[Congressional Record Volume 142, Number 63 (Wednesday, May 8, 1996)]
[Senate]
[Pages S4857-S4859]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Levin, Mr. Stevens, Mr. Nunn, 
        Mr. Cohen, Mr. Inouye, Mr. Jeffords, Mr. Leahy, and Mr. Kohl):
  S. 1734. A bill to prohibit false statements to Congress, to clarify 
congressional authority to obtain truthful testimony, and for other 
purposes; to the Committee on the Judiciary.


              the false statements penalty restoration act

  Mr. SPECTER. Mr. President, last year the Supreme Court overturned 40 
years of statutory interpretation and held that the statute that 
prohibits making false statements to agencies of the Federal Government 
only prohibits false statements made to agencies of the executive 
branch.
  There is no reason why Congress should receive less protection than 
the executive. The cardinal principle at stake is that in dealing with 
the Government, any agency of the Government, people must, in the words 
of Justice Holmes, ``cut square corners,'' just as the Government must 
cut square corners in dealing with its citizens. One who lies to an 
entity of Government, be it an agency of the executive or a 
subcommittee of Congress, is under a justifiable expectation that if he 
or she lies, he or she will be punished.
  This is not a difficult issue. For 40 years, Congress received the 
same protection as the executive. Anyone who lied knowingly and 
wilfully in a material way to either an executive agency or a component 
of Congress was subject to prosecution. In its Hubbard decision of last 
year, the Supreme Court took that protection away from Congress.
  Let me offer some examples of the types of lies that can now 
knowingly be made without fear of criminal sanction. Recently Congress 
enacted lobbying disclosure. Lobbyists must make more thorough 
disclosures in filings with Congress. Knowing and material 
misstatements in these disclosure forms are no longer a basis for 
criminal prosecution. Many of us asks the General Accounting Office to 
investigate the operations of executive branch agencies. An employee of 
an agency being investigated by the GAO can now knowingly lie to a GAO 
investigator, or indeed a Senator, without having to fear criminal 
prosecution. Of course, if instead of the GAO the review was being 
conducted by an agency inspector general, then section 1001 would 
apply. This distinction cannot be justified.
  Congress relies on accurate information to legislate, to oversee, to 
direct public policy. Unless the information coming to us is accurate, 
we are unable to fulfill our constitutional functions. This issue is a 
simple one. When someone provides information to Congress, its members, 
committees, or offices, that person should not knowingly provide 
untruthful information. So simple is this principle that I first 
offered legislation to overturn the Hubbard decision a week after it 
was decided. Since introduction of my bill, S. 830, I have been working 
with Senator Levin on the language of amended section 1001 and on some 
other ancillary matters.
  The bill Senator Levin and I are introducing today will amend section 
1001 to restore coverage for misstatements made to both Congress and 
the Federal judiciary, although it will codify the judiciary created 
exception to the pre-Hubbard section 1001 to exempt from its coverage 
statements made to a court performing an adjudicative function. The 
rational for this exception is that our adversary system relies on 
unfettered argument and the chilling effect from applying section 1001 
to statements to a court adjudicating a case could be significant. In 
addition, cross-examination and argument from the other side is 
adequate to reveal misstatements in the judicial context.
  No similar legislative-function exemption is proposed for statements 
made to Congress, and none is needed. Congress does not rely on cross-
examination to get at the truth. Instead, we must rely on the 
truthfulness of statements made to us in the course of the performance 
of our official duties.
  In addition to restoring section 1001 liability for misstatements 
made to Congress and the courts, this bill would restore force to the 
prohibition against obstructing congressional proceedings by narrowing 
the meaning of the provision. This amendment is needed to respond to a 
decision of the U.S. Court of Appeals for the District of Columbia 
Circuit which found the current statute too vague to be enforceable.
  The bill also clarifies when officials of executive branch agencies 
can assert a privilege and decline to respond to inquiries from 
Congress. The bill requires that an employee of an executive agency 
would have to demonstrate that the head of the agency directed that the 
privilege be asserted. This will ensure that the assertion of the 
privilege is reviewed at the highest levels of the agency by someone 
accountable to the President and ultimately the people. It will also 
ensure that any privileges that are asserted are governmental 
privileges and not personal ones.
  Finally, the bill would make a minor technical amendment to the 
statute allowing Congress to seek to take immunized testimony from 
witnesses by clarifying that the testimony can be taken either at 
proceedings before a committee or subcommittee or any proceeding 
ancillary to such proceedings, such as depositions.
  Mr. President, I believe this is an important bill that will restore 
to the law of the land the principle that one cannot knowingly and 
wilfully lie about a material matter to Congress. I hope my colleagues 
will support this principle by supporting the bill, which I hope we can 
enact this year.
  I ask unanimous consent that a copy of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1734

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``False Statements Penalty 
     Restoration Act''.

     SEC. 2. RESTORING FALSE STATEMENTS PROHIBITION.

