[Congressional Record Volume 143, Number 134 (Wednesday, October 1, 1997)]
[Senate]
[Pages S10277-S10282]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE INDEPENDENT COUNSEL LAW

  Mr. LEVIN. Madam President, I want to speak today about the 
independent counsel law and the political pressure being put on the 
Attorney General to appoint an independent counsel in the campaign 
fundraising investigation.
  One Member has called on the Attorney General to resign. Some Members 
of the House are threatening impeachment proceedings against the 
Attorney General unless she reaches their conclusion on the appointment 
of an independent counsel.
  For 18 years I served as either the chairman or ranking Democrat on 
the subcommittee of the Governmental Affairs Committee with 
jurisdiction over the independent counsel law. I have been actively 
involved in three reauthorizations of this important statute. And 
having experienced and studied the history of this law, I am deeply 
disturbed by this type of pressure being exerted.
  Politically motivated attempts to intimidate the Attorney General 
runs directly counter to the fundamental purpose of the independent 
counsel law and counter to our constitutional system that makes the 
prosecution of crimes the sole responsibility of the executive branch.
  The independent counsel law was enacted in the aftermath of 
Watergate. The Watergate committee recommended, and the Congress 
agreed, that we need a process by which criminal investigations of our 
top Government officials should be conducted in an independent manner 
as free as possible from any taint of favoritism or politics.
  This was necessary, we decided, in order to maintain the public's 
confidence in one of the basic principles of our democracy, that this 
is a country that follows the rule of law. So we established a process 
whereby the Attorney General would follow certain established 
procedures in reviewing allegations of criminal wrongdoing by top 
Government officials and decide at certain stages whether to ask a 
special Federal court to appoint a person from the private sector to 
become a Government employee to take over the investigation and conduct 
it independently from the chain of command at the Department of 
Justice.
  We wanted the public to have confidence that the investigations into 
alleged criminal conduct by top Government officials were no less 
aggressive and no more aggressive than similar investigations of 
average citizens. We particularly wanted to remove partisanship from 
the investigative and prosecutorial decisionmaking process.
  We established the requirement that if the Attorney General receives 
specific information from a credible source that a crime may have been 
committed by certain enumerated top Government officials, the Attorney 
General has to conduct a threshold inquiry lasting no more than 30 days 
to determine if the allegation is frivolous or a potential legal 
problem. The top officials who trigger this so-called mandatory 
provision of the act are the President, the Vice President, Cabinet 
Secretaries, Deputy Secretaries of the executive branch departments, 
plus very top White House officials who are paid a salary at least as 
high as Cabinet Secretaries or Deputy Secretaries and the chairman and 
treasurer or other top officials of the President's campaign committee.
  If, after the threshold inquiry, the Attorney General determines that 
there is specific information from a credible source that a crime may 
have been committed by a covered official, the Attorney General must 
then conduct a preliminary investigation lasting no more than 90 days 
in which she gathers evidence to determine whether further 
investigation is warranted. If after the conclusion of the 90-day 
period the Attorney General determines that further investigation is 
warranted with respect to a covered official, then she must seek the 
appointment of an independent counsel from the special court made up of 
three article III judges appointed for 2-year terms by the Chief 
Justice of the Supreme Court.
  In crafting the independent counsel law, we contemplated a role for 
Congress with respect to the appointment of an independent counsel in a 
specific case. We included a provision that is tailored to the purposes 
of the statute. The independent counsel law explicitly provides that 
the appropriate avenue for congressional comment on the appointment of 
an independent counsel is through action of the Judiciary Committee.
  The law provides that either a majority of the majority party or a 
majority of the minority party of the members of the Judiciary 
Committee may request the Attorney General to appoint an independent 
counsel.
  Upon receipt of such a letter, the law provides that the Attorney 
General must respond in writing to the authors of the letter explaining 
``whether the Attorney General has begun or will begin a preliminary 
investigation'' under the independent counsel law, setting forth ``the 
reasons for the Attorney General's decision regarding such preliminary 
investigation as it relates to each of the matters with respect to 
which the congressional request is made. If there is such a preliminary 
investigation, the report shall include the date on which the 
preliminary investigation began or will begin.''
  The Attorney General is not obligated to trigger the statute when she 
receives such a letter. She is not required to initiate a threshold 
inquiry or conduct a preliminary investigation. She is only required to 
respond within 30 days. That is the process that we provided for in the 
independent counsel law for Congress to express an opinion in 
triggering the statute. That is how the procedure works.
  The Attorney General has the sole discretion to determine if the 
statute is triggered and if an independent counsel should be appointed. 
That is a constitutional requisite of the statute, and without that 
discretion, the Supreme Court has said that the separation of powers 
principle is violated. Congress has the very specific way I indicated 
to express its opinion on the subject to the Attorney General. In the 
last analysis, as our chief law enforcement officer, it is her decision 
alone to make.
  While the independent counsel law was designed to make sure that a 
covered official doesn't get preferential treatment with respect to a 
criminal investigation, equally important was the concern that the 
official not suffer worse treatment or a selective process prosecution 
that would not be applied to an ordinary citizen. In the din 
surrounding these calls for the Attorney General to seek the 
appointment of an independent counsel, that very important feature has 
been lost.
  In 1981, our subcommittee that has jurisdiction over the independent 
counsel law held the first oversight hearings on its implementation. We 
had a number of knowledgeable witnesses, and we had several years of 
experience with the statute to review.
  One of the cases that the subcommittee reviewed at the time was the 
case of Hamilton Jordan and Tim Kraft, top White House officials in the 
Carter administration, who were accused of using a controlled substance 
at a party in violation of the criminal code. Then Attorney General 
Benjamin Civiletti testified at the time that under ordinary 
circumstances the Department of Justice, exercising its discretion on 
when to prosecute, would not generally prosecute a case such as that 
against a regular citizen even though there might have been a 
violation. But because the law at the time didn't permit the Attorney 
General to consider prosecutorial policies of the Department in 
deciding whether or not to seek appointment of an independent counsel, 
the Attorney General felt obligated to seek appointment of independent 
counsels in those two cases.
  Here is what then Attorney General Benjamin Civiletti told our 
subcommittee in 1981 about this decision:

       In normal circumstances, the Department does not 
     investigate or prosecute every possible felony or every 
     possible fact, or circumstance that comes to its attention. 
     Historically, and within the law, it exercises

[[Page S10278]]

     discretion. It stays its hand in individual cases, not for 
     the purpose of advancing or threatening personal interests, 
     but for the purpose of doing justice and advancing the common 
     good.
       This discretion is one of the great prerogatives that 
     devolves upon the Department of Justice and the Executive 
     under the common law. It is enormously important, and it is 
     honored every day in every U.S. attorney's office in 
     tradition and in practice.
       Any discretionary power, of course, can be abused. And if 
     the Department's investigatorial and prosecutorial discretion 
     should be exercised capriciously or irregularly, it would 
     threaten and not advance the interests that it is designed to 
     serve.
       For that reason, over the years we have developed 
     guidelines that structure and restrain the exercise of our 
     discretion in individual cases, thereby introducing a measure 
     of principle and regularity into a sensitive and subjective 
     process.

  Attorney General Civiletti went on to say the following:

       In some instances these guidelines take the form of 
     explicitly written standards concerning specific statutes and 
     specific kind of offenses and procedures. In other instances 
     they are unwritten understandings or policies that are 
     followed within the Department.
       What's the point of the reference to regularity if the 
     purpose of the special prosecutor provisions is to ensure 
     that the high officers in the Government will receive an 
     impartial treatment at the hands of the Department of 
     Justice?

  His answer:

       I am not sure that the statute goes as far as it might to 
     accomplish that objective because the special prosecutor is 
     given the freedom to disregard the standards, the limits, the 
     discretionary judgments that have been entered over the last 
     100 years in the Department of Justice, and set about on his 
     own course, which for each special prosecutor could be 
     entirely different under different standards and promote 
     great misfortune to the subject of the particular 
     investigation.''

  Now, in light of Attorney General Civiletti's testimony, the 
subcommittee decided to amend the independent counsel law to require--
and it is a requirement; it is not discretionary--to require that the 
Attorney General follow policies of the Department of Justice relative 
to the question of whether to prosecute a case even where evidence of a 
violation may exist.
  We concluded that it was important to not let the independent counsel 
law be used as a weapon to punish a top official who would not 
otherwise be subject to prosecution if he were a regular citizen. 
Senator Cohen, with whom I cosponsored the 1982 reforms, and I were 
both clear that the purpose of the independent counsel law is to 
provide for criminal investigation of a top government official in a 
manner no better and no worse than anybody else.
  We are not just talking about the written policies of the Department 
of Justice. Congress specifically rejected that limitation and included 
language in the statute requiring the Attorney General to follow both 
the written and unwritten policies of the Department of Justice.
  Section 592(c)1 of the independent law reads as follows:

       In determining under this chapter whether reasonable 
     grounds exist to warrant further investigation, the Attorney 
     General shall comply with the written or other established 
     policies of the Department of Justice with respect to the 
     conduct of criminal investigations.

  So we have an independent counsel statute where the Attorney General 
has the sole discretion whether to seek appointment of an independent 
counsel, but she has no discretion whether to apply the Department of 
Justice policies in making that decision. She must do so.
  Now, what is the Justice Department's policy with respect to what has 
become the primary allegation against the President and Vice 
President--making fundraising phone calls out of the White House? It is 
alleged by some that the conduct falls under an obscure statute, 18 USC 
607, which makes it unlawful for a person to solicit or receive a 
contribution, as defined by the Federal Election Campaign Act, in any 
Federal room or building. Here is what the statute says:

       It shall be unlawful for any person to solicit or receive 
     any contribution within the meaning [of the Federal Election 
     Act] in any room or building occupied in the discharge of 
     official duties by any [Federal employee] or in any navy 
     yard, fort or arsenal.

