[Congressional Record Volume 144, Number 140 (Thursday, October 8, 1998)]
[Senate]
[Pages S11952-S11957]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       INDEPENDENT COUNSEL LAW AND KENNETH STARR'S INVESTIGATION

  Mr. LEVIN. Mr. President, as one who three times in the last 15 years 
helped to reauthorize the independent counsel law, I have been giving a 
great deal of thought to the way in which the independent counsel 
statute has functioned in Kenneth Starr's investigation of President 
Clinton.
  The important purpose behind the statute was to have an objective 
person investigate credible allegations of violations of criminal law 
against top Administration officials in order to give confidence to the 
public that the Attorney General, an appointee of the President, was 
not put in the position of investigating those allegations.
  But what if the person selected to investigate those allegations by 
the special court, the three-judge court that appoints independent 
counsels, violates the restrictions in the very act creating him? What 
could be done to rein in such an independent counsel?
  Some will dismiss these questions and more specific ones related to 
Mr. Starr's investigation of the President as defending the President's 
actions, actions which were irresponsible and immoral, and which by the 
President's own acknowledgment, hurt those closest to him and which 
damaged the body politic of the nation. But dismissing such questions 
would be wrong, because the actions of the independent counsel in this 
case, and the implications his actions have on the future of the 
independent counsel law and, indeed, upon the rule of law, demand our 
attention as well.
  The authors of the law in 1978 attempted to put limits on the 
independent counsel in the law itself and provided, for instance, that 
the independent counsel must follow the policies of the Justice 
Department and that the Attorney General could fire an independent 
counsel for cause.
  The Supreme Court in Morrison v. Olson upheld the constitutionality 
of the independent counsel law in large part because of those 
provisions, stating that:

       . . .the Act does give the Attorney General several means 
     of supervising or controlling the prosecutorial powers that 
     may be wielded by an independent counsel. Most importantly, 
     the Attorney General retains the power to remove the counsel 
     for ``good cause,'' a power that we have already concluded 
     provides the Executive with substantial ability to ensure 
     that the laws are

[[Page S11953]]

     ``faithfully executed'' by an independent counsel. . . . In 
     addition . . . the Act requires that the counsel abide by 
     Justice Department policy unless it is not ``possible'' to do 
     so.

  During each of the reauthorizations of the law, in 1983, 1987, and 
1994, Congress was concerned about the potential for an open-ended, 
unlimited investigation by an independent counsel, and we adopted 
various restrictions in an effort to prevent that. We added, for 
example, a number of budgetary restrictions, reporting requirements, 
and a biannual GAO audit. And, we gave the Special Court the authority 
to terminate an independent counsel if it found the independent 
counsel's work to be ``substantially completed.''
  Those of us involved in those reauthorizations worked in a bipartisan 
manner to put additional checks and limits on these investigations. We 
did so in the hope that we could preserve the core principle of the 
law--that someone outside of the Department of Justice could 
investigate credible allegations of criminal violations by high level 
Executive Branch officials.
  Our goal has always been to have independent counsels be like 
ordinary prosecutors, treating high-level government officials no 
better and no worse than a U.S. Attorney would treat a private citizen. 
The specific questions that need to be addressed are whether Mr. Starr 
has met that standard or whether he has violated important requirements 
of the independent counsel law, whether he has ignored his 
responsibility not to abuse the grand jury process and whether he has 
carried out the duty of all prosecutors as established by the Supreme 
Court not just to prosecute but to prosecute fairly.


                           role of prosecutor

  A prosecutor's responsibility is unique in our criminal justice 
system. As articulated by Justice Sutherland in the 1935 Supreme Court 
case of Berger v. the United States, a prosecutor's responsibility is 
not to do whatever it takes to get a conviction, but to ``do justice.'' 
Justice Sutherland wrote:

       The United States Attorney is the representative not of an 
     ordinary party to a controversy, but of a sovereignty whose 
     obligation to govern impartially is as compelling as its 
     obligation to govern at all; and whose interest, therefore, 
     in a criminal prosecution is not that it shall win a case, 
     but that justice shall be done. . .He may prosecute with 
     earnestness and vigor--indeed, he should do so. But, while he 
     may strike hard blows, he is not at liberty to strike foul 
     ones.


                            the starr report

  Let me address first Mr. Starr's decision to include in his report 
graphic details of the sexual encounters between the President and Ms. 
Lewinsky. Mr. Starr argues that he had to be so graphic in order to 
rebut the President's contention that the President didn't have 
``sexual relations'' with Ms. Lewinsky as defined in the Paula Jones 
case. But that claim is a pretext, not a reason. There is no 
justification for Mr. Starr's inclusion of each and every detail of 
these sexual encounters in the report. He could have easily referred 
the readers to pages in the record to support his assertions. I've 
never read a document by a prosecutor that is so needlessly salacious.
  Mr. Starr's report also violated the fairness expected by the 
American people by presenting information on possible impeachable 
offenses in a biased and prejudicial manner. Under the Constitution, 
the House has sole responsibility to decide whether or not the 
President should be impeached. The independent counsel does not have a 
statutory responsibility to argue for impeachment. His responsibility 
is to forward ``information'' to the Congress that ``may constitute 
grounds for an impeachment.'' The independent counsel law says:

       An independent counsel shall advise the House of 
     Representatives of any substantial and credible information 
     which such independent counsel receives, in carrying out the 
     independent counsel's responsibilities under (the independent 
     counsel law) that may constitute grounds for an impeachment.

