[Congressional Record Volume 143, Number 36 (Wednesday, March 19, 1997)]
[Senate]
[Pages S2499-S2501]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RELATIVE TO THE DECISION OF THE ATTORNEY GENERAL ON THE INDEPENDENT
COUNSEL PROCESS
The PRESIDING OFFICER. The Chair lays before the Senate Senate Joint
Resolution 23 for 2 minutes of debate equally divided.
The clerk will report.
The legislative clerk read as follows:
A joint resolution (S.J. Res. 23) expressing the sense of
the Congress that the Attorney General should exercise her
best professional judgment, without regard to political
pressures, on whether to invoke the independent counsel
process to investigate alleged criminal misconduct relating
to any election campaign.
The Senate resumed consideration of the joint resolution.
The PRESIDING OFFICER. Who yields time?
Mr. LEAHY addressed the Chair.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, the full scope of fundraising
irregularities on both sides of the aisle and on both ends of
Pennsylvania Avenue should be the subject of investigation.
Today, we have seen reports that a lobbyist for a foreign government
was being shaken down and a foreign ambassador was contacted in this
regard by the House Member who chairs the committee charged with
investigating allegations of fundraising abuses.
The resolution that many just voted for carefully excludes any
attention to congressional conduct. The resolution on which we are now
prepared to vote lets the chips fall where they may. It includes
congressional election campaign activities.
Having just voted to instruct the Attorney General to apply for an
independent counsel to investigate those with the Presidential
campaign, let us proceed to support--not dodge by trying to table--a
resolution that would allow the Attorney General to proceed with
respect to congressional fundraising abuses, as well. Otherwise, the
American people are going to see this as a blatant political attack on
the President as he goes to Helsinki that excludes any attention to
ourselves.
Mr. BENNETT addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Mr. President, as my friends on the Democratic side of
the aisle have so often reminded us during the debate, there is a
mechanism going forward in the Governmental Affairs Committee to
investigate all aspects of the 1996 campaign, congressional as well as
Presidential. This is clearly not the function of an independent
counsel.
The function of an independent counsel is to investigate allegations
of the most serious and difficult kinds of lawbreaking. I know of no
such allegations that would require a special counsel in the area
outside of those that we have talked about during the debate.
Therefore, I intend to vote against this resolution because it does not
address the problem that we face. Whatever problem is there will be
clearly handled, and handled competently, by the Governmental Affairs
Committee.
Mr. LOTT addressed the Chair.
The PRESIDING OFFICER. The majority leader.
[[Page S2500]]
Mr. LOTT. Mr. President, I move to table Senate Joint Resolution 23
and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
lay on the table Senate Joint Resolution 23. The yeas and nays have
been ordered. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, under Federal law, the Attorney General may
conduct a preliminary investigation to determine whether to apply to
the special division of the Court of Appeals for the D.C. Circuit for
appointment of an independent counsel whenever she receives specific
information from a credible source constituting grounds for
investigating whether a Federal criminal law was violated by a
specified category of executive branch officials, or where she
determines that there are grounds for investigating whether a criminal
law has been violated, and conducting the investigation would create a
conflict of interest. If, after conducting a preliminary investigation,
the Attorney General determines that further investigation is
warranted, she shall apply for the appointment of an independent
counsel. 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, last week, 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 we are authorized to do by the independent
counsel statute, requesting that she make an application for an
independent counsel.
I must confess, as I did then, 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.
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.
With respect to the proposed alternative resolution proposed by some
of my colleagues on the other side of the aisle, Senate Joint
Resolution 23, I must oppose this resolution. This resolution comes on
the heels of a letter 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
argued in that letter that the Attorney General should ``avoid
partisanship'' by instructing the independent counsel to investigate
Republicans who have ``skirted the spirit'' of the law. I appreciate
what my colleagues were doing with their letter and I appreciate what
they are doing with this resolution. Their loyalty to their political
party is duly noted. But, as I have said repeatedly, the appointment of
an independent counsel is a serious matter and partisan proportionality
should not be a consideration. Would these Senators have sent this
letter had the majority not sent its letter? Would we be debating their
resolution had the majority leader not turned to his resolution? I
think we all know the answer to that question. Furthermore, neither
their letter nor their resolution cite any congressional activities
which independently warrant an independent counsel nor do they actually
urge the Attorney General to appoint an independent counsel.
The resolution before the Senate expresses the Sense of the Congress
that the Attorney General should do only as she pleases. But, it goes
on to provide, if she does decide to initiate the independent counsel
process, the Attorney General should be sure to include Members of
Congress. It seems my colleagues want to have the best of both worlds.
It appears from the language of their alternative resolution that they
do not want to go on record as having asked for an independent counsel.
But, heaven forbid, should an independent counsel be appointed, he or
she should be instructed to initiate a partisan fishing expedition of
Congress.
