SPEAKERS CONTENTS INSERTS
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REAUTHORIZATION OF THE INDEPENDENT COUNSEL STATUTE, PART II
COMMERCIAL AND ADMINISTRATIVE LAW
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
JUNE 11 AND SEPTEMBER 23, 1999
Serial No. 86
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Page 3 PREV PAGE TOP OF DOCSPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
Page 4 PREV PAGE TOP OF DOCED BRYANT, Tennessee
LINDSEY O. GRAHAM, South Carolina
STEVE CHABOT, Ohio
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
MARY BONO, California
JOE SCARBOROUGH, Florida
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
MELVIN L. WATT, North Carolina
ANTHONY D. WEINER, New York
WILLIAM D. DELAHUNT, Massachusetts
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN JENSEN-CONKLIN, Counsel
JAMES W. HARPER, Counsel
C O N T E N T S
June 11, 1999
September 23, 1999
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Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law
Bennett, Robert, Esquire, Attorney for Caspar Weinberger
Dole, Hon. Robert, former U.S. Senator from the State of Kansas, representing the Brookings Institution and the American Enterprise Institute, Project on the Independent Counsel Statute
Espy, Michael, former Secretary, U.S. Department of Agriculture
Mitchell, Hon. George J., former U.S. Senator from the State of Maine, representing the Brookings Institution and the American Enterprise Institute, Project on the Independent Counsel Statute
Nofziger, Lyn, Political Consultant
Plotkin, Robert, Esquire
Steele, Julie Hiatt
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bennett, Robert, Esquire, Attorney for Caspar Weinberger: Prepared statement
Delahunt, Hon. William D., a Representative in Congress from the State of Massachusetts: Prepared statement
Dole, Hon. Robert, former U.S. Senator from the State of Kansas, representing the Brookings Institution and the American Enterprise Institute, Project on the Independent Counsel Statute
Espy, Michael, former Secretary, U.S. Department of Agriculture: Prepared statement
McDougal, Susan: Prepared statement
Mitchell, Hon. George J., former U.S. Senator from the State of Maine, representing the Brookings Institution and the American Enterprise Institute, Project on the Independent Counsel Statute
Nofziger, Lyn, Political Consultant: Prepared statement
Plotkin, Robert, Esquire: Prepared statement
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Steele, Julie Hiatt: Prepared statement
REAUTHORIZATION OF THE INDEPENDENT COUNSEL STATUTE, PART II
FRIDAY, JUNE 11, 1999
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 11:00 a.m., in Room 2141, Rayburn House Office Building, Hon. George W. Gekas [chairman of the subcommittee] presiding.
Present: Representatives V. George W. Gekas, Steve Chabot, Spencer Bachus, Howard Coble, and Jerrold Nadler.
Staff Present: Raymond V. Smietanka, Subcommittee Chief Counsel; Susan Jensen-Conklin, Counsel; James W. Harper, Counsel; Sarah Zaffina, Staff Assistant; Daniel Freeman, Full Committee Parliamentarian-Counsel; Joseph Gibson, Full Committee Chief Counsel, Peter Levinson, Full Committee Counsel; Julian Epstein, Minority Staff Director and Chief Counsel; and David Lachmann, Minority Professional Staff Member.
Page 8 PREV PAGE TOP OF DOCOPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS. The hour of 11:00 o'clock having arrived, the committee will come to order.
This is the time set for the special hearing that this committee will be conducting with respect to the pending ending date of the Independent Counsel Statute. On June 30, as everyone recognizes, the statute governing the Office of Independent Counsel will sunset; and the very next day, the Nation will be without an Independent Counsel Statute but will still have, of course, the Justice Department in the personage of the Attorney General, who will in one way or another be in charge of future cases of conflicts of interest.
Conflicts of interest are something that have been a point of grapple in the Congress of the United States for many, many years as everyone knows. And the current statute is a direct outgrowth of the various issues that have surrounded that issue from the time of the 1920s. But since then, of course, after Watergate, the current statute was developed as the ultimate answer to the question of conflicts of interest.
This now has reached the stage of divisive debate within and outside the halls of Congress. And it appears to this member, to the chairman of this committee, that there is very little likelihood that any version of the current statute will survive the current session of the Congress and especially not before June 30.
And so what do we do? We must adopt some substitute or simply allow the Attorney General and the Justice Department to handle it under their own discretion at their own time and with their own structures.
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We feel that what the panel today has done in the service of our country is to present a viable plan, a starting point, shall we say, for the Congress, to fill the void that will occur on June 30. Based on these recommendations, Congress can respond once and for all to the questions that come from conflicts of interest and to do it in a reasonable and proper way. We can do it in a way by which all the American people can finally say that the Congress has resolved the problem to the betterment of government and for the resolution of these vexatious problems that arise in every administration and will arise as long as we have the type of government that we have that is so responsive to the will of the people.
We have questions to ask, but I already assured Senator Mitchell and Senator Dole that they would be free to leave at any point in the discussion this morning; but by the same token, the others are mandated to remain if there would be questions from the committee, so that we can fully air the subject matter.
[The prepared statement of Mr. Gekas follows:]
PREPARED STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
The Subcommittee conducts its third hearing today on reauthorization of the Independent Counsel law which is scheduled to expire at the end of this month. Previously, we have heard testimony from the Deputy Attorney General, two former Attorneys General, the President of the American Bar Association and academics chosen for their experience and objective analysis.
Page 10 PREV PAGE TOP OF DOC Today we are honored by the presence of two former Senate majority leaders who have distinguished themselves by long careers in public service and who continue to contribute to the welfare of the nation in myriad ways. Our witnesses co-chaired a project sponsored by two celebrated academically oriented organizationsthe Brookings Institution and the American Enterprise Instituteto propose a course of action to the Congress with respect to the Independent Counsel law. In addition to the co-chairs, the project participants included eight other individuals with considerable backgrounds in law and public servicechosen on a bi-partisan basis.
The proposal that resulted has been forwarded to each member of the subcommittee. It is based upon the consensus conclusion of the project panelists that, after a fundamental reevaluation, the statute does not serve the public interest. We look forward today to hearing from the co-chairs of the project, and others of its membership, as they detail the rationale of their recommendations. We value their service to America and will certainly respect their advice.
Mr. GEKAS. With that, I yield to the gentleman from New York, Mr. Nadler.
Mr. NADLER. Thank you. Since we do understand that Senators Mitchell and Dole are under time constraints, I will make only a very brief opening statement to note that obviously there has been a great deal of discussion of this issue. There has been a great deal of controversy over the independent counsel law.
Many of us, many people, myself included, have severe doubts that the price and personal liberty or potential price and personal liberty and arguably the actual price paid is worth having the institution of special counsel.
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I know that minority and majority staff have been negotiating about holding a hearing of people who think they are victims of the special counsel so that we will look into that aspect of the situation, too.
And with that, I will finish my opening statement, except to commend the two senators for their work on this commission and to hold the rest of the comments for the question period. I yield back.
Mr. GEKAS. I thank the gentleman. The panel today is, of course, composed of distinguished servants in the public domain. Not just Senator Mitchell and Senator Dole who are best known for it, but the remainder of the panel in their own ways have contributed mightily to the context of our drive, continuous drive for better government.
Senator Mitchell, of course, has been a majority leader, has been a judge, has been a U.S. attorney, is a constant figure in world affairs, in Ireland, and in the Olympics issue. What can be said about him, except that as a majority leader, as a former majority leader, his willingness to devote some time to this issue speaks well for him, of course, and for the members of the committee who are eager to learn how best we can approach this problem.
And joining him is another former majority leader, who again not content in fading off into the sunset, became a key figure in the Kosovo issue which, of course, is now being steadily resolved. His involvement in an abundant number of items before and since he was in politics is a testament to his own life. But he, too, is a majority leader. We have two of them herethat is a rare occurrenceand we are proud to have him here as well.
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I told him before that I miss his counsel on issues in which we worked together over the years and now we are deja vuing on this particular issue, and I appreciate that, Senator Dole.
With them will be Professor Drew Days, who served from 1993 to 1996 as the Solicitor General of the United States. From 1977 to 1980, during the Presidency of Jimmy Carter, Professor Days had acted as the Assistant Attorney General of the United States in charge of the civil rights division. He joined the faculty of Yale University law in 1981 and in 1991 was named to the Alfred Rankin chair.
John G. Roberts, Jr., served from 1989 to 1993 as the Principal Deputy Solicitor General of the United States during the presidency of George Bush, after having previously served as associate counsel to President Ronald Reagan and special assistant to Attorney General William F. Schmidt. Mr. Roberts is currently a member of the law firm of Hogan & Hartson.
Joining the project members is its counsel, Michael Davidson. Mr. Davidson was the United States Senate legal counsel from 1979 to 1995. From 1997 to 1998, he was codirector for the campaign finance reform project at the Aspen Institute.
Dennis C. Shea was consultant to the project. Mr. Shea was formerly deputy chief of staff and counsel to Senator Dole. During Senator Dole's presidency campaign, Mr. Shea served as senior policy advisor. He is now with the government relations firm of Black, Kelly, Scruggs & Healey.
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Thus we have arrived at the point where we ask Senator Mitchell and Senator Dole, whichever wishes to addressthey are beckoning to each other, it is Alfonse and Gaston.
We will start with Gaston. Senator Mitchell, your written statement shall be considered as part of the record automatically, without objection.
And you may proceed.
STATEMENT OF HON. GEORGE J. MITCHELL, FORMER U.S. SENATOR FROM THE STATE OF MAINE, REPRESENTING THE BROOKINGS INSTITUTION AND THE AMERICAN ENTERPRISE INSTITUTE, PROJECT ON THE INDEPENDENT COUNSEL STATUTE
Mr. MITCHELL. Thank you, Mr. Chairman, Representative Nadler, Representative Coble, Representative Bachus. Thank you very much for inviting us to appear to present our group's unanimous recommendation. I would like to thank the eight members of the bipartisan group who supported the nonpartisan research and assistance of the American Enterprise Institute. And the Brookings Institution joined us in this effort. They brought substantial experience, energy, and insight to this undertaking.
As you previously noted, Mr. Chairman, two of the members of our group, Drew Days, who served as Solicitor General during President Clinton's first term, and John Roberts, who served as the Principal Deputy Solicitor General under President Bush, are with us today.
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And I would like to especially thank Senator Dole for his leadership and participation in this work. We have held different views about the act while we served in the Senate. Senator Dole opposed it; I favored it. We share a belief about the importance of enhancing public confidence in the impartial administration of justice as applied to high officials of government.
As our full statement and report have been placed in the record, I would briefly state our major points in order to permit as much time as possible to hear from those of our colleagues who are present and to respond to your questions. It is, of course, now evident as you have noted, Mr. Chairman, that the Independent Counsel Act will expire at the end of this month, except for pending investigations. With the act's final sunset, full responsibility for appointing future independent or special counsel will be returned to the Attorney General.
Our study of this matter has convinced us that overall history justifies placing trust and responsibility in the Attorneys General of the United States to identify the occasions on which a sensitive investigation should be conducted by a special counsel. History also justifies placing trust and responsibility on the Attorney General for selecting persons of integrity and ability to undertake those responsibilities. We agree further that if there is disagreement over whether a special counsel is warranted, the appropriate remedy is the political process.
But an important public question will remain, namely, under what principles or specific rules should those specialty counsel operate? Our report pays particular attention to what has happened and what should happen after special counsel are appointed.
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Special counsel are usually appointed to resolve a political conflict of interest that may arise when the Justice Department is called upon to investigate a serious matter involving high officials of an administration of which the Attorney General is a part.
To earn public confidence that any such conflict is genuinely resolved, not simply papered over, experience shows that certain ground rules are needed. One ground rule is that special counsel have independence from the regular officers and offices of the Department of Justice, whose very conflict of interest has led to the special appointment.
Independence was the keystone of the regulation issued by the Justice Department to assure public confidence in the integrity of the Watergate investigation. It became a central feature of the independent counsel law. We believe it to be indispensable.
A second related ground rule is that special counsel should not be removed by an Attorney General unless there is good cause to do so. In other words, special counsel should not be removed during the investigation just because they are diligent in examining the conduct of high officials. This is a fundamental lesson from Watergate, which bears remembering.
After the Independent Counsel Act lapses, there will be no special provision for judicial review of removal decisions of any special counsel who may be appointed in the future. But political accountability of the kind that followed President Nixon's firing of Watergate special prosecutor Archibald Cox would remain as a strong deterrent against abuse.
To aid in that accountability, the Attorney General should report to Congress the reasons for removing a special counsel, and that report should be made public. Our recommendations also address problems that have arisen under the Independent Counsel Act. Our report contains specific recommendations for questions about the jurisdiction and budget for special counsels to help assure that their work is focused on the matter that gives rise to their appointment.
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To address concerns about the length of investigations, we recommend that the Attorney General be empowered to terminate an investigation 2 years after appointing a special counsel, or annually after that. It is important here as elsewhere to strike an appropriate balance between independence and accountability.
The Attorney General's judgment about these periodic reviews would not be limited by a good cause requirement applicable to the removal of counsel during an investigation. Nevertheless, it is fair to expect, as we state in our report, that the Attorney General would be guided by the principles that governed the initial appointment of the special counsel, namely, whether a conflict of interest remains and the public interest is served by the continuation of an Office of Special Counsel.
And we would require the Attorney General to explain publicly, in a report to Congress, any decision to terminate an investigation after these periodic reviews. Finally, we recommend that these and other ground rules be set forth in regulations issued by the Attorney General in advance of any new politically charged controversy.
For that reason, we recommend that Congress enact a law that requires the Attorney General to issue regulations for a special counsel who is appointed to resolve conflicts of interest.
As we note in our statement and report, the Department of Justice wrote to this committee in April that it intends to issue regulations. We believe its proposals are a step in the right direction. On some matters, however, notably concerning provisions for the independence of special counsel and their removal from office, we recommend that the Department improve its proposed regulations by adhering more closely to the Watergate model as strengthened in the Independent Counsel Act.
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To put it succinctly, Mr. Chairman, we do not believe that the recommendations by the Department of Justice in their letter are strong enough in those two crucial areas.
In the last several months, this committee, as did its counterpart in the Senate, held informative hearings about experiences under the Independent Counsel Act. This is now an important time for the Congress and the executive branch to build on the lessons from those hearings and consider how in the future our nation will address issues about the conduct of high officials. We hope that our report will make a useful contribution to those deliberations.
Mr. Chairman and members of the subcommittee, thank you again for inviting us and for your attention.
Mr. GEKAS. We thank you, Senator Mitchell.
[The joint statement of Mr. Mitchell and Mr. Dole follows:]
PREPARED STATEMENT OF HON. ROBERT DOLE, FORMER U.S. SENATOR FROM THE STATE OF KANSAS AND HON. GEORGE J. MITCHELL, FORMER U.S. SENATOR FROM THE STATE OF MAINE, REPRESENTING THE BROOKINGS INSTITUTION AND THE AMERICAN ENTERPRISE INSTITUTE, PROJECT ON THE INDEPENDENT COUNSEL STATUTE
Mr. Chairman, Representative Nadler, and Members of the Committee:
We appreciate your invitation to appear before this committee, on behalf of the bipartisan group which we have chaired, in order to present our unanimous recommendations for actions that Congress and the Executive Branch should consider taking in light of the Independent Counsel Act's approaching sunset. In this statement we will highlight several key recommendations. Our full report is attached. We respectfully request that it also be made part of this committee's record.
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Last fall, we decided we should do what we could to contribute to public consideration of improvements to the Independent Counsel Act, if the Congress chose to extend it. Although we held different views about the Act when we served in the Senate, we shared then, as we do now, a conviction about the importance of enhancing public confidence in the impartial administration of justice as applied to high officials of government.
To that end, we asked the American Enterprise Institute and The Brookings Institution to assist in a Project on the Independent Counsel Statute. We also asked a bipartisan group of eight members, with broad experience in and out of government, to join us in this effort. Their names are an honor roll of citizens committed to public service: ZoeAE4 Baird, Drew Days, Carla Hills, Bill Paxon, John Roberts, David Skaggs, Dick Thornburgh, and Mark Tuohey. The recommendations in our report and in this testimony are views that we share with the individual members of our bipartisan group and are not those of any organization.
We would like to begin with some words from the conclusion to our report. It is in our national interest to strengthen our institutions of government by recognizing when they perform well and by limiting, to truly extraordinary circumstances, the occasions on which they need to be supplemented. During the course of its history, the Department of Justice has managed to serve the American people well. Merited trust in it should continue to return great dividends to the public. Nevertheless, in rare instances, when a matter presents a potential conflict of interest between the interests of justice and the political interests of an Administration, the handling of an investigation by specially appointed counsel may contribute importantly to public confidence in the administration of justice.
Page 19 PREV PAGE TOP OF DOC It is, of course, now evident that the Independent Counsel Act, except for pending investigations, will expire at the end of this month. Our attention, therefore, has been on what should follow the Act's final sunset. With the Act's demise, full responsibility for appointing future independent or special counsel will be returned to the Attorney General. The important public question will beunder what principles or specific rules should those special counsel operate?
In reaching our unanimous conclusions, we sought answers from lessons of history that include, but are not limited to, the nation's most recent experiences.
Our study of this matter has convinced us that a fair reading of history warrants entrusting to the Attorney General the responsibility for deciding when a sensitive investigation should be conducted by a special counsel, and also responsibility for selecting that person. Of course, any of us might disagree from time to time with a decision of an Attorney General about whether a special counsel is needed. But the overall recordas illustrated by Elliot Richardson's appointment of Watergate Special Prosecutor Archibald Cox, or Griffin Bell's appointment of former U.S. Attorney Paul Curran to investigate allegations about the Carter Warehouseshows that Attorneys General have usually succeeded in identifying cases that warrant the appointment of special counsel.
We agree, further, that if the Attorney General refuses to appoint a special counsel when the circumstances justify one, the appropriate remedy is the political process. Congress can hold oversight hearings. The press and other observers can highlight the Attorney General's failure to act responsibly. And, of course, there is no substitute for an informed public whose electoral judgment is the most effective check on the abuse of power.
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Our report pays particular attention to what has happened, and what should happen, after special counsel are appointed. Special counsel are usually appointed to resolve a political conflict of interest that could arise when the Department of Justice is called upon to investigate a serious matter involving high officials of an administration of which the Attorney General is a part. To earn public confidence that any such conflict is genuinely resolved, not simply papered over, experience shows that certain ground rules are needed.
One ground rule is that special counsel should have independence from the regular officers of the Department of Justice whose very conflict of interest has led to a special appointment. Independence was the keystone of the regulation issued by the Department of Justice to assure public confidence in the integrity of the Watergate investigation. It became a central feature of the Independent Counsel Act and of the Department's own independent counsel regulations. We believe it is indispensable.
After June 30, individuals chosen to carry out special investigations will be selected by the Attorney General, not by a court. Thus, they will be persons whose character and ability the Attorney General presumably trusts. It is essential that those special counsel then be permitted to do their jobs independently so that the public has confidence in their determination whether to prosecute or exonerate a public official.
A second, related, ground rule is that special counsel should not be removed by an Attorney General unless there is good cause to do so. In other words, special counsel should not be removed during an investigation just because they are diligent in examining the conduct of high officials. We believe this is a fundamental lesson from Watergate and from other investigations involving special counsel. It should be heeded.
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The Independent Counsel Act's special provision for judicial review of removal decisions will lapse with the Act's sunset. Nevertheless, political accountability of the kind that followed President Nixon's decision to fire Watergate Special Prosecutor Archibald Cox should provide a strong deterrent against abuse. To promote that accountability, the Attorney General's reasons for removing a special counsel should be made public.
Our recommendations also address problems that have arisen under the Independent Counsel Act.
With respect to the length of investigations, we recommend that the Attorney General be empowered to terminate an investigation two years after appointing a special counsel, or annually after that. It is important, here as elsewhere, to strike an appropriate balance between independence and accountability.
The Attorney General's judgment during these periodic reviews would not be limited by the good cause requirement applicable to removal of a counsel during an investigation. Nevertheless, it is fair to expect, as we state in our report, that the Attorney General would be guided by the principles that govern the initial appointment of a special counsel, namely, whether a conflict of interest remains and whether the public interest would be served by continuation of an Office of Special Counsel. We would require the Attorney General to explain publicly, in a report to the Congress, any decision to terminate an investigation after these periodic reviews.
Our report also contains recommendations about the jurisdiction and budget for special counsel to help assure that their work focuses on the matter that gave rise to their appointment.
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The Attorney General should define the jurisdiction of any special counsel so that the counsel's jurisdiction clearly addresses the circumstances causing the conflict of interest and any crimes that may obstruct an investigation of them. But the grant of jurisdiction should not include ambiguous categories such as ''related matters'' that may invite the stretching of that jurisdiction.
The sunset of the Independent Counsel Act will result in an accompanying lapse of permanent indefinite appropriations for independent counsel. The Attorney General will need to establish and revise as necessary a budget for any special counsel. A defined budget will require a special counsel to prioritize work and emphasize the most important aspects of his or her jurisdiction. Yet the Attorney General must also be mindful of the need to assure that special inquiries receive the necessary resources.
Finally, we recommend that these and other ground rules be set forth in standing regulations that are issued by the Attorney General in advance of any new, politically charged, controversy. The existence of regulations will help to convince the public that the Attorney General is prepared to appoint outside counsel if required to resolve a conflict of interest. Further, public trust in a special counsel's investigation will be enhanced if it is conducted under rules that are the product of careful, balanced consideration, rather than primarily the politics of the moment. For that reason, we recommend that Congress enact a law that requires the Attorney General to issue regulations for special counsel who are appointed to resolve conflicts of interest.
Although we believe that the content of these regulations should be left to the Attorney General's discretion, we also believe that her final decision about them (and any changes future Attorneys General may make) should be informed by public discussion. To aid that process, our report describes proposed regulations and includes an illustrative draft of them.
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As we note in our report, the Department of Justice wrote to this committee in April that it intends to issue regulations. We believe its proposals are a step in the right direction. On some matters, notably concerning provisions for the independence of special counsel and their removal from office, our report recommends that the Department's proposed regulations be improved by adhering more closely to the Watergate model as strengthened in the Independent Counsel Act.
In the last several months, your committee has held informative hearings about experiences under the Independent Counsel Act. Related hearings have been held in the Senate. This is now an important time for Congress and the Executive Branch to build upon the lessons learned during those hearings and consider how in the future our nation will address issues about criminal investigations into the conduct of high officials. We hope that our report will make a useful contribution to those deliberations.
Mr. GEKAS. Let the record indicate that the gentleman from Alabama, Mr. Bachus, has joined us as well as the gentleman from Ohio, Mr. Chabot. Howard Coble, not a member of this committee, but a chairman of one of the subcommittees of judiciary wanted to pay his respects to Senator Dole and Senator Mitchell; and he decided to audit our hearing for a time, but now he has been called to another duty, but let the record show that he indeed was part of the proceedings.
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Mr. GEKAS. We now turn to Senator Dole.
STATEMENT OF HON. ROBERT DOLE, FORMER U.S. SENATOR FROM THE STATE OF KANSAS, REPRESENTING THE BROOKINGS INSTITUTION AND THE AMERICAN ENTERPRISE INSTITUTE, PROJECT ON THE INDEPENDENT COUNSEL STATUTE
Mr. DOLE. Well, Mr. Chairman, thank you very much and, Jerry, thank you and other members for being here this morning. Today isthree years ago today I left the United States Senate, June the 11th, 1996. So this is an anniversary date of some sort. But I watched the House on C-Span last night, and I wasn't sorry that I left in 1996.
So in any event, it is a pleasure to be here this morning with my colleagues. And to, in effect, reaffirm what Senator Mitchell has said, we had different views. I think originally, I think, there was pretty strong, almost unanimous support for special independent counsel after Watergate. And I think the second time around, it may have passed on a voice vote in the Senate.
But then I started having second thoughts after Lawrence Walsh had his marathon and had indicted Secretary Weinberger three days before the 1992 election. Many Democrats had second thoughts because of Ken Starr. And so I don't believe the law is going to be reauthorized.
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There is bipartisan opposition and there is some politics. There was politics initially after Watergate and accept that; that is part of the system. There were a lot of politics during the Walsh era and certainly a lot of politics in the Starr era; but some cases were excessive. One that I remember is Hamilton Jordan. I mean, the misery they put this man through who worked for President Carter, should have been the signal to all of us that there is something wrong with the legislation and sometimes it went too far.
I want to add that we have a couple of experts seated behind us who have been very helpful as project directors, Tom Mann of Brookings and Norm Ornstein from AEI. They have been very, very helpful.
Senator Mitchell came to me several months ago and asked if I might be interested in a bipartisan approach to this, since I voted against the last reauthorizationhe had voted for it in a moment of weaknessand so I said, yes, why not.
In fact, I remember telling President Clinton it was not a very good law, it ought not to be reauthorized. Senator Cohen and Senator Levin were diligentthe law was reauthorized with a good majority.
So I am pleased to be here. I ask that my statement be made a part of the record. There was also a joint statement prepared for the committee that I hope has been made a part of the record.
Mr. GEKAS. We will ask for unanimous consent that all of the statements that are previously prepared be accepted for the record. And they will be so accepted.
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Mr. DOLE. Let me just sort of summarize, because I want to reinforce what Senator Mitchell has said. We have had good strong bipartisan support. In fact, Dick Thornburgh has been a real factor in this, the former Attorney General, former governor of Pennsylvania. And we have had strong support on each side.
At the outset, as Senator Mitchell knows well, it was not our purpose to say anything about what ought to happen to the law. We were looking at it objectively. We were not going to suggest that it be authorized or reappealed or whatever, but it became pretty obvious as we ended our discussions that it would not be reauthorized, and we hope the recommendations as the chairman said in his opening statement will be a starting point.
There may be other ideas. Certainly these are not the only ideas that are floating around out there. We enlisted the help of the American Enterprise Institute and the Brookings Institution and we asked these eight, four Republicans and four Democrats, a bipartisan group, to help us. Some of them are here today, and they will share their views after Senator Mitchell and I deliver ours. We are all in this together is the point I want to make.
One thing I've learned is that sometimes the best ideas are often the simplest ones. There are many complicated things presented to the Congress, but it is fair to say that our recommendations are not earth shaking, but they are simple, and to the point. They are rooted in historical experience and based on common sense, which is important in considering any legislation.
Now, just let me summarize very quickly. We believe that most investigations of wrongdoing by the government officials can be best handled by the regular offices and procedures of the Justice Department. Some of the past investigations of the independent counsel could have been handled this way without diminishing public confidence.
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Second, when a top official stands accused of misconduct, we believe the Attorney General should have full discretion and decide if and when the appointment of someone outside the department to conduct an investigation would serve the public interest. The Attorney General, as the chairman also pointed out, already possesses the authority to appoint outside special counsels, and this authority ought to be reaffirmed and it ought to be strengthened.
And third, to help guide future special counsel investigations, the Attorney General should issue a road map in the form of regulations, by establishing some clear-cut benchmarks on the powers and jurisdiction of special counsel. These regulations can help reassure the public that these special investigations will be conducted in a fair and even-handed manner.
In addition, public trust and the special counsel's investigation will be strengthened if it is carried out under rules of the product of careful balanced consideration rather than the politics of the moment. In other words, if they are laid out in advance, they are there for everybody to see rather than try to impose something at the time of some crisis.
So we suggest that Congress pass legislation directing the Attorney General to issue regulations within 90 days that will guide the activities of the future special counsels. And I commend you, Mr. Chairman, for introducing legislation which pretty much fits what we are suggesting here this morning with, I guess, one change.
And finally, in our report we offer some suggestions on perhaps the thorniest issue we confronted, how do you strike the balanceI mean, how does the American public, regardless of politicsreconcile the special counsel's independence and his accountability?
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If a special counsel is to conduct an independent investigation, deserving of public confidence, his decisions cannot be routinely second-guessed. He or she has to have some authority. And that is why a special counsel must be vested with authority, without approval of the Attorney General to conduct grand jury proceedings, frame and sign indictments, contest privilege assertions, conduct trials, and appeal decisions.
On this fundamental issue the Department of Justice's Watergate regulation has strengthened and carried forward and the independent counsel's statute should be the standard. We also believe that special counsel, once appointed, should only be removed by the Attorney General for good cause. And the Attorney General should be required to provide a public explanation of any removal decision.
