[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.
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