[Congressional Record Volume 140, Number 67 (Wednesday, May 25, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: May 25, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
THE SO-CALLED WHITEWATER MATTER
Mr. MITCHELL. Mr. President, during the course of the discussion that
has occurred over the past few hours, frequent reference has been made
to me. And I thought it would be useful if I came to the floor to
respond to some of the comments and to inform our colleagues, and I
hope the American people, of the status of this matter of what I
believe has precipitated this debate and why I believe we should
proceed from here.
First, let me say that from the outset, in repeated public statements
here on the Senate floor and in other public places, I have insisted
that the Congress has an important oversight responsibility, which it
will meet. I will do all I can to see that the Congress meets that
responsibility in an appropriate and responsible way--not a political
circus as some of our colleagues wish, not a partisan administration-
bashing as some of our colleagues wish, but rather a serious and
responsible discharge of constitutional responsibilities by the U.S.
Senate.
Our colleagues, many of whom have spoken here today, a few months ago
were just as vociferous in demanding that a special counsel be
appointed to investigate the so-called Whitewater Matter. Indeed, many
of the speeches made today are but slight variations on the speeches
made then. The demand today is for hearings by the Congress on
Whitewater. The demands then were for a special counsel to be appointed
to investigate Whitewater. Both were of course used as occasions to
criticize, to bash, and to present several suggestions of impropriety
by the President and other members of the administration.
A special counsel was appointed, and within minutes after the
appointment of the special counsel the second-guessing began. And the
new demand was made for immediate congressional hearings, even though
it was clear then to all and is clear now that immediate public
hearings in the form and at the time initially suggested by our
Republican colleagues would have undermined and effectively precluded
the investigation by the special counsel.
Mr. President, much comment has been made about what occurred in the
past and suggestions have been made to the extent that we ought to do
this now because that is what happened in the past. Let me describe the
legal status of the matter, the history of how we arrived at this
point.
Prior to 1990, the law governing the inevitable tension between
congressional hearings and ongoing investigations was such that it was
possible for a person to testify under oath at a congressional hearing,
and still be subjected to criminal prosecution on the basis of the same
facts, although the testimony could not be used to support that
prosecution. The law was set forth in a Supreme Court case named after
the defendant in that matter, a man named Kastigar, and it established
a rule which prosecutors would have to adhere to when initiating a
prosecution of persons who had previously testified under grants of
immunity. It was a substantial standard, but it could be met. It was
possible to have both a congressional inquiry and an investigation and
subsequent prosecution. But in 1990, the court of appeals ruled on the
case involving former Marine Lt. Col. Oliver North. Colonel North had
testified before Congress under a grant of immunity, had subsequently
been indicted, an indictment charging several felony violations, and
was convicted, after a jury trial, of three felonies. He appealed, and
the court of appeals overturned his conviction, and in the process
established a new, much different and much higher standard for such
cases than had previously been applicable under the Kastigar case. Many
analysts who have reviewed the North decision--that is to say the court
of appeals decision which overturned the three felony convictions after
trial in district court--have concluded that, effectively, now there
cannot be testimony under grant of immunity before Congress and then a
subsequent prosecution. In effect, there must be a choice. There has to
be either a congressional inquiry or an investigation. There cannot be
both.
(Mr. MATHEWS assumed the chair.)
Mr. MITCHELL. The special counsel in the Whitewater case, who was
appointed following the demands of many of our Republican colleagues is
himself a Republican, a prominent Republican, whose appointment was
praised by our colleagues. The distinguished Senator from New York,
from whose State the special counsel comes, praised him effusively on
the Senate floor as a man of integrity, impeccable reputation, someone
who would conduct a thorough, fair, and impartial inquiry. I believe
that to be the case. I believe that the special counsel, although he is
a Republican investigating a Democratic administration, is a man of
integrity and is fair, and he will conduct a thorough, fair and
impartial investigation. If he finds wrongdoing, then it should be
punished. The chips should fall where they may. But that is not being
decided here in the Senate. The Senate is not a prosecutorial
institution, it is a legislative institution.
