[Congressional Record (Bound Edition), Volume 162 (2016), Part 3]
[Senate]
[Pages 4293-4295]
[From the U.S. Government Publishing Office, www.gpo.gov]




              CALLING FOR APPOINTMENT OF A SPECIAL COUNSEL

  Mr. CORNYN. Madam President, I want to turn to a topic that has 
concerned me a lot over the last year and troubles me more each day, 
and that is the use by former Secretary of State Hillary Clinton of an 
unsecured private email server while serving as our Nation's top 
diplomat. We have known

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about her private email server for a while now and the great lengths 
she has gone to avoid compliance with some pretty important laws that 
Congress has passed and that have been signed into law by the President 
of the United States.
  I believe transparency in government is very important in terms of 
building public confidence for what we are actually doing. That is why 
even when I was at the State level as Texas Attorney General, I was an 
avid supporter of open records and open meetings legislation so the 
public had access and saw their right to know honored.
  Here in Congress, since I have gotten here, I have been working 
closely with my ideological opposite, Senator Pat Leahy from Vermont, 
with him on the left end of the spectrum and me on the right end of the 
spectrum, but both agreeing that the public's right to know is so 
important when it comes to self-government and what the public doesn't 
know can hurt them. That is why when Lyndon Johnson signed the Freedom 
of Information Act into law, it passed with such broad support, and it 
continues to enjoy that kind of broad support today. It applies the 
principle of transparency and accountability, and in the process, it 
helps build confidence for what Congress is doing on the people's 
behalf.
  It is pretty clear that Secretary Clinton sought to evade those 
important laws by setting up this private email server.
  I know most people are familiar with the dot-com domains that we use 
perhaps at your home or my home, and we have the dot-gov domain, which 
is used by government agencies and the like. But then there is a dot-
mil, which is used by the Department of Defense and is a classified 
system. There is actually another system that operates independently 
which carries the most sensitive classified information circulated by 
our intelligence community around the world.
  Those are important distinctions because those don't necessarily talk 
to each other. In fact, they are not connected to the Internet. The 
classified intelligence system server is not connected to the military 
classified system or to the dot-gov system and certainly not to the 
dot-com or the private email server.
  I have not heard another example of anybody who has been quite so 
careless--to use the President's term--or reckless--to use my term--
with how private email servers are used to conduct official business. 
There is a lot of risk associated with that.
  We know the former Secretary of State did delete tens of thousands of 
emails that were once on the server. In other words, she hadn't turned 
those over to the State Department to vet and determine whether they 
complied with court orders requiring the State Department to produce 
emails that were producible under the Freedom of Information Act. She 
just deleted them.
  We know that her emails contained classified information, some at 
very high levels of government classification. As many of our Nation's 
top security experts will tell you, it is likely that our adversaries 
had easy access to and monitored Secretary Clinton's unsecured server, 
as well as the sensitive communications that were contained on it.
  As Secretary of State, you are a member of the President's Cabinet. 
You are operating at the highest levels of classification with very 
sensitive information, and it is simply irresponsible to subject that 
information to the efforts by our Nation's adversaries to capture and 
read it and use it to their advantage.
  All of this should concern all of us. I am not just talking about the 
political ramifications. This is not primarily about politics. But 
Secretary Clinton's actions were such an extreme breach of the Nation's 
confidence, and they potentially gave away extremely sensitive 
information that put our national security in jeopardy, not to mention 
the lives of those who serve our country in the intelligence community 
and whose very identity may have been revealed by this very sensitive 
classified information.
  This is not a trivial matter. We need to treat this seriously, and 
the facts must be pursued in a thorough, impartial investigation. I 
know most people don't really believe there is such a thing as an 
impartial investigation here in Washington, DC, but there is a category 
of counsel that has been created by Congress to provide some measure of 
independence from the Department of Justice. That is called a special 
counsel. It is up to the Attorney General herself whether to appoint 
the special counsel when she recognizes that there is an apparent 
conflict of interest or at least an appearance of partiality that ought 
to be dealt with by the appointment of a special counsel.
  Given the unprecedented nature of this case and the unavoidable 
conflicts of interest, I strongly believe there is no other appropriate 
action for Attorney General Loretta Lynch to take than to appoint a 
special counsel in this case to get to the bottom of it, to follow the 
facts to wherever they may lead, and to make sure the law is applied 
impartially and fairly wherever those may fall.
  The American people were reminded of the need for a special counsel 
last weekend when, once again, President Obama opined publicly about 
the investigation. In an interview on Sunday, President Obama dismissed 
the email scandal by splitting hairs about how the government 
classifies information. According to the President--get this--``there's 
classified, and then there's classified'' information.
  He was attempting to draw meaningless distinctions between levels of 
classification, suggesting that release or exposure of some classified 
information was OK as long as it wasn't the ``classified'' information, 
which supposedly he would say should be kept from our Nation's 
adversaries and kept confidential.
  President Obama, in other words, was trying to indicate that even 
though classified information was on Secretary Clinton's private 
server, he somehow divined that it was not so sensitive that it would 
put our country in jeopardy.
  First of all, we know that some of Secretary Clinton's emails were 
classified even beyond confidential, to the secret and top secret 
special access program levels--some of the highest levels of 
classification. Second, the President's comments have to be confusing 
to many public servants around the country, who, as part of their daily 
work, handle classified information and the way they do it when they 
are issued a national security clearance or sign a nondisclosure 
agreement. According to the President, it must be OK to expose some 
classified information to public view but not others. I can guess that 
people who work in that world must be somewhat confused and perplexed 
by the President's statement.
  To dismissively talk about the different levels of classification is 
not only wrong but, frankly, it is insulting to Americans who work 
tirelessly on a daily basis to protect our national security and, in 
particular, to those who go to great lengths to properly and carefully 
handle classified information, even when it isn't particularly 
convenient.
  But perhaps worse, the President was opining publicly on the results 
of an ongoing criminal investigation over which it turns out he knows 
absolutely nothing--at least if you believe the key players in that 
investigation. Although he claims to adhere to a strict line between 
himself and the investigation, President Obama repeatedly suggests his 
desired outcome and acts as if he is Secretary Clinton's front line of 
defense.
  Here is President Obama in the same interview. He said that he 
``continues to believe that [Secretary Clinton] has not jeopardized 
America's national security.''
  How in the world could the President possibly know that if, in fact, 
there is a strict line between himself and the investigation?
  Attorney General Lynch has testified and stated in front of the 
Senate Judiciary Committee--and FBI Director Comey has likewise 
testified--that there has been no reporting to the White House about 
the results of the