  This statute has several elements, and I would like to discuss the 
key elements. The first element is whether there are certain 
requirements with respect to the solicitor of the contribution referred 
to in the statute and with respect to the person being solicited. As 
many commentators and legal experts have noted, this law was enacted to 
protect Federal employees from political pressure by their fellow 
workers and bosses. It was part of the Pendleton Act, which was a major 
effort in reforming the civil service system enacted in the late 
1800's. It is directed at preventing a Federal employee from being 
pressured at work to make a political contribution, at preventing a 
sort of ``shake-down'' by a Federal employees' superiors. And it is 
placed in the part of the United States Code that addresses what 
Federal employees can and cannot do.
  So, some have argued that either the solicitor is required to be a 
Federal employee or the person being solicited is required to be a 
Federal employee, or both. Some have argued that in order to cover the 
President and Vice President or Members of Congress, they would have to 
be specifically mentioned. That is an ambiguity that the Watergate 
Special Prosecution Force wrestled with when it recommended in the 
1970's that Congress amend the statute ``to clarify the question of 
its applicability to elected as well as appointed officials.'' We 
didn't take them up on their suggestion, by the way, so that question 
has never been answered specifically in the law.

  The Justice Department's prosecution manual on prosecuting under 
section 607 apparently tried to answer this question, since it now says 
that ``The employment status of the parties to the solicitation is 
immaterial; it is the employment status of the persons who routinely 
occupy the area where the solicitation occurs that determines whether 
section 607 applies.'' Yet, the discussion of section 607 in the manual 
still refers to section 607 under the title ``Patronage Crimes.''
  But following these most recent guidelines by the Justice Department, 
it seems most likely that the statute could apply to private persons as 
well as Federal employees and to Members of Congress and the President 
and the Vice President as well as appointed officials, whether they are 
the ones making the solicitation or the ones being solicited. But there 
is still some uncertainty about this.
  The next element of the statute is clear. It relates to the 
solicitation or receipt of a campaign contribution. And the question 
here is where and when does a solicitation occur. Does it occur when 
the request is made or when the request is received? There is a Supreme 
Court case on this very issue which concludes that the solicitation 
occurs when and where the solicitation is received. In the 1908 case of 
U.S. versus Thayer, the Supreme Court considered a solicitation 
conducted through the mail. The Court had to decide whether the 
solicitation occurred at the place the soliciting person mailed the 
letter or where the solicitation was received. The Court held, in an 
opinion written by Justice Holmes, that the solicitation occurred where 
the employee received the letter, which was his place of work. By 
analogy, then, with respect to a phone call, the solicitation would 
occur not from where the call is made but where the call is received.
  The solicitation addressed by this statute has to occur where Federal 
employees are carrying out their official duties. That is what the 
purpose of the statute is. Section 607 says the solicitation has to 
occur ``in any room or building occupied in the discharge of official 
duties by any person'' mentioned in section 603, which means, by 
Federal employees. We recognize this purpose in the Senate when we 
described this law in our own Senate Ethics Manual. The September 1996 
Senate Ethics Manual says:

       The criminal prohibition at section 607 was originally 
     intended and was historically construed to prohibit anyone 
     from soliciting contributions from federal clerks or 
     employees while such persons were in a federal building. In 
     interpretations of this provision, the focus of the 
     prohibition has been directed to the location of the 
     individual from whom a contribution was requested, rather 
     than the location from which the solicitation had originated. 
     . . The Department of Justice has noted that the statute was 
     intended to fill a gap in protecting federal employees from 
     assessment by prohibiting all persons from soliciting such 
     employees while they are in a federal building.

  In the 1954 case of United States versus Burleson, the U.S. District 
Court for the Eastern District of Tennessee

[[Page S10279]]

threw out a case brought under section 670 because the court determined 
that the elements of the statute had not been met since Federal 
employees were solicited at the facility of a Federal contractor, not 
on Federal property. That, the court said, was dispositive of the case.
  The Department of Justice has adopted this approach as part of its 
prosecutorial policy with respect to this statute. As the American Law 
Division and the Congressional Research Service concluded in its report 
on section 607 in March of this year:

       There is no indication from reported cases or Department of 
     Justice material on the statute that there has ever been 
     enforcement of the statute, in the more than 100 years of its 
     existence, in such a manner as to suggest an interpretation 
     of the law as applying to solicitations made by mail or 
     telephone from a federal building to someone not in a federal 
     building.

  Now, that is our own Congressional Research Service saying that the 
policy of the Department of Justice is to not bring a section 607 case 
unless the person being solicited is located at a Federal workplace.
  A third element of section 607 which has been the subject of 
discussion is the requirement that the solicitation referred to in the 
statute be a so-called hard money contribution, a contribution covered 
by the Federal Election Campaign Act, and not a soft money 
contribution, a contribution outside of the legal limits of our Federal 
campaign laws.
  Ever since the Attorney General referred to this issue in her letter 
to the Judiciary Committee, commentators and Members have been working 
mightily to show that the Vice President was actually raising hard 
money, and thus covered by the statute, and not just soft money, which 
others have claimed was the case.
  Now, it is hard to imagine that the Vice President thought he was 
raising hard dollars since the amounts of the solicitation were for far 
more than the limits for hard money. But even if one could show the 
intent to solicit hard money contributions, it would seem that the 
second hurdle to prosecution would be controlling. The Department of 
Justice has simply not prosecuted conduct where the person being 
solicited is not on Federal property at the time of the solicitation. 
The issue of whether the solicited money ended up in a hard money or 
soft money account would not even need to be addressed under the facts 
as we know them.