  That's it. That's the extent of the independent counsel's 
responsibility. The law doesn't give an independent counsel the 
responsibility to argue for impeachment. But the report in effect did 
that. The independent counsel law doesn't give the independent counsel 
the responsibility to draw conclusions from the information he presents 
to Congress. But the report did that as well. For example, in the 
introduction to the report, Mr. Starr states unequivocally that ``(t)he 
information reveals that President Clinton'', and then it lists seven 
conclusions such as: ``lied under oath. . .''; ``attempted to obstruct 
justice. . .''; ``lied to potential grand jury witnesses.''
  In other parts of the report, Mr. Starr makes conclusory statements 
such as these: ``the President's testimony strains credulity''; ``the 
President's denials--semantic and factual--do not withstand scrutiny''; 
``the President's claim . . .is belied by the fact . . .''; ``the 
President could not have believed that he was `telling the truth. . .;' 
'' ``the President lied under oath three times.''
  The report not only is full of conclusions and arguments, it is also 
biased in its presentation because it omits exculpatory evidence. For 
instance, the report omits Ms. Lewinsky's clear statement before the 
grand jury that ``no one ever asked [her] to lie'' and she ``was never 
promised a job'' for [her] silence. (Appendices, Part 1, page 1161.) 
The report doesn't mention that Ms. Lewinsky testified that when she 
asked President Clinton whether she should get rid of his gifts to her 
in light of the Jones subpoena, his response was, ``I don't know, `` 
and that she left his office without ``any notion'' of what she should 
do with the gifts. (Appendices, Part 1, page 1122.) The report omits 
Ms. Lewinsky's statement that when she asked the President if he wanted 
to see her affidavit in the Paula Jones case before she filed it, he 
said he didn't want to see it. (Appendices, Part 1, page 1558)


                     grand jury report in watergate

  Contrast the Starr report with the grand jury report in the Watergate 
case in 1974 to the House Judiciary Committee which was then 
investigating the possible impeachment of Richard Nixon. Judge Sirica 
was asked to rule on whether the grand jury's evidence in the Watergate 
matter could be forwarded to the House of Representatives since it was 
engaged in impeachment proceedings. Judge Sirica approved the 
transmittal of the grand jury report in the Watergate matter, because 
he determined that:

       It draws no accusatory conclusions. . . It contains no 
     recommendations, advice or statements that infringe on the 
     prerogatives of other branches of government. . ..It renders 
     no moral or social judgments. The Report is a simple and 
     straightforward compilation of information gathered by the 
     Grand Jury, and no more. . . The Grand Jury has obviously 
     taken care to assure that its Report contains no 
     objectionable features, and has throughout acted in the 
     interests of fairness. The Grand Jury having thus respected 
     its own limitations and the rights of others, the Court ought 
     to respect the Jury's exercise of its prerogatives. (In re 
     Report and Recommendation of June 5, 1972, Grand Jury 
     Concerning Transmission of Evidence to the House of 
     Representatives, U.S. District Court, District of Columbia, 
     March 18, 1974. )

  What a far cry the Watergate grand jury report was from Mr. Starr's. 
The Starr Report violates almost every one of the standards laid out by 
Judge Sirica in the Watergate case.
  Even prior to the report Mr. Starr acted in other ways inconsistent 
with the independent counsel law and the rules governing the grand 
jury.


               violations of the independent counsel law

  No person is above the law. That principle is the touchstone of our 
system of government. And the rule of law holds true for both the 
prosecutor and the prosecuted. Kenneth Starr has placed himself above 
the law in a number of ways even before he sent his report to Congress.


                     exceeding limited jurisdiction

  The Supreme Court was clear in 1988 when it reviewed the 
constitutionality of the independent counsel law that the specific and 
narrow jurisdiction granted to each independent counsel by the 
appointing court is key to the law's constitutionality. The Supreme 
Court in Morrison v. Olson held that, ``the independent counsel is an 
inferior officer under the Appointments Clause, with limited 
jurisdiction and tenure and lacking policymaking or significant 
administrative authority.'' ``Limited jurisdiction.'' ``Lacking 
policymaking authority.'' Did Kenneth Starr respect this limitation in 
the law that created his office? I believe not.
  Again, the most fundamental limit in the law is that an independent 
counsel can investigate only that which is within the scope of 
jurisdiction granted by the court that appoints him.
  Mr. Starr was appointed to office in August 1994 to investigate 
Whitewater.