So the question is: How do we proceed? The special counsel himself,
on his own initiative, wrote the chairman of the Banking Committee, and
other Members, and urged that there not be congressional hearings. He
listed specific reasons why such hearings could undermine or
effectively prevent his investigation from going forward.
In response to that, the Senate debated and voted by 98-0 to approve
a resolution which I introduced on behalf of myself and Senator Dole,
which provided, first, that if hearings were held no witness called to
testify should be granted immunity, to deal with the problem which I
have just described. And second, ``The hearings should be structured
and sequenced in such a manner that in the judgment of the leaders they
would not interfere with the ongoing investigation of special counsel,
Robert B. Fiske, Jr.''
The Senate voted for that 98-0. Every one of the Senators who has
spoken here today voted for that resolution, even though today we are
told, let us not bother with Mr. Fiske; we have our own
responsibilities; let us have immediate hearings. I submit, Mr.
President, that it is inconsistent to have supported this resolution
and now to suggest ignoring Mr. Fiske and proceeding to immediate
hearings.
Pursuant to this resolution, Senator Dole and I have met on several
occasions and have exchanged letters making suggestions with respect to
how to proceed. Senator Dole initially requested a special committee,
because the jurisdiction of several committees is implicated in this
matter. I reviewed his proposal carefully and concluded that even by
his analysis, the vast bulk of the jurisdiction is with the Banking
Committee and, therefore, consistent with the practices of the Senate,
the matter should be conducted by the Banking Committee.
The next question then was: Well, how do you deal with the problem of
issues that arise that are not within the jurisdiction of the Banking
Committee, even though they are not the bulk of the matter? I then
suggested to Senator Dole that on the Banking Committee there are
present, on both sides, Members who are also Members of every committee
which has any possible jurisdiction in this matter--with one exception,
which I will describe in a moment--and that we could accommodate the
jurisdictional question by permitting the Banking Committee to have
jurisdiction on those matters, some of which are very minor, by
designating Banking Committee members who also serve on the other
committees, to represent those committees in the hearings. In the one
case, where it is not so with respect to a Republican member of the
Judiciary Committee, I offered to permit the ranking member of the
Republican membership of the Judiciary Committee, or his designee, to
sit on the Banking Committee for that purpose.
Yesterday, Senator Dole came back to me with yet another proposal,
and we are reviewing that in good faith. The discussions have been in
good faith on both sides as we try to reach an agreement that would
permit us to go forward.
Mr. President, let us get to the heart of this matter, and the real
motive behind these requests. It could be summed up in one word:
Politics. Better described in two words: Partisan politics. Most
accurately described in three words: Raw partisan politics. That is
what is going on here.
Everybody in this Chamber--as I believe all Americans do--knows that.
Indeed, the public opinion shows it by overwhelming margins--in excess
of 70 percent. In the most recent public opinion poll, the American
people found that our Republican colleagues are acting on this matter
solely for political purposes.
There has been some discussion here today, which I found not only
interesting but amusing, about people coming up and asking about
Whitewater, trying to create the implication that there was this
overwhelming demand rolling across America of the public demanding
hearings on Whitewater.
Mr. President, I do not know what part of America my colleagues have
been traveling in. But I have been in my State several weekends, and I
have been in half a dozen other States in the past few weeks. I have
addressed dozens and dozens of audiences, totally thousands and
thousands of people, and have been asked hundreds of questions. And
only once, only once, has a person mentioned Whitewater to me. That was
when I was walking down the street in Portland, ME, stopped at an
intersection and a pickup truck pulled up to a red light. The driver
rolled down the window and yelled out ``Why don't you guys stop fooling
around with that Whitewater business and start doing something
meaningful?''
Before I could respond that I was not one of those ``you guys,'' he
rolled up the window, gunned the accelerator and drove off.
That is the only comment I have heard on Whitewater, one in the past
months. And I have traveled across my State and across this country.
I do not know what part of America my colleagues are from. I was in
New York last weekend. My gosh, I must have just missed that tidal wave
of demand for Whitewater hearings. I guess I was kind of lucky.
We all know what is going on. This is raw partisan politics, trying
to embarrass the President, make it more difficult for him to pass his
economic program, his health care program, and the rest of his agenda.
