[Congressional Record Volume 146, Number 47 (Thursday, April 13, 2000)]
[Senate]
[Pages S2653-S2655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          INDEPENDENT COUNSEL

  Mr. REID. Mr. President, this past Tuesday, the Washington Post 
carried a story reporting that Independent Counsel Robert Ray, a lawyer 
who was trained in prosecutorial ethics by Rudolph Giuliani and who 
took over the special prosecutor duties from Ken Starr, is planning on 
continuing and even expanding his investigation of President Clinton. 
Mr. Ray has hired six new prosecutors and another investigator and 
plans to increase spending over the next 6 months by $3.5 million. 
Under this plan, he is seriously considering indicting the President 
after he leaves office for a number of things. He includes perjury, 
obstruction of justice, making false statements, and even conspiracy.
  When I read this story, to say the least, I was surprised. One year 
ago, I stood in this Chamber at this same seat during the impeachment 
trial of the President of the United States and compared what was 
happening then to literature. I can no longer make that comparison 
because what is happening here is too outlandish and unbelievable to 
qualify anymore as literature. Every great story has an ending. Every 
play has a denouement.
  This investigation has already lasted 6 years. It has cost Nevada 
taxpayers and the taxpayers of this country more than $52 million, not 
counting the money this new prosecutor wants to spend in the next 6 
months.
  More than the length of this proceeding, more than the cost of this 
proceeding, this story has crossed the line from Kafka to ``The 
Twilight Zone.'' It has drifted from prosecutorial intemperance to the 
brink of lunacy.
  A number of years ago, the very articulate, brilliant Supreme Court 
Justice Antonin Scalia criticized the independent counsel statute. He 
pointed out that with the typical criminal case, the prosecutor starts 
with a crime and then looks for the perpetrator.
  But with an independent counsel, the prosecutor starts with a suspect 
and searches to find a crime--any crime--to charge him or her with. 
Once placed in office, the prosecutor has built-in pressure to bring a 
charge rather than exonerate his target in order to justify his very 
existence; and in this instance, the tens of millions of dollars 
already spent. There is no more perfect example to what Justice Scalia 
was talking about than this so-called case.
  Let's trace the confused and wandering thread of this narrative. This 
all began with the 20-year-old land deal called Whitewater--an Arkansas 
land deal 1,500 miles from here. The special prosecutor spent millions 
of dollars. Nothing turned up. But he kept going. He put a woman by the 
name of Susan McDougal in jail for 2 years, even though she had 
committed no crime. There is no debate about that. And she had never 
been convicted in a court of law. There is no debate about that.
  Why? He wanted her to change her testimony and implicate the 
President and the people at the White House.
  She would not do that. She went to jail. Eventually, after an 
innocent person, who had never been accused of a crime, had languished 
in jail for years, he gave up on Whitewater. He, the prosecutor, gave 
up on Whitewater, but he did not give up on looking for something on 
the White House.
  First, he investigated the unfortunate death of Vince Foster and 
reached

[[Page S2654]]

the same conclusion other investigators had already reached. It was a 
suicide.
  I am personally resentful of what the prosecutor did in this 
instance. What he put the Foster family through is untoward, unfair, 
and immoral. My father committed suicide. It is very difficult for a 
family to go through a suicide.
  Vince Foster was a good man. No one ever disputed that. He was 
despondent. He killed himself. That should have ended it. But no, what 
Starr wanted to do was to bring in all these conspiratorial theories 
that the President had had him killed.
  Can you imagine that? One of the President's best friends, and he not 
only drags the President through this, but he also drags the Foster 
family through this.
  This not only was immoral, in my opinion, but it cost millions of 
dollars. What did he get to show for it? Nothing. Then this 
prosecutor--persecutor, some would call him--took a look at the 1993 
firings at the White House Travel Office, and reached the same 
conclusion that other investigators had reached. There was nothing 
there. Millions of dollars more, and nothing to show for it.
  Then he took a look at a deposition in a civil suit brought by Paula 
Jones. That suit was dismissed by a Federal judge. But no matter, the 
prosecutor hired to look at a land deal had struck gold with a lie 
about a sex act in a case that was dismissed. He latched on to it, and 
refused to let go.
  It did not matter that he did not have jurisdiction over this issue. 
He created jurisdiction by filing a statement with the Attorney General 
of the United States asserting the case had fallen into his lap by 
accident, when in fact there was credible evidence, sound evidence, 
that his staff had been in close contact with Paula Jones' lawyers from 
the very beginning and had worked with them and fed them information.
  This is supposedly an unbiased prosecutor. He was obviously so 
excited about what he had found that he began leaking information to 
the press in violation of Federal law and Justice Department 
regulations. The court appointed an investigator to investigate the 
investigator. But no matter, he had found something that he could use 
to justify the millions of dollars he was spending, and he was not 
about to give it up.