[[Page S11954]]

 Three months earlier, in May of 1994, Paula Jones had filed her civil 
law suit against the President accusing him of sexual harassment. Mr. 
Starr's grant of authority was completely unrelated to the Paula Jones 
case and made no reference to it.
  But in April of 1997, according to a June 25, 1997, article by Bob 
Woodward and Susan Schmidt in the Washington Post, FBI agents and 
prosecutors working for independent counsel Starr questioned Arkansas 
state troopers about their knowledge of any extramarital relationships 
Mr. Clinton may have had while governor and questioned a ``number of 
women whose names have been mentioned in connection with President 
Clinton in the past.'' The two troopers who served on the governor's 
personal security detail, Roger Perry and Ronald Anderson, are quoted 
in the article as follows:

       ``In the past, I thought they were trying to get to the 
     bottom of Whitewater,'' Perry said in an interview with The 
     Washington Post. ``This last time, I was left with the 
     impression that they wanted to show he was a womanizer. . 
     ..All they wanted to talk about was women.'' He said he was 
     interviewed in April (1997) for more than 1\1/2\ hours by an 
     attorney in Starr's office and an FBI agent.
       Perry, a 21-year veteran of the Arkansas state force, said 
     he was asked about the most intimate details of Clinton's 
     life. ``They asked me if I had ever seen Bill Clinton perform 
     a sexual act,'' Perry said. ``The answer is no.' ''
       . . .. . .``They asked me about Paula Jones, all kinds of 
     questions about Paula Jones, whether I saw Clinton and Paula 
     together and how many times,'' Perry said.
       . . ..Anderson said he refused to answer the questions 
     about personal relationships Clinton may have had with women. 
     ``I said, `If he's done something illegal, I will tell you. 
     But I'm not going to answer a question about women that he 
     knew because I just don't feel like it's anybody's business. 
     . .' ''

  What justification did Mr. Starr provide to support these inquiries 
in April of 1997? The Washington Post said deputy Whitewater counsel 
John Bates defended Mr. Starr's action by saying that the purpose, as 
restated by the Post, ``is to ensure that a full and thorough 
investigation is conducted that leaves no avenue unexplored.''
  Mr. Starr's appointment was completely unrelated to the Paula Jones 
case. Yet here he was inquiring in significant detail in April 1997, 
leaving ``no avenue unexplored,'' about possible relationships Mr. 
Clinton had with various women, including Paula Jones. And the New York 
Times reported on Sunday, October 4th, that contrary to Mr. Starr's 
statements in his report to the House that his office first learned of 
the Lewinsky affair from Linda Tripp on January 12th, the Starr office 
had been contacted by Jerome Marcus, a Philadelphia lawyer with ties to 
the Paula Jones legal team, at least a week earlier. The earlier 
contact between Mr. Marcus and Mr. Starr's office has now been 
confirmed by Mr. Starr's spokesman. The call from Mr. Marcus and his 
relationship to the Jones case was not, according to the New York 
Times, disclosed to the Justice Department when Mr. Starr sought to 
expand his jurisdiction.
  So when, on January 12, 1998, Linda Tripp, who had been subpoenaed in 
the Paula Jones lawsuit, contacted Mr. Starr's office and told the 
office she had tapes of Monica Lewinsky describing an affair with 
President Clinton, the Starr office had already gone beyond its 
jurisdiction into the Paula Jones case.
  Ms. Tripp apparently told Mr. Starr's office on January 12, 1998, 
that she had tapes of several recorded telephone conversations 
containing allegations that the President had told Ms. Lewinsky to lie 
in the Paula Jones case. (Ms. Lewinsky later testified before the grand 
jury that she was lying to Ms. Tripp when she had said that on the 
tape.) Because secretly tape-recording phone conversations is a felony 
under Maryland law (Md. Code Ann. Section 10-402), Ms. Tripp discussed 
immunity from prosecution for her own actions. According to the FBI 
summary of Ms. Tripp's interview with Starr's office on January 12th, 
independent counsel Starr not only discussed with Ms. Tripp a grant of 
immunity under federal law and promised Ms. Tripp that his office 
``would do what it could to persuade the State of Maryland from 