       Secion 1001 of title 18, United States Code, is amended to 
     read as follows:

     ``Sec. 1001. Statements or entries generally

       ``(a) Prohibited Conduct.--
       ``(1) In general.--A person shall be punished under 
     subsection (b) if, in any matter within the jurisdiction of 
     the executive, legislative, or judicial branch of the United 
     States Government, or any department, agency, committee, 
     subcommittee, or office thereof, that person knowingly and 
     willfully--
       ``(A) falsifies, conceals, or covers up, by any trick, 
     scheme, or device, a material fact;
       ``(B) makes any materially false, fictitious, or fraudulent 
     statement or representation; or
       ``(C) makes or uses any false writing or document, knowing 
     that the document contains any materially false, fictitious, 
     or fraudulent statement or entry.
       ``(2) Applicability.--This section shall not apply to 
     statements, representations, writings, or documents submitted 
     to a court in connection with the performance of an 
     adjudicative function.
       ``(b) Penalties.--A person who violates this section shall 
     be fined under this title, imprisoned for not more than 5 
     years, or both.''

     SEC. 3. CLARIFYING PROHIBITION ON OBSTRUCTING CONGRESS.

       Section 1515 of title 18, United States Code, is amended--
       (1) by redesignating subsection (b) as subsection (c); and
       (2) by inserting after subsection (a) the following new 
     subsection:
       ``(b) As used in section 1505, the term `corruptly' means 
     acting with an improper purpose, personally or by influencing 
     another, including, but not limited to, making a false or 
     misleading statement, or withholding, concealing, altering, 
     or destroying a document or other information.''.

     SEC. 4. ENFORCING SENATE SUBPOENA.

       Section 1365(a) of title 28, United States Code, is amended 
     in the second sentence, by striking ``Federal Government 
     acting within his official capacity'' and inserting 
     ``Executive Branch of the Federal Government acting within 
     his or her official capacity, if the head of the department 
     or agency employing the officer or employee has directed the 
     officer or employee not to comply with the subpena or order 
     and identified the Executive Branch privilege or objection 
     underlying such direction''.

     SEC. 5. COMPELLING TRUTHFUL TESTIMONY FROM IMMUNIZED WITNESS.

       Section 6005 of title 18, United States Code, is amended--
       (1) in subsection (a), by inserting ``or ancillary to'' 
     after ``any proceeding before''; and

[[Page S4858]]

       (2) in subsection (b)--
       (A) in paragraph (1) and (2), by inserting ``or ancillary 
     to'' after ``a proceeding before'' each place it appears; and
       (B) in paragraph (3), by inserting a period at the end.

