[Congressional Record Volume 143, Number 33 (Friday, March 14, 1997)]
[Senate]
[Pages S2299-S2308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
APPOINTMENT OF AN INDEPENDENT COUNSEL TO INVESTIGATE ALLEGATIONS OF
ILLEGAL FUNDRAISING
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of S.J. Res. 22, which the clerk will
report.
The legislative clerk read as follows:
A joint resolution (S.J. Res. 22) to express the sense of
the Congress concerning the application by the Attorney
General for the appointment of an independent counsel to
investigate allegations of illegal fundraising in the 1996
Presidential election campaign.
The Senate proceeded to consider the joint resolution.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Madam President, I rise today to speak on Senate Joint
Resolution 22 which expresses the sense of the Congress that the
Attorney General should apply for the appointment of an independent
counsel to investigate allegations of illegal fundraising in the 1996
Presidential election campaign.
[[Page S2300]]
Under Federal law, the Attorney General may apply to the special
division of the Court of Appeals for the D.C. Circuit for appointment
of an independent counsel whenever, after completion of a preliminary
investigation, she finds that a conflict of interest exists or when she
finds evidence that a specific category of individuals within the
executive branch may have violated Federal law. The appointment of an
independent counsel is a serious matter and one which the Attorney
General should only initiate when necessary. That is why I, and many
others, had refrained from joining the assortment of calls for Attorney
General Reno to appoint an independent counsel in connection with the
1996 Presidential campaign.
Yet, yesterday, all 10 Republicans on the Judiciary Committee felt
the time had come to request such an appointment. We sent a letter to
the Attorney General, as authorized by the independent counsel statute,
requesting that she make an application for an independent counsel. I
ask unanimous consent that a copy of our letter to the Attorney General
be printed at the appropriate place in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. HATCH. We did that with due deliberation, without any desire to
hurt anybody and without any desire to do other than to help the
Attorney General make this decision.
I must confess to a degree of frustration with the Independent
Counsel Act. Did I appreciate having to send our letter? Certainly not.
However, the law sets forth a specific process by which Congress is to
request that the Attorney General begin the process by which an
independent counsel is appointed, and this process requires the
Judiciary Committee to make what the other party will inevitably
characterize as partisan charges in order to trigger the Attorney
General's responsibilities. In order for Congress to trigger the most
preliminary steps for the Department of Justice to take to consider the
need for an independent counsel, the law essentially provides that the
party not in control of the executive branch make specific charges when
and if the Attorney General fails to act on her own. I would have
preferred to have had the Attorney General seek an independent counsel
on her own. But she has not done so. At the very least, I would have
preferred that she conduct a preliminary investigation on her own. But
she has refused to do even this. I would have preferred to have
requested that she seek an independent counsel without having to set
forth, in such a public manner as the law requires, the specific and
credible evidence which warrants such an appointment. But in order for
us to require the Attorney General to take certain minimal steps toward
investigating whether an independent counsel is warranted, we were
required by law to send our letter. In short, the Independent Counsel
Act is the law of the land and, notwithstanding its relative flaws, we
on the Judiciary Committee have an obligation to abide by it.
At last week's Judiciary Committee executive business meeting, I had
hoped to vote on a resolution expressing the committee's sense that an
independent counsel should be appointed, and directing that I draft and
circulate a letter requesting that the Attorney General apply for such
an appointment. I had been led to believe that a committee vote on a
resolution calling for an independent counsel would have broad
bipartisan support. Yet, my colleague, Senator Leahy--the committee's
ranking member--indicated that, in light of the short notice they
received about the proposed resolution, he and his colleagues wished to
hold the resolution over until the committee's next business meeting. I
readily acceded to their request.
It was not an unreasonable request. And besides, I was asked to begin
this process just an evening before myself, and I had not had the
opportunity to discuss it with Senator Leahy. So there was absolutely
no offense. It was something I was willing to do and readily did
because I thought it was a reasonable, decent request.
Without getting into the details of our ensuing discussions, it
became clear that it would be difficult, if not impossible, to
formulate a resolution on which both sides of the aisle could agree.
Furthermore, I felt it was best to avoid a prolonged discussion of this
matter in committee given that it was unlikely consensus could be
reached. Accordingly, I decided to proceed directly to drafting and
circulating a letter to the Attorney General as I had originally
planned. The letter went through a number of variations. We tried to
please people, we tried to resolve problems, and I think we
have. Unfortunately, we were unable to reach agreement with our
colleagues on the other side of the aisle because we could not reach
agreement on whether the committee should actually request the
appointment of an independent counsel. Accordingly, I circulated a
letter to all members of the committee and a majority of the
committee's members signed on.
I remain persuaded that the appointment of an independent counsel is
both called for under the independent counsel statute and responsive to
the views of most Americans, who would like to be assured that these
very serious allegations are investigated in a fair and thorough way,
and without any real or apparent conflict of interest.
I am hopeful that Attorney General Reno, for whom I continue to have
great respect, will appreciate the concerns set forth in our letter,
and will agree that an independent counsel should be appointed
forthwith to investigate these matters.
Recent developments have, I believe, made clear that a thorough
Justice Department investigation into possible fundraising violations
in connection with the 1996 Presidential campaign will raise an
inherent conflict of interest, and certainly raises at least the
appearance of such a conflict, and that the appointment of an
independent counsel is therefore required to ensure public confidence
in the integrity of our electoral process and system of justice.
Madam President, recent revelations have demonstrated how the DNC
was, as the New York Times wrote, ``virtually a subsidiary of the White
House.'' That was on February 27, 1997, just a few weeks back. Without
restating the points covered in our letter and without questioning in
the slightest the integrity, professionalism or independence of the
Attorney General or the individuals conducting the present Justice
Department fundraising investigation, the fact that the Department's
investigation will inescapably take it to the highest levels of the
executive branch presents an inherent conflict of interest calling for
the appointment of an independent counsel under title 28 United States
Code section 591(c)(1).
Further, the answer to whether criminal wrongdoing has occurred will
of necessity turn on the resolution of disputed factual, legal, and
state of mind determinations. In particular, I would note that there
remains the significant factual question of the extent to which the
allegedly improper fundraising activity was, in fact, directed toward
benefiting Federal campaigns, especially when some of this activity
was, by admission, paid for by the Clinton-Gore campaign. Because the
inquiry necessary to make these determinations will inescapably involve
high level executive branch officials, they should, I believe, be left
to an independent counsel in order to avoid a real or apparent conflict
of interest. Moreover, where individuals covered by the independent
counsel statute are involved, as they plainly were here, see title 28
United States Code section 591(b), the Ethics in Government Act
requires that these inquiries be conducted by an independent counsel.
In any event, both prudence and the American people's ability to have
confidence that the investigation remains free of a conflict of
interest, warrants the appointment of an independent counsel.
More importantly, the emerging story regarding the possibility that
foreign contributions were funneled into U.S. election coffers to
influence U.S. foreign policy further highlights the conflict of
interest the Attorney General's ongoing investigation inescapably
confronts. I delivered a floor speech earlier in the week spelling out
my concerns, so I will not restate them here. They are detailed in the
letter which I have placed in the Record. It is clear, however, that
these issues cannot be properly investigated without a conflict of
interest, since investigating
[[Page S2301]]
most of these questions will require inquiring into the knowledge and/
or conduct of individuals at the highest levels of the executive
branch. Moreover, several of the principal figures in this
investigation, including the Riadys and the Lippo Group and Charlie
Trie, reportedly have longstanding ties to our President.
