[Congressional Record Volume 144, Number 79 (Wednesday, June 17, 1998)]
[Senate]
[Pages S6436-S6437]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          INDEPENDENT COUNSEL

  Mr. TORRICELLI. Mr. President, during the course of the last year as 
a member of the Judiciary Committee and the Governmental Affairs 
Committee, I have felt that part of my responsibilities are to follow 
the investigation of independent counsel Kenneth Starr in some 
particular detail.

  I, like many Americans during the course of this last year, have been 
troubled about Mr. Starr's investigation and the sensitivity to the 
rights of individual Americans in any sense of balance or fairness with 
which he is pursuing his responsibilities. During the course of this 
year, I have, on six different occasions, written to Attorney General 
Reno, noting problems with the investigation or particular areas of 
concern. These have included possible conflicts of interest on the part 
of Mr. Starr and his deputy, Mr. Ewing, and that Mr. Starr continues to 
draw a salary from his law firm in excess of $1 million--a law firm 
that represents important interests, including tobacco companies whose 
future interests may be at variance with policy positions of the 
Clinton administration while Mr. Starr is investigating President 
Clinton.
  Second, Mr. Starr's association with people and organizations that 
appear intent on discrediting President Clinton. These, of course, 
would include Mr. Scaife, Mr. Starr's association with Pepperdine 
University, his promise of employment while being funded by an 
individual who is committed to the destruction of President Clinton 
personally and politically.
  Third, the question of possible witness tampering. This, Mr. 
President, goes to the question of allegations of payments to David 
Hale by individuals associated with some of these organizations that 
may have undermined the credibility of testimony given in the 
Whitewater investigation.
  All these issues for the moment aside, each individually troubling, 
we are now confronted with a new and potentially more serious question, 
and that is the apparently purposeful releasing, or to use the 
vernacular, ``the leaking,'' of the sensitive nonpublic and possible 
grand jury information by Mr. Starr and his associates. During this 
investigation, various newspapers and television accounts have 
repeatedly used ``unnamed sources'' to report information that made it 
appear likely, if unmistakable, that the Office of Independent Counsel 
was providing information to reporters that was otherwise protected as 
a matter of law, if not just department policy.
  Now in an exhaustively detailed account, a new publication, Brill's 
Content, has reviewed the independent counsel investigation of the 
President and found clear and unmistakable evidence that Mr. Starr and 
his associates have purposefully leaked information about the 
investigation of President Clinton. If these reports are true, Mr. 
Starr's activities are not only a violation of the ethical standards of 
the legal profession, they are a direct possible violation of rule 6E 
of the Federal Rules of Criminal Procedure and an obvious violation of 
Department of Justice guidelines.
  This leaking would obviously have been objectionable if undertaken by 
an individual U.S. attorney or another Department of Justice official. 
The precedence of the Department of Justice almost certainly would have 
led to an investigation by the Office of Professional Responsibility 
with sanctions or firing by the individual responsible. But undertaken 
by someone in the Office of Independent Counsel, it is, in my judgment, 
an offense of a far greater nature because the independent counsel has 
been given unparalleled, even unprecedented powers, to investigate the 
President of the United States without much of the oversight and 
accountability that is required of career prosecutors or others in the 
Justice Department itself.
  It obviously poses a direct and fundamental threat to the credibility 
and effectiveness of the Office of Independent Counsel. Before this 
goes any further and the Office of Independent Counsel and the statute 
upon which it rests is further undermined, there is an obvious and 
overwhelming need for either the Federal courts, in their direct 
responsibility to oversee this investigation, or Attorney General Reno 
in her responsibility in the administration of the Department of 
Justice, to undertake an immediate and thorough investigation of the 
Office of Independent Counsel, because if these allegations that 
Kenneth Starr is leaking protected grand jury information are true, 
then the Office of Independent Counsel is spinning seriously out of 
control and operating outside of the law.
  Mr. President, the evidence today, if not conclusive, is 
overwhelming. On February 6, 1998, David Kendall, the President's 
personal attorney, wrote a

[[Page S6437]]

15-page letter to the Federal district court detailing dozens of 
instances of obviously improper disclosure of grand jury information.
  In response, Mr. Starr told numerous media outlets that these leaks 
were not coming from anyone in his office. In a letter to Mr. Kendall, 
Mr. Starr wrote, ``From the beginning, I have made the prohibition of 
leaks a principal priority of the office.'' Starr continued, ``It is a 
firing offense, as well as one that will lead to criminal 
prosecution.'' Mr. Starr continues, ``I have undertaken an 
investigation to determine whether, despite my persistent admonition, 
someone in this office may be culpable.''
  Despite calls from the Department of Justice and the Office of 
Professional Responsibility to investigate, the Attorney General of the 
United States, Ms. Reno took Kenneth Starr at his word and allowed him 
to proceed with an internal investigation of his own office. Although 
Mr. Starr pledged to end these leaks and investigate any wrongdoing, it 
is obvious that he neither investigated nor changed the conduct of his 
office, or as now we know, even himself.
  This week, Steven Brill in his magazine Content provided even further 
evidence of these transgressions. Mr. Brill reports that he has 
personally seen internal memoranda from 3 different national news 
organizations that cite Mr. Starr's office as the source of many of 
these stories of grand jury leaks.
  He discloses an internal publication of the New York Times, in which 
its Washington editor is quoted as saying, ``This story was very much 
driven in the beginning on sensitive information that was coming out of 
the prosecutor's office. And the sourcing had to be vague because it 
was * * * given with the understanding that it would not be sourced.''
  But if this sourcing, this reporting and analysis was not enough, 
these disclosures have been confirmed directly by Mr. Starr himself.
  On April 15 of this year, Brill reports that Starr acknowledged that 
he and his office have provided non-public information to reporters. 
Mr. Starr said, ``I have talked with reporters on background on some 
occasions, but Jackie [Bennett, his deputy] has been the primary person 
involved in that. He has spent much of his time talking to individual 
reporters.''
  Mr. President, in his statement, Mr. Starr confirms what many of us 
have suspected all along: the Office of Independent Counsel has not 
only violated department guidelines on providing information, but it 
may have violated Rule 6E of the Federal Rules of Criminal Procedure, 
and committed a criminal offense in its own investigation.
  Mr. President, I need not remind my colleagues of the seriousness of 
this possible criminal offense by Mr. Starr's office.
  It has been a founding principle of Anglo-American law that 
confidentiality of grand jury investigations is central to the 
administration of justice.
  Mr. Starr has defended his media leaks by saying they were not a Rule 
6E violation. He says, ``* * * if you are talking about what witnesses 
tell FBI agents or us before they testify before the grand jury or 
about related matters,'' they are not violations.

