[Congressional Record Volume 144, Number 126 (Monday, September 21, 1998)]
[Senate]
[Pages S10643-S10644]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    FAIRNESS OF STARR/HOUSE PROCESS

  Mr. BINGAMAN. Mr. President, as I make this statement today, it is 
doubtful that many in the press or the public are paying attention to 
the proceedings of the Senate. While many are watching every nuance and 
listening to every syllable of the President's videotaped testimony 
before the still-sitting grand jury, I want to talk about what I 
believe is a more important issue--the basic fairness of the process of 
which the videotape is a part.
  Since we Senators may be called on to consider various allegations in 
judging articles of impeachment, I will not speak here about the 
substance of what is alleged, or about whether the allegations 
constitute adequate grounds for impeachment.
  But I believe each of us has an immediate obligation to concern 
ourselves with the process that is being followed. My purpose today is 
to call for fairness in that process; fairness in the procedures 
Congress follows as it prepares to consider these allegations; fairness 
in the treatment afforded the President. Regardless of what disposition 
is finally made of the allegations leveled against the President by the 
Independent Counsel, it is in the interests of everyone--especially 
future Presidents--that basic fairness be maintained. And to my mind it 
is impossible to conclude that the process to date has been fair.
  What ``unfairness'' am I talking about? Frankly, the lack of basic 
fairness in these proceedings has been so pervasive that it is hard to 
know where to begin. But here are three significant ways in which the 
process has lacked basic fairness.
  The first is that the accused has been denied the secrecy of grand 
jury testimony. Second, the Independent Counsel's report was issued as 
a sensational narrative, not as a legal document. And third is the rush 
by both the Independent Counsel and the House to publish and publicize 
all the material unfavorable to the President before the House has 
reviewed it and before any determination that impeachment proceedings 
are warranted.
  First, the actions of the independent counsel have had the effect, 
and possibly the purpose, of denying this accused, the President, the 
basic right to secrecy concerning testimony given to a grand jury.
  While the grand jury was considering the matter, the pattern of 
leaking information about testimony was clear for all to see. Once the 
testimony was concluded, the Independent Counsel sought and gained 
authority to deliver to the House of Representatives his report and all 
materials he chose, regardless of their relevance to particular 
charges. I firmly believe the Independent Counsel did this with the 
expectation that the Republican leadership of the Congress would 
quickly make public any and all material in its possession that 
portrayed the President unfavorably.
  Rule 6(e) of the Federal Rules of Criminal Procedure requires 
prosecutors to keep secret the testimony given before grand juries. And 
with this grand jury, the Independent Counsel assured the President and 
all witnesses that the testimony they gave was subject to the secrecy 
requirements under the rule.
  The secrecy requirement recognizes the fact that grand jury 
proceedings are anything but fair and balanced legal proceedings. 
Witnesses before a grand jury are not entitled to legal counsel who can 
object when the rights of the witness are being violated. There is no 
opportunity for a person who is the target of a grand jury proceeding 
to cross-examine witnesses against him or to present testimony he 
considers favorable to his position.
  In the case of this prosecutor and this grand jury, there was no 
secrecy, at least as to evidence damaging to the President. The 
substance of every witness's testimony was eagerly made known to the 
press and, in turn, eagerly reported.
  As if to ensure that the full impact of the accumulated damaging 
testimony would be felt by the American public before any chance for 
rebuttal testimony could arise, the Independent Counsel then rushed to 
obtain court approval and to deliver to the House of Representatives 
the report and the accompanying documentation which he alone chose to 
include. The speedy delivery to the House of the report and materials 
the Independent Counsel selected, freed the grand jury testimony from 
the limitations of Rule 6(e), and gave the public the full brunt of the 
prosecution's case without any opportunity for the accused to question 
the testimony on which it was based.


                     Basis for Claiming Unfairness

  Second, the Independent Counsel presented his report, not as a legal 
document which should have set out the asserted grounds for impeachment 
and then summarized the evidence supporting each ground as well as the 
evidence arguing against it. Instead, he chose to present his report in 
the format of a narrative where facts are presented in a manner 
designed to arouse the greatest public revulsion. The narrative is one-
sided in that it summarizes the evidence damaging to the President and 
omits all other. It contains damaging and salacious testimony 
concerning the President and others even when that testimony is not 
relevant to any asserted ground for impeachment.
  The third basis for claimed unfairness is that the House, as of 
today, has made public the Independent Counsel's report, the 
President's videotaped testimony, and 2,800 pages of other grand jury 
testimony. This comes before the House has even made a determination to 
begin an impeachment inquiry. The effect of this action, and possibly 
its purpose, is to undermine any fair and objective assessment of the 
evidence and the allegations. The result is to try and convict the 
President in the court of public opinion long before there is any 
opportunity for the President's counsel to counter the accumulated 
weight of this evidence.
  The rush by the House to disclose all, has pressured the media, us 
politicians, and the public to come to judgment before the defense can 
present its case.
  Our system of justice requires that an accused person, first will be 
charged, second will be tried, and then if convicted, will be sentenced 
for the crime.
  In this case, this procedure--this due process--is being trampled 
upon. The Independent Counsel has charged the President and every 
effort is being made to have the public convict and pronounce sentence 
on him before any trial occurs.
  One final plea: we must constantly remember that the procedures 
followed in this case are not just procedures which will affect this 
President and this impeachment inquiry. What actions we take here will 
set a precedent

[[Page S10644]]

for future Presidents and high government officials, and for future 
impeachment proceedings. If this President is not entitled to be 
treated fairly, then why should future Presidents expect fairness?
  Mr. President, there is a certain mob mentality that has taken hold 
of some here in our Nation's capital. And in that atmosphere it may be 
foolhardy to think that a call for ``fairness,'' for ``due process,'' 
for the ``rights of the accused,'' will be given much heed.
  But just as this President justifiably is going to be judged by the 
American People and by history for his actions, we in Congress are 
going to be judged as well. If we deny the President basic fairness, 
that judgment on this Congress will be harsh, regardless of the final 
verdict on this President.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. JOHNSON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________