[Congressional Record Volume 140, Number 115 (Tuesday, August 16, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                      JUDGE SENTELLE-KENNETH STARR

  Mr. METZENBAUM. Madam President, last Monday I addressed my 
colleagues to express my strong concern over the replacement of Robert 
Fiske with Kenneth Starr as the independent counsel in the Whitewater 
matter.
  Today I rise to elaborate upon that matter, to discuss further the 
whole question of Judge Sentelle and his remaining in the position of 
continuing to make appointments in connection with the Whitewater 
investigation or any other independent counsel appointment. I believe 
that Judge Sentelle does, himself, fail to bring to the process that 
aura of impartiality that is so imperative if this process is to 
proceed forward as was originally contemplated by Senators Levin and 
Cohen when they introduced the legislation, and it was passed.
  My opposition to the appointment was not because there was anything 
particularly wrong with Mr. Starr when Judge Sentelle appointed him, 
but because the whole process just looked horrible.
  In fact, when Mr. Fiske was replaced, no one alleged that he did 
anything wrong. Two letters, one sent by Senator Faircloth to Attorney 
General Reno and another sent by 10 conservative Republican 
Congresspersons to Judge Sentelle, argued that Mr. Fiske had to be 
replaced in order to prevent an appearance of impropriety. And that is 
the subject to which I wish to address myself: The appearance of 
impropriety.

  It was the appearance of impropriety that was the problem. So how was 
this appearance problem resolved? I came to the floor last week to 
express my concern that the appointment of Mr. Starr by Judge Sentelle 
created its own appearance problems.
  First, look at the man who was chosen to replace Mr. Fiske. Kenneth 
Starr is not just an ordinary Republican. He is a highly partisan 
Republican who recently considered running for the Senate and who has 
taken a highly visible legal stance against the President of the United 
States. He was appointed to the bench by President Reagan, was 
Solicitor General for President Bush, contributed heavily to House and 
Senate Republican candidates and currently is cochairing the campaign 
of a Republican challenger who has built his campaign on attacking 
President Clinton. What is the appearance of this?
  Never before in the history of the independent counsel has an 
appointee had an active role in a political campaign at the time of his 
selection. Never before has an appointee been this politically 
partisan.
  Now let us look at the judge who appointed Starr--Judge Sentelle--
serving on the independent counsel panel at the request of Chief 
Justice Rehnquist, appointed to the Federal bench by President Reagan, 
sponsored by Senator Jesse Helms and judicial protector of Oliver 
North.
  As if these appearance problems with Mr. Starr and Judge Sentelle 
were not enough, recently we have learned even more. It appears that at 
the time Judge Sentelle was deciding who would be Mr. Fiske's 
replacement, he was meeting on Capitol Hill with two of the most 
vociferous critics of the Clinton administration and the Whitewater 
matter. Now, how does that look? We are talking about the appearance of 
impropriety, and how can you possibly explain that kind of 
contradiction, or at least that kind of meeting, in view of the so-
called appearance of impropriety?
  A judge who is charged with selecting an impartial and independent 
counsel--one free from political influence--should not appear to be 
subject to political influence himself. Surely, Judge Sentelle should 
have known better. He should have been sensitive enough to appearances 
of partisanship to realize that he had no business meeting with two 
conservative Republican friends, one of whom was spearheading the 
effort to replace Mr. Fiske. What are Americans supposed to think of a 
judge, who is charged with maintaining impartiality, appearing to 
consort with the leading critics of the opposing political faction?
  This meeting, regardless of what was discussed, destroys any 
remaining hope of an appearance of impartiality. Even if the 
independent counsel matter was not discussed--and I have no way of 
knowing whether it was or was not--the mere presence of these men 
together at that time raises a highly disturbing appearance of 
impropriety.
  How in the world, I ask my colleagues, can this have the appearance 
of impartiality? How can the American people possibly have faith in the 
independence of the special counsel responsible for such a highly 
sensitive political investigation of the President under these 
circumstances?
  That is now impossible. There is no other way to slice it. It is 
impossible to deny the appearance of--not of impropriety--of 
impartiality. It is clear that if what my Republican colleagues were 
concerned about with Mr. Fiske was the appearance of impartiality, then 
what we have here is an appearance problem from beginning to end. Judge 
Sentelle's pick of Kenneth Starr has a much worse appearance problem 
than anything--than anything--alleged about Mr. Fiske.
  Perhaps even more important, Madam President, is the threat that this 
appointment process poses to the independent counsel law. That law was 
originally enacted in the best bipartisan spirit, a tremendous effort, 
led in the Senate by Senator Levin and Senator Cohen, and the Members 
of the Congress owe them a debt of gratitude for fashioning that law in 
such a way so that, indeed, there could be an independent counsel that 
was truly independent.
  The whole thought behind the original act was to protect the 
independent counsel process from partisan influence and to promote the 
fairness of investigations. The whole reason judges were accorded the 
decision as to the selection of an independent counsel is because they 
are supposed to be immune from political influence and able to maintain 
public confidence in a fair process. The replacement of Mr. Fiske with 
Mr. Starr by Judge Sentelle makes a mockery of the independent counsel 
law.
  We must act to protect the statute's purposes. We must start from a 
clean slate. In order to protect the appearance of impartiality, 
Kenneth Starr should either resign his appointment or be removed from 
the post.
  In addition--and this, I believe, is probably as important as 
anything that I have said up until this point--before Judge Sentelle 
has another chance to taint the appearance of another appointment, he 
should either step down or be removed from the judicial panel that 
selects independent counsels, for the same reason.
  I understand that Judge Sentelle is involved at this very time in 
selecting the independent counsel to handle the Mike Espy investigation 
and would continue to make such appointments in the future.
  In light of the appearance of partisanship he has displayed in the 
Starr appointment, the American people cannot accept his continued 
involvement as head of the independent counsel panel.
  I am sure that there are hundreds of eminent lawyers out there--
Democrats and Republicans alike and maybe some Independents as well--
who could be trusted as nonpartisan, independent counsel. And I am 
confident that Chief Justice Rehnquist would be able to find another 
judge--I do not care whether he or she is a Democrat or a Republican--
who could fill Judge Sentelle's position on the panel without creating 
the appearance of partisanship.
  I believe that Justice Rehnquist has some responsibility in this 
matter, and I would call upon him to reexamine the propriety of Judge 
Sentelle continuing to head up the panel choosing the independent 
counsel in this instance, as well as possibly future ones.
  The American people can no longer trust in the integrity and fairness 
of this independent counsel investigation. The law was fashioned 
correctly, and the operation of the law was supposed to work well. But 
at this moment, there appears to be nothing independent about it. It 
reeks of partisanship, and the American people know it. Actions must be 
taken to restore the public's confidence in this most important matter 
and in the overall integrity of the independent counsel process.
  Madam President, I yield back the remainder of my time.
  Mr. GRASSLEY addressed the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.

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