[Congressional Record Volume 142, Number 111 (Thursday, July 25, 1996)]
[Senate]
[Pages S8938-S8941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FALSE STATEMENTS PENALTY RESTORATION ACT
Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the
Judiciary Committee be discharged from further consideration of H.R.
3166 and that the Senate proceed to its immediate consideration.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered. The clerk will report.
The legislative clerk read as follows:
A bill (H.R. 3166) to amend title 18, United States Code,
with respect to the crime of false statement in a Government
matter.
The PRESIDING OFFICER. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the bill.
Amendment No. 5091
(Purpose: To propose a substitute)
Mr. MURKOWSKI. Mr. President, I understand there is a substitute
amendment at the desk offered by Senator Specter, and I ask for its
immediate consideration.
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The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Alaska [Mr. Murkowski] for Mr. Specter,
for himself, Mr. Levin, Mr. Roth, Mr. Nunn, Mr. Stevens, Mr.
Inouye, Mr. Grassley, Mr. Leahy, Mr. Cohen, Mr. Kohl, and Mr.
Jeffords, proposes an amendment numbered 5091.
Mr. MURKOWSKI. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``False Statements Penalty
Restoration Act''.
SEC. 2. RESTORING FALSE STATEMENTS PROHIBITION.
Section 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 Federal
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
parties to a judicial proceeding or anyone seeking to become
a party to a judicial proceeding, or their counsel, for
statements, representations, or documents submitted by them
to a judge in connection with the performance of an
adjudicative function.
``(b) Penalties.--A person who violates this section shall
be fined under this title, imprisoned 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) Corruptly.--As used in section 1505, the term
`corruptly' means acting with an improper purpose, personally
or by influencing another, including 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, except that this section shall
apply if the refusal to comply is based on the assertion of a
personal privilege or objection and is not based on a
governmental privilege or objection the assertion of which
has been authorized by the executive branch of the Federal
Government''.
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
(2) in subsection (b)--
(A) in paragraphs (1) and (2), by inserting ``or ancillary
to'' after ``a proceeding before'' each place that term
appears; and
(B) in paragraph (3), by adding a period at the end.
Mr. SPECTER. Mr. President, I am pleased that the Senate is acting on
the False Statements Penalty Restoration Act so quickly after the
substitute was reported by the Judiciary Committee. This is important
legislation to safeguard the constitutional legislative and oversight
roles of the Congress.
Last year, overturning a decision it had rendered in 1955, the
Supreme Court of the United States held in Hubbard versus United States
that section 1001 of title 18 of the United States Code, the section of
the Federal criminal code prohibiting false statements, only covered
false statements made to executive branch agencies. That decision put
at grave risk the ability of Congress to collect correct information,
as false statements to Congress could no longer be punished.
Congressional oversight and investigations would clearly be threatened
if those interviewed could lie with impunity. Simple requests for
information by Congress, its committees and subcommittees, or its
offices, could be met with lies. Investigations by the General
Accounting Office could likewise be stonewalled by witnesses providing
false information.
Within days of the Hubbard decision, I had introduced S. 830 to
overturn that decision. Earlier this year, I introduced revised
legislation, S. 1734, joined by Senator Levin. Joining us in
introducing this important bill were Senators Stevens, Nunn, Cohen,
Leahy, Jeffords, Inouye, and Kohl. Subsequently, both Senators Roth and
Grassley became cosponsors. The broad bipartisan cosponsorship of this
bill by some of the Senate's leading investigators and practitioners of
oversight is testimony to the threat posed by Hubbard to our ability to
conduct our constitutional responsibilities.
This bill is needed not simply for the practical reasons I have
briefly outlined, but because it is important to make it clear that
intentional false statements to Congress are just as pernicious as
those made to an agent of the executive branch. We are of equal
standing with the executive and the dignitary injury to the standing of
Congress done by Hubbard must be overturned promptly.
Support for this bill comes not only from many of our colleagues. The
Justice Department has been very supportive and quite helpful in
crafting several of the bill's provisions. The Judiciary Committee
heard from Deputy Assistant Attorney General Robert Litt in support of
extending the coverage of section 1001 to Congress and the courts. I am
grateful to the Criminal Division and the Office of Legal Counsel of
the Justice Department for their assistance and insight in crafting the
provisions of this bill, especially parts of section 2 and section 4.