prosecuting Ms. Tripp for any violations of that state wiretapping 
law'' (Page 223 of the Appendices to the Starr Report), Starr's office 
actually promised Ms. Tripp immunity. ``OIC attorneys. . .advised Tripp 
she would be granted federal immunity by the OIC for the act of 
producing the tapes to the OIC.'' (FBI 302, interview with Linda Tripp, 
1/12/98)
  Again, with no jurisdiction to investigate matters involving the 
Jones case, Mr. Starr instructed FBI agents to equip Ms. Tripp with a 
hidden microphone and surreptitiously record a four-hour conversation 
with Ms. Lewinsky the following day, January 13th.
  Where did Mr. Starr get the authority to enter into immunity 
negotiations with Ms. Tripp on January 12th? Where did Mr. Starr get 
the authority to instruct FBI agents to wire Ms. Tripp and tape her 
conversation with Ms. Lewinsky? Mr. Starr didn't have the authority and 
he didn't have the jurisdiction on January 12th. (He didn't receive the 
authority and jurisdiction until days later when he went to the 
Attorney General to obtain it.) He thereby ignored the statutory 
limitations on his authority--the limits that confined him to matters 
involving Whitewater and investigations into the White House use of FBI 
files and the White House Travel Office which by that time the court 
had also authorized. In doing so, he used some of the most powerful 
tools given to a prosecutor--immunity from criminal prosecution and 
electronic surveillance by the FBI--to expand his reach beyond what the 
law permitted him to do.
  It was only after he gave immunity to Ms. Tripp and used FBI agents 
to monitor four hours of conversation between Ms. Tripp and Ms. 
Lewinsky on January 13th that independent counsel Starr sought 
authority to expand his jurisdiction. On Thursday, January 15, he 
contacted Attorney General Reno's office on an emergency, expedited 
basis to get her to request the special court to authorize the added 
jurisdiction. The emergency was apparently caused by the threat of a 
story about the Lewinsky affair becoming public in an upcoming 
``Newsweek'' article.
  A letter by Mr. Starr to Steve Brill, publisher of ``Brill's 
Content,'' in March 1998 suggests that Mr. Starr based his request for 
expanded jurisdiction primarily on the FBI tape between Ms. Lewinsky 
and Ms. Tripp (again, a tape that the Starr office had no authority to 
obtain). The special court granted Mr. Starr jurisdiction in the 
Lewinsky matter on January 16th.
  (2) Failure to Follow Justice Department Policies
  Mr. Starr also violated the independent counsel law's requirement 
that he follow the policies of the Department of the Justice. 28 U.S.C. 
594(f)(1) states that independent counsels ``shall'' comply with the 
``written or other established policies of the Department of Justice.'' 
The only exception to this rule is where compliance with Departmental 
policies would be ``inconsistent with the purposes of the statute'' 
such as, for example, compliance with a policy requiring the permission 
of the Attorney General personally to take a specific act. Barring this 
exception, the law is clear that independent counsels must comply with 
Justice Department policies.
  The Supreme Court placed great emphasis on the law's requirement that 
an independent counsel is bound by the policies of the Department of 
Justice and that the independent counsel law ``does not include any 
authority to formulate policy for the Government or the Executive 
Branch.''
  Yet there are at least five instances in which Mr. Starr appears to 
have failed to follow Justice Department policy: discussing immunity 
with Ms. Lewinsky without contacting her attorney of record; 
subpoenaing the Secret Service; subpoenaing news organizations; 
subpoenaing Ms. Lewinsky's mother; and subpoenaing the notes of the 
attorney for the late Vince Foster (arguing that the attorney-client 
privilege terminates upon the death of the client).
  First, when Mr. Starr confronted Monica Lewinsky on the afternoon of 
January 16th he acted inconsistently with Justice Department policy. 28 
CFR 77.8 explicitly prohibits federal prosecutors from offering an 
immunity deal to a target without the consent of the target's legal 
counsel. Yet Mr. Starr's staff, knowing she was represented by counsel, 
confronted Monica Lewinsky in their first contact with her, outside the 
presence of her counsel, for the express purpose of offering

