[Congressional Record Volume 144, Number 18 (Monday, March 2, 1998)]
[Senate]
[Pages S1195-S1197]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    THE ESCALATING WAR BETWEEN THE PRESIDENT AND INDEPENDENT COUNSEL

  Mr. SPECTER. Madam President, I now seek to discuss, or comment, on 
the escalating war between the President and independent counsel and to 
urge the independent counsel to reply forcefully in the public forum to 
attacks, as opposed to the use of the grand jury as a means of 
investigating the people who are proposing and undertaking those 
attacks. My own sense is that independent counsel would be well advised 
to reply to his critics in a public forum, and by that I do not mean in 
his driveway in the morning, but, when criticized, to reply. I have had 
some experience as a prosecutor running grand jury investigations, and 
it is an inevitable consequence that, when someone is under 
investigation, that person, persons or entity, will not like the 
investigation. I think it would be enormously useful if the American 
people knew, for example, why Mr. Starr is in the investigation on 
President Clinton's personal affairs.
  People ask the question, how did he move from the investigation of an 
Arkansas land deal, where he has been engaged for many years at very 
substantial cost, over to the investigation of the President on his 
personal matters? There is a very direct answer, but one which I think 
very few people know. That is that Attorney General Reno asked Mr. 
Starr to conduct this investigation. That request was made by the 
Attorney General about 6 weeks ago. We all know that Attorney General 
Reno is very reluctant to authorize investigations by independent 
counsel, with many of us having urged her to do so on campaign finance 
reform to no avail. So, when Attorney General Reno authorizes an 
investigation, there is a good indication that it is for a very, very 
strong cause. But people do not know that Mr. Starr got into this 
matter in relation to his authorized investigation of Webster Hubbell. 
And information came to Mr. Starr from Linda Tripp about an effort to 
secure employment for Ms. Monica Lewinsky under circumstances identical 
for Webb Hubbell, with the allegation being, and the inference being, 
that it was hush money for Webster Hubbell.
  Linda Tripp came to Mr. Starr and Mr. Starr knew Ms. Tripp from his 
previous contacts with her when she was a witness in the Foster suicide 
and on Filegate. Ms. Tripp told Mr. Starr that Ms. Lewinsky had stated 
that a given individual had sought employment for Ms. Lewinsky outside 
of Washington, DC, with a specific firm, and that happened to be an 
identical firm--an identical individual who had made similar 
arrangements for Mr. Hubbell.
  Mr. Starr then put a consensual electronic surveillance on Ms. Tripp, 
that is, consensual by Ms. Tripp. And Mr. Starr has been continually 
criticized for having conducted an unlawful electronic surveillance as 
recently as yesterday's TV talk shows. The fact of the matter is, Mr. 
Starr ought to make this point and ought to make it emphatically, that 
the one-party consent to the electronic surveillance was perfectly 
lawful under the law of Virginia where it took place.