  Parenthetically, if the hard money/soft money distinction were 
controlled, look at what some of us would be seeking to enforce--a 
statute that makes it a crime for a person to solicit $1 for his or her 
campaign, but makes it perfectly legal for that same person to solicit 
a million dollars or more from that same person for a political party 
which is totally committed to his or her election and will not only 
spend the money raised, but might even go into debt for that purpose. 
Now, that is an absurd interpretation that some Members of Congress are 
not only trying to uphold but, indeed, say is required.
  Because the Attorney General raised this issue in her letter to 
congressional leaders about triggering the Independent Counsel Act, she 
should make clear what the policy of the Department of Justice is with 
respect to that, as well as the other elements of this possible crime.
  Former U.S. Attorney Joseph DiGenova was straightforward in his 
assessment of how the Department of Justice should handle possible 
prosecution of the President or Vice President under section 607 when 
he said on a recent television show that no prosecutor in his or her 
right mind would bring a prosecution for those phone calls under this 
statute with the facts as we know them regarding the President and the 
Vice President. Other commentators have made similar arguments.
  I ask unanimous consent that the following columns be printed in the 
Record immediately following my remarks: Articles by Richard Cohen, 
E.J. Dionne, Jr., Philip Heyman, and William Raspberry.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEVIN. If we take these elements and apply them to the case of 
the President or Vice President making phone calls from the White 
House, it becomes clear to me that the facts do not fit the statute.
  Any phone calls they may have made, would have been solicitations 
made at the place where the person being called was located. We know 
that from the Supreme Court's decision in U.S. versus Thayer. And we 
know for section 607 to apply, that location has to be a location where 
Federal employees are performing their official duties.
  In applying the prosecutorial policy and practice of the Department 
of Justice in this case, with respect to this law, the Attorney 
General, may well and properly find that she would not prosecute a 
noncovered official under these facts. If so, she is not allowed by law 
to seek the appointment of an independent counsel.
  Madam President, the pressure being put upon the Attorney General to 
appoint an independent counsel is undermining the basic principle of 
this law and the nonpartisan spirit which has been so important to its 
operation. The effort to shoehorn the conduct of the President and Vice 
President into the prohibitions of an arcane law, never used under 
similar circumstances, violates our understanding of the criminal 
justice system--just as it would if cases had been brought against 
Senators who have already made similar calls from their Senate offices.
  One Senator was reported in the Wall Street Journal several years ago 
as saying he ``figures he spends two hours a day dialing for cash from 
his Washington home, his car, and his mobile phone;'' he says he can 
even place calls from his Senate office. ``I do it wherever I am,'' the 
Senator is quoted as saying. ``I can use a credit card. * * * As long 
as I pay for the calls, I can make calls wherever I want to call.''
  Another of our colleagues was reported, when phoning to remind 
potential donors of a fundraiser, to have left a recorded message on an 
answering machine to call him at his Senate office for more 
information.
  And, a third Senator's signature appeared on a solicitation letter in 
which potential contributors were invited to call his Senate office 
with questions about the fundraising solicitation. Have these Members 
been criminally prosecuted for a violation of section 607? No. Should 
they have been? No. The judgment of the Attorney General not to 
prosecute in these visible cases is further evidence that there has not 
been a policy to prosecute under section 607 when a solicitation is 
made to a person not on Federal property when solicited.
  When President Reagan was in the White House, he called the 
Republican Eagles who were meeting in a Government building--the 
auditorium at the Commerce Department. The President called and among 
his remarks, he said the following:

       I am genuinely sorry I couldn't be there in person with you 
     today. . . . but we have the Eagles down to the White House 
     quite often so I will be seeing you soon. In the meantime I'm 
     sending Secretary Schultz, Secretary Regan and other members 
     of the Cabinet over to keep you abreast of what's going on. 
     In fact you will be seeing more of my Cabinet today than I 
     will. . . . Let me say to you Eagles how important your 
     contributions are to the Republican Party. . . . [T]o keep a 
     lamp burning, we have to keep putting oil in it. You there 
     today help to keep the light of the Republican Party burning 
     brightly.

  That call was made 15 years ago in September 1982. And here, with 
this call, the persons being urged on were actually in a Federal 
building--just what section 607 seems to cover. And it's very likely 
that the contributions referred to were hard money contributions. But 
should there have been an independent counsel appointed to investigate 
President Reagan to determine whether or not he violated section 607? 
No--it shouldn't have happened then and shouldn't happen now. But where 
were the threats, where was the orchestrated chorus then?
  If we don't want our President or Vice President making fundraising 
calls, then we should pass a law to that effect and make it explicit. 
If its OK for them to make them from their taxpayer subsidized home or 
cars but not from their offices, then make it clear in the law. I 
question whether we really want criminality to hinge on whether the 
President makes a fundraising call from the Oval Office or from his 
upstairs office in the family section at the White House or from his 
car or from the phone booth on the corner? I, for one, would rather the 
President or Vice President not make fundraising

