[Congressional Record Volume 144, Number 114 (Wednesday, September 2, 1998)]
[Senate]
[Pages S9869-S9872]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




THE APPLICATION OF THE INDEPENDENT COUNSEL STATUTE TO THE CLINTON/GORE/
                      DNC CAMPAIGN FINANCE SCANDAL

  Mr. HATCH. Mr. President, the last several weeks leading up to the 
end of a Congress are always a pressure packed time and a challenging 
time for all Members of this body. This fall, of course, is no 
exception. Given the legislative challenges we face, I would prefer 
that the Judiciary Committee's and the Senate's efforts stay focused 
exclusively on completing remaining legislative and appropriations 
items. Unfortunately, the Attorney General of the United States, Janet 
Reno, has diverted our attention from those issues we would all prefer 
to be working on because of her continued refusal to do what the law 
compels her: request the appointment of an independent counsel to 
conduct the investigation of the fundraising activities surrounding the 
1996 reelection campaign. I thank my ranking member on the Senate 
Judiciary Committee, Senator Leahy, for being willing to meet with me 
and Attorney General Reno and others for almost 3 hours this morning 
and into the afternoon.
  We met along with top officials and staff of the Justice Department, 
including Deputy Attorney General Holder, Criminal Division Director 
James Robinson, Former Task Force head Charles LaBella, FBI Task Force 
lead agent James DeSarno, Public Integrity head Lee Radek, along with 
House Judiciary Chairman Hyde, House Government Reform and Oversight 
Chairman Burton, and Ranking Member Waxman, having invited the Ranking 
Member John Conyers as well who could not attend the meeting, regarding 
the campaign finance investigation and the application of the 
independent counsel statute to this widespread and dangerous scandal.
  I had requested this meeting in late July after the existence of the 
so-called LaBella memorandum had come to light. In that memo, Mr. 
LaBella, her handpicked lead investigator with the most extensive 
knowledge of the facts of this scandal, concluded that the facts and 
law dictated that a broad independent counsel be appointed to 
investigate campaign finance abuses by the 1996 Clinton/Gore reelection 
campaign, the Clinton administration, and the Democratic National 
Committee. This memo came several months after a similar written 
conclusion made by the Director of the Federal Bureau of Investigation, 
Louis Freeh.
  Under federal law, the Attorney General must apply to the special 
division of the Court of Appeals for the D.C. Circuit for appointment 
of an independent counsel whenever, after completion of a preliminary 
investigation, she finds that a conflict of interest exists or when she 
finds specific and credible information that a high-ranking official 
included in a specific category of individuals within the executive 
branch may have violated federal law. The appointment of an independent 
counsel is a serious matter and one which the Attorney General should 
only initiate when necessary.
  Yet, more than one and a half years ago, all ten Republicans on the 
Judiciary Committee felt the time had come to request such an 
appointment. We sent a letter to the Attorney General, as we are 
authorized to do by the independent counsel statute, requesting that 
she make an application for an independent counsel and demonstrating 
the evidence which requires such an application concerning the campaign 
finance scandal.
  I must confess, as I did then, to a degree of frustration with the 
Independent Counsel Act. Did I appreciate having to send our letter? 
Certainly not.

[[Page S9870]]

