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“IRAQ AND THE INDEPENDENT COUNSEL LAW” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S803-S805 on Feb. 23, 1998.
The publication is reproduced in full below:
IRAQ AND THE INDEPENDENT COUNSEL LAW
Mr. LEAHY. Mr. President, dueling for the lead on the front page of every newspaper in this country over the past month have been two stories: Whether the United States will send American soldiers into battle with Iraq, whether people will die in Iraq on both sides, or whether the President of the United States had an affair months ago with a former White House intern. Fueled by what have been titillating leaks and innuendo, the story of the alleged affair and Special Prosecutor Kenneth Starr's investigation has, more often than not, stolen the lead.
I have spoken before about the high volume of information that apparently originates from prosecutor Starr's office. The press has cited as sources ``several Federal investigators,'' ``one official involved in the discussions,'' or ``sources close to independent counsel Kenneth Starr,'' and ``government officials.'' Whether or not the material concerns matters before the grand jury may be relevant to whether a criminal violation occurred, but the distinction is of no relevance as a matter of prosecutorial ethics. It is prosecutorial ethics that I am concerned about.
The distinguished senior Senator from Pennsylvania, Senator Specter, who shares with me a former career as a prosecutor--a career both of us are proud of--knows that a prosecutor's case should be tried in court and not the press. When I spoke about Mr. Starr earlier, Senator Specter came to the floor on January 27 to repeat Mr. Starr's
``emphatic denial'' that his office was in any way responsible for these stories, as Senator Specter had a perfect right to do. But less than 2 weeks after that denial--the denial made by Mr. Starr--Mr. Starr acknowledged, on February 5, his ``regret that there have been instances, so it would appear, when that [grand jury secrecy] rule has not been abided by,'' and announced that he was initiating an internal investigation to determine whether his office was responsible for the leaks. Perhaps his ``emphatic denial'' was too hastily put.
We will see if Mr. Starr pursues that internal investigation of his own office with anything even approaching his zealous pursuit of the President and the First Lady.
One of the most disturbing spectacles we have seen from Mr. Starr's inquest is that of a mother being hauled before a grand jury to reveal her intimate conversations with her own daughter. And she is, of course, not the only one. According to press accounts, Monica Lewinsky's close friends have had to fly in from California to testify, at whatever expense that might be, to hiring lawyers, and so forth. Bystanders--people who just happened to be standing there--at White House events where both the President and the former intern were both present have also been given grand jury subpoenas, as have those who used to supervise her work or work alongside the former intern. In this investigation, even the possibility of gossip based upon gossip, hearsay based upon hearsay, is enough to bring you into the chambers of Kenneth Starr. For witnesses, this may be a matter of having to spend all the money you have saved for a college education, your children's education, or anything else, to pay for lawyers, if there is even a possibility that you might have been somewhere in the area and might have known something--even though you are not alleged to have done anything wrong, even though nothing wrong was alleged to have happened while you were standing there.
But, as a father, no tactic was more shocking than the treatment that Mr. Starr gave the mother of the former White House intern at the center of this controversy. Every single parent wants to be able to provide comfort and advice to a son or a daughter who is in trouble or in need of solace. No attorney, no doctor, no clergymen, no psychotherapist, no spouse would, in most States, be faced with the awful choice of the mother caught in the machinations of Mr. Starr's expanding investigation. Her choice, as I understand it, was refuse to testify--refuse to say what confidence she had shared with her own daughter--and, if she did refuse, be faced with contempt proceedings, including possible jail time. She would either go to jail or betray her child's confidences.
This is the United States of America. This is not the Star Chamber of hundreds of years ago. This is not the Spanish Inquisition. No child, no matter what their age, expects his or her conversations with a parent to be disclosed to prosecuting attorneys, compelling a parent to betray his or her child's confidence is repugnant to fundamental notions of family, fidelity, and privacy. Indeed, I can think of nothing more destructive of the family and family values, nor more undermining of frank communications between parent and child, than the example of a zealous prosecutor who decides to take advantage of close-
knit ties between mother and daughter, of a prosecutor who said, if a mother loves a daughter and a daughter will go to a mother to talk to that mother, then we are going to grab the mother. Great family values, Mr. President. Great family values, Mr. Starr.
As one law professor said, ``I want my child to be able to come to me and share anything in the world. Neither of us should be fearful in the back of our minds, that if I'm hauled in front of a grand jury, I'll either have to hurt my child or put myself in legal jeopardy.'' If my child were in trouble and chose, as I hope that child would, to come to me, I would be loathe to have to refer my child to an attorney or priest or psychiatrist, because they have a privilege, and say, ``You can't talk to your own father or your own mother.'' Family bonds of blood, affection, loyalty and tradition deserve as much protection as the professional relationships of trust that are already protected by legal privileges.
Frankly, I can tell you right now if a child of mine confided in me, no grand jury, no prosecutor, no runaway special counsel would get me to talk about my child. I would tell that special prosecutor, ``Have you no shame? Have you no shame?'' I would go to jail before I would ever disclose one word that a child of mine said to me. That is the feeling this Vermonter has. And that is the feeling of the shame of a prosecutor who would force a mother--a mother--to talk about what her daughter may have told her. It is awful.
