[Congressional Record Volume 141, Number 207 (Friday, December 22, 1995)]
[Senate]
[Pages S19284-S19285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    AUTHORIZING TESTIMONY AND REPRESENTATION BY SENATE LEGAL COUNSEL

  Mr. WARNER. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of S. Res. 203, S. Res. 204 and 
S. Res. 205 submitted earlier today by Senators Dole and Daschle; 
further, that the resolutions be considered, en bloc; that the 
resolutions be agreed to, en bloc; that the preambles be agreed to; 
that the motions to reconsider be laid upon the table; and that 
statements relating to the measures appear at the appropriate place in 
the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the resolutions (S. Res. 203, S. Res. 204, and S. Res. 205) were 
agreed to, en bloc.
  The preambles were agreed to, en bloc.
  The resolutions, with their preambles, are as follows:

                              S. Res. 203

       Whereas, in the case of Sheila Cherry v. Richard Cherry, 
     Case No. FM-18145-91, pending in the New Jersey Superior 
     Court, a subpoena duces tecum for testimony at a deposition 
     and for the production of documents has been issued to 
     William Ayala, an employee of Senator Frank Lautenberg;
       Whereas, by the privileges of the Senate of the United 
     States and Rule XI of the Standing Rules of the Senate, no 
     evidence under the control or in the possession of the Senate 
     may, by the judicial process, be taken from such control or 
     possession but by permission of the Senate;
       Whereas, when it appears that evidence under the control or 
     in the possession of the Senate may promote the 
     administration of justice, the Senate will take such action 
     as will promote the ends of justice consistently with the 
     privileges of the Senate;
       Whereas, pursuant to sections 703(a) and 704(a)(2) of the 
     Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec. 288b(a) 
     and 288c(a)(2) (1994), the Senate may direct its counsel to 
     represent committees, Members, officers, and employees of the 
     Senate with respect to subpoenas or orders issued to them in 
     their official capacity: Now, therefore, be it
       Resolved, That William Ayala is authorized to testify in 
     the case of Cherry v. Cherry, except concerning matters for 
     which a privilege or an objection should be asserted.
       Sec. 2. That the Senate Legal Counsel is directed to 
     represent William Ayala and Senator Lautenberg's office in 
     connection with the subpoena issued in ths case.

  Mr. DOLE. Mr. President, in the case of Cherry versus Cherry, a 
divorce proceeding pending in New Jersey Superior Court, the plaintiff 
has caused a subpoena to be served on an employee of Senator 
Lautenberg, seeking documents and testimony concerning the employee's 
performance of constituent services by contacting the IRS on behalf of 
the plaintiff. The plaintiff's attorney has not been able to 
demonstrate to Senator Lautenberg's office or to the Senate legal 
counsel how the office's casework assistance is relevant to the issues 
in controversy in the divorce suit. Accordingly, this resolution would 
authorize the Senate legal counsel to represent Senator Lautenberg's 
employee in this matter, and to seek to quash the subpoena in order to 
protect Senator Lautenberg's office from the burdens of complying with 
a discovery request of no relevance to the underlying dispute. This 
resolution also would authorize the employee to testify and produce 
documents in the event that the court determines that the employee does 
have any evidence somehow relevant to the divorce proceeding.

                              S. Res. 204

       Whereas, in the case of Charles Okoren, et al. v. Fyfe 
     Symington, et al., No. CV-95-2527-

[[Page S19285]]
     PHX-RCB, pending in the United States District Court for the District 
     of Arizona, the plaintiffs have named the United States 
     Senate as a defendant;
       Whereas, pursuant to sections 703(a) and 704(a)(1) of the 
     Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec. 288b(a) 
     and 288c(a)(1)(1994), the Senate may direct its counsel to 
     defend the Senate in civil actions relating to its official 
     responsibilities: Now therefore, be it
       Resolved, That the Senate Legal Counsel is authorized to 
     represent the United States Senate in the case of Charles 
     Okoren, et al. v. Fyfe Symington, et al.

  Mr. DOLE. Mr. President, the plaintiffs in Okoren v. Symington, No. 
CV-95-2527-PHX-RCB (D. Ariz.), have brought a civil action in Federal 
district court in Arizona seeking two declarations from the court: 
first, a declaration that Arizona's indictment procedures violate the 
United States Constitution; and second, a declaration that the Civil 
Justice Reform Act of 1990 overrules the decision of the United States 
Supreme Court in Younger v. Harris, 401 U.S. 37 (1971), that federal 
courts will not enjoin pending state criminal prosecutions except under 
extraordinary circumstances.
  In their suit, these plaintiffs have named, among others, the United 
States Senate as a party. The Senate is not, however, a proper party to 
this lawsuit. In fact, the plaintiffs assert no claim against the 
Senate. This resolution authorizes the Senate legal counsel to 
represent the Senate in this action.

                              S. Res. 205

       Whereas, in the case of United States of America v. Karl 
     Zielinski, Case No. F12187-94, a criminal action pending in 
     the Superior Court of the District of Columbia, the United 
     States Attorney has caused a trial subpoena to be served on 
     Michael O'Leary, a Senate employee on the staff of the 
     Committee on the Judiciary;
       Whereas, by the privileges of the Senate of the United 
     States and Rule XI of the Standing Rules of the Senate, no 
     evidence under the control or in the possession of the Senate 
     can, by administrative or judicial process, be taken from 
     such control or possession but by permission of the Senate;
       Whereas, when it appears that evidence under the control or 
     in the possession of the Senate is needed for the promotion 
     of justice, the Senate will take such action as will promote 
     the ends of justice consistent with the privileges of the 
     Senate;
       Whereas, pursuant to sections 703(a) and 704(a)(2) of the 
     Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec. 288b(a) 
     and 288c(a)(2), the Senate may direct its counsel to 
     represent employees of the Senate with respect to requests 
     for testimony made to them in their official capacities; Now, 
     therefore, be it
       Resolved, That Michael O'Leary is authorized to provide 
     testimony in the case of United States of America v. Karl 
     Zielinski, except concerning matters for which a privilege 
     should be asserted.
       Sec. 2. The Senate Legal Counsel is authorized to represent 
     Michael O'Leary in connection with the testimony authorized 
     by section 1 of this resolution.

  Mr. DOLE. Mr. President, in the case of United States of America 
versus Karl Zielinski, the United States Attorney for the District of 
Columbia has charged the defendant with threatening to do bodily harm 
to occupants of the Hart Senate Office Building in violation of section 
22-507 of the District of Columbia Code, during a visit in December 
1994 to the offices of the Senate Judiciary Committee's Subcommittee on 
Patents, Copyrights, and Trademarks.
  Michael O'Leary, an employee on the Judiciary Committee's staff, 
witnessed the incident and has been subpoenaed by the U.S. Attorney to 
testify at the trial.
  This resolution would authorize Mr. O'Leary to testify at the trial, 
with representation by the Senate legal counsel.

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