Indeed, the conflicts at issue here are precisely the sort of
inherent conflict[s] of interest to which the Attorney General
testified during Senate hearings in 1993 on the reenactment of the
Independent Counsel Act. Avoiding an actual or perceived conflict of
interest was the basis, not just for the application for the
appointment of an independent counsel to investigate James McDougal,
but also for the recent requests to extend that counsel's jurisdiction
to include the investigations of Anthony Marceca and Bernard Nussbaum.
As the Attorney General herself testified, applying for an independent
counsel, and our request that she make such application, in no way
detracts from the integrity and independence of the Attorney General or
the career prosecutors presently investigating these allegations.
A final point should be made. Some of my Democrat colleagues have
written to the Attorney General urging her, should she decide to apply
for an independent counsel, to request an independent counsel who will
investigate the full scope of fundraising irregularities. They argue
that she should avoid partisanship by instructing the independent
counsel to investigate Republicans who have skirted the spirit of the
law. I appreciate what my colleagues are trying to do, and their
loyalty to their political party is duly noted by me. But, as I
discussed a moment ago, the appointment of an independent counsel is a
very serious matter and partisan proportionality should not even be the
slightest consideration. Would these Senators have sent this letter had
the majority not sent our letter to the Attorney General? I think we
all know the answer to that question.
Furthermore, they fail to even suggest that the Republican activities
to which they refer independently warrant an independent counsel.
Accordingly, I expect the Attorney General, who is a woman of
integrity, will give their letter the consideration it deserves.
In closing, Attorney General Reno has appointed four independent
counsels to date. It is the sense of the majority of the members of the
Judiciary Committee that the need to avoid even the appearance of a
conflict of interest, and thereby to ensure the public's confidence in
our system of justice, requires an independent counsel in connection
with the 1996 Presidential campaign. Should the Senate vote on Senate
Joint Resolution 22, I will be voting in support of the resolution, and
I think rightly so.
I call upon my friends on the other side of the aisle to consider
voting for it as well. Voting that the Attorney General appoint an
independent counsel in this case appears to me to be the right thing to
do. Keep in mind, I have held off making this request for a lengthy
period of time, knowing my constitutional duty and our constitutional
duties here, because I wanted the Attorney General to have enough time,
and those who are working with her who are people, I believe, of
substance and integrity, to investigate and look into this and resolve
these matters. But as these matters have accumulated, as the
allegations have mounted up, as newspaper upon newspaper has written
about them, it is clear that there is at least an appearance of a
conflict of interest, and, therefore, it left us with no alternative
other than to request this, even though, to repeat, I wish no one any
harm. I certainly hope that these allegations are untrue, I hope they
can be proven to be untrue, and my prayers will be in that regard.
Having said all of that, I do hope that the Attorney General will
take the necessary step to apply for the appointment of an independent
counsel and that one will be appointed. Then perhaps we can resolve
these matters once and for all in an independent, reasonable way that I
think will be for the benefit of everybody.
Exhibit 1
U.S. Senate,
Committee on the Judiciary,
Washington, DC, March 13, 1997.
Hon. Janet Reno,
Attorney General of the United States, U.S. Department of
Justice, Washington, DC.
Dear Madam Attorney General: This letter serves as a formal
request, pursuant to 28 U.S.C. Sec. 592(g)(1), that you apply
for the appointment of an independent counsel to investigate
possible fundraising violations in connection with the 1996
presidential campaign. The purpose of this letter is not to
provide an exhaustive list of the particular allegations
that, we believe, warrant further investigation. Indeed,
since the Department of Justice has been conducting an
extensive investigation into fundraising irregularities for
several months now, you presumably have far greater knowledge
than do we of the various matters that are being, and will
need to be, investigated, and we presume that your judgment
as to the necessity of an independent counsel is based on all
of the information before you. Rather, the purpose of this
letter is to articulate why we believe this investigation
should be conducted by an independent counsel. As you know,
the Senate Committee on the Judiciary has, to date, refrained
from joining the assortment of other individuals who have
called upon you to initiate an independent counsel
appointment. Recent developments over the past few weeks,
however, have persuaded us that such an appointment is now
necessary.
When you appeared before the Senate in 1993 when we were
considering reenactment of the Independent Counsel statute,
you stated
``there is an inherent conflict of interest whenever senior
Executive Branch officials are to be investigated by the
Department of Justice and its appointed head, the Attorney
General. The Attorney General serves as the pleasure of the
President. Recognition of this conflict does not belittle or
demean the impressive professionalism of the Department's
career prosecutors, nor does it question the integrity of the
Attorney General and his or her political appointees.
Instead, it recognizes the importance of public confidence in
our system of justice, and the destructive effect in a free
democracy of public cynicism.''
You further testified that--
``It is absolutely essential for the public to have
confidence in the system and you cannot do that when there is
conflict or an appearance of conflict in the person who is,
in effect, the chief prosecutor. * * * The Independent
Counsel Act was designed to avoid even the appearance of
impropriety in the consideration of allegations of misconduct
by high-level Executive Branch officials and to prevent * * *
the actual or perceived conflicts of interest. The Act thus
served as a vehicle to further the public's perception of
fairness and thoroughness in such matters, and to avert even
the most subtle influences that may appear in an
investigation of highly-placed Executive officials.''
We believe, that, in light of recent developments, a
thorough Justice Department investigation into possible
fundraising violations in connection with the 1996
presidential campaign will raise an inherent conflict of
interest, and that the appointment of an independent counsel
is therefore required to ensure public confidence in the
integrity of our electoral process and system of justice.
First, recent revelations have demonstrated how officials
at the highest level of the White House were involved in
formulating, coordinating and implementing the DNC's
fundraising efforts for the 1996 presidential campaign.
Recent press reports, the files released by Mr. Ickes, and
public statements by very high ranking present and former
Clinton Administration officials indicate how extensively the
Administration was involved in planning, coordinating, and
implementing DNC fundraising strategy and activities. All
this has led The New York Times to a conclusion which we find
hard to challenge; namely, that ``the latest documentation
shows clearly that the Democratic National Committee was
virtually a subsidiary of the White House. Not only was
[President] Clinton overseeing its fund-raising efforts, not
only was he immersed in its ad campaigns, but D.N.C.
employees were installed at the White House, using White
House visitors' lists and communicating constantly with
[President] Clinton's policy advisers.'' The New York Times,
February 27, 1997. As a consequence, we believe that a
thorough investigation of all but the most trivial potential
campaign fundraising improprieties necessarily includes an
inquiry into the possible knowledge and/or complicity of very
senior white House officials in these improprieties. We
believe that, without questioning in the slightest the
integrity, professionalism or independence of the Attorney
General or the individuals conducting the present Justice
Department fundraising investigation, the fact that the
Department's investigation will inescapably take it to the
highest levels of the Executive Branch presents an inherent
conflict of interest calling for the appointment of an
independent counsel under 28 U.S.C. Sec. 591(c).
Moreover, these revelations raise new questions of possible
wrongdoing by senior White House officials themselves,
including but not limited to whether federal officials may
have illegally solicited and/or received contributions on
federal property; whether specific solicitations were ever
made by federal officials at the numerous White House
overnights, coffees, and other similar events, and whether
these events themselves, often characterized in White House
and DNC memoranda as ``fundraising'' events, constituted
improper ``solications'' on federal
[[Page S2302]]
property; whether government property and employees may
have been used illegally to further campaign interests;
and whether the close coordination by the White House over
the raising and spending of ``soft''--and purportedly
independent--DNC funds violated federal election laws,
and/or had the legal effect of rendering those funds
subject to campaign finance limitations they otherwise
would not be subject to. It seems to us that, even
accepting the narrow constructions of some of the
governing statutes that have been suggested--which are not
necessarily the constructions an independent counsel would
render--the answer to whether criminal wrongdoing has
occurred will of necessity turn on the resolution of
disputed factual, legal, and state of mind determinations.
