[Congressional Record Volume 143, Number 44 (Tuesday, April 15, 1997)]
[Senate]
[Pages S3212-S3214]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Leahy, Mrs. Feinstein and Mr. 
        Torricelli):
  S. 581. A bill to amend section 49 of title 28, United States Code, 
to limit the periods of service that a judge or justice may serve on 
the division of the United States Court of Appeals for the District of 
Columbia to appoint independent counsels, and for other purposes; to 
the Committee on the Judiciary.


                    INDEPENDENT COUNSEL LEGISLATION

  Mr. DURBIN. Mr. President, I rise today to introduce, with Senators 
Leahy, Feinstein and Torricelli, legislation dealing with the three-
judge panel that appoints independent counsels.
  In the last few days, we have heard a flurry of speeches about the 
appointment of an independent counsel and about the grasp that the 
Attorney General has on her job. Recently some Members of Congress have 
suggested that we should open an investigation on the Attorney General 
because of her

[[Page S3213]]

decision not to seek the appointment of an independent counsel.
  This is a new high in the efforts to politicize the independent 
counsel statute and a new low in bullying tactics.
  And, Mr. President, these tactics have worked insofar as their goal 
was to politicize this issue. Many Americans now view this statute as 
just another political football. Here in Congress, we toss about calls 
for an independent counsel. We threaten to minutely examine every act 
of the Attorney General in her efforts to carry out her duties under 
the statute.
  Meanwhile, one of the most important institutions to the operation of 
the independent counsel statute goes unexamined. The three-judge panel 
that appoints and oversees the independent counsels wields enormous 
power. And it has tainted itself through close connections to partisan 
politics and through the appointment of special counsels who are 
likewise partisans.
  This panel seems to operate free of any genuine scrutiny. It plays 
one of the most important roles in the administration of the statute. 
And it is the most in need of some oversight.
  The last time an independent counsel was appointed, we all saw just 
how embroiled that three-judge panel is in partisan politics. The head 
of that panel, the Republican-appointed David Sentelle, had lunch with 
two Republican Senators just a few weeks before he appointed an 
independent counsel who was a Republican Justice Department official 
and who had just recently publicly contemplated running for the Senate 
as a Republican. As a result of this incident, five former presidents 
of the American Bar Association issued a letter rebuking Judge Sentelle 
for his actions.
  A recent article in the Legal Times noted:

     In fact, with the appointment of independent counsel[s] 
     handled by a highly secretive three-judge panel, named by the 
     chief judge of the United States, it could be argued that one 
     partisan system has simply been supplanted by another.

  Let me explain what the panel currently does and how that contributes 
to the failings of the statute.
  The first flaw in the statute is in the appointment terms of the 
judges who sit on this special panel. Currently, three judges are 
appointed to the panel by the Chief Justice of the United States. The 
judges are appointed to the division for 2-year terms.
  But David Sentelle is now serving his third 2-year term. Judge John 
D. Butzner, Jr., is in the middle of his fourth 2-year term. And Judge 
Peter T. Fay is in the midst of his second 2-year term.
  In short, some judges are becoming entrenched in the independent 
counsel process.
  A second flaw in the judges' panel is in its consistent failure to 
issue any rules of procedure and practice. In 1994, when we 
reauthorized the act, Congress called on the panel to promulgate rules 
of procedure for practice before it, clarify available avenues of 
appellate review, and undertake to catalog and preserve independent 
counsel reports and make public versions accessible upon request.
  They have not done so. Only recently, the panel issued some draft 
rules of procedure dealing with attorney fee applications, but in 3 
years they do seem to have not otherwise complied with Congress's 
request.
  This special division is like a magician's hat: independent counsels 
emerge from it. But we do not know how. Are there any criteria used by 
the panel to appoint an independent counsel? Does the panel make any 
effort to assure that the person it appoints is actually independent? 
How does someone get this job--a job with a virtually unlimited budget 
and a stunning array of powers?
  We do not know because the Court will not tell us, even though we 
asked them to 3 years ago.
  We need to do a few things about this panel. The legislation I 
introduce today is intended to remove any taint of partisan politics 
from this panel. It requires that judges on the panel serve no more 
than two, 2-year terms. This will ensure that no one judge gets 
entrenched in appointing independent counsels. And it assures that the 
division does not get politicized. In addition, it is consistent with 
current law. Why have 2-year terms if the judges just stay on as long 
as they want? The 2-year term was clearly inserted with the view that 
judges would not stay on the division forever.
  In addition to limiting judges on the panel to 4 years, the measure I 
introduce requires that the division promulgate the very rules that we 
asked them to issue 3 years ago.
  The special division should not be a mysterious black box. People who 
practice before it should know the rules. Attorney fee applications are 
the most common things the Division has to deal with, but this 
provision also requires that the Special Division have rules governing 
the appointment of an independent counsel. We should know what criteria 
and what procedure they use to assure that the independent counsel is 
indeed independent and qualified.
  Mr. President, I hope we can all agree that this measure is vitally 
needed. It is simply aimed at improving the operation of the 
independent counsel statute not tearing it down. It's goal is to take 
some partisan politics out of the system and to put a little more 
independence back into the statute.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 581

