[Congressional Record Volume 146, Number 104 (Friday, September 8, 2000)]
[Senate]
[Pages S8274-S8276]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INDEPENDENT COUNSEL ROBERT RAY'S INTENTION TO RELEASE HIS CONCLUSIONS 
                        IN THE WHITEWATER MATTER

  Mr. LEVIN. Mr. President, I come to the floor today to express my 
shock at the recent statement of independent counsel Robert Ray in last 
week's New York Times that he will shortly be releasing findings and 
conclusions in the Whitewater matter. Only the special court has the 
authority to release the final report of an independent counsel or any 
portion of a final report, and the only authority the law gives an 
independent counsel is to prepare a final report and file it with the 
special court. Mr. Ray has no legal authority to unilaterally release 
results of his investigation, and if he does so, he is defying the law.
  Section 594 of the independent counsel law lists the authority and 
duties of an independent counsel. And, although this law has expired 
with respect to the appointment of new independent counsels, it is 
still the applicable law with respect to already existing independent 
counsels like Mr. Ray. And here's what the law says with respect to 
reports by independent counsels.

       (h)(1) An independent counsel shall--
       (A) [file 6 month expense reports with the special court] 
     and
       (B) before the termination of the independent counsel's 
     office under section 596(b), file a final report with the 
     division of the court, setting forth fully and completely a 
     description of the work of the independent counsel, including 
     the disposition of all cases brought.

  That section of the law then goes on to prescribe the process for 
disclosing information in the final report, and here's what it says:

       (h)(2) The division of the court may release to the 
     Congress, the public, or any appropriate person, such 
     portions of a report made under this subsection as the 
     division of the court considers appropriate. The division of 
     the court shall make such orders as are appropriate to 
     protect the rights of any individual named in such report and 
     to prevent undue interference with any pending prosecution. 
     The division of the court may make any portion of a final 
     report filed under paragraph (1)(B) available to any 
     individual named in such report for the purposes of receiving 
     within a time limit set by the division of the court any 
     comments or factual information that such individual may 
     submit. Such comments and factual information, in whole or in 
     part, may, in the discretion of the division of the court, be 
     included as an appendix to such final report.

  As anyone can see from the plain language of the statute, we placed 
the full responsibility for disclosure of the final report --or any 
portion of a final report--exclusively in the hands of the special 
court. We did this, in significant part, out of the concerns we had 
that individuals named in the report be given an opportunity, out of a 
sense of fairness, to provide their comments to the public at the time 
the report is released. That's why we gave the special court the 
authority to make ``any portion of the final report . . . available to 
any individual named in'' the report prior to any release to the public 
-- so such individual could file comments or factual information for 
the court to consider in deciding whether to make such report or 
portion of the report public and if so, to append such comments or 
factual information to the report for distribution. Any public release 
of findings and conclusions would deny individuals named in the report 
the opportunity to comment on the report prior to release as expressly 
intended by Congress.
  Mr. Ray's statement that he intends to release findings and 
conclusions of his investigation into the Whitewater matter when he 
sends his final report to the special court is contrary to the 
requirements of the law. Mr. Ray should reverse his stated course and 
comply with the law. I have written to Mr. Ray to urge him to withhold 
releasing findings and conclusions about the Whitewater matter until 
permitted to do so by the special court. I have also notified the 
Attorney General of my concerns and urged her, as the only one with 
supervisory authority over independent counsels, to take the 
appropriate action to keep Mr. Ray's conduct within the parameters of 
the independent counsel law. And finally, I have written to the special 
court to bring this to the court's attention and to urge the special 
court to enforce the law and their exclusive prerogative under the law 
to control any public release of the independent counsel's findings and 
conclusions.

[[Page S8275]]

  I ask unanimous consent that the New York Times article of August 29, 
2000, appear in the Record immediately following my remarks as well as 
copies of my letters to the Attorney General, the special court and Mr. 
Ray.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                                                      U.S. Senate,


