideration to any 
suggestion he wishes to make. That has been my practice and that will 
continue to be my practice.
  In the course of the statement, the minority leader, as have other 
Republican Senators, again called for public hearings on the Whitewater 
matter.
  I would like, if I might, to address that subject, and I think the 
best way to do it is to put this matter into some context.
  Earlier this year when allegations regarding Whitewater received 
press attention, the minority leader and several of our Republican 
colleagues publicly insisted that a special prosecutor be named. They 
urged and encouraged the appointment of a special prosecutor to 
investigate this matter. And at the time, they said that if a special 
prosecutor is named, there would be no second-guessing.
  In accordance with their request, a special prosecutor was named. 
That special prosecutor is himself a lifelong Republican, a person who 
has experience in criminal investigation and prosecution, a person of 
unquestioned integrity. Indeed, following his appointment, Republican 
Senators, including the junior Senator from New York, praised him as a 
man of unquestioned ability and experience. But, of course, within 
moments after the special counsel was named, the second-guessing began. 
Contrary to the assertion that there would not be any second-guessing 
once the special prosecutor was named, hardly was the ink dry on the 
appointment of a special prosecutor than the second-guessing began. 
That second-guessing has taken the form of, first, a request for 
immediate public hearings in the Congress.
  On his own initiative, the special prosecutor, Mr. Fiske, who, as I 
noted, is himself a lifelong Republican, wrote to the chairman and the 
ranking member of the Banking Committee on March 7 on the subject of 
hearings, and this is what he said. I think the letter is worth reading 
in its entirety because I think the American people have a right to 
know what it is the special prosecutor has requested and why.

  He wrote to the two Senators:

       I am writing this letter to express my strong concern about 
     the impact of any hearings that your Committee might hold 
     into the underlying events concerning Madison Guaranty 
     Savings and Loan (``MGS&L''), Whitewater and Capital 
     Management Services (``CMS'') on the investigation that this 
     Office is conducting into these matters.
       As you know, I was appointed to the position of Independent 
     Counsel pursuant to CFR 603.1 on January 31, 1994. Since that 
     date we have obtained an Order from Chief Judge Stephen M. 
     Reasoner in the East District of Arkansas authorizing the 
     empaneling of a grand jury which will be devoted exclusively 
     to the Whitewater/MGS&L/CMS investigation. In the meantime, 
     we have been using the regular grand jury for this District. 
     We have a team of eight experienced attorneys, six of whom 
     were current or former prosecutors when they joined the 
     staff. We are working in Little Rock with a team of more than 
     twenty FBI agents and financial analysts who are working full 
     time on this matter. We are doing everything possible to 
     conduct and conclude as expeditiously as possible a complete, 
     thorough and impartial investigation.
       Inquiry into the underlying events surrounding MGS&L, 
     Whitewater and CMS by a Congressional Committee would pose a 
     severe risk to the integrity of our investigation. 
     Inevitably, any such inquiry would overlap substantially with 
     the grand jury's activities. Among other concerns, the 
     Committee certainly would seek to interview the same 
     witnesses or subjects who are central to the criminal 
     investigation. Such interviews could jeopardize our 
     investigation in several respects, including the dangers of 
     Congressional immunity, the premature disclosures of the 
     contents of documents or of witnesses' testimony to other 
     witnesses on the same subject (creating the risk of tailored 
     testimony) and of premature public disclosure of matters at 
     the core of the criminal investigation. This inherent 
     conflict would be greatly magnified by the fact that the 
     Committee would be covering essentially the same ground as 
     the grand jury.
       While we recognize the Committee's oversight 
     responsibilities pursuant to Section 501 of PL 101-73 
     (FIREAA), we have similar concerns with a Congressional 
     investigation into the recently-disclosed meetings between 
     White House and Treasury Department officials--particularly 
     because we believe these hearings will inevitably lead to the 
     disclosure of the contents of RTC referrals and other 
     information relating to the underlying grand jury 
     investigation.
       For these reasons, we request that your Committee not 
     conduct any hearings in the areas covered by the grand jury's 
     ongoing investigation, both in order to avoid compromising 
     that investigation and in order to further the public 
     interest in preserving the fairness, thoroughness, and 
     confidentiality of the grand jury process.
       I will be glad to meet with you personally to explain our 
     position further if you feel that would be helpful.
           Respectfully yours,
                                             Robert B. Fiske, Jr.,
                                              Independent Counsel.