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. LIMITATION ON PERIODS OF SERVICE THAT A JUDGE MAY 
                   SERVE ON THE DIVISION TO APPOINT INDEPENDENT 
                   COUNSELS.

       (a) Limitation on Service.--
       (1) In general.--Section 49 of title 28, United States 
     Code, is amended by adding at the end the following:
       ``(g)(1) Notwithstanding subsections (a) through (f) and 
     subject to paragraphs (2) and (3) of this subsection, no 
     judge or justice may serve more than 2 two-year periods 
     assigned to the division to appoint independent counsels 
     under this section.
       ``(2) For purposes of paragraph (1), service in filling a 
     vacancy on the division of--
       ``(A) less than 1 year shall not apply; and
       ``(B) 1 year or more shall be considered service for the 
     full two-year period.
       ``(3) A judge of the United States Court of Appeals for the 
     District of Columbia who has served 2 two-year periods on the 
     division may be assigned to serve an additional two-year 
     period, if--
       ``(A) every other judge of such Court otherwise eligible 
     for such assignment has served 2 two-year periods in such 
     assignment; and
       ``(B) the period of time since such judge last served in 
     such assignment is not less than the period of time any other 
     judge of such Court (who is otherwise eligible to serve) last 
     served in such assignment.''.
       (2) Effective date.--The amendments made by this subsection 
     shall take effect on the date of enactment of this Act and 
     shall apply to any judge or justice serving on such date on 
     the division to appoint independent counsels of the United 
     States Court of Appeals for the District of Columbia.
       (b) Administration of Division by the Circuit Judicial 
     Council.--
       (1) In general.--Section 332 of title 28, United States 
     Code (including subsection (d) of such section relating to 
     making all necessary and appropriate orders for the effective 
     and expeditious administration of justice), shall apply with 
     respect to the administration of the division of the United 
     States Court of Appeals for the District of Columbia to 
     appoint independent counsels by the Circuit Judicial Council 
     for the District of Columbia.
       (2) Rules.--No later than 6 months after the date of 
     enactment of this Act, the Circuit Judicial Council for the 
     District of Columbia shall promulgate rules to--
       (A) govern practice and procedures before the division to 
     appoint independent counsels;
       (B) govern the procedure for the appointment of an 
     independent counsel by the division;
       (C) clarify procedures for judicial appellate review of 
     actions of the division; and
       (D) catalog and preserve independent counsel reports and 
     make public versions available upon request.

