[Congressional Record Volume 144, Number 2 (Wednesday, January 28, 1998)]
[Extensions of Remarks]
[Pages E43-E44]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        THE INDEPENDENT COUNSEL

                                 ______
                                 

                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                      Wednesday, January 28, 1998

  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday, December 17, 1997 into the Congressional Record.

          Campaign Fundraising and the Independent Counsel Law

       On December 2, 1997 Attorney General Janet Reno announced 
     that she would not request the appointment of an independent 
     counsel to investigate fundraising phone calls by the 
     President and Vice President from the White House. The 
     decision does not end further investigation by the Justice 
     Department, the FBI, and congressional committees into these 
     and other allegations of fundraising abuse. The Attorney 
     General reserved the right to seek an independent counsel in 
     the future if the evidence so warrants.
       Her decision may nonetheless mark a turning point in the 
     fundraising scandal, perhaps signaling the beginning of the 
     end of the investigation. The appointment of an independent 
     counsel, in contrast, would have subjected the White House 
     and Democratic National Committee to the wide-ranging 
     investigative and prosecutorial powers of the counsel and 
     almost certainly prolonged the inquiry for many years.
       What is the independent counsel law? Congress enacted the 
     independent counsel law in 1978 in response to Watergate and 
     the seeming inability of the executive branch to investigate 
     and prosecute crimes by senior administration officials. The 
     statute aims to handle such cases in an impartial manner, 
     thus restoring public confidence in the process. An 
     independent counsel is appointed by a panel of judges at the 
     request of the Attorney General, and works outside the 
     executive branch.
       When is the law triggered? The Attorney General must 
     request the appointment of an independent counsel if there is 
     specific and credible information that a crime may have been 
     committed by a high-ranking official, or for others for whom 
     it would be a conflict of interest for the Justice Department 
     to investigate. The Attorney General, however, may not ask 
     for an independent counsel to investigate allegations that 
     the Justice Department would not prosecute under its existing 
     standards.
       What was the focus of this investigation? The Attorney 
     General focused her inquiry on whether the President and Vice 
     President made fundraising calls from the White House in 
     violation of a federal law known as the Pendleton Act. This 
     law was enacted in 1883 in an effort to prevent federal 
     officials from shaking down their employees for 
     contributions. It has since been expanded to cover certain 
     solicitations of private persons, but has been rarely 
     enforced in recent times. Applying this law to the White 
     House phone calls raised difficult legal issues. First, it 
     was unclear how the law might apply to the White House 
     residence (where the President lives) as opposed to White 
     House offices (where he works). Second, it was unclear what 
     types of solicitations the law was intended to proscribe. 
     Some had argued the law covered solicitations for so-called 
     ``hard money'' contributions, which are contributions for 
     specific federal campaigns and are stringently regulated, 
     while others said it also covered solicitations for so-called 
     ``soft money'' contributions, which are contributions for 
     general party-building activities and are only lightly 
     regulated.
       What did the investigation find? The Justice Department 
     concluded that the President made two thank-you calls to 
     contributors and one call soliciting money. Those calls, 
     however, were made from the White House residence, which, the 
     Attorney General said, was not covered by the law under 
     existing Justice Department guidelines. The investigators 
     also reviewed 45 fundraising calls from White House offices 
     by the Vice President. The Attorney General determined that 
     the calls were meant to raise ``soft money,'' which she said 
     was not covered under the specific terms of the act.
       What has been the reaction to the decision? Critics have 
     focussed less on her analysis of the Pendleton Act, which 
     many consider sound, than on the scope of her investigation. 
     First, critics say she asked the wrong legal question: her 
     focus should have been on the Democratic Party's advertising 
     campaign on behalf of the President, which was funded by 
     ``soft money'' contributions and coordinated with the 
     President. Critics say the President and party leaders 
     intentionally sought to evade the spending caps to which 
     presidential candidates must agree as a condition of 
     receiving federal funds. Others would respond that campaign 
     finance laws in this area are hopelessly ambiguous and that 
     both sides used similar techniques to evade spending limits.
       Second, critics say the Attorney General focused her 
     inquiry too narrowly on potential violations of an obscure 
     and rarely-enforced federal law, rather than on the wider 
     pattern of fundraising abuses, including the use of the 
     White House for fundraising purposes. These critics say 
     the independent counsel law was designed for such 
     sensitive

[[Page E44]]

     and prominent political investigations that cannot be 
     credibly handled by the Attorney General, who is, after 
     all, an appointee of the President. The Attorney General 
     has responded that the independent counsel law should be 
     aimed at specific allegations of wrongdoing, not 
     generalized grievances; otherwise, the independent 
     counsel, who operates with broad powers and an unlimited 
     budget, could not be properly constrained in his 
     investigation.
       Conclusions: I agree with the Attorney General's decision 
     not to seek an independent counsel. My chief concern is with 
     the appointment process. The independent counsel, if 
     requested, would be selected by a three-judge panel which has 
     shown a strong bias against the President.
       I have been dissatisfied, however, with the Attorney 
     General's investigation. The campaign finance scandal has 
     created a serious crisis of credibility for the American 
     political system. The Department of Justice investigation has 
     been slow and unimpressive. Serious questions have been 
     raised about the failure to pursue important leads, the FBI 
     director's open disapproval, emphasis on technicalities of 
     the law, and conflicts of interest--all of which haven't been 
     adequately addressed. The answer, I believe, is the 
     appointment by the Attorney General of a special prosecutor, 
     as was done in Watergate. Such a prosecutor, with impeccable 
     credentials, could provide a thorough and impartial review of 
     campaign fundraising abuses by both parties.
       The Attorney General's inquiry also highlights the need for 
     campaign finance reform. Prosecutors will not bring charges 
     unless they have a clear understanding of a law and its 
     sanctions. Here, the campaign finance law, as written by 
     Congress and interpreted by regulators and the courts, is 
     riddled with so many loopholes it is almost unenforceable. We 
     need a law which clearly limits the influence of money in 
     campaigns and provides penalties for violators.

     

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