[[Page S11955]]

her an immunity deal. Indeed, the independent counsel's office made 
immunity contingent upon her not contacting her counsel. (Appendicies, 
Part 1, pages 1143-1154)
  Until recently, our understanding of what happened on January 16th 
when Ms. Lewinsky was first confronted by Mr. Starr's office was based 
on speculation, but now we have a description of what happened under 
oath from Ms. Lewinsky herself. It's a description of the intimidation 
of a woman whose crime was having a consensual affair with the 
President and trying to cover it up. I want to read from the grand jury 
transcript, because Ms. Lewinsky's description is so chilling and 
speaks for itself.

                          Lewinsky Transcript

       Juror: . . .I guess the other thing that we wanted to ask 
     you a little bit about is when you were first approached by 
     Mr. Emmick and his colleagues at the OIC. Can you tell us a 
     little bit about how that happened?. . .
       Mr. Emmick: Maybe if I could ask, what areas do you want to 
     get into? Because there's--you know--many hours of activity--
       Juror: Well, one specific--okay. One specific question that 
     people have is when did you first learn that Linda Tripp had 
     been taping your phone conversations? [Ms. Lewinsky answers 
     that she learned when she was, and these are her words, 
     ``first apprehended.'' The transcript continues.]
       Mr. Emmick: Any other specific questions about that day? I 
     just--this was a long day. There were a lot of things that--
       A Juror: We want to know about that day.
       A Juror: That day.
       A Juror: The first question.
       A Juror: Yes.
       A Juror: We really want to know about that day.
       Mr. Emmick: All right. . . [Ms. Lewinsky then describes 
     meeting Ms. Tripp at the Ritz Carlton.]
       Ms. Lewinsky: She was late. I saw her come down the 
     escalator. And as I--as I walked toward her, she kind of 
     motioned behind her and Agent------and Agent------presented 
     themselves to me and----
       A Juror: Do you want to take a minute?
       Ms. Lewinsky: And flashed their badges at me. They told me 
     that I was under some kind of investigation, something to do 
     with the Paula Jones case, that they--that they wanted to 
     talk to me and give me a chance, I think, to cooperate, 
     maybe. . . I told them I wasn't speaking to them without my 
     attorney. They told me that that was fine, but I should know 
     I won't be given as much information and won't be able to 
     help myself as much with my attorney there. So I agreed to 
     go. I was so scared.
       (The witness begins crying.) [Then Ms. Lewinsky becomes so 
     upset with Mr. Emmick, an attorney with Mr. Starr who was 
     present when Ms. Lewinsky was confronted by Mr. Starr's 
     office on January 16th, that she asks him to step out of the 
     grand jury room, which it appears he finally does. Ms. 
     Immergut, another attorney with Mr. Starr's office then takes 
     over the questioning of Ms. Lewinsky and it turns into a 
     question/answer format.]
       Q: Okay. Did you go to a room with them at the hotel?
       A: Yes.
       Q: And what did you do then? Did you ever tell them that 
     you wanted to call your mother?
       A: I told them I wanted to talk to my attorney.
       Q: Okay. So what happened?
       A: And they told me--Mike (Emmick) came out and introduced 
     himself to me and told me that--that Janet Reno had 
     sanctioned Ken Starr to investigate my actions in the Paula 
     Jones case, that they--that they knew that I had signed a 
     false affidavit, they had me on tape saying I had committed 
     perjury, that they were going to--that I could go to jail for 
     27 years, they were going to charge me with perjury and 
     obstruction of justice and subornation of perjury and witness 
     tampering and something else.
       Q: And you're saying ``they'', at that point, who was 
     talking to you about that stuff?
       A: Mike Emmick and the two FBI guys. And I made Linda stay 
     in the room. And I just--I felt so bad. [She then discusses 
     why she feels bad and the question/answer session continues.]
       Q: I guess later just to sort of finish up. I guess, with 
     the facts of that day, was there a time then that you were --
     you just waited with the prosecutors until your mother came 
     down?
       A: No.
       Q: Okay.
       A: I mean, there was, but they--they told me they wanted me 
     to cooperate. I asked them what cooperating meant it 
     entailed, and they told me that--they had--first they had 
     told me before about that--that they had had me on tape 
     saying things from the lunch that I had had with Linda at the 
     Ritz Carlton the other day and they--then they told me that 
     I--that I'd have to agree to be debriefed and that I'd have 
     to place calls or wear a wire to see--to call Betty and Mr. 
     Jordan and possibly the President. And--
       Q: And did you tell them you didn't want to do that?
       A: Yes. I--I--I remember going through my mind, I thought, 
     well, what if--you know, what if I did that and I messed up, 
     if I on purpose--you know, I envisioned myself in Mr. 
     Jordan's office and sort of trying to motion to him that 
     something had gone wrong. They said that they would be 
     watching to see if it had been an intentional mistake. Then I 
     wanted to call my mom and they kept telling me that they 
     didn't--that I couldn't tell anybody about this, they didn't 
     want anyone to find out and that they didn't want--that was 
     the reason I couldn't call Mr. Carter [Ms. Lewinsky's 
     attorney of record at the time], was because they were afraid 
     that he might tell the person who took me to Mr. Carter. They 
     told me that I could call this number and get another 
     criminal attorney, but I didn't want that and I didn't trust 
     them. Then I just cried for a long time.
       A Juror: All while you were crying, did they keep asking 
     you questions? What were you doing?
       Mr. Lewinsky: No, they just sat there and then--they just 
     sort of sat there.
       A Juror: How many hours did this go on?
       Ms. Lewinsky: Maybe around two hours or so. And then they 
     were--they kept saying there was this time constraint, there 
     was a time constraint, I had to make a decision. And then 
     Bruce Udolf came in at some point and then--then Jackie 
     Bennett came in and there were a whole bunch of other people 
     and the room was crowded and he was saying to me, you know, 
     you have to make a decision. I had wanted to call my mom, 
     they weren't going to let me call my attorney, so I just--I 
     wanted to call my mom and they--Then Jackie Bennett said, 
     ``You're 24, you're smart, you're old enough, you don't need 
     to call your mommy.'' And then I said, ``Well, I'm letting 
     you know that I'm leaning towards not cooperating.'' you 
     know. And they had told me before that I could leave whenever 
     I wanted, but it wasn't--you know, I didn't--I didn't really 
     know--I didn't know what that meant. I mean, I thought if I 
     left then that they were just going to arrest me. And so then 
     they told me that I should know that they were planning to 
     prosecute my mom for the things that I had said that she had 
     done.
       (Ms. Lewinsky begins crying; Ms. Immergut asks if Ms. 
     Lewinsky wants to take a break, and she says she does. The 
     questioning then resumes.)
       A Juror: Monica, I have a question. A minute ago you 
     explained that the reason why you couldn't call Mr. Carter 
     was that something might be disclosed. Is that right?
       Ms. Lewinsky: It was--they sort of said that--you know, I--
     I--I could call Frank Carter, but that they may not --I think 
     it was that--you know, the first time or the second time?
       A Juror: Any time.
       Ms. Lewinsky: Well, the first time when I asked that I said 
     I wasn't going to talk to them without my lawyer, they told 
     me that if my lawyer was there they wouldn't give me as much 
     information and I couldn't help myself as much, so that --
       A Juror: Did they ever tell you that you could not call Mr. 
     Carter?
       Ms. Lewinsky: No. What they told me was that if I called 
     Mr. Carter, I wouldn't necessarily still be offered an 
     immunity agreement.
       A Juror: And did you feel threatened by that?
       Ms. Lewinsky: Yes.