 Do I believe that changes need to be made to the Independent Counsel 
Act? Yes. Yet, the Independent Counsel Act is the law of the land and, 
notwithstanding its relative flaws, we on the Judiciary Committee and 
even a stubborn Attorney General have an obligation to abide by it. 
That issue was the primary focus of today's meeting.
  In addition, the Department and my House colleagues asked me to 
broaden the focus of today's meeting to include a review of the LaBella 
memorandum. I agreed to this additional focus in order to work toward a 
reasonable resolution of the ongoing contempt dispute between Attorney 
General Reno and the House Committee on Governmental Reform and 
Oversight concerning the Attorney General's refusal to produce this 
document.
  I had hoped that today's meeting might allay my concerns that the 
Attorney General is flouting both the independent counsel law and the 
Congress in its legitimate oversight function. Unfortunately, only some 
of my concerns were addressed satisfactorily.
  On the contempt issue, I believe that Chairman Burton generally 
concluded that today's review of the partially-redacted memoranda is a 
solid first step towards a reasonable resolution of the dispute. It is 
clear that we will need to have followup discussions with the 
Department as to some of the redactions, but it appears that the 
contempt crisis possibly may be averted. I congratulate Chairman 
Burton, Ranking Member Waxman, Chairman Hyde, and the Attorney General 
for striving towards an accommodation, and I am pleased that our 
meeting had this positive outcome.
  We are not yet there, and it is a decision that only the House can 
make. But I have to say I think we made a very important first step, 
hopefully the final step, and towards a positive outcome here.
  I should point out, however, that approximately 60-70% of the LaBella 
memo was redacted on the alleged grounds that it discussed material 
protected under Rule 6(e), and nobody should conclude that the Attorney 
General has made a complete disclosure to the Congress.
  However, on the larger and more significant issue of the appointment 
of an independent counsel, I cannot announce similar progress. After 
reviewing redacted versions of the memos prepared by Mr. LaBella and 
Director Freeh, it is clear that both gentlemen have advanced strong, 
convincing arguments in support of a broad-based independent counsel. 
Importantly, when I asked the Attorney General and her top advisors why 
those recommendations have, thus far, been rejected, the answers I 
received were vague, insufficient, or unconvincing.
  I have urged Attorney General Reno to appoint a broad-based 
independent counsel for campaign finance for well over a year. In fact, 
these events have gone on for well over 2 years. I have written the 
Attorney General numerous times to demonstrate how she is misapplying 
and misunderstanding the independent counsel law. The law allows her to 
appoint an independent counsel if she has information that a crime 
may--that is the pivotal word, ``may''--have been committed, but she 
has read the law as requiring that the evidence shows without a doubt 
that a crime has been committed. This standard is way too high. By 
setting up these legal standards, she basically has required that a 
smoking gun walk in the doors of Justice Department before she will do 
anything.
  I believe she is reexamining that issue. She has promised us to 
reexamine it. She has promised to look into this one final time, and I 
hope with all my heart she is doing so in good faith, and I will give 
her the benefit of the doubt that she is.
  But, as has been widely reported, numerous individual investigations 
are being handled by the task force. We found out again today that is 
true. The LaBella memorandum talked in terms of literally dozens of 
independent investigations in which he was involved. Yet, the task 
force has reportedly never conducted an investigation or inquiry into 
the entire campaign finance matter in order to determine if there 
exists specific and credible information warranting the triggering of 
the independent counsel statute. Indeed, as has been reported, the task 
force has been utilizing a higher threshold of evidence when evaluating 
