[Congressional Record Volume 144, Number 47 (Friday, April 24, 1998)]
[Senate]
[Pages S3581-S3582]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          STARR INVESTIGATION

  Mr. DeWINE. Mr. President, I have, with few exceptions, been very 
careful not to comment about the ongoing investigation, the Starr 
investigation, the independent investigation--however you want to 
characterize it. I have refrained from doing that for many reasons.
  I want to speak this afternoon about a very limited aspect of that 
investigation. I speak as a former county prosecuting attorney. I 
bring, I guess, to the Senate floor today that particular perspective. 
This past week, there have been news stories--and again I emphasize 
``news stories;'' we don't know whether it is true or not true--news 
stories about the possible subpoena into the grand jury here in 
Washington of Secret Service agents. That has been the report.
  Before I go any further, let me say I don't know what the facts are. 
I don't know whether that is true or not true; nor do I know what the 
facts are underlying this investigation; nor do I know what Mr. Starr 
and his prosecutors have uncovered so far; nor, obviously, do I know 
what has occurred inside the grand jury. So my comments have to be 
qualified, and that fact has to be taken into consideration. My 
comments must be understood in that light, and they are given in that 
light.
  Former President Bush was quoted in the Washington Post in what was 
described as a private letter--it was in the Washington Post of 
Thursday, April 23, yesterday. This was a letter that apparently was 
privately sent to, directly to, the Secret Service Director, Lewis C. 
Merletti. And the Washington Post quotes the letter from former 
President Bush as saying, in part, the following: ```I can tell you, 
sir, that I am deeply troubled by the allegations swirling around there 
in Washington and what all this might do to the office I was so proud 
to hold,'' Bush wrote Merletti.

  Continuing the quote: ``Regardless of all that, I feel very strongly 
that the United States Secret Service agent should not be made to 
appear in court to discuss that which they might or might not have seen 
or heard.''
  Mr. President, I hope that this issue about the potential subpoenaing 
of Secret Service agents into a grand jury, if it's true, to testify 
about things they observed involving the President of the United States 
would be resolved not in the courts and not by legislation. As a former 
prosecutor, I hope that this matter will be resolved by the sound, good 
judgment of the special prosecutor in this case. It should be resolved 
by the proper use, the measured use, the reasoned use of what we refer 
to as ``prosecutorial discretion.''
  Mr. President, the prosecutor in our system has a unique role. I 
don't know of any other country where the prosecutor has quite this 
distinctive a role. The prosecutor, really, in many respects, is the 
most important player in the criminal justice system. It is because of 
prosecutorial discretion the prosecutor must decide whether the 
evidence that has been gathered is sufficient to even summon a grand 
jury, to even present a case to a grand jury. A prosecutor carries a 
very, very heavy burden. It is a burden that is not carried by the 
defense attorney, whose job it is to present the defense. It is a 
burden that is really not even carried by the judge, who is not the 
principal acting force because, under our system, nothing really 
happens until a prosecutor says it happens. Nothing goes into

[[Page S3582]]

play, so to speak. The game doesn't start until the prosecutor makes 
that decision. So the burden on the prosecutor of summoning people to a 
grand jury, of asking a grand jury to indict someone is an awesome, 
awesome responsibility.
  Let me talk for a moment--and again, I am talking in the abstract 
without all of the information. At least from this Senator's 
perspective, I can express my point of view as to how I hope and expect 
that prosecutorial discretion to be exercised in a very unique 
situation when we are dealing with the Secret Service that is sworn to 
protect the lives of the President of the United States and his family 
and when we are dealing with the President of the United States. 
Frankly, I am not concerned about an individual President; I am 
concerned about the office, and I am concerned about what precedent we 
may or may not be in the process of setting.
  It seems to me that some reasonable standards would be as follows:
  If the prosecutor has reasonable belief and reasonable evidence to 
indicate that a Secret Service agent has seen a direct violation of 
criminal law, then I think it is clearly correct that that Secret 
Service agent should be questioned, and it's clearly correct that that 
Secret Service agent should be brought into the grand jury. If a Secret 
Service agent, it is alleged, is credible enough that the prosecutor 
believes that person should be called in and that he or she, as an 
agent, has seen in the course of duties, or outside of the course of 
duties, a direct violation of criminal law, I would find it very 
difficult to make any kind of case that that person should not be 
brought in and questioned and should not be compelled to testify in 
front of a grand jury.
  However, short of that set of facts, I believe there must be a 
compelling reason to subpoena a Secret Service agent into a grand jury 
on facts less than that. I think the reason for this, Mr. President, 
and the reason for my statement and the reason for this rationale is 
very obvious. Again, we are not so concerned, really, about one 
President. What we ought to be concerned about, however, is the 
precedent. We should not worry about what is in the best interest of a 
particular President, but we should be very much concerned about what 
is in the best interest of our country. We look to the Secret Service 
to protect the President of the United States. It is not just in the 
President's interest that the President be protected; it is obviously 
in our national interest that the best security precautions be taken to 
protect our President and his family.
  If the President has to be concerned about the Secret Service being 
called in to a grand jury for less than compelling reasons, I think the 
consequences are not good. I think you could make a very legitimate 
argument that that would, in fact, intrude on the very special 
relationship that we expect the Secret Service agents to have with the 
President of the United States. Again, I do not know the facts of this 
case, but I think it is important, and I felt compelled, frankly, to 
outline on the floor today at least what this Member of the Senate, as 
a former prosecutor, thinks the proper use of prosecutorial discretion 
would indicate. It is a very high standard. It is a very awesome 
responsibility. It is a sacred trust. Whether it be in Greene County, 
OH, where I prosecuted cases, or whether he be the independent counsel 
appointed to look into allegations about the President of the United 
States, we expect the same standard, we expect the same discretion, and 
we expect the same responsibility.
  In summary, in my opinion, if there has been evidence, substantial 
allegations, credible allegations that the Secret Service has seen 
something criminal, I have no problem; in fact, they should be brought 
into a grand jury to help in the investigation. Short of that, there 
should be a compelling reason for that person to be subpoenaed by the 
prosecutor. It is difficult to write legislation to deal with this. It 
is difficult for the courts to make decisions in regard to this. 
Frankly, the best person to make that decision is the independent 
counsel. We should expect a great deal of discretion, a great deal of 
good, common sense and judgment to be exercised by the independent 
counsel before he or she exercises the awesome responsibility of 
subpoenaing someone into the grand jury, particularly when we might be 
dealing with a Secret Service agent who would be testifying about what 
he or she overheard in connection with the President of the United 
States.

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