Several of our colleagues have stood here and said that if the
President is not for immediate hearings and full disclosure, he must
have something to hide. We heard that from two or three of our
colleagues. Do all of our colleagues agree with that? Is that an
appropriate standard for public officials, that if a public official is
the subject of an allegation and he is not for full disclosure of
everything involved with it, that he must have something to hide? Or is
that only a standard that applies to the President? Do our colleagues
agree that that should apply to all of us, Members of the Senate,
Republicans as well as Democrats?
Since when in America, since when is it so that a person who denies
an allegation is deemed to have something to hide? We heard that from
lawyers here, U.S. Senators who are lawyers.
This is America. I do not think that any Senator who is accused of
something has something to hide just because he will not stand up and
publicly disclose every document involved. If I do not think that, why
should our colleagues?
Or does that only apply to the President? Do our colleagues want to
apply to the President a standard which they would not accept as
applying to them?
We are all public officials. We all swear an oath when we take
office. We all should be subject to the same standards. Are we here
suggesting that there are two standards in these matters? I think not.
I do not think we should.
Mr. President, we are told over and over again that this matter is
going to be brought to the floor.
Mr. President, under the rules of the Senate, any Senator can bring
up any matter any time he or she wants. Any Senator can offer any
amendment any time he or she wants. Those are the rules. We all know
the rules. If our colleagues want to proceed on this matter, let us
debate it, let us discuss it, and let us vote on it.
We already voted 98 to nothing, and many of the statements made here
today were made by people who voted for that resolution and whose words
today contradict the resolution.
It is not a question of whether we are going to do anything. I want
to assure my colleagues we are going to do something. But we are going
to do it in the words of the resolution for which every Senator who
voted in the affirmative. The words of that resolution is in such a
manner that, in the judgment of the leaders, they would not interfere
with the ongoing investigation of special counsel Robert B. Fiske, Jr.
If the Senator wants to stand up and say, ``Well, I made a mistake in
voting for that; I do not agree with that''; I think we ought to do it,
even though it might interfere with the ongoing investigation, that is
an honorable and a responsible position.
Mr. D'AMATO. Mr. President, will the majority leader yield for an
observation?
Mr. MITCHELL. Yes.
Mr. D'AMATO. Mr. President, I concur in most of what the majority
leader has said. I think if the majority leader were to examine the
resolution, he would find the kinds of safeguards that ensure the
appropriateness of hearings to which he referred. Under the resolution,
the cochairmen of the special subcommittee would consult with special
counsel in connection with the establishment of a hearing schedule.
The resolution is intended to move the process forward in exactly the
spirit that the majority leader and the Republican leader have been
negotiating. It is intended to facilitate this process. I assure the
majority leader that is the purpose and the methodology of the
resolution.
I only asked for a few moments to make that observation. I just
wanted to share that with the leader.
Mr. MITCHELL. I thank my colleague.
I will make the following points. Everybody here knows that the
special counsel is meeting tomorrow with the Speaker of the House, the
majority leader of the House, and the Republican leader in the House.
The purpose of that meeting I am advised is to attempt to determine
what an appropriate schedule will be.
What conceivable rationale is there for presenting this resolution
today other than to get in a few more licks at the President when we
know the meeting is going to be held tomorrow, following which we
hopefully will have some idea of what the timing should be?
The fact of the matter is we all know what the rationale is. It is to
take a few more shots at the President, get up in the guise of wanting
hearings, to slam the President and the administration, to score a few
political points in this process.
If anyone was serious about wanting to move in that direction, he
should await the results of the meeting tomorrow because obviously
those facts are central to the determination of when we are going to
proceed.
So I say to my colleagues, we all understand what is going on. The
Senate floor is open to anyone who wants to speak on any subject, and
we regularly hear a lot of speeches with which one or another of us
disagree.
But since not by name but I by position was mentioned so often in the
prior discussion, I felt appropriate to respond to some of those
comments and to inform all of the Members of the Senate about the
status of our discussions. I think frankly that we are going to end up
at about the same place. The only question is how we get there.