 Mr. LEVIN. Mr. President, I am pleased to join with Senator 
Specter in sponsoring the False Statements Penalty Restoration Act.
  Right now, it is a crime to make a false statement to the executive 
branch, if the false statement is made knowingly and willfully and is 
material in nature. This prohibition is contained in the Federal 
criminal code at 18 U.S.C. 1001.
  Forty years ago, in 1955, the Supreme Court interpreted section 1001 
to prohibit willful, material false statements not only to the 
executive branch, but also to the judicial and legislative branches. 
For 40 years, that was the law of the land, and it served this country 
well. But a recent Supreme Court decision has now drastically 
diminished the scope of this prohibition.
  Last year, in a case called United States versus Hubbard, the Supreme 
Court reversed itself and 40 years of precedent and determined that 18 
U.S.C. 1001 prohibits willful material false statements only to the 
executive branch, not to the judicial or legislative branch. It based 
its decision on the wording of the statute which doesn't explicitly 
reference either the courts or Congress.
  The result has been the dismissal of indictments charging individuals 
with making willful, material false statements on expense reports or 
financial disclosure forms to Congress and the courts. Another 
consequence has been the exemption of all financial disclosure 
statements filed by judges and Members of Congress from criminal 
enforcement. Parity among the three branches has been reduced, and 
common sense has been violated, since, logically, the criminal status 
of a willful, material false statement shouldn't depend upon which 
branch of the Federal Government received it.
  The bill we are introducing today would restore parity by amending 
section 1001 to make it clear that its prohibition against willful, 
material false statements applies to all three branches. The bill would 
essentially restore the status quo prior to Hubbard, including 
maintaining the longstanding exception for statements made to courts 
adjudicating disputes to ensure vigorous advocacy in the courtroom.
  The false statements prohibition in section 1001 has proven itself a 
useful weapon against fraud, financial deception and other abuses that 
affect all three branches of Government. The Supreme Court gave no 
reason for reducing its usefulness, other than the Court's commitment 
to relying on the express words of the statute itself. Our bill would 
change those words to clarify Congress' intent to apply the same 
prohibition against willful, material false statements to all three 
branches.
  Our bill would also correct a second court decision that has weakened 
longstanding criminal prohibitions against making false statements to 
Congress. The 50-year-old statute at issue here is 18 U.S.C. 1505 which 
prohibits persons from corruptly obstructing a congressional inquiry.
  In 1991, in a dramatic departure from other circuits, the D.C. 
Circuit Court of Appeals held in United States versus Poindexter that 
the statute's use of the term ``corruptly'' was unconstitutionally 
vague and failed to provide clear notice that it prohibited an 
individual's lying to Congress. The Court held that, at most, the 
statute only prohibited a person from inducing another person to lie or 
otherwise obstruct a congressional inquiry; it did not prohibit a 
person from personally lying or obstructing Congress.
  No other Federal circuit has taken this approach. In fact, other 
circuits have interpreted ``corruptly'' to prohibit false or misleading 
statements not only in section 1505, but in other Federal obstruction 
statutes as well, including section 1503 which prohibits obstructing a 
Federal grand jury. These circuits have interpreted the Federal 
obstruction statutes to prohibit not only false statements, but also 
withholding, concealing, altering or destroying documents.
  The bill we are introducing today would affirm the interpretations of 
these other circuits by defining ``corruptly'' to mean ``acting with an 
improper purpose, personally or by influencing another to act, 
including, but not limited to, making a false or misleading statement, 
or withholding, concealing, altering, or destroying a document or other 
information.''
  This definition would make it clear that section 1505 is intended to 
prohibit the obstruction of a congressional inquiry by a person acting 
alone as well as when inducing another to act. It would make it clear 
that this prohibition bars a person from making false or misleading 
statements to Congress and from withholding, concealing, altering or 
destroying documents requested by Congress.
  Our bill would make clear the conduct that section 1505 was always 
meant to prohibit. It would also ensure that the prohibition against 
obstructing Congress is given an interpretation that is consistent with 
the obstruction statutes that apply to the other two branches of 
government.
  Because congressional obstruction prosecutions are more likely within 
the District of Columbia than other jurisdictions, the 1991 D.C. 
Circuit Court ruling has had a disproportionate impact on the 
usefulness of 18 U.S.C. 1505 to Federal prosecutors. As with Hubbard, 
this court ruling has led to the dismissal of charges and the 
limitation of prosecutorial options. It is time to restore the strength 
and usefulness of the congressional obstruction statute as well as its 
parity with other obstruction statutes protecting the integrity of 
Federal investigations.
  The final two sections of the bill clarify the ability of Congress to 
compel truthful testimony. Both provisions are taken from a 1988 bill, 
S. 2350, sponsored by then-Senator Rudman and cosponsored by Senator 
Inouye. This bill passed the Senate, but not the House. The problems it 
addressed, however, continue to exist.
  The first problem involves enforcing Senate subpoenas to compel 
testimony or documents. The Senate currently has explicit statutory 
authority, under 28 U.S.C. 1365, to obtain court enforcement of 
subpoenas issued to private individuals and State officials. This 
enforcement authority does not apply, however, to a Senate subpoena 
issued to a federal official acting in an official capacity, presumably 
to keep political disputes between the legislative and executive 
branches out of the courtroom. The problem here has been to determine 
when a subpoenaed official is acting in an official capacity when 
resisting compliance with a Senate subpoena.
  The Specter-Levin bill would cure this problem by exempting from 
enforcement only those situations where Federal officials have been 
directed by their agency heads to exert a government privilege and 
resist compliance with the subpoena. Any official resisting a subpoena 
without direction from his or her agency head would be deemed acting 
outside his or her official capacity and would be subject to court 
enforcement.
  The second problem involves compelling testimony from individuals who 
have been given immunity from criminal prosecution by Congress. In the 
past, some individuals granted immunity have refused to provide 
testimony in any setting other than a congressional hearing, because 
the relevant statute, 18 U.S.C. 6005, is limited to appearances 
``before'' a committee, while the comparable judicial immunity statute, 
18 U.S.C. 6003, applies to appearances ``before or ancillary to'' court 
and grand jury proceedings.
  The bill would reword the congressional immunity statute to parallel 
the judicial immunity statute, and make it clear that Congress can 
grant immunity and compel testimony not only in committee hearings, but 
also in depositions conducted by committee members or committee staff. 
This provision, like the proceeding one, would improve the Senate's 
ability to compel truthful testimony and obtain requested documents. It 
would also bring greater consistency across the government in how 
immunized witnesses may be questioned. Again, both provisions were 
passed the Senate by unanimous consent once before.
  Provisions to bar false statements and compel truthful testimony have 
been on the Federal statute books for 40 years or more. Recent court 
decisions and events have eroded the usefulness of some of these 
provisions as they apply to the courts and Congress. The bill before 
you is a bipartisan effort to redress some of the imbalances

[[Page S4859]]

that have arisen among the branches in these areas. I urge you to join 
Senator Specter, myself, and our cosponsors in supporting swift passage 
of this important legislation.
                                 ______