                            Committee on Governmental Affairs,

                                Washington, DC, September 7, 2000.
     Hon. David B. Sentelle,
     United States Circuit Judge, United States Court of Appeals 
         for the District of Columbia Circuit, Special Division, 
         Washington, DC.
       Dear Judge Sentelle: The New York Times published an 
     article on August 29, 2000, (copy enclosed) which reported 
     that independent counsel Robert Ray is planning to release to 
     the public the findings and conclusions of his investigation 
     into the Whitewater matter at the same time he files the 
     final report on the Whitewater matter with the special court. 
     Such action would, in my opinion, be in violation of the 
     independent counsel law, and I urge you and your colleagues 
     on the court to take whatever action may be appropriate.
       Only the special court has the authority to release the 
     final report or any portion of a final report of an 
     independent counsel, and the only authority the law gives an 
     independent counsel is to prepare a final report and file it 
     with the special court. Section 594(h)(2) of the law 
     provides:
       ``The division of the court may release to the Congress, 
     the public, or any appropriate person, such portions of a 
     report made under this subsection as the division of the 
     court considers appropriate. The division of the court shall 
     make such orders as are appropriate to protect the rights of 
     any individual named in such report and to prevent undue 
     interference with any pending prosecution. The division of 
     the court may make any portion of a final report filed under 
     paragraph (1)(B) available to any individual named in such 
     report for purposes of receiving within a time limit set by 
     the division of the court any comments or factual information 
     that such individual may submit. Such comments and factual 
     information, in whole or in part, may, in the discretion of 
     the division of the court, be included as an appendix to such 
     final report.''
       The law places the full responsibility for disclosure of 
     the final report--or any portion of a final report--in the 
     hands of the court.
       I have enclosed a copy of the statement I delivered to the 
     Senate on this matter as well as copies of the letters I sent 
     to the Attorney General and to Mr. Ray.
       I hope you will respond promptly to this matter, since Mr. 
     Ray apparently plans to be releasing his findings and 
     conclusions in the next few weeks. Thank you for your 
     attention to my concerns.
           Sincerely,
     Carl Levin.
                                  ____