Because the inquiry necessary to make these determinations
will inescapably involve high level Executive Branch
officials, we believe they should be left to an
independent counsel in order to avoid a real or apparent
conflict of interest. Moreover, where individuals covered
by the independent counsel statute are involved, as they
plainly were here, see 28 U.S.C. Sec. 591(b), the Ethics
in Government Act requires that these inquiries be
conducted by an independent counsel. Whether the Act
simply permits or requires the appointment of an
independent counsel, however, we believe that prudence and
the American people's ability to have confidence that the
investigation remains free of a conflict of interest,
requires it.
Second, the emerging story regarding the possibility that
foreign contributions were funneled into U.S. election
coffers to influence U.S. foreign policy further highlights
the conflict of interest your ongoing investigation
inescapably confronts. A March 9, 1997, Washington Post
article quoted ``U.S. government officials--presumably
familiar with the Department's ongoing investigation--as
stating that investigators have obtained `` `conclusive
evidence' '' that Chinese government funds were funneled into
the United States last year,'' and quoted one official as
stating that ``there is no question that money was
laundered.'' This article reported that U.S. officials
described a plan by China ``to spend nearly $2 million to buy
influence not only in Congress but also within the Clinton
Administration.'' If the FBI truly is investigating these
allegations, as is reported, and this investigation extends
to high level Executive Branch officials, it raises an
inherent conflict of interest.
Moreover, a closer look at the activities and associations
of some of the particular individuals who are reported to be
the principal figures in the ongoing investigation further
illustrates why this investigation ultimately must involve
high levels of the Executive Branch. Especially troubling is
the information revealed to date regarding the Riady family
and their associate, Mr. John Huang, but serious questions
are also raised by the activities and associations of Mr.
Charles Yah Lin Trie, Ms. Pauline Kanalanchak, and Mr. Johnny
Chung, among others. Taken together, these reported events
raise a host of serious questions warranting further
investigation: To what extent were illegal contributions from
foreign sources, in particular China, being funneled into the
United States, and with whose knowledge and involvement? To
what extent was U.S. policy influenced by these
contributions, and with whose knowledge and/or involvement?
To what extent were the decisions to hire Huang at the
Commerce Department, to support most-favored-nation status
for China and Chinese accession to the World Trade
Organization, or to normalize relations with Vietnam,
influenced by contributions, and with whose knowledge and/
or involvement? To what extent was the standard NSC
screening process for admission to the White House waived
or modified so as to permit special access to large donors
and their guests where it would ordinarily be denied, and
with whose knowledge and/or involvement? To what extent
was John Huang placed at the DNC to raise money in
exchange for past and future favors, and with whose
knowledge and/or investment?
It is evident that these questions cannot be properly
investigated without a conflict of interest, since
investigating most of these questions will require inquiring
into the knowledge and/or conduct of individuals at the
highest levels of the Executive Branch. Moreover, several of
the principal figures in this investigation, including the
Riadys and the Lippo Group and Charlie Trie, reportedly have
longstanding ties to President Clinton.
Indeed, the conflicts at issue here are precisely the sort
of ``inherent conflict[s] of interest'' to which you
testified during Senate hearings in 1993 on the re-enactment
of the Independent Counsel Act. Avoiding an actual or
perceived conflict of interest was the basis not just for
your application for the appointment of an independent
counsel to investigate James McDougal, but also for your
recent requests to extend that counsel's jurisdiction to
include investigations of Anthony Marceca and Bernard
Nussbaum. The same concern warrants your application for an
independent counsel here, where public confidence can be
assured only by the appointment of an independent counsel to
investigate any alleged wrongdoing in connection with DNC,
Clinton Administration, and Clinton/Gore Campaign fundraising
during the 1994-1996 election cycle. As you yourself
testified, applying for an independent counsel, and our
request that you make such an application, in no way detracts
from the integrity and independence of the Attorney General
or the career prosecutors presently investigating these
allegations.
Pursuant to the statute, please report back to the
Committee within 30 days whether you have begun or will begin
a preliminary investigation, identifying all of the
allegations you are presently investigating or as to which
you have received information, and indicating whether you
believe each of these allegations are based on specific
information from credible sources, and either pertain to a
covered individual or present a conflict of interest. Please
also provide your reasons for those determinations. See 28
U.S.C. 592(g)(2). In the event you conduct a preliminary
investigation, but do not apply for the appointment of an
independent counsel, or apply for an independent counsel but
only with respect to some of the various allegations on which
you have received information, please identify all those
allegations which in your view do not warrant appointment of
an independent counsel, and explain your view whether those
allegations warrant further investigation, pertain to a
covered individual, and/or present a conflict of interest
See 28 U.S.C. Sec. 592(g)(3).
Sincerely,
Orrin G. Hatch, Charles E. Grassley, John Ashcroft,
Spencer Abraham, Mike DeWine, Strom Thurmond, Arlen
Specter, Jon Kyl, Fred Thompson, Jeff Sessions.
Mr. HATCH. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. GRAMS). Without objection, it is so
ordered.
Mr. LEAHY. Mr. President, the first comment this morning is that
everybody wishes the President well in his upcoming surgery. It is
almost like those in some of the terrorist groups that go out and
kneecap somebody and then send flowers to them in the hospital. I am
not suggesting that there is hypocrisy in it, but I am waiting for all
of the requests for special counsel and for some of my friends on the
other side to ask for a resolution to spend money to send Senators in
surgical gowns out to Bethesda to make sure the President really is out
there having an operation.
It has reached that kind of a level around here. For some of my
colleagues, if President Clinton were to walk across the water to save
somebody from drowning, the headline in their statement would be, ``It
proves he can't swim.''
When I hear some of the statements being made, I am reminded of a
what a former Republican President--who, incidentally, was one of the
best fundraisers I have ever known--said, ``Well, there you go again.''
Some in the Congress simply cannot avoid the temptation to jump the
gun, draw the most negative possible inferences, and take every
opportunity to discredit those who serve in the Government, and, as one
who has served for years in law enforcement, they also take every
possibility to discredit those who serve in law enforcement, and demand
yet another costly, time-consuming, largely unaccountable and
potentially destructive independent counsel investigation so long as it
is limited to only investigating a Democratic President.
Senate Joint Resolution 22 does not advance the administration of
justice. I think it is a kind of partisan effort at political spin. It
comes at the end of a week during which the Senate rejected the
majority leader's version of a resolution to restrict the Governmental
Affairs Committee investigation. That resolution, before it passed, was
altered during our floor debate to include examination of improper as
well as illegal fundraising activities and finally to include such
activities in congressional as well as the Presidential campaign. It
then passed 99 to nothing.
The joint resolution before us is a similarly ill-conceived effort.
It was introduced before the Rules Committee or the Senate moved to
consider, amend and reamend the funding resolution for the Governmental
Affairs Committee. It was introduced before the Judiciary Committee met
on a committee resolution on March 6. It was introduced before the
Republican and Democratic members of the Senate and House Judiciary
Committees sent letters to the Attorney General. Those letters are the
congressional actions contemplated by the independent counsel law. This
resolution is not.