[[Page S10280]]

calls, period. That's what we intended when we enacted public financing 
of our Presidential campaigns--but the soft money loophole changed all 
that. We've got to fix that. We should eliminate the soft money 
loophole--not utilize an ambiguity surrounded by a technicality to push 
the President or Vice President into an independent counsel 
investigation as if it is intended to be some form of punishment. The 
independent counsel process was never intended to be used this way.
  Madam President, the Attorney General has a job to do. It has been 
given to her by the Constitution and the independent counsel law. She 
is now required to act to the best of her ability to follow the law--to 
conduct a thorough criminal investigation of all of the allegations; to 
follow the evidence wherever it leads; to follow the requirements of 
the independent counsel law--and this has too often been forgotten--
including the requirement that she follow Justice Department 
discretionary policies about whether to prosecute when deciding whether 
to seek an independent counsel.
  The political pressure on the Attorney General does a disservice to 
the Nation which is awaiting an objective and fair review. The 
political pressure on the Attorney General undermines the independent 
counsel law, which is dependent upon an application free from partisan 
pressure. If she finds that the criteria for triggering the independent 
counsel law has been met and that the Justice Department practice has 
been to prosecute in a case similar to this, so be it. But if she finds 
the criteria haven't been met, or if she finds that there has not been 
a policy of prosecution under section 607, so be it.
  If those calling for an independent counsel want the Attorney General 
to follow the letter of the law with respect to section 607 because 
they think it means a possible criminal investigation and prosecution--
and I have already shown why I disagree with that position--then they 
also have to urge the Attorney General to follow the letter of the law 
with respect to the appointment of an independent counsel. And the 
letter of that law has required, since 1982, that the Attorney General 
follow the policies and practices of the Department of Justice in 
determining whether independent counsel should be appointed. Again, it 
has not been the policy or practice of the Department of Justice to 
prosecute a solicitation under section 607 if the person being 
solicited is not on Federal property. If the Attorney General agrees, 
then she is not permitted to seek an independent counsel under the 1982 
amendment to the independent counsel law.
  Those urging the independent counsel appointment can't have it both 
ways. If they look at the spirit of section 607, or if they look at its 
letter, the Attorney General would be on firm ground should she seek 
not to appoint an independent counsel.
  Madam President, I thank the Chair and I yield the floor.

                               Exhibit 1

               [From the New York Times, Sept. 21, 1997]

                      Don't Make Gore the Fall Guy

  (By Philip B. Heymann; Philip B. Heymann, a former Deputy Attorney 
 General in the Clinton administration, is a professor at Harvard Law 
              School and the Kennedy School of Government)

       Cambridge, MA.--I have publicly supported those who have 
     called for Attorney General Janet Reno to appoint an 
     independent counsel to investigate the campaign donations 
     intended for the 1996 Presidential campaign.
       I have also argued that both the Democratic and Republican 
     parties turned donations intended and used for campaigns, 
     which are strictly regulated, into what looked like 
     unregulated ``soft money,'' not to be used for campaigns, by 
     running it in and out of their national parties.
       From a prosecutor's point of view, it would be absurd to 
     reject these arguments and instead decide to single out Vice 
     President Al Gore for investigation by an independent 
     counsel. Making phone calls soliciting donations from a 
     Government office rather than some private location is not an 
     adequate basis for prosecution in this case.
       Most prosecutors won't bring a case if three conditions 
     apply: when there are serious doubts about whether a law 
     technically covers the conduct in question, when the main 
     purpose of the statute was not violated, and when the conduct 
     is not inherently immoral. All three conditions apply to the 
     facts of the Gore allegations.
       When it comes to whether the law--Section 607 of the 
     Federal Criminal Code--technically applies to Mr. Gore's 
     phone calls, much remains uncertain. It is ``unlawful,'' the 
     section says, ``for any person to solicit or receive any 
     contribution . . . in any [Federal Government] room or 
     building occupied in the discharge of official duties.''
       Fair enough. But to violate the law, must the person 
     solicited be in a Federal building? In the 100 years since 
     the law was enacted, it has never been applied unless the 
     person solicited was on Federal property.
       Must the person solicited be a Federal employee? After all, 
     the main purpose of the statute was to protect Federal 
     employees against being dunned by their bosses. In 1979, the 
     Justice Department's Office of Legal Counsel concluded 
     that ``compelling arguments can be marshaled on either 
     side of this issue.'' By now, the statute probably also 
     applies to solicitation of non-employees, but the law has 
     never been spelled out.
       Does the statute cover the President and the Vice 
     President? The wording specifically includes members of 
     Congress and fails to mention the President and the Vice 
     President, but again, the law is unclear. The Justice 
     Department's Office of Legal Counsel has said that there are 
     differences of opinion but that the law probably applies.
       One thing is certain: the Vice President's actions were not 
     inconsistent with the only plain purpose of this statute. 
     Section 607 was drafted to protect Federal employees from 
     being coerced into giving money. Since Mr. Gore was 
     soliciting campaign money from outside sources, he did not 
     violate the law's main purpose.
       It is almost impossible to think of a reason that would 
     lead to care whether the Vice President made calls from 
     working quarters in the White House (where they may be 
     forbidden) or the living quarters of the White House (where 
     they are permitted) or from some nearby private location or 
     cellular phone.
       Of course, in a larger sense, an overriding purpose of many 
     of our campaign finance laws is to prevent the purchase of 
     access and influence. But where Mr. Gore made the phone calls 
     is irrelevant to that purpose. The solicitations are either 
     right or wrong, or either consistent or inconsistent with our 
     statutes, without regard to where they took place.
       In sum, it is hard to justify calling for prosecution of 
     Mr. Gore. There is no obvious violation of the purpose of the 
     law or claims on our sense of morality. Even if one tries to 
     justify a prosecution on the grounds that the violation was a 
     willful disregard of Section 607, this provides very frail 
     support in a case where so many uncertainties remain about 
     the law's scope.
       So why are so many people calling for prosecution? First, 
     because it would destroy the Democratic front-runner for 
     President. Political figures of both parties have long urged 
     prosecutions to knock off their current or potential 
     opponents. It remains a very bad idea to bend general 
     standards of prosecution either to reach or to avoid 
     political figures.
       Second, the Independent Counsel Statute denies the Attorney 
     General the power to exercise even the most obvious of 
     prosecutorial discretion unless she is prepared to say that 
     the Justice Department would, as a matter of policy, never 
     bring a prosecution in these circumstances.
       But there is a third and final reason. Attorney General 
     Reno has painted herself into a corner. In 1996, access was 
     sold on a scale we haven't seen since 1972. Presidential 
     campaigns solicited money from corporations and unions, which 
     are forbidden to contribute to campaigns. And from 
     individuals, they asked for donations in excess of what they 
     are allowed to give. Hundreds of millions of dollars from 
     these sources was given to the national parties, which then 
     spent it as the Presidential campaigns directed.
       This strategy to evade campaign finance laws was so 
     transparent that the Justice Department could easily have 
     dismissed the notion that the donations were given to 
     political parties for noncampaign purposes. That conclusion 
     would have meant that the donations were in violation of the 
     law, and required the appointment of an independent 
     prosecutor to investigate.
       But instead, the Justice Department concluded there were no 
     violations and accepted the parties' claims that they were 
     technically within the law.
       Now the Attorney General may find that the Vice President's 
     phone calls from the White House technically violate Section 
     607, but still do not warrant appointment of an independent 
     counsel. But it would be hard for the Attorney General to 
     explain this decision credibly. Some will ask, if a 
     technicality can be used to protect the President, isn't a 
     technicality enough to prosecute the Vice President?
       There is a compelling response to this question. Even if 
     the Vice President's calls violated Section 607, that remains 
     a case that few prosecutors would bring. What does warrant an 
     independent counsel is the thorough evasion of our Federal 
     election laws by dozens of politicians, including both 
     Presidential candidates.
       I continue to support calls for an independent counsel to 
     investigate solicitation of donations from forbidden 
     contributors. But Mr. Gore should not be made the scapegoat, 
     simply because the Attorney General has not been willing to 
     appoint an independent prosecutor for these allegations. 
     Besides being unfair, that would simply deflect public 
     attention from the real issue.