allegations that may implicate the Independent Counsel Act or White 
House personnel.
  It has been argued that this different legal standard being applied 
to the campaign finance investigation has had the result of keeping the 
investigation of White House personnel out of the reach of the 
Independent Counsel Act. Today's briefing failed to respond to or put 
to rest any of these longstanding charges.
  I have admired the courage of FBI Director Freeh and lead 
investigator LaBella in discussing, within applicable rules, their 
views on these important issues. They made it clear that the 
independent counsel is required under the law, that there are no legal 
arguments for the Attorney General to hide behind. Director Freeh 
stated that covered White House persons are at the heart of the 
investigation. Investigator LaBella said there was a core group of 
individuals at the White House and the Clinton campaign involved in 
illegal fundraising. That should be the end of the argument.
  I was also struck by Mr. LaBella's comments that the public only 
knows one percent of what's out there. That scares me because I thought 
we have heard a lot about abuses by the DNC and how foreign money 
corrupted our system. His remark shows just how much we need an 
independent counsel.
  Now some may attempt to defend the Attorney General by noting that 
she has initiated two 90-day reviews of potential perjury by the Vice-
President and former White House deputy chief of staff Harold Ickes. 
The political machine surrounding the Attorney General may have 
convinced her to take the two limited actions she has initiated to 
relieve the political heat. These two 90-day reviews completely avoid 
the substance of the real allegations. This is not to minimize the 
significance of perjury allegations, but her actions thus far miss the 
larger issues.
  Any independent counsel must be given authority to delve into the 
most important questions surrounding or involving the scandal. As the 
New York Times concluded, a limited appointment would be a ``scam to 
avoid getting at the more serious questions of whether the Clinton 
campaign bartered Presidential audiences or policy decisions for 
contributions. A narrowly focussed inquiry could miss the towering 
problem of how so much illegal foreign money, possibly including 
Chinese government contributions, got into Democratic accounts.'' This 
is the New York Times.
  We read today how FBI Director Freeh and Lead Investigator LaBella 
have recommended an appointment with a wide scope, and the Attorney 
General should not and cannot ignore their wise counsel any longer. As 
a unnamed senior government source told the Wall Street Journal: ``We 
showed [the Attorney General] significant threads of evidence that went 
right into the White House and to the upper levels of the DNC.'' Yet 
the Attorney General, thus far, has refused to act.
  Moreover, the time for 30-day or 90-day reviews has passed: we need 
action. The campaign finance violations we are discussing happened 2 
and 3 years ago. While the independent counsel statute allows for 30 
and 90 day review periods, it does not require it. When the FBI 
Director and the lead investigator lay out the evidence showing that a 
broad independent counsel is necessary, the review periods are not 
warranted.
  I must also take issue with the Attorney General's assertions that 
the current investigation is not a failure because it has secured a 
limited number of indictments. Let's remember that the ongoing campaign 
finance investigation has only indicted the most conspicuous people who 
made illegal donations to the DNC or the Clinton/Gore campaign. It has 
made no headway in finding out who in the administration or DNC knew 
about or solicited these illegal donations. Until it does so, the 
investigation is a failure, and in the eyes of many a sham.
  Rather than make pronouncements concerning what the Congress should 
or must do in response to the Attorney General's continued 
misinterpretation of the law, I feel it is prudent to meet with those 
of my colleagues on the Judiciary Committee who joined with me in 
requesting that she apply for the appointment of an independent counsel 
more than a year ago.