At the same time, a grant of independence should not be a license to conduct a never-ending investigation against an ever-widening list of potential targets using unlimited government resources. To ensure the accountability of a special counsel, we suggest that special counsel operate under strict budgets and clearly defined jurisdictional charters established by the Attorney General.
And we also believe the Attorney General should have the responsibility to decide at designated intervals, 2 years after a special counsel is appointed and then annually, whether the public interest warrants termination or continuation of an investigation. And if a decision is to end an investigation, the reasons should be reported to Congress.
Now, no doubt about it, our recommendations place a lot of trust in the Attorney General, and we think historically that is where it belongs. You asked a question, is this trust justified? As I said, history tells us the answer is generally yes. Griffen Bell's appointment of Paul Curran to investigate alleged financial misconduct that occurred at the Carter warehouse is an example of a special counsel investigation that enjoyed broad legitimacy.
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When Mr. Curran cleared President Carter, saying he accounted for every nickel and every peanut, his conclusions were accepted by Republicans and Democrats alike because he did a good job. But, Mr. Chairman, the right decisions are not always made. And if the Attorney General fails to appoint a special counsel when the circumstances clearly warrant, then one would expect the rough and tumble of the political process to provide the check against any abusive power.
I can think of cases where something should have been done. I would hope, for example, that the members of the subcommittee, regardless of party, will continue to speak out and urge the Attorney General to appoint outside special counsel when the situation demands it. And you can be certain that this former senator will not stand silent if he believes a high-level investigation should proceed outside the Department.
Churchill once observed that no one pretends that democracy is perfect or all wise; indeed, democracy is the worst kind of government except for all of the other forms that have been tried from time to time. So we don't believe ours is perfect, but it is the result of bipartisanship. The discussions came at a time when the impeachment processit had been completed, some of it during the time the impeachment process was proceeding.
We think it is timely and based on good common sense; and again, I want to commend Senator Mitchell for his leadership in initiating this effort and asking us to work together. And I commend our project for serious consideration by all of your colleagues, Mr. Chairman, Mr. Nadler.
Page 33 PREV PAGE TOP OF DOC Mr. GEKAS. We thank you.
[The prepared statement of Senator Dole follows:]
PREPARED STATEMENT OF HON. ROBERT DOLE, FORMER U.S. SENATOR FROM THE STATE OF KANSAS, REPRESENTING THE BROOKINGS INSTITUTION AND THE AMERICAN ENTERPRISE INSTITUTE, PROJECT ON THE INDEPENDENT COUNSEL STATUTE
Mr. Chairman, Representative Nadler, and Members of the Committee:
Let me begin by thanking you for giving me this opportunity to appear before you today. I commend you for convening this hearing and for exploring possible alternatives to the independent counsel statute after its anticipated expiration later this month.
Although I voted against the last reauthorization of the statute and continue to believe the statute should not be reauthorized, I am convinced the law's underlying purpose remains a vital oneto ensure that allegations of criminal wrongdoing by high government officials are adequately investigated and prosecuted. The question that Senator Mitchell and I have explored during these past several months is how to achieve this goal while securing both the independence and the accountability of those charged with the role of investigator.
To assist us in answering this question, we enlisted the help of two organizations with whom you are undoubtedly familiar: The American Enterprise Institute and The Brookings Institution. We also asked a bipartisan group of eight distinguished Americans, with broad experience in and out of government, to join us in this effort. Two of these individuals, Drew Days and John Roberts, are here with us today and will share their views with you in a few moments.
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During my years in public life, I quickly realized that the best ideas are often the simplest ones. I think it's far to say our recommendations fit this description. They are simple, direct, rooted in historical experience, and based on common sense.
Let me now take a moment to summarize our conclusions:
First, we believe that most investigations of wrongdoing by government officials can be best handled by the regular offices and procedures of the Justice Department. Some of the past investigations by independent counsel could have been handled this way without diminishing public confidence.
Second, when a top official stands accused of misconduct, we believe the Attorney General should have the full discretion to decide if and when the appointment of someone outside the Department to conduct an investigation would serve the public interest. The Attorney General already possesses the authority to appoint outside special counsels. This authority ought to be reaffirmed and strengthened.
Third, to help guide future special counsel investigations, the Attorney General should issue a road map in the form of regulations. By establishing some clear-cut benchmarks on the powers and jurisdiction of special counsel, these regulations can help reassure the public that these special investigations will be conducted in a fair and evenhanded way. In addition, public trust in a special counsel's investigation will be strengthened if it is carried out under rules that are the product of careful, balanced consideration, rather than the politics of the moment.
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For this reason, we suggest that Congress pass legislation directing the Attorney General to issue regulations within 90 days that will guide the activities of future special counsels. I commend you, Chairman Gekas, for recently introducing a bill that accomplishes this goal.
An finally, in our report, we offer some suggestions on perhaps the thorniest issue we confrontedhow to strike the right balance between a special counsel's independence and his accountability.
If a special counsel is to conduct an ''independent'' investigation deserving of public confidence, his decisions cannot be routinely second-guessed. That's why special counsel must be vested with the authority, without approval of the Attorney General, to conduct grand jury proceedings, frame and sign indictments, contest privilege assertions, conduct trials, and appeal decisions. On this fundamental issue, the Department of Justice's Watergate regulation, as strengthened and carried forward in the independent counsel statute, should be the standard.
We also believe that special counsel, once appointed, should only be removed by the Attorney General ''for good cause.'' The Attorney General should be required to provide a public explanation of any removal decision.
At the same time, a grant of independence should not be a license to conduct a never-ending investigation against an ever-widening list of potential targets using unlimited resources. To ensure the accountability of a special counsel, we suggest that special counsel operate under strict budgets and clearly-defined jurisdictional charters established by the Attorney General.
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We also believe the Attorney General should have the responsibility to decide at designated intervalstwo years after a special counsel is appointed, and then annuallywhether the public interest warrants termination or continuation of an investigation. If the decision is to end an investigation, the reasons should be reported to Congress.
Our recommendations obviously place a great deal of trust in the ability of the Attorney General to make the tough calls. ''Is this trust justified?,'' you may ask.
History tells us the answer is ''generally yes.'' Griffin Bell's appointment of Paul Curran to investigate alleged financial misconduct associated with the Carter Warehouse is an example of a special counsel investigation that enjoyed broad legitimacy. When Mr. Curran cleared President Carter, saying that he had accounted for ''every nickel and every peanut,'' his conclusions were accepted by Republicans and Democrats alike.
But, Mr. Chairman, the right decisions are not always made. If the Attorney General fails to appoint a special counsel when the circumstances clearly warrant one, then we would expect the rough-and-tumble of the political process to provide the check against any abuse of power.
I would hope, for example, that the members of this SubcommitteeDemocrat and Republicanwill continue to speak out and urge the Attorney General to appoint outside counsel when the situation demands it. And you can be certain that this former Senator will not stand silent if he believes a high-level investigation should proceed outside the Department.
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Winston Churchill once observed that ''[n]o one pretends that democracy is perfect or all-wise. Indeed . . . democracy is the worst form of government except [for] all those other forms that have been tried from time to time.''
Likewise, our proposal may not be the ''perfect'' way of ensuring the fair application of law to top government officials. But it is far superior to the well-intentioned, but ultimately unworkable, system created by the Independent Counsel Act.
Thank you for listening. I commend our Project's unanimous recommendations for your consideration and ask that our written testimony and report become part of the record.
Mr. GEKAS. By previous understanding, the questions that will be posed will be posed to the entire panel, and unless any of the others wish to make any kind of brief opening statement, we will proceed with the questions.
If that be the case, we will start with the questions.
Does Senator Mitchell want to add anything?
Mr. MITCHELL. No.
Mr. GEKAS. A couple of things struck me, and both of the Senators touched upon it. The regulations that will be promulgated by the Attorney General, as you see it, would they precede each appointment of special counsel or will at the outset of the incumbency of the Attorney General there be a specific set of regulations for prospective special counsels? Which are we talking about here?
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Mr. MITCHELL. We are suggesting the latter, Mr. Chairman.
Mr. GEKAS. So that right at the outset of a new stewardship of an Attorney General, there would be, among all the other duties of the Attorney General, the promulgation of regulations setting forth what would happen if a special counsel were necessary?
Mr. MITCHELL. We believe that regulations should be issued by the Attorney General in office when the legislation is enacted. It would be possible, but not required, that those would be replaced byor supplemented by regulations of each new Attorney General.
Mr. GEKAS. Thank you.
Mr. DOLE. I indicated in my statement we want to get it out front so everybody knows in advance what the regulations or rules are, and I assume they can obviously be modified from time to time. But Senator Mitchell is correct.
Mr. GEKAS. Now, if in the report, the project report that you rendered to Congress, I notedand I took special note in the drafting then of the piece of legislation which will act as the target point herethat in the termination of an office of special counsel, you leave it, I suppose, to the regulations to determine how removal for cause, which you support, will occur. Is that correct?
Mr. MITCHELL. That is correct.
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Mr. GEKAS. I felt so strongly about the question of removal for cause as a necessary item of independence to which we all subscribe that the regulations be mandated to have language that would allow for or demand removal for cause only.
Mr. MITCHELL. Right.
Mr. GEKAS. How do you appraise that?
Mr. MITCHELL. Mr. Chairman, our recommendation is that the legislation not include any special provision and that that and other provisions be left to the Attorney General, although we agree with you that it is a critical aspect of this entire process.
Our recommendation is based upon several considerations: First, if you include one requirement, there will be an inevitable temptation by other members to suggest other requirements which may to them seem of equal importance, and you could end up with Congress writing the regulations themselves. It is more difficult to resist specific recommendations if there are such requirements in the initial legislation.
The second is we believe this is a factor of such critical importance that it is unlikely that any Attorney General would issue regulations that did not include such a provision. Were they to do so, of course, then it would be appropriate for Congress to look at them and take some action; and our recommendation is, as we stated, that there not be any specific provisions included in the legislation, although we understand full well, Mr. Chairman, why you have stressed that point, because we share the view.
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And it is for that reason that I placed particular emphasis upon that subject in my opening remarks.
Mr. GEKAS. I understand. But I wish that you could disabuse me of something then. Without that specific provision, and my ego speaking now, I see no big difference between your recommendations, as laudable as they are, and simply allowing the statute that we have now to lapse, and then allow the Attorney General to do whatever the incumbent Attorney General wants to do with respect to special counsel.
Because the recommendations that are contained in my bill, which track your project, except for the removal for cause, seems to me to be almost precatory; and I say that kindly, but I don't see much difference between that and simply allowing the statute to lapse that we have currently and hoping for the best from the Attorney General to heed your project, to heed the call of the public, et cetera. I want to go a little bit farther, because I do fear the questions of conflicts of interest as being divisive. Any comment from anybody on that?
Mr. MITCHELL. Go ahead, John.
Mr. DOLE. Go ahead, John. You got a point to make.
Mr. ROBERTS. Mr. Chairman, I think one of the concerns, or at least one of my concerns speaking only for myself, is that serious separation-of-powers concerns are raised when legislation seeks to impose such limitations on the removal power and that those issues become far less problematic if the restriction is placed in the regulations by the executive official, the Attorney General.
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It is an open issuecertainly the Supreme Court in the Morrison against Olson case had less problem with itbut there you were dealing, of course, with an officer who was appointed by a court and the analogy to the independent agency may be more direct than when you are dealing with someone exercising prosecutorial powers appointed by the Attorney General.
I think that serious constitutional problems are raisedif legislation seeks to impose impediments to removal. And again those problems are less serious when it is the Attorney General herself in the regulations who imposes that restriction.
Mr. MITCHELL. I think Mr. Days would like to comment also, Mr. Chairman.
Mr. GEKAS. Yes. Yes, Mr. Days.
Mr. DAYS. Yes. I agree with my colleague, Mr. Roberts, that this certainly raises issues that would need to be sorted out. But I want to stress also the fact that this good-cause standard is really part of the fabric of thinking about the nature of independent investigations. It was part of the act itself, it was part of the 1987 Attorney General's regulations.
And I think, once again, it sets a standard that an Attorney General will have to meet in order to justify to the public that an investigation is, in fact, going to be carried out in an independent and impartial fashion. And that is really what we are saying about the regulation generally. Certainly Congress could write
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Mr. GEKAS. I understand.
Mr. DAYS.a statute that dealt with every issue imaginable. But our concern is that there be a responsibility placed back in the Department of Justice and in the office of the Attorney General, so that there are very high expectations about what will happen in the event that there is clearly a need for someone outside of the Department to conduct an investigation.
Mr. GEKAS. I understand what you are saying. Let me just say one thing, then we will recognize Senator Dole. Senator Mitchell alluded to it, and I can attest to it, that the response that this committee receives from the current Attorney General with the idea of what structure they would entertain once this statute lapses, if they couldn't wait to get their hands on it, is one that does not deal with the removal for cause, as I feel is important, as we all now seem to agree.
Right away now we have an indication that unless we put this in the statute that an Attorney General at his or her own risk will not include a regulation to bring about removal for cause only. So where are we?
Mr. DAYS. I would say that that hasn't been subjected to the type of public consideration and debate that one would expect regulations would ultimately encounter.
Mr. GEKAS. We are debating it now.
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Mr. DAYS. I think perhaps the department and the Attorney General can be educated, Mr. Chairman.
Mr. GEKAS. Well then, I will respectfully request Professor Days to bring a letter to the Attorney General and ask them to revise the structure that they proposed in their response to us. We are caught in a quandary right now as we are discussing it publicly for the purpose of bringing about the desired result right here and now.
Mr. DAYS. Our report is that letter, Mr. Chairman. We have pointed specifically to that as what we think is a major flaw in the proposal that the Attorney General and Department of Justice have suggested to the House.
Mr. GEKAS. Well, until we receive some kind of assurance as to that, I am going to allow the vehicle that I have introduced to act as the lightning rod, and I will, of course, allow the subcommitteeI have to allow the subcommittee's will to be the final determinant.
Mr. DOLE. Mr. Chairman, I read what she recommended and I believe it is weak, obviously. But introduction of your legislation sends a signal to the Justice Department; and hopefully our testimony, bipartisan as it is, will send a signal to the Justice Department.
Mr. MITCHELL. Mr. Chairman, if I might make an additional comment.
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Mr. GEKAS. Yes.
Mr. MITCHELL. I believe we should accept your suggestion of sending a letter to the Attorney General. And I propose that we will do so. I am certain that the Justice Department is monitoring this hearing, but just in case they are not, at page 9 of the Attorney General's letter to you in paragraph 8 D, suggestions on removal from office, which we deem inadequate and we believe that they should be the standard for cause which you have suggested in your legislation. And we will so inform the Attorney General of our feelings.
Mr. GEKAS. That will be very helpful. And I state to this panel that if we receive confirmation of the Attorney General's acceptance of that part of the regulatory scheme, I will be glad to amend the vehicle and proceed otherwise, because it is too important not to level criticism.
Mr. MITCHELL. Mr. Chairman, it is my suggestion that weto my colleagues, this is somewhat unfair to Senator Dole because I am making the suggestion here in public, but I hope you will agree that such a letter should also include reference to the first full paragraph 10 on page 10 of her letter to you, which deals with the question of independence.
Mr. GEKAS. Yes.
Mr. MITCHELL. It begins with the sentence which reads: ''The department believes that a special counsel should be given a large amount of independence in which to operate.'' It then offers language which in our mind undermines that intention, particularly by suggesting that the decision later in the paragraph, the decision of whether to indict a particular person, may be such a substantial step that it would require a special counsel to notify and, in some limited circumstances, possibly seek the approval of the Attorney General beforehand.
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We do not agree with that either. We believe that independence means that a special counsel must have the authority to conduct a full investigation, prosecution, and appeal, including the power to convene a grand jury, to subpoena witnesses and documents, to frame and file indictments, to conduct trials, and to make decisions on appeal. And we will so notify the Attorney General.
Mr. GEKAS. That will be very helpful.
I have taken more time than the chair usually allows itself, and Mr. Nadler objects to my continuing. And, therefore, I yield to him.
Mr. NADLER. Thank you, Mr. Chairman.
Let me say I first appreciate Senator Dole's quoting Prime Minister Churchill. I have always enjoyed Prime Minister Churchill's aphorisms, in particular the one in which he objects to the grammatical rule against ending a sentence with a preposition as the kind of nonsense up with which he would not put.
Let me also say that I am struck by the historical resonance of this discussion with respect to dismissal of the independent counsel for cause. And I think we all agree that that would be desirable.
You raise constitutional questions. It strikes me as the same constitutional question as involved in the tenure in office act that lead to the impeachment of President Andrew Johnson in 1868, which I believe was held to be unconstitutional later by the Supreme Court as a violation of the separation of powers; that that act said that a President could not dismiss someone whose appointment had required confirmation by the Senate without approval by the Senate and the Supreme Court held a few years after the Johnson impeachment that the act was unconstitutional.
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I don't see how constitutionally you can require the Attorney General not to fire someone that she had appointed without running afoul of the separation-of-powers doctrine.
And I would appreciate it if someone, perhaps Professor Days, if someone would do a memo, perhaps, for the committee on that question. Is there any way around that, any constitutional way around that, that I can't think of off the top of my head, or is that really a total bar to Congressional consideration of requiring good cause in the statute?
Obviously requiring it in regulations is very nice, but it is sort of precatory, as the chairman said, and the next two Attorney Generals might do that and the third one 10 years from now might not.
The third question I have is in your recommendations you talk about adherence to the Department of Justice policies and procedures, and you recommend thatwell, you recommend that the only exception to the requirement of compliance be for procedures that would require a special counsel to obtain approval of other Department of Justice officials for investigative or prosectorial actions.
I would agree with that. I think that certainly the special prosecutor should be required to follow all Justice Department guidances.
My question is how do you enforce that? We have seen supposedly special prosecutors, Mr. Starr, Mr. Smoltz and all the others are required to follow them and yet, forgetting Starr is too political to discussI read a Washington Post article recently about some Department of Agriculture official who had been indicted and convicted by Mr. Smoltz, the special prosecutor in the Espy case. And I don't remember the details, except it was very clear, and no one denied, that the very consideration of prosecution of him for that crime, the crime for which he was indicted and convicted, under those circumstances, are specifically prohibited by the Department of Justice guidelines as trivial.
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It says we don't bother with this, and yet he was indicted and convicted; and maybe the evidence was he should have been convicted, but the guidelines said this is too trivial. We don't prosecute for this kind of stuff.
So how do you enforce that?
Mr. MITCHELL. I might try first, Representative Nadler, and then anyone else can join in. First, before I respond to your last question, let me make a point with respect to your second request that Professor Days prepare a memorandum. I would like to ask that Mr. Davidson, who is
Mr. NADLER. Whoever.
Mr. MITCHELL.do it for the whole group, that he prepare a memorandum.
Mr. NADLER. Whoever you feel is appropriate.
Mr. MITCHELL. And I'm sure he will do so.
The ultimate mechanism for enforcement is, of course, the rule for cause. You have just suggested a place or a circumstance in which there would be a justified removal if there was a serious and more clearly a repeated violation of Department of Justice guidelines.
Page 48 PREV PAGE TOP OF DOC Now, obviously, judgments are required here. Any violation of a guideline would not necessarily be justification for removal by cause, but a serious and repeated violation clearly would be. I think that is the principle mechanism that occurs to me for enforcement of that requirement. But I would be glad to ask others to comment if they wish.
Mr. ROBERTS. No, I agree. And I think that one advantage of the approach that we are suggesting is that you do have an accountable official who has the authority to remove for cause, if there is an objection to a violation of Justice Department policies. The one you mentioned is one example. My understanding is Mr. Walsh's indictment three days before a national election also was inconsistent with Justice Department policies.
Here you would have an official with accountability and the authority to remove for cause, and violation of policies that the special prosecutor is bound to follow would seem to fit that definition.
Mr. NADLER. Let me
Mr. DAYS. Mr. Nadler, if I may.
Mr. NADLER. Yes, sir.
Mr. DAYS. I want to give a specific example of a department policy that I think might come into play in this context. It is called a ''Petit Policy.'' It is the dual prosecution policy, which is a matter of great concern to the Department of Justice. It is an issue that was before the Supreme Court, and the Supreme Court suggested its concern about dual jeopardy, double jeopardy issues.
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And since that time, the Department has been very careful about what guidelines are provided to prosecutors in terms of when they can bring a dual prosecution. That is, where there has already been a State prosecution, it seems to me that if a special counsel were to ignore those guidelines, and, in fact, indict someone who had already been dealt with by State officials, I think that would certainly satisfy the cause requirement.
But I think it exemplifies the type of thing that would cause great disruption in the Justice Department and indeed represent an unfairness or a denial of equal protection, if you will, in the way that the Department would normally go about handling a criminal investigation and prosecution.
Mr. NADLER. Thank you.
Mr. GEKAS. Would the gentleman yield for just a moment on that point?
Mr. NADLER. Yes, sir.
Mr. GEKAS. Professor Days has struck a point that is going to be engaged in the gun control debate that is coming next week, the Petit Policy on the potential of double jeopardy. So it is an issue that covers a lot of different aspects of the judiciary.
Mr. NADLER. I will simply observe that we have a lot of double jeopardy. It almost becomes routine in civil rights cases. Where we think that some local jury didn't convict the bad guys, we expect the Federal Government to come in in the civil rights prosecution and often does and in other areas too. I don't oppose that one necessarilyI don't know how to balance that with the double jeopardy problem.
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Mr. DAYS. I would just suggest that the congressman read that policy, because there is certainly an effort to avoid pro forma dual prosecutions although they are authorized by the Constitution.
Mr. NADLER. Well, thank you. I wasn't aware of those guidelines, but I shall look at them.
I just wanted to express one reservation about what we said and ask a different question, a more general question, and that one can easily see and certainly the whole Ken Starr thing shows the potential problem. Lots of people thought that he had violated all kinds of laws; a lot of people thought he didn't. I am not going to get into that now. And those who thought he did said he should be dismissed for cause and the Attorney General didn't.
The Attorney General didn't, either because she thought that he had behaved properly or because she didn't want to take the political heat for doing her proper duty and in dismissing him for cause. So you can easily imagine a situation where the Attorney General's ability to dismiss for cause a special prosecutor who is violating civil liberties or violating all kinds of problems or violating Department guidelines would not be in an effective check on that problem.
Let me ask one other general question, though, before yielding back. The draft act that you have drafted, as I read itI mean, you have put almost everything in the regulations and certainly the double jeopardy oneand not the double jeopardy, the indictment, the dismissal for cause probably has to be in the regulations.
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But almost everything is in regulations, this statute, this draft statute. I don't see that it does anything at all that the current law, absent the underlying law once the Independent Counsel Act expires, doesn't already do.
Whyin effect, tell me why I am misreading what you are saying. If I were to say what you are really saying is once the independent counsel law expires, we should urge the Attorney General to enact the appropriate regulations we don't need this draft statute at all, it doesn't seem to add anything to the law.
Mr. MITCHELL. Well, one principal point we wish to make is that the Attorney General should be required by law to issue regulations so as to avoid the situation in which the Attorney General does not do so and then a politically charged controversy erupts and regulations are then drafted in the context of that controversy. And that is
Mr. NADLER. That is really your recommendation, is that we have ongoing standing regulations that she should be required to issue them?
Mr. MITCHELL. Yes, that is right.
Mr. NADLER. Thank you. I yield back.
Mr. DOLE. Mr. Chairman, I am going to have to leave a little earlier.
Page 52 PREV PAGE TOP OF DOC Mr. GEKAS. I am not going to permit it.
Mr. DOLE. I want to tell Mr. Nadler, you mentioned Churchill. There is another good Churchill story. It is in a little book I wrote called laughing almost all the way to the White House. And I would have brought copies, but I didn't know there would be such a crowd here. But he was seated next to Lady Astov one evening at dinner, and she got very upset withLady Astov got very upset with Churchill and said, Winston, if you were my husband, I would poison your coffee. He said, if you were my wife, I would drink it.
Mr. GEKAS. We thank you, Senator Dole. We now turn to the gentleman from Ohio, Mr. Chabot, for a round of questions.
Mr. CHABOT. Before the Senator leaves, Senator, I actuallyI read that book which you will be happyyou will be displeased that I got it from the library. Sorry. But I did read it. It was very good.
One of the reasons that the Congress, the previous Congress adopted the existing independent counsel law was that its lack of trust in the executive branch and the executive branch'sat least the perception that it would not act to ensure that the publicto the public that it was proceeding impartially, in other words, conflict of interest, and that sort of thing.
How, after our recent experiences, can we have any more trust than we did, than the previous Congress back in 1978 did? And I was going to ask Senator Dole, but perhaps, Senator Mitchell, I will ask you kind of related to that same question. Senator Dole talked about the rough and tumble political process being necessary to ensure that the Attorney General would do the right thing, in essence. And I was going to ask him toI think I have a pretty good idea what he means by the rough and tumble political process.
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But I am sure you have feelings about that as well, or thoughts about it. Can you kind of share yours on that?
Mr. MITCHELL. Well, I believe that the discussion today and over the past several years demonstrate that there is no single course of action which is free of risk or doubt in trying to attain the objectives of both the Independent Counsel Act and the process that we recommend.
It is possible for any one to conjure up a scenario under any legal circumstance which would be undesirable. The problem is, of course, that the two principal objectives are independence to deal with a conflict of interest and accountability to deal with the possibility of inappropriate action by a person who is invested with great prosecutorial authority; and that the objectives of independence and accountability are often in conflict, and the whole challenge is how you balance those and reconcile the conflict of the two principal objectives that you are seeking to obtain.
You are quite right that one of the fundamental problems is the lack of trust or lack of confidence by one branch, the legislative, and the ability or integrity of officials of another branch to deal with the conflict of interest. And that is something that cannot be foreclosed in advance.
Our conclusion is based upon the analysis, as we stated in our report, that overall, on balance, historically, the regular processes of the Department of Justice, administration in and administration out, administration of one party, administration of another, have worked reasonably well, better so than the alternative which was tried over the past few decades of the Independent Counsel Act.
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And so we do not suggest that the answer that we recommend is the only one or that it is free of doubt or that it is not possible to make a legitimate criticism and raise a legitimate question of it as you have just done. It is one of balance and judgment. We think this is probably the best way to go, even acknowledging the very important concern that you raise.
I would invite Mr. Roberts and Mr. Days if they want to add anything to that to do so.
Mr. DAYS. I second what Senator Mitchell has just said about this. But it strikes me that one of the problems that we have had with the Independent Counsel Statute is that it is very hard for the political process to identify who is responsible, who should be held accountable.
We have the Attorney General involved, the Congress involved, a special court involved, an independent counsel involved. And I think that a lot of the dissatisfaction in the public and, indeed, in the Congress, has been with trying to figure out who should be brought to task for what is happening, the sense that things are out of control.
What we are recommending is returning the focus to one place, the Attorney General. And he or she is responsible for running a Department of Justice that has a reputation for integrity and professionalism and the responsibility for identifying those situations where it is in the public interest to seek outside independent counsel to investigate a problem that has arisen where there is a political or other conflict.
Page 55 PREV PAGE TOP OF DOC What I think we are trying to suggest is that it brings a better focus to the problem that we had to confront at the time of Watergate, that we have been dealing with since that time. And it allows the political process, we think, to work more effectively so that we know who is in charge, who is responsible, what the limitations are. At this point, I think that is very much unclear, and we have learned that since 1978.
Mr. CHABOT. Thank you.
Mr. GEKAS. We thank the gentleman, and now we recognize the gentleman from Alabama.
Mr. BACHUS. Thank you. I will just address the entire panel. FDR said that the law is what the justices say it is. Let me sort of modify that a little bit and say the jurisdiction of the independent counsel is what he says it is. That is one of my main concerns. You talked about a road map of jurisdiction. I will tell you that for some independent counsels, their road map seems to be an atlas of the world.
Their jurisdiction is only limited by the pillow they dream on. I mean that quite frankly. The example that I will useand let me say this. When Congress is involved in these matters and they roam far afield and they dig these things up and they bring them before the Congress, then we have to act on them. But that doesn't mean that we agree with the jurisdiction or the lack thereof.
I think the example I will use is Julie Hiatt Steele in the Kathleen Willy matter.
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If you would look at the original charge of the Court, it mentions Madison Guarantee, Capital Management, Whitewater Investment, whatever. How do we place limitations? I think we are talking about the need forI guess the need for accountability. I am going to ask this. This is, maybe, my question. That's all of the background for this question.
There is a needand you said in your treatisethat there is a need for a greater degree of precision in defining the jurisdiction of the independent counsel. Is that possible? Here is my question: Is that possible if we are going to continue to use these boilerplate definitions of jurisdiction?