  His investigators questioned Monica Lewinsky alone in a hotel room. 
Can you imagine the audacity of this young woman asking for a lawyer? 
She asked for a lawyer. They denied her request. They would not let 
legal niceties get in their way.
  A first-year law student knows a person being investigated for a 
crime is entitled to a lawyer. But not Ken Starr's minions.
  The main evidence he had in this case were the tapes, the 
surreptitious tapes made by one Linda Tripp, who has been charged 
criminally by a Maryland grand jury for wiretapping. It did not matter 
that the tapes were made illegally. He was going to use them anyway. He 
kept on going. Still not enough.
  When Monica Lewinsky would not cooperate with his probe, he dragged 
her parents before the grand jury. He subpoenaed bookstores to find out 
what kind of books they were buying and reading. The public was 
appalled. I was appalled. But he was still going to go ahead. Still not 
enough.
  After investigating for a year, the independent counsel released a 
report to Congress that was embarrassing in its sexual explicitness and 
even more embarrassing in its biased reporting of the facts.
  Monica Lewinsky said she had never been asked to lie and was never 
promised a job. But Prosecutor Starr never mentioned this once in the 
hundreds of pages of his report. It was so biased and so one sided that 
this, among other things, turned the public against the independent 
counsel and his unethical practices and unethical tactics. But no 
matter, he kept on going. Still not enough.
  The House of Representatives voted to impeach on a straight party-
line vote. This body, the Senate of the United States, voted on a 
bipartisan basis not to convict the President on any charge. Democrats 
and Republicans, listening to the evidence, voted not to convict.
  The Congress of the United States then decided not to renew this 
awful law that authorized the independent counsel. I always opposed it. 
The law died last summer. And rightfully so. For 200 years, the Justice 
Department has done a good job. Over time, with the independent counsel 
we have had some real travesties. During the Reagan administration, 
what was done to that President by the independent counsel was wrong. 
We could go through other examples.
  But even though the law died last summer, and it should have stopped 
there, it did not. Still, Starr had not had enough.
  After failing to convict the President, in one last, desperate grab 
at the glory that he thought had escaped him, Starr focused the power 
of his office on a story told by a person by the name of Kathleen 
Willey--a story of an alleged touch that was completely irrelevant to 
his mandate.
  Remember--Whitewater, Arkansas, 1,500 miles away.
  When a friend of Ms. Willey, named Julie Hyatt Steele, dared to 
contradict the story, in effect, saying that Kathleen Willey was 
lying--how could she dare do such a thing?--Starr indicted her for 
perjury. And not only that--she could probably handle the perjury 
charge, which was so baseless--he threatened to have her children taken 
away from her. Who are these children? This good woman adopted orphans 
from Romania; and he threatened to send them back to Romania. What a 
guy--an innocent woman and her orphan-adopted children. These are the 
trophies that special prosecutor Ken Starr had to show for all of his 
efforts and all the pain he had caused. But, no, still not enough.