                                                      U.S. Senate,


                            Committee on Governmental Affairs,

                                Washington, DC, September 7, 2000.
     Robert Ray, Esquire,
     Office of Independent Counsel, Washington, DC.
       Dear Mr. Ray: The New York Times published an article on 
     August 29, 2000, (copy enclosed) which reported that you are 
     planning ``to issue [the] findings and conclusions'' of your 
     investigation into the Whitewater matter to the public at the 
     same time you file your final report on that matter with the 
     special court. If that is true, it would, in my opinion, 
     violate the requirements of the independent counsel law. I 
     urge you, therefore, to comply with the law and keep your 
     findings and conclusions nonpublic until, as the law 
     requires, the special court decides whether and, if so, when 
     to make the final report or any portion thereof available to 
     the public.
       I write this letter to you for several reasons. First, as 
     one of the senators involved in the oversight and 
     reauthorization of the independent counsel law for these past 
     20 years I have a strong and longstanding interest in making 
     sure that the law is followed. The requirement for a final 
     report has been a controversial one, since federal 
     prosecutors do not prepare such reports and keep the results 
     of their investigations confidential, unless they proceed 
     with indictments or informations. But the law is clear on an 
     independent counsel's responsibility with respect to the 
     final report. Only the special court has the authority to 
     release the final report of an independent counsel or any 
     portion of a final report, and the only authority the law 
     gives an independent counsel is to prepare a final report and 
     file it with the special court. Section 594 (h)(2) of the 
     independent counsel law provides:
       ``The division of the court may release to the Congress, 
     the public, or any appropriate person, such portions of a 
     report made under this subsection as the division of the 
     court considers appropriate. The division of the court shall 
     make such orders as are appropriate to protect the rights of 
     any individual named in such report and to prevent undue 
     interference with any pending prosecution. The division of 
     the court may make any portion of a final report filed under 
     paragraph (1)(B) available to any individual named in such 
     report for the purposes of receiving within a time limit 
     set by the division of the court any comments or factual 
     information that such individual may submit. Such comments 
     and factual information, in whole or in part, may, in the 
     discretion of the division of the court, be included as an 
     appendix to such final report.''
       Second, one of our major concerns about making the report 
     public was that individuals named in the report be given an 
     opportunity, out of sense of fairness, to provide their 
     comments to the public at the time the report is released. 
     That's why we gave the special court the authority to make 
     ``any portion of the final report . . . available to any 
     individual named in'' the report prior to any release to the 
     public so such individual could file comments or factual 
     information for the court to consider in deciding whether to 
     make such report or portion of the report public and if so, 
     to append such comments or factual information to the report 
     for distribution. Any public release of your findings and 
     conclusions would deny individuals named in the report the 
     opportunity to comment on the report prior to release as 
     expressly intended by Congress.
       As an independent counsel you have been given a tremendous 
     amount of discretion and power. The appropriate exercise of 
     the independent counsel law relies on your ability to 
     exercise such discretion and power in a fair, just and lawful 
     manner. I know of no one who worked on the independent 
     counsel law these past 20 years who contemplated an 
     independent counsel issuing the findings and conclusions of a 
     final report before the special court had reviewed such 
     report, had the opportunity to permit comment by persons 
     named in such report, and released such report to the public 
     on the court's order. I urge you to act in this matter in 
     accordance with both the law and Congressional intent.
       On a related matter, during the Senate's consideration of 
     the 1994 reauthorization of the independent counsel law, the 
     Senate adopted an amendment by Senator Robert Dole to limit 
     the scope of the final report required of independent 
     counsels. Senator Dole offered his amendment to remove any 
     requirement that an independent counsel explain in the final 
     report the reasons for not prosecuting any matter within his 
     or her prosecutorial jurisdiction. While the provision not 
     prosecuting any matter within her prosecutorial jurisdiction. 
     While the provision requiring the final report was retained 
     to provide an accounting of the work of the independent 
     counsel, the amendment by Senator Dole was intended to 
     prohibit the expression of opinions in the final report 
     regarding the culpability of people not indicted.
       The legislative history on this amendment by Senator Dole, 
     which was enacted into law, is instructive. Senator William 
     Cohen, who floor-managed the reauthorization bill with me, 
     explained the Dole amendment as follows: (November 17, 1993, 
     Congressional Record, page 29618):
       ``Both Senator Levin and I feel that Senator Dole has 
     raised a valid point. We believe that that final report 
     should be a simple declaration of the work of the independent 
     counsel, obviously pertaining to those cases in which he or 
     she has sought indictments but with respect to cases in which 
     the independent counsel had determined that no such 
     indictment should be brought, to preclude that independent 
     counsel from expressing an opinion or conclusion as to the 
     culpability of any of the individuals involved. * * * So 
     the purpose of the amendment is quite clear, to restrict 
     the nature of the report to the facts without engaging in 
     either speculation or expressions of opinion as to the 
     culpability of individuals unless that culpability or 
     those activities rise to a level of an indictable offense, 
     in which case the independent counsel would be duty bound 
     to seek an indictment.''
       The Conference Report for the 1994 reauthorization 
     summarized the purpose and scope of the amendment (Conference 
     Report, may 19, 1994, HR 103-511, page 19):
       ``The power to damage reputations in the final report is 
     significant, and the conferees want to make it clear that the 
     final report requirement is not intended in any way to 
     authorize independent counsels to make public findings or 
     conclusions that violate normal standards of due process, 
     privacy or simple fairness.''
       As you work on the final report, I hope you will pay close 
     attention to the change we made to the law in 1994 with 
     respect to the content of the final report as a result of the 
     Dole amendment.
       I am also enclosing for your information copies of the 
     letters I have sent to the special court and the Attorney 
     General concerning the matters I have raised in this letter 
     as well as a copy of the statement I made to the Senate.
           Sincerely,
     Carl Levin.
                                  ____

                                                      U.S. Senate,


                            Committee on Governmental Affairs,

                                Washington, DC, September 7, 2000.
     Hon. Janet Reno,
     Attorney General,
     U.S. Department of Justice, Washington, DC.
       Dear Madam Attorney General: The New York Times published 
     an article on August 29, 2000 (copy enclosed) which reported 
     that independent counsel Robert Ray is planning to release to 
     the public the findings and conclusions of his investigations 
     into the Whitewater matter at the same time he files the 
     final report on the Whitewater matter with the special court. 
     Such action would, in my opinion, be in violation of the 
     independent counsel law, and I urge you to take the 
     appropriate action.
       Only the special court has the authority to release the 
     final report or any portion of a