  Mr. MITCHELL. Mr. President, I repeat and emphasize, this is a 
letter, on his own initiative, by an independent counsel appointed at 
the request of Republicans, who is himself a Republican, and, according 
to our Republican colleagues in the Senate, a man of total integrity 
and fairness. This is his request that no investigation, no 
congressional hearings be held.
  Mr. President, reference was made to the fact that he met with the 
ranking Republican Senator on the committee, who took him up on his 
request in the last sentence of the letter offering to meet personally. 
And what did Mr. Fiske say after that meeting? This is a quote from Mr. 
Fiske after the meeting with the Republican Senator:

       My position, as expressed in the letter and right now, is 
     that I would prefer that there be no congressional hearings.

  Mr. President, let us be clear at the outset. Congress has an 
important oversight responsibility. Congress should meet that 
responsibility, and I am confident that Congress will meet that 
responsibility, by conducting a careful inquiry, including hearings at 
an appropriate time and under circumstances which do not undermine the 
ongoing investigation by the independent counsel. There can and should 
be no doubt about that.
  The only question is not whether there will be congressional 
oversight, because there certainly will be; the only question is 
whether we should heed the request of the independent counsel and have 
hearings at a time and under a circumstance which will undermine that 
investigation.
  I believe we should honor the request of the special counsel. Our 
Republican colleagues do not want to do that. They want to have 
hearings now. Why is that? Well, I will get to that in a moment, what 
the motivation is by our colleagues for a hearing.
  Before I do, let me describe the reasons such hearings now would 
undermine that investigation.
  Mr. President, reference was made in the remarks of the minority 
leader and repeated by our colleagues that investigations have been 
conducted in the past, and we ought to do things now just the way we 
did them in the past. The implication was created that there have been 
no oversight responsibilities conducted by this Congress since the 
Clinton administration took office. Those oversight responsibilities 
are, in fact, being conducted.
  The sole issue here is where you have an independent legal 
investigation, you should have congressional hearings at a time and 
under circumstances which will undermine the independent legal 
investigation. And on that question, the answer is clear.
  The Iran-Contra inquiry is often cited, and was cited here today. The 
independent counsel in the Iran-Contra case, Judge Lawrence Walsh, 
himself a lifelong Republican who served in the Justice Department 
under a Republican President and a Republican administration, said in 
remarks made by him in January of this year:

       I think the views of some of those in the congressional 
     committees that there was a possibility of concurrent 
     activity that the Congress could investigate on television 
     and that the criminal prosecution could also go on was just 
     proved to be wrong, and I think the lesson is very clear, as 
     we spelled out in the report. Congress has control. It's a 
     political decision as to which is more important, but it 
     can't have both. If it wants to proceed with a joint 
     committee or a special committee or have to compel testimony 
     by granting immunity, it has to realize that the odds are 
     very strong that it's going to kill any resulting criminal 
     prosecution.

  In the report itself, on Iran-Contra, Judge Walsh stated:

       Congress should be aware of the fact that future immunity 
     grants, at least in such highly publicized cases, will likely 
     rule out criminal prosecution.
       Congressional action that precludes, or makes it impossible 
     to sustain, a prosecution has more serious consequences than 
     simply one less conviction. There is a significant inequity 
     when more peripheral players are convicted while central 
     figures in a criminal enterprise escape punishment. And 
     perhaps more fundamentally, the failure to punish 
     governmental lawbreakers feeds the perception that public 
     officials are not wholly accountable for their actions.

  Just yesterday, in a television interview, Judge Walsh made the 
following comments:

       Why can't they wait until Mr. Fiske finishes? What is it 
     that there is so urgent about the Whitewater matter that it 
     requires instant publicity and can't wait until an orderly 
     prosecution is developed?