  What could be clearer than that? If Ms. Lewinsky called her lawyer, 
she wouldn't necessarily still be offered an immunity agreement and she 
felt ``threatened.'' That's what Monica Lewinsky testified to under 
oath about what happened on January 16th when she was confronted by 
independent counsel Starr's office.
  Look how Mr. Starr described the same event in his June 16th letter 
to Steven Brill months before Ms. Lewinsky's grand jury testimony was 
publicly released:

       ``Ms. Lewinsky was asked to cooperate with the 
     investigation. She telephoned her mother, Marcia Lewis, who 
     took a train from New York City to confer with her daughter. 
     During the five hours while awaiting her mother's arrival, 
     Ms. Lewinsky drank juice and coffee, ate dinner at a 
     restaurant, strolled around the Pentagon City mall, and 
     watched television. She was repeatedly informed that she was 
     free to leave, and she did leave several times to make calls 
     from pay telephones. After her mother arrived, discussions 
     resumed with agents and attorneys. Ms. Lewinsky, after 
     talking with another family member by phone, chose to retain 
     William Ginsburg, a longtime family friend who specializes in 
     medical malpractice law in Southern California. As they left 
     the Ritz Carlton, both Ms. Lewinsky and Ms. Lewis thanked the 
     FBI agents and attorneys for their courtesy. Recent media 
     statements by one of her attorneys alleging that she was 
     mistreated are wholly erroneous.''

  That's what Mr. Starr says happened. The discrepancy is enormous. Ms. 
Lewinsky ``was so scared''; she was told she faced 27 years in prison; 
at one point she was told she couldn't call her own attorney; at 
another point she was told that if she called her lawyer, an immunity 
offer would not be likely; she cried for long time; she felt if she 
left the room she would be arrested; and she felt ``threatened.'' All 
of this occurred without the knowledge or presence of her attorney of 
record in

[[Page S11956]]

apparent violation of Justice Department policy.
  Consider also what Mr. Starr's office was trying to get Ms. Lewinsky 
to do. She says under oath, before the grand jury, that they wanted her 
``to agree to be debriefed and that [she'd] have to place calls or wear 
a wire to . . . call Betty and Mr. Jordan and possibly the President.'' 
In a letter from Mr. Starr to Steven Brill, Mr. Starr said, ``This is 
false. This Office never asked Ms. Lewinsky to agree to wire herself 
for a conversation with Mr. Jordan or the President.'' Mr. Starr goes 
on to criticize Mr. Brill for making such a claim by saying, ``You cite 
no source at all; nor could you, as we had no such plans.''
  But a memo from Starr's office itself of an interview with Ms. 
Lewinsky provides confirmation that Ms. Lewinsky was asked on January 
16th to wear a wire. The relevant part of the interview summary says:

       ``Lewinsky, who was 24 years of age when approached by the 
     OIC on January 16, 1998, was not prepared to wear a wire and/
     or record telephone conversations. The request to do so was a 
     lot to handle that day and Lewinsky relied on her advisors, 
     who included her parents and Bill Ginsberg.'' (Appendices, 
     Part 1, page 1555)

  In Mr. Starr's report to the House of Representatives he states, ``In 
the evaluation of experienced prosecutors and investigators, Ms. 
Lewinsky has provided truthful information.'' If Ms. Lewinsky is 
telling the truth when she swore that Mr. Starr's office tried to get 
her to tape phone conversations with Mr. Jordan or the President, then 
Mr. Starr was not speaking truthfully in his letter. And if Ms. 
Lewinsky is telling the truth that would mean Mr. Starr intended to 
surreptitiously record the President of the United States in order to 
develop evidence against him. The second example of Mr. Starr acting 
inconsistently with Department of Justice policy involves the testimony 
of the Secret Service in the Lewinsky matter. Over the strong objection 
of the Justice Department and for the first time in the nation's 
history, Mr. Starr asked a federal court to force Secret Service 
personnel to disclose how they operate and what they have observed of 
the President in the course of protecting him. No federal prosecutor 
had ever before asked a court to compel such testimony from a Secret 
Service agent, according to the Justice Department.

