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“COCONUT ROAD INVESTIGATION” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S3300-S3301 on April 23, 2008.
The publication is reproduced in full below:
COCONUT ROAD INVESTIGATION
Mr. KYL. Mr. President, I rise today to comment on the competing Coburn and Boxer amendments that were offered last Thursday to the highway technical corrections bill. I voted in favor of the Coburn amendment. That amendment would establish a bipartisan, bicameral committee of Congress to investigate the circumstances surrounding the changes that were made to the provisions of the 2005 highway bill relating to the Coconut Road project between the time that the bill passed the House and Senate and the time that it was enrolled.
However, I voted against the Boxer amendment, which purports to command the Justice Department to commence a criminal investigation of this same matter. Whether to initiate a criminal investigation is a decision that our Constitution vests exclusively in the executive branch. It is not a decision that the Constitution allows to be made through legislative enactments. Although the Boxer amendment's mandate to the executive was modified to state that the criminal investigation shall only commence ``under applicable standards and procedures,'' this change does not cure the amendment's constitutional infirmity. There are no ``applicable standards and procedures'' for a legislative mandate to the executive to initiate a criminal investigation. Whether to initiate such an investigation is a matter of prosecutorial discretion and is a decision entrusted firmly and solely to the executive branch. To the extent that the Boxer amendment purports to commandeer this function, it is a dead letter and will surely be ignored as unconstitutional legislative interference in an executive function.
I would finally note that by insisting on replacing Senator Coburn's amendment with a me-too amendment of their own, the Democratic majority has undercut the likelihood that there will be any investigation of the Coconut Road matter. Senator Coburn's proposal to create a committee of Congress to investigate this matter was perfectly constitutional and would have gotten to the bottom of this issue. The Boxer amendment is an unconstitutional nullity. And even if that amendment weren't unconstitutional, or if the Justice Department undertook an investigation of this affair on its own initiative, such an investigation would only answer whether a Federal crime has been committed. Congress and the people deserve to know the circumstances and potential ethical violations raised by this matter regardless of whether a criminal offense occurred.
I regret that the Coburn amendment was not adopted and was replaced by the Boxer amendment. By taking these actions, the Senate has crossed a constitutional line and has reduced the likelihood that the underlying matter will be adequately investigated.
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