[Congressional Record Volume 145, Number 60 (Thursday, April 29, 1999)]
[Senate]
[Pages S4421-S4422]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




ILL-CONSIDERED PROSECUTION OF FORMER AGRICULTURE SECRETARY MICHAEL ESPY

  Mr. LEAHY. Mr. President, there have been a lot of interesting things 
in the news this week. One is a story about the Supreme Court's ruling 
on Tuesday. It confirms the view that many of us have held for some 
time. Special Prosecutor Donald Smaltz was overreaching, at the very 
least, in indicting and trying former Secretary of Agriculture Mike 
Espy. Mr. Smaltz spent over 4 years and about $17 million of our 
taxpayers' money to run out of office this distinguished public 
servant.
  Last December, a jury said ``no'' to Special Prosecutor Smaltz and 
acquitted Mr. Espy of the charges against him. In fact, the jury said 
``no'' and ``no'' and ``no'' and ``no'' and ``no'' and ``no,'' I 
believe, over 30 times. Now the Supreme Court has said a resounding 
``no'' also. They rejected the broad reading urged by Mr. Smaltz of the 
criminal laws he has used to bring down a Cabinet Secretary. The 
Supreme Court, Tuesday, concluded that the conviction of a trade 
association for giving Mr. Espy gifts was correctly thrown out by a 
lower court.
  According to the Supreme Court, if Mr. Smaltz's reading of the 
Federal gratuity statute were correct--a reading that out-of-control 
special prosecutors seem to have--``it would criminalize, for example, 
token gifts to the President based on his official position and not 
linked to any identifiable act--such as the replica jerseys given by 
championship sports teams each year during ceremonial White House 
visits . . . [or] a high school principal's gift of a school baseball 
cap to the Secretary of Education, by reason of his office, on the 
occasion of the latter's visit to the school.''
  The Supreme Court wisely rejected these absurd results.
  Secretary Espy began his tenure as Agriculture Secretary facing 
challenges to the safety of our food supply, and he dealt with those 
challenges with enormous energy, compassion, and effectiveness. Just 
before he was sworn as Secretary, several children died because they 
ate contaminated hamburgers in Washington State.
  I remember this very well. I remember Secretary Espy immediately 
flying to Washington State to be with the families, because he cares 
about people. I remember talking to him about that, because I was at 
that time chairman of the Senate Agriculture Committee. I know that 
when he flew back to Washington, he devoted himself to preventing these 
needless deaths. He started putting into effect policies which will 
save thousands of lives in our country. He fought the industry itself--
a very powerful, well-heeled industry--to do the right thing.
  History will record his tenure as a turning point in updating and 
modernizing our food safety standards--a tradition continued by 
Secretary Glickman and President Clinton.
  But his ``trial by fire'' began at the hand of a special prosecutor 
run amuck. The unanimous jury verdict acquitting him underscores what I 
have been concerned about for some time--unaccountable prosecutors with 
unlimited budgets who can and will bring charges that no other 
prosecutor in the world would bring.
  This special prosecutor is one who is extremely frustrating. If I 
thought that what he did was out of sheer stupidity, that would be one 
thing. It would be enough if we thought that this was a man who was 
just not bright enough to know his job. But along with his total lack 
of judgment, his total stupidity, came a man whose overwhelming ego was 
such that he cared less about anybody he was after. The taxpayers were 
paying his bill. He cared only about preening before the cameras 
himself.
  He was particularly interested in promoting himself and patting 
himself on the back. He was among the first of the special prosecutors 
to establish his own Internet web page. It is like an advertisement for 
himself on this web page. Mr. Smaltz posted his reaction to the jury 
verdict and downplayed the acquittal since an ``indictment of a public 
official may, in fact, be as great a deterrent as a conviction of that 
official.'' That was the most flagrant admission of abuse of a 
prosecutor's power that I have ever seen--I was a prosecutor for nearly 
9 years--and it remains posted on his web page today.
  What he is saying is, it doesn't make any difference if the person is 
guilty or not. It doesn't make any difference if the jury acquitted 
over and over again, and the person is not guilty. All the prosecutor 
has to do is bring an indictment; that will teach them. This is no way 
to restore faith in the criminal justice system. This is an example of 
a prosecutor who indicts somebody for something that no jury would ever 
convict the person for, but says, ``I will show them because I am the 
prosecutor,'' or, ``I can do that because, after all, it is going to 
cost you hundreds of thousands and maybe millions of dollars to prove 
your innocence. And, besides, the taxpayers are paying my bill. So why 
should I care about you?''
  What ego, what stupidity, what arrogant abuse of power. I really 
cannot think of words strong enough to condemn such actions.
  No prosecutor should bring an indictment simply as a deterrent and 
without a good-faith belief that the case can be proved beyond a 
reasonable doubt. Prosecutors should not bring these charges simply to 
harass somebody, simply to cost them money. A prosecutor has a sworn 
duty not to bring a charge unless he or she thinks there is at least a 
reasonable chance they can prove the charge and the person is guilty. 
Common decency, saying nothing about the canons of ethics, would 
require that. Frankly, no prosecutor who has to answer to anybody would 
do that. Only a prosecutor who doesn't have to answer to anyone, only a 
prosecutor who has the taxpayers paying their unlimited bills, would do 
that.

