[Congressional Record Volume 142, Number 136 (Friday, September 27, 1996)]
[Senate]
[Pages S11605-S11609]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              FALSE STATEMENTS ACCOUNTABILITY ACT OF 1996

  Mr. NICKLES. Mr. President, I ask the Chair lay before the Senate a 
message from the House of Representatives on (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 laid before the Senate the following message 
from the House of Representatives:

       Resolved, That the House agree to the amendments of the 
     Senate to the bill (H.R. 3166) entitled ``An Act to amend 
     title 18, United States Code, with respect to the crime of 
     false statement in a Government matter'', with the following 
     House amendment to Senate amendments:
       In lieu of the matter proposed to be inserted by the Senate 
     amendment to the text of the bill, insert:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``False Statements 
     Accountability Act of 1996''.

     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) Except as otherwise provided in this section, 
     whoever, in any matter within the jurisdiction of the 
     executive, legislative, or judicial branch of the Government 
     of the United States, knowingly and willfully--
       ``(1) falsifies, conceals, or covers up by any trick, 
     scheme, or device a material fact;
       ``(2) makes any materially false, fictitious, or fraudulent 
     statement or representation; or
       ``(3) makes or uses any false writing or document knowing 
     the same to contain any materially false fictitious or 
     fraudulent statement or entry;

     shall be fined under this title or imprisoned nor more than 5 
     years, or both.
       ``(b) Subsection (a) does not apply to a party to a 
     judicial proceeding, or that party's counsel, for statements, 
     representations, writings or documents submitted by such 
     party or counsel to a judge or magistrate in that proceeding.
       ``(c) With respect to any matter within the jurisdiction of 
     the legislative branch, subsection (a) shall apply only to--
       ``(1) administrative matters, including a claim for 
     payment, a matter related to the procurement of property or 
     services, personnel or employment practices, or support 
     services, or a document required by law, rule, or regulation 
     to be submitted to the Congress or any office or officer 
     within the legislative branch; or
       ``(2) any investigation or review, conducted pursuant to 
     the authority of any committee, subcommittee, commission or 
     office of the Congress, consistent with applicable rules of 
     the House or Senate.''.

     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 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 taking 
final action to enact the False Statements Accountability Act of 1996, 
legislation to overturn the Supreme Court's 1995 decision in Hubbard 
versus United States and restore the prohibition on making false 
statements to Congress.
  The bill before us is in substance identical to the bill that passed 
the Senate on July 25, 1996, except in one respect. I do not want to 
reiterate all that I said at that time, so I will address at this time 
only the one substantive difference between the bill passed by the 
Senate and the current compromise we will vote on today.
  As passed, the Senate bill provided blanket application to prohibit 
any false statement made to Congress or any component of Congress, 
including individual members and their offices. The coverage provided 
by the House bill was much narrower in scope. The trick was to 
reconcile the two approaches. Through detailed negotiations and the 
good faith of all concerned, we have been able to produce this 
compromise legislation, which restores the applicability of section 
1001 of title 18 of the United States Code to the areas in which 
Congress most needs it.
  First, the compromise covers false statements made in all 
administrative matters. This includes claims for payment, vouchers, and 
contracting proposals. The provision also covers all employment related 
matters, such as submitting a phony resume or making false claims 
before the Office of Compliance or Office of Fair Employment Practices. 
Also covered are all documents required by law, rule, or regulation to 
be submitted to Congress. This crucial provision will cover all filings 
under the Ethics in Government Act and the Lobbying Disclosure Act and 
provides a real deterrent to false filings under these two laws, among 
others. For this reason alone, this bill is one of the most important 
congressional reforms we will have taken during this Congress.

  The compromise also applies the prohibition on false statements to an 
investigation or review conducted by any committee, subcommittee, 
commission, or office of the Congress. This provision will prohibit 
knowing and willful material false statements to entities like the 
General Accounting Office and the Congressional Budget Office. False 
statements to the Capitol Police will also be covered.
  The greatest difficulty was in formulating the scope of the 
applicability of the false statement prohibition to committees and 
subcommittees of each House of Congress. Only committee or subcommittee 
investigations or reviews conducted pursuant to the authority of the 
particular committee or subcommittee, meaning within its jurisdiction, 
will receive the protection of section 1001, and then only so long as 
the investigation or review is conducted in a manner consistent with 
the rules of the House or Senate, as relevant. This provision will 
allow each House to determine for itself whether to limit the 
circumstances in which committee or subcommittee investigations or 
reviews will be covered by section 1001. We do not intend, however, for 
the Senate to need to change its rules before false statements made to 
a committee or subcommittee conducting a review of a policy within its 
jurisdiction be punishable under this act.