The bill contains four substantive provisions, which I would like to
summarize and briefly explain to my colleagues, so that they may fully
understand the impact of this bill.
First is the provision to amend section 1001 of title 18 of the
United States Code to prohibit false statements to executive agencies
and departments, Congress, and the Federal courts. This provision is
central to this bill. It is intended to restore section 1001 to its
pre-Hubbard status. Any knowing and willful false statement that is
material which is made to Congress, including any committee or
subcommittee, staff of any member or committee or subcommittee acting
in their official capacity, or any component or office of Congress
shall be punishable under section 1001. For 40 years, this was the law
of the land and there was no abuse. There is no evidence that between
1955 and 1995, the rights of individuals to provide information to
Congress, to petition Congress, or to testify before Congress were
chilled because of the application of section 1001 to false statements
made to Congress. My research finds no prosecutions of any constituent,
for example, furnishing false information to a Member of Congress.
Thus, the bill does not contain any exceptions to the general rule that
any knowing, willful, and material false statement to Congress will be
punishable under section 1001.
The bill also prohibits false statements made to the Federal courts.
Prior to Hubbard, the Federal courts had created a ``judicial
function'' exception to section 1001 to carve out from the coverage of
the law false statements made in the course of advocacy before a court.
In order to capture the pre-Hubbard application of section 1001, this
bill will codify for the first time a judicial function exception to
section 1001. The language of the exception was suggested by the
Justice Department, although it contains an additional limitation on
which I insisted, which was to limit the application of the exception
to false statements made to a judge in the performance of an
adjudicative function.
The bill will exempt from the coverage of section 1001, any statement
made by a party to litigation or anyone seeking to become a party, or
their counsel, to a judge acting in an adjudicative capacity. In
general, the only individuals making statements in court are witnesses,
who are already under oath and thereby subject to prosecution for
perjury, and parties and their counsel. Knowing, willful and material
false statements made by parties or their counsel ought to be exempt
for several reasons. First, we do not want to chill committed advocacy
in court on behalf of any party. Our adversary system requires
unfettered advocacy, which application of section 1001 could chill. In
addition, our adversary system means that there is an opponent who
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can call a false statement to the court's attention, supplying a
necessary antidote. That is not the case in congressional hearings,
during which there may not be anyone to point out and correct false
statements. Thus, a similar exemption is not warranted for
congressional proceedings. Finally, courts retain adequate alternatives
to punish and deter false statements, including the contempt power and
lesser sanctions provided for in the Federal Rules of Civil and
Criminal Procedure and in the courts' inherent power. Congress lacks
these alternative sanctions, which is yet another reason for not
including a similar exemption for congressional proceedings.
The judicial function exception applies only to false statements made
to a judge exercising its adjudicative authority, and not when it is
exercising administrative authority. For example, the submission of a
false bill to a judge by a lawyer for payment under the Criminal
Justice Act would be punishable under the revised section 1001, because
the false statement would not be made to the court in its adjudicative
function. Also punishable would be applications for membership in the
bar of a particular Federal court. The reason for the distinction is
that many of the safeguards derived from the adversarial system that
might call the false statement to the judge's attention are not
present, warranting application of section 1001.
The next three sections of the bill are derived from legislation
introduced by Senators Levin, Nunn, and Inouye. Two of them passed the
Senate in 1988 but were not enacted.
Section three of the bill will overturn a 1991 decision of the United
States Court of Appeals for the District of Columbia Circuit in United
States versus Poindexter. In that case, the D.C. Circuit held that the
statute prohibiting obstruction of Congress applies only to persons who
attempt to obstruct a congressional inquiry indirectly through another
person, and not to witnesses themselves. The bill would overturn this
decision and clarify that an individual acting alone could be liable
for obstructing Congress.
The next section of the bill is intended to clarify when the Senate
may enforce a subpoena against an officer or employee of the executive
branch who asserts a privilege in response to a Senate subpoena. The
intent is to make it clear that judicial enforcement is available when
a person is asserting a privilege personal to him or her, but not when
the person is asserting a governmental privilege available only to the
executive branch. When a private person asserts a privilege, section
1365 of title 28 of the United States Code allows the Senate to go to
court to seek to compel responses. The section does apply to any action
to enforce a subpoena against an executive branch employee who declines
to testify by asserting a governmental privilege. The purpose is to
keep disputes between the executive and legislative branches out of the
courtroom.