We are going to meet our responsibilities. We are going to do it in a
responsible way. We are going to do it in a serious way. We are going
to try hard not to have it be a political circus but one which rather
deals seriously with the subject and which complies with the terms of
the resolution that in a way that does not interfere with the ongoing
investigation of the special counsel, a special counsel, I repeat,
appointed following the request of our Republican colleagues, a special
counsel who is himself a lifelong Republican, a special counsel who was
praised by Republican Senators for his integrity, his character, his
honesty, and his ability, and a special counsel who has asked us not to
hold hearings.
So, I think what is going on is pretty clear, and I wanted to make
the statement so that there would be no misunderstanding of my
intention.
I want to repeat what I said earlier, because it does bear
repetition.
The Republican leader and I have dealt in good faith. We have
exchanged correspondence. We have had several meetings. I believe we
have narrowed the issues and I believe we are moving toward, and have
made considerable progress toward, resolving this matter and would be
in a good position to do so once we have a better idea of the special
counsel's timetable.
We will then have difficult questions to resolve and implement
because it is clear that the special counsel's investigation is being
conducted in phases and that he will in the near future complete the
early phases, leaving the bulk of the inquiry still ongoing.
He has strongly requested, and we intend to comply, that the hearings
be conducted in a way that deal with the phases of his investigation
that are completed, but not interfere with or undermine those phases
still underway.
That is going to take a good bit of effort and restraint on the part
of Senators. I am confident that we can reach agreement on that and
hope that we can implement it in a satisfactory way.
Mr. President, I thank my colleagues and I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. DOMENICI. Mr. President, I wonder if the Senator would yield for
1 minute before the majority leader leaves, just to make an observation
in his presence?
Mr. BRYAN. I am pleased to do so.
May I ask my colleague to exercise restraint. I have a meeting that I
have to go to at 4:30. But I am happy to yield, with the understanding
that I be recognized immediately after the colloquy that the
distinguished Senator from New Mexico has with the majority leader.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOMENICI. Mr. President, let me say to the majority leader that I
have been in and out waiting for an opportunity to speak and I am not
going to speak because I do not want to take his time.
But, in essence, I would not have spoken about the issues you have
raised but rather another. It is entirely consistent with history that,
whether you have hearings about Presidential malfeasance or the
relatives of Presidents and their malfeasance, frequently it is
predicated upon partisan politics.
Now, one might say, ``No, no, you are wrong.'' But I am not wrong.
If it is not this body, I can at least say some legislative part of
America has had hearings about people that belong to the First Family
within 3 or 4 months of an election and just put them out there, even
though many people just like them did not have a hearing.
Now, I was going to say that I have found nothing yet to indicate
that the majority leader was saying that we do not have to have
hearings because the majority party does not want to have hearings. And
I am very pleased to say that I believe that is still the case.
Because I submit, Mr. Majority Leader, and a good friend of this
Senator, that there is plenty of evidence upon which to have a
congressional hearing. I mean, it is not skimpy, comparatively
speaking. I mean, we have had hearings with less evidence than this
from the beginning. Now, it got bigger later. We have had hearings
where there was less clamor, where there was no clamor, by the public
than there is now. But we have had them based upon facts we have
discovered and instances that the press has discovered.
And I just wanted to make a point that thus far we are proceeding not
on the basis that the majority party says we should not have these
because we want to protect a Democrat President. But that is entirely
another possibility that could be part of this kind of an episode in
American executive-legislative relationships.
I am not saying anything other than to say that would have been an
observation in more detail with more history that I would have made and
clearly was not intended in any way to set a different standard for
this President than others.
Quite to the contrary, it was to set the same standard for this
President and alleged malfeasance as others have had imposed on them by
us.
Mr. MITCHELL addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Mr. MITCHELL. The Senator has responded to an assertion which I never
made.
Mr. DOMENICI. I said you had not.
Mr. MITCHELL. In fact, it is the opposite of what I have said.
I have said right at this place for months and in other places that
we are going to have hearings and we are going to meet our
responsibilities.
The question is, would we do it in a responsible way or not? And
insofar as I have anything to say about it, we are going to.
I thank my colleague.
Mr. DOMENICI. I thank you very much.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. BRYAN. I thank the Chair
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