  In having the bill cover any investigation, we intend to cover formal 
investigations conducted pursuant to the rules of particular committees 
of the Senate, many of which have specific rules covering 
investigations. Thus, an investigation will be a more formal inquiry 
into a particular matter within

[[Page S11606]]

the jurisdiction of a committee or subcommittee. Included in the 
definition of investigation are ancillary proceedings, such as 
depositions, and formal steps employed by certain committees that are a 
necessary prelude to an investigation, such as a preliminary inquiry 
and initial review employed by the Select Committee on Ethics.
  The application of the bill to any review by a committee or 
subcommittee is broader. Under Rule XXVI (8) of the Standing Rules of 
the Senate, each committee ``shall review * * * on a continuing basis 
the application, administration, and execution of those laws, or parts 
of laws, the subject matter of which is within the legislative 
jurisdiction of that committee.'' By using review in this law, we 
intend to cover all such review conducted by committees and 
subcommittees of the Senate. Often, we refer to such reviews as 
oversight. The sponsors of the bill, who include the chairman and 
former chairman of the Committee on Governmental Affairs, and the 
chairman and former chairman of the Permanent Subcommittee on 
Investigations, among others, intend that the term ``review'' be read 
broadly to cover all committee oversight and inquiries into the current 
operation of federal law and policy, compliance with Federal law, or 
proposals to improve Federal law, policy, or administration. In 
addition, we intend to capture within the meaning of review matters 
within committee jurisdiction that are not directly legislative, such 
as confirmation proceedings.