I will give you two examples. ''And investigate other allegations or evidences of violations of any other criminal or civil law.'' That was actually taken from one of the charges that was given to an independent counsel.
Here is another one. ''All matters related to the subject matter.'' What in the world is that? Any comments?
Mr. MITCHELL. You have raised, Representative Bachus, what we believed to be one of the most serious deficiencies of the current law, and we shared and do share now the concern that you have raised. We proposed to deal with it by being more precise in defining the special counsel's jurisdiction and dropping the words ''related matters,'' which has been the mechanism by which the jurisdiction of special counsel has been expanded to the concern of many Americans, including yourself. We specifically state in the illustrative regulations which we suggested for the Attorney General's considerationand I should just read the last two sentences of paragraph 1B:
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''The jurisdiction shall be stated with sufficient particularity to provide clear guidance to the special counsel on the extent of the Attorney General's delegation of authority. In the event of disagreement between the Attorney General and the special counsel on the scope of the jurisdiction granted by the appointment order, the Attorney General's construction of the order shall be final.''
So we call special attention to that. We propose deleting the words that have been used to engineer the expansion of authority and specifically give final authority in the event of disagreement to the Attorney General.
Mr. ROBERTS. The only thing that I would add is we also, under our proposal, the special counsel would be subject to the normal budgeting processes. So they wouldn't have a blank check really to spend and chase things as far as they wanted, but like other prosecutors in the Department of Justice, would be forced to prioritize their concerns and live within a budget.
Mr. BACHUS. In theory, budgetary restraints, you would think that would cause themand it may cause them to try to decide what is important or not. But you know, if these investigations turn from an investigation about the allegation into a personal pursuit of the individual, then they may choose that what is important is any charge not related to the allegation that they are investigating, but any charge that tends to incriminate, no matter how far afield they may be.
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To me, these boilerplate definitions, there is always that fifth paragraph where they just throw in the kitchen sink. We are taught how to write those in law school, but I don't know that they are appropriate here.
Mr. DAYS. Mr. Bachus, I wanted to say a couple of additional things about that. Under the Independent Counsel Act, the Attorney General is denied the right to use certain investigative tools before she determines that there is a need for an independent counsel, which means that there has to be a certain degree of ambiguity about what the Attorney General is asking an independent counsel to do.
Secondly, there is never a conversation at these early stages between the Attorney General and the independent counsel because that is mediated by a special court. So there is never a conversation going on so that these two parties can understand exactly what is on the table in terms of the scope of the investigation.
What we proposed is that the Attorney General be given back those investigative tools to begin to probe a little bit exactly what the nature of the problem is before seeking special counsel; and secondly, there could be direct communication at the outset between the Attorney General and a special counsel, which also leads to the point that if the independent counsel misconstrues or misuses the authority that the Attorney General has, through direct communication, given that special counsel, then we have the opportunity of the Attorney General to remove for cause and to explain that justification.
So I think it makes it a much closer fit, again getting back to this question of independence and accountability.
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Mr. BACHUS. I noticed that one thing it said is the special prosecutor can only be removed if they are not diligent. I almost worry about the opposite, them being too diligent. It is getting to where public service is a bull's eye.
It also, if you takeone reason the Independent Counsel Statute, if you look at it, you have had every President investigated, most of them on more than one occasion. And the public might not understand this unless they have been sued themselves. Even a civil lawsuit where their freedom wasn't threatened, it is time consuming; it is traumatic. And you are talking about people that are making some of the most critical decisions in the interests of the country.
I am certainly not saying that they ought to get a pass. I am saying they ought to be treated as other individuals; they ought to have the charges clearly delineated; they ought to be clearly charged as opposed toI mean, independent counsel is unknown to someone notthis idea that they can just get in there and investigate anything and everything.
It is not something that the people of the United States would tolerate if you allowed an independent counselif we passed an Independent Counsel Statute and said that you could appoint them to investigate anyone. It would last about three months, I would think.
I guess you can tell what my concern is.
Mr. GEKAS. We thank the gentleman. We yield, for one last question, to the gentleman from New York.
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Mr. NADLER. Thank you. I want to ask a very general, almost philosophical question. There are obviously a lot of problems with the whole idea of special prosecutors, how to limit their jurisdiction, how to prevent them from going after peripheral people, how to limit the fact that the normal prosecutor is there to look at serious crimes to see who can be held accountable for them.
The special prosecutor has an incentive to say, what can I pin on X? You have your own personal prosecutor looking for what they can find. Obviously, there are a lot of problems in terms of liberty; lot of problems in terms of the fact that President Clinton, for example, and I suspect President Bush, almost the entire administration was spent under the cloud of a special prosecutor, which is one problem.
The second problem is it takes up a lot of time and effort in figuring out how to deal with them that really ought to be time and effort devoted to figuring out how to deal with the problems of the American people, which is what you were elected to do.
So on the one hand you have all of these problems. On the other hand, we have the problem of confidence and impartiality in looking at or investigating an allegation which may be totally ill-founded or it may be substantial.
My question is the following. We seemed to do very well for 200 years almost without the Special Prosecutor Statute until Mr. Nixon's conduct that was so egregious that the Republic was really endangered and we had to deal with that threat. We took certain lessons away from that and maybe overreacted.
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Might it not be the wisest course of action simply to say that maybe we will go another 200 years, God willing, before we have another Nixon; and that while there are risks on both sides, the balance of risks is simply to trust the good sense of the American people and the normal workings of the system and just leave well enough alone as we did before 1970whatever it was.
Mr. MITCHELL. Representative Nadler, in fact, there were instances in history, prior to President Nixon's term in office, when there was a need, real and perceived, to take special action outside the normal administration of justice. We all, of course, recall the Teapot Dome scandal. There were others.
What they were characterized by was an ad hoc process that was constructed in the context and therefore influenced by the particular subject that gave rise to the special investigation.
We thought about what you suggested. We reviewed all of the history, and it is our conclusion that there ought to remain, for those rare cases of special sensitivity and important public need, a process by which a special counsel can be named because of the challenge posed by the loss of confidence in being able to deal with a conflict of interest.
We thought aboutwe considered a number of mechanisms: one, to reduce the number of persons subject to the current law; and the other to reduce the time frame during which actions could be based, that is, actions only while serving in public office as opposed to actions prior to their service in public office and a whole host of other things.
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What we reached was the best balanced judgment that we could come up with. Again, you have anothereffectively, here you have another conflict or a balancing required. That is, as you point out, our country did pretty well without it, can't we get along without it now.
On the other hand, there clearly is a heightened sense of ethical concern among the public for actions taken by public officials. All standards evolve over time; and the fact of the matter is, as we well know, some of the most revered men in our history, some of the most revered legislators in our history, took actions which would now cause them to be heavily prosecuted and probably sent to jail.
So you have to take into account changing circumstances, changing standards. We think this is the best balanced approach even as we acknowledge that there is some force and validity in the argument that you have made.
Mr. GEKAS. We thank
Mr. BACHUS. Mr. Chairman, could I ask one more question?
Mr. GEKAS. The gentleman is recognized.
Mr. BACHUS. Was there any consideration for a statute of limitations in that
Page 63 PREV PAGE TOP OF DOC Mr. GEKAS. Would the gentleman yield? The debate in the previous reauthorization and for the Congress contemplated, although it was not accepted by the then-majority, was for a 2-year sunset provision for an independent counsel.
Mr. BACHUS. I am not talking about the length of investigation. I am talking about for charges for activities that were 12 years ago, 14 years ago, 18 years ago. There are statutes of limitation normally.
Mr. MITCHELL. It is our understanding that all existing statutes of limitation apply when special counsel are appointed, and we did not consider additional or supplementary statutes of limitations, that is, they are subject to existing statutes, and they should continue to be subject to such statutes.
Mr. BACHUS. When you investigate things that happened 12 years ago which might be outside the statute of limitations and you gather evidence in the present, and then thosesome of your testimony is found to be inconsistent with facts, I am very concerned. I cannotI will tell you, most people cannot remember facts 10 and 12 years ago. That is just a fact. They may think they can, but they can't.
Mr. MITCHELL. Well, you have raised a very good question. And the whole concept of statutes of limitations themselves raise the same issue of balance of conflicting objectives that we have been discussing here.
One is, of course, the need for finality and the certainty that people must have in the conduct of affairs. The other is the need for justice for those who are injured or aggrieved and ought to have the time both to recognize their injury and to act upon it. It is the same difficult balance in judgment that is required in determining how long there should be an authority to prosecute. I do not believe that, at least at this point, a sufficient case has been made to establish a whole new set of statutes of limitations that would be superimposed on existing statutes in special counsel cases.
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Mr. GEKAS. We thank the gentleman. Well, we now dismiss, with gratitude, the panel. I think this is one of the most, shall we say, unique experiences that this subcommittee has undergone, and we issue our gratitude to each and every one of you. Thank you very much.
Mr. MITCHELL. Mr. Chairman, may I just make one additional request? You stated at the outset that the full statements by Senator Dole and myself would be placed in the record, both the longer written statement and the oral statements. In addition, may I ask that our project's report be placed in the record? I think that gives a more comprehensive analysis and recommendations.
Mr. GEKAS. Without objection, it is so ordered.
Mr. MITCHELL. Thank you, Mr. Chairman.
Mr. GEKAS. Thank you very much. This hearing is concluded.
[Whereupon, at 12:16 p.m., the subcommittee was adjourned.]
REAUTHORIZATION OF THE INDEPENDENT COUNSEL STATUTE, PART II
THURSDAY, SEPTEMBER 23, 1999
House of Representatives,
Page 65 PREV PAGE TOP OF DOCSubcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 10 a.m., in Room 2237, Rayburn House Office Building, Hon. George W. Gekas [chairman of the subcommittee] presiding.
Present: Representatives George W. Gekas, Jerrold Nadler, Tammy Baldwin, Anthony D. Weiner and William D. Delahunt.
Staff present: Raymond V. Smietanka, Subcommittee Chief Counsel; Susan Jensen-Conklin, Counsel; James W. Harper, Counsel; Sarah Zaffina, Staff Assistant; Joseph Gibson, Full Committee Chief Counsel; and Sampak Garg, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS. The hearing will come to order. The Rules of the House of Representatives maintain that a hearing of the type that we are now engaged cannot proceed until a hearing quorum has been presented. That constitutes two members. The Chair is here, and we are waiting the presence of the next member to constitute the quorum. What we have accomplished thus far, we have kept faith that this committee since its origin in 1995 has started every single hearing on time. The gavel has fallen. Many times we have had to recess until the next member should appear to constitute the quorum, which is exactly the point that I have now reached. So we recess until the appearance of the next member of the committee.
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Mr. GEKAS. The gentleman from Massachusetts, Mr. Delahunt has arrived and thereby joins the Chair in constituting a required hearing quorum.
We will begin by according to the Chair time to render an opening statement and then yield to the gentleman from Massachusetts or to the gentleman from New York for the purposes of that kind of opening statement, and then we will proceed with examination of the witnesses.
The record should indicate that this hearing is constituted under the rules of the House in which, when a certain matter is pending before a committee, that the minority would have the right to have a day of hearings on its own for its own purposes. That is what this particular hearing has as its origin.
I must say that this is a little bit strange in some ways.
We note the presence now of the gentleman from New York, Mr. Nadler, the ranking minority member.
When the end of the Independent Counsel Statute was at hand at the end of June of this past year, in the months of January, February, March and April, for instance, no one introduced any piece of legislation to reauthorize independent counsel, to my knowledge. The only movement that was made toward consideration of reconstituting independent counsel was in conversations among Members in different types of symposia, talk shows and that kind of media attention. The closest we came to it was when the Chair introduced a piece of legislation as a substitute measure, realizing that there would be no consensus for the reauthorization of the independent counsel. What was that substitute measure? It was to look into the possibility of constructing guidelines for the Attorney General to appoint special counsel in any future cases of alleged conflict of interest.
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We will conclude the statement of the Chair, and then we will adjourn for the vote.
So to repeat, the only matter that was before the committee was a proposal by the Chair to substitute rules and regulations to be promulgated by the Attorney General for the appointment of special counsel in cases of conflict of interest. Still, and up to then and even beyond that, there was no effort by anyone to revive the Independent Counsel Statute.
And so what we have here today will be a hearing with witnesses who will give interesting testimony, I do not doubt, and whose views and testimony I want to hear. But everyone should recognize that the question is moot on the revival of independent counsel. The criticisms that might be laid at the feet of independent counsels in the past are no longer relevant for the purposes of trying to determine a new set of independent counsel laws that would take into account the criticisms. We are beyond that. We are only at a point here where the only issue that is left for us to determine is to what extent shall the Congress act in the question of rules and regulations to be promulgated by the Attorney General in the appointment of special counsel within the Justice Department.
So we have accorded the minority the right to have this hearing, even though I strongly felt as the Chair, and I speak only for myself here, that because of what I have stated, it was irrelevant all of the way through with respect to reauthorization of independent counsel. Some of the testimony, though, may be helpful to us in simply guiding ourselves in the questions of general conflicts of interest which will arise in the future, we are certain, and so it will be helpful from that standpoint.
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The other issue that I want to put on the record, the minority also was adamant in opposing the Chair's decision to place the witnesses under oath. I don't understand fully why, and my puzzlement is not so strong that I am going to take issue with the minority and then have a full-blown debate on whether or not the witnesses should take an oath.
I remind the record and the members and the audience who are here that Ken Starr during the recent impeachment proceedings was sworn in and gave his testimony under oath. In previous administrations I remember the chairman of the Judiciary Committee, Mr. Brooks, swearing in the then Attorney General of the United States. So taking an oath by the witnesses who are going to give after-the-fact testimony does not seem an undue burden, but I leave it to the minority to take the stance that they have for whatever reasons they did.
All I want to do then is to remind every witness that even though they will not be sworn in to give testimony under oath, the decision I made was based upon the recognition that even though no oath is administered, the witnesses are still under the compunctions of the regular statute that prohibits defying the Congress in answering questions or misleading the Congress in any way. The relevant statute is 18 USC 1001, Statements or Entries Generally. This covers the testimony that would be offered by any of the witnesses and would be subject to sanctions if it were to be determined that the Congress has been misled, or that testimony or relevant facts have been concealed, or any of the other compunctions which would normally apply when an oath is administered.
So I acceded to the request of the minority not to put the witnesses under oath.
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The only other matter that I want to put before the record is that the witnesses, just as in most of the cases, most of the issues that come before us, will be given an initial 5 minutes to testify. That is a normal procedure that we try to accompany our hearings, but I recognize that some of the witnesses, perhaps all of them, have more than a 5-minute narrative. I will be as lenient as I possibly can to allow a full exposition of what the witnesses want to say, but I ask you to keep in mind that your written statements will be made a part of the record and subject to further elucidation at your whim any time after that; secondly, that we will try to bring out some of the extra testimony that you might have wanted to present through the examination by the members of the panel.
So with that, I will end my opening statement, and we will recess until 11:30 for the purposes of allowing the members to register a vote on the floor. We stand in recess.
[The prepared statement of Mr. Gekas follows:]
PREPARED STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
Today, we are meeting to hear witnesses requested by our minority pursuant to Rule XI, clause 2(j)(1) of the Rules of the House of Representatives. That rule gives the minority the right for a day of hearings on any matter considered by the subcommittee.
Let me say at the outset that I am interested in hearing the testimony of the individuals who will be appearing today which I hope will illuminate some issues. But at the same time, I must clarify what the subcommittee has done so far on the question of reauthorizing the Independent Counsel Act. First, we chose not to reauthorize the Act, which expired on June 30th. Secondly, we considered the views of a number of witnesses, chosen with no partisan intent, to learn how investigations that raise conflict of interest concerns can be handled by the Attorney General or the Department of Justice.
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We heard from the Deputy Attorney General and the head of the Justice Department's Criminal Division, we heard from three former Attorneys General from both Democratic and Republican administrations. We heard from two distinguished former Senate Majority leaders, one Democrat and the other Republican. We heard from law professors, the President of the American Bar Association and others . . . no one chosen because of his party affiliation or perspective. The chair has made every effort to be not only fair and impartial, but also to be relevant to the issue of reauthorization. Our next step should be to consider our course of action on H.R. 2083, which I introduced some time ago. To the extent that our hearing today helps us in that task it will be useful. If it wanders into other areas, it may be interesting but should be considered in the context of our main purpose. I have no doubt that these witnesses incurred legal expenses . . . some convicted of offenses by juries of their peers, others not. But I also know that everyone who is charged in our criminal justice system is similarly put to expense and inconvenience whether they are convicted or not. Is certainly a concern of ours that no one be so treated unjustifiably, but we must also consider how our lawsparticularly with respect to public corruptioncan be applied diligently but impartially.
I had intended that witnesses testifying today do so under oath, as has often been the practice of the committee under both Democrats and Republicans when dealing with controversial factual questions concerning legal rights and responsibilities, criminal activities, and matters that might bring into question the reputation of individuals not present. Kenneth Starr testified under oath during his Judiciary Committee appearance on November 19, 1998. Chairman Brooks required the Attorney General of the United States to testify under oath in his appearance before the Committee. However, Mr. Nadler has requested that today's witnesses not be sworn. With the understanding that testimony, though unsworn, must be truthful in every matter before Congress pursuant to 18 U.S.C. 1001, the violation of which can lead to criminal consequences, I will assent to Mr. Nadler's request.
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Mr. GEKAS. The committee will come to order. The record should reflect the appearance and presence of the gentleman from Massachusetts, Mr. Delahunt, the gentleman from New York, Mr. Nadler, thus constituting a hearing quorum.
It is time to yield to the gentleman from New York for an opening statement.
Mr. NADLER. Thank you, Mr. Chairman.
Mr. Chairman, before I start my formal opening statement, let me simply comment on the question of the oath. This is an oversight hearing. I am aware that at an investigative hearing we had an oath administered, I think it was to Mr. Starr. I objected to asking these witnesses to testify under oath not because I expect anyone to have a problem with that, but it is not the normal practice of this subcommittee to ask witnesses to testify under oath, and I saw no reason to single these witnesses out at this hearing. I thought that asking them to be under oath might be viewed as somewhat insulting or demeaning, as if it was something to do with their testimony.
So I would have no problem with following a normal practice. A normal practice should be to put witnesses under oath or not, and that is why I objected since that has not been our normal practice. Except for Ken Starr in the 6 1/2 years I have been on this committee, I don't recall any other witnesses being under oath, although there may have been a few others.
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The minority requested this hearing for a number of reasons. In 1994, when the special prosecutor or the independent counsel was renewed, it was my first term in the Congress, and I saw no reason not to renew it. I must tell you I was appalled as I watched the law unfold with Mr. Starr and some others, I was appalled by the appalling and unethical treatment afforded to Julie Hiatt Steele and Susan McDougal, Monica Lewinsky and Monica Lewinsky's mother by the Office of the Independent Counsel. I was appalled by other things that I saw with other independent counsels, and I determined to oppose the law. I think it is a greater threat to liberty than the threat the law is designed to protect.
Having said that, I also was very interested during the entire controversy over the conduct by Mr. Starr of his office that whenever there was or many times when there was criticism of something that his office did with respect to one of these witnesses, the defense offered was, well, there is nothing wrong with what we are doing, this is standard prosecutorial practice, and indeed it may be. If there is a silver lining to the special prosecutors of the last few years, maybe that silver lining will be that it will cause the Congress to take a look at what we permit under the rubric of standard prosecutorial practices, and if indeed what I regard the unethical behavior with respect to the way they handled Monica Lewinsky, if that is standard prosecutorial practice, we ought to change the law.
I hope that this hearing will give us some more information about abuses not necessarily of the law as it is, but of the law as it should be, and maybe we should change the law with respect to prosecutorial standards and prosecutorial conduct and so forth.
Secondly, even though we have properly permitted the independent counsel law to sunset, we still have the institution of special prosecutors appointed by the Attorney General, and many of the same questions may still arise in terms of the conduct of the special prosecutors as could arise in the conduct of past or future independent counsels. So even though we have let the law expire, the subject matter of this hearing is still very relevant to special prosecutors, and perhaps to regular prosecutors in the normal course of their duties.
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So I look forward to hearing these witnesses, and I want to thank the chairman for scheduling this hearing.
Finally, both Mr. Delahunt and I myself have amendments pending on the floor which will come up for debate sometime in the next few hours. So if he or I have to leave, it will be to debate an amendment on the floor, and I apologize.
Mr. GEKAS. Would the gentleman acquiesce to continuation of the hearing if only the Chair is present, with the understanding that the full record will be made available to
Mr. NADLER. Yes. I hope Mr. Delahunt and I won't have to leave at the same time.
Mr. DELAHUNT. I will stay, Mr. Chairman.
Mr. NADLER. I would not object to that, and I will be here except when my amendment is on the floor. And I thank the chairman, and I yield back the balance of my time.
Mr. GEKAS. I thank the gentleman.
Page 74 PREV PAGE TOP OF DOC Mr. DELAHUNT. I would echo the sentiments of the ranking member with regard to putting witnesses under oath.
This is an important hearing. The testimony we are about to receive may seem like deja vu all over again, but let me assure you and the public that the members on this side of the aisle did not request this hearing to relive or rehash recent events. We did not request this hearing to score partisan points. That is not the purpose or the intention of this hearing, or for that matter to cast aspersions on the conduct of any particular occupant of the Office of Independent Counsel. Indeed, we have gone out of our way to locate witnesses whose encounters with that particular institution predate the present Democratic administration.
Our purpose in seeking this hearing was to give a proper burial to the 20-year experiment that was known as the Independent Counsel Act; to think about the lessons that we have learned, and to make sure that before we embark on any new experiments in prosecutorial independence, we take a good, hard look at the price that has been paid for those lessons.
The witnesses we have asked to testify today have all paid an extraordinary personal price, but our Nation has paid a price as well, through the loss of public confidence in the fairness of our justice system, and in the balance and proportion without which justice has a very hollow ring.
The Independent Counsel Act was enacted with the laudable purpose of insulating investigations of executive branch officials from political interference, but in doing so, it created an office whose most singular characteristic is that it is unrestrained by the checks and balances that operate throughout our constitutional system to curb abuses of authority.
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As Justice Scalia explained in his now famous dissent in Morrison v. Olson, the tendency toward prosecutorial abuse is held in check through the mechanism of political accountability. When Federal prosecutors overreach, ultimate responsibility rests with the President or the Attorney General who appointed them. But an independent counsel is subject to no such constraints. He is appointed not by the President or any other elected official, but by a panel of judges with life tenure.
The other principal check on the power of the prosecutor is what is known as prosecutorial discretion. For most prosecutors faced with a finite budget and a burgeoning caseload, discretion comes with the territory. But an independent counsel has an unlimited budget and a single caseusually a single individualto pursue.
Even given these factors, it is possible for an independent counsel to exercise prosecutorial discretion in an efficient, professional manner, without losing his or her sense of proportion. And we should recognize that, in fact, some independent counsel have done so. But the history of the statute reveals a disturbing pattern of investigations that have gone beyond their initial mandate and taken on a life of their own; of prosecutors who feel after years of effort and millions of taxpayer dollars that they must have something to show for all of that time and money. How else to explain the recent plea agreement in the Cisneros case where after a 4-year investigation, a $9 million expenditure of tax dollars, it yielded a fine of $10,000 and an apology. How else to comprehend the otherwise incomprehensible statement of the independent counsel following Mr. Espy's acquittal, that the actual indictment of a public official may, in fact, be as great a deterrent as a conviction of that official. Let me suggest that is a statement that totally undermines the integrity of the justice system of the United States.
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These are the kinds of abuses that shake public confidence in our civic institutions and the rule of law itself. These are the kinds of abuses that the late Justice Robert Jackson surely had in mind when he warned of ''the most dangerous power of the prosecutor'' that he will ''pick people that he thinks he should get, rather than cases that need to be prosecuted. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books or putting investigators to work, to pin some offense on him.'' Those words were written back in 1940, but they could have been written today about a law that empowers the independent counsel not to focus on specific wrongs and search out guilty parties, but to zero in on specific officials to determine whether or not they may have committed an offense.
As such, the Independent Counsel Act magnified the danger inherent in every prosecution, in every prosecution that occurs in this Nation, that innocent lives and reputations will be destroyed, and that the victims will include not only the target of the investigation, but family members, friends and business associates, anyone, in fact, who has the misfortune to be in the prosecutor's line of fire.
This is one of the threads that run through the testimony we will hear today. Our witnesses are Democrats, Republicans, and people of no political affiliation, but they share the experience of having been on the receiving end of an independent counsel investigation. I recognize that for some of them it certainly is not an easy experience to relive, but we are grateful for their courage and their willingness to be here today. I thank you, Mr. Chairman.
[The prepared statement of Mr. Delahunt follows:]
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PREPARED STATEMENT OF HON. WILLIAM D. DELAHUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Chairman, for some the testimony we are about to receive may seem like ''déjà vu all over again.'' But the Members on this side of the aisle did not request this hearing to reliveor rehashrecent events. We did not request this hearing to score partisan points. Or to cast aspersions on the conduct of any particular occupant of the Office of Independent Counsel.
Indeed, we have gone out of our way to locate witnesses whose encounters with that particular institution predate the present Democratic Administration.
Our purpose in seeking this hearing was to give a proper burial to the 20year experiment that was known as the Independent Counsel Act. To think about the lessons we have learned. And to make sure that before we embark on any new experiments in ''prosecutorial independence,'' we take a good, hard look at the price that has been paid for those lessons.
The witnesses we have asked to testify today have all paid an extraordinary personal price. But our nation has paid a price as well-through the loss of public confidence in the fairness of our justice system. And in the balance and proportion without which ''justice'' has a hollow ring.
The Independent Counsel Act was enacted with the laudable purpose of insulating investigations of Executive Branch officials from political interference. But in so doing, it created an office whose most singular characteristic is that it is unrestrained by the checks and balances that operate throughout our constitutional system to curb abuses of authority.
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As Justice Scalia explained in his now-famous dissent in Morrison v. Olson, the tendency toward prosecutorial abuse is held in check through the mechanism of political accountability. When federal prosecutors overreach, ultimate responsibility rests with the president or the attorney general who appointed them. But an Independent Counsel is subject to no such constraints. He is appointed, not by the president or any other elected official, but by a panel of judges with life tenure.
The other principal check on the power of the prosecutor is what is known as ''prosecutorial discretion.'' For most prosecutors, faced with a finite budget and a burgeoning caseload, discretion comes with the territory. But an Independent Counsel has an unlimited budget and a single caseusually a single individualto pursue.
Even given these factors, it is possible for an Independent Counsel to exercise prosecutorial discretion in an efficient, professional manner, without losing his or her sense of proportion. And we should recognize that some have done so.
But the history of the statute reveals a disturbing pattern of investigations that have gone beyond their initial mandate and taken on a life of their own. Of prosecutors who feel, after years of effort and millions of taxpayer dollars, that they must have something to show for all that time and money. How else to explain the recent plea in the Cisneros case, where a 4-year, $9 million investigation yielded a grand total of $10,000 in fines?
How else to comprehend the otherwise incomprehensible statement of the Independent Counsel following Mr. Espy's acquittal, that ''the actual indictment of a public official may in fact be as great a deterrent as a conviction of that official''?
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These are the kinds of abuses that shake public confidence in our civic institutions and the rule of law itself. These are the kinds of abuses that the late Justice Robert Jackson surely had in mind when he warned of ''the most dangerous power of the prosecutor''and I quote''that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. . . . In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.''
Those words were written in 1940. But they could have been written today, about a law that empowers the Independent Counsel, not to focus on specific wrongs and search out the guilty parties, but to zero in on specific officials to determine whether or not they have committed an offense.
As such, the Independent Counsel Act magnified the danger inherent in every prosecution: that innocent lives and reputations will be destroyed. And that the victims will include not only the target of the investigation but family members, friends, and business associatesanyone, in fact, who has the misfortune to be in the prosecutor's line of fire.
This is one of the threads that run through the testimony we will hear today. Our witnesses are Democrats, Republicans, and people of no political affiliation. But they share the experience of having been on the receiving end of an Independent Counsel investigation. I recognize that for some of them it may not be an easy thing to relive that experience, and I am grateful to them for their willingness to be with us today.
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Mr. GEKAS. Does the lady from Wisconsin wish to make an opening statement?
Ms. BALDWIN. No, Mr. Chairman.
