[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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