  After the electronic surveillance confirmed for Mr. Starr what Ms. 
Tripp said, Mr. Starr then took the matter to the Public Integrity 
Section of the Department of Justice and said, here is the evidence. 
There are a number of alternatives. One is the Justice Department can 
handle the matter itself. Second, the Justice Department can seek other 
independent counsel. Or, third, the Justice Department could refer, Mr. 
Starr recounts, to Mr. Starr. The matter was then taken to Attorney 
General Reno, who said it was her decision to authorize Mr. Starr to 
conduct further investigation related to the Ms. Monica Lewinsky 
matter, and that was then confirmed by the three-judge court which 
authorizes Mr. Starr's conduct.
  Now, at that time, obviously, Attorney General Reno knew about the 
electronic surveillance and, in asking Mr. Starr to conduct the 
investigation, there was, I think, fairly stated, more than implicit 
approval of what Mr. Starr had done, but really explicit approval of 
what Mr. Starr had done.
  There has been very, very substantial comment on the question of 
executive privilege. And, in looking at the news media reports on 
comments about this legal issue, they appear, really, to be authored by 
people who are advocates for the President's position. The law on 
executive privilege is well established, has been since the case of 
United States v. Nixon, 418 U.S. 683, and it applies, as outlined by 
the Supreme Court of the United States on page 706 of U.S. Reports, 
volume 418, executive privilege applies to ``protect military, 
diplomatic or sensitive national security secrets.'' Well, there is 
nothing of that nature involved in the investigation of the President's 
personal activities. Executive privilege applies to matters which are 
carried out by the Executive in his official capacity, again, not in 
his personal capacity.
  There have been commentaries on the issue of the lawyer-client 
privilege as it would apply to a number of witnesses now appearing 
before the grand jury, and the speculation is that it is on Mr. Bruce 
Lindsey. Just as the claim of executive privilege might be applied to 
Mr. Bruce Lindsey, or perhaps to Mr. Blumenthal, we are not really 
sure, but there is very strong legal authority in a case decided by the 
Eighth Circuit Court of Appeals handed down on May 2, In re--Grand Jury 
Subpoena Decus Tecum, 112 F.3d 910. This is part of the controversy and 
contest between the White House and Mr. Starr--this case lays out, at 
page 920 of 112 Federal Reporter on the Third Series: Executive branch 
employees, including attorneys, are under a statutory duty to report 
criminal wrongdoing by other employees to the Attorney General.
  Mr. Lindsey, who is an attorney, can hardly be in an attorney-client 
relationship to the President when he is a governmental employee. The 
court goes on to point out that the way a person retains a lawyer to 
have the attorney-client privilege is a very direct way, and that is 
the person retains his own counsel and not looking to a governmental 
employee to be the counsel. A governmental employee like Mr. Lindsey or 
other attorneys have their fiduciary obligation running to the 
Government of the United States. It does not run to anyone else with 
whom they have contact, even the President of the United States. The 
express statutory authority set out in 28 U.S.C, section 535(b) 
establishes the obligation of any governmental employee, including 
attorneys, to report evidence of wrongdoing to the Attorney General of 
the United States.
  The way these matters are commented upon on the talk shows and in the 
press and in the media, it appears that there is some strong ground to 
assert executive privilege. To call it frivolous would be elevating it 
to a higher level than it deserves. It is absolutely, positively a 
stalling tack, nothing more and nothing less. It could not possibly 
apply. Some may argue that the Eighth Circuit opinion is not binding on 
the U.S. District Court for the District of Columbia, but those who 
have referred to it in the media make the suggestion that it applies 
only in St. Louis. The fact of the matter is that it's a Circuit court 
opinion, it is very persuasive, and there is no authority to the 
contrary. It is based

[[Page S1196]]

upon a principle of law which is hard to dispute, and that is that an 
attorney employed by the Government and paid by the Government owes a 
duty to the Government and has a statutory duty to report crime to the 
Attorney General, not to another governmental employee, even the 
President of the United States, who happens to employ him.