Mr. GEKAS. We note the appearance and presence of the gentlewoman. Our quorum is steadfast.
We invite the first paneloh, Mr. Weiner of New York. Does the gentleman want to make an opening statement?
Mr. WEINER. No, sir.
Mr. GEKAS. Do you want anybody to accompany you?
Mr. ESPY. My brother Henry Espy is not able to be here. I do believe Mr. Weingarten is in the building.
Mr. GEKAS. With that we will restate the rules by which we live in the hearing room. We will accept your written statement for the record and ask you to contain your oral statement to about 5 minutes, but we will give you leeway if necessary.
STATEMENT OF MICHAEL ESPY, FORMER SECRETARY, U.S. DEPARTMENT OF AGRICULTURE
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Mr. ESPY. I should be able to do that, Mr. Chairman.
I want to thank you for extending this invitation to me and also to the minority for the construction of this panel and the construction of this hearing. I think that all of us have something to say, whether or not the act itself is moot. I think that the public should be able to appreciate how this law reflects on the lives of real people in an everyday situation.
Also, I want to reflect on my service in this body. I was a member of this body for a period of about 7 years, and I remember my service with great fondness. I do appreciate being back in the House of Representatives. Also as the first witness, I think I should be the one to say it, and I can't speak for all of us, but I don't want to start a pity party this morning. I do not feel victimized. I do not feel victimized. I feel victorious and vindicated, but I think it is important to tell the public and to this committee exactly what we experienced in hopes that it won't happen again to others.
So I am sitting here today, Mr. Chairman, but last year I was sitting at a much different place. I was sitting in a Federal courtroom across the avenue in the Prettyman Federal Building fending off 39 felony charges brought against me by the independent counsel, Donald Smaltz. I think it is fair to say that only Aesop believes that misery loves company because I would not wish that experience on anyone else. And this hearing, which justifiably focuses on abuses of individual rights by independent counsels, perhaps my experience and those of the others will serve as a guidance to all of those wishing to resurrect the statute. I hope that it remains dead.
Page 82 PREV PAGE TOP OF DOC The statute was created with meritorious intent. It was a product of the Watergate reform, but I think that it has served to undermine the very confidence which it sought to engender.
Someone asked how did this start against me. I am not sure. I remember a visit that I had by agents of the FBI. I was sitting in my office at the USDA, and they called and they told me that they were seeking clarification of an article which appeared in a national news publication relating to whether or not I accepted gratuities by entities regulated by the USDA, and whether or not I had extended policy favors in return for those alleged gratuities.
Having nothing to hide, I certainly acceded to their request to visit me. I told them that I did not need any counsel, did not feel that I should be represented at that time. I sat for 2 hours and tried as best I could to answer their questions, tried as best I could to correct what I feel and still feel are blatant inaccuracies of that particular story.
Mr. Chairman, that was my first mistake. Perhaps I was thinking as an honest public official and not as a lawyer. The first mistake I made was not to have counsel, not even to have invited a secretary to record my side of the conversation. So we sat and talked.
Evidently my answers were not good enough, because the next thing I knew, there was this runaway train which I could not stop for the life of me. I tried as best I could to ask the Justice Department about the contents of the FBI summation of the interview, and there was just an absolute wall against which I could not bore through.
Perhaps under the guidance of the old act there is this straitjacket which is put on the Attorney General where, if there is a specific and credible act of wrongdoing, there is a mandated referral based upon that, and so perhaps Madam Attorney General felt that she could not exercise any discretion in my regard. Perhaps she felt that she could not use discretion, particularly that discretion which is called for in the U.S. prosecutor's handbook. She could not do that because that was not allowed under the old Independent Counsel Statute.
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So I was there with that runaway train tied to the track, if you will. The IC began his dogged pursuit of me without regard to cost, time or discretion. He began an effort which even he said would take about 6 months to a year and dragged on until at least 4 1/2 years. Subpoenas were sent to individuals and entities without the slightest connection to me. It seemed that no issue was too remote. Friends, families, teachers, one ex-wife, colleagues, employees, acquaintances, old girlfriends, no one escaped the attention of this particular intrepid independent counsel. In fact, today there is an assistant from his office here today, so perhaps I am still being monitored for some reason.
An investigation which the IC predicted would be 6 months to a year stretched out to 4 years at an estimated cost of $21 million, a huge investment of the public Treasury and a huge investment of the private ego.
I would like to say, Mr. Chairman, that this experience is very tough on families. I am from a large family and proud of my family. I have five siblings, and four were invited to the grand jury multiple times. My older brother Henry, who is not able to join me today, was indicted, I think, on unrelated charges, and he fought them. I am proud that he fought them, and he beat them. What he lost was at the time of the indictment and at the time of the trial, he was the mayor of a small town called Clarksdale, Mississippi, about 18,000 people. He was proud to be the mayor. He wanted to remain the mayor. He was running for reelection at the same time as all of this business came up. He was exonerated, but it happened on a Friday, and his reelection was on the next Tuesday. He was not able to overcome the chill of an investigation and prosecution, and so he could not convert the victory on that Friday to an election on Tuesday, and my family remembers that with great regret.
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I remember another time here. I am sitting at home in Mississippi, and I am sitting there, no longer able to use the platform of the USDA, and I was watching a CSPAN program where my particular IC was the so-called chief witness, and he had the bully pulpit, and he used it. I sat there and I heard him try to demonize me and cast aspersions on my record.
Mr. GEKAS. Can we have decorum in the audience, please.
Mr. ESPY. As I sat there, I began to feel that he deliberately tried to accuse me of single-handedly tainting the American food supply. I flew out of my chair, but I thought it better to hold my tongue and to speak when the opportunity would be more appropriate, at my trial and in this committee.
So my family has suffered a lot of pain and anguish, Mr. Chairman, and so did I. At my trialI say here in the statement that an indictment can be actually really a relief. You get up every day and read the paper, and you wonder what headline is going to suggest what about you, but when you get indicted, you are able to see what cards they are holding, and in my case I thought that the cards were not very significant.
So after a 4-year investigation and an estimated cost of $21 million, after a 7-week trial where the prosecution introduced 70 government witnesses and introduced 100 exhibits on their behalf, and where my team did not introduce a single witness on my behalf, I was exonerated after 9 hours of deliberation.
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The jury asked to meet with me after the verdict, and after securing permission from the trial judge, I went back to the jury room, and they told me a couple of things. One, I was as not guilty as anyone they have ever seen. And the other one was that a gentleman told me, don't feel badly that we took 9 hours, because we are frequent smokers. We had to take smoke breaks.
So in an effort to justify the expenditure of time, resources and hubris, my particular counsel struggled to explain why all of this had to take place, and he uttered the statement which Congressman Delahunt has already noted, and I quote, I think it is significant. He said that the ''mere indictment of a public official has as much deterrent effect as the conviction of a public official.'' well, that is justice according to Donald Smaltz.
I believe that the contrary is true. I believe that public confidence in our criminal justice system is undermined when discretion is abandoned for prosecutorial fame and glory, and when trivialities are trumpeted beyond all recognition, and essentially when politics is criminalized.
I have a number of recommendations should this statute ever be resurrected. I won't go through them. In the public's mind, if I am allowed to interpret it, they look at this act on its face, and they see it as a case where lay lawyers pretend to be professional prosecutors. They are endowed with Federal largesse. They are given subpoena power and are unhindered by the calendar, and they are turned lose on a single target. And even when successful against great odds, that target must finance the cost of litigation.
Page 86 PREV PAGE TOP OF DOC I conclude just by saying, Mr. Chairman, that I feel that it was an unnecessary experience. If I had been allowed an interview by someone from the Justice Department at the time the FBI summary was transferred to them, I would have been able to take care of it, I think. I am not sure. But I can appreciate at that time there was a different political dynamic going on in this country as well as the specifics of the statute didn't allow for them to entertain my request. But I think I could have put all of this to rest and saved this country a whole lot of money and myself a whole lot of grief. But I did beat the schoolyard bully.
I do not want to see any unnecessary prosecutions. I think it is clear that Espy is not Nixon, and Cisneros is not Waco. There should be some sense of proportion when making referrals to the independent counsel. There should be some distinction between gravity and triviality. This act is now dead, and I think it should remain so.
As one last anecdote, I will say, and this perhaps is an example of overreaching again, where the senses of my particular independent counsel went were out of proportion. At some point during this process there was an article in a local newspaper here relating to his having purchaseddesigned and purchased watches to be given as mementos to his staff members, and that watch was recorded in one of the newspapers, and I saw it. I said, what is on the face, and on the face is my name, as if to say to those who received this gift that every waking second that you have this watch on, you should be reminded of who you are out to get. That is not right. I can only assume that those watches were not as a result of public funding. But after I was exonerated, I received through the mail such a watch, perhaps as a gesture of goodwill by one of the agents who had been involved in this 4-year investigation, and he made some comments to me which I really appreciate and which I will not repeat, but I framed that watch. That watch today is in my office in Mississippi, and perhaps it serves as a fitting metaphor that his time is up, and, in fact, the time of this act is up. It is dead, and I feel that it should remain so. Thank you very much.
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[The prepared statement of Mr. Espy follows:]
PREPARED STATEMENT OF MICHAEL ESPY, FORMER SECRETARY, U.S. DEPARTMENT OF AGRICULTURE
Mr. Chairman and Members of the Subcommittee;
Thank you for the opportunity to testify on this critically important and topical subject. For almost seven years, I served as a Member in this body. I've sat through innumerable hearings such as this one deliberating important issues of the day.
I recall those years with fondness. Even though the passage of years tend to dull the recollection, I remember it as a more civil time. A time when partisanship was not as strident. Relationships not as caustic. When Members shared more ideas and fewer subpoenas.
Last year this day, I sat in a much different place. In a federal courtroom across the avenue fending off 39 felony charges brought against me by Independent Counsel Donald Smaltz. I must tell you, its an experience that I wouldn't wish on anyone. In this hearing which is justifiably focussed on ''abuses of individual rights by independent counsels'', perhaps my experiences will serve as guidance to all those wishing to resurrect the statute. A statute created with meritorious intent, but which has served to undermine the very confidence which it sought to engender.
My ordeal began with an interview by agents of the FBI. They were seeking clarification concerning an article which appeared in a national news publication. This publication, not ordinarily known as a ''friend'' of the Administration, had raised suspicions that I had compromised my office by accepting certain gratuities from entities regulated by the USDA and had extended policy ''favors'' in return for same. Having nothing to hide, and without benefit of counsel, I responded to the FBI query and tried as best I could to correct inaccuracies contained within the news story.
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Evidently my answers weren't good enough. The FBI submitted its summary of the conversation to the Justice Department and the next thing I knew I was in the crosshairs of an ''independent counsel''. I tried to no avail to review the FBI report. I tried to engage the Justice Department in a conversation about the FBI report. I tried to explain, to provide context and ''my side of the story''. The first time I saw a summary of the interrogation, it was after my indictment, some three years later. Loaded, in my view, with inaccuracies. I will not accuse the Bureau of willful misrepresentation, but suffice it to say, the document was replete with ''artful'' transcription.
In the meantime, the IC began his dogged pursuit. Without regard to cost, time, or discretion, he began an effort which ran far afield of the original mandate. The dragnet was all expansive. News reports have chronicled IC subpoenas sent to individuals and entities without the slightest connection to the target. It seemed that no issue was deemed too remote, no contact too incidental. Friends, family, teachers, ex-wives, colleagues, employees, casual acquaintances, old girlfriends, no one escaped the attention of the intrepid IC. An investigation which the IC himself predicted would take between ''six months to one year'', stretched to four at an estimated cost of 21 million dollars. A huge investment of the public treasury and of the private ego.
Life under a cloud is not pleasant. Each news story brings about a new and harsher degree of stomach pain. Depression is a constant companion. Families suffer. Savings go. Careers atrophy. You're made to find out just what you're made of.
I recall sitting at home watching CSPAN as the IC assigned in my matter testified before Congressman Burton's Committee. He had the ''bully pulpit''. His effort was obviously to grab headlines, to demonize me, and to cast aspersions on my record at the USDA. He practically accused me of single-handedly tainting the American food supply. He pulled no punches and accused me of granting regulatory favors to firms involved in the food inspection system. I literally flew out of my chair, but I thought it better to hold my tongue and to speak when the time was right. At my trial. In this Committee.
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This experience is also very tough on families. Five of my six siblings were ''invited'' to the grand jury. Multiple times. My older brother was indicted. Another under constant threat. When a diligent search of my tax records, mortgage applications, travel vouchers, and school transcripts revealed nothing sinister, no ''leverage'' material, they hunted in new fi7esh fields.
Fortunately, my brother believed as I do that a good name is worth fighting for. He fought the IC and prevailed. He pled not guilty and was found not guilty. The fight was not without substantial cost. He still owes, as I do, significant legal expenses. Beyond pecuniary losses, he lost the opportunity to singularly focus on a responsibility he coveted and executed well, the mayoralty of his hometown community. In the midst of a re-election campaign, he had to engage in this Herculean struggle. The verdict came on a Friday afternoon, too late for public saturation by the Tuesday election day.
Then it was my time. Actually, a formal indictment can be a welcome relief. You finally to get to see what cards the other side is holding. You finally get to have your day in court. You get to come off the sidelines and ''into the game''.
After a four year investigation, at a cost of 21 million dollars. After a seven week trial, and the testimony of seventy government witnesses. After the introduction of one hundred government exhibits, I was exonerated after nine hours of deliberation. Actually, the jury told me after the verdict was announced that I should not impute any messages from the inordinate length of their deliberations. ''Many of them were smokers'' they said, and they ''had to take frequent breaks''.
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In an effort to justify expenditure of time, resources, and hubris, the IC Donald Smaltz struggled to explain. Before the bank of assembled cameras, he uttered a phrase which is now repeated as a synonym of zealotry, overreaching, and prosecutorial wrong-headedness. He said, ''the mere indictment of a public official has as much deterrent value as the conviction of a public official''. That's JUSTICE according to Donald Smaltz.
I believe the contrary is true. Public confidence in our criminal justice system is undermined when discretion is abandoned for prosecutorial fame and glory, when trivialities are trumpeted beyond all recognition, and when politics is criminalized.
In a law review article entitled THE NEW PROSECUTORS (53 U.Pitt Law Rev.393(1992)) the author describes the character of the ''new American prosecutor''. ''The power and prestige of the American prosecutor have changed dramatically over the past twenty years. Three generalizations appropriately describe this change. First, prosecutors wield vastly more power than ever before. Second, prosecutors are more insulated from judicial control over their conduct. Third, prosecutors are increasingly immune to ethical restraints''.
The American Bar Association has been quite vocal in its criticism of the IC statute and recently the IC's themselves have weighed in favor of sunsetting of the Independent Counsel Act. I say, now that the Act is dead, let it remain in that condition.
The Act had been in existence since 1978 when enacted in response to the ''Watergate'' fiasco. Although passed with noble intentions, the Act has not passed the practical tests of ''equity and fairness''. Lay lawyers pretending to be professional prosecutors are endowed with federal largesse, imbued with subpoena powers, unhampered by accountability, and unhindered by the calendar, are turned loose on a single target. Even when successful against great odds, the target must finance his/her own legal efforts.
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I say, now that the Act is dead, let it remain in that condition. I believe that prosecutorial authority and discretion should vest in the Office of the Attorney General. Failing this, if Congress is bent on reauthorizing the Act, some major restructuring should ensue:
1. Limit the term of the IC to a one year period, renewable upon application to the ''special panel'';
2. Impose a budgetary limit to be increased only upon a showing of necessity;
3. The Attorney General should be allowed to exercise discretion when considering referrals by using standards normally used by professional prosecutors;
4. Eliminate the requirement of final reporting;
5. Limit the range of ''covered officials'' to the President, Vice-President, Attorney General, Secretaries of Defense, State, and Treasury.
6. Legal and relevant expenses of ''covered official'' reimbursed upon successful defense.
In conclusion, my experience with the IC ended well. I beat the ''school-yard bully''. But only Aesop believes that ''misery loves company''. I don't want to see any more unnecessary prosecutions. Espy is not Nixon. Cisneros is not Waco. There must be some sense of proportion. Some distinction between gravity and triviality. The Independent Counsel Act is now dead. It should remain so.
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Mr. GEKAS. The timethe gentleman's time has expired. The Chair will yield himself 5 minutes for the purpose of asking some questions.
Mike, you said at the beginning that you did ask the Justice Department or approach the Justice Department after your first interviews with the FBI to see what was going on or something, and then later at your last statement you said that you felt restrained from approaching the Justice Department because you thought maybe the statute would prevent you. My question is did you approach the Justice Department?
Mr. ESPY. I don't believe I misspoke. I said that after the FBI interrogation, they submitted a summary oftranscription of what the interview called for to the Justice Department. At the time I did make a call to the Criminal Division and the Public Responsibility Section asking basically what was going on, if I could be given an opportunity to come there to speak to them about whatever the FBI had reported on the record without the benefit of counsel again, if that was necessary, and basically they said no. They never did say why not, but I can only assume from my reading of the statute that perhaps the division and the Attorney General felt that they were in a straitjacket based on the mandates of the statute, that it doesn't allow for any sort of outside interrogation of the target; that if there is a specific and credible allegation of wrongdoing, that they have no choice but to refer it on.
That is my assumption. I know that they turned me down and my lawyers, and we were never able to go and seek answers.
Mr. GEKAS. That is the point. Throughout all of this up until youit was determined by the Attorney General that an independent counsel should be sought in your case, it was all internal within the Justice Department, the FBI questioning of you, et cetera.
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Mr. ESPY. That is true.
Mr. GEKAS. And then the findings by the Attorney General that there was sufficient credible information to warrant continuing by asking for the appointment of an independent counsel.
Mr. ESPY. That is fair.
Mr. GEKAS. And a three-judge panel also reviewing the petition of the Attorney General determined that indeed an independent counsel should be appointed.
Mr. ESPY. That is also fair.
Mr. GEKAS. Up until that time Mr. Smaltz was not in the picture.
Mr. ESPY. That is correct. He was appointed by the three-judge panel.
Mr. GEKAS. The other set of questions, Tyson Foods pleaded guilty of one count of providing gratuities, and my notes say in excess of $12,000. Do you know whether or not they pleaded guilty as a kind of reduced amount in order to be given favorable treatment by the independent counsel, or was $12,000 around the amount that was really in question?
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Mr. ESPY. I can't answer that specifically. I really don't know. I can only repeat a conversation that I had with one of the counsels for Tyson about why they did what they did. I can't talk about the amount.
But basically I recall the conversation was that they agreed to do it because it did not involve any specific indictment of leadership of the company. It was an indictment of the company itself. The fact that the fine which had been discussed was much lower than they thought it would be originally, and given the stockholders' interest in maintaining the integrity of the company, decided just to do it and get it off the plate and move on to something else.
Mr. GEKAS. Who is Jack Williams?
Mr. ESPY. He was a lobbyist for Tyson Foods.
Mr. GEKAS. We have records of his judicial proceedings. He was found guilty by a jury, gratuities worth $1,119 given to Secretary Espy, but to your credit he was found not guilty apparently on those counts that had to do with violation of the Meat Inspection Act in the gratuity statute, meaning that this was your side of the answer to all of the gratuities, that indeed there was no quid pro quo?
Mr. ESPY. Based on the 7-week trial, 70 government witnesses and 100 government exhibits, we were able to, I think, win based on our degree of cross-examination that much of this was untrue, if not all of it untrue. ThatI don't want to relive the trial at this hearing, but my side of the situation related to, first of all, there never was any quid pro quo. Not even the independent counsel suggested formally that I had given favors for alleged gratuities. So my defense basically rested on whether I had received such gratuities, and I said I did not, and we were specific and careful to suggest why not. And so I was acquitted of receiving gratuities in the course of official acts.
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Mr. GEKAS. So you did not receive gratuities from Tyson Foods?
Mr. ESPY. That is right.
Mr. GEKAS. Or from Jack Williams?
Mr. ESPY. That is right. If the chairman would just consult the transcript of the trial, he will see why I was victorious in that regard.
Mr. GEKAS. Has there been any move on the part of Tyson or Jack Williams to appeal or to overthrow the findings of the jury; by Williams, for instance? Do you know whether he appealed or moved to set the verdict aside?
Mr. ESPY. I wish my lawyer were here. He could tell you.
I would say that the chairman should also read the transcript with regard to the Sun Diamond trial. Sun Diamond is a large California company which also was indicted by my independent counsel, went to trial, convicted. There was a reversal and appeal, and there was an ultimate reversal by the U.S. Supreme Court. The U.S. Supreme Court unanimously voted in that particular trial on the questions.
Mr. GEKAS. The time of the Chair has expired. We yield 5 minutes to the gentleman from New York Mr. Nadler.
Page 96 PREV PAGE TOP OF DOC Mr. NADLER. Thank you, Mr. Chairman. Mr. Espy, probably the most notorious comment in this whole trial was the one referred to in your testimony and by Mr. Delahunt when the special prosecutor, Mr. Smaltz, said that the mere indictment of a public official has as much deterrent value as a conviction of a public official, which of course definitively I think rules out Mr. Smaltz's fitness to be a prosecutor or possibly even a member of the criminal bar if that is his regard for justice. But after the government put on the 70 witnesses, I think you said, and a hundred exhibits in your trial, you decidedthe defense rested without any witnesses at all. Didn't you thinkmost people would think that very risky not to raise a defense in a criminal trial. What made you and your attorney decide to do that?
Mr. ESPY. We were prepared to present a case. We had come up with a list of witnesses. Many of those witnesses had been vetted. I was personally prepared to testify. I was anxious to do so. You had to sit there for those 7 weeks and see what the other side did. I thought they wereI thought they were inept. Some would say too aggressive. I know the jury, from sitting there trying to interpret jury feelings, we all felt that the jury did not want to hear any more. The jury was ready to acquit.
Mr. NADLER. After hearing all the prosecutor's side do, you feel the jury was ready to acquit?
Mr. ESPY. We felt so. We felt they were so angry having been made to sit there to listen to this. You know, on cross-examination, chief witnesses were contradicted, on cross-examination people folded on cross-examination, a case is won. So we felt that perhaps it would be more risky to continue to put on the case in chief and we rested and just put it in their hands. After all I was innocent until proven guilty. It was up to the prosecution to prove me guilty and I wasn't guilty.
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Mr. NADLER. So you were confident that they simply hadn't made the case and the jury in effect agreed?
Mr. ESPY. Absolutely.
Mr. NADLER. You say in your testimony that you watched on CSPAN as the independent counsel assigned to your case testified before the committee of this House and chaired by Congressman Burton and that he cast aspersions on you, demonized you, accused you of various crimes and accused you of granting regulatory favors to firms involved in the food inspection system. I was astonished by this. I must confess that while this was going on I didn't pay close attention to this. I did not think it ethical or legal. Maybe I am wrong for the legality. Certainly I don't think I am wrong on the ethics side of itfor a prosecutor to in a forum outside the court, whether it is congressional committee or ''meet the press,'' to go and say this guy is guilty. This guy did this. This guy did that. Is that normal prosecutorial conduct?
Mr. ESPY. I used to be an assistant attorney general in Mississippi. I guess that qualifies being a prosecutor but I think it is a bit over the top. I don't know at that point whether I had been indicted or not. I don't even know if it makes a difference but still deserved the benefit of innocence, benefit of the doubt. I sat there and listened to it all. I was quite overcome by the specificity of those comments. Here's the USDA Secretary, who is responsible for maintaining the integrity and safety of the food supply, and he did this and that and I had not done any of that.
Page 98 PREV PAGE TOP OF DOC Mr. NADLER. He was testifying to a committee on television saying you had done these various things.
Mr. ESPY. Absolutely.
Mr. NADLER. Let me ask you one other question. You say you still owe, as does your brother, significant legal expenses. I can imagine that is the case. You also make a recommendation that if we should, which hopefully we will not reauthorize the act, you make some recommendations for restructuring, one of which is legal and relative expenses of ''covered officials should be reimbursed upon a successful defense. I certainly would agree with that. But let me ask you one question which sort of puzzles me. When you have a special prosecutor or for that matter any prosecutor who conducts an investigation, a number of people, even those who are not ultimately indicted, may incur very significant legal expenses. If the special prosecutor ultimately decidedthe independent counsel, excuse me, ultimately decided not to indict you, you still would have to have been called a witness several dozen times and your family. You say your brother was called, all your siblings were called. There would be tremendous legal expenses. Would you suggest the witnesses ought to be reimbursed or only if you are indicted and then acquitted?
Mr. ESPY. My reading of the act insofar as the target is concerned is that if you are investigated and there is no indictment, then you at least have a reasonable opportunity to petition for reimbursement of your legal expenses. I think the same should go for witnesses and, as I say in my statement, if the target is exonerated, here I was exonerated totally. I sit here without a smudge or taint on my record without a misdemeanor. I pled to nothing. But I still am hobbled by what are really for me incredibly high legal expenses. So I think it is even reasonable to suggest that if not all of the expenses, at least those expenses related to your services as a public official. In my trial, there were some personal allegations and there were some policy allegations specifically relating to methyl bromide and MPP and so forth and we although not under a cloud for a quid pro quo, IC still brought them up and we had to dismiss them. So we spent significant time in front of this jury and significant lawyer's fees trying to squash the interpretation that I somehow compromised my office on these very significant policy issues which are national in scope. So at least that time attributable to the actions to dismiss that part of the indictment, trial, and investigation should be reimbursable.
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Mr. NADLER. Thank you very much. I see my time has expired.
Mr. GEKAS. The gentleman from Massachusetts is recognized for 5 minutes.
Mr. DELAHUNT. Thank you, Mr. Chairman. I want to be clear in my own mind. The statements that were made by Mr. Smaltz before the committee chaired by Mr. Burton that you referred to, was that prior? Was that subsequent to your acquittal? When did they actually occur?
Mr. ESPY. That was certainly prior to my acquittal. I am sitting here wondering if they were prior to my indictment. I am not certain of that. But they were certainly prior to my acquittal.
Mr. DELAHUNT. That really does shock me because I happened to be the elected prosecutor in the metropolitan Boston area for 21 years and at least in the Commonwealth of Massachusetts that conduct would be considered unethical. It could be described as prosecutorial misconduct and I dare say would be subject to sanctions by the court. So again not having the benefit of listening to the comments and just accepting your statement as accurate, I find that shocking. But then Mr. Smaltz's statement in the aftermath of your acquittal could also appropriately be described as shocking. The first contact that you had with the FBI, when did that happen, Mr. Espy?
Mr. ESPY. The first contact with the FBI and the USDA IG, who also contacted me, were probably around June, June 1994.
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Mr. DELAHUNT. And your trial and acquittal occurred?
Mr. ESPY. The trial started September 1998.
Mr. DELAHUNT. So we are talking about a period of about over 4 years.
Mr. ESPY. Yes.
Mr. DELAHUNT. You indicated the cost was $21 million.
Mr. ESPY. The estimated cost is about $21 million, $20, $21 million.
Mr. DELAHUNT. Let me ask you this. And I know it had to be a very painful experience, and that is why I think your testimony today is very important because hopefully it will provide the American people with an example of what can happen to an official or to a human being when the power of the government is exercised in a way thatlet me put it this waythat has consequences far beyond the individual charged with the crime. You indicated that you have outstanding legal bills?
Mr. ESPY. Yes.
Mr. DELAHUNT. How long do you estimate that it is going to take you to pay those bills?
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Mr. ESPY. Well, I have no way of knowing. I am doing pretty well with it so far.
Mr. DELAHUNT. You talking 6 months or 6 years?
Mr. ESPY. I think it is going to be longer than that. It is probably longer than it took for everything to unfold. Probably longer than 4 years.
Mr. DELAHUNT. It is obviously going to have to impact on decisions that you make in your life from this moment on.
Mr. ESPY. Oh, absolutely. It is likeit is like the indictment. It is a cloud hanging over one's head.
Mr. DELAHUNT. Were you married at the time?
Mr. ESPY. No, I wasn't. I was married recently, April.
Mr. DELAHUNT. In terms of your personal life, can you describe how you felt? How did it feel to get up in the morning and walk the street?
Mr. ESPY. I will tell you that each day is new headlines. It brings a certain twist to the stomach. What is it about today? What is the headline going to be about today? This isn't true. You say, Lord, why me. Why have you allowed this to be visited on me and you just hope and pray and rely on the strength of family and friends that one day it is going to be over and one day the truth will come out. But you hold your tongue. You hold your tongue and you wait for the appropriate opportunity. I went from a Cabinet Secretary to basically an unemployed person overnight. That is pretty difficult because I have two children in Mississippi and I have always tried to maintain
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Mr. DELAHUNT. What kind of an impact did it have on them? Did they ever ask you what was going on?