[[Page S9871]]

  I also want to pay particular tribute and respect to my ranking 
minority member, Senator Leahy, who sat through all this today, has 
cooperated through all this, has tried to get to the bottom of this 
with us, and who may have a different view from me but nevertheless has 
worked in a bipartisan way to try to resolve these matters, a way that 
I intend to continue to work. And I don't think anybody can accuse me 
of not bending over backwards for the Attorney General through all 
these months and years.
  In closing, let me quote the New York Times, which, I believe, 
captured the situation perfectly: ``Ms. Reno keeps celebrating her 
stubbornness as if it were some sort of national asset or a 
constitutional principle that had legal standing. It is neither. It is 
a quirk of mind or personality that has blinded her to the clear 
meaning of the statute requiring attorneys general to recuse themselves 
when they are sunk to the axle in conflict of interest.'' That is 
strong language. I wish it had not had to be issued by the New York 
Times. But to many it seems to be accurate.
  Strong will is a character trait I admire. Certainly I admire the 
Attorney General in many ways. But adherence to one's personal opinion 
at the expense of the law cannot be ignored, particularly when it is 
the Attorney General. Her refusal to appoint an independent counsel in 
accordance with the law should be of great concern to both Republicans 
and Democrats and to the American people for whom she is obligated and 
sworn to enforce the law. Notwithstanding the recent announcements, 
this matter has now passed the point of reasonableness, and I am no 
longer willing to give the Attorney General the benefit of the doubt: 
it is now beyond dispute that she is not living up to her duty to 
enforce the law.
  I am hopeful that within a short period of time she will enforce the 
law, or I will have more to say on this matter. I have bent over 
backwards to try to be accommodating to her and accommodating to the 
Justice Department, but as we all know, it is now becoming an 
embarrassment to the Justice Department. There are a few down there who 
are backing her decisions and an awful lot of people including the 
Nation's top investigator, Louis Freeh, his chief investigator, James 
V. Desarno of the FBI, and the chief prosecutor and investigator, 
Charles LaBella, who have no axe to grind but all of whom have said it 
is time to get this behind us, to get an independent counsel, to stop 
any claims of conflict of interest, and to implement the law that is so 
clear on its face so that we can get to the bottom of these problems 
and do so in a way that does not involve the President's appointee 
investigating the very people who appointed her including the 
President.
  I hope nobody has any legal problems in this matter, but it has to be 
resolved in the eyes of the American people and certainly has to be 
resolved in the eyes of the Judiciary Committee or at least those who 
have requested that she request the appointment of an independent 
counsel, and it is time to get this behind us.
  Again, I thank all of those who were in the meeting this morning--
specifically, my colleague Senator Leahy, my dear colleagues over in 
the House, Chairman Hyde who chairs the Judiciary Committee and has 
tremendous burdens on his shoulders right now, and also Congressmen 
Burton and Waxman.
  I yield the floor.
  Mr. LEAHY. Mr. President, first off, I thank my friend, the 
distinguished senior Senator from Utah, for his kind remarks. We have 
tried to work very closely together on this. It is something that is 
not a happy chore for either one of us. The meeting we had today was 
nearly 3 hours, as I recall. He and I went off and had lunch afterward 
and discussed it. I think it accomplished a great deal. He and his 
counterpart in the House, Chairman Hyde, did a service for the Congress 
and for the country by patiently working out what I believe could have 
been a very difficult situation with the House Government Reform and 
Oversight Committee contempt resolution against the Attorney General. 
He has helped all people, Republicans and Democrats, and I commend the 
Senator from Utah for that.
  The Attorney General and the Deputy Attorney General and all the 
others who have been listed by the Senator from Utah, as I said, spent 
nearly 3 hours together today. The Attorney General explained, as she 
has in the past in public hearings, her reasons for not appointing an 
independent counsel to take over the ongoing Department investigation 
of allegations of wrongdoing in the 1996 Presidential election. She 
also provided us on a confidential basis internal Department memoranda 
in this matter.
  Without going into what is in those memoranda, I mention the fact 
that she made them available for our review because it is 
unprecedented. And I, for one, appreciate the way the Attorney General 
has tried to keep Congress, in its oversight capacity, informed.
  This is a serious matter. Whether or not the Attorney General should 
appoint an independent counsel has diverted the attention of a number 
of committees, both here in the Senate and the House, and a number of 
Members. It is a difficult thing because there are grand jury rules 
that have to be followed, there are secrecy rules that have to be 
followed, and there are internal procedures that have to be followed 
that sometimes may not allow for an instant response between the time a 
question is asked and the evening news.
  The Attorney General has referred matters to independent counsels at 
least 10 times, if you count both the requests she has made for 
appointments of new independent counsels or expansions of the 
jurisdictions of those independent counsels already operating. So she 
does not shy away from exercising her discretion under the independent 
counsel statute.
  I do not want to see us get involved in some kind of intense second-
guessing and arm-twisting of the Attorney General when she has shown 
she is willing to trigger an independent counsel statute, as she has 
done 10 times already. This goes for when she has declined to do so as 
well. So whether one agrees or disagrees with the Attorney General's 
decision on appointing independent counsels, or decisions not to 
appoint independent counsels--and one can agree or disagree--but what 
we as Senators want to be careful about, what we must be careful about, 
is not to politicize what is already becoming an overly politicized 
process. The meeting this morning was designed to bring down the 
decibel level. I do not want to be in a position to increase it.
  I give the Attorney General credit for playing it straight with 
Members of Congress in both parties; for always being available and 
willing to explain her reasons to the extent she can without 
jeopardizing ongoing investigations or violating grand jury secrecy 
rules.
  I have been here with five administrations and dealt with Attorneys 
General through all of them. There are some things that they cannot 
share with us and have to wait on, either because of grand jury rules 
or ongoing investigations, before they can discuss them.
  This Attorney General is not going to be pushed around by anybody in 
Congress. I would be concerned if she allowed herself to be pushed 
around. We have had discussions about internal debates that have taken 
place within the Department of Justice and the FBI on whether in this 
or that or in another instance an independent counsel should be 
appointed. I would certainly hope there would be an internal debate. 
These are very, very serious matters. If we had a Department of Justice 
or an FBI where internally, on every single issue, everybody walked in 
lockstep, my question would be what have they missed?
  I never remember prosecuting a case of any seriousness or complexity 
when I was a prosecutor, but with the police or the investigators or 
other members of my office having some internal debate. ``Are we 
bringing the right charge? Are we bringing enough charges? Are we 
bringing too strong a charge? Should we withhold charges?'' And nothing 
I ever had to deal with began to reach the significance of what the 
Attorney General is dealing with.
  So will there be internal debate? Of course there will be. Should 
there be internal debate? Of course there should be. But under the law, 
at some point the buck stops on her desk, and she has to make that 
decision. Once she has