  We chose to limit the act to committees and subcommittees, and their 
staff, because these are the entities through which Congress conducts 
its inquiries and oversight; these are the entities that hold hearings; 
these are the entities that can issue and enforce legal process; these 
are the entities charged with developing legislation for consideration 
by each House of Congress. Thus, section 1001 will not apply to 
statements made to individual members not acting as part of a committee 
or subcommittee investigation or review. This restriction should 
alleviate any concern that constituents exercising their right to 
petition Congress would fear prosecution for inadvertent or minor 
misstatements. No first amendment rights will be chilled by this bill. 
Nor will the bill apply to the statement of opinion or argument, as 
only knowing and willful false statements of fact are meant to be 
covered.
  This is an important bill. I am pleased that enough Members of both 
Houses saw the need to act quickly on this legislation, which I believe 
to be absolutely necessary to protect the constitutional interests of 
the Congress. I want to thank my colleagues and cosponsors, in 
particular Senator Levin, the lead cosponsor, for their efforts. I also 
want to thank Representative Bill Martini, sponsor of the House 
companion, for pushing so hard to get this done, and Chairman Bill 
McCollum of the House Subcommittee on Crime, and his staff, Paul 
McNulty and Dan Bryant, for working so hard to reach agreement on this 
bill.
  Mr. LEVIN. Mr. President, as a sponsor of S. 1734, the Senate-passed 
version of this legislation, I am pleased to join Senator Specter in 
urging passage of this bill. The House passed this bill, which restores 
criminal penalties for knowing, willful, material false statements made 
to a Federal court or Congress, by rollcall vote without a single vote 
in opposition. I hope we can pass it here by unanimous consent.
  For 40 years, title 18 United States Code, section 1001 has been a 
mainstay of our legal system, by criminalizing intentional false 
statements to the Federal Government. In 1955, the Supreme Court 
interpreted title 18 United States Code, section 1001 to prohibit 
knowing, willful, material false statements not only to the executive 
branch, but also to the judicial and legislative branches. Last year 
the Supreme Court, in Hubbard versus United States, reversed this 
precedent and held that Section 1001 prohibits false statements only to 
the executive branch, and not to the judiciary or legislative branches.
  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.''
  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.
  Senator Specter and I each introduced bills last year to supply that 
missing statutory reference. This year, we joined forces, along with a 
number of our colleagues, and introduced S. 1734. It was passed by the 
Senate on July 26 of this year with the support of the administration. 
We then worked out our differences with the House, and that's how we 
are able to bring this final product before the Senate. I want to 
associate myself with the remarks of Senator Specter in describing the 
differences between H.R. 3166 and S. 1734.
  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 coequal to the executive 
branch when it comes to prohibitions on false statements.
  I want to thank Senator Specter and his staff, Richard Hertling, for 
their dedication to this legislation. We have been able to solve 
problems that arose because of the truly bipartisan approach we had to 
this bill. I also want to thank Senator Hatch, chairman of the 
Judiciary Committee, for recognizing the significance of this 
legislation and acting promptly on it in committee to get it to the 
Senate floor, and I want to thank the Members in the House, Congressmen 
Martini, McCollum and Hyde, without whose assistance this bill wouldn't 
be at this point. I also want to thank Morgan Frankel and Mike 
Davidson. Morgan is currently Deputy Senate Legal Counsel and Mike 
recently left as Senate Legal Counsel. Their experience with the work 
of the Senate was valuable in working through a number of technical 
issues. I particularly want to thank Elise Bean of my staff who is as 
capable as they come and simply an excellent lawyer.
  Mr. President, I urge my colleagues to join Senator Specter, myself, 
and our cosponsors in sending this bill to the President for his 
signature.
  Mr. ROTH. Mr. President, I rise today to indicate my full support for 
this bill, which returns to the Federal false statements statute, 18 
U.S.C. Sec. 1001, the simple but vital proposition that lying to 
Congress is as unacceptable as lying to any other part of the 
Government.
  This legislation has enormous practical importance for the oversight 
and investigative work performed by the Senate. As the past chairman of 
the Governmental Affairs Committee and the current chairman of the 
Permanent Subcommittee on Investigations, I have chaired many oversight 
hearings and conducted numerous investigations that have probed the 
efficacy of Federal Government programs and initiatives. Oftentimes, 
the Committee and Subcommittee's work has uncovered serious problems, 
sometimes of a criminal dimension. In the best of circumstances, 
gathering facts that may not reflect well on an agency, or a program, 
or an individual is difficult. Willful deceit out of the mouths of 
witnesses or in the documents they provide to Congress can make that 
job nearly impossible.
  Until Hubbard was decided last year, the threat of criminal sanctions 
under Sec. 1001 was a powerful deterrent to such deceit, and it was the 
source of appropriate punishment for those who lie to Congress. We need 
to return Sec. 1001 to Congress' investigative and oversight arsenal, 
and this legislation will do just that. That being the primary effect 
of the legislation, it also works well-crafted and necessary changes to 
other aspects of Congress's ability to investigate, and I support those 
as well.
  Many years ago, Woodrow Wilson wrote, ``Unless Congress have and use

[[Page S11607]]