Mr. ESPY. Yes. They asked me oftentimes. Usually they did not have to ask. I volunteered. Here's what is going on. Here is why I think it is going on but at some point in time it is going to be over. They were both in school. And, of course, they were questioned and teased by their friends or their colleagues, and I was a lawyer.
Mr. DELAHUNT. I am going to ask the chair for an additional minute.
Mr. GEKAS. Without objection.
Mr. ESPY. I want to say I have always tried to be financially responsible for them and it is hard to do so as an attorney. Fortunately, I have never missed a month of child support and that's great, I think. But you know when you are a lawyer, what client is going to want to come to a lawyer under the threat of an indictment, under an actual indictment. It is very hard.
Mr. DELAHUNT. Let me ask one final question. You have been through this experience. What is your attitude now about the American justice system?
Mr. ESPY. Well, I mean, I am certainly an advocate of it because my story ended well. I played by the rules. We fought and we won. I was indicted. At the arraignment I pled not guilty because I wasn't guilty. We went through it and we prevailed, so we beat it. So I think despite egomaniacal attitudes on the part of some with new found power, I think that the American jury system is the finest in the world and it certainly exonerated me.
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Mr. DELAHUNT. Thank you.
Mr. GEKAS. The time of the gentleman has expired. The gentleman from New York is recognized for 5 minutes.
Mr. WEINER. Thank you. Mr. Espy, one of the things that I think many of us find most troubling about the statute and why many of us support having it fade into darkness was the notion that rather than having a crime that you are looking to find the person responsible, this statute more or less focuses on a person and then there seems to be incentive after incentive to try to find something that that person did. With that in mind, I would like to ask you a couple of questions about some people who got ensnared in that ever expanding net that this case encompassed. Can you tell me, before this case had you ever met Yvonne McDaniel?
Mr. ESPY. No.
Mr. WEINER. Could you tell us a little bit about her involvement in this case?
Mr. ESPY. What is the name?
Mr. WEINER. Yvonne McDaniel.
Mr. ESPY. I don't know that person.
Page 104 PREV PAGE TOP OF DOC Mr. WEINER. Let me provide some refreshing for you. If you had dealt with 70 witnesses and 100 some odd pieces of evidence, it might not be a surprise but to those of us in preparation for this going through some of the record, Yvonne McDaniel was a 54-year-old widow who was subpoenaed by the OIC, who was interrogated without any mention of Secretary Espy and was asked questions as far reaching about whether she had ever seen anyone take drugs on a cruise that she took with Don Tyson of Tyson Foods, whether she ever had hadhad seen any prostitution or homosexual activity while on the cruise. Never in the entire interview being informed that this investigation had to do with Mr. Espy, never even being asked until the end of the investigation whether she even knew Mr. Espy, which the answer was that she did not.
Do you know the name Ken Gates, Mr. Espy?
Mr. ESPY. No.
Mr. WEINER. Ken Gates, the record shows, was a pilot who flew for Tyson Foods and was last employed by Tyson Foods 16 years before the investigation had even begun let alone when the alleged crimes had taken place. These are people who are not subpoenaed to talk about Mr. Espy although the investigation was theoretically about Mr. Espy. But this is about an investigation that was then spun off in a wider and wider net to deal with the Sun Diamond investigation and otherwise.
Mr. Espy, I am sure your counsel was aware of this and you might have been as well, but the record also shows that 2,000 Tyson Food workers were subpoenaed in this case because they had filed injury claims cases against this very large Tyson food company. These are people who were ensnared in this investigation I would assume, if Mr. Smaltz was here, because perhaps they knew someone who knew someone who saw someone who met someone who read in the paper about someone who once knew someone named Espy who they had seen across the street perhaps against the light. And the problem here is there seems to be nothing and perhapsI mean, I am just learning about this lawthere seems to be nothing, no monetary check on this type of investigation and in fact it seems from looking at the record that there is nothing but pressures on the IC to have this exact type of investigation because the last thing they want to do after they rent the office and get the copy machines and hire the staff and hand out the watches and have the press conferences and the testimony, it seems like if they don't come up with something, then they are stuck at the end of this trial standing on courthouse steps making bone head comments about how well we indicted him at least. It seems like every single pressure in this law, and this might have nothing to do with you, Secretary Espy, this might frankly have to doand we are going to hear other panels todayit seems every single bit of pressure on this system is not a balancing of well, do I investigate another case, do I not call this witness because then I have to fly my staff out there to talk to this person, it might not lead to anything. It seems like every single pressure is leading toward the ever widening of this net until they find some way to ensnare the investigative party. Would you have any comments, not perhaps specifically on those three cases if you are not familiar with them but on the general premise?
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Mr. ESPY. Thank you for the comment and question. Sure, I have a comment. There is a former independent counsel Joe DiGenova. I think he is a good guy. I think he is very courageous. In the passport, the Clintonthe passport investigation, he declined prosecution. He kept the investigation fairly confined within the original mandate and he did it on an expedited timetable. He found nothing. So he tried not to find anything else and he declined prosecution of those who might have been targets at that time. That is the type of conduct you want to see.
In my particular case, I have got to tell you, once you are indicted, you get the benefit of being able to see everything that they have done, the work product. They send you the 2,000 interviews. They send you the names of all those they talked to and I looked through those 200 boxes, all of them personally. I didn't know 90 percent of the people, never talked to them at all, and in regard to my personal situation, I saw not just my schedule as Secretary, not just the policy matters as Secretary, which came across my desk and not just my IRS records. I guess if you are accused of taking gratuities, I guess you would expect to see your tax records, as if to say you didn't record them or give notice to the IRS. So that is okay. But I saw my mortgage applications for every house I ever applied to get a mortgage from a federally insured bank as if to see if I had lied to the bank. And I didn't. And I guess if I had, you know, you would have seen some bank fraud charge. I saw my college, my law school and high school transcripts in the box. Now why? I passed. I have a degree. So maybe it is just a sense of suggesting that they have gone so far as to become so secure in the case that they would own me. But nobody owns me.
Mr. WEINER. I thank you, Mr. Espy. My time has expired. There is one bright side. Be thankful they didn't do that investigation before you ran for Congress because you might not even have gotten that far. Thank you, Mr. Chairman.
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Mr. GEKAS. The time of the gentleman has expired. We turn to the lady from Wisconsin for a period of 5 minutes.
Ms. BALDWIN. Thank you, Mr. Chairman. I want to thank you for sharing your personal reflections. I think it is very helpful to us and to the public. Those of us who are outraged by stories and accounts that we are hearing and that we have read in the materials for today want to figure out ways to prevent further erosion of public confidence in prosecutions. And I have heard your testimony about counseling us not to reinstate the Independent Counsel Statute. We know that it is being replaced with a successor scheme, a sort of regulatory special counsel. I know you have given considerable thought to policy recommendations if we were to embark upon renewing the Independent Counsel Statute. I share your hope we will not renew it, but given the fact that we do have now a successor scheme in place or coming into place, I would like to hear a little bit about policy recommendations that you have given thought to, draw on your experience as a former lawmaker while you are here, and especially any changes you would have to those policy recommendations given the fact that we are now working under administrative scheme, not a statutory scheme.
Mr. ESPY. Thank you very much, Congresswoman. Of course you know I mentioned in my written statement that of course this is a laudablethere was a laudable goal which created this act. Everyone knows it was created as a result of the Watergate episode as a reform measure, a great reform measure but it somewhere went awry. A Senator, I think it was Senator Durbin from Illinois in the other body, in commenting on this act, he said it is a little like an alcoholic on the Titanic. When he sees the ice, he says I ordered ice but this is ridiculous. So something went wrong and I think a lot went wrong and I am trying in this statement to give just a few recommendations that Espy and Nixon and Cisneros andthere is a proper and appropriate goal to reassure the public that there really are conflicts of interest when the Attorney General is called upon to investigate someone of her party or his party that thatthat is proper but there should be some proportion to it. And so in my written statement, I give six. At least one is toif there is an IC, have him going in understanding that it is a finite period of time and a finite budget. If there needs to be some additional appropriation or some additional tenure to it, he has to make special appeal to get that but know going in that the American public can be assured it is not just a raid on the budget.
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Thirdly, the Attorney General when making this referral ought to have the ability to exercise sensible discretion, and that is where I think the proportion can come into it. I wish my prosecution had been handled by the Justice Department. I don't know what the outcome would have been. They are just as zealous in many cases as outside counsel but at least I think it would have been handled more quickly and at least the Attorney General would have had the benefit of being able to use a normal handbook used by every Federal prosecutor appointed as such in the country. And under this act she wasn't able to.
The fourth thing is this final reporting. There is a gentleman here from Smaltz's office and they have got to write a final report. You are going to pay for it. What is it going to say? Why file a report really? It is unnecessary and expensive and exhaustive. I think that the act ought to be limited, if it is ever resurrected, to cover the employees, limit it to those who really have national security issues and agendas before them on an everyday basis, not that the USDA doesn't because it does, but it is more commonly limited to President, Vice President, Attorney General, Secretaries of Defense, State and Treasury. Just cut it off there and everything below that is handled by the Justice Department in its own internal way.
And then lastly, and again you know perhaps this is special, is that when you win you ought not to be straddled with the expenses of winning. The public pays the cost of IC's investigative effort but the individual, even those that are exonerated, are straddled with their own and that is not fair.
Ms. BALDWIN. Thank you.
Page 108 PREV PAGE TOP OF DOC Mr. GEKAS. The lady yields back the balance of her time.
Mr. GEKAS. Mike, you said about exercising discretion you feel that the Attorney General failed to exercise proper discretion in pursuing the case in which you were involved. You know that the Attorney General did exercise discretion in not pursuing the Vice President's situation under the same kind of credible information standard and you said quiteso she did exercise discretion there and on the question of DiGenova versus your own, you quite nicely said that DiGenova at least was able to proportionize the investigation that he had to his credit, which you commended but that in your case that sense of proportion was lost.
Mr. ESPY. Yes.
Mr. GEKAS. Doesn't it come down to who the individual prosecutor is?
Mr. ESPY. In many ways it does. I suggest in my testimony that this act, now dead, should remain so but if the Congress in its infinite wisdom decides to resurrect it, there ought to be certain recommendations. I did not include within them, and perhaps I should have, that the resume of the person of which the special panel chooses should be a highly qualified resume. I did suggest that there are lay lawyers who are now cloaked in the authority of special prosecutor. Perhaps they get carried away with it so it really depends upon who it is. In my opinion there are some good ones and there are some who are not so good.
Mr. GEKAS. We thank you for the testimony that you have offered here today and we thank you for your cooperation in answering the questions and for all that you have contributed to this hearing.
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Mr. ESPY. Thank you very much.
Mr. GEKAS. You are excused with the thanks of the committee.
The next panel is invited to join us at the table, which is made up ofif counsel will give me the list. Panel 2 is made up of Susan McDougal and company. You are substituting for Mr. Geragos?
Mr. HARRIS. I am, yes, sir. Unfortunately he is in trial on Tuesday and has a rather nervous client, so he won't be here today.
Ms. MCDOUGAL. This is my attorney Pat Harris.
Mr. GEKAS. Susan McDougal is the former wife and business partner of James B. McDougal. From 1982 to 1987 Ms. McDougal and her husband were officers and owners of Madison Guaranty. They were also business partners of William Jefferson Clinton and Hillary Rodham Clinton in the Whitewater Development Corporation. Ms. McDougal was convicted of four counts arising out of a $300,000 Small Business Administration loan. The four counts were mail fraud, aiding and abetting and misapplication of the SBA loan funds, aiding and abetting and making a false entry in certain reports and statements relating to the SBA loan and aiding and abetting and making a false statement. Her conviction on all four counts was affirmed by the Eighth Circuit Court of Appeals in February 1998. In August 1996 Susan McDougal was subpoenaed to testify and answer questions before a Federal grand jury empaneled in the Eastern District of Arkansas to investigate whether certain individuals or entities violated any Federal criminal laws. In September of that year, United States District Judge Susan Webber Wright issued an order granting Ms. McDougal immunity for any testimony she provided before the grand jury and requiring her to answer questions put to her by the grand jury. As a result of her refusal to testify, Mrs. McDougal served an 18-month prison sentence and then was purged of the contempt or some relief was granted thereafter to Ms. McDougal.
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Ms. MCDOUGAL. I was let out of jail.
Mr. GEKAS. We have no introductory remarks for Julie Hiatt Steele, so we will have to leave her history to her own statement insofar as these proceedings are concerned. So we will begin with Ms. McDougal. I want to repeat what I said at the outset that your written statement will become a part of the record automatically. We ask you to try to restrict your oral testimony to 5 minutes.
STATEMENT OF SUSAN McDOUGAL
Ms. MCDOUGAL. Thank you. I do thank you for letting us talk today. I think it is important. As most of you know, I have very strong opinions about the Office of Independent Counsel, and I wish I had been able to voice them as you let the law die out. I would have liked to have been able to have done it then, but I am glad to do it now and I thank you for giving me that opportunity. I have seen firsthand in my life and in the lives around me and of my family the devastation it has wrought by the Office of Independent Counsel.
It would be easy for me to say that I am against that act and that I support the abolition of it but I don't come here today to do that. I think that shortsighted and I agree with the last remarks that were made: It truly is the man and, as we have heard so many times, the law is only as good as those who enforce it.
In Los Angeles right now, there is a huge outcry over the policemen and how they acted in several gang investigations, beating up suspects and getting snitches to put people in jail, and there is a panel being appointed right now from all areas of the country to try to see what they can do, but they are not abolishing the Los Angeles Police Department because of it.
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We send our policemen out every day into dangerous situations and they have become corrupted because of the crime around them and they start to use people as snitches to put people in jail because they think they are going to clean up America like that, but we don't agree with that. As Americans we don't think that is right. When we hear about it, they are fired. That investigation doesn't go forward. And if we find out about it something happens, but that didn't happen when we saw what Kenneth Starr was doing.
I am still very emotional about all of this. This has not been a long time for me. I have only been out of trial for 5 months and to sit in this room and hear these comments, especially from the Democratic side, moves me because it is so recent for me and it means so much to me that you all get it and you do. Your comments make me proud to be here today and I will go on with my prepared ones now.
A thing that really astonished me after my conviction was a speech that Kenneth Starr gave to the Detroit Economic Club in which he said that when he was appointed he came up with a plan that he and his staff got together, a plan. Now, this plan involved indicting and convicting my ex-husband and myself in order to get to President and Mrs. Clinton. He stated that boldly to that club. And this, mind you, this time period, the fall of 1996, is before he ever saw a piece of paper, before there was ever anyanyone who talked to me who ever asked me what happened. He had a plan and his plan was we will get them and they will give us the President and his wife. That astonished me. The plan worked insofar as they convicted me.
As Mr. Gekas read, they did convict me on four counts in that trial and they convicted my ex-husband of many more. But I have been told prior to that that those charges wouldn't even be brought. There was no need for me to even be charged. All I had to do at the first meeting I had with them was give a proffer that said something, something that either Bill or Hillary Clinton had done that was illegal. All I had to do was give them something and I wouldn't even have been having to goI could have saved myself a world of trouble. I kept trying to tell them at that first meeting at which I thought they would ask me questions that I didn't know anything that they had done wrong, that I would be glad to tell them if I knew anything but I didn't know anything, and I thought that the first meeting I had with them was going to be about questionsthat they were going to ask me about Whitewater and that was what they had told me. They never asked me a single question. Not one. They pushed papers across the desk and they said we can indict you and we can convict you based on these documents. I hadn't seen them. But we don't have to do that. All you have to do is give us a proffer and tell us something that Bill or Hillary Clinton has done and you walk. And to tell you that it was disillusioning and I was upset about that, I mean the meeting quickly ended and I walked out of the room and the next thing was I was indicted and I was convicted.
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After they convicted Jim McDougal, he came to me and he said, I don't want to die in jail. He was very sick.
Mr. GEKAS. He said what?
Ms. MCDOUGAL. He did not want to die in jail. He was very sick. Jim was 16 years older than I. He had always been in poor health. He said I am going to agree with the story they have from David Hale that the Clintons took this money and I think you should too because I don't want you to go to jail either, but I am going to tell you because I don't want to die in jail that I am going to agree to cooperate.
Jim kept coming to me and telling me about his meetings after he began his cooperation and, you know, I could understand that. I could understand his cooperation even though I told him at the time that I couldn't do it. Is my time up?
Mr. GEKAS. Proceed.T4
Ms. MCDOUGAL. Even though he told me that he was going to do that, it was understandable that a man as sick as he was and who had been through what he had wouldn't want to go to jail for, I have forgotten, a hundred and something years were the possibilities. But he was reporting back to me about his meetings with them and I saw them bringing gifts to his house. I was up on a hill watching as Kenneth Starr would drive up, driven by FBI agents and bringing gifts into the house, just the different meetings that he had. He approached me one day and he said to me, this is right before the election, the Clinton-Dole election, and he said you don't have to say that David Hale is telling the truth. If you will say you had a sexual affair with Clinton, that will be enough to save you. They will not send you to jail. They will go to the judge and get some sort of probation or something and they had come to me with that. That was Hickman Ewing, Starr's right-hand man in Arkansas, running the Arkansas office.
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I told Jim, I said Jim, I cannot say that. That is a lie. I will not do it and they are going to have to do whatever they have to do and I am going to have to do what I am going to have to do. But you can see where all of that came together for me. When I was then subpoenaed before the grand jury, I had all of that in my mind. The discussions that Jim had had with them where they had told him we know your wife only signed these because you asked her to. We know all that but we need her to corroborate David Hale's story. We need this independent corroboration. I had heard all of that and so when people ask why didn't you just tell the truth, why didn't you just go in there and tell the truth, I had had years of dealing with these people and I think it is very well said some philosopher who said, you know, it takes two to tell the truth, one to hear it and one to say it. And I knew they did not want to hear it. Jim had been coming to me every day making up new stories and they were giving him documents to look at so that he could weave this web of deception.
And so as I come here today, I agree that it is the person and what is most upsetting is this three-judge panel headed by David Sentelle who took the independent counsel, who was doing, I think an incredible job, and appointed Kenneth Starr, a political hack who had no integrity, who showed not one scintilla of prosecutorial discretion throughout all of this. All he had was a target in mind and people to run over to get there. And I am the person he ran over and I sit here today grateful for being able to talk to you about it.
[The prepared statement of Ms. McDougal follows:]
Page 114 PREV PAGE TOP OF DOCPREPARED STATEMENT OF SUSAN MCDOUGAL
I want to begin by thanking the House Judiciary Committee for giving me the opportunity to come here today and speak about the recently expired Independent Counsel Act. Having watched and been a part of the havoc wrought and the lives ruined by a political investigation that is still ongoing, I have naturally formed very strong opinions about the Office of Independent Counsel and the manner in which they have conducted their investigation. I appreciate being given this forum to relate my experiences and express my views.
Having seen first-hand the devastation an out-of-control Independent Counsel can create, it would be very easy for me to add my support for the abolition of the Independent Counsel Act and to congratulate Congress on its wisdom for not renewing the measure. To do so, however, would be short-sighted and, I believe, would mean ignoring the number of outstanding men and women who have successfully served as truly independent counsels.
A law, any law, is only as good as those who enforce it. Every day on the streets of America, we send police officers out under the most difficult circumstances imaginable to enforce the law. Despite the difficulty of their jobs and our own desire to support their mandate to clean up the streets, we do not permit them to go outside the law. Although it may be tempting to argue that when dealing with criminal behavior, the ends justify the means, that is not America. Right now, in the city of Los Angeles, the LAPD is going through the most intensive corruption investigation in its history because it appears that several policemen were involved in unprovoked shootings and beatings of alleged gang members. People from every different background and political affiliation are outraged that this kind of conduct could occur and there are calls for action from virtually every local politician. However, just because a few police officers were out of control in how they chose to enforce the law, nobody would seriously consider abolishing the Los Angeles Police Department. Such a notion would be absurd.
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Yet, are we not following the same logic here to a certain degree. Kenneth Starr and his underlings at the Office of Independent Counsel have been out of control from day one in their desire to get the Clintons. In fact, in the fall of 1996, Kenneth Starr gave a speech before the Detroit Economic Club in which he boasted that shortly after his appointment, he and his staff arrived in Little Rock with a plan. As blatantly described in the speech, the plan was to indict my ex-husband and me and then see if we had any information about illegal activities of the Clintons. Keep in mind that this plan was set in motion before they ever looked at one single document to see if either Jim or I had done anything wrong. Instead, they simply chose a target to go after and then proceeded to pressure everyone around us to either cooperate or face potentially length jail sentences.
Not only was this the plan they came to Little Rock with, I was unfortunate enough to see it in put into action. Although I am best known for being silent, what has not been widely publicized is that., when originally asked to cooperate with Starr and his investigation, I readily agreed. I went to the OIC's office in February of 1995, fully intending to answer every question and wanting to help in any way I could. But a funny thing happened. When I arrived, I was not asked one single question. Instead, some papers were pushed in my direction and I was told that there was enough in those papers to indict and convict me. However, those charges would never be brought if I would just agree to cooperate. The problem was that it quickly became clear what their definition of cooperation wasgive them something damaging on the President or First Lady. Over and over I kept repeating that I would be happy to cooperate. I even told them to ask me anything they wanted to know, but instead of asking questions they insisted that I provide a proffer on any information I had on the Clintons. When I told them I would proffer information I had on the Clintons, but I knew nothing illegal they had done, the meeting was adjourned. A few months later, as promised, I was indicted.
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At my trial, they put on David Hale, an admitted con artist and liar and had him testify against me even though the FBI agent assigned to him later admitted that he had ''grave doubts'' about his truthfulness. In fact, to show you the hypocrisy of the entire Starr investigation, let me just share with you a David Hale story that received almost no national publicity. Hale was originally chargedwith numerous felonies, but, after creating a false story about Bill Clinton, suddenly found himself in great favor with the OIC. In his numerous court appearances, he was always accompanied by several OIC lawyers who assured the judge of his reformation and newfound honesty. The problem was that, on one such appearance, David Hale lied under oath to the judge about an important financial matter. When an Arkansas reporter uncovered the lie, he approached a member of Starr's staff, Ray Jahn, who had been present at the hearing, and asked him about Hale lying to a judge under oath. Jahn's response was to shrug his shoulders and say, ''he must have mispoken.'' Isn't it interesting that when Bill Clinton was accused of lying under oath, all we heard about from Staff and his spinmeisters was how important the ''rule of law'' was and that it must be upheld under every circumstance? However, they were not too concerned with David Hale breaking the ''rule of law'' when it served their purpose. Why? The reason was simplethey needed David Hale to lie in order to get the convictions necessary to carry out the plan.
After Jim and I were convicted, they quickly obtained his cooperation by promising him the world. They assumed that I would follow suit. However, for the next month, as I watched the way they operated and listened to Jim tell stories about his meetings with them, I became more and more disgusted at the sleazy nature of this investigation. At one point, after I refused to lie and corroborate the David Hale story, Jim approached me and said that one of the men in Staff's office, Hickman Ewing, had told him that I did not even have to back-up the Hale story. Instead, I could just say that I had an affair with the President and it would be sufficient to earn the OIC's blessing and keep me out of jail. The 1996 election was only a few weeks away, and it was believed that such a revelation would hurt Clinton. I was stunned at how low these people would sink in order to reach their goal. Again, I refused to lie for them.
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I could spend hours telling you stories like the ones above of Starr and his staff and the unethical and sleazy way they conducted this investigation and the lives they ruined in a desperate attempt to overturn an election. However, that is not why I was asked to testify. Long before most people in Washington D.C. got it, the people of the United States understood what this was about and knew exactly who Kenneth Starr was. The problem is that we are now prepared to ditch a law that has worked successfully in the past and can be effective if enforced properly simply because the current three-judge panel, led by a noted right-wing judge, David Sentelle, have chosen to appoint a series of clearly partisan attorneys who have espoused anti-Clinton views well before their selection. I do not for one second believe that there are not hundreds if not thousands of apolitical, non-partisan attorneys in this country who would be well qualified to conduct these investigations in the professional manner intended. Why is it that out of all the potential candidates in the country, we can do no better than the Kenneth Starrs and David Barretts of the world, two men who have served in Republican administrations and who have expressed interest in running for political office?
I believe we can do better. What is needed is not to throw the Act out the window but rather to redefine the selection criteria and the oversight process. The original intention of the Act was that both sides would strive to find someone impartial and with no political ax to grind. I realize that since the inception' of the Act, politics has grown increasingly partisan and nasty. It may be a little more difficult to find someone who fits the profile, but with matters of this import it is worth the extra time to get the right person. Speaking from personal experience, I can come before this Congress today and state unequivocally that if a true impartial investigator had been appointed in Whitewater, someone sincerely interested in the truth, the entire investigation could have been wrapped up in a year or less. There never was anything to Whitewater as has been shown five years and $50 million later. The entire Whitewater fiasco has been nothing more than a political witch-hunt that could have been avoided from the beginning with the appointment of a truly independent prosecutor. As I stated before, the law is only as good as those who enforce it. This law can be effective and serve the purpose intended but only if operated as envisioned and not as a political hammer.
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As someone who has seen the havoc that the unlimited power and resources of an independent counsel can create, I still believe that there are good men and women up to the task. I would hope that, instead of totally ditching the law, Congress take a long, hard look at restructuring the selection process. Thank you for allowing me the time to make this statement.
Mr. GEKAS. We thank the lady. We turn to Ms. Steele.
Ms. LUQUE. Mr. Chairman, because Ms. SteeleI am Nancy Luque, Ms. Steele's counsel. Because she didn't have an introductory remark, I would like to at least say that Ms. Steele is the person that Mr. Starr investigated after targeting Ms. McDougal, within an inch of her life for a year, after which she was indicted on four counts, three counts of obstruction of justice and one count of false statements, tried in a 4-day trial in the Eastern District of Virginia and the jury hung. And in the words of one editorial that I saw, at least, we believe the jury hung itself because they couldn't hang the prosecutor. This is Ms. Steele.
Mr. GEKAS. Ms. Steele is granted 5 minutes. Is there a written statement?
Ms. STEELE. Yes.
Mr. GEKAS. We will accord you the right to have that inserted into the record and ask you to try to restrict your summary thereof to 5 minutes.
STATEMENT OF JULIE HIATT STEELE
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Ms. STEELE. What I am actually going to do is read a summary of the written statement that we are putting in the record.
Mr. GEKAS. You may proceed.
Ms. STEELE. I am going to do that because if I start talking about it, I will still be here this time tomorrow. There is a lot to say. But I want to thank all of you. This has been very validating. It is sad to see that our stories are so similar and that this has happened not once, twice, but at least three times and more. However, your comments as well have been validating and I thank you.
My name is Julie Hiatt Steele. I have lived in Richmond, Virginia, for the past 21 years. Next month I will be 53 years old. I am the mother of four children, three surviving and the grandmother of two. Divorced in 1984, I became the single parent of my youngest child Adam when I adopted him in Romania in 1990. He was 10 weeks old when I found him. We recently celebrated his ninth birthday.
I have never committed a crime. I have never been cited for a traffic violation. I have no political history, connections, or agenda. Had none in 1997. I voted for George Bush in 1992 and did not vote in 1996, both mistakes I will not make again. I have never met nor have I spoken with the President, Mrs. Clinton, Paula Jones, Monica Lewinsky, Linda Tripp, or Ken Starr. I have no friends working in the White House. I have never been employed by the government. I have never been to the White House, not even as a tourist. I certainly have never been threatened by the White House or anyone associated with the White House.
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My family and I have learned that this is not the country we thought we lived in. I have been humiliated and bullied, persecuted and ultimately prosecuted by Kenneth Starr and the Office of the Independent Counsel for refusing to corroborate Kathleen Willey's claim that the President groped her. I have been financially destroyed. I have lost my job. I have been unable to work and I am now losing the home that I once owned free and clear. And it is not okay with me.
I have thought a great deal about that day that changed my life forever. It must have been a normal day filled with routine pleasant and irritating and joyous moments. That day changed my life forever because I did a favor for Kathleen Willey and I trusted a reporter. In opening the door to Michael Isikoff, I literally stepped in front of a train. It was a train that would ultimately be controlled by Ken Starr and loaded with all the power and financial resources of the United States Government. It became known as Criminal No. 999A. I never even saw it coming.