[[Page S2303]]
In fact, this resolution, if it were introduced as a bill rather than
merely a sense of the Senate resolution and then passed as a law, would
not pass constitutional muster.
It is very, very easy to stand here and say go out and look at the
President; do not look at anything we do. Whatever you do, do not look
at the House or Senate Members of Congress. But let us go after the
President.
Mr. President, what we are saying is that our regular law enforcement
agencies cannot do the job. We in Congress can. That is a laugh. As I
said, I spent nearly 9 years in law enforcement. I know that the
Attorney General and the others in law enforcement here have the
independence to do what needs to be done. But I also know that it is
the height of hypocrisy to say look at them; do not look at us.
The American people, the public, want more than anything else real
campaign reform. The Republican leadership of the House and Senate
could bring campaign reform measures to the floor today and ask us to
have votes on them. Instead, they want to spend days and days and days
bashing the President. Even while he is lying in the hospital in
Bethesda for surgery, they will spend days bashing him, hoping that
nobody will notice the tens of thousands of dollars we will spend in
this Chamber in this debate and the printing costs of it all. They are
hoping that maybe the American public will not ask the question: If you
have all that time and money and effort to spend, why not debate real
campaign finance reform and vote on it--campaign finance reform that
would apply not just to the President and Vice President but would
apply to every Democrat, Republican and Independent in the House and
Senate and every Democrat and Republican and every Independent who
might challenge an incumbent.
The fact is that if you took a poll today and asked the American
public, do you want real campaign finance reform, the response would be
a resounding yes. I hope the America public will ask the Republican
leadership of the Senate and the Republican leadership of the House,
because they are the ones responsible for setting the legislative
agenda, when are you going to bring campaign finance reform to the
floor? The President has said he will sign the bill. Unlike the last
strong, tough campaign finance reform bill that was passed by the House
and Senate and went to the White House for signature and was vetoed by
the former President, this President has said he will sign such a bill.
It is going to be easy during the vacation set up in a week for the
House and Senate, for Members to go home and give wonderful speeches
and say we are in favor of campaign finance reform. We are all in
favor, just like we are in favor of God and motherhood. But I hope
people ask, but have you voted on it? When are you going to vote on it?
Bring it up and have a vote on real campaign finance reform.
Now, some Members will vote against it and some Members will vote for
it. But at least the American public will know how their Member of the
House and their Senators voted. That is all we are asking.
I understand and I have great respect for some Senators who do not
want to vote for a campaign finance reform bill, even those who oppose
campaign finance reform legislation. I do not question their motives.
Let them vote against it. But I also respect those such as Senator
Feingold and Senator McCain who have brought forward a campaign finance
reform bill, and they ought to have a vote on it. That is all I am
asking. Stop the smokescreens of Friday afternoon talks about
investigating the President. I am sure they will pause at some point to
wish him well during his surgery this afternoon and then they will go
right back to bashing him.
Why not say here, Mr. President, we will actually do what we are
hired to do, what we are elected to do, what we are paid to do. We will
pass a campaign finance reform law.
In fact, while we are at it, maybe we ought to pass the chemical
weapons treaty.
While we are at it, maybe we ought to pass a budget. My good friends
on the other side of the aisle criticize the President's budget. Well,
they have a majority of the votes in the House and Senate to pass their
own. In fact, the law requires them to do it shortly after the
vacation. Let us see if they will pass one.
It occurs to me the kind of votes necessary to pass a budget are the
kind of votes that might cause some political pain on the right and the
left, and maybe that is why we do not actually vote on those kinds of
things. It occurs to me that if we passed a bill on campaign finance
reform, it would actually cause some pain, especially for those of us
who are incumbents, and maybe that is why the leadership will not bring
that bill to the floor. It occurs to me that the reason these
resolutions about investigations are very carefully aimed at the
President and exclude any consideration of possible improper activity
on the part of Members of Congress is that maybe--maybe--some who are
supporting them want to make sure no gaze of a special prosecutor is
directed at activities of Members of Congress.
There are only 100 people at any one time who are given the
opportunity to be in the Senate. I do not question the fact that you
have to have some partisan motivations to get elected in the first
place. But when you are here and take an oath of office, an oath to
uphold the Constitution, to represent the whole country and to uphold
the Constitution of the United States, let us not have partisan games
that are more reflective of somebody running for some minor county
office somewhere. We are supposed to be reflecting the interests of all
of the United States. We are supposed to be reflecting the interests of
all people. What we do as the Senate should reflect the conscience of
the United States. The Senate should be, and at times has been, the
conscience of this great country. But, when we engage in partisan games
aimed at sliming the President, but at the same time protecting every
single thing we do, that is not representing the conscience of the
United States. That is not rising to the level of what the U.S. Senate
should be.
If Members want to investigate the President on fundraising
activities, then be honest enough to say we will apply the same
searchlight, the same magnifying glass, the same standards to
ourselves. Do not give a hypocritical image of the U.S. Senate to the
American people by saying we will go after the President but we will
make sure that nobody looks at us, nobody asks us if any of us had done
the exact same things we are asking the President not to do. That is
not showing the kind of respect we should have for this Senate, for
this body, for the precedents we establish here.
This resolution before us is not authorized by the independent
counsel law. If it were a separate bill, it would not pass
constitutional muster. It is an inappropriate effort to pressure the
Attorney General to prejudge these matters. It would pervert the
independent counsel process under the law. The independent counsel law
was designed to protect the independence of investigatory and
prosecutorial decisions, including those of the Attorney General. This
resolution would say that Congress does not want the Attorney General
to be independent. The resolution says that we want to step in and tell
her what to do and how to do it. The independent counsel law was passed
to ensure that investigative and prosecutorial decisions are made
without regard to political pressure, but this action by the Senate
would subvert that purpose by subjecting the critical initial decisions
about invoking the law to just such political pressure.
We are saying to the Attorney General, do not you use any of your
judgment. We will tell you what you have to think. When I was a
prosecutor, I know what I would have told any legislative body that
told me how to exercise my prosecutorial discretion. It is not
Congress' place to determine whether and when to bring criminal
charges. As a former prosecutor, I say this body is ill-suited to that
purpose. The administration of justice is ill-served by efforts to
intimidate a prosecutor to begin a case, just as it would be ill-served
by the legislature trying to intimidate a prosecutor to end a case.
This resolution will serve only to undermine the investigation that
the Attorney General now has underway. It will undercut the independent
counsel law and I believe it further erodes public confidence in
Government's ability
[[Page S2304]]
to do its job. We ought to do our job and let the Attorney General do
hers.
Part of our job would be to pass campaign finance reform. But you see
absolutely no effort by the Republican leadership to bring such a bill
to the floor for a vote. Part of our job would be to vote up or down on
the chemical weapons treaty, but you see no effort on the part of the
Republican leadership to bring that to a vote. Part of our job would be
to pass a budget, vote it up or down, but you see no effort on the part
of the Republican leadership to bring that to a vote on the floor. What
this resolution does is take the Senate down another detour, away from
the critical work that we should be doing and is being left undone.
I have been here 22 years. I have been proud to work with Republicans
and Democrats on major legislation. On the floor of the Senate during
last year's Presidential election, I took the floor of the Senate to
praise the former Republican leader, Senator Bob Dole. I praised him
during the height of the Presidential election year, saying he is a man
I had worked with closely for bipartisan solutions on farm bills, on
hunger issues, on school lunch, school breakfasts, and the Women,
Infants, and Children Programs. We forged a bipartisan consensus, just
as I have been proud to do with so many other Members on the Republican
side, and just as so many real leaders in the Republican Party have
done as they have worked with Members of the Democrat side to form a
bipartisan consensus on issues that are most important to the United
States of America.