every means of acquainting itself with the acts and the disposition of 
the administrative agents of the government, the country must be 
helpless to learn how it is being served; and unless Congress both 
scrutinize these things and sift them by every form of discussion the 
country must remain in embarrassing, crippling ignorance of the very 
affairs which it is most important that it should understand and 
direct.'' It is for this fundamental reason--that Congress must be able 
to scrutinize accurately the matters before it--that I am proud to co-
sponsor this legislation and urge my colleagues to support it.
  Mr. BRYAN. Mr. President, today the Senate has agreed to pass a very 
important bill, the False Statements Penalty Restoration Act (H.R. 
3166).
  When Congress originally enacted the False Statements Act, the 
Federal perjury statute, 18 U.S.C. Sec. 1001, to impose felony criminal 
penalties on an individual who knowingly and willfully makes a false or 
fraudulent statement, it thought it had created a criminal law that 
applied to all three branches of Government, including Congress. And 
since 1955, when the U.S. Supreme Court specifically held that the 
statute applied to all three branches, this was the law of the land.
  However, in 1995, the U.S. Supreme Court held that the statute did 
not apply to the judiciary branch, thus creating uncertainty about 
whether false statements made to Congress and by Members of Congress 
were now covered by the law.
  To our constituents, it once again appeared that Members of Congress 
were a special class to which a particular law did not apply--and that 
may have been the case.
  Since the 1995 Supreme Court decision, indictments charging 
individuals with making knowing and willful false statements on 
financial disclosure forms and other reports have been dismissed. This 
situation must not be allowed to continue for one day more.
  Today's legislation makes clear that Congress is indeed subject to 
this important law, as it should be. It returns us to where the law was 
for the last 40 years.
  As a former chair and vice chair of the Ethics Committee, I know this 
legislation has particular significance. Without this legislation, 
there are currently no sanctions for deliberately filing false 
information in connection with these Federal reporting documents. To 
ensure the integrity of these reporting requirements, this bill must be 
enacted so it is very clear there are penalties for knowing and willful 
violations.
  This legislation also addresses needed clarification in the 
obstruction of justice statute, 18 U.S.C. Sec. 1505. This law makes it 
a Federal offense to impede or obstruct an investigation of a 
congressional committee. In 1991, the D.C. District Circuit Court of 
Appeals held, however, that the statute did not clearly prohibit an 
individual from personally lying to or obstructing Congress in its 
investigations.
  Again, I know first hand from my Senate Ethics Committee experience 
how this court interpretation risks impairing the ability of the Ethics 
Committee, and other congressional investigations to maintain any 
integrity in its proceedings. If a person can lie, or induce another to 
lie for him without worry of being prosecuted for such action, of what 
consequence would be any congressional investigation.
  This legislation corrects the 1991 Supreme Court decision. Any 
individual who tries to impede a congressional or other governmental 
investigation, regardless of whether the individual acts on his own, or 
through the actions of another individual is going to be penalized--
period.
  I am pleased to support this legislation to remedy these ambiguities 
in our statutes, and ensure the integrity of Congress' investigations, 
and the Federal reporting requirements. For the American public, this 
bill also ensures that no member of Congress is above the law.
  The following is a more detailed explanation of the changes this 
legislation will make, and its particular impact on the work of the 
Senate Ethics Committee, and other congressional investigations.
  The Federal perjury statute, 18 U.S.C. Sec. 1621, punishes knowing 
false and material testimony, only if given under oath, such as in 
formal committee hearings and depositions. The Ethics Committee 
necessarily uses a variety of other, less formal fact-gathering 
techniques in the conduct of its initial examinations of complaints and 
preliminary inquiries, in order to determine whether there are 
sufficient grounds to warrant receipt of formal testimony through 
depositions and hearings.
  It is critical to the Ethics Committee's ability to fulfill its 
responsibility to the Senate to investigate allegations of misconduct, 
and to the subjects of allegations to investigate fairly, that the 
committee's preliminary judgments about potential wrongdoing be based 
on the most accurate information possible. The availability of a 
criminal sanction under section 1001 for knowing false and material 
statements to the committee is an important safeguard to preserve the 
quality of the committee's investigative functions.
  The absence of section 1001 liability may push the Ethics Committee 
to initiate formal proceedings more often, and earlier, than it would 
otherwise, just to ensure it receives truthful information. This 
premature heightening of ethics inquiries risks imposing unwarranted 
and unfair injury to subjects' reputations and unnecessary expense to 
the Senate.
  This bill would restore the applicability of section 1001 to false 
material statements to congressional committees during inquiries.
  Individuals who have knowingly filed false financial disclosure 
statements have in the past been convicted of violating the false 
statements statute, 18 U.S.C. Sec. 1001. Following the U.S. Supreme 
Court's reinterpretation of section 1001 last year, executive branch 
officials are still subject to punishment for false statements under 
section 1001, but congressional filers cannot be punished under section 
1001 for identical misconduct. While congressional filers may 
potentially remain subject to sanction under other criminal code 
provisions, the applicability of these other provisions is untested and 
uncertain. Members of Congress and their staffs should not receive any 
possibility of special treatment, but should face the same criminal 
sanction for their false financial disclosures as other government 
officials.
  In addition, the Senate Code of Official Conduct and Federal law 
require the filing of a number of other reports and disclosure forms 
under various circumstances. These include reports of the acceptance of 
gifts from foreign governments, disclosure of employees' reimbursed 
travel expenses and authorization for such reimbursement, reports of 
designations of charitable contributions by registered lobbyists or 
foreign agents in lieu of honoraria, and reports of contributions to 
and expenditures from legal expense funds, among other matters for 
which reports or disclosure is required.
  Without section 1001, there are currently no sanctions for 
deliberately filing false information in connection with any of these 
reporting requirements. For these disclosure and reporting requirements 
to fulfill the purpose for which they were established, there need to 
be clear penalties for willful violations of the rules by the filing of 
false reports.
  The obstruction of justice statute, 18 U.S.C. Sec. 1505, makes it a 
Federal offense corruptly to impede or obstruct an investigation of a 
congressional committee. Historically, this provision has served to 
safeguard the integrity of congressional inquiries by providing a 
penalty for individuals who seek to obstruct a proper inquiry. In 1991, 
the D.C. Circuit Court of Appeals decision in the Poindexter case 
seriously eroded the protection of section 1505 by holding that, as 
applied to conduct undertaken by an individual witness him/herself, 
rather than through another individual, the law was unconstitutionally 
vague to be applied.