On February 13 of 1998, I provided an affidavit to President Clinton's attorneys in Jones versus Clinton. I did so believing then as now that that was the right thing to do. On March 10 of 1998, FBI agents with the OIC appeared at my door. I willingly met with them. I was not concerned when my attorney left me in the room with them later in his office. I was not accused of crime and of course was telling the truth. I had no idea that the OIC had already met Kathy Willey. I had no idea they had granted her transactional immunity before talking to her, let alone talking to me. In fact, Willey was testifying in the grand jury as I was being questioned by Starr's agents in Richmond. Telling the truth to agents that day would result in one count of false statements in my indictment.
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On June 11 of 1998, I testified before the grand jury in the District of Columbia. I did so with the assurance written and verbal that I was only a witness. I was told that I was not the subject of any investigation. Four prosecutors were there that day, including Jackie Bennett, whose only role appeared to be sitting and glaring at me. Later my repeating to that grand jury at the OIC's request that Willey had not told me about the so-called grope would become another obstruction of justice count in my indictment.
The OIC's pressure tactics began immediately. FBI agents made numerous and endless visits to Richmond. The OIC subpoenaed my credit report, reviewed documents relating to my 1984 divorce. In July I was called to the Virginia grand jury and lied to about the reason for venue change. I was informed again in writing and contrary to the previous OIC statement that I was now a subject and had always been of the investigation. I was bullied into answering the same question I had answered by the FBI arguments in front of the D.C. jury. I gave the same answer, that Willey asked me to lie. This was my fourth count on my indictment, another count of obstruction of justice.
The OIC has obtained copies of every financial transaction I have ever had from credit cards to every possible check I have written. They have combed through every record. They in fact had a room in their building called the Steele discovery room completely filled with records about me or people I have never heard of. Nothing with these people became sacred, nothing private, not even my lock box at the bank. The bank in fact tells me that they were given a record unprecedented number of subpoenas for me. They took possession of all my tax records, original records dating back to 1991, called my CPA before the grand jury not once but twice.
Page 122 PREV PAGE TOP OF DOC I have also learned that the day they met me, they began a trap trace on my telephone which captures calls coming and going and gives them the name of who called and their phone number or who you called. Also local and long distance calls were tracked and they also subpoenaed every possible phone record going back as far as they could and analyzed all. Former friends, acquaintances, strangers were called and confronted by the FBI at their doors. In one case a woman Kathy Willey swore was my best friend, Adam's baby-sitter and my former employee, was terrorized for 45 minutes before she was told why they had come to her house. She had never taken care of Adam. She had never worked for me. She is not my best friend. In fact, I have never met this woman nor has she met me. Friends, families, acquaintances, former employees and people I did not think I knew were paraded before the grand jury. In more than one case entire families were invited and called there. My family members were also called to the grand jury. My brother testified as to one of my daughters. He was asked about my son's adoption in the grand jury. A neighbor, also called to testify who once dated my daughter, was asked if he had sex with me. Always, always sprinkled through their questioning and testimony and their home visits, the suggestions were made by the OIC that Adam's adoption might not be legal.
Richmonders began to be afraid to call my house, afraid to visit my house, afraid to even send a note through the mail. Adam, my son, who lived through an American nightmare with me, he has endured assaults and despicable allegations about his adoption that no child should ever be called upon to tolerate. Nightmares became his norm and mine. Adam has not been invited to a birthday party since 2 days after my indictment. Of course that invitation was in the mail before January 7. At age 8 he has spent 25 percent of his life caught in a drama that continues for us to be painful and to defy logic. Where was the justice we ask? My lawyer wrote Janet Reno several times questioning Starr's jurisdiction to investigate me, his conflict of interest investigating Jones versus Clinton and his repeated failure to follow Department of Justice policy. She did not respond. My lawyer filed pleadings with the chief justice of the District of Columbia challenging Ken Starr's rule 6(e) violations. She did not rule.
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What Starr knew I would like to tell you. Starr knew that Kathy Willey was a lawyer and here is what he knew. Ken Starr knew that while claiming to be a reluctant witness, Kathy Willey had attempted to sell her ever changing story and had contacted New York literary agents at least 2 months prior to her story becoming public in August 1997. Ken Starr knew her allegations were inconsistent, that her story changed every time she told it and she had failed a lie detector test. Ken Starr knew that Kathy Willey's allegations of a threatening jogger, in fact, came long after it allegedly occurred. She had been asked to explain the vast discrepancies in sworn testimony. Her testimony at that point had evolved from no White House problem on the day in question in civil court records to 63 times she did not remember or did not recall in her Jones deposition to less than 6 weeks later recalling her alleged experience in great detail for 60 minutes and for the Nation. Ken Starr knew, as five witnesses knew, that Willey had in fact been seeking a relationship with the President and was enthralled with him. Ken Starr wanted me silenced so much that he was willing to give a second sweeping unprecedented immunity agreement to Kathy after she lied to them and had violated her original immunity agreement. Ken Starr was willing at all costs, including sending me to prison for 40 years, to protect and to maintain the fiction that Kathy Willey was a credible witness.
My crime was standing up to Ken Starr. My crime was speaking out against his gestapo tactics. My crime was telling the truth, the real truth and not the Ken Starr amended and revised version of truth provided to me in my last chance secret meeting on November 9, 1998. I left that meeting in tears because we learned my failure to endorse their version of the truth would result in my indictment. I was given choices that day.
Mr. GEKAS. Can the witness bring the statement to a close.
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Ms. STEELE. I was given choices that day. I could say that the grope was consensual or non-consensual. I could choose my own day, week, month or year to claim she had been groped and had told me so. I could not confirm a grope. I went home and waited to be indicted.
[The prepared statement of Ms. Steele follows:]
PREPARED STATEMENT OF JULIE HIATT STEELE
My name is Julie Hiatt Steele. I have lived in Richmond, Virginia for the past twenty-one years. Next month I will be fifty-three years old. I am the mother of four children, three surviving, and the grandmother of two. Divorced in 1984, I became the single parent of my youngest child, Adam, when I adopted him in Romania in 1990. He was ten weeks old when I found him; we recently celebrated his ninth birthday.
I have never committed a crimeI have never even been cited for a traffic violation. I had no political history, connections, or agenda in 1997. I voted for George Bush in 1992 and did not vote in 1996, a mistake I have no intention of repeating. I have never met, nor have I spoken with, the President, Mrs. Clinton, Paula Jones, Monica Lewinsky, Linda Tripp, or Ken Starr. I have no friends working in the White House and I have never been employed by the government. I have never been to the White House, even as a tourist. I certainly have never been threatened by the White House or by anyone associated with the White House.
My family and I have learned that this is not the country we thought we lived in. I have been humiliated and bullied; I have been persecuted and ultimately prosecuted, by Kenneth Starr and the OIC for refusing to corroborate Kathleen Willey's claim that President Clinton groped her. I also have been financially destroyed. I lost my job, and have been unable to work. I am now losing a home I once owned free and clear.
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Letters, email, and small defense fund contributions from across the country have been, and still are, a lifeline. Americans have been generous in their support and with their concern. Together we ponder how this could possibly have happened to me, privately they acknowledge it could have happened to any one of them. In our country? None of us thought so at one time . . .
I have thought a great deal about the day that changed my life forever. It must have been a normal day, a day filled with routine, pleasant, irritating, and joyous moments. Just an ordinary day, not recognized for the treasure it was, passed over in quest of some rare and perfect tomorrow.
I do recall one part of that day with absolute clarity, and with regret. Honoring her last minute request, I did a favor for Kathleen Willey and trusted a reporter. In opening the door to Michael Isikoff I literally stepped in front of a freight train. It was a train ultimately controlled by Kenneth Starr and loaded with all the power and financial resources of the United States Government. It became known as ''Criminal No. 999A.'' I never even saw it coming . . .
That seemingly normal day in March 1997 changed my life forever. Rushed, and worried about running late to pick Adam up, with the reporter en route to my house, Kathy Willey asked me to lie to him. I was to say that she had told me that the President groped her. I made a big mistake by taking the path of least resistance, by lying for someone I thought was my friend. Although Willey and Isikoff had told me it would be ''off-the-record,'' months later I learned he now wanted to print it. I called him and told him the trutha truth that earned me no favors, no fortune and no glory. Following his August 1997 article, with both the truth and Kathy's lie:
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On February 13, 1998, I provided an affidavit to President Clinton's attorneys in Jones v. Clinton. I explained what I had done. I did so believing then, as now, that it was the right thing to do. I was relieved that I could finally, in my own words, set the record straight.
In late February my former attorneys were contacted by producers from Sixty Minutes. The producers claimed to have been told that my son's adoption was illegal. Much later we learned that Kathy Willey was the source of this despicable allegation. Adam was, in fact, legally adopted in Romania in 1990, and in the United States in 1991. And Kathy Willey knew that.
On March 10, 1998, FBI agents with the OIC appeared at my door. They announced that they needed to speak with me for a few minutes about Willey. On the advice of counsel, we agreed to meet in my attorney's office later that same day. I willingly met with the OIC. I was not concerned when my attorney left me alone with federal agents for several hours. As my attorney pointed out, I was innocent of wrong doing, not accused of any crime, and of course, was telling the truth.
I had no idea that the OIC had already met with Kathy Willey. I had no idea that they had granted her transactional immunity before even talking to her, let alone talking to me. In fact, Willey was testifying in the grand jury as I was being questioned by Ken Starr's agents in Richmond. Telling the truth to agents that day would result in one count of ''false statements'' in my indictment; they alleged that I lied when I said Willey never told me about the so-called grope.
Page 127 PREV PAGE TOP OF DOC On June 11, 1998, I testified before the grand jury in the District of Columbia. I did so with assurance, written and verbal, that I was there only as a witness. I was told that I was not the subject of investigation, and that if I asserted the fifth amendment, it would be challenged because there was no basis for it. Four prosecutors were in the grand jury, including Jackie Bennett, whose role was simply to glare at me. The majority of questions related to Michael Isikoff; not Willey. Later my repeating to that grand jury at the OIC's request, that Willey had never told me about the so-called grope would become an obstruction of justice count in my indictment.
I was excused at the end of the day. Believing that the matter was over for me, I publicly apologized to the First Family for lying for Willey and filed a lawsuit against Isikoff and Newsweek Magazine that same day.
The OIC's pressure tactics began immediately. FBI agents made numerous visits to Richmond. The OIC subpoenaed my credit report and reviewed documents relating to my 1984 divorce.
In July, I was called to a different grand jury in Virginia and was lied to about the reason for the venue change. I was informed, again in writing and contrary to the previous OIC statement, that I was a subject of investigation and always had been. My new counsel told me to assert the fifth amendment but when I tried to do so, I was bullied into answering the same question I been asked by the FBI agents and in front of the D.C. grand jury, and I gave the same answer: that Willey had asked me to lie. That was the fourth count in the indictment, yet another count of obstruction of justice.
The OIC examined every check I have ever written. They obtained copies of every possible financial transaction from original application to actual credit card account, they combed through all of my records.
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Nothing was sacred, nothing was private, not even my lock box with my son's death certificate and Adam's adoption paperwork was out of bounds.
They took possession of my original tax records dating back to 1991. My CPA was called before the Grand Jury on two occasions and was even questioned about our medical expenses.
I later learned they began capturing records of all incoming and outgoing phone calls the same day FBI agents came to my door, March 10, 1998 (even though I was not then a subject of the investigation). Local and long distance calls were tracked thus providing the OIC with names and phone numbers of calls both made and received. My long distance phone records, dating as far back as possible, were subpoenaed and analyzed.
Friends and former friends, acquaintances and strangers, were confronted by FBI Agents at their doors. In one case, a woman Kathy Willey swore was my best friend, Adam's baby-sitter, and my former employee, was terrorized for forty-five minutes before she was told why they had come to her house. She had never taken care of Adam, worked for me, been my best friend, or heard of me. We have, in fact, never met. Friends, family, acquaintances, former employers, and people I did not think I knew were paraded before the grand jury. In more than one case entire families were brought to the grand jury.
That I had never met some of these people seemed s irrelevant as the truth had become.
My family members were also called to the grand jury. My brother testified, as did one of my daughters. He was asked about Adam's adoption in the grand jury. My attorney told me that she has never in all of her years, as both a federal prosecutor and as a criminal defense attorney, witnessed these kind of abuses. For example, a neighbor, also called to testify because he had once dated my daughter, was asked if he had sex with me.
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And always, always, sprinkled throughout their questioning in testimony and in their ''home visits,'' the suggestion was made by the OIC that Adam's adoption might not be legal. Not surprisingly, friends who traditionally joined our family for Christmas dinner canceled for 1998. They feared Ken Starr and were afraid to be seen at my house. Other friends stopped me in crowded public places to express concern, to whisper their fears of Ken Starr, and to explain and to apologize for their lack of communication. Richmonders were afraid to call the house, afraid to invite us to their homes, afraid to even send a note through the mail.
Adam, who lived through this nightmare with me, has endured assaults and despicable allegations about his adoption that no child should ever be called upon to tolerate. Nightmares became his norm and my own. Adam has not been invited to a birthday party since my indictment. At age eight, he has spent more than twenty-five percent of his life caught in a national drama that continues to be painful and to defy logic.
Where was justice? My lawyer wrote to Janet Reno several timesquestioning Starr's jurisdiction to investigate me, his conflict of interest in investigating Jones v. Clinton, and his repeated failure to follow Department of Justice policy. She did not respond. My lawyer filed pleadings with the Chief Judge of the District of Columbia, challenging Ken Starr's Rule 6e violations. She did not rule.
And where was Congress? As ordinary citizens cowered in fear of an American Gestapo, why did we not see outrage? Are partisan politics more important than right and wrong? Are partisan politics more important than the individual rights of the citizens you were elected to represent? This was not ''rocket science,'' Ken Starr's abuse of authority was blatant and horrifying. Although I contacted both of my Senators last winter. To date, neither Senator Robb nor Senator Warner has returned my calls.
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And where was the press? They say that we are ''scandal weary,'' but they miss the point if they fail to understand that we never cared about Monica or her blue dress. We do care about privacy and individual rights, his, hers, and ours. We do care that a monster was unleashed and that some of us have learned how it feels to live in terror. We do care that our elected representatives remained on their opposite sides of the aisle, refusing to stop him.
My ''crime'' was not only calling a liar a liar, it was speaking out about what the OIC was doing to me. After going on Larry King Live, the pressure increased; the day Anthony Lewis wrote about me in the New York Times, I was told I was a target; and when the OIC wanted to keep all the information they were giving me a discovery secret, they said that they feared I would tell the press.
Ken Starr knew his star witness against President Clinton, Kathleen Willey, was a liar. Here's what he knew:
Ken Starr knew that while claiming to be a reluctant witness, Willey had attempted to sell her ever-changing story and had contacted New York literary agents at least two months prior to her story becoming public in August 1997.
Ken Starr knew that Willey had attempted to market her ever-changing story to Michael Viner of Millennium Media for a book deal before testifying in the Paula Jones case. He also knew that she was attempting to sell her story to Richard Gooding at The Star. Her asking price was ''well over $300,000.''
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Ken Starr knew that Willey had been secretly conferring with the Jones lawyers even as she assured the Clinton lawyers that she was a ''friend of the administration.'' During this same period, on November 10, 1997, she wrote yet another letter to the White House, asking to be invited to their Christmas party.
Ken Starr knew that Willey's allegations were inconsistent, that her story changed every time she told it and that she had failed a lie detector test administered by the OIC.
Ken Starr knew that Willey's allegations of a threatening jogger came long after it allegedly occurred, just as she was asked to explain the vast discrepancies in her sworn testimony. Her testimony had evolved from no White House problem on the day in question in Civil Court records, to sixty-three times that she did ''not remember'' or did ''not recall'' in the Jones deposition, to, less than six weeks later ''recalling'' her alleged experience in great detail for Sixty Minutes and the nation.
Ken Starr knew it would be difficult for any rational person to believe that Willey, predawn, in pouring rain, post surgery and with a neck brace, unable to sleep, took three dogs on leashes to walk on the road. To take it one step further and believe that an anonymous jogger was waiting in the predawn, pouring rain, hoping that having recently had surgery she would be unable to sleep and decide to walk her dogs his way so that he could threaten her is astounding.
Ken Starr knew, as five witnesses who the OIC interviewed also knew, that Willey had, in fact, been seeking a relationship with the President and was enthralled with him. Linda Tripp even told him Willey said nothing about a grope, and was happy about whatever had happened . . .
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Ken Starr knew that Willey had called one person the night the incident had actually occurred and told that person she had met privately with the President and was thrilled.
Ken Starr wanted me silenced so much that Willey was give a second, sweeping and unprecedented immunity agreement after she lied directly to the OIC and violated her original immunity agreement. Kenneth Starr was willing, at all costs, including sending me to prison for forty years, to protect and maintain the fiction that Willey was a credible witness.
Ken Starr knew that my sister received a threatening call on November 1, 1998. A male caller told her that she needed to tell her sister ''if she knows what is good for her and her son, she will back Willey's story.'' This call and two later incidents were immediately reported to the Justice Dept., FBI, and local authorities. We went, in the case of the phone call, from assurances of immediate answers to no answer at all. My sister finally involved a family friend, Congressman Bill McCullum. Mr. McCullum spoke at length with the Director of the FBI and was told that it would be investigated. We have recently learned, from the DOJ, that the OIC took the case and that a ''highly placed individual'' there ordered that no investigation be conducted. Despite the fact that David Barger specifically asked a female witness in the Grand Jury if she made the call, Barger and Starr both denied any knowledge of the call. Mr. McCullum has only recently learned that there was no investigation, he pledged his support to my sister and has assigned staff for follow-up. He has assured our family that we will get answers as to why there was never any investigation and who gave that order.
My crime was standing up to Ken Starr. My crime was speaking out against him and his Gestapo tactics. My crime was telling the truth, the real truth, and not the ''Ken Starr amended and revised'' version of truth provided to me during the last-chance ''secret'' meeting I had with him on November 9, 1998. I left that meeting in tears because we learned that my failure to endorse their version of truth would result in my indictment.
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I was given several choices that day. I could say that the grope was consensual or that it was nonconsensual; or I could choose my own day, week, month, and year to claim that I had been told about the grope. I could confirm the grope or be indicted. I could not confirm the grope. I had no such information, I only had the truth. I went home and waited to be indicted.
You have now heard at least part of what my defense would have been had we presented one. I trusted my lawyer when she said Starr had not proven his case. I also realized that there were witnesses who feared Willey. Other witnesses had families who would clearly be hurt by testimony. Absent the need to do otherwise, the right answer for me was to stop. It was time to draw the line.
The fact remains that a 53 year old single parent and grandmother from Virginia should not have had to face this kind of horror, not in this country. Not in America.
Mr. GEKAS. We thank the witness. The chair yields itself 5 minutes for the purpose of examining the witnesses. My first question is to counsel for Ms. Steele. I am not sure of the answer to this. Would you have the right to talk to the jurors after the hung jury reported?
Ms. LUQUE. There is a rule in the Eastern District of Virginia which prohibits the lawyers from talking to the jurors. Mr. Starr's office petitioned to be allowed to talk to them and the judge denied it.
Page 134 PREV PAGE TOP OF DOC Mr. GEKAS. Is the report that nine voted in favor of conviction and three to acquit which caused the hanging? Is that accurate?
Ms. LUQUE. I don't believe it is accurate, Mr. Chairman. In fact, we learned during the course of the trial that the chairmanexcuse me, not the chairman, the foreman of the jury was a member of a group called the Free Republic and had been on-line during the course of the trial, something which was somewhat terrifying and lent some support to the notion that there is a right wing conspiracy. In any event, apparently he was one of the people that told the reporter about the split. Knowing that, I, at least, have absolutely no faith in that being accurate information.
Mr. GEKAS. But a hanging jury means there were votes both ways.
Ms. LUQUE. A hanging jury means that Mr. Starr lost, and we presented no defense.
Mr. GEKAS. But we know what a hung jury is, do we not?
Ms. LUQUE. I think we do. I think we know that Mr. Starr lost, and we don't know the split.
Mr. GEKAS. Ms. Steele was not convicted. That is correct.
Ms. McDougal, the only questions I have for you have to do with the appearance before the grand jury. One of the questions, according to the excerpts that we have here, was to your knowledge did William Jefferson Clinton testify truthfully during the course of your trial. I must say that if I were you, I would not have answered that question and that it is a bad question. That is, in one interpretation of that, you were asked to put yourself in the mind of William Jefferson Clinton as to whether he testified truthfully in that particular question. So I would agree with your refusal to answer that question. But for the life of me, I don't understand why you couldn't answer the question ma'am, did you ever discuss Lawrence Hites with William Jefferson Clinton. If you did, yes. If you did not, no. Simple answer. Or did you ever discuss your loan from David Halewas there such a loan from David Hale?
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Ms. MCDOUGAL. Es.
Mr. GEKAS. Did you ever discuss your loan from David Hale with William Jefferson Clinton? Simple yes or no answer. I am puzzled as to why you didn't answer that although you are justified in not answering the one I was referring to. I don't see the justification for that. You understood that the grand jury has the right to ask those questions.
Ms. MCDOUGAL. It was interesting that question, the questions you just brought up because I refused to answer any question and then as the independent counsel left the grand jury, he walked out to the press and he said we asked Ms. McDougal if President Clinton told the truth during her trial and she refused to answer that, intimating that that was the only question that they had asked me and that I was afraid to answer it always putting a spin. That is an interesting thing that you bring up, that question. But you have to understand, Mr. Gekas, this has been a long road. This hadn't been walking up and you saying to me did that happen, Susan? Coming to me, I would have answered any question that you asked and do you know I was recently in trial and they still didn't ask me those questions. I was waiting. I was on the stand. I was under oath and I waited for the independent counsel to ask me one of those questions. They weren't interested because they know the truth already. They have all the checks. It is what I said to them at the first meeting. You have the checks in front of you. You know where the money went. Why do you insist on saying Bill Clinton took it when you know yourself it is a lie. They didn't want the answers because they knew the answers. They wanted me to corroborate.
Mr. GEKAS. I understand your animosity against the Office of Independent Counsel. Everybody in the world understands how you feel about the Office of Independent Counsel.
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Ms. MCDOUGAL. But do you understand what I am saying, not just the emotion of it but the truth of it?
Mr. GEKAS. My question goes to whether or not you had sufficient respect for the grand jury in not answering the questions that they directed
Ms. MCDOUGAL. Please don't call into question my respect for any grand jury, any governmental official. I told them that day I was in there, I said this is no disrespect to you but it is total disrespect for the Office of Independent Counsel who sits there and runs this grand jury, and I insist to this day that I have no disrespect for anyone who stands in an office, like I said a policeman who puts his life on the line or a prosecutor as these gentlemen have been who want to do justice because I have seen justice done, but I did not see justice in the hands of Kenneth Starr.
Mr. GEKAS. It was Judge Wright who found you in contempt; is that correct?
Ms. MCDOUGAL. Yes.
Mr. GEKAS. It was not the independent counsel.
Mr. HARRIS. It was Judge Wright at the independent counsel's request.
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Mr. GEKAS. And the evidence that was before Judge Wright as to the appearance of Ms. McDougal resulted in her finding Ms. McDougal in contempt.
Mr. HARRIS. That is correct. I might add as well in terms of your statement, Ms. McDougal at the time both before and as she was discussing with Judge Wright and after her imprisonment at all times stated she would at any point come here to Congress, answer those questions in front of Congress. She would go into a court of law and testify. She would not go into a private room where Kenneth Starr was in charge, and we can make all kinds of illusions about grand juries but as any attorney knows the saying, a grand jury can indict a ham sandwich. It is controlled by the prosecutor. We all know that. The point is she was willing to testify at any open hearing at any time. She chose she would not testify in a private room with no attorney present but Kenneth Starr.
Mr. GEKAS. The only other question I have and then the chair would relinquish its time is that I am not sure, my record doesn't show, but I think it is correct that the four convictions that were visited against Ms. McDougal were appealed; is that correct?
Mr. HARRIS. That is correct.
Mr. GEKAS. The appeal was sustained? That is, the convictions were sustained; is that correct?
Mr. HARRIS. That is correct.
Page 138 PREV PAGE TOP OF DOC Ms. MCDOUGAL. I sit here a convicted felon thanks to Mr. Starr.
Mr. GEKAS. Yes. Thank you. The chair relinquishes the balance of its time. The gentleman from Massachusetts is recognized.
Mr. DELAHUNT. Thank you, Mr. Chairman. Mr. Harris, would you support the concept of some grand jury reform in the Federal system?
Mr. HARRIS. I would absolutely support the concept. It is originally intended and through English common law it was a fine idea, in practice.
Mr. DELAHUNT. Wasn't it originally intended to protect reputations?
Mr. HARRIS. Absolutely.
Mr. DELAHUNT. And to protect people who were innocent?
Mr. HARRIS. Absolutely. That was the original intent. Unfortunately what has happened
Mr. DELAHUNT. Let me just interrupt because the time is moving on. And I want to thank both of you for your testimony today. I think it is very important that people hear this because I will tell you what my concern is. The Independent Counsel Statute is dead. It is over. It is not going to be amended. We are justthis is thethis is after the burial. We are just having a conversation. We are trying to learn some things. But I will tell you what concerns me, and again, I speak as a prosecutor, is that while it is dead and those that were subject to the Independent Counsel Statute on both sidesand we are going to hear from Mr. Nofziger shortly and I want to emphasize that this is not about Republicans and Democrats. This is not partisanship. This is about how in this Nation we search for the truth. That is what this is about. And while the subjects of the Independent Counsel Statute as we knew it will no longer have to be concerned, it concerns me that there are other investigations that are going on at the Federal level that while they may be ethical, while they may comply with the standards as we know them, both legally and according to the canons of ethics that exist, maybe we should change those statutes because there is a quote here from the press spokesperson for Mr. Starr, and he states when asked about possible prosecutorial excesses and potential abuseand I am not even going to render an opinion on thatbut this is what Mr. Charles Bakaly told the Legal Times, which is a journal I know that you, Mr. Harris, and you, Ms. Luque, are familiar with. He states however unpleasant these techniques, they are part of what Federal prosecutors do. ''We followed long-standing practices and policies.'' Do you haveand I guess I am going to pose the question to counsel here. Do you have a concern that in our system of justice today there has become an imbalance, if you will, between the ability of individuals to defend themselves and the resources and the practices and policies of the prosecutor?
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Mr. HARRIS. I don't think there is any question. I think Susan can probably address better than any single person in the country what it is like to be in prison and, as she often says in her speeches, she didn't run into a lot of rich people in jail. Every person she ran into while she was in jail was somebody who was low income, had no resources, had no attorney, often they hadn't seen an attorney literally until the day of trial or until they were on the docket and I would agree with you wholeheartedly.
Mr. DELAHUNT. Ms. Luque?
Ms. LUQUE. Absolutely, Congressman. It is hard to know what the causes are. I think one potential cause is thismore policemen on the street ultimately fattens the budget of the Justice Department, more prosecutors with less to do. We have seen court decisions over the last decade decimate the Constitution.
Mr. DELAHUNT. Let's not forget that the quote that I cited in my opening remarks was made by a Supreme Court Justice back in 1940.
And I just wonder, and I don't have the answer, but I think that what the experiences we have been able to observe from the Independent Counsel Statute and the claim of some independent counsel that what they did was within the ground rules reveals something about what is happening in our justice system today.
Ms. LUQUE. It illuminates it, but I think Mr. Starr's practices were worse than anything I've seen in 20 years on both sides.
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Mr. DELAHUNT. I don't want to talk about Mr. Starr. I think this goes beyond him to whether we need to review the checks and balances in the role of the prosecutor in our jurisprudence, whether it be the independent counsel or every prosecutor. I guess that is the question that I would put forth.
Ms. LUQUE. One other thing about the grand jury, there is a movement afoot to let defense counsel appear, which I think all of us would endorse, because the mischief was done in the grand jury in all of our cases.
Ms. MCDOUGAL. I would like to say of the seven jails and prisons that I was in in the 2 years that I was confined, most of the people had public defenders. I didn't meet a lot of rich people in jail, never saw them until the day of court, and if they did, that was for a 10- or 15-minute period.
Mr. DELAHUNT. Let me conclude, Mr. Chairman, by saying that in this country what distinguishes us from other nations is that we have a legal system that has the confidence of the people. And if we allow any erosion in that confidence, we are doing our Nation a great disservice.