  Discounting arguments regarding the safety of the president and 
effective operation of Secret Service personnel, Mr. Starr issued 
subpoenas which were in violation of Justice Department policy and in 
violation of Mr. Starr's legal obligation to comply with Justice 
Department policy. Moreover, Mr. Starr argued in his report to the 
House that the President's ``acquiescence'' in the Justice Department's 
opposition to the Secret Service subpoenas was evidence of obstruction 
of justice on the part of the President presumably because, Mr. Starr 
argues, the Justice Department's opposition to the Secret Service 
subpoena was ``interposed to prevent the grand jury from gathering 
relevant information.'' This claim by Mr. Starr is so preposterous, 
particularly in light of the letter of support for the position of the 
Secret Service from former President Bush, that it lays bare the 
excessive zeal of this investigation.
  The fact that the court eventually upheld the subpoenas issued by Mr. 
Starr does not vindicate his position. His pursuit of subpoenas of 
Secret Service agents may not have violated the law, but it violated 
the policy of the Justice Department which Mr. Starr is bound to follow 
under the clear requirements of the independent counsel law.
  Third, Mr. Starr issued subpoenas to news organizations to obtain 
nonpublic information from their news gathering efforts despite Justice 
Department regulations which caution federal prosecutors to take a 
number of steps before subpoenas are issued in order to safeguard 
freedom of the press. The regulations require trying elsewhere for the 
information, negotiating voluntary agreements to provide the 
information first, and, in a final provision that one court held was 
not binding on Mr. Starr, obtaining the Attorney General's permission 
prior to issuing a subpoena. Despite the established policy 
discouraging media subpoenas, independent counsel Starr issued 
subpoenas to news organizations on several occasions. When ABC News 
objected to one such subpoena, Mr. Starr stated in a court pleading 
that the Justice Department's ``regulations of this type do not govern 
an Independent Counsel.''
  The fourth example of Mr. Starr not following Justice Department 
policy is the subpoena to Monica Lewinsky's mother. He issued this 
subpoena despite the U.S. Attorneys' Manual policy that ``the 
Department will ordinarily avoid seeking to compel the testimony of a 
witness who is a close family relative of . . . the person upon whose 
conduct grand jury scrutiny is focusing.''
  And fifth, in this same vein, but not related to the Lewinsky matter, 
Mr. Starr subpoenaed the notes of the late Vince Foster, arguing in an 
unprecedented case before the Supreme Court that the attorney-client 
privilege expires upon the death of the client. The Justice 
Department's general policy is that federal prosecutors ``will respect 
bona fide attorney-client relationships, where possible, consistent 
with its law enforcement responsibilities and duties.'' The Supreme 
Court rejected Mr. Starr's policy-setting position.
  Violating the independent counsel law's limited grant of authority, 
ignoring established Justice Department policies (indeed making the 
claim that the independent counsel isn't governed by the Justice 
Department policies even though the independent counsel law says he 
is), Mr. Starr has made a mockery of the independent counsel process 
and the statutory constraints designed to insure that the independent 
counsels obey the same rules that apply to all other federal 
prosecutors.


                         use of the grand jury

  I also have concerns about Mr. Starr's use of the grand jury. Was Mr. 
Starr properly using the grand jury when he subpoenaed a federal 
employee who was on his personal time when he called friends in 
Maryland from his home to congratulate them on demanding an 
investigation of Linda Tripp for possible illegal taping of telephone 
conversations with Ms. Lewinsky? Robert Weiner was subpoenaed within 24 
hours of the calls and wasn't even interviewed first or contacted by 
the independent counsel as an initial step. Among other questions, 
prosecutors asked him to reveal the future plans of Maryland Democrats. 
How could that possibly be an appropriate use of the grand jury?
  Was Mr. Starr properly using the grand jury when he subpoenaed Sydney 
Blumenthal to testify before the grand jury on what he was telling 
reporters about Mr. Starr's office because Mr. Starr believed Mr. 
Blumenthal was trying to intimidate his staff? The answer is, ``no.'' A 
person should be able to criticize a prosecutor to the press without 
fearing a grand jury subpoena.
  There are numerous allegations that Mr. Starr and his staff 
inappropriately revealed grand jury information to third parties in 
violation of rules governing grand jury secrecy. Rule 6(e) of the rules 
of federal criminal procedure prohibit prosecutors and grand jurors 
from discussing the proceedings before the grand jury.
  Mr. Starr has explained communicating with the press in the August 
1998 edition of ``Brill's Content'' as ``countering misinformation that 
is being spread about our investigation in order to discredit our 
office and our dedicated career prosecutors.'' Mr. Brill also quotes 
Mr. Starr as saying that as long as the independent counsel is 
providing reporters with information about ``what witnesses tell FBI 
agents'' or the independent counsel's office ``before they testify 
before the grand jury'' it is not subject to Rule 6(e). If such a 
standard were adopted, there would be little practical restraint on the 
grand jury information a prosecutor could discuss with the press.
  Allegations of improper leaks by the Starr office were presented to 
Judge Norma Holloway Johnson, and the Associated Press reported in 
August of this year that Judge Johnson ruled that there is a prima 
facie case of violations of the grand jury secrecy rules. The 
Associated Press further reported that ``the U.S. Court of Appeals 
rejected Starr's efforts to stop Johnson's investigation, allowing her 
to continue to collect evidence and hold a hearing to determine if 
Starr's office should be punished.''