  For a committee like the Senate Ethics Committee, which has the task 
of finding facts in sensitive and complicated cases involving potential 
misconduct of Senators, this narrowed interpretation raises serious 
risks of impairing the integrity of the committee's proceedings. In the 
case involving former Senator Bob Packwood, the Ethics Committee noted 
in its report that ``the committee is specifically empowered to obtain 
evidence from Members and others who are the subject of

[[Page S11608]]

committee inquiry, and it is entitled to rely on the integrity of such 
evidence. Indeed, the entire process is compromised and rendered wholly 
without value if persons subject to the committee's inquiry, or 
witnesses in an inquiry, are allowed to jeopardize the integrity of 
evidence coming before the committee.'' [Report at pages 142-43].
  For many years, it has been understood that an individual who acts 
with improper or corrupt purpose to obstruct a committee or other 
Government investigation, whether by false or misleading testimony, the 
deliberate destruction or alteration of documents, or other nefarious 
means, commits wrongdoing subject to punishment under 18 U.S.C. section 
1505. Now, after the Poindexter decision, a serious question exists 
whether an individual who engages in conduct to obstruct an 
investigation personally, rather than by persuading someone else to do 
so, may be called to account for such unacceptable conduct under 
section 1505.
  It is my firm conviction that Congress has already acted 
legislatively through the present language of section 1505 to 
criminalize this conduct. However, since at least one court was 
apparently unclear on what Congress had in mind, it is important that 
we provide explicit guidance in the law so clear that no confusion will 
arise in the future.
  This bill would correct the court's nonsensical interpretation of 
section 1505 by making clear that the statute prohibits witnesses from 
engaging with improper purpose in any of the variety of means by which 
individuals may seek to impede a congressional or other governmental 
investigation, whether doing so personally or through another 
individual, and whether by making false or misleading statements or 
withholding, concealing, altering, or destroying documents sought by 
congressional committees and other investigative bodies.
  The Senate subpoena enforcement statute, 28 U.S.C. section 1365, 
provides the mechanism for Senate committees to go to court to seek 
assistance from the court in enforcing compliance with a subpoena of 
the committee. This system, which was enacted in 1978, permits a 
committee seeking necessary testimony or documents to apply to court, 
with the Senate's authorization, so that the witness may present his/
her privilege or other basis not to comply with the Senate subpoena. If 
the court sustains the committee's position, it may order the witness 
to comply with the subpoena and thereby enable the committee to obtain 
the information it needs in a timely and fair manner.