Ms. MCDOUGAL. A 95 percent conviction rate tells us what we need to know, and how much of a balance there is, and that is wrong.
Mr. GEKAS. The gentleman's time has expired.
Page 141 PREV PAGE TOP OF DOC Mr. Weiner of New York is recognized.
Mr. WEINER. Lest there be any misimpression left by the chairman's opening question, Ms. Steele, we don't read the results of your case like a box score. You entered that trial convicted of no crime, guilty of no crime. You left that trial convicted of no crime and guilty of no crime.
Ms. STEELE. That is correct.
Mr. WEINER. I am the only member of this panel who is not a lawyer, and I thought I was misunderstanding the results of a hung jury.
I think this panel has actually shown us a couple of ways, and I think the previous witness did as well, that you can handle and confront this type of a scenario. If you encounter a situation where there is an investigation going on of your life that includes baby-sitter's phone records being subpoenaed, you can draw a conclusion on what sort of an investigation you are in for and how you should proceed.
You can make an argument, and some of us in this body would agree, that just tell them everything that they want to know and open your books and do as Mr. Espy did and chat with them, because you have a certain confidence if you proceed in that way, if you start at the point that many of us grew up starting from. This type of an investigation, there are certain rules, certain parameters, there is a certain way that it works out if you tell the truth, but if you make the conclusion early on that only one set of things that you say are going to satisfy the zeal of the prosecutor, I think you might reach the conclusion that Ms. McDougal did.
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I am not really sure at the end of the day that Mrs. Steele's life is so much greater because she chose to answer every question at every turn and give every answer the best she possibly could. The prosecutor, it strikes me, in Ms. Steele's case and Ms. McDougal's case was looking for a certain set of words to come out of the person's mouth in order to pick up the hammer of prosecution.
I am not so sure saying, I am not going to give you those words, is better than saying, I will give you my own words. I think not as sanguine of the notion that Ms. McDougal did not take the approach that perhaps you should, but this is actually a pretty good case study.
Ms. McDougal said, ''I heard from my ex-husband how this is going.'' They said, ''Repeat these words, the microphone is on,'' and Ms. Steele who said, ''Forget about it, I am going to answer it in my own way, and we will see you in court.'' Both ways turned out to be not very profitable for the witnesses.
Perhaps, Ms. Steele and Ms. McDougal, my question is this: You probably know right now the words Mr. Starr, if he heard them, would have changed your life dramatically. You could have in your mind, and the facts, I think, now show it, you could have said that lie, and you probably could have gone off into the sunset with your livesfeeling bad about things, not having the greatest confidence, but you could have at least had a life that you could piece together. You would not know the person to the right and your left as well. You would not have your lawyers on your speed dial. You would not have to try to figure out how to pay your bills. You would not have been in seven prisons if you would have said those lines. Is that a correct summary that both of you have in common?
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Ms. MCDOUGAL. I think that is true. They said to me, you know who we want, and you know what this investigation is about. My lawyer said, what will you give us? They said, we will give her probation. We will stop the Justice Department from investigating her taxes, but she has to tell us this today, and we will stop the prosecution in California if she will say what we want. He said, ''What do you want her to say?'' He said, ''She knows who it is about and what we want. She knows who this investigation is about and what we want.''
We all sat there stunned. We had a witness, my lawyer and myself. All I had to say was that David Hale is telling the truth.
I called him on the phone and said, can I do this, and Pat said to me, you can't because it is never one lie.
Mr. WEINER. Ms. Steele, didn't you say you had a shorter list of variables? You had to fill in a date and time.
Ms. STEELE. I could offer up any date I wanted.
Mr. WEINER. If you said September 19, 1996, you probably could have walked out of there, your son would not have been traumatized, your baby-sitter and neighbors and everything else?
Ms. STEELE. Right.
Page 144 PREV PAGE TOP OF DOC Mr. WEINER. Well, you don't look to me like heroes in any classic sense, but the fact of the matter is that you had an easier way out, and on some leveland the only payoff for taking the tough way is if we in Congress recognize this thing and fix it.
I thank you, Mr. Chairman.
Mr. GEKAS. The gentleman's time has expired.
The gentleman from New York Mr. Nadler is recognized for 5 minutes.
Mr. NADLER. Let me apologize for not hearing your testimony. I was on the floor debating my amendment on a bill.
Let me ask you, Ms. McDougal and Ms. Steele, both of you, as I listen to what you are saying, and as I was trying to read your testimony, would you say that it is true that in effect the prosecutor was telling you, tell us a lie, agree to perjure yourself, you go free; that the prosecutor was asking you for perjured testimony?
Ms. MCDOUGAL. As I sit here today, they knew what they asked me to say was a lie, and I told them that it wasn't true.
Mr. NADLER. Ms. Steele?
Ms. STEELE. Absolutely. In my case they wanted to use President Clinton's August 17th testimony where he said there was no grope, consensual or not consensual, no grope at all. They wanted me to confirm a grope.
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Mr. NADLER. You said that Kathleen Willey hadn't said that to you.
Ms. STEELE. She had not ever told me that.
Mr. NADLER. And you told the prosecutors, and they told you if you didn't change your story
Ms. STEELE. Each time I told the truth became a count in an indictment that followed.
Mr. NADLER. And the evidence that was offered for those counts was only Ms. Willey's testimony?
Ms. STEELE. The evidence that was offered was reallythat was the whole point. When they got to court, they didn't prove their case which is why we didn't present a defense.
Mr. NADLER. They didn't prove it, but did they have any evidence that you were lying other than that Ms. Willey gave a different version of the conversation between the two of you?
Ms. STEELE. No. They had one witness on the seventh interview with this woman who finally agreed that I had told her in 1996 or 19971996, andI think, and another one who under similar circumstances thought she had been told about that same time period. The grope theoretically was to have occurred in November 1993. That is it.
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Mr. NADLER. Let me just comment briefly and then ask questions to the lawyers here. When a question was asked a few moments ago about prosecutorial imbalance or imbalance of prosecutorial powers, someone replied, I think Ms. McDougal, the 95 percent conviction rate was evidence of that. I would comment that the fact that we are seeing so far about 75 people who have spent long terms in jail freed one after the other as soon as DNA evidence becomes available, and I am sure it will double and triple as more cases come through, people who are convicted, appeals denied, serving long terms in court, obviously something went wrong in a lot of these cases.
Let me ask Mr. Harris and Ms. Luque, if Congress wanted to make the system of justice more fair, more likely to yield the truth, less likely to be amenable to abuse by prosecutorsand I will assume that most prosecutors are decent and perfectly fine human beings, but like all of the rest of us, some aren't. Where you have an abusive prosecutor, how would you change the law so as to make it more likely that abusive prosecutors cannot abuse witnesses or defendants and cannot get wrongful convictions to make it more likely that wrongful convictionsto make it more likely that the truth will be served in the criminal trials?
Mr. HARRIS. I started my legal career as a public defender for about 2 1/2 years, and having gone through that experience, and knowing that most public defenders are excellent lawyers and hard-working, but having been in a situation where you are dealing with 20 to 25 clients per day, and knowing in no way, shape, or form are you really representing them as you are supposed to do, not being able to file motions, so the one thing would be to give more resources. That is the one thing that I would shoot for, try to provide a level of legal service for the poor that is not even close to adequate.
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Mr. NADLER. I agree with you, and that may be the most important thing, but in terms of changing the procedural law regarding the powers of prosecutorsfor instance, Ms. Steele and Ms. McDougal had attorneys who were not public defenders, and yet they were obviously viciously abused by Starr and his minions. What changes in the law would have prevented that?
Mr. HARRIS. You have to differentiate because in his case, you have to understand he had nothere was no one to answer to. He had to answer to no one, whereas most prosecutors have to answer to someone. In terms of that, we needcertainly there needs to be someone that prosecutors, especially a special prosecutor, has to answer to, but in a normal day-to-day prosecutor's office, you still don't see the oversight. You still don't see the type of
Mr. NADLER. So it is your testimony that it is a question of oversight and the procedural law is fine?
Mr. HARRIS. I think that the procedural law needs to be changed in terms of providing oversight.
Mr. NADLER. What procedural laws other than providing oversight? For instance, one thing that has always bothered me is the ability of a prosecutor to pressure someone to get the truth or what he thinks is the truth. Do you think that power is too much? Is it the right way? Is it too much?
Page 148 PREV PAGE TOP OF DOC Mr. HARRIS. One thing to help cure that is how we have bail hearings set up currently. A normal prisoner coming through the system, they are looked at and told, you plead to this, you take 6 months or go to trial. Oh, by the way, since you can't make bail, you are going to stay in jail 6 months or 8 months before your trial anyway, so you might as well go ahead and plead.
We need bail standards that allow for prisonersespecially in cases like shoplifting or minor misdemeanors or small-time felonies, we need to be able to provide these people with reasonable bail standards so they are not put in this position so they are forced to say, I might as well plead because I will spend less time in jail.
Mr. NADLER. Is that Federal as well as State courts?
Mr. HARRIS. Yes.
Mr. NADLER. Thank you, Mr. Chairman. I ask unanimous consent for 2 additional minutes.
Mr. GEKAS. Without objection.
Mr. NADLER. Thank you.
Ms. Luque, what changes, if any, in procedural laws or the powers of prosecutors do you think would prevent some of these abuses, other than, yes, they should be accountable?
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Ms. LUQUE. You can see that I was eager, so I appreciate the Congressman giving me the time.
First, I would like to underscore the notion of the Federal defender. Julie was dragged from the District of Columbia, where she should have been indicted, if at all, to Virginia. She was dragged to Virginia for one reason: The courts are much more friendly to prosecutors in the Eastern District of Virginia, and that is true because they don't have a Federal defender guarding the court, so the balance is tipped further over than in the District of Columbia.
Number two, the sentencing guidelines, which are abysmal under any circumstances, but the worse thing about them is that they encourage people to lie.
Mr. NADLER. How?
Ms. LUQUE. It is the only way to get out of a sentence. If you are trapped and caught doing something, the only way to reduce the otherwise mathematical formula that sends you to jail for tens ofI don't know how many years, is by going in and giving the prosecutor someone else. So what your incentive is under that circumstance is to give the prosecutor anything he wants. Certainly in white collar crime where it is a matter of a crime of the mind rather than an action crime, it is easy to say, yes, he probably did intend to do it. So we really have a system that is set up to encourage lying.
Finally, the Hyde amendment, which you all passed and we are very pleased about, only works to a certain extent. That is the amendment that allows defense lawyers to obtain at least legal fees for their clients, which, of course, allows the clients to get lawyers, if they are able to show that the prosecution was frivolous, vexatious or in bad faith. In Julie's case I filed under the Hyde amendment immediately, but the court said, going back to the grand jury problem, the grand jury indicted her, so how could it be vexatious, bad faith or frivolous? So you are in a Gordian knot, a Catch-22, so you have to fix the grand jury problem.
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Mr. NADLER. If you could rewrite the law, what would you do to prevent perjury at the behest of the prosecutor in order to get a lower sentence or not to be prosecuted?
Ms. LUQUE. I would get rid of the Federal sentencing guidelines, which are an abomination. If I had to live within them, I would make absolute sure thatunder the system now, it is only the prosecutor that can go in and tell the judge, yes, this person should get credit for cooperating because I say so. The defense lawyer cannot make a motion, cannot interfere with that decision at all.
Mr. NADLER. You would like the defense attorney to say that and let the judge make the decision?
Ms. LUQUE. Absolutely. The judge should decide the sentence, not the prosecutor.
Mr. GEKAS. The gentleman's time has expired. The time of the panel has expired. We dismiss them with the thanks of the Chair.
We now invite the third panel to approach the witness table with whomever else they wish to invite.
Mr. Bennett and his firm have actively participated in several independent counsel investigations by representing public officials as well as corporations. His firm's clients have included Caspar Weinberger, the former Secretary of Defense in the Reagan administration; Harold Ickes, former Chief of Staff for President Clinton; and, of course, President William Jefferson Clinton. Mr. Bennett has served as special counsel to the Senate Ethics Committee in its investigation concerning Harrison Williams, David Durenberger and the so-called Keating five matter.
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Before going into private practice 27 years ago, Mr. Bennett served as an assistant U.S. attorney in the District of Columbia. Mr. Bennett received his bachelor's degree from Georgetown University in 1964 and his master's from Harvard the following year. He served as law clerk to the Honorable Howard F. Corcoran, United States district judge for the District of Columbia, from 1965 to 1967.
Mr. Nofziger has served as a political consultant for more than 30 years. He is accompanied by his private lawyer from the law firm of Paul, Hastings, Janofsky & Walker, located in Washington, D.C.
After completing a tour of duty with the U.S. Army during World War II, Mr. Nofziger obtained his bachelor's degree in journalism from San Jose State College in 1950. For the next 16 years he practiced his journalism craft as a reporter, editor, and Washington correspondent for Copley Newspapers and Copley News Service. Mr. Nofziger launched his political career as press secretary to Ronald Reagan during his gubernatorial candidacy in 1966. Thereafter he served as the director of communications for Governor Reagan.
He later worked in President Nixon's Presidential campaign. He also actively participated in President Reagan's and Senator Dole's Presidential campaigns. Most recently he played an active role in Christie Todd Whitman's gubernatorial reelection in 1997.
As a result of an investigation by an independent counsel, Mr. Nofziger was convicted, sentenced to 90 days in prison and fined $30,000 for violation of certain government ethics laws. Upon appeal, however, his conviction was overturned. Mr. Nofziger claims that as a result of his experience, he incurred a million and a half dollars in expenses and that his business was destroyed.
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We begin the testimony in the order of the introductions. The written statements are part of the record, and we ask the gentlemen to confine their remarks, if humanly possible, to 5 minutes.
Mr. GEKAS. Mr. Bennett.
STATEMENT OF ROBERT BENNETT, ESQUIRE, ATTORNEY FOR CASPAR WEINBERGER
Mr. BENNETT. Thank you, Mr. Chairman and Mr. Ranking Member and Mr. Delahunt. I am not going to give any portion of my statement since it is in the record, but I would like to make a few observations playing off some of the things that I have heard today.
I am glad to hear the statute is dead. When I was asked to come, I thought like maybe Count Dracula it was coming out of the coffin, and I wanted to do my best to come here and help slam it shut.
I think it is important to understand that this is not a Republican issue or a Democratic issue. Several of the witnesses today who appeared were on the receiving end of Kenneth Starr, but I would remind you when I represented Mr. Weinberger, there were just as many abuses. Similarities are amazing.
In my 30 years of practice, I have never seen a more outrageous prosecution than that of Caspar Weinberger. Like with some of the other witnesses, he was offered with a wink and a nod a no jail misdemeanor plea if he turned on President Reagan and George Bush. That is not guesswork. I was there in the room, so you are looking at the horse's mouth. I am the horse's mouth. At least that is the end of the horse that you think that you are talking to. It was an outrageous prosecution.
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So this is not a Republican issue, this is not a Democratic issue. The Independent Counsel Statute is a nuclear weapon for partisan politics. I again would remind you that we got the first major part of the indictment dismissed, and 5 days before the Presidential election, quite unnecessarily, a second indictment came down which incorporated in it references to then George Bush's alleged involvement in the Iran-Contra affair. It was totally unnecessary to put that in, and it caused a political furor. So it works both ways.
Now, the second observation I would make isthings get confused. A lot of the criticisms that you heard today do occur in the day-to-day prosecution of individuals in our country quite independent of the Independent Counsel Statute, and they have to be dealt with, and they have to be dealt with the surgeon's scalpel and not the meat ax of the butcher, because you do want prosecutors to have certain power and leverage to get at the truth. This country would not have been so successful in its fight against organized crime, for example, if you took away from prosecutors some of the considerable powers that they have.
In a nutshell what is wrong with the Independent Counsel Statute and anything like it is that you are taking the enormous power of the prosecutor, the enormous law enforcement power which must be used with great care, and you are placing it in the hands of individuals, usually one individual, who then gets a staff. They are almost like a king or a queen. And the usual protections of the institution are not present.
My experience has been as we run to people with great white shoe resumes, Lawrence Walsh, Kenneth Starr should not have been appointed as independent counsels. They did not have the experience of using this enormous prosecutorial power in the past. This should not be a learning experience. Yes, they had wonderful resumes. Mr. Walsh was, I think, a Deputy Attorney General, but he was not someone who knew how to use this vast power, and that is where the problems come with this statute.
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It is true, members of the committee, that abuses occur outside of the statute, but in a case where I have a problem with an assistant U.S. attorney in some other part of the country, I usually can get a review by his superior or a review by the United States attorney, or I at least can get a review here in Washington, admittedly sometimes unsuccessfully.
When you are dealing with an independent counsel, it doesn't work that way. It is a practical problem. You are essentially dealing with one person. There is almost no right of appeal, and that is what the enormous problem with this statute is.
Also it is a lack ofbeware of a lawyer with one case and unlimited budget and no time restraints. When I hadwhen I was a Federal prosecutor, I had 100 cases or 200 cases. I had to use my time efficiently. I would not have pursued baby-sitting records in a case like this. And it is just a human nature problem. You give one lawyer one case, one reporter one story, one Congressman one piece of legislation, and you areit is a formula for trouble. And that is what is wrong with
Mr. GEKAS. I am in trouble.
Mr. BENNETT. That is essentially, in my judgment, what is wrong with the statute.
The attorney fees, that is a problem. Everyone who gets caught up in the criminal justice system without regard to the Independent Counsel Statute has a problem. Most of usBob and I couldn't afford ourselves if we got in trouble. That is why we stay good friends, so we can cover each other if we get in trouble.
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There is a perverse thing about the Independent Counsel Statute, and that is if you are indicted, you can't recover your legal fees, but if you aren't, if you are not indicted, you can. It has been a subject of teasing between Lloyd Cutler and myself. Lloyd was one of the architects of the statute, and he represented George Shultz, who never got indicted, and Lloyd collected some fees. I respected Cap Weinberger, and fortunately subsequently pardoned, but we could not get legal fees. That is a problem throughout the system.
Now, I do think this, because it has come up today, I think that it is legitimate, and I hope a committee like this will consider changes in the system aside from independent counsel because there are some serious problems. If you lock me up, let me say I blame Congress a whole lot, a whole lot, because what Congress has done in some of its legislation is you have placed such enormous poweryou have distorted the system. You have placed such enormous power in the hands of the prosecutor and taken it away from the judge that you are causing problems.
It is not just the sentencing guidelines. I would be happy if they were guidelines, but they are not guidelines. As a practical matter they arethey are pretty rigid. And these mandatory minimum sentences are sinful. They are outrageous. There are young men and women, a lot of women with children, women in their 20's, who are locked up for incredible periods of time. Their families are destroyed, and because they are so low on the totem pole, they have no information to trade to the government. And because it is nice to be tough on crime, and I am very conservativeeven though I am a defense lawyer, I am very conservative on crime, you live with these mandatory minimum sentences, and these sentencing guidelines have distorted the process. You have taken the discretion away from the one person in the whole system that is objective and impartial, and that is the judge, and you have placed it in the hands of the prosecutor.
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Now, having said all of that, I think you have to use the surgeon's scalpel when you start making these other changes. When I was a Federal prosecutor, I pressed people sometimes if I did not believe they were being truthful. John Gotti would not be in prison today if you took away from the prosecutors that power or that authority to make deals. Some people would think that is good, some bad.
But what it always comes down to, unfortunately, it is the person who is wielding the power, and that is why I think the professionals have to wield the power. And what we do too routinely, we have a high-profile case, we say, let's get an independent counsel. Let's pick someone with a great white shoe resume, with a great reputation, and they have not done the surgery before.
I think that was true in Mr. Walsh's case and Kenneth Starr's case. You can't tell someone by the results. Just because someone is acquitted does not necessarily mean that the case should not have been brought, and I don't know about Mr. Cisneros' case. My guess is that it is a case that should have been resolved in a matter of months, but I don't know if that is the fault of the independent counsel. Was that plea that Mr. Cisneros pled to available 2 or 3 years ago? I don't know the answer to that. I think you really have to probe into these things and get inside the cases before you draw a great conclusion.
Having said all of that, I do not question that the witnesses who came here today who had been on the receiving end of these statutes were indeed abused. I think Ms. Steele's case, I think Ms. McDougal's case, I don't think any experienced prosecutor would have pursued those cases in the nature and the extent to which they were pursued. I attribute that more to inexperience, not really having the experience of knowing good cases from bad cases.
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I very much appreciate the opportunity to come here and be of help.
Mr. GEKAS. We thank you, Mr. Bennett.
[The prepared statement of Mr. Bennett follows:]
PREPARED STATEMENT OF ROBERT BENNETT, ESQUIRE, ATTORNEY FOR CASPAR WEINBERGER
Good morning Mr. Chairman, Mr. Ranking Member and members of the Committee. My name is Robert S. Bennett, and I am a partner in the Washington office of Skadden, Arps, Slate, Meagher & Flom. I want to thank the Committee for inviting me to present my views on the Independent Counsel Act, about which I feel very strongly, and with which I have had much experience. My comments today are my own views and I do not speak for anyone other than myself and certainly not for any present or former client.
I and my firm have represented both targets and witnesses in Independent Counsel investigations. We have represented Republicans and Democrats, public officials and corporations involved in Independent Counsel investigations. These included Caspar Weinberger, the former Secretary of Defense in the Reagan administration; Harold Ickes, former White House Chief of Staff; and of course, President Clinton. Additionally, I served as special counsel to the Senate Ethics Committee in three investigations: the Harrison Williams investigation; the David Durenberger investigation; and the so-called ''Keating Five'' investigation. Before going into private practice 27 years ago, I was a federal prosecutor, serving in the District of Columbia as an Assistant United States Attorney. I believe this range of experience gives me some insight into the functioning, and the flaws, of the Independent Counsel Act.
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I had hoped that the Independent Counsel Act had died. But, given my presence here today, I can only assume that like Count Dracula, it still breathes and hopes to rise again. While I once believed an Independent Counsel Act was necessary, I am now convinced it should be allowed to die and never be revived.
My reasons are as follows:
Rather than freeing prosecutorial discretion from political bias, the Act has become yet another weaponindeed, a nuclear weaponin the arsenal of partisan politics. In the Weinberger case, a second indictment only days before a Presidential election unnecessarily and gratuitously politicized the case to the detriment of my client. You may recall that on September 29, 1992 we were successful in getting the United States District Court to dismiss the principal charges against Mr. Weinberger. However, the Independent Counsel released a second indictment only a few days before the 1992 Presidential election, approximately 8 weeks before trial. The OIC's new indictment against Mr. Weinberger included gratuitous information about then-presidential candidate George Bush's alleged involvement in the Iran-Contra matter, whichdue to its timingtouched off a political furor. The OIC's action not only intruded on presidential politics but was grossly unfair to my client. The OIC could have waited until the day after the election to release the indictment, or he could have filed it under seal, or, if he still felt compelled to file it prior to the election, he could have omitted the gratuitous information about Vice President Bush which was included in the indictment even though it was totally unnecessary to make these references in the charges against Mr. Weinberger.
While there may be disagreement as to why and how Mr. Starr's investigation of President Clinton became politicizedwhat cannot be disputed is that it became politicizedpolitics was not taken out of law enforcement.
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Rather than ensuring that public officials are not treated with kid gloves, the Independent Counsel Act became a vehicle for subjecting them, and those around them, to seemingly perpetual scrutiny more intense than any private citizen would have to endure. The mere appointment of an Independent Counsel puts the scandal machine in overdrive.
And rather than being invoked in limited and extraordinary instances, the Act was structured and has been interpreted by the courts in such a way as to give Independent Counsels ever-expanding jurisdiction. This resulted in the prosecution of peripheral individualssome of whom never held public office or never had any dealings whatsoever with the public figure who is supposed to be the target of the Independent Counselfor matters which would normally not subject anyone to prosecution.
Former Attorney General Edward Levi was able to spot the problems with the Independent Counsel Act two decades agobefore any Independent Counsel had even been appointed under the Act. In testimony he gave before the House Judiciary Committee in 1976, when the Act was first proposed, he warned that it
would create opportunities for actual or apparent partisan influence in law enforcement; publicize and dignify unfounded, scurrilous allegations against public officials; result in the continuing existence of a changing band of multiple Special Prosecutors; and promote the possibility of unequal justice.
We should have listened to Attorney General Levi.
Page 160 PREV PAGE TOP OF DOC Some of the Act's fundamental flaws are well-known to this Committeethe lack of deadlines for completing an Independent Counsel investigation, the limitless resources that were available to an Independent Counsel, the fact that an Independent Counsel had just one case to pursue. Beware of a lawyer with one case who has an endlessly deep pocket to finance it and no time limit in which to get the job done and no other cases to compete for the Independent Counsel's time and money. As Justice Scalia stated in his dissent in Morrison v. Olson,
How frightening it must be to have your own Independent Counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhilewith whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities.
I have come to the conclusion that we do not need an Independent Counsel Act. In the passion that followed the Watergate scandal, it seems the country and Congress may have ignored the most obvious lesson of Watergate: the system worked. Despite the Saturday night massacre, a special counsel, appointed within the existing Justice Department structures and regulations, was able to pursue the most serious charges against the highest officer in the land. President Nixon did not shut down the prosecution by firing Archibald Cox. A free press and firm Congress would not permit him to do that. In the end, he turned over the tapes and resigned.
There is every reason now to revert to that structure. Even without the Independent Counsel Act, there are mechanisms that an Attorney General can use in the extraordinary case to appoint a special counsel who cannot be fired except for cause, but who otherwise would operate within the Justice Department. The practical reality is that it is most unlikely that there could even be a cover-up of a serious crime by a President or other high-ranking official. Congressional oversight, an aggressive press, and professional prosecutors and agents would blow the whistle on any such attempt. The Independent Counsel Act simply is not needed.
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Moreover, any benefits to be derived from an Independent Counsel regime were outweighed by the costs it imposed on our society. These costs included the corrosion of public confidence in our justice system; the erosion of the separation of powers; and incursions into the rights of individuals in and out of public office. Perhaps the most troubling cost, I strongly believe, was that the Act and its accompanying scandal mentality discouraged the best and brightest from serving in government.
On the other side of the ledger, I no longer see any benefit to having an Independent Counsel Act. The justification for the Act was never, in my mind, that the Department of Justice could not be trusted to vigorously pursue investigations into politically important people. To the contrary, it has always been my experience, both in and out of government, that the professional prosecutors of the federal government are, with few exceptions, thorough, fair and impartial no matter who is the target of their investigation. For example, during a Democratic administration, the Department did not shrink from prosecuting my former client Congressman Rostenkowski, arguably the most powerful Democrat in Congress and an ardent supporter of President Clinton.
Partisan politics, however, infected every phase of the Independent Counsel process. Every step of the processthe very first call for an Independent Counsel, the decision to make a referral, the court's choice of an Independent Counsel, the conduct of the investigation by an Independent Counsel once appointedevery step became an opportunity for one side or the other to cry political foul. We can argue for days about who was to blame for this; there was, I sense, plenty of blame for all to share. But the bottom line is this: the public came to view the Independent Counsel process as largely a political process. This not only undermined respect for the Department of Justice but also led to disrespect for Congress, who, many believe, was willing to interfere with impartial law enforcement for the sake of partisan gain.
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The Independent Counsel concept is therefore of no benefit anymore, and the Act should not be renewed. The Act should be allowed to die. It cannot be fixed. All the proposed fixes would make it more complicated and unwieldy, and would raise as many questions as they solve. However, if there is to be a new legislative or regulatory approach, I believe the following recommendations must be incorporated:
The single most important change must be to bring the Independent Counsel within the Department of Justice budgetary system and under the auspices of DOJ guidelines.
Any renewed Act or regulation should be limited in application only to the President, Vice President and the Attorney General. No discretionary authority is needed because existing Government Ethics regulations already requires the Attorney General to recuse herself when she has an actual, personal or financial conflict.
Any renewed Act or regulation should be invoked only in connection with charges of felony-level offenses that occurred while the target held public office. You should not permit an Independent Counsel to have a hunting license to pursue a covered official in all aspects of his or her past life.
Preliminary inquiries should not have artificial 90-day deadlines.
The Attorney General should be authorized to issue subpoenas and use a grand jury during the preliminary inquiry phase.
Page 163 PREV PAGE TOP OF DOC The standard for referring a matter to an Independent Counsel should be probable cause, or at a minimum, a rational basis to believe that a felony offense has occurred. The requirement that a referral must be made if ''further investigation is warranted'' should be eliminated. The burden should always be on the government to affirmatively establish some quantum of evidence to go forward with an IC investigation.