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ongoing investigation. Everybody understands that would be improper, 
but somehow the President suggests it is all OK and that he knows, 
when, in fact, he doesn't know.
  How could the President possibly know that, especially when--as the 
President made clear last Sunday--he has not been ``sorting through 
each and every aspect'' of the issue? By the President's own admission, 
he doesn't talk to the Attorney General or the FBI Director about 
ongoing investigations, and he certainly isn't conducting it, so he 
wouldn't have personal knowledge. Under no circumstance is this kind of 
commentary by the President OK. There is simply no way to read this 
without running a serious risk of trying to influence the outcome of 
the investigation, which everybody should recognize would be completely 
improper. The President has done this before and so has his spokesman, 
the White House Press Secretary. Time and again the White House has 
projected its desired outcome in this investigation to the public and, 
worse, to those people conducting it. As I said, it is completely 
inappropriate, but don't just take it from me.
  As I mentioned a moment ago, last month the Judiciary Committee heard 
testimony from Attorney General Loretta Lynch. I conveyed to her at the 
time the need for a special counsel to investigate the case. At the 
hearing, Attorney General Lynch testified that it was her hope that 
everyone, including the White House, would stay silent when it comes to 
commenting on an ongoing investigation by the FBI.
  I couldn't agree with her more. The responsible thing for the 
President to do would be to say nothing, particularly if he knows 
nothing about the content of an ongoing criminal investigation. I wish 
the President would take the advice of his lawyer, the Attorney General 
of the United States, and respect her prerogative as the Nation's chief 
law enforcement officer and the reputation of the Federal Bureau of 
Investigation. Director Comey made it clear that the FBI does not care 
for politics. It doesn't play politics. In fact, the credibility and 
integrity of the FBI depends upon their not playing politics. So why is 
the President playing politics with law enforcement?
  Well, the threat of a President influencing an ongoing investigation 
intentionally or otherwise is not something we must just accept. What 
we need is an investigation that is as independent as possible.
  I hope the Attorney General, in light of the President's comments and 
his attempt to influence the investigation--I can think of no other 
reason he would say what he did--reconsiders her refusal to appoint a 
special counsel in this case. At the very least, I hope the President 
quits talking about a subject he knows nothing about, which is what the 
investigation is revealing, and let the Justice Department do its job 
without feeling the pressure that apparently the White House is 
attempting to impose on the FBI and the Department of Justice.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. RUBIO. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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