Unfortunately, when you have things like this resolution, which are
so blatantly partisan, where little effort is made to bring about a
bipartisan resolution, we find ourselves going further away from the
kind of bipartisan approach to the Nation's problems that we heard so
much about when this session was beginning.
It is almost as though some go out and have a pollster ask, ``What do
you American people want of us?'' They will get back from the pollster
that the people want us to work together, they want us to have
bipartisan solutions, they want us to show more civility, they want us
to work together in the interests of the country. So what do these
well-informed legislators proceed to do? They go on the Sunday talk
shows and have weekend press conferences and say that it is a new day,
that there is an effort for bipartisan consensus. They say what they
think the people want to hear.
But do we see a bipartisan effort on a budget resolution? No. Do we
see a bipartisan effort on a chemical weapons treaty? No. Do we see a
bipartisan effort to confirm Federal judges?
There has not been one single judge confirmed yet this Congress. You
know, there is a heck of a lot more effort given to somehow influencing
the appointment of an independent counsel or special prosecutor, by
this body, than there is to considering and confirming Federal judges.
Not one single Federal judge has been confirmed by this Congress. Not
one court of appeals judge was confirmed in the last session of
Congress. The Chief Justice of the United States, a conservative
Republican, appointed first by one Republican President as a member of
the Supreme Court and subsequently by another Republican President as
Chief Justice, has said we have reached a crisis situation. There are
nearly 100 vacancies in our Federal courts. Justice is not only
delayed, justice is denied to American people--all American people,
Republicans and Democrats alike.
Everybody knows it is a crisis. But this Senate, with all the talk
about bipartisanship, has not confirmed one single Federal judge. In
fact, I think there is only one scheduled for consideration by the
Senate. At this rate--I am 56 years old--through normal attrition and
all, if we keep on at this rate, when I am 156, instead of 100
vacancies we will have 300 or 400 vacancies.
This is not the way to show any kind of bipartisan consensus. If we
spend one-tenth as much of an effort at confirming Federal judges that
we are supposed to, that we are paid to do, that we are elected to do
we might begin to fulfill our responsibilities. If we spend one-tenth
the effort on confirming judges that we spend on cranking up more and
more multimillion dollar investigations of the President, we might
accomplish something. But, obviously, that is not intended in this new
era of bipartisanship.
We spent the first 2 months of this year debating a proposed
constitutional amendment that is unnecessary, unsound, and unwise, but
a bumper-sticker approach to the problems of budget deficits and the
need to balance our Federal budget. We have not spent 38 seconds on
this floor actually debating a real budget. We have not spent 21
seconds; we haven't spent a nanosecond. We spent 2 months talking about
something that might take effect in the next century. But we have not
spent 2 seconds debating something that will take effect this year.
Mr. President, I fear for the Senate. I am proud of the Senate. I am
proud of being here for 22 years. I am proud of serving with great
Republican leaders and great Democratic leaders. I am proud of serving
with men and women from both the Republican and Democratic side whom I
consider true national leaders.
What makes me proud is they have come together for the best interest
of the United States, not leaving behind their party allegiances, but
being first and foremost Americans and U.S. Senators and doing what is
best for the country. I do not see that happening now, Mr. President.
It fills this Senator with a great deal of sorrow.
This is not the way we do things in my State. In my State, we will
fight for our elections. Some win, some lose. Then we come together as
Republicans and Democrats for what is best for Vermont. We, U.S.
Senators, 100 of us having a chance to represent more than 250 million
Americans, ought to do what is best for this country. A quarter of a
billion Americans expect the 100 men and women of this body to do that,
and we are not bringing together the bipartisan consensus we used to
and that we need to achieve.
I talked about the bumper-sticker sloganeering of the constitutional
amendment. It failed here. In the House, they have not even had a
committee markup. The Republican Party decided not to do that. For
whatever their reasons are, I hope now, after spending months on that
ill-fated effort, we can actually debate and pass a budget. I tell my
friends on the other side of the center aisle that if they really want
to work on a bipartisan budget, we can. For that matter, they do not
have to ask for a single Democratic vote. There are enough Republicans
in the House and Senate to pass a budget, as the law requires, by April
15, if they really want to.
Mr. President, I have talked about judicial vacancies. Twenty-five
percent of the current vacancies have persisted for more than 18
months. A quarter of the judicial vacancies in this country have been
there for a year and a half. This is justice delayed, this is justice
denied, this is wrong.
I have served here twice in the majority and twice in the minority. I
have served here when the President of the United States was President
Gerald Ford, then President Carter, then President Reagan, then
President Bush, and now President Clinton. Never in my memory, under
Republican Presidents or Democratic Presidents, with Republican Senates
or Democratic Senates, never has the leadership of this body ever
allowed a situation when judicial vacancies would exist in this number
for this long. Never.
Republican leaders like Howard Baker or Bob Dole or Hugh Scott,
Democratic leaders like Mike Mansfield or Bob Byrd or George Mitchell
or Tom Daschle never countenanced such a thing. Never would these great
leaders have done this. Never have they allowed the Federal judiciary
to get in such an abysmal state, when the Chief Justice has to say it
is a crisis, when the Chief Justice says: ``It is hoped that the
Administration and Congress will continue to recognize that filling
judicial vacancies is crucial to the fair and effective administration
of justice.'' And yet, we have to tell him today that we are not doing
it, we are not doing our job.
A little over a year ago, the Republican majority of the House and
Senate closed down the whole Government, for days on end, weeks on end,
to make a political point. The political point is that they wasted
hundreds and hundreds of millions of dollars of the taxpayers' money
and the American public found out the Speaker of the House, at
[[Page S2305]]
one point, had to go out the back door of Air Force One--obviously, the
kind of affront that they felt justified wasting hundreds of millions
of dollars of taxpayers' money.
They were making a political point and the Government was closed
down. Some say billions of dollars were wasted. It was an enormous
inconvenience to the American taxpaying public who were wondering what
was going on.
Having had this failed experience of closing down the executive
branch of Government, it appears they now want to close down the
judicial branch of Government. This is the kind of capricious meanness
that you see in a schoolboy plucking the wings off a fly. This is
beneath the dignity of the U.S. Senate. This is beneath the dignity of
being a U.S. Senator. This is beneath the dignity of our Constitution.
This is wrong. This has never been done. It was never done under the
leadership of Senator Baker and Senator Dole, under the leadership of
Senator Mansfield, Senator Byrd, Senator Mitchell, or Senator Daschle.
I doubt if it was ever done under the leadership of those who came
before them.
The Senate is not fulfilling its constitutional responsibility. It is
interfering with the President's authority to appoint Federal judges.
It is hampering the third, coequal branch of our Government.
The Republicans controlling the 104th Congress shut down the
executive branch, this Congress they seem intent on shutting down the
judicial branch for political gain. It is a scandal in the making. It
is high time for the Senate to do its duty to consider and confirm
judges to the vacancies that have persisted for so long.
Instead, they bring to the Senate floor this resolution and say,
``Hey, Mr. President, I hope you enjoy your time in Bethesda. Turn on
C-SPAN. We're going to stand here and bash you for a day or two or
three.''
I suggest this: If you want to do that--if the leadership figures
that the only thing to do, because they cannot pass a budget, cannot
ratify a treaty, cannot pass anything else that might significantly
improve the lives of the American people--if, instead, they want to use
this Senate to bash the President, could we have maybe an hour every
day to do the people's business? Maybe an hour a day? For 10 hours,
they can bash the President and 1 hour each day we could actually
debate their budget resolution, if they had a budget resolution. For 10
hours a day, bash the President, an hour a day actually consider and
confirm Federal judges.