[[Page S8276]]

     final report of an independent counsel, and the only 
     authority the law gives an independent counsel is to prepare 
     a final report and file it with the special court. Section 
     594(h)(2) of the law provides:
       ``The division of the court may release to the Congress, 
     the public, or any appropriate person, such portions of a 
     report made under this subsection as the division of the 
     court considers appropriate. The division of the court shall 
     make such orders as are appropriate to protect the rights of 
     any individual named in such report and to prevent undue 
     interference with any pending prosecution. The division of 
     the court may make any portion of a final report filed under 
     paragraph (1)(B) available to any individual named in such 
     report for the purposes of receiving within a time limit set 
     by the division of the court any comments or factual 
     information that such individual may submit. Such comments 
     and factual information, in whole or in part, may, in the 
     discretion of the division of the court, be included as an 
     appendix to such final report.''
       The law clearly places the full responsibility for 
     disclosure of the final report--or any portion of a final 
     report--in the hands of the court.
       Moreover, one of our major concerns about making the report 
     public was that individuals named in the report be given an 
     opportunity, out of a sense of fairness, to provide their 
     comments to the public at the time the report is released. 
     That's why we gave the special court the authority to make 
     ``any portion of the final report . . . available to any 
     individual named in'' the report prior to any release to the 
     public so such individual could file comments or factual 
     information for the court to consider in deciding whether to 
     make such report or portion of the report public and if so, 
     to append such comments or factual information to the report 
     for distribution. Any public release of Mr. Ray's findings 
     and conclusions before release by the special court would 
     deny individuals named in the report the opportunity to 
     comment on the report prior to release as expressly intended 
     by Congress.
       The independent counsel law also clearly gives you as 
     Attorney General, and you alone, the supervisory 
     responsibility to ensure that the law is faithfully executed. 
     The Supreme Court relied on this authority in upholding the 
     constitutionality of the statute. In Morrison versus Olson 
     the Court said:
       ``(B)ecause the independent counsel may be terminated for 
     `good cause,' the Executive, through the Attorney General, 
     retains ample authority to assure that the counsel is 
     competently performing his or her statutory responsibilities 
     in a manner that comports with the provisions of the Act.'' 
     (At 692)
       Later or in the opinion the Court reiterated this view when 
     it said:
       ``(T)he 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 `faithfully executed' by an independent counsel.'' 
     (At 696)
       Mr. Ray's announced release to the public of his findings 
     and conclusions in the Whitewater case before the special 
     court has ordered such release defies the requirements of the 
     independent counsel law and merits action on your part to 
     stop it. Since Mr. Ray apparently plans to release his 
     findings and conclusions in the next few weeks, I urge your 
     immediate attention to this matter.
       I have enclosed a copy of the letters on this matter that I 
     sent to the special court and Mr. Ray as well as a copy of a 
     statement I made to the Senate. Thank you for your attention 
     to my concerns.
           Sincerely,
     Carl Levin.
                                  ____


                [From the New York Times, Aug. 29, 2000]

               Counsel Report On Whitewater Expected Soon

                           (By Neil A. Lewis)