The Act or regulation should make explicit that an Independent Counsel's jurisdiction is to be strictly construed, and should not be expanded beyond that necessary to prosecute obstruction and perjury in connection with its original jurisdiction.
Each IC investigation should have a deadline and a budget stated in the jurisdictional referral. It should be part of the Attorney General's mandate to set a deadline and a budget which in his or her judgment is reasonable to complete the investigation, given the nature of the referral. If an IC determines that he or she will need more time or money, the IC could apply to the Special Division of the Court.
Independent Counsels should be selected from a pre-existing roster of highly qualified professional prosecutors or former prosecutors, compiled by the Department of Justice based on names solicited from sources such as the American Bar Association, Federal District Courts and U.S. Attorneys throughout the country. The appointment should not be made because someone seeks the job or because a well-placed friend recommends him or her to a Judge on the Special Division.
A significant percentage of an Independent Counsel's staff should be required to be highly experienced career prosecutors. Perhaps career prosecutors in the Public Integrity Division should be regularly assigned to staff Independent Counsel investigations.
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An Independent Counsel should be required to give up his or her private practice until the investigation is completed.
There should be no requirement that an Independent Counsel issue a final report and all who are appointed should agree not to write books about their investigation. Reports and books serve no prosecutorial purpose and only further politicize the process and tarnish the reputations of individuals whom the IC may have chosen not to prosecute. Moreover, the report writing requirement increases the cost of investigation because it causes Independent Counsels to pursue aspects or details of investigation which have little investigatory value but only serve the purpose of protecting the Independent Counsel from future criticism and placing him or her in a favorable historical light.
There should be no requirement that the Attorney General report to Congress on why he or she chose not to refer a matter to an Independent Counsel. In the law that recently lapsed, the Attorney General was required to report to Congress if she declined to make a referral that was initiated by a request from the majority of members of either party on the Judiciary Committee. This simply created opportunities to use the Independent Counsel Act as a weapon in partisan politics, and subverted well-established and warranted rules concerning the secrecy of criminal investigations.
Any Independent Counsels should be clearly required to follow DOJ policy and guidelines except for those that require approval of the Attorney General or other high-ranking DOJ officials. Witnesses, subjects and targets of IC investigations should be recognized in the statute as having standing to enforce this requirement.
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The Attorney General should be authorized to remove or discipline an Independent Counsel for good cause, including a failure to follow DOJ guidelines or a violation of ethical rules applicable to prosecutors. The procedures for removing an IC, and who should conduct investigations of independent counsels, should be spelled out in statute or regulation. There is no need to fear that an Attorney General will use this authority improperly; Congressional oversight and the news media will see to that.
Mr. GEKAS. Mr. Nofziger.
STATEMENT OF LYN NOFZIGER, POLITICAL CONSULTANT
Mr. NOFZIGER. First of all, I am not going to read my statement either.
I appreciate very much the opportunity to come up here. This happened to me 10 years ago, and I still am not very happy about it. Among other things, you never get away from these. Just as recently as last year, I had stories in the newspaper saying that I had been convicted and sentenced to jail, and I had a candidate running for office, not in my party, saying the same thing about me, not in my party, and they were retracted, but that sort of thing goes on and on.
Secondly, I am a great admirer of Mr. Espy and those ladies that were up here and anyone else who stands up to the government, because I will tell you, if the common ordinary citizen does not stand up to the government, and by the government I mean the Congress, I mean the courts, the executive, if we don't stand up to them, eventually you will take all of our freedom away from us. So I have great admiration for those who have done it.
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That really is about all that I have to say. I am pleased to be here. I am pleased to see that my friends in the other party are as interested in this sort of thing as I am, and I am very pleased to hear that this law isthis terrible law is now dead.
One more thing. Mr. Plotkin is here not as my lawyer, although he is my lawyer. He is here because he wants to talk about Sam Pierce. Thank you.
[The prepared statement of Mr. Nofziger follows:]
PREPARED STATEMENT OF LYN NOFZIGER, POLITICAL CONSULTANT
Chairman Hyde, members of the House Committee on the Judiciary:
Thank you for giving me the opportunity today to testify about the recentlyand, I hope, permanentlyexpired Independent Counsel Law and its abuses.
As you may know, I am not here as a lawyerI am not a lawyerbut as the target of an Independent Counsel who had nothing better to do with nearly three years of his timeand minethan to try to put me in prison.
Before I go any farther, let me remind you that, thanks to his efforts, I was convicted, sentenced to 90 days in prison and fined $30,000, but that conviction, like the indictment itself, was thrown out by a federal appeals court.
Page 167 PREV PAGE TOP OF DOC The entire process, from the naming of the Independent Counsel to the final action by the appeals court cost me more than $1.5 million. It also destroyed my business.
The process pitted me and my limited resources against the unlimited resources of the Independent Counsel's office and a prosecutor whose sole job and intent was to see if he could put me in prison,
Ladies and gentlemen, I do not think for one minute he set out to find the truth; instead he tried to bar all the facts from coming out, I think because he saw his job not as getting at the truth but as getting Lyn Nofziger. I think that is a failing that many prosecutors have, but that failing is magnified when the prosecutor has nothing better to do than to go after a single individual and has no restraints on the time and money he can spend in that pursuit.
Remember, and I think this is very important, the law not only gave the independent prosecutor unlimited resources, including money and manpower but it also gave him an unlimited hunting license to go prowling through White House records as well as my business records in search of crimes I might have committed and he had a large staff with unlimited time in which to do it.
They even went over my income tax records, which were in no way involved in the crimes of which I was accused, but I suppose they thought that while they were looking they might as well see if they could get me on income tax violations, as well.
My point is, he was not limited to investigating the one charge of which I was accused; he literally could investigate anything that had to do with me. It's as if the Los Angeles District Attorney tried to find out if O.J. Simpson had smoked pot so he could indict him for that, too.
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The fact is, there are no reins on an independent counsel, no limits on what he can do, how long he can investigate or how much money he can spend. That is wrong; it amounts to giving the Independent Counsel the right to harass on an unlimited basis.
I was indicted on four counts and convicted on three of them. Ironically, the one count on which I was found not guilty was the one the Independent Counsel was named to investigate. The other three counts came about, not because there were any indications of wrong-doing on my part but only because he was able to rummage freely through White House records and papers.
It is important to remember one thing about the independent counsel. He does not have to convict you to destroy you; he does not even have to indict you, although that helps.
He can bankrupt you by forcing you to hire lawyers who, as you know, are not cheap and who travel in pairs. The minute he indicts you lose your last clients, those who might have stuck with you through his investigation. He can ruin your reputation by taking you to trial and accusing you of all sorts of mis and malfeasances.
And during all this he and his coterie of lawyers is accountable to almost no one. You have no recourse against him.
Ladies and gentlemen, I have no reason to take up any more of your time. Just let me close by saying that I doubt that there is one of you here today who would rest easy if you knew there was a prosecutor out there somewhere with unlimited resources and time and access to your papers and records whose sole objective was to find you guilty of something.
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That is what the independent counsel law permits. That is the power the independent counsel has. It is a power that no individual should be given by the congress or that should be approved of by a president.
Finally, while it is easy to say that this is a nation of laws, not men, that is not quite true; we are a nation of laws that are written and administered by flawed men. So I would urge you, if you decide to write a new Independent Counsel act to write it so that it is not subject to abuse by those who operate under it and so that the power of the independent counsel is very carefully circumscribed.
Thank you very much for this opportunity.
Mr. GEKAS. Without objection we will entertain a brief statement by Mr. Plotkin.
STATEMENT OF ROBERT PLOTKIN, ESQUIRE
Mr. PLOTKIN. Thank you. I will not repeat the statement I submitted to the committee.
I had the unfortunate experience of not only having to represent Mr. Nofziger in an independent counsel investigation, and he wasn't the unfortunate part, the charges were the unfortunate part, but I also had the unfortunate experience of representing the former Secretary of HUD, Samuel Pierce, in an independent counsel investigation, and it is one that you don't hear as much about because Mr. Pierce is a lower-profile individual and was not dramatic in his statements and comments to the press at the time.
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But I think it is interesting to note that of all of the people that you have met here today and the different cases that we have talked about, Mr. Pierce was not actually indicted, he was never charged with any crimes, and yet he suffered the same abuses that all of these other individuals have described to you.
The independent counsel investigation began in 1990. It just ended several months ago in 1999. The last 2 years of that were basically focused on drafting the famous report that the independent counsel is supposed to submit. Mr. Pierce had 10 years of tax returns and financial records and all these other matters that everyone else has described looked at as well. His wife was looked at even though she wasn't living in Washington during the time that he was Secretary of HUD.
At the end of this 9-year investigation, which cost $28 million, there were 16 indictments, and I would point out that of the 16, one of them was of a corporation, so they couldn't go to prison; 10 of the 15 others received probation; and three or four of the others received jail sentences of less than 5 months. And yet that is what took 9 years and $28 million.
The ultimate insult to Mr. Pierce is that he is actually one of these people who is entitled to obtain legal fees as a result of all of this because he was not indicted and he submitted an application. He had to wait 4 years to submit an application after his name was cleared, and when it came time, the independent counsel, which had virtually disbanded its investigation, came back and filed the most vituperative and vicious opposition to his fee application, and so that is pending and has not been ruled on yet. So even then it, like the movie Carrie where the hand comes out of the grave, they are reaching back from the grave to try to stop him from recovering these attorney's fees that he should be entitled to because he was not indicted.
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Mr. Pierce's basic crime was that their allegations that he had mismanaged a Federal agency, and I would just like to submit if that were actually a crime in Washington, that there would probably be many more senior officials from both parties serving a lot more time than Susan McDougal served. Thank you.
Mr. GEKAS. I thank you, Mr. Plotkin.
[The prepared statement of Mr. Plotkin follows:]
PREPARED STATEMENT OF ROBERT PLOTKIN, ESQUIRE
My name is Robert Plotkin, and I am with the National law firm of Paul, Hastings, Janofsky & Walker. I have practiced law in Washington, D.C. for more than 25 years, and have had the opportunity to represent both targets and witnesses in several different Independent Counsel investigations. I was one of the attorneys for Mr. Nofziger during his independent counsel ordeal, and I also represented the former Republican Secretary of Housing and Urban Development, Samuel R. Pierce, Jr., in a six-year investigation by an Independent Counsel.
I would like to add to the Record today a brief account of Secretary Pierce's travails during that investigation.
Prior to his appointment as Secretary of HUD by President Reagan, Mr. Pierce was one of the most prominent lawyers in the Country. He already had a distinguished career in government service and later was the first Black partner in a New York Wall Street law firm. At the personal request of Dr. Martin Luther King he was one of the counsel in the landmark Supreme Court decision New York Times v. Sullivan. Following news reports and Congressional hearings into administrative and management problems during his tenure at HUD, there was a Congressional call for the appointment of an independent counsel. I observe that if all management problems at Federal agencies led to criminal investigations, the jails would be full of senior officials from both parties.
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Mr. Pierce was never indicted by the Independent Counsel. There was no credible evidence against him of any wrongdoing. A thorough review of his and his wife's finances and tax returns for a ten year period turned up no hint of improper financial gains. Yet, solely because of the Independent Counsel law, he was investigated relentlessly.
The HUD Independent Counsel investigation ran from March 1990 until June 1999. The cost of that investigation was $28 million. It led to sixteen criminal convictions of lower level federal employees or government contractors. Of those 16 convictions, 10 people were placed on probation, and three others spent less than 5 months in jail. None of these people was a ''covered person'' under the Independent Counsel law and anyone of them could have been investigated and prosecuted by the Justice Department without regard to or need for the Act.
The investigation itself duplicated an earlier investigation by the Inspector General of HUD. The Inspector General identified administrative problems at HUD but found ''no evidence of criminality.'' HUD, Office of Inspector General, Report of Investigation, No. HM11054, April 17, 1989. The professional prosecutors at the Justice Department, after reviewing this 700 page Report and other voluminous information, recommended to then Attorney General Thornburgh that he not even undertake a preliminary investigation of the allegations against Mr. Pierce. The Attorney General said publicly that he felt compelled to proceed further by the Independent Counsel Act.
The Independent Counsel investigation was far more rigorous than those undertaken by professional prosecutors. Every aspect of Mr. Pierce's personal and professional life for at least 10 years was scrutinized; his finances, taxes, family and personal relationships. The Independent Counsel's original jurisdictional mandate initially applied to just one HUD program. At the request of the Independent Counsel, it was eventually expanded at least five times, adding a total of eight different HUD programs and other subjects. Not a single one of these jurisdictional expansions led to any proof of wrongdoing or personal financial gain by Mr. Pierce.
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The final insult to Mr. Pierce arose four years after the decision not to indict Mr. Pierce was made, when the Independent Counsel filed an unwarranted, unprecedented and vicious opposition to Mr. Pierce's application for reimbursement of the attorney fees he had incurred throughout the years of the investigation.
Mr. Pierce's reputation was ruined and his retirement funds sapped by legal fees not because he did anything wrong, but because he was in the political bulls-eye of the Independent Counsel Act.
Mr. GEKAS. The Chair reserves or allots itself 5 minutes for a round of questioning.
I wanted to ask generally, does anyone on this panel have any credible evidence anyplace along the line that any of the special or independent counsels with whom you had counsel asked anybody to lie? It seems to recur time and time again from the McDougals and the Steeles and the others that the prosecutors ask them to lie.
Mr. BENNETT. Here is what happens. I am a very harsh critic of Mr. Walsh, who abused Mr. Weinberger, and I am a harsh critic of Mr. Starr, who I believe abused some of the people here today.
I must tell youand I do know Mr. Starr much better than Mr. WalshI honestly don't believe that they would knowingly ask somebody to lie knowing it was a lie. That is not how it works. Prosecutors get all involved in cases. They get very zealous in cases, and they believe that they know what the truth is, and they believe that the person that they are dealing with is being deceitful to them. They say, I know that you are covering up. If you say this and this, maybe we can make a deal. That is how it happens. And usually the person on the receiving end is convinced that they are being asked to lie. And, in fact, if they gave the testimony that the prosecutor believes is truthful, they would be lying. But that is different from saying that the prosecutor themselves knows that it is a lie and is asking them to lie. That is why when you give that power, you have got to give it to somebody who is very experienced in the use of that power.
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Mr. GEKAS. So if we were to pass a body of regulations to which the Attorney General must accede in the appointment of special counsel to replace the Independent Counsel Statute under the Justice Department, are you saying that these individuals who would be appointed special counsel might not be subject to the same criticism that you visit against independent counsel? In my judgment, it has to do with the individual.
Are we going to say that the amounts of monies are going to beexpenses are going to be circumscribed? The number of avenues open to the investigators are going to be closed because it is within the Justice Department? Then we have the other extreme of not doing the job and not getting at the truth; do we not?
Mr. BENNETT. Mr. Chairman, it is a balance, as in most things. In my statement I have given a lot of specifics of what I would do. One thing I would do, I would bring any special counsel within the budgetary system of the Department of Justice.
Secondly, I would pick in advance a panel each year of 15 or 20 of the best lawyers in the country who have tremendous reputations, are very experienced in this line of work, and who have other things to do. Then I would pick out of that groupyou don't want people who apply for the job, and some of the prior special counsels have applied for the job. But you can't put too many constraints.
If you have a successful private practitioner who takes this job on, that private practitioner is probably going to want to get back to work. You know, I can tell you, and one probably should not use themselves as an example, but when I was counsel to the Senate Ethics Committee on the Keating case, we had five United States Senators. It was a very complicated matter, but I wanted to get back to work because I had a practice. I had other clients to do. If you look at some of the independent counsels who have been given credit for being successful and efficient, you are going to find that they are largely people who wanted to get back to work. They had lots of other things to do.
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Mr. GEKAS. Mr. Nofziger, do you have any comment?
Mr. NOFZIGER. Surely. No one asked us to lie. They always assume that you are lying when you talk to them anyway, and then they ask you a lot of stupid questions and give you an opportunity, but nobody asked us to lie.
Mr. GEKAS. One other question then having to do with the pre-Watergate or the Watergate experience gave us a special prosecutor appointed by the Justice Department, if we recall, before the Independent Counsel Statute came. Does Mr. Bennett or Mr. Nofziger remember, I don't, whether they had unlimited expense accounts, or was the Justice Department feeding them asmall sums of money?
Mr. BENNETT. I don't know the answer to that. I certainly think that is the system that we should have to the extent that we have it, but I would put strict limits on it. If you were investigating a public official with a special counsel, I believe you should limit it to what they do in office.
Mr. NOFZIGER. I think you should limit time and money. The outrage of spending 9 years on poor old Sam Pierce, talk about a misuse of government power.
Mr. BENNETT. I would limit it to what you do in office. I would put real limits on some of these extraneous people.
Mr. Cisneros paid a fine of $10,000 and a misdemeanor, and yet there were witnesses in the case who became subjects and targets, who are serving years in jail because of false statements made on bank statements. That is not what the Independent Counsel Statute was designed for.
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Mr. GEKAS. The time of the Chair has expired.
We recognize the gentleman from New York.
Mr. NADLER. Thank you.
Mr. Bennett, you stated that you think that Congress has distorted the system by giving too much power to prosecutors and not enough to judges in particular by having the regime of mandatory minimums and sentencing guidelines that took the discretion away from the judges. Prosecutors have this tremendous power, and given this tremendous power, they can, with all good intentions, lean on a witness to testify to what they think is the truth, which may or may not be the truth.
And then you stated that a prosecutor performs in the normal course of businessforms a theory in the case, and he figures X did this. And, therefore, if you say that you saw X doing some other thing, you are not telling the truth. And he may offer you inducements to tell the truth, and that is the way that the system works.
Do you thinkassuming special prosecutors never existed, regular prosecutors, do they have too much power to coerce witnesses to change their testimony? There was a case in the court of appeals which said that the Federal bribery statute, nobody should offer a witness anything of value, meant if you are offering less jail time or something of value.
Do we have a situation where a prosecutor is being able to pressure witnesses in good faith, but defense attorneys not being able to pressure witnesses; are we getting less than the truth because of that?
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Mr. BENNETT. I don't know, but I don't know how you change it. I think a prosecutor has to have the power and has to be given the power to tell someone that if they cooperate, they will get X deal rather than Y deal. Otherwise I think that effective law enforcement will be dealt a terrible blow.
Mr. NADLER. That is one side of the question. Do you think that we get a lot of perjured testimony because people would rather not spend time in jail because of that?
Mr. BENNETT. I think you get a lot of perjured testimony. I think there is a lot of perjured testimony because the message is delivered loud and clear, sometimes by defense lawyers, saying, look, if you get convicted, you are going to go to jail for 5 years or 10 years. Your life is over. If you just bend and give them thisthose are unethical lawyers who do that, and many times lawyersthese defendants are not dumb people. They know
Mr. NADLER. Wait a minute. Are you saying that because of the existence of the ability of the prosecutor to lessen the implication for a witness who may or may not have committed a crime if he will testify a certain way, that power, including perhaps the defense attorneys saying bow to it, does that generate a lot of perjured testimony?
Mr. BENNETT. I am sure that leverage sometimes causes people to lie to save their own skin. That is why I say while I am not willing to take that power away from the prosecutor because I think there would be tremendous downside consequences, it has to be used by people in a very responsible way.
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I don't want to put Mr. Delahunt on the spot, but I am sure as a prosecutor he would sometimes use that power.
Mr. NADLER. What should be the protection in the law for a defendant who has a prosecutor who is not so scrupulous and uses that power wrongly? What protection does he have against that perjured testimony?
Mr. BENNETT. You don't have very much protection. You have something on the books, and then you have what happens in the real world.
In the Federal system, I have a right to get from the government all of the information about the plea deal, all of the promises that were made, so that I then can effectively cross-examine that witness and then argue to the jury, look
Mr. NADLER. Is that in effect a protection?
Mr. BENNETT. It is a protection, but I don't believe it is a particularly effective protection because there is always what is between the lines.
Let me give you another example. A prosecutor says, you have to pleaI will take a plea to count 1, and the sentence for count 1 under the sentencing guidelines gives you a range, you know. And let's say it is 3 to 12 years, just hypothetically. And if your client cooperates with us, I will go into court down the road and tell the court to depart from the guidelines; that instead of giving the guideline offenses, which are generally higher, I will go in and ask for a lesser sentence. Well, that is a sword over this person's head.
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Mr. NADLER. That is exactly what we have been talking about. You are saying that there is no effective protection for the defendant if that person as a result perjures himself?
Mr. BENNETT. In the real world there is not, and that is why prosecutors have to be carefully picked, properly trained, and it is not a business for amateurs or independent counsel who may have the right resume to argue before the United States Supreme Court, but not necessarily in the streets of the criminal law.
Mr. NADLER. Can I ask unanimous consent for 1 additional minute to ask Mr. Plotkin the same question?
Mr. PLOTKIN. Well, I agree with Mr. Bennett as to the practical realities of it. I do think that there are some additional protections that we might be able to afford the defendants so that they can keep a better
Mr. NADLER. What?
Mr. PLOTKIN. There has been some discussion. Grand jury abuse is a major part of all of this, and, of course, witnesses go into the grand jury without the benefit of their counsel, without the right to see the transcript of their testimony, and I think that there is some question or some move afoot to try to change that so that defense counsel can be present during those times. That, I think, would be a major contribution.
Page 180 PREV PAGE TOP OF DOC Mr. Bennett talked about the ability to get materials so that you can cross-examine effectively, but oftentimes you don't get that until the day before you are supposed to cross-examine the witness. You need to get a special order from a judge allowing you to see perhaps thousands of pages of documents some 30 days in advance so that you can properly cross-examine; but as a matter of right, you cannot obtain that material so easily.
So I agree with Mr. Bennett as a practical matter there is going to be perjury, but I think we need to implement some additional procedural safeguards which may lessen that.
Mr. NADLER. Procedural safeguards aside from the grand jury aspects would be an ability to see the materials far enough in advance and what else?
Mr. PLOTKIN. Everybody has talked about the need to change the sentencing guidelines and the hammer that causes, and that is one; and the right to have counsel in the grand jury.
Mr. BENNETT. There is one other big piece that is related to this that is equally or more important. We are talking about witnesses who are pressured, but the problem of informers is probably a bigger problem because very often the prosecutorwell, he deals with them, the cops deal with the informers. You have a lot of informers who really know the system, and they know if they give information to the police, that they will not only catch a break, but sometimes they can stay out on the street doing their deeds.
Mr. NADLER. You mean someone who isn't going to be a witness?
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Mr. BENNETT. Very often informers are not going to be a witness, but they provide the bases for the search warrants and the arrest warrants, and that is a whole area that is outside the scrutiny of a lot of people. A lot of it doesn't get within the scrutiny of the experienced prosecutorsometimes it does, but very often it is a relationship between the informant and the police officer or the agent, and that is a very dangerous area that has not gotten sufficient scrutiny.
Mr. GEKAS. The gentleman's time has expired.
We turn to the gentleman from Massachusetts for a period of 5 minutes.
Mr. DELAHUNT. Yes, I agree with just about everything that I have heard, which I don't think comes as a surprise, Mr. Plotkin. I think Mr. Bennett is aware that sometime in the next several months I will be filing some legislation relative to the issue of the grand jury. I don't know if Mr. Bennett agrees with that necessarily.
In the Commonwealth of Massachusetts we have allowed counsel in the grand jury room. As a prosecutor I even participated in the drafting of that legislation and cosponsored it, to the chagrin of many of my then colleagues in the prosecutors' world.
Yes, there has not been one statement since then from the police or the prosecutor saying that it presented any kind of a problem. Clearly counsel is there just to consult. He is not engaging in any sort of questioning, cross-examination, et cetera.
Page 182 PREV PAGE TOP OF DOC And I think, Mr. Bennett, you have hit it on the head. I think the problem that we had with Mr. Starr and with Mr. Walsh was that they never had the experience of the exercise of prosecutorial discretion. What I find interesting is that that is so essential.
However, where I think I might disagree with Mr. Bennett is that there are prosecutors today in the system at the Federal level and at the State level, and they can be there for an extended period of time, where experience somehow never matures into good judgment.
Mr. BENNETT. I agree with you.
Mr. PLOTKIN. Yes.
Mr. DELAHUNT. I daresay that it is important, because of what we have heard here today. I think of Mr. Weinberger, and any prosecutor knew that the timing of that indictment was going to impact that election. I mean, it was absolutely outrageous, and I am sure Mr. Walsh, whom I have never met, is a man of great integrity, but that shows to me a lack of experience and an insensitivity in terms of what the premise of the Independent Counsel Act was, which was to give the American people the sense that we were depoliticizing the system, but, in fact, by that act he politicized it. I don't want to go on and on about that.
Mr. BENNETT. Mr. Delahunt, I think you are right, and I think Mr. Starr surrounded himselfI would rather not give specific names, but I will if you ask mehe surrounded himself with a couple of those kinds of prosecutors.
Mr. DELAHUNT. Right.
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Mr. BENNETT. Because Mr. Starr didn't have the experience and the judgment, he just
Mr. DELAHUNT. Mr. Bennett, I have been saying that all along. I am sure Mr. Starr was, to use the colloquial term, rolled and bowled by some old pros who were looking for a pelt.
Mr. BENNETT. But one of the most damaging thingsI think the most damaging statement made against Mr. Starr was made by one of his aides, Mr. Bittman, maybe you can get one of your aides to get the transcript, when they were interviewed by Diane Sawyer. One of his professional prosecutors was asked what it was like working with him, and I am paraphrasing because I don't remember precisely the words, but it was something to the effect, well, when he came, he was sort of very naive and ignorant of the procedures, and we trained him.
Mr. DELAHUNT. I agree.
Mr. Plotkin, I didn't even realizeand this is what we have to understand, I think, as a societyI never realized myself that Mr. Pierce had not been indicted. What we have done to that individual is wrong and a reportI mean, I don't understand how Congress could have countenanced a report system that allowed, as you say, for a vituperative tarnishing of a reputation.
This morning, you were here, Mr. Espy alluded to the fact that somebody from Mr. Smaltz's office was present here today. I find that offensive. Here is a man who has been acquitted, and we have an independent counsel who sent somebody to a congressional hearing? For what purpose? What purpose?
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Can I have an additional minute?
Mr. GEKAS. He may have wanted to see if any unfair aspersions were cast on Mr. Smaltz. I don't think that we can question someone attending a hearing.
Mr. DELAHUNT. You can have your opinion, Mr. Chairman, but I find that offensive. If I was Mr. Espy, I would have thought the matter was closed. It is as if he is being shadowed. I would like to have an answer. We should be exercising our oversight jurisdiction as to why there was somebody from Mr. Smaltz's office here at a congressional hearing. That is what we should be asking.
Getting back to the pointdo you have something to say?
Mr. BENNETT. I didn't mean to interrupt you. I have had a delayed reaction to something that Mr. Nadler said which relates to what you are saying.
Mr. DELAHUNT. Please.
Mr. BENNETT. If the police illegally come into your house, we have plenty of ammunition. We can file a motion to suppress, get a hearing, and if there is a terrible grand jury abuse, and this is what I should have said earlier, we are helpless. The way that the courts rule is that we just don't have standing to attack grand jury abuse. We just can'tand it would be wonderful if there could be some kind of legislation where if we could document grand jury abuse where somebody goes in and is just totally forced intomaybe your legislation
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Mr. DELAHUNT. Reclaiming my time, coming from a major jurisdiction in Massachusetts, being a State prosecutor and being elected, I think that the framers of the Massachusetts Constitution which created the office of the prosecutor probably thought that out rather well, but I could never understand why in the Federal system the whole issue of discovery, as, Mr. Plotkin, you indicated, on the eve of trial to provideto provide the discovery at that point in time puts the individual at such a disadvantage.
When I was a prosecutor, I instructed my assistant district attorneys that we had an open file policy, unless there were security reasons, because if we are fair, we are going to have the confidence of the people, and if we make a mistake, it is going to be caught in time.
You know, a prosecutor, in my opinion, has a far greater responsibility in terms of the administration of justice, and that really, truly is the search for truth.
Mr. GEKAS. The gentleman's time has expired. Everybody's time and patience has expired, and therefore we dismiss the panel with our gratitude, and thank you for your generosity.
Mr. BENNETT. Thank you.
Mr. GEKAS. This hearing is recessed and adjourned.
[Whereupon, at 2:20 p.m., the subcommittee was adjourned.]
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