  So we have a series of events where there is a very, very strong 
proposition that what is being undertaken here in this war, this 
escalating war between the President and independent counsel, really 
talks about legal propositions which are spurious and frivolous at 
best. It would be my hope that the independent counsel would respond to 
the President in the public news media. I know that prosecutors who are 
investigating cases do not like to disclose what is going on in a 
pending prosecution, and there are good reasons as a general matter for 
investigators or prosecutors on an investigative matter not to make 
disclosures but to keep those matters confidential. But when those 
prosecutors conducting these investigations are attacked in the public 
news media, there is absolute justification for a response.
  I believe that Mr. Starr made a mistake when he called people before 
the grand jury last week such as Mr. Blumenthal, in giving Mr. 
Blumenthal a platform. I made mistakes myself when I was District 
Attorney of Philadelphia. I made some in the U.S. Senate. And just 
because Mr. Starr made a mistake does not mean that he is disqualified 
from carrying on as independent counsel. It does not mean that he ought 
to resign, as some Members of the other side of the aisle have 
suggested. The fact is that the Attorney General of the United States 
has the authority, under the independent counsel statute, to remove Mr. 
Starr for cause, and the President has the authority, through the 
Attorney General, to remove Mr. Starr for cause. We have already gone 
through that once in our Nation's history under a circumstance, the so-
called Saturday Night Massacre. But if Mr. Starr is doing things which 
require his discontinuance in office, that can be handled by the 
Attorney General. And no suggestion has been made that he ought to be 
removed. Nor do I think there is any basis for saying that.
  When Mr. Starr has found his assistants under attack, it is 
understandable that there would be a very strong reaction.
  Two of his assistants were attacked, one a Mr. Emmick. The 
information was spread broadly in the news media that an assistant 
independent counsel, Mr. Emmick, was criticized by a judge for using 
``threats, deceit, and harassment to get testimony in a 1994 police 
corruption case.'' But the fact of the matter is that the court 
transcript showed that the ``threats, deceit, and harassment'' had been 
directed at another Federal prosecutor in Los Angeles, and the same 
judge called Mr. Emmick ``a man of integrity'' at a hearing a year 
later.
  These matters do not come out. I think that what Mr. Starr has to do 
is make a very forceful defense of his assistants.
  Similarly, an associate independent counsel, a Mr. Udolf, had been 
reputedly fined some $50,000 in a Georgia civil proceeding for 
violating the civil rights of someone who was wrongfully held in jail 
for 4 days in 1985. But others have come to his defense. The retired 
Federal chief judge, Judge A. R. Kenyon, said that Mr. Udolf ``was very 
sensitive and always had compassion for people even though he had to 
prosecute them.''
  The point is that there are going to be criticisms, and in the course 
of a legal career, prosecuting attorneys may be censured, and the 
nature of a criminal proceeding very frequently is very highly charged, 
very emotional, a lot of things are said by both sides with frequently 
considerable provocation. But whatever is said, it is my view that Mr. 
Starr ought to respond in a public contest and ought to do it very, 
very promptly, again, without resorting to the matter of the grand jury 
to bring people in there.
  The stepped-up attacks on Mr. Starr may carry the suggestion that he 
is getting closer. Dick Morris observed last week that the testimony of 
former Arkansas Governor Jim Guy Tucker might prove to be very, very 
significant, perhaps decisive in the Arkansas land deal. I do not know 
whether that is true or not, but I do know that if you take a look at 
the chronology of events which lasted for years before Mr. Starr could 
bring former Governor Tucker to trial, it was a long, tough road which 
took a very protracted period of time, including overturning a judgment 
where an Arkansas Federal judge dismissed the indictment, the 
indictment later being reinstated by the court of appeals, and the 
court of appeals even granting the independent counsel motion to have 
that judge removed from the case.
  So where you have a protracted period of time and very considerable 
money spent, it is relevant to note what has happened in the matter, 
these facts really not being known at all by the public and not being 
known by me unless I take a look to see exactly what is going on behind 
the veil.
  When Attorney General Reno appointed Mr. Starr to expand the 
jurisdiction to cover the President's personal activities, I made a 
comment that was widely misinterpreted and widely misconstrued. I said 
2 weeks ago that Attorney General Reno had erred in appointing Mr. 
Starr because people would not understand what he was doing in that 
case in light of the fact that he started off a long time before in the 
Arkansas land deal and that it was unfortunate because Mr. Starr has 
become a lightning rod.
  No longer is there a focus of attention on what President Clinton has 
done, and he is, allegedly, supposedly the object of the investigation, 
but the attention has been focused only on Mr. Starr. I do not believe 
that Attorney General Reno had in mind when she appointed Mr. Starr 
that the appointment would prove to be such a formidable public 
relations defense for the President, directing attention away from the 
President as the focus of the investigation to Mr. Starr. But that is 
certainly what has happened. It is in no way a criticism of Mr. Starr 
that the Attorney General asked him to take over the investigation and 
that he has become a lightning rod.
  That is where we find this matter. I believe the lightning rod has to 
exchange and reply in kind, and if it calls for lightening, so be it.
  I went to high school in a small town in Russell, KS--Russell High 
School, which had a football team known as the Broncos. There is 
another football team not too far from Russell called the Broncos, the 
Denver Broncos, who were the Super Bowl champions. When I look at this 
battle, this war being waged with the President, on one hand, and the 
independent counsel on another, I analogize it to a football game 
between the Broncos who are the Super Bowl champs and the Broncos from 
my old high school football team.

  If the playing field is to be leveled to any significant extent at 
all, I believe that Mr. Starr has to respond. The appropriate way to 
respond is exactly when these criticisms are made.
  It is my hope and my understanding that Mr. Starr is not going to 
pursue the business of calling his critics before the grand jury. I 
think Mr. Starr, a former Federal judge, a former solicitor general, 
knows better than to argue that the first amendment is only for 
articulating the truth. Who knows what the truth is when you have a 
controversy, or who knows what the eye of the beholder is as to what 
the truth is? The first amendment is to protect freedom of speech. You 
cannot get involved in limiting it to who is telling the truth or it 
would be a never, ever ending controversy.
  I hope that we will put this war between the President and the 
independent counsel on the back burner. I hope that we will presume the 
President to be innocent and that we will presume Mr. Starr to be 
innocent and to let the investigation go forward until it is concluded 
so that the President and the rest of us can focus our attention on the 
important items facing the country, like this important legislation, 
ISTEA, on the infrastructure spending of America for the next 6 years; 
on the enormous problems we are facing in Iraq; on the problems we are 
facing in balancing the budget and how to handle the $1.7 trillion 
funding which we now have to apply to America's problems.
  But if the debate is to rage and if it is to continue, it is my hope 
that the grand jury will not be the place where Mr. Starr's critics 
come, but that he

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will engage in forceful, lusty debate and express himself and answer 
his critics and let the chips fall where they may.
  I thank the Chair, yield the floor and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. THOMAS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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