       Washington, Aug. 28.--Robert W. Ray, the Independent 
     counsel, said he expected to issue a statement of his 
     findings and conclusions about the Whitewater investigation a 
     few weeks before New York voters go to the polls to choose 
     between Hillary Rodham Clinton and Representative Rick A. 
     Lazio, her Republican opponent for the United States Senate.
       Mr. Ray, whose office has investigated President and Mrs. 
     Clinton on a range of issues for more than four years, also 
     said in an interview that he would announce his decision on 
     whether he would seek an indictment of Mr. Clinton in 
     connection with his affair with a White House intern shortly 
     after the President left office. The prosecutor suggested 
     that the announcement about the possible indictment of Mr. 
     Clinton would come within weeks after a new president is 
     inaugurated on Jan. 20. Mr. Ray has already issued two 
     reports, one essentially clearing the Clintons in the 
     collection of confidential F.B.I. files about Republicans and 
     another critical of Mrs. Clinton's role in the dismissal of 
     longtime employees in the White House travel office.
       Setting out for the first time an explicit timetable on 
     those two matters in an interview on Friday and in comments 
     through a spokesman today, Mr. Ray also discussed some 
     considerations about the timing. Any criticism of Mrs. 
     Clinton from Mr. Ray in the final weeks of her campaign could 
     turn into a political issue. But Howard Wolfson, Mrs. 
     Clinton's campaign spokesman, said today in response to Mr. 
     Ray's plans: ``New Yorkers have already made up their minds 
     about this. They know there is nothing here.''
       Mr. Ray refused to discuss what the Whitewater report might 
     contain. While it has long been known there will be no 
     recommendation of any criminal indictment, the statement is 
     almost certain to discuss how his findings compare with Mrs. 
     Clinton's assertions to investigators and to the public about 
     her role as a lawyer in connection with several real estate 
     dealings in Arkansas. ``It's my intention to issue those 
     findings and conclusions prior to the election,'' he said. 
     ``Right now I'm trying for mid-September.'' Mr. Ray said he 
     would issue his Whitewater conclusions the moment they are 
     ready and ``not a second later.'' He said it would be wrong 
     to delay disclosing them. ``Even withholding them could have 
     political repercussions,'' he said, ``and that could be 
     viewed as being manipulative.'' Mr. Ray said he believed that 
     issuing his statement a few weeks before the election would 
     provide enough time for anyone to respond to it and for the 
     public to fully absorb both his views and those of anyone who 
     disputed his findings.
       He said that the one situation that might change his plans 
     would be if the statement was not ready until just a few days 
     before the election. If that were the case, he said, he would 
     consider withholding it. With regard to his decision about 
     Mr. Clinton and the possibility of bringing an indictment 
     after he leaves office, Mr. Ray said he had an obligation to 
     conclude the matter as soon as possible. ``It's time this 
     matter was brought to closure,'' he said, ``And it is coming 
     to closure.'' He added: ``I know the country is weary of 
     this. The country needs to get past this.'' Mr. Ray impaneled 
     a new grand jury on July 11 to consider whether Mr. Clinton 
     should be indicted in connection with his denials under oath 
     about whether he had a sexual relationship with Monica 
     Lewinsky, a onetime White House intern. He described the 
     decision-making process as largely ``a deliberative one now, 
     not an investigative one.'' Because the sole issue is whether 
     to charge the president after he leaves office, Mr. Ray said 
     he intended to take full advantage of the time until Mr. 
     Clinton left office to make up his mind. He said his 
     deliberations would require a few months. Mr. Ray also said 
     there were other factors to consider but declined to 
     elaborate.
       One possible factor is whether Mr. Clinton is disbarred. A 
     state judge in Arkansas is considering a recommendation from 
     a special bar committee that Mr. Clinton be stripped of his 
     law license because of his denials under oath of a 
     relationship with Ms. Lewinsky. A trial on the matter is 
     likely to be held this fall. Though Mr. Ray is an independent 
     counsel, he is obliged to follow Justice Department 
     guidelines that allow for prosecutors to show discretion and 
     decline to prosecute a case if the subject has already paid a 
     penalty--like disbarment or even suspension from the practice 
     of law. The Whitewater report that Mr. Ray is expected to 
     file with a special three-judge panel at the same time he 
     issues his statement of findings and conclusions will 
     probably be his last investigative report. He has already 
     filed two reports with the panel, one in March on allegations 
     that the White House, and particularly Mrs. Clinton, 
     collected hundreds of confidential F.B.I. files, many of them 
     of prominent Republicans, as part of a political 
     intelligence-gathering scheme. Mr. Ray concluded that the 
     improper acquisition was a bureaucratic foul-up involving 
     midlevel White House officials and that Mrs. Clinton had no 
     involvement, as she had asserted.
       But in his second statement of findings and conclusions, 
     issued in June, about whether Mrs. Clinton played a role in 
     the firing of seven longtime White House travel office 
     employees, Mr. Ray was far more critical of her sworn 
     statements. He made a point of saying that despite Mrs. 
     Clinton's strong denials, he concluded that she had played a 
     substantial role in causing the employees to be dismissed. 
     The Whitewater report may well follow that model as it is 
     expected to explore what Mrs. Clinton did as a lawyer for 
     various Arkansas clients, and contentions that she tried to 
     conceal or minimize her role.
       For example, one issue is a 1985 telephone call Mrs. 
     Clinton made on behalf of a client, Madison Guaranty and 
     Trust, to a senior Arkansas official who worked for her 
     husband, then the governor. She telephoned Beverly Bassett, 
     the state securities commissioner in Mr. Clinton's 
     administration, to discuss a proposal for Madison to float 
     preferred stock. Mrs. Clinton told investigators that she did 
     not remember whom she spoke with at the agency. She also said 
     she had only been trying to find out the appropriate official 
     for an associate at her firm, Richard Massey, to contact and 
     that she had not discussed the issue.
       But the regulator recalled the conversation in detail when 
     she testified before the Senate Whitewater committee. She 
     said that Mrs. Clinton had spoken with her and discussed the 
     substance of the proposal. And Mr. Massey testified he had 
     already known whom to contact.




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