                         conflicts of interest

  Finally, there are the apparent and real conflicts of interest Mr. 
Starr has

[[Page S11957]]

created in the operations of his office. It started at the time of his 
appointment. Mr. Starr was an active partisan who had served as Finance 
Chair for a Republican Congressional campaign in Virginia and who had 
himself recently contemplated a run for the Republican nomination to 
the U.S. Senate in Virginia. Within weeks of the filing of the Paula 
Jones civil suit in May 1994, Mr. Starr appeared on television and 
espoused a legal position against the President. (He also began 
discussions with the Independent Women's Forum about filing a legal 
brief on Paula Jones' behalf in opposition to efforts by the President 
to have the litigation postponed.)
  The appointing court informed my staff it was not aware at the time 
of the appointment that Mr. Starr had expressed a position against the 
President in the Paula Jones case. As senior Democrat on the Senate 
subcommittee charged with oversight of the independent counsel law, I 
urged the court shortly after Mr. Starr's appointment to make a fuller 
inquiry into Starr's apparent lack of objectivity about the President 
and based upon what the court learned, reconsider Mr. Starr's 
appointment. The court issued an order stating that, once it had 
exercised its appointment authority, it was without power to reconsider 
appointment of an independent counsel. The New York Times called on Mr. 
Starr to withdraw, while five past presidents of the American Bar 
Association warned the court that it needed to repair its appointment 
procedures to ensure a selection process with the reality and 
appearance of objectivity.
  While in office, Mr. Starr only reinforced the initial concerns about 
his impartiality and judgment. For example, one month before the 1996 
election, he accepted a speaking engagement at Pat Robertson's 
university at the request of Pat Robertson, including a press 
conference with Mr. Robertson, a visible and vocal opponent of the 
President with a history of public statements raising questions about 
Vincent Foster's death, then being investigated by Mr. Starr. In 1997, 
Mr. Starr announced his intention to accept a position at Pepperdine 
University at a program funded with millions of dollars provided by 
Richard Scaife, another declared opponent of the President and a chief 
funder of several organizations working on investigations into 
President Clinton, including the Paula Jones case. (He subsequently 
reversed course and stayed in office.)
  During his employment with the federal government as independent 
counsel, Mr. Starr continued his law practice at the firm of Kirkland 
and Ellis. He continued to receive his full annual remuneration as a 
partner and continued to handle a number of very high profile cases, a 
number of which involved issues where Mr. Starr represented the 
position directly contrary to the Clinton Administration position.
  In February 1998, Mr. Starr's law firm apparently sent the Chicago 
Tribune copy of an affidavit of a witness in the Paula Jones case that 
was to be filed in that case--before the affidavit had been filed in 
court. While Mr. Starr's firm denied assisting Jones' legal team, it 
also resisted responding to a subpoena issued by the President's 
counsel relative to the sending of that affidavit. Also, the press 
reported that a former counsel to Paula Jones, Joseph Cammarata, 
admitted that he had sought legal advice on several occasions from one 
of the firm's partners, Robert Porter. So while Mr. Starr was working 
as independent counsel and continuing to serve as a partner at Kirkland 
and Ellis, one of his law partners allegedly was providing legal advice 
to the counsel in the Paula Jones case, in possible violation of the 
independent counsel law which prohibits ``any person associated with a 
firm with which (an) independent counsel is associated'' from 
representing ``any person involved in'' any investigation conducted by 
such independent counsel.


                               conclusion

  The position that Mr. Starr occupies is a position of public trust 
and duty, designed to be free from politics and partisanship, a 
position with powerful tools for investigation, unlimited but for the 
parameters of the independent counsel law and for the common sense and 
good judgment of the person holding the office.
  Kenneth Starr has acted with no effective limits, because although he 
is subject to the ultimate authority of the Attorney General, given her 
power to fire him for cause, she is effectively powerless to rein in 
his excesses because her discharge of him would be so reminiscent of 
the ``Saturday Night Massacre'' in which Archibold Cox, the prosecutor 
investigating Richard Nixon, was fired. (In fact, the Attorney General 
has already been threatened with impeachment simply because she has 
taken a stand to protect her ongoing criminal investigations and 
prosecutions with respect to campaign finance abuses.)
  I have urged the Attorney General, by letter, to go to court to 
enforce the requirement that Mr. Starr abide by the policies of the 
Department of Justice. She has not responded and perhaps could not 
because, I am speculating here, it could make it even more difficult 
for her to finally act to restrain Mr. Starr should she decide to do 
so, as it might appear that she was doing so under pressure.
  Some Democrats are reluctant to speak out against Mr. Starr's abuses 
of power out of fear that they will be perceived as defending the 
President's actions. Some Republicans I have spoken with, who feel Mr. 
Starr has gone too far, won't say so publicly because of the negative 
reaction it might engender in some circles in which they must function.
  It will be difficult in this environment to salvage the legitimate 
goal of the independent counsel law when it expires next year.
  Any hope of achieving the radical surgery needed to prevent a 
prosecutor from abusing the powerful tools provided an independent 
counsel will depend on Democrats and Republicans who still believe in 
the legitimate purpose of the independent counsel law working together. 
Only such a bipartisan effort has a chance of stitching into the 
independent counsel law's fabric, now stretched beyond recognition, 
limits on the exercise of an independent counsel's power which are so 
essential in our constitutional design of checks and balances to 
prevent abuses in the exercise of governmental power.
  Mr. President, I yield the floor. I note the absence of a quorum.
  The PRESIDING OFFICER (Mr. Abraham). The clerk will call the roll.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask unanimous consent to speak as if 
in morning business for approximately 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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