  Our weary Nation was thankful when Starr began scaling down his 
investigation and, in October, finally resigned.
  I thought that was the end of the story. Most Americans thought that 
was the end of the story. But surprisingly, apparently, shockingly, it 
is not the end. Still not enough.
  The lynch mob, though, now has a new leader, one who is willing to 
prejudge the facts and unbalance the law in the spirit of his mentor, 
Rudy Giuliani, and, of course, his predecessor, Ken Starr. The new mob 
leader is Robert Ray. Apparently, he is not going to let the acquittal 
by this body, or the resignation of his predecessor, or the expiration 
of the statute under which he supposedly is acting, stand in his way. 
Still not enough.
  This is a long, sad, and sordid story that should have ended long 
ago. The Office of the Independent Counsel has repeatedly stepped over 
the line of decency in its quest to find something--anything--on the 
President.
  Now, the new special prosecutor says he is considering indicting the 
President after he leaves office next year. I say, enough is enough.
  The President has been tried in this body. He has been acquitted. He 
suffered. His family suffered. His legacy is forever tarnished. He is 
deeply in debt to his lawyers. The Arkansas bar is considering 
withdrawing his license to practice law. He has not gone unpunished. 
Apparently, that is not enough for Mr. Ray; still, not enough.
  In primitive legal systems, such as those of Communist countries and 
other totalitarian dictatorships, every minor technical violation of 
the law is met with the full force and fury of the government. Police 
are to be feared. But the greatness of our legal system is that it 
recognizes that because human beings are frail and fall short of 
perfection, mercy must season justice. At its heart, criminal law and 
the prosecutors charged with enforcing it exist to serve and protect 
the public. Our legal system contemplates discretion. Not every 
violation of the law should be pursued to the fullest extent because 
not every crime is the same. The decision not to prosecute or not to 
bring certain charges is as much of a prosecutor's job as a decision to 
bring charges.
  When the impeachment hearings began, I cosponsored a censure 
resolution that in lieu of impeachment proceedings would have 
specifically provided the President remain subject to criminal actions 
in a court of law, such as any other citizen. That resolution was 
opposed in this body by Senators who instead voted to go down the 
impeachment road.
  I was a trial lawyer before I came here. I understand there are 
offers of

[[Page S2655]]

settlement made and withdrawn. That was an offer of settlement that 
attempted to expedite things and not have the spectacle that took place 
in the Senate. But once it was decided that the proper legal course of 
action was to pursue the constitutional impeachment proceeding, the 
decision should have been final and binding. It was still not enough.
  Even Ken Starr, the original prosecutor, is quoted in published 
reports as holding the belief that once the Senate acts on an 
impeachment vote, further criminal actions are totally inappropriate.

  There is a concept in our system of justice known as double jeopardy. 
It applies here. That doctrine holds that there is a limit to what a 
Government prosecutor can do to a United States citizen. It recognizes 
that there comes a point where continued investigation crosses the line 
into inappropriate Government harassment. An investigation into the 
truth should not be allowed to become a vendetta against an individual. 
It does recognize that enough is enough.
  Many of his critics suggest that the President does not have greater 
rights under the law than any other citizen of this country. I agree. 
That is true. But equally true is the fact that the President should 
not have fewer rights than any other citizen. What the President did 
should not be lightly or easily forgiven, but it should not be blown 
out of proportion either by an unrelenting, unfair, trophy-seeking 
prosecutor with an unlimited budget in search of a conviction that 
won't serve the cause of justice. This case has gone on far too long. 
Tens of millions of dollars, tragedy, embarrassment, double jeopardy--
enough is enough.
  It can best be summed up, Mr. President, by syndicated columnist 
Richard Cohen in today's Washington Post, printed in newspapers all 
over America, entitled, ``Independent Counsel Overkill'', which ends by 
saying:

       Give it up, Bob. Your best way of serving the country is to 
     close down your office, lock the door and put Clinton behind 
     you.
       The country already has.

  Mr. President, I yield whatever time I have remaining to the Senator 
from South Dakota.
  The PRESIDING OFFICER. The Senator has 2\1/2\ minutes remaining. The 
Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I appreciate the yielding of time by the 
gentleman from Nevada. I ask unanimous consent to proceed as in morning 
business for 5 minutes, and following my remarks, Senator Collins of 
Maine be recognized to speak for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Johnson and Ms. Collins pertaining to the 
introduction of S. 2419 are printed in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Connecticut, Mr. Dodd, or his designee, is recognized to speak for up 
to 30 minutes.

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