  Putting aside the harm to reputation and cost to the defendant and 
witnesses of bringing unwarranted charges, indictments based on flimsy 
facts can be dangerous. The Government is barred under our 
Constitution's double jeopardy clause from bringing a case twice. So a 
prosecutor has a responsibility to ensure that the Government can prove 
its case the first time around. There is no opportunity for a second 
``bite at the apple.''
  One item that Special Prosecutor Smaltz did not put up on his web 
page was, I thought, one of the most disgusting things I have seen any 
prosecutor do. It was so bad that apparently, even with his unbridled 
ego and his lack of intellectual honesty, he did not feel he could 
bring himself to put it on the web page. That item was: he 
congratulated his team of well paid prosecutors with gifts of 
wristwatches. According to the press reports, these watches ``look 
good, with Smaltz' name around an eagle in the center of the 
independent counsel seal and the case name, `In re Espy.' ''
  It is like he was on some big game hunt and these were the trophies. 
Stupidity one might excuse, and stupidity

[[Page S4422]]

was evident here. But this kind of arrogant, egotistical abuse of a 
public trust nobody can forgive. In fact, I have wondered whether the 
cost of those gratuities exceeded the costs of the gifts that Mr. Espy 
was charged with receiving. Watch gifts may not be criminal; I find 
them certainly offensive.
  Mr. President, as we go into the debate we will have this year on 
whether we renew the Office of Independent Counsel--something, I 
predict, will not be done--let us not aim all our fire at the excesses 
of Kenneth Starr, or his tactics, or his misstatements of the facts to 
the Attorney General, or even some of the lies that came out of his 
office. Let us not focus just on that. Let's look at people like Donald 
Smaltz, a man who showed what happens when somebody of limited talent, 
of questionable ethics, of no integrity, how they can act when they are 
given unbelievable power, unlimited budget; and we in the Congress 
should ask ourselves whether we want to continue this.
  The Office of Independent Counsel, when filled with good men and 
women--and there have been some very good men and women of both parties 
who have been there--who follow the restraints that prosecutors would 
normally expect to have, have done a good job. But when it is filled by 
people who would serve with a sense of self-aggrandizement, it hurts 
the whole Nation. It hurts an awful lot of innocent people--people 
found innocent by juries, people found innocent by appellate courts, 
people whose reputations are besmirched and their bankrolls exhausted 
by the actions of unconscionable, incompetent, out-of-control persons 
like this man.
  Mr. President, I may speak more on this. I have tried to restrain 
myself in my comments about him today and to give him the benefit of 
the doubt. I have probably given him the benefit of the doubt more than 
he deserves.
  Mr. President, seeing no one else seeking the floor, I 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. KERRY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KERRY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Kerry, Mr. Kohl, and Mr. Jeffords pertaining to 
the introduction of S. 918 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. KERRY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent to address the 
Senate for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. LINCOLN. I thank the Chair.

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