[[Page S10281]]

     
                                                                    ____
               [From the Washington Post, Sept. 23, 1997]

                   Who Needs an Independent Counsel?

                           (By Richard Cohen)

       If President Clinton had some gumption and, maybe more 
     important, a taste for confrontation, he would call in the 
     press, order up the TV networks and announce he was pardoning 
     both himself and Al Gore for anything relating to campaign 
     fund-raising. He would do that, he would solemnly announce, 
     so that Congress would write a law that makes some sense.
       The current laws do not. In fact, there is something 
     downright absurd about marshaling the Justice Department and 
     then maybe an independent counsel to look into whether 
     Clinton and Gore actually asked someone somewhere to make a 
     political donation. This, we are told, might be a felony--
     like, say, armed robbery. As anyone can see, it is actually 
     an absurdity.
       What do we care--Mr. and Mrs. USA--whether Gore or Clinton 
     was in the business section of the White House when he picked 
     up the phone or upstairs in the private quarters? What do we 
     care whether Gore was in his office or ducked across the 
     street to a pay phone? What do we care whether he used a 
     credit card or called collect? Yet these are some of the very 
     issues involved in this molehill-into-a-mountain scandal.
       As everyone but congressional Republicans seems to know, 
     the law involved was designed to stop elected federal 
     officials from putting the arm on their own staffs. This was 
     once a routine practice and, indeed, is not unknown to this 
     day. In some jurisdictions, county or municipal workers are 
     expected to make political donations to the reigning 
     organization. Senate Republicans in need of some pointers can 
     ask Al D'Amato how this is done.
       If Clinton or Gore had done something along those lines, an 
     independent counsel would be justified. Or had either one of 
     them--or anyone within a mile of Clinton--offered a job or a 
     government program in exchange for a contribution, that too 
     would be serious stuff. Then it would not matter if the call 
     was made from the presidential shower or the Situation Room--
     with a Donald Duck phone or the vaunted red one. A crime 
     would have been committed.
       But in the absence of any such accusation, the Republicans 
     press ahead anyway--and, in the process, do the White House a 
     favor. The question of who called whom where obscures the 
     uncontested fact that Clinton cheapened the White House with 
     his greed for campaign bucks. The coffees, the sleepovers, 
     the Lincoln Bedroom for the campaign version of frequent 
     flyer miles--all these turned what used to be called The 
     People's House into a bed and breakfast for fat cats.
       Sooner or later the public--but probably never the press--
     is going to understand that the Republicans are calling for 
     an independent counsel for what, in essence, may not be a 
     crime and should not be a crime anyway. Back in 1975, that 
     was the conclusion of four Watergate special prosecutors--
     Archibald Cox, Leon Jaworski, Henry Ruth and Charles Ruff. In 
     a report, they said the law was so confusing and antiquated 
     that Congress ought to change it. Congress, of course, has 
     done nothing of the sort.
       What's more, if an independent counsel is summoned, the 
     result will be a partisan donnybrook. Attorney General Janet 
     Reno will have to turn the matter over to a three-judge panel 
     headed by the toxically partisan David B. Sentelle. (He 
     supposedly named his daughter Reagan after you-know-who.) He 
     is the same appellate judge whose panel fired Robert Fiske 
     and replaced him with Kenneth Starr, a frank ideologue 
     himself. Starr has since conducted an open-ended 
     investigation of Whitewater, which has so far produced 
     nothing more than questions about his competence. He seems 
     lost in Arkansas.
       The GOP has a case to make about the way this White House 
     raised money. But for a party whose sole attribute is a 
     belief in less government, it is awfully quick to bring in 
     the government's heaviest guns to swat what is, after all, a 
     mere gnat of an alleged infraction. Once summoned, though, 
     the Lord High Independent Counsel can do pretty much what he 
     or she wants. That would mean, among other things, that Gore 
     would have to spend more and more time in the attic, 
     searching for old records, canceled checks and high school 
     yearbooks. He has already had to hire two criminal lawyers.
       The whole thing is a study in disproportion, in a madness 
     that, in other places, would entail an examination of the 
     water supply. Campaign financing badly needs reform but, 
     rather than do that, congressional Republicans are trying to 
     lynch Clinton and Gore for what, it appears, is their most 
     serious offense: winning the last election. No independent 
     counsel is going to change that.
                                                                    ____


