[Congressional Record Volume 144, Number 8 (Monday, February 9, 1998)]
[Senate]
[Pages S468-S469]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          THE SPECIAL COUNSEL

  Mr. KYL. Mr. President, I think it is time for some of us in the 
Congress, particularly some of us who have spent a lifetime in the 
judicial process, to comment upon what has been occurring in the last 
few days with respect to the special counsel investigating the matter 
of the President and various affairs in which the President may or may 
not have been involved.
  This is a most serious matter and I think the time has come for 
people who believe in the judicial process, who believe in the rule of 
law, and who believe ultimately in our justice system in this country, 
to speak out against those who are deliberately attempting to undermine 
that process. We have something going on today which runs counter to 
the entire history of the United States of America, a country which is 
based upon the rule of law, which has established a three-branch 
Government in which each branch respects the other and in which we 
support each other because we understand that an attack on one of these 
branches is, in effect, an attack on the entire Government.
  We have established certain processes for attempting to deal with 
wrongdoing in our country. One of them is the process of investigating 
potential crimes in high places through the independent counsel 
statute, a statute that has not been without controversy in the past 
but which has been used to probe potential conflicts of interest and 
criminal behavior in each of the last administrations, many times 
resulting in indictments or prosecution.
  I will get back to the point in a moment, but some of us have tried 
to improve the way that statute works. But the way to do that is to do 
it in the legislative process with calm and deliberate debate, to 
ensure that justice in the end is always done.
  What we have today, instead of an effort to look at the independent 
counsel statute to see where it might need to be modified to operate 
more appropriately, we have the same kind of tactic being employed by 
the highest levels of the White House that is employed in typical 
murder or rape or assault cases where the person charged attempts to 
defend himself by attacking the prosecution, by attacking the corrupt 
police, or by attacking the victim's credibility and reputation. That 
is what is happening today by key defenders of the President, including 
the President's lawyer.
  Rather than coming out with the President's version of the facts--and 
he alone knows what the facts are in their entirety, with respect to 
the matters that have been recently carried in the press, the 
administration--rather, his lawyers, have chosen to tell him to keep 
quiet while they attack the judicial process that is underway to try to 
determine the facts and to bring to justice whoever needs to be brought 
to justice. The most recent deliberate attempt here is to specifically 
attack the reputation and credibility and actions of the Special 
Counsel, Judge Kenneth Starr. Judge Starr cannot defend himself because 
he is under orders not to talk about what he is doing. The very thing 
that the President's lawyers accuse him of doing, of talking too much, 
he cannot, and he is not. Someone has to stand up and say the process, 
the judicial process, and the people who are doing their best to make 
that process work, need to be defended.
  I rise today to say it is time to stop attacking Judge Starr publicly 
and in the media. If you have a beef with him, go to his supervisor, in 
this case Attorney General Reno, or to the judges who can determine 
whether or not there is any improper activity within his office. But 
don't use as a defense in the case an attack broadly upon the 
prosecutor and his individual reputation and credibility. Because he 
cannot defend himself.
  I said I had a background in law. I practiced law for 20 years, 
including practice in the United States Supreme Court. One of my law 
partners was a former Solicitor General of the United States, someone 
who, as a matter of fact, was well acquainted with Judge Kenneth Starr, 
who also was a Solicitor General of the United States. That is the 
highest position that a lawyer can achieve in this country with the 
exception of being appointed to the bench or being the Attorney General 
of the United States. He is the Government's lawyer in the Supreme 
Court. That is what Kenneth Starr was. Then he himself was elevated to 
the bench.
  He has had a solid reputation all his life as a moderate, 
intelligent, capable and fair person. But now, because he is 
investigating the President, the President's own lawyer and his attack 
dogs in the media programs have decided to go after the reputation of 
this man who, as I said, can't defend himself. Those of us who have 
spent our careers in the law understand that you cannot undermine the 
law repeatedly and expect to end up having justice in this country. 
That is why lawyers are taught to respect the judiciary and not to 
attack it directly. If you have a complaint, as I said, you go into 
court and try to prove your case. If you can, fine. But if you can't, 
then you should not be talking about it in public.
  What has been happening recently? The President's lawyer, David 
Kendall, and people like Paul Begala, connected to the administration, 
have accused Independent Counsel Judge Starr of leaks. One of the 
things that was done recently is the filing of a letter by David 
Kendall, released to the public on Friday, which makes several bold 
allegations. Let me repeat what some of them are. He says the leaking 
of the past few weeks is ``intolerably unfair.'' He continues, ``These 
leaks make a mockery of the traditional rules of grand jury secrecy.'' 
And who does he attribute the leaks to? He says Mr. Starr's office is 
``out of control. . . . The leaking by [Mr. Starr's office] has reached 
an intolerable point.''
  These are unfair and unfounded accusations and somebody needs to 
respond to them. As I said, Kenneth Starr is very limited in what he 
can say publicly. He did respond in a letter to attorney Kendall and 
what he said in that letter, essentially is as follows. He said, first, 
and I am quoting from his letter to Mr. Kendall:

       First, you elevate mere suspicion to specific accusation 
     without any facts other than the press's often misleading 
     attribution of sources.

  I would make the point that is precisely what administration 
spokesmen are asking us to be careful about doing, and why personally I 
have absolutely refrained from responding to press inquiries about 
whether I believe these charges or do not believe them or what might 
have happened. Because I don't know. All we have is what has been 
reported in the media and I cannot judge whether that is true or not, 
and I should not express it publicly before the process is complete. 
The administration has been urging us to withhold our opinions until we 
do know. Well, I have been abiding by their admonishment, but they have 
not been doing it with respect to Ken Starr. As he says, they have 
``elevated mere suspicion to specific accusation without any facts,'' 
other than what has been reported in the media.


[[Page S469]]


       Second, [Kenneth Starr says] the timing of your letter--
     arriving in the midst of what appears to be an orchestrated 
     plan to deflect and distract this investigation--undermines 
     your expression of outrage.

  Certainly I think anyone would have to agree with that, given the 
fact that it is now an acknowledged fact that the administration has 
been orchestrating a campaign to discredit Ken Starr. I refer you to 
the New York Times newspaper today, Headline, ``President's Aides 
Expand Offensive to Counter Starr. Prosecutors Denounced As Corrupt and 
Accused of Leading a Witch Hunt.'' Somebody has to defend this process.
  The third thing that Mr. Starr said in his letter in response to Mr. 
Kendall was:

       [W]e are aware that as of several days ago, the President's 
     defense attorneys had most if not all of the material 
     information (whether true or not) set forth in [Friday's] New 
     York Times article.

  This had to do with the leaks. In other words, what Judge Starr was 
saying is that the President's own lawyers had talked to the people who 
had testified in the grand jury, at least those people who were 
connected in any way with the administration, and knew what had been 
said in the grand jury. The implication, of course, is that it is the 
White House and its lawyers themselves who could be just as likely the 
leakers as anyone in the special prosecutors office. When a witness 
testifies before the grand jury the witness is not constrained as to 
what he or she can say thereafter. And you have seen some witnesses go 
in, testify, and they come out and talk to the press about what they 
said. So these leaks could be coming from all number of people, from 
the witnesses themselves to the very people in the White House and the 
White House lawyers' group who are complaining about the leaks today.
  In fact, I would suggest it is most unlikely that the source was 
Judge Starr's office.
  He continues:

       In my service as independent counsel, particularly with 
     regard to secrecy of the grand jury, I have insisted on a 
     high commitment to professional conduct. I have expressed 
     this commitment to you repeatedly. From the beginning, I made 
     the prohibition of leaks a principal priority of the office. 
     It is a firing offense, as well as one that leads to criminal 
     prosecution. In the case of each allegation of improper 
     disclosure, we have thoroughly investigated the facts and 
     reminded the staff that leaks are intolerable.

  Then Mr. Starr makes clear he has no reason to suspect anyone in his 
office of leaks after those investigations by saying:

       I have no factual basis, as you likewise do not have, even 
     to suspect anyone at this juncture. You do an extreme 
     disservice to these men and women and to the legal profession 
     and the public by your unsupported charges.

