[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.

[[Page S8939]]

  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

[[Page S8940]]

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

[[Page S8941]]

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.''

                          ____________________