               [From the Washington Post, Sept. 30, 1997]

                             Reno's Burden

                         (By E.J. Dionne, Jr.)

       The issue of whether Attorney General Janet Reno should 
     recommend an independent counsel to investigate fund-raising 
     by President Clinton and Vice President Gore is hopelessly 
     ensnared in politics, weird legal interpretations and 
     Washington power games.
       If Reno fails to name a counsel, Republicans are talking 
     about impeaching her. If she names a counsel, she will be 
     seen as bowing to threats and falling into a trap she built 
     for herself. Neither is a good option.
       Reno should never have declared that Vice President Gore 
     was legally untouchable if he was raising ``soft'' money in 
     those telephone calls from his office, but under suspicion if 
     he raised ``hard'' money.
       This casuistic distinction between the first kind of money, 
     which goes to general party purposes, and the second kind, 
     which can be spent directly on candidates, was blown away 
     when Bob Woodward of The Post reported that the Democratic 
     National Committee put some of the money Gore raised into 
     ``hard money'' accounts.
       Reno acknowledged she learned this from The Post, not from 
     her investigators, and was forced to reexamine her position 
     on whether a counsel should be named.
       But whether the money was ``soft'' or ``hard,'' those phone 
     calls, on their own, don't justify an independent counsel. 
     That's especially true given widespread disagreement over 
     whether the 1883 law they purportedly violated even applies 
     in this case. And as Phil Kuntz reported recently in the Wall 
     Street Journal, Sen. Phil Gramm was quoted in 1995 saying 
     that he placed fund-raising calls, on his credit card, from 
     his Senate office. He later denied explicitly soliciting 
     money. The Justice Department, wrote Kuntz, ``considered and 
     decided against pursuing'' the case.
       Sen. Mitch McConnell (R-Ky.), who has threatened Reno with 
     impeachment, urged the Senate Ethics Committee not to pursue 
     Gramm, according to Kuntz, because so many other senators 
     were probably guilty of the same thing. So Reno can't hang 
     her decision on the phone calls.
       But, yes, there are broader and much more troubling 
     questions about the ways Democrats ripped apart the campaign 
     law in 1996. So assume Reno seeks an independent counsel. Who 
     picks the counsel? None other than the three-judge panel 
     headed by Judge David Sentelle.
       Judge Sentelle's panel, you'll recall, dismissed the 
     original Whitewater counsel, Robert Fiske, and appointed 
     Kenneth Starr. Sentelle thought the fact that Reno had picked 
     Fiske raised the appearance of conflict of interest.
       But appearances didn't seem to bother Judge Sentelle when 
     he lunched with Sens. Jesse Helms and Lauch Faircloth, both 
     North Carolina Republicans, shortly before he replaced Fiske. 
     The same Sen. Faircloth had accused Fiske of a ``cover-up.'' 
     Five past presidents of the American Bar Association issued a 
     statement saying the meeting was ``unfortunate, to say the 
     least'' and gave rise ``to the appearance of impropriety.''
       ``Sentelle has polluted the waters,'' said Fred Wertheimer, 
     president of Democracy 21 and a fierce critic of both 
     parties' 1996 fund-raising tactics. ``The notion of the 
     independent counsel is to depoliticize the process, and the 
     Republicans in Congress want to turn it into a political 
     process.''
       Reno may have good reasons for dragging her feet on the 
     independent counsel. Perhaps she's not happy with the Starr 
     investigation or thinks she appointed too many counsels in 
     Clinton's first term. It's possible she doesn't trust Judge 
     Sentelle and--like many Democrats--has developed doubts about 
     the independent counsel law.
       If any of this is true, she should come right out and say 
     so. In the current issue of the conservative American 
     Spectator, former Reagan Justice Department official Terry 
     Eastland has it right on this point. ``there would be nothing 
     necessarily wrong if Reno had changed her mind about the 
     [independent counsel] law . . . and tried to reshape her 
     enforcement of it accordingly,'' he writes. ``But this would 
     be vital information, something worth knowing and 
     evaluating.''
       Similarly, Eastland said in an interview, if Reno doesn't 
     trust the Sentelle panel, ``that's the kind of thing that has 
     to be candidly stated and argued for.''
       An intriguing alternative to turning to Judge Sentelle 
     comes from Wertheimer and from columnist Al Hunt: Reno should 
     appoint her own counsel within the Justice Department, 
     someone ``of unimpeachable reputation, and give that person 
     the charter to do the job'' of investigating all finance 
     abuses in 1996, Republican as well as Democratic.
       This idea, at least, would require Reno to say exactly what 
     she's thinking and why. Whatever she does, Reno shouldn't let 
     herself be railroaded by Republicans with obvious partisan 
     motives. But she also has to restore confidence in the way 
     the 1996 finance abuses are being investigated.
                                                                    ____


