[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.

                          ____________________