[Congressional Record Volume 141, Number 205 (Wednesday, December 20, 1995)]
[Senate]
[Page S18970]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       DIRECTING THE SENATE LEGAL COUNSEL TO BRING A CIVIL ACTION

  The Senate continued with the consideration of the resolution.
  Mr. LEAHY. I would like, Mr. President, to speak about Senate 
Resolution 199. We have been asked this session to consider a number of 
matters with which I did not agree. I think, frankly, this one, Senate 
Resolution 199, may take a special holiday season award. I am not here 
to talk about the arguments over the attorney-client privilege issues 
or the precedent we are being asked to establish, or the failure fully 
to explore settlement of this matter in light of the President's 
willingness to produce the notes to the Whitewater special counsel and 
to the Senate so long as a general waiver of privilege does not result. 
I will not linger on being asked to enforce a subpoena that was not 
properly served.
  Let me direct my colleagues' attention to one aspect of this matter 
that has not yet been explored: We are being asked to authorize Senate 
legal counsel to commence an action that cannot be brought.
  Senate resolution 199 expressly proposes that we, the Senate, direct 
our Senate legal counsel to bring a civil action to enforce a subpoena 
of the Special Committee To Investigate Whitewater Development 
Corporation and Related Matters for notes taken by an associate counsel 
to the President. The statute under which we are being asked to 
authorize the proposed civil contempt proceeding expressly precludes 
just the kind of legal action we are being asked to authorize, one that 
would create a confrontation with the executive branch.
  The second sentence of section 1365 of title 28, United States Code, 
provides:

       This section shall not apply to an action to enforce, to 
     secure a declaratory judgment concerning the validity of, or 
     to prevent a threatened refusal to comply with, any subpoena 
     or order issued to an officer or employee of the Federal 
     Government acting within his official capacity.

  This, of course, was put in the statute to avoid putting the courts 
in a position of having to resolve a conflict between the other two 
independent branches of government.
  So long as it would not violate anyone's attorney-client privilege, I 
would be extremely interested in knowing what Senate legal counsel has 
advised the special committee with regard to subpoenas to the White 
House and for White House legal counsel notes and with regard to their 
enforceability by way of civil action. I think before the Senate is 
asked to authorize it, we ought to know whether the civil contempt 
proceeding we are being asked to authorize is even legal. Does the 
special committee have a legal opinion from our Senate legal counsel on 
the viability of the action proposed? If so, I would like to have it 
put in the Record.
  This dispute arises, as the special committee's report explains, from 
a demand for documents to the White House in response to which the 
White House identified Mr. Kennedy's notes as privileged.
  The special committee goes to great lengths in its report to argue 
Mr. Kennedy was not acting as a personal attorney to the President and 
the First Lady, but then dismisses the conclusion that follows. If Mr. 
Kennedy attended the meeting in his role as associate counsel to the 
President, then it would appear that no legal action can be brought 
under section 1365. The special committee cannot have it both ways.
  So I think we should consider that which we are being asked to 
authorize. I know millions of dollars have been spent on this 
investigation. I know we will probably spend millions more. But at 
least when we vote we ought to know whether we are voting to do 
something that can be done.
  We have no need to authorize legal action, least of all one that 
cannot be brought under the terms of the very statute under which 
authorization is being sought.
  I appreciate the distinguished chairman arranging this time for me.
  Mr. D'AMATO. Mr. President, in order to attempt to move the flow, I 
would ask unanimous consent that following Senator Mack, Senator Simon 
be recognized, and following Senator Simon, Senator Thompson be 
recognized.
  Mr. SARBANES. And then Senator Glenn.
  Mr. D'AMATO. And then followed by Senator Glenn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MACK addressed the Chair.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MACK. I thank the Chair.

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