  Mr. LEAHY. Mr. President, the whole purpose of the independent 
counsel law--to get politics out of the process of investigating 
politically potent matters--has been severely undercut recently by 
partisan efforts to bully the Attorney General into appointing an 
independent counsel to investigate fundraising activities in the 1996 
Presidential campaign. In fact, some Republicans in Congress have 
threatened that if Janet Reno refuses to do what they want, she will be 
investigated and her job will be at stake.
  This marks a new low in the politicization of the independent counsel 
process. These threats demean our system of justice and, I fear, 
undermines public confidence in all branches of government.

[[Page S3214]]

  Continued politicization of the independent counsel process will be 
the death knell for this law. The American people already have 
legitimate questions about how much independent counsels cost, how long 
they take, and how this law is working. By last count, independent 
counsels have cost taxpayers a total of over $125 million. Whitewater 
counsel Ken Starr alone has already spent over $22 million. We still 
have an independent counsel investigating matters from the Reagan 
administration.
  Suspicions about the role of partisan politics in the selection of 
so-called independent counsels are already strong. A Reagan-appointed 
Chief Justice, who served in the Nixon administration, appointed a 
staunchly Republican judge to the selection panel that, after meeting 
in secret, appointed partisan Republican Kenneth Starr to investigate 
Whitewater.
  If the results of independent counsel investigations cannot be 
trusted because they are tainted by partisan politics, we will not be 
able to justify the costs of this law.
  That is why I am commending Senator Durbin for his work on this bill. 
It takes important steps to begin restoring public confidence in the 
process by which independent counsels are selected. Specifically, the 
bill sets term limits for the three judges who serve on the Special 
Division of the D.C. Circuit division that appoints the independent 
counsel. Under current law, these judges serve for 2-year terms. 
However, all of them are on at least their second 2-year term. The 
legislation would prohibit a judge, including the current panel, from 
serving more than 2-year terms.
  In addition, the bill would allow sunshine on the selection of 
independent counsels and the results of independent counsel 
investigations. What criteria does the Special Division use to select 
independent counsels? Do they look for trial experience, prosecutorial 
experience or political experience? The bill places the Special 
Division that selects independent counsels under the authority of the 
Circuit Judicial Council and requires that the Council promulgate 
within 6 months rules of practice for the Division. These rules would 
specify the procedure for selection of an independent counsel. This is 
important so everyone will know what qualifications the Special 
Division uses to evaluate candidates. Public procedures should also 
open up the process so that appropriate candidates know how to apply 
for independent counsel positions when openings occur. This is too 
important a process to be decided by political cronies over lunch.
  The bill would also require that the Court catalog and preserve 
independent counsel reports and make public versions available upon 
request.
  This bill is not a cure-all for the problems we have seen with the 
independent counsel law. But this is a good start.
  Mr. President, the whole purpose of the independent counsel law--to 
get politics out of the process of investigating politically potent 
matters--has been severely undercut recently by partisan efforts to 
bully the Attorney General into appointing an independent counsel to 
investigate fundraising activities in the 1996 Presidential campaign. 
In statement after statement by otherwise responsible Members of 
Congress, they tell her how she should use here discretion and how she 
should make up her mind, before she even has an opportunity to do so. 
Some Republicans in Congress have threatened that if Janet Reno refuses 
to do what they want, she will be investigated and her job will be at 
stake.
  Basically, the American people were asked last night to make this 
choice: Would they let the Speaker of the House, Mr. Gingrich, 
determine what the ethics rules should be, or would they rather allow 
the Attorney General of the United States, Janet Reno to follow the law 
and investigate whether crimes have occurred?
  Frankly, I am very confident in allowing Attorney General Reno to 
proceed. She has done a pretty darn good job so far. She calls them as 
she sees them and has been a very straightforward Attorney General.
  I hope that everybody, whether in this body or the other body, will 
stop trying to substitute their ethical standards and political 
judgment as to what should be done and allow the Attorney General, who 
sticks to a very strong ethical standard, to follow and enforce the 
law. I believe the statements seeking to intimidate the Attorney 
General mark a new low in the politicization of the independent counsel 
process.
                                 ______