               [From the Washington Post, Sept. 23, 1997]

                       Campaign Finance Overkill

                         (By William Raspberry)

       I make no excuse for President Clinton or Vice President 
     Gore. Indeed, I'm quite prepared to accept that they 
     violated--knowingly violated--federal law with regard to 
     campaign fund-raising.
       Still, the hearings before Sen. Fred Thompson's 
     Governmental Affairs Committee make me a little uneasy. The 
     prospect of an independent counsel investigation, given the 
     tendency of those things to get out of hand, is positively 
     chilling.
       If that sounds like partisan irresolution, it gets worse. I 
     don't like the idea of high officials getting away with law 
     violations, and yet I can't imagine what punishment of the 
     alleged violations I would accept as equitable.
       A bad analogy might demonstrate my dilemma. Say your 
     state--for reasons you don't comprehend and which may not in 
     fact make much sense--has enacted a 28-mph

[[Page S10282]]

     speed limit on an unremarkable two-mile strip of interstate 
     highway. What do you do with motorists who come zooming 
     through at, say, 32 mph?
       You don't want to send the message that anyone can violate 
     the speed laws with impunity; speed kills, and you have to 
     believe that those who enacted the limits did so in the 
     interest of public safety.
       On the other hand, how many licenses would you snatch, and 
     how many drivers would you send to jail for doing something 
     that (it seemed to you) endangered the public not a whit?
       Laws ought both to have some purpose and to advance that 
     purpose. The purpose of the fund-raising laws is clear and 
     commendable; to prevent the buying and selling of public 
     office. But how does the law that has Al Gore in such trouble 
     advance that purpose? It forbids solicitation or receipt of 
     contributions in any federal ``room or building occupied in 
     the discharge of official duties.'' Did Gore solicit campaign 
     contributions from his office phone? Sure he did. Clinton, 
     too. Would the republic have been more secure if they had 
     toddled off to the corner drugstore to make the calls? 
     (Waiting until they got home after work would have been no 
     solution; both live in buildings ``occupied in the discharge 
     of official duties.'')
       People who study these things say the prohibition, part of 
     the civil service reform of a century ago, was designed to 
     keep public officials from pressuring their staffs into 
     making contributions. It did not contemplate telephoned 
     solicitations made to private citizens.
       But that's not all that bothers me about the 
     investigations. Thompson's hearings are supposed to have some 
     legislative purpose and, in truth, one keeps hearing about 
     the need for campaign finance reform. But one could be 
     forgiven for wondering if the true purpose isn't to bolster 
     Republican Thompson's own presidential prospects and to 
     destroy Democrat Gore's.
       That is, perhaps, a small point. This isn't: The Supreme 
     Court has said money is speech. If that makes sense (and it 
     does to me), how can it make sense to put arbitrary limits on 
     the amount of speech that's permissible?
       That's not a trick question; it worries me a lot. It's 
     inconceivable that there should be limits on the amount of 
     time, doorbell-ringing, envelope-stuffing or other forms of 
     political ``speech'' supporters can contribute to candidates 
     of their choice. Why should we countenance limits on money 
     speech?
       The obvious answer is that we don't like the idea of rich 
     people buying influence over public officials or otherwise 
     subverting the government to their private purposes. (It's 
     easy, though not necessarily fair, to assume that the 
     purposes of the rich are more likely to be against the public 
     interest than are the purposes of, say, organized labor.)
       Maybe there's no way out of the dilemma. Either we allow 
     free speech in all its forms, or we arbitrarily limit it for 
     people we don't trust. The latest attempt to split the 
     difference--allowing larger amounts of ``speech'' on behalf 
     of political parties and smaller amounts for candidates--has 
     pretty much come a cropper. Soft money/hard money indeed!
       Public financing of campaigns is the most frequently 
     offered solution. But how do you ensure fairness to lesser-
     known candidates, and how do you ensure the free speech 
     rights of those who talk with their pocketbooks?
       We have two things going on at the same time: a serious 
     campaign-finance dilemma and a juicy campaign-finance 
     scandal.
       Guess which one will get the attention.

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Washington is recognized for 10 minutes.

                          ____________________