  Mr. President, I agree with Judge Starr that this does a disservice, 
both to the people who are doing their best to uphold the laws of the 
United States and to his effort generally to get at the truth here. He 
is supervised by the Attorney General of the United States, and he is 
supervised by a three-judge court, the members of which have been 
appointed by Presidents Johnson, Nixon and Reagan. If there is any 
wrongdoing, they can see to it that it is stopped and the appropriate 
people punished in whatever way is appropriate. But instead, the White 
House has chosen to make this a media campaign rather than to focus on 
how any leaks might be stopped within the judicial process.
  As a matter of fact, we know, because recently Lucianne Goldberg, one 
of the people who had access to the tapes, disclosed the fact that she 
herself had leaked a lot of this information. She had the tapes from 
Linda Tripp, which were given then to the special prosecutor. So it 
does not follow that simply because leaks occurred that it had to come 
from the special prosecutor's office. Indeed, she herself said, ``I 
told people about this. It wasn't Kenneth Starr.''
  So why then do we have this concerted effort on the part of the 
President's own lawyer to discredit Judge Starr and his investigation? 
The reason ought to be obvious. Do anything you can to undermine the 
prosecution in order to cast discredit upon its efforts so that if 
anything ever comes of the independent counsel's investigation and the 
President actually has evidence presented against him in this matter, 
it will be previously discredited information.
  As I said, I think it is time for those of us who have some respect 
for the judicial process and for this individual himself, Judge Kenneth 
Starr, to make it clear to the American people that the judicial 
process must be respected, must be supported and must be upheld if we 
are to ensure that justice prevails in this country and that it ought 
to discredit the people who are attacking that system if the way in 
which they do it is so clearly designed to affect public opinion, as it 
appears to have been done in this case, rather than to get at the 
facts.
  As I said, there is a process available, if you have evidence that 
someone in the prosecutor's office has engaged in conduct, to take that 
to the appropriate authorities, make your case and have them act in the 
appropriate, responsive fashion. It is not at all certain that that is 
what the administration is attempting to do in this case.
  Let me conclude with this point, Mr. President. I think all of us in 
the Senate are impressed with the awesome responsibility that we have 
under the Constitution to withhold our own independent judgment because 
of the fact that at least, theoretically, there is a potential for an 
impeachment proceeding in any case involving accusations of the type 
that have been made in this case.
  As I said, I have withheld my judgment, because I have no idea 
whether these things are true or not, and I am not going to indicate 
whether I think they are true or not. In fact, I am going to wait 
until, in effect, the information is presented to us, if it ever is. I 
think that others need to make that same commitment. Let's see how the 
facts come out here.
  The same thing should be done with respect to Judge Starr. When 
people say he hasn't produced very much, his investigation has run 
amok, he is leaking, he can't defend himself. We don't know whether any 
of those things are true, and he is owed the same sense of justice that 
the President and anyone else accused is owed; namely, the opportunity 
to present the facts when the process provides that opportunity.
  In due time, Judge Starr will be able to present those facts. At that 
time, we will know precisely what he has. Until then, I think it is 
incumbent upon all responsible people in this process to treat the 
independent counsel as they would treat any other person involved in 
law enforcement or the judicial process, with the respect and the 
dignity that the office carries.
  While I appreciate the fact that defense lawyers will sometimes stoop 
to any tactic to get their client off, it demeans the Office of the 
Presidency in this case for his lawyers to use the same kind of tactics 
that the lowest kind of defense lawyers would use in defending a party 
who is probably guilty of a heinous crime when there is no other 
defense than to attack the victim's credibility or to attack the 
prosecutor.
  That demeans the Office of the Presidency. It is time for this 
administration to treat the prosecutor with the same respect that they 
are demanding to be treated. I think that those of us who believe in 
our rule of law and in the system of justice in this country need to 
stand up and speak out and make that point.
  Mr. President, I thank you for the opportunity to speak to this 
matter this morning.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
West Virginia is recognized to speak for up to 20 minutes. The Senator 
from West Virginia is recognized.
  Mr. BYRD. I thank the Chair. I may or may not need all of the 20 
minutes, Mr. President. I ask unanimous consent that Mr. Gramm of Texas 
be recognized for not to exceed 10 minutes following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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