In order to clarify whether the privilege asserted does in fact
belong to the government, thus rendering section 1365 inapplicable, or
is instead a personal privilege, the bill will revise section 1365 to
require that any governmental privilege asserted must be authorized by
the executive branch. It is the sponsors' intention, worked out with
the Justice Department, to ensure the utmost flexibility in
establishing the valid assertion of a governmental privilege. No
particular form is required; it simply must be clear that the executive
has authorized the assertion of the privilege. In addition, the
language of the provision demonstrates our intention that the person
asserting the privilege will bear the burden in a judicial proceeding
under section 1365 of proving that he or she was in fact authorized to
assert a governmental privilege. This change will prevent rogue
employees from falsely asserting a privilege and escaping efforts to
compel responses.
Finally, the bill amends section 6005 of title 18 to authorize
Congress to compel testimony under oath from an immunized witness in a
deposition. This change will enable Members and their staff to more
readily conduct preliminary investigations as part of congressional
inquiries.
I want to thank the cosponsors of this bill for their assistance,
particularly Senator Levin and Elise Bean of his staff; the chairman
and ranking Member of the Judiciary Committee, Senators Hatch and
Biden, and their staff, especially Paul Larkin and Michael Kennedy of
the majority and Peter Jaffe of the minority staff; the Department of
Justice; and the Senate Legal Counsel, Thomas B. Griffith, and his
deputy, Morgan Frankel, for their assistance.
I look forward to resolving any differences with the House bill
promptly so that this important bill can be enacted before the close of
this Congress.
Mr. LEVIN. Mr. President, as a sponsor of S. 1734, the False
Statements Penalty Restoration Act, I am pleased to join Senator
Specter in urging Senate passage of H.R. 3166, the House companion
legislation with a Specter-Levin substitute amendment which is the
Senate text; this legislation is to restore criminal penalties for
knowing, willful, material false statements made to a federal court or
Congress.
Forty years ago, in 1955, the Supreme Court interpreted 18 U.S.C.
1001 to prohibit knowing, willful, material false statements not only
to the executive branch, but also to the judicial and legislative
branches. For 40 years, this government-wide prohibition was the law of
the land, and it served this country well. But last year, in Hubbard v.
United States, the Supreme Court reversed these 40 years of precedent
and held that Section 1001 prohibits false statements only to the
executive branch, and not to any co-equal branch.
The Supreme Court based its decision on the wording of the statute
which doesn't explicitly reference either the courts or Congress. The
Court noted in Hubbard that it had failed to find in the statute's
legislative history ``any indication that Congress even considered
whether [Section 1001] might apply outside the Executive Branch.''
[Emphasis in original.]
The obvious result of the Hubbard decision has been to reduce parity
among the three branches. And the new interbranch distinctions are
difficult to justify, since there is no logical reason why the criminal
status of a willful, material false statement should depend upon which
branch of the Federal Government received it.
Fortunately, this problem does not involve constitutional issues or
require complex legislation. It is simply a matter of inserting a clear
statutory reference in Section 1001 to all three branches of
government.
Senator Specter and I each introduced bills last year to supply that
missing statutory reference. This year, we decided to join forces,
along with a number of our colleagues, and introduce a single bill to
restore parity among the branches. We also worked closely with the
Justice Department to produce a bill that the administration would
support. It is this bipartisan bill, which the Judiciary Committee has
approved with unanimous support, that is before you today.
The bill contains four provisions, each of which would strengthen the
ability of Congress to conduct its legislative, investigative and
oversight functions, as well as to restore parity among the three
branches of Government.
The first provision would amend section 1001 to make it clear that
its prohibition against willful, material false statements applies
government-wide to all three branches. The purpose of this provision is
essentially to restore the status quo prior to Hubbard.
As part of that restorative effort, the bill includes a provision
codifying a long-standing judicial branch exception, developed in case
law, to exempt from Section 1001 statements made during adjudicative
proceedings in a courtroom, in order to ensure vigorous advocacy. The
classic example justifying this exception has been to ensure that a
criminal defendant pleading ``not guilty'' to an indictment does not
risk prosecution under Section 1001.