  Over the past 20 years, the availability of this system has proven 
extremely beneficial to Senate committees, including the Ethics 
Committee. The Ethics Committee utilized this process to obtain a 
judicial ruling on Senator Packwood's objections to providing portions 
of his diaries to the committee. In that case, the courts upheld the 
committee's position and Senator Packwood was ordered to turn over his 
diary materials, subject to the masking of privileged and personal 
information, which the committee respected. The process worked well and 
enabled the committee to obtain the evidence it needed to complete its 
responsibilities to the Senate and the public.
  An ambiguity in the current statute, however, periodically threatens 
the ability of this salutary system to work to resolve controversies 
between Senate committees and witnesses. When the enforcement law was 
enacted, an exception was carved out for privilege assertions by the 
executive branch, so that the courts would not be called on to resolve 
disputes between the two political branches of Government. The drafting 
of that exception left some unfortunate doubt, however, as to its 
applicability when a witness who happened to be employed by the Federal 
Government was asserting a personal privilege or objection to a Senate 
subpoena, not a governmental privilege. The law was never intended to 
exclude such cases from judicial resolution and there is no good reason 
for so doing.
  The ambiguity has created questions in some cases as to whether or 
not the Senate could utilize the civil enforcement mechanism to obtain 
judicial assistance with one of its committees' subpoenas. Even in the 
example, I described involving Senator Packwood, a question could have 
arisen whether, because he was a Senator, and, therefore, a Government 
officer, the exception precluded judicial enforcement of the Ethics 
Committee subpoena. Senator Packwood did not make such an argument, and 
the court did accept jurisdiction over the case.
  However, the mere possibility of such a jurisdictional issue's 
arising creates an impediment to the swift and sure resolution of 
disputes over the entitlement of Senate committees to information they 
need. In the context of an important and sensitive ethics 
investigation, the risk of such a situation arising in the midst of an 
investigation is unacceptable. This bill would clarify section 1365 to 
make clear that the Senate may authorize committees to go to court to 
resolve subpoena disputes, whether with private individuals or 
Government employees, as long as the witness is raising a personal 
privilege or objection, rather than governmental privilege.
  The final clarification in the bill involves the congressional 
immunity statute, 18 U.S.C. section 6005. Senate committees have power 
to confer use immunity, by vote of two-thirds of their membership, to 
compel witnesses to testify notwithstanding an assertion of Fifth 
Amendment privilege. Committees properly immunize witnesses very 
sparingly, only when they determine that receiving the testimony is 
necessary to the committee's task and that the possible adverse effect 
on future criminal prosecution is tolerable. Following the D.C. 
Circuit's decision in the North case, in particular, committees are on 
notice that conferral of use immunity to receive testimony in public 
hearings subject to television broadcast may have a dramatic impact on 
the ability of a prosecution to obtain a conviction for criminal 
wrongdoing. Since the North decision, Senate committees have proceeded 
exceedingly cautiously before agreeing to grant use immunity to a 
witness.

  There are occasions, nonetheless, when immunity is appropriate and 
necessary to receive testimony from an essential witness. In such 
circumstances, committees have properly conferred use immunity. This 
has happened in the Senate on a total of 10 occasions since the North 
decision. All but 1 of these instances--that is, 9 times out of the 
10--were in the context of Ethics Committee investigations, when 
immunity was necessary to obtain information about allegations of 
wrongdoing by a Senator.
  One of the tools that the Ethics Committee has used in these 
instances in order to help make sure that there are not adverse 
repercussions on criminal prosecutions is its authority to receive the 
immunized testimony in private session, as in staff depositions. 
Indeed, eight of the nine witnesses who were immunized for testimony at 
staff depositions, not at public hearings. This procedure enables the 
Committee to receive information that it needs, but to do so in a forum 
that does not run the risk of spreading a witness' immunized testimony 
across the nation's television screens.
  Unfortunately, the technical drafting of the immunity statute has 
apparently left a question in some people's minds as to whether the 
Senate's immunity poser extends to authorized staff depositions, or 
only to committee hearings. This was raised as a serious problem in the 
Iran-Contra investigation and any committee that ever seeks to receive 
testimony under immunity in a deposition runs the risk of the issue 
being raised there to block the testimony. The Ethics Committee is the 
committee that bears the greatest chance of facing this impediment in 
the future.
  Accordingly, this bill contains a very simple, but important, 
amendment to make clear that the congressional immunity statute covers 
ancillary proceedings, like staff depositions, as well as committee 
hearings. Immunity still would be conferred only on a two-thirds vote 
of the full committee, and would be done so sparingly. However, with 
this change, there will be no questions that committees would be able 
to compel immunized testimony at staff depositions, rather than being 
forced to receive the testimony in a committee hearing, where it could 
possibly later taint a criminal prosecution.
  Mr. NICKLES. I ask unanimous consent the Senate concur in the House 
amendment to the Senate amendments.

[[Page S11609]]

  The PRESIDING OFFICER. Without objection, it is so ordered.

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