The Democrats' proposal that an independent counsel, if appointed,
should have jurisdiction to investigate Members of Congress is
insupportable under the independent counsel statute.
The entire purpose of the statute is to avoid the existence or
appearance of a conflict of interest in Justice Department
investigations. This conflict is inherent whenever an investigation
involves any of the high-ranking executive branch officials enumerated
in 28 U.S.C. 591(a), and may also arise--and indeed has been found by
the Attorney General to have arisen--when an investigation involves
other executive branch officials. 28 U.S.C. 591(c)(1). Such a conflict
plainly does not, however, ordinarily exist with respect to Justice
Department investigations of Members of Congress. As the Senate Report
on the Independent Counsel Reauthorization Act states:
. . . no inherent conflict exists in Justice Department
investigations and prosecutions of Members of Congress. This
conflict does not exist, because the Attorney General is not
part of the legislative branch and is not under the control
of any Member of Congress. The Department also has a long
history of successful prosecutions of Members of Congress. .
. . Public perception of a conflict of interest is also not a
problem. . . . Also, in 1993, the Department of Justice
testified that no inherent conflict of interests in its
prosecuting Members of Congress. . . .
The statute does provide that the Attorney General may conduct a
preliminary investigation with respect to a Member of Congress where
first ``the Attorney General receives information sufficient to
constitute grounds to investigate whether a Member of Congress may have
violated'' a Federal criminal law, and second the Attorney General
``determines that it would be in the public interest'' to conduct a
preliminary investigation. 28 United States Code 591(c)(2). Neither of
these two required findings are even suggested by the Democrats'
proposed resolution, nor does it appear that they could even arguably
be present here.
First, the Democrats have made no specific allegations that a Member
of Congress has violated a criminal law, thus warranting further
investigation. Whereas the Attorney General has for over 3 months been
conducting an extensive investigation into alleged fundraising
violations by members of the
[[Page S2501]]
Democratic National Committee [DNC] and the executive branch, I am
aware of no such investigation pertaining to Members of Congress, and
the Democrats' proposed resolution does not even purport to make such
allegations. The independent counsel statute plainly does not authorize
the appointment of an independent counsel with jurisdiction to go on an
undefined fishing expedition to dig up unspecified violations by
Members of Congress.
Second, I can imagine no reason--and my Democrat colleagues have
suggested none--why it would be in the public interest to initiate
independent counsel proceedings with respect to Members of Congress.
The legislative history clearly indicates that there are two instances
when independent counsel proceedings are in the public interest under
section 591(c)(2). The first is where there would be a real or apparent
conflict of interest for the Attorney General to investigate a Member
of Congress. While we could imagine that there might be instances in
which an Attorney General would have a conflict in investigating
Members of Congress of the same party, only in the most extraordinary
circumstance would an Attorney General have a conflict in investigating
Members of the other party. In any event, we are confident that this
Attorney General is fully capable of investigating Members of Congress
of both parties.
The third reason for initiating independent counsel proceedings with
respect to Members of Congress is when ``there is a danger of disparate
treatment if the case were handled by the Department of Justice,'' such
that ``a Member of Congress were unfairly subjected to a more rigorous
application of criminal law than other citizens.'' This danger,
however, clearly does not arise with respect to allegations that laws
regulating the fundraising activities of public officials have been
violated; if the law only applies to public officials, there is no
possibility of disparate treatment between Members of Congress and
private citizens. In any event, my colleagues on the other side of the
aisle have not even attempted to articulate why there would be a danger
of disparate treatment if the Justice Department were to investigate
Members of Congress.
In closing, Attorney General Reno has appointed four independent
counsels to date. It is the sense of a 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. However, the record does not
warrant, nor does the law permit, the appointment of an independent
counsel to investigate Congress. Accordingly, I urge my colleagues to
oppose Senate Joint Resolution 23.
The result was announced--yeas 58, nays 41, as follows:
[Rollcall Vote No. 33 Leg.]
YEAS--58
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Burns
Campbell
Chafee
Coats
Cochran
Collins
Coverdell
Craig
D'Amato
DeWine
Domenici
Enzi
Faircloth
Feingold
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Moynihan
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith, Bob
Smith, Gordon H.
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
NAYS--41
Akaka
Baucus
Biden
Bingaman
Boxer
Breaux
Bryan
Bumpers
Byrd
Cleland
Conrad
Daschle
Dorgan
Durbin
Feinstein
Ford
Glenn
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Torricelli
Wyden
ANSWERED ``PRESENT''--1
Dodd
The motion to lay on the table the joint resolution (S.J. Res. 23)
was agreed to.
Mr. KERRY addressed the Chair.
The PRESIDING OFFICER (Mr. Allard). The Senator from Massachusetts is
recognized.
Mr. KERRY. Mr. President, it is my understanding that the Senate will
be in a period of morning business now, is that correct?
The PRESIDING OFFICER. The Senator is correct.
____________________