Four States already have adopted or recognized some variant of the parent-child privilege. One Federal circuit to consider whether a parent-child privilege should be recognized in Federal proceedings, refused to recognize this privilege stating:
The legislature, not the judiciary, is institutionally better equipped to perform the balancing of the competing policy issues required in deciding whether the recognition of a parent-child privilege is in the best interests of society. Congress, through its legislative mechanisms, is also better suited for the task of defining the scope of any prospective privilege. . . . In short, if a new privilege is deemed worthy of recognition, the wiser course in our opinion is to leave the adoption of such a privilege to Congress. In re Grand Jury Proceedings, 103 F.3d 1140 (3d Cir. 1996).
The third circuit is right to let Congress consider this important issue. We in Congress should take up this challenge since we apparently cannot trust the sound judgment of certain prosecutors. I am going to have a bill which will be a start.
We have to assume the reason we have not had legislation on this before is that prosecutors showed some discretion. A prosecutor is the most powerful position, usually, in government. He or she can decide not only when to bring a prosecution but when to withhold, whether to initiate an investigation or whether to withhold. Prosecutors generally do not think of bringing parents in and browbeating them. But I am going to ask for a study to see what legislation we might have to prevent abuses in this area.
Perhaps we should also confirm in legislation that there is a Secret Service privilege. On this issue I am glad the Justice Department has apparently concluded there is such a privilege. Presidential security and privacy demand such a privilege. Imagine if there were no such privilege. The challenge to this privilege could result in changing the way our President and other officials, including foreign dignitaries, are able to be protected. To avoid being witness to private conduct, will security details be forced to change where they stand, where officers are placed, how many officers are assigned, and so on? Without a privilege, will officers on security detail be forced to carry litigation insurance to pay for attorneys when they are called upon to testify as to what they observed? We should not be forcing officers to change the way they carry out their duties simply to avoid being called upon to testify by investigators of unprecedented zealotry.
Mr. President, I ask unanimous consent I might have 5 more minutes.
The PRESIDING OFFICER (Mr. Kyl). Without objection, it is so ordered.
Mr. LEAHY. Mr. President, what is troubling to me, I have been approached by law enforcement officers within our FBI who speak about being concerned that they may be assigned to the special prosecutor's office because they are going to be asked to look into things they normally never would have looked into as law enforcement officers; that there is a reputation that this special prosecutor's office has of an overconcentration on private sexual conduct of people--and not just the President but others as well--that they are going to be asked to look at things that as trained professional law enforcement people they usually do not look at.
I have also been approached by Secret Service agents who talked to me about the fact that they have been called upon to protect foreign dignitaries and others and now ask, are they going to be in a situation where they don't dare come close because they may overhear something of personal conduct and may then be called upon to testify to it? Do they have to worry that in carrying out their own duties they may find themselves bankrupted paying lawyer fees later on? This is a matter of some concern. I hope the feelings of these people are not widespread, but they may well be.
I have supported the independent counsel statute in the past, but never before have I been so disturbed by the tactics, judgment, and, at minimum, the appearance of partisanship by an independent counsel as I have by those of Mr. Starr and his staff. At a time when we need an independent counsel with the confidence of the American people, we do not have one.
For example, although a highly respected independent counsel, Robert Fiske, had concluded that Vincent Foster's death was a result of suicide, Mr. Starr, prodded by Richard Mellon Scaife and other right-
wing activists, reopened that investigation. He spent years doing it. He spent millions of dollars of taxpayers' money doing it. He dragged the Foster family and friends through that experience again. He made people again have to hire lawyers. Then what happens? He reaches exactly the same conclusion that Mr. Fiske did before, but doing the bidding of someone else.
Mr. Starr publicly justifies his rush to secretly tape Monica Lewinsky to expand his Whitewater land deal investigation because a close friend of the President helped her find a job. If the source of job offers can prove influence, then Kenneth Starr is in deep trouble and probably he should consider resigning. Just 1 year ago, Mr. Starr accepted a job offer for a teaching position funded largely by Mr. Scaife, the same well- known conservative publisher and financier who thought that the Foster case should be reopened, who has helped publicize allegations of wrongdoing by the President. Who knows what the status of that job offer is now?
In order for people to have confidence in the results of an investigation, that investigation must be nonpartisan and perceived to be nonpartisan. That is not the case when it comes to Mr. Starr. My friend from Pennsylvania, Senator Specter, as a former prosecutor, fully appreciates that principle as well. I understand he, too, has questioned the wisdom of having Mr. Starr head an investigation into the alleged affair since his activities have raised such an appearance of partisanship. I again urge Mr. Starr to do what is in the interests of the country and to consider whether his judgment has been so affected, whether he is now so driven to achieve a result, that he should reconsider his own role in the process.
The Senator from Vermont must conclude that Prosecutor Starr has not used his power responsibly and has failed his duty. Kenneth Starr is not the impartial, neutral and independent prosecutor the American people need now and the President, as would any American, deserves.
I predicted that his investigation may mark the death knell of the independent counsel statute. Before it is reauthorized, we ought to take a hard look at safeguards and accountability here. To have a nation on the brink of war preoccupied with affairs of the bedroom rather than of state is an abomination. More time has been spent on weekend talk shows talking about a White House intern than on the President's decision whether to use force against Iraq.
The good news is that while the rest of the country may be distracted by whom Mr. Starr will next drag before his grand jury, the President and his administration are properly focused on speaking to the American people about the circumstances that brought us to the brink of battle. The administration's preparations for battle surely helped bring about the proposed agreement the United Nation's Secretary General Kofi Annan has reached with Iraqi officials, and I remain hopeful that diplomacy, backed by the commitment to use force, will result in a peaceful resolution of this standoff. I look forward to reviewing the details of that agreement.
Mr. President, I thank my colleagues for their forbearance, and I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
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