[[Page S9872]]

made that decision, fine. If we disagree, let us say so. But understand 
that she has to make it.
  Prosecutors have enormous power. The trust and the confidence of the 
American people in our justice system would evaporate if this Attorney 
General or any Attorney General allowed politics to dictate decisions 
like these. I don't think she is doing that. I believe, this is 
confirmed by listening to even some in the Department of Justice who 
have disagreed with her decisions. They have all said, unanimously, 
that they understand she is looking at this very, very honestly. She 
has made her decisions very directly and very honestly.
  People from both the FBI and within the Department of Justice, when 
asked specifically, ``Was anybody put off limits? Was any part of the 
investigation put off limits?'', they said unanimously nothing was put 
off limits. They were not told to put anybody or any transaction or any 
activity off limits.
  So I think we will see more on this as days go on. I think the 
meeting this morning was a valuable one and I commend my friend from 
Utah for having the meeting. Many aspects of this we agree on. Some 
aspects we may disagree on. But I state to my friend from Utah he has 
been fair and open with us on this. If we have disagreements, they are 
honest disagreements. But he and I will continue to work closely on 
this because in the end what we want to see, whatever these questions 
are, is that we have them resolved fairly. And I think we agree on 
that. I yield the floor.
  Mr. HATCH. Mr. President, if I can take just another minute?
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, you know, by some counts--some can count as 
many as nine requests for preliminary reviews in this matter. We are 
now almost 2 to 3 years down the line. The evidence is growing cold. 
The witnesses are absenting the country. We have evidence that cannot 
be found. And we had investigators telling us today that while one part 
of the Justice Department is going this way, another part of the 
Department is going another way, they weren't meeting, and that they 
were not able to put these threads of evidence together because of the 
type of restrictions and limitations that were placed on them.
  It is true that they said that they could investigate anybody, but 
thus far it seems as though the White House and the DNC leadership, the 
people who would have known who committed crimes were off limits or at 
least have not been fully examined. That is one reason why Mr. LaBella, 
Mr. Freeh, and Mr. Desarno--top people in this Government--have 
suggested that we should have an independent counsel.
  I think the Attorney General has to make a decision here one way or 
the other. If she makes a decision to just have a limited, narrowly 
appointed independent counsel or counsels under these circumstances, 
then I have to say that is going to be a catastrophic event.
  I am hopeful that she will do the right thing within a very limited 
period of time. She does not have to use the 90 days that she has 
requested. She has had years now to make determinations in these 
matters, and she ought to make them, and she ought to make them one way 
or the other--to her praise or condemnation. I personally believe that 
she will, within a short period of time. I pray with all my heart that 
she will, because I like her personally, and I don't feel good about 
standing up and disagreeing with her. I would like to have a good 
relationship with her and would naturally like her to be a great 
Attorney General. But she has to face these problems and she has to 
face that statute and she can no longer ignore it. Even if she does not 
agree with the mandatory part of that statute, which appears to be the 
case, although she is willing to relook at it, she has to agree that 
there is a whopping conflict of interest here, both an actual conflict 
and an appearance of a conflict, which necessitates the requests for 
the appointment of a broad-based independent counsel in these matters 
to get this finally behind us. And I hope that we can do that.
  I apologize to my colleague from Kentucky for interrupting this 
debate, but this is important to do. I apologize to him at this time 
and I yield the floor.

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