[Congressional Record Volume 154, Number 65 (Wednesday, April 23, 2008)]
[Senate]
[Pages S3300-S3301]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       COCONUT ROAD INVESTIGATION

  Mr. KYL. Mr. President, I rise today to comment on the competing 
Coburn and Boxer amendments that were offered last Thursday to the 
highway technical corrections bill. I voted in favor of the Coburn 
amendment. That amendment would establish a bipartisan, bicameral 
committee of Congress to investigate the circumstances surrounding the 
changes that were made to the provisions of the 2005 highway bill 
relating to the Coconut Road project between the time that the bill 
passed the House and Senate and the time that it was enrolled.
  However, I voted against the Boxer amendment, which purports to 
command the Justice Department to commence a criminal investigation of 
this same matter. Whether to initiate a criminal investigation is a 
decision

[[Page S3301]]

that our Constitution vests exclusively in the executive branch. It is 
not a decision that the Constitution allows to be made through 
legislative enactments. Although the Boxer amendment's mandate to the 
executive was modified to state that the criminal investigation shall 
only commence ``under applicable standards and procedures,'' this 
change does not cure the amendment's constitutional infirmity. There 
are no ``applicable standards and procedures'' for a legislative 
mandate to the executive to initiate a criminal investigation. Whether 
to initiate such an investigation is a matter of prosecutorial 
discretion and is a decision entrusted firmly and solely to the 
executive branch. To the extent that the Boxer amendment purports to 
commandeer this function, it is a dead letter and will surely be 
ignored as unconstitutional legislative interference in an executive 
function.
  I would finally note that by insisting on replacing Senator Coburn's 
amendment with a me-too amendment of their own, the Democratic majority 
has undercut the likelihood that there will be any investigation of the 
Coconut Road matter. Senator Coburn's proposal to create a committee of 
Congress to investigate this matter was perfectly constitutional and 
would have gotten to the bottom of this issue. The Boxer amendment is 
an unconstitutional nullity. And even if that amendment weren't 
unconstitutional, or if the Justice Department undertook an 
investigation of this affair on its own initiative, such an 
investigation would only answer whether a Federal crime has been 
committed. Congress and the people deserve to know the circumstances 
and potential ethical violations raised by this matter regardless of 
whether a criminal offense occurred.
  I regret that the Coburn amendment was not adopted and was replaced 
by the Boxer amendment. By taking these actions, the Senate has crossed 
a constitutional line and has reduced the likelihood that the 
underlying matter will be adequately investigated.

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