  Well, of course, he hit the nail on the head in his comment--
``instant publicity.'' That is what our colleagues are interested in, 
and the American people know that.
  Mr. President, my colleague made reference to public opinion polls to 
support his conclusion. Well, just 2 days ago, a public opinion poll 
reported that 12 percent of Americans believe that Republicans are 
raising the Whitewater issue because they care about the matter; 78 
percent believe that they are doing it for political gain.
  Rarely are Americans so overwhelmingly in consensus on a matter, and 
rarely have they been more right. This is pure partisan politics. 
Everybody knows that. The American people know it. Even our colleagues 
know it. This is an effort to embarrass the President, to injure the 
President by any means possible, and to divert attention away from the 
central issues concerning us.
  The most important issue facing America today, as it has been for 
years, is the need for economic growth and job creation, the need to 
get our economy moving, the need to create jobs for those Americans who 
want them and need them. Is there a single member of the American 
public today who knows what the Republican program is for economic 
growth and job creation? Is there anyone in the country who knows it? 
The answer is no, because there is none. They do not have time for 
economic growth and job creation because all they want to talk about is 
Whitewater. This is a way of diverting attention from the failure of 
Republicans to present to the American people concrete programs for 
economic growth and job creation, the central need in our country today 
as it has been for years and as it will be increasingly as we move into 
the next century.
  And it is ironic and no coincidence that this further discussion 
about Whitewater occurs on a day in which Republicans are filibustering 
a bill, here in the Senate, which is intended to encourage 
technological innovation, job creation, and economic growth. Think 
about that. What an incredible and sad juxtaposition of events, that 
Republican Senators are engaged in a filibuster on a bill whose purpose 
is to create jobs, encourage technological innovation, and have 
economic growth, and as they seek to prevent that what they want us to 
do is to go have hearings on Whitewater, which of course will have the 
effect of undermining the independent counsel's investigation.
  I do not think those are the priorities of the American people and I 
do not think they ought to be the priorities of the U.S. Senate.
  Mr. President, I want to respond specifically to the suggestion that 
there is a double standard; that we had a practice in the past and we 
ought to have the same practice now. The comparison between this case 
and Iran-Contra is invalid because the law of the land today is 
different than it was then, and it was changed specifically arising out 
of the Iran-Contra case. In that case, Marine Lt. Col. Oliver North was 
granted immunity to testify before a congressional committee. He 
testified. Following that testimony he was indicted by a Federal grand 
jury, tried in Federal court, and convicted on three counts. He then 
appealed those convictions on the grounds that the prosecution 
improperly utilized his immunized testimony before the Congress, and 
the court of appeals agreed and reversed his convictions. And in 
deciding the case the court of appeals set forth a standard for such 
matters that is substantially different than the law was prior to then.
  Prior to that case, which is now the governing law because the court 
of appeals opinion was not reviewed by the Supreme Court--prior to that 
case, the state of the law was set forth in a decision rendered by the 
Supreme Court in 1972 in a case, Kastigar versus the United States, in 
which the court said that a prosecution following immunized testimony 
requires the prosecutor to establish that the evidence presented was 
not derived from the immunized testimony.
  It was a reasonable standard which could be met in certain 
circumstances. The court of appeals decision elevated that standard to 
a far higher level by requiring that it be done, if necessary, item by 
item, line by line, witness by witness--a standard which I say, as a 
former Federal prosecutor and a former Federal judge, simply cannot be 
met.
  The current state of the law as set forth by the court of appeals in 
the North case in 1990, which arose out of the Iran-Contra 
investigation, effectively precludes both a congressional inquiry and a 
serious criminal investigation. Judge Walsh said it explicitly: ``It 
cannot have both.'' And in that respect, Judge Walsh's analysis of the 
current state of the law is correct. And he should know, since he was 
the independent counsel who prosecuted the North case.
  Now, Mr. President, the response will be: Well, we have already said 
we will not insist on giving immunity to any witnesses.
  But, Mr. President, if we announce an inquiry and in advance say that 
no matter what the witnesses say or do we are not going to grant 
immunity, then we are guaranteeing that there is not going to be full 
disclosure of the facts. And what we are saying is we want to have this 
hearing for political purposes, because no matter what happens it will 
give us another forum to embarrass the President. That is really what 
the objective is here and it is so clear.
  And furthermore, the reason not to have the congressional hearing 
goes beyond the question of immunized testimony, as Mr. Fiske himself 
made crystal clear in his letter. And I quote again from that letter:

       Such interviews could jeopardize our investigation in 
     several respects, including the dangers of Congressional 
     immunity, [one concern] the premature disclosures of the 
     contents of documents or of witnesses' testimony to other 
     witnesses on the same subject (creating the risk of tailored 
     testimony) [a second independent reason] and of premature 
     public disclosure of matters at the core of the criminal 
     investigation [a third independent basis].

  So, one reason not to do this in a way that undermines the special 
prosecutor's investigation is, first, if you announce in advance that 
no one is going to get immunity no matter what they do you reduce the 
likelihood of getting the very disclosure which is supposed to be the 
purpose of the hearing. And, second, even if you do not grant immunity 
you pose severe risks to the ongoing legal investigation for the other 
reasons, independent of immunity, stated by the special counsel.
  I want to repeat, there is no doubt that there are going to be 
hearings; that there is going to be congressional oversight. That is 
the one thing on which we all agree. And the only question is the 
timing and circumstances in which such hearings should be held and such 
investigations should be held.
  It is very clear that based on the current state of the law, based 
upon the request of the special counsel himself, those hearings and 
that congressional oversight should occur at a time and under 
circumstances when there is no jeopardy to the ongoing investigation.
  The best way to find out the truth of what happened and the only way 
to ensure appropriate punishment for any wrongdoing is to let the 
special counsel do his job, and as he does it, let the chips fall where 
they may.
  I know Robert Fiske. He is a Republican. He is a man of integrity. He 
is a man of experience. I believe he will conduct a thorough, fair, and 
impartial investigation. If he finds wrongdoing, I am convinced he will 
seek those engaged in wrongdoing, and if he does not find it, I am 
confident he will say that and give the reasons why. But we ought not 
to be here trying to exploit this matter for partisan political 
purposes, trying to divert attention away from the other pressing 
issues which confront us.
  The answer is, of course, Congress will meet its oversight 
responsibilities. Congress will do so at a time and under circumstances 
that are appropriate and will not undermine the special counsel's 
investigation.
  We learn from experience, not just in public policy but in all of our 
daily lives. We learn from dealing with our children, with our 
families. We learn in business. We ought to also learn here we have had 
an experience which taught a valuable lesson. There are those now who 
want to ignore that lesson who, for purely partisan political purposes, 
want to take a course of action which the special counsel has requested 
we not take, and for good and sound reasons has asked that we defer.
  Mr. President, I say to Members of the Senate, we have a lot to do. 
We hope to pass comprehensive health care reform this year; we hope to 
pass strong and meaningful welfare reform; we hope to pass a tough 
crime bill; we hope to pass campaign finance reform; we have 
substantial, major environmental laws with which to deal, including the 
Clean Water Act and the Safe Drinking Water Act. We are trying right 
now to pass a bill on technology and innovation that will spur economic 
growth and create jobs. That is what we should be doing. That is what 
we should be devoting our attention to: The real needs of the American 
people; the real need for economic growth, for job creation, for 
opportunity in our society, for the chance for people to have good 
health care that they can afford; to have safety and security in their 
homes and in their neighborhoods and on the streets of their cities. 
Those are the tasks that confront us; those are the tasks to which we 
should address ourselves.
  I hope very much that over the coming weeks and months we can devote 
ourselves to that and we can support the special counsel's 
investigation in the way that is best suited to bring about full public 
disclosure of the truth of what occurred and appropriate punishment of 
any wrongdoing that occurred.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MITCHELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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