The wording of this exception includes suggestions from the Justice
Department and Judiciary Committee to clarify its scope and provide
adequate notice of the conduct covered. The exception is limited, for
example, to parties to a judicial proceeding, persons seeking to become
parties, and their legal counsel. It is also limited to statements made
to a judge performing an adjudicative function.
The second provision of S. 1734 would strengthen the 50-year-old
statute that prohibits obstruction of Congressional
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investigations, 18 U.S.C. 1505, which has also been weakened by a court
case. In 1991, in a dramatic departure from other circuits, the D.C.
Circuit Court of Appeals held in United States v. Poindexter that the
statute's prohibition against corruptly obstructing a Congressional
inquiry 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 prohibited one person from inducing another
person to lie or otherwise obstruct Congress.
The Senate bill would affirm instead the views held by the other
circuits and bring the Congressional statute back into line with other
Federal obstruction statutes, by making it clear that Section 1505
prohibits obstructive acts by a person acting alone as well as when
inducing another to act. The bill would also make it clear that the
prohibition against obstructing Congress bars a person from making
false or misleading statements and from withholding, concealing,
altering or destroying documents requested by Congress. The bill would,
in short, restore the strength and usefulness of the Congressional
obstruction statute as well as restore its parity with other
obstruction statutes protecting federal investigations.
The final two sections of the bill would clarify the ability of
Congress to compel testimony and documents. Both provisions are taken
from a 1988 bill, S. 2350, sponsored by then Senator Rudman and
cosponsored by Senator Inouye, which passed the Senate unanimously but
was never enacted into law.
The first of these two provisions would clarify when Congress may
obtain judicial enforcement of a Senate subpoena under 28 U.S.C. 1365.
Section 1365 generally authorizes judicial enforcement of a Senate
subpoena, except when a subpoena has been issued to an executive branch
official acting in his or her official capacity--an exception that
seeks to keep interbranch disputes out of the courtroom. S. 1734 would
not eliminate or restrict this exception, but would make it clear that
the exception applies only to an executive branch official asserting a
governmental privilege that he or she has been authorized to assert.
The bill would make it clear that an executive branch official
asserting a personal privilege or asserting a governmental privilege
without being authorized to do so could not automatically escape
judicial enforcement of the Senate subpoena under Section 1365.
This provision, revised from the bill as introduced, includes
suggestions from the Justice Department to make it clear that an
official can establish in several ways that he or she has been
authorized to assert a governmental privilege including, for example,
by providing a letter or affidavit from an appropriate senior
government official. The provision is also intended to make it clear
that the person resisting compliance with the Senate subpoena has the
burden of proving that his or her action had, in fact, been authorized
by the executive branch.
The fourth and final provision involves individuals given immunity
from criminal prosecution by Congress. The bill would re-word the
Congressional immunity statute, 18 U.S.C. 6005, to parallel the wording
of the judicial immunity statute, 18 U.S.C. 6003, and make it clear
that Congress can compel testimony from immunized individuals not only
in committee hearings, but also in ``ancillary'' proceedings such as
depositions conducted by committee members or committee staff. This
provision, like the proceeding one, would improve the Senate's ability
to compel testimony and obtain requested documents. It would also bring
greater consistency across the government in how immunized witnesses
may be questioned.
Provisions to bar false statements and compel 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 that have arisen
among the branches in these areas. It rests on the premise that the
courts and Congress ought to be treated as co-equal to the executive
branch when it comes to prohibitions on false statements. I urge you to
join Senator Specter, myself and our cosponsors in supporting swift
passage of this important legislation.
Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the
amendment be considered as read and agreed to, the bill be deemed read
a third time, passed, as amended, the motion to reconsider be laid upon
the table, and an amendment to the title which is at the desk be agreed
to, and that any statements relating to the bill be placed at the
appropriate place in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 5091) was agreed to.
The bill (H.R. 3166), as amended, was deemed read the third time and
passed.
The title was amended so as to read: ``To prohibit false statements
to Congress, to clarify congressional authority to obtain truthful
testimony, and for other purposes.''
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