  Mr. President, Mr. Starr's defense may be that he violated the 
spirit, but not the letter of the law. Tragically, Mr. President, that 
is not the case under the precedents of this country.
  On May 5, 1998, in In Re: Motions of Dow Jones and Company, the Court 
of Appeals of the District of Columbia--the court which, ironically, 
has jurisdiction over Mr. Starr's current grand jury investigation--
ruled that leaking information about prospective witnesses who might 
testify at a grand jury, about expected testimony, about negotiations 
regarding possible immunity, and about the strategy of grand jury 
proceedings, all violate Rule 6E.
  The court wrote, ``Matters occurring before the grand jury'' that 
cannot be disclosed ``* * * include not only what has occurred and what 
is occurring, but what also is likely to occur.''
  What is therefore so shocking about Mr. Starr's own defense of his 
activities, his disclosures, is not that there is a precedent to the 
contrary to which one can be referred, it is that Mr. Starr himself is 
fully aware of this restriction. They are in the law. He knows them and 
he violated them.
  In one of his impromptu sidewalk press conferences, held February 5 
of this year, Mr. Starr told reporters that he could not talk ``* * * 
about the status of someone who might be a witness [because] that goes 
to the heart of the grand jury process.''
  Exactly, Mr. Starr. Disclosing potential testimony, likely testimony 
of someone who might appear before a grand jury, is not outside the 
Federal statute or its precedence; in your own words, Mr. Starr, it 
goes to the heart of the process and the protection afforded citizens 
of this country. There is a reason. This being a Nation that is ruled 
under the precedence of law, there is a reason why this Congress, the 
Justice Department, and the courts have protected grand jury 
information.
  If Mr. Starr's violation goes unanswered and he is not held 
accountable, there are consequences for all Americans, in all 
investigations, by all prosecutors, in all years to follow, because 
without it we could not guarantee that witnesses would ever feel free 
to disclose information to an investigator. They would live in fear 
that it would always potentially be disclosed. We could not ensure that 
grand jurors would be able to deliberate free from the influence of 
interested parties who would manipulate their investigation in public 
debate. We could not preserve the reputation of witnesses called before 
the grand jury, but found not guilty of any crime.
  Mr. Starr's activities are not simply a violation of the rights of 
President Clinton or grand jury witnesses, they are a violation of the 
administration of justice in this country.
  Mr. President, all crimes in the United States are not equal or 
serious. But crimes committed by Government in the administration of 
justice against individual Americans, given the vast and enormous and 
disparate power of Government in the administration of justice can be 
the most serious crime of all. It is that to which Mr. Starr stands 
accused today.
  Mr. President, I do not know how Attorney General Janet Reno is 
dealing with these allegations. One can only imagine, because when the 
public debate began about possible grand jury leaks and the violations 
of Federal criminal statutes with regard to disclosing information, Mr. 
Starr stood silent. He permitted the Attorney General of the United 
States to allow him to proceed with an internal investigation of these 
grand jury leaks of his own office when all the time he knew that he 
was the source of some of the leaks, potentially undermining not only 
public confidence in the investigation but almost assuredly the 
confidence of the Attorney General herself.
  Mr. President, I don't know what Janet Reno is thinking. But Kenneth 
Starr made a fool of the Attorney General of the United States having 
her proceed with Mr. Starr investigating his own transgressions.
  This maneuvering, however, to many in this institution will not come 
as a surprise. The problems with the independent counsel have been 
coming for some time, and, indeed, almost incredibly Justice Scalia 
predicted in his dissent in Morrison v. Olson exactly what has now 
occurred.
  A prosecutor so focused on one suspect under the laws of the 
independent counsel would, and he wrote, and I quote, ``What would 
normally be regarded as a technical violation * * * may in his or her 
world assume the proportions of an indictable offense.''
  Mr. President, this is exactly what has occurred. Mr. Starr has been 
transformed from one who is supposed to be an objective prosecutor into 
a partisan political actor without oversight from the Department of 
Justice, control of the Federal courts, and no longer even operating 
within Federal law.
  Mr. President, I call upon my colleagues to join me in urging the 
Attorney General to once again assume her lawful responsibilities in 
the administration of justice, recognizing that the Office of 
Independent Counsel cannot operate outside of Federal law. Mr. 
President, it is high time at last to restore the credibility of this 
investigation.

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