It is getting a little ridiculous. Do people know that we get paid
$133,000 a year, and we have not had 1 second of debate on the budget
resolution that the Republican leadership of the Senate and the House
are supposed to bring before us for a vote? Do they know that we get
paid $133,000 a year, but if you want to litigate a case in a Federal
court, you probably cannot get before a Federal judge because of the
vacancies that our inaction is perpetuating?
Do they know how much it is costing to do the bashing per page of the
Congressional Record? Maybe it is a sort of full-employment opportunity
for printers. As a printer's son, maybe I ought to be happy, but I do
not think this is what my father would think was the best thing for
this body to do.
So, Mr. President, some of this could be humorous if it were not for
the enormous cost to the taxpayers, if it were not for the fact that we
are not doing what we are supposed to do, if it were not for the fact
that the kind of bipartisanship that has always made me proud to be a
Member of the U.S. Senate has broken down more than I have ever seen
before. Maybe it would be funny if so many people were not hurt.
The Attorney General will look into any issues that there may be at
the White House. She will report back to us, as she is required to do.
We can look at that report and we can determine whether we agree with
it or not. But as a former prosecutor, I must tell you, I find it very
offensive to tell a prosecutor, ``Here is what you must do and must not
do. Here are the conclusions you must reach and must not reach.''
That is basically what this resolution is saying and it is also
saying: ``Oh, by the way--by the way--there's one thing thou shalt not
do. Thou shalt not ask any question of a Member of Congress. We, the
Republicans, who control the majority in the Congress, are saying, thou
shalt not ask questions of us, what we might have done in
fundraising.'' I will guarantee you, Mr. President, when we bring up an
alternative resolution which calls on the Attorney General to look at
Members of Congress, that in lockstep the Republican majority will vote
that down. A herd of elephants will trample that into the dust.
Why is that? They say, go investigate the President. We have already
spent $30, $40 million investigating the President and found nothing
that says he has done anything wrong. We have already spent about $30,
$40 million on a special prosecutor, who also goes out and gives
speeches to organizations that seek to defeat the President. We spent
$30, $40 million on a special prosecutor who has clients whose PAC's
have worked very hard to defeat the President. We spent $30, $40
million on a special prosecutor who would not recognize a conflict of
interest if it hit him up alongside the head.
Now they say, ``Let's just go after the President some more, but,
please, make sure you understand what we are saying: Don't touch us.''
It reminds me of the tax debate where the distinguished former chairman
of the Finance Committee, and one of the real giants of the Senate,
Russell Long, in debate said, ``The kind of taxes we want are, don't
tax me, don't tax thee; tax the man behind the tree.'' Well, in this
case, my good friends on the Republican side want to hide behind that
tree and say, ``Investigate everybody on the other side of the tree.
Don't look at us.''
I would like to think, Mr. President, this is because all the Members
who are going to vote against any investigation of the Senate or the
House, all the Members who want to block that, are as pure as Caesar's
wife. I would like to follow that analogy, Mr. President, but I could
not do it with a straight face.
It is really very blatant what is going on here. The majority does
not want to have a vote on a budget. The majority does not want to have
a vote on a chemical weapons treaty. Lord knows, the majority does not
want to do anything significant in filling the 100 vacancies now
persisting in the Federal courts. And those vacancies will grow just
through the normal retirements, deaths, and so forth. But let them
pound the President.
Oh, I would not be surprised if at some point in here we will
probably have a resolution calling for the President's speedy recovery
from the surgery this afternoon, but they will just pound the heck out
of him in the meantime.
You know, Mr. President, I am not sure anybody is fooled by this. If
it was just a silly partisan exercise, it would be one thing. At most,
it would be an embarrassment to the U.S. Senate. But it goes beyond
that. Because now we find that not only--not only--has there been an
unprecedented attack on the Constitution by blocking Federal judges,
but now the other shoe has dropped. We have heard from Members in the
other body that they want the impeachment of judges. If they disagree
with their decision, they want them impeached.
I say to my friends on the other side who are calling for
impeachments, they should take the time--I was going to say to
``reread'' a history book, but I think that might be presupposing to
say ``reread'' one--but go and read a history book. And I cannot say
``reread'' the Constitution, because that also presupposes they read
it. Read the Constitution.
This Nation, the greatest democracy that history has ever known, the
most powerful nation on Earth and still remaining a democracy, is here
because of the independence of the three branches of Government: The
legislative, the executive, and the judiciary.
Mr. President, everywhere I go in this country and throughout the
world I find such enormous respect for our independent Federal
judiciary. Look at some of the countries that are seeking democracy.
One of the biggest problems they have is that they have never had an
independent judiciary. We pride ourselves on our independent judiciary.
But for us to say, ``I disagreed with a decision, impeach him,'' it is
like Alice in Wonderland, the queen saying, ``Off
[[Page S2306]]
with their heads, off with their heads.'' It is that silly.
There are, after all, appellate courts. I have tried cases. I have
won some and I have lost some. I have known I could always appeal. That
is what you do. If a judge rules differently than you like, appeal the
decision. Do not say ``Oh, we'll impeach them.'' What kind of respect
do you think there will be for our Federal courts if that could be
done?
This makes me think, Mr. President, of those who had billboards out
``Impeach the Supreme Court'' because the Court ruled against
segregation. It was wrong then for those who wanted to violate the
independence of our courts because the courts dared point their finger
at the sin and the stain of segregation. It was just as wrong then as
it is today.
If my friends on the other side persist in destroying the
independence of our Federal judiciary, what kind of a legacy do they
leave their children and their children's children?
My children will live most of their lives in the next century. I
think to myself every day, what kind of a century will we give to them
if, after 200 years of building up the greatest democracy history has
ever known, we start with this piece and this piece, tearing down what
made it a great democracy, tearing down the Constitution, tearing down
the independent judiciary, and, yes, Mr. President, tearing down the
Senate and tearing down the House by our own statements and by our own
actions? That is wrong.
Mr. President, before this gets any further out of control, I pray
that Republicans and Democrats will start coming back together as we
did under the great leaders with whom I have had a privilege to serve--
Senator Mansfield, Senator Byrd, Senator Mitchell and now Senator
Daschle, and on the other side, Senator Baker and Senator Dole. These
were men who were willing to fight for their partisan beliefs but who
knew that there were some issues where the American people have to be
heard first and foremost and that we needed to come together.
I pray that our Members might pause here today--at least let the
President of the United States go to surgery this afternoon without us
trying to tear him apart--and ask ourselves, Republicans and Democrats
alike, what are we doing to the Senate? What are we doing to the House?
What are we doing to our Federal Judiciary? What are we doing to the
protection of our Constitution when we say judges should be impeached
not for high crimes and misdemeanors, as the Constitution speaks of,
but because we disagree with them?
If anybody has ever tried cases, and I have tried a lot of cases, you
will find judges to disagree with. The other side might be delighted.
The next week the judge may agree with you and the other side is angry.
That is the way it works. I tried a lot of cases in the appellate court
and I have tried a lot of cases in trial courts. However, sometimes I
disagreed with a determination.
Mr. President, when I began this statement there were no other
Senators on the floor seeking recognition. I now see my distinguished
colleague from Rhode Island and will suspend my remarks at this point
to allow him an opportunity to be heard.
I do ask unanimous consent that a copy of the March 13 letter to the
Attorney General that is signed by seven Democrats serving on the
Senate Judiciary Committee be printed in the Record. It has been quoted
already today, but out of context, so I feel compelled to include the
complete letter in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
United States Senate,
Committee on the Judiciary,
Washington, DC, March 13, 1997.
Hon. Janet Reno,
Attorney General of the United States.
U.S. Department of Justice,
Washington, DC.
Dear Madam Attorney General: We expect that certain
Republican members of the Senate Committee on the Judiciary
have forwarded to you a letter, purportedly pursuant to 18
U.S.C. Sec. 592(g)(1), that you apply for the appointment of
an independent counsel to investigate ``possible fundraising
improprieties in connection with the 1996 presidential
campaign.'' We will leave it to you to evaluate and respond
to that letter in accordance with your statutory
responsibilities to determine whether grounds to investigate
were furnished in that letter. Rather than provide specific
information and credible sources the Republican letter
appears to us to be a political document that strings
together a series of negative inferences, unanswered
questions and damning conclusions.
We, the undersigned members of the Committee on the
Judiciary, are concerned about illegal and improper
fundraising and spending practices in Federal election
campaigns and the need for campaign finance reform. Whereas
press accounts and reported allegations of improper
fundraising in Federal campaigns undermine public confidence
in the integrity of our electoral process, we want to do all
that we can to restore public confidence and get to the
bottom of such alleged wrongdoing as soon as possible.
Should you determine that an application for appointment of
an independent counsel is appropriate, we request that your
application avoid partisanship and include the full scope of
fundraising irregularities. The written request from our
Republican colleagues focuses entirely on allegations of
fundraising irregularities by the 1996 Clinton/Gore
Presidential Campaign and by the Clinton Administration, with
a primary focus on two areas: first, whether senior White
House officials and other Executive Branch officials
``improperly solicited and/or received contributions on
federal property''; and second, whether foreign contributions
``were funneled into U.S. election offers to influence U.S.
foreign policy.''
In addition to the areas outlined by our Republican
colleagues, we request that you also examine additional
items. First, revelations in the press have been rampant
about Republican campaign fundraising improprieties,
including soliciting contributions on federal government
property. Other Republican fundraising activities also raise
significant questions about the appearance of conflicts of
interest and whether any quid-pro-quo is involved in
legislative activities. Additional revelations raise
questions about how Republicans have in some instances
violated campaign finance laws and in other instances skirted
the spirit, if not the letter of the law, by using not-for-
profit organizations to funnel money for use in campaigns
without the reporting requirements and limitations that apply
to formal campaign committees. Second, we are concerned about
the possibility that foreign governments are seeking to
influence our domestic and foreign policy through campaign
contributions, including to congressional candidates for
federal office.
We understand that you have already formed a Task Force of
experienced prosecutors from within the Public Integrity
Section of the Criminal Division to investigate whether
criminal conduct took place in 1996 federal election
campaigns and that the Task Force is already well underway in
its investigation. We further understand that over thirty
special agents from the Federal Bureau of Investigation have
been assigned to work on this investigation. Indeed, the
press has reported that this Task Force has already served
subpoenas and presented testimony to a grand jury. We
appreciate your pressing forward without delay and credit
your past statements that you are continuing to evaluate
whether you need apply for the appointment of an independent
counsel. We also appreciate that appointment of an
independent counsel is not always a panacea. We believe that
the cost and delay of independent counsels have not always
been justified, that they have not been accountable and that
the judicial panel responsible for appointing such an
independent counsel in these circumstances may well have its
own conflict of interest. Most importably, we understand that
were you to shift your approach at this point in order to
conduct a preliminary investigation under the independent
counsel law, you would have no authority to convene grand
juries or issue subpoenas. Thus, the work being done by the
current Task Force would have to cease abruptly and the
matter would go forward with less authority and fewer
investigative powers and options.
The decision to invoke the independent counsel process in a
particular matter rests with you and not with the United
States Congress or any member or members thereof. You have
demonstrated your willingness to invoke the independent
counsel law in the past and we have the utmost confidence
that you will invoke the law again, if and when the legal
standards have been met in a particular matter. These
standards are clearly set forth in the independent counsel
statute. You must invoke the independent counsel process when
there is specific information from a credible source that a
crime may have been committed by enumerated ``covered
persons'', under 28 U.S.C. Sec. 591(a). You may exercise your
discretion to invoke this process when there is specific
information from a credible source that a crime may have been
committed by any other person and where the Justice
Department has a personal, financial or political conflict of
interest, under 28 U.S.C. Sec. 591(c)(1); or when there is
specific information from a credible source that a crime may
have been committed by a member of Congress and where it
would be in the public interest to do so, under 28 U.S.C.
Sec. 591(c)(2).
Partisan requests for invocation of the independent counsel
process give the appearance of attempting politically to
influence a decision by the Attorney General whether to
invoke the independent counsel process in a particular
matter. To our mind, this will result in further undermining
the public confidence's in the integrity of government, the
independent counsel process and in the criminal justice
system as a whole. Consequently, we urge you to exercise your
best
[[Page S2307]]
professional judgment, without regard to political pressures
and in accordance with the standards of the law and the
established policies of the Department of Justice, to
determine whether the independent counsel process should be
invoked, pursuant to 28 U.S.C. Sec. 591(a) or (c), to
investigate allegations of criminal misconduct by any
government official, member of Congress or other person in
connection with the 1996 federal election campaigns.
Only this week the Senate authorized the Governmental
Affairs Committee to begin its investigation into illegal and
improper fundraising activities in the 1996 federal election
campaigns. We are sure that you, as well as we, will monitor
that investigation and those hearings closely to determine
whether grounds for application for the appointment of an
independent counsel arise.
In conclusion, please report back to the Committee,
identify the allegations you are presently investigating, and
indicate whether you have begun or will begin a preliminary
investigation as limited by the independent counsel law,
indicate whether you believe these allegations to which we
have referred are based on specific information from credible
sources, and indicate whether these matters present a
conflict of interest with respect to a covered person or,
with respect to members of Congress, whether it would be in
the public interest to apply for the appointment of an
independent counsel. Please also provide your reasons for
those determinations. In the event you conduct a preliminary
investigation, but do not apply for the appointment of an
independent counsel, or apply for an independent counsel, but
only with respect to some of the various allegations on which
you have received or developed information, please identify
all those allegations which in your view do not warrant
appointment of an independent counsel, and explain your view
whether those allegations warrant further investigation,
pertain to a covered individual, present a conflict of
interest or with respect to members of Congress, why the
public interest is served by proceeding in the manner that
you have chosen.
Sincerely,
Herb Kohl,
Patrick J. Leahy,
Richard J. Durbin,
Dianne Feinstein,
Joseph R. Biden, Jr.,
Edward M. Kennedy,
Robert Torricelli,
U.S. Senators.
Mr. LEAHY. Mr. President, I ask unanimous consent to have printed in
the Record, not introduced, but printed in the Record, a copy of a
joint resolution which is very close to one that will be introduced by
this side as an amendment during this debate.
There being no objection, the material was ordered to be printed in
the Record, a follows:
S.J. Res. --
Whereas the independent counsel law was created to restore
public confidence in the criminal justice system after the
abuses of the Watergate scandal;
Whereas the decision on whether to invoke the independent
counsel process in a particular matter rests by
constitutional necessity with the Attorney General and not
with the United States Congress;
Whereas the law provides, in section 591(a) of title 28,
United States Code, that the Attorney General must invoke the
independent counsel process where there is specific
information from a credible source that a crime may have been
committed by a covered person;
Whereas the law provides, in section 591(c)(1) of title 28,
United States Code, that the Attorney General may invoke the
independent counsel process where there is specific
information from a credible source that a crime may have been
committed by any other person and where the Justice
Department has a personal, financial, or political conflict
of interest;
Whereas the law provides, in section 591(c)(2) of title 28,
United States Code, that the Attorney General may invoke the
independent counsel process where there is specific
information from a credible source that a crime may have been
committed by a Member of Congress and where it would be in
the public interest to do so;
Whereas the Attorney General has invoked the independent
counsel law in the past, and has stated that she will invoke
the law again if and when the legal standards have been met
in a particular matter;
Whereas the independent counsel law was never intended to
be used in a partisan manner, and such a misuse of the law
would damage public confidence in the criminal justice
system; and
Whereas it would be unprecedented and inappropriate for the
Congress to cast a vote which would have the appearance of
attempting to politically influence a decision by the
Attorney General on whether to invoke the independent counsel
process in a particular manner: Now, therefore, be it
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That it is
the sense of the Congress that the Attorney General should
exercise her best professional judgment, without regard to
political pressures and in accordance with the standards of
the law and the established policies of the Department of
Justice, to determine whether the independent counsel process
should be invoked, pursuant to section 591(a) or (c), to
investigate allegations of criminal misconduct by any
government official, Member of Congress, or other person in
connection with any presidential or congressional election
campaign.
Mr. DODD. Mr. President, the resolution that is before us, and is the
question of whether or not there ought to be an independent counsel.
Let me suggest here that there are three or four other items I want
to talk about later. I am also interested in talking about the
investigation that will be moving forward now as a result of last
week's vote; the Federal Election Commission and some idea on a piece
of legislation I will introduce with regard to that, and then the
proposed McCain-Feingold legislation. I presume this has been somewhat
confusing to someone watching this out there, with all these various
resolutions and debates going on. But they are issues all related to
the same subject matter.
Mr. President, let me just briefly say, with regard to the resolution
before us, as someone who appreciates the role of having a statute
dealing with independent counsel, I, for one, along with others--and I
am not alone in this regard--have expressed some reservations and
concerns about the independent counsel route generally, putting aside
any specific matters. I was one who voted against establishing an
independent counsel in the case of former President Bush when there
were allegations raised involving Iran and Iran-Contra. I felt that
those motivations were purely political. There were those in my party,
principally in my party, who pushed a resolution, and I felt it was
unwarranted. If felt it was politically motivated, and voted against
it.
I felt that the independent counsel's Iran-Contra investigation went
on way too long. It went on for years and cost an incredible amount of
money.
So I am leery of this general approach because of how it is self-
sustaining and goes on indefinitely. The passage of the statute was to
try and do something to take politics out of this a bit, to set some
very clear guidelines so we would not be involved in partisan debate
over whether or not there ought to be an independent counsel.
Obviously, Members are going to express themselves on the issue, and
I understand that. But with the independent counsel law we tried to
remove the political debate in deciding these issues. I urge my
colleagues in this matter to allow the Attorney General to make her
decision. She is about as independent as any Attorney General we have
had and certainly has not been intimidated by invoking the independent
counsel statute in the past, as expressed by the Senator from Vermont.
I want to express the worrisome feelings I have about this. We have
seen independent counsel investigations go on way too long. They are
self-fulfilling. Today, we have the Justice Department, the FBI looking
at the matter that is the subject of the request that an independent
counsel become involved.
Mr. LOTT. Mr. President, I today join the majority of members of the
Judiciary Committee in calling on the Attorney General to begin the
process for the appointment of an independent counsel to investigate
possible violations of Federal law in connection with fundraising and
other activities during the 1996 Presidential election campaign.
The independent counsel statute--28 United States Code section 591
and following--provides that the Attorney General shall conduct a
preliminary investigation, which is defined as ``such matters as the
Attorney General considers appropriate in order to make a
determination, whether further investigation is warranted, with respect
to each potential violation, or allegation of a violation, of criminal
law, when she receives information sufficient to constitute grounds to
investigate'' whether certain persons violated any Federal criminal law
other than a class B or C misdemeanor. These persons include:
First, President and Vice President;
Second, persons working in the Executive Office of the President paid
at or above level II;
Third, chairman and treasurer of the President's reelection
committee, or any officer of the reelection committee exercising
authority at the national level during the President's term.
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The test of the sufficiency of the information received is whether or
not it is specific and credible. The Attorney General has 30 days to
review this information to make the determination. This is a very low
threshold test. The only way she can avoid a preliminary investigation
is to determine that the information is not credible or not specific.
If she finds she is unable to determine within 30 days if the
information is credible and specific, she still has to begin the
investigation.
Further, if the Attorney General determines that an investigation or
prosecution by the Department of Justice of any other person may result
in a personal, financial, or political conflict of interest, the
Attorney General may conduct a preliminary investigation. Although this
would seem to be more discretionary than the shall language otherwise
in the statute, Attorney General Reno understands the importance and
the necessity of the independence of the investigation into such
matters. As she testified before the Judiciary Committee in 1993 when
that committee was considering reenactment of the independent counsel
statute:
There is an inherent conflict of interest whenever senior
Executive Branch officials are to be investigated by the
Department of Justice and its appointed head, the Attorney
General. The Attorney General serves at the pleasure of the
President. Recognition of this conflict does not belittle or
demean the impressive professionalism of the Department's
career prosecutors, nor does it question the integrity of the
Attorney General and his or her political appointees.
Instead, it recognizes the importance of public confidence
in our system of justice, and the destructive effect in a
free democracy of public cynicism.''
She further testified:
It is absolutely essential for the public to have
confidence in the system and you cannot do that when there is
conflict or an appearance of conflict in the person who is,
in effect, the chief prosecutor . . . The Independent Counsel
Act was designed to avoid even the appearance of impropriety
in the consideration of allegations of misconduct by high-
level Executive Branch officials and to prevent . . . the
actual or perceived conflicts of interest. The Act thus
served as a vehicle to further the public's perception of
fairness and thoroughness in such matters, and to avert even
the most subtle influences that may appear in an
investigation of highly-placed Executive officials.
Despite the fact that high-level executive department officials and
other covered persons have been implicated in possible violations of
Federal law, the Attorney General seems to have ignored her own
warnings about the appearance of a conflict of interest or impropriety
and has chosen not to initiate the procedure leading to the appointment
on her own. In light of this decision, it is left to the Senate,
through the action of its Judiciary Committee, to pursue the
appointment of an independent counsel.
This action has been initiated by written request to the Attorney
General. Under the independent counsel statute, the Attorney General
has 30 days after receipt of the request to report if the preliminary
investigation has begun--and the date it began--or that it will not
begin. She must give her reasons for either beginning or choosing not
to begin the investigation.
I am confident that Attorney General Reno will heed her own words in
her testimony before the Judiciary Committee and seek to avoid even the
appearance of impropriety in this investigation.
There is sufficient specific and credible evidence now to initiate
the process now. To do otherwise or to delay action will call the
Attorney General's decisionmaking process into question. That is
specifically the effect that must be avoided here. There should be no
appearance of impropriety in the decision of whether to appoint an
independent counsel and I am confident, upon consideration, the
Attorney General will see the wisdom in expediting the decision to ask
for the appointment of such independent counsel.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. COATS. Mr. President, there are two items I will address this
morning. I will not be long. I know the